DINESH YADAV Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-1-7
HIGH COURT OF UTTARAKHAND
Decided on January 10,2013

DINESH YADAV Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

- (1.) THE applicant before this Court is a Storekeeper in a drug company i.e. M/s Saint Michael Biotech, which runs a factory which manufactures pharmaceutical products at Plot No.130, Village Kurdi, Manglore, Jhabrera Road, Roorkee, Haridwar. An FIR was lodged on 08.02.2010 against four persons, including the present applicant with the allegations that the accused persons have knowingly infringed the copyright of a reputed drug manufacturing company called Pfizer. The police investigated the matter and filed the chargesheet against the applicant under Section 63 of the Copyright Act 1957, which reads as under:- "63. Offence of infringement of copyright or other rights conferred by this Act. ­ Any person who knowingly infringes or abets the infringement of - (a) the copyright in a work, or (b) any other right conferred by this Act except the right conferred by section 53A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees: Provided that where the infringement has not been made for gain in the course of trade or business the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees. Explanation .- Construction of a building or other structure which infringes or which, if completed, would infringe the copyright in some other work shall not be an offence under this section."
(2.) THE contention of the applicant is that the medicines are being manufactured by them as per law under a licence issued by the Drug Licensing & Controlling Authority, Uttarakhand and no offence is made out against the applicant under the provisions of the Copyright Act, 1957. He further submits that on the mere allegations in the F.I.R., to which he denies, if at all proceeding lies, it lie under the Trade Marks Act. He refers to Section 115 of the Trade Marks Act, which reads as under:- "115. Cognizance of certain offences and the powers of police officer for search and seizure.- (1) No court shall take cognizance of an offence under section 107 or section 108 or section 109 except on complaint in writing made by the Registrar or any officer authorised by him in writing: Provided that in relation to clause (c) of sub- section (1) of section 107, a court shall take cognizance of an offence on the basis of a certificate issued by the Registrar to the effect that a registered trade mark has been represented as registered i respect of any goods or services in respect of which it is not in fact registered. (2) No court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class shall try an offence under this Act. (3) The offences under section 103 or section 104 or section 105 shall be cognizable. (4) Any police officer not below the rank of deputy superintendent of police or equivalent, may, if he is satisfied that any of the offences referred to in sub- section (3) has been, is being, or is likely to be, committed, search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence, wherever found, and all the articles so seized shall, as soon as practicable, be produced before a Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be: Provided that the police officer, before making any search and seizure, shall obtain the opinion of the Registrar on facts involved in the offence relating to trade mark and shall abide by the opinion so obtained. (5) Any person having an interest in any article seized under sub- section (4), may, within fifteen days of such seizure, make an application to the Judicial Magistrate of the first class or Metropolitan Magistrate, as the case may be, for such article being restored to him and the Magistrate, after hearing the applicant and the prosecution, shall make such order on the application as he may deem fit." A bare perusal of the aforesaid provisions of Section 115(4) of the Trade Marks Act shows that the police officer not below the rank of Deputy Superintendent of Police or equivalent can search and seize without warrant the goods, die, block, machine, plate, other instruments or things involved in committing the offence. The argument of the applicant would be that only a police officer not below the rank of Deputy Superintendent of Police can search and seize the instruments/things involved in committing the offence. In the present case, the police did not proceed under the Trade Marks Act but under the Copyright Act purely in order to defeat the process of law. Further, he submits that in any case, the drugs are manufactured by the company under the licence issued by the Drug Licensing & Controlling Authority and, therefore, they are protected under Section 110 of the Trade Marks Act 1999, which reads as under:- "110. No offence in certain cases. ­ The provisions of sections 102, 103, 104 and 105 shall, in relation to a registered trade mark or proprietor of such mark, be subject to the rights created or recognized by this Act and no act or omission shall be deemed to be an offence under the aforesaid sections if,- (a) the alleged offence relates to a registered trade mark and the act or omission is permitted under this Act; and (b) the alleged offence relates to a registered or an unregistered trade mark and the act or omission is permitted under any other law for the time being in force."
(3.) FINALLY the learned counsel for the applicant submits that even assuming for the sake of argument that if any offence under the Copyright Act was made out, the applicant is protected under Section 15(2) of the Copyright Act, which reads as under :- "15. Special provision regarding copyright in designs registered or capable of being registered under the Designs Act, 2000 (16 of 2000)- (1) Copyright shall not subsist under this Act in any design, which is registered under the Designs Act, 2000 (16 of 2000). (2) Copyright in any design, which is capable of being registered under the Designs Act, 2000 (16 of 2000), but which has not been so registered, shall cease as soon as any article to which the design has been applied has been reproduced more than fifty times by an industrial process by the owner of the copyright, or, with his licence, by any other person." ;


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