S.S. Kulshreshtha, J. - (1.) Heard the learned Counsel for the applicant and the learned A.G.A. and also perused the materials on record.
(2.) This application under section 482 of the Code of Criminal Procedure (in short 'the Code') has been brought for issuing appropriate directions to police station Kidwal Nagar District Kanpur Nagar for making release of the factory premises. machines and materials etc. of M/s. Cherry Pharma situated at 128/27 E Block, Kidwai Nagar, Kanpur Nagar, which were seized by the police in Case Crime No. 143/04 under section 420. I.P.C. and also under section 63 of the Copy Right Act. It is said that the applicant is the proprietor of M/s. Cherry Pharma, Kanpur Nagar and is having valid licence for manufacturing Ayurvedic medicines and also produced of Glucose, protein food powder. It is said that Sri Ratan Tiwari representing himself to be authorised person of Heinz India Ltd. Mumbai lodged a written report with .the allegations that the applicant's firm is violating the provisions of the Copyright Act and is also involved in illegal activities such as manufacturing Glucose D and the wrapper used is identical to that of the wrapper used by complainants company. As a matter of fact applicant is having valid licence issued by the Nagar Mahapalika. Kanpur and also Drug Controller Ayurvedic and Unani Medicines, U.P. Lucknow. On the basis of written report, factory premises. machines and other materials were seized though the police had no authority to do so without ascertaining the authenticity of the licence so issued by the appropriate authority in favour of the applicant. In that regard relevant licences (Annexure Nos. 2 and 3) have also.been furnished by the applicant which univocally convey manufacturing right. Now question arises as to how for that repacking of Glucose D would make out the offence. In that regard it has been made specific that there is no such monopoly to the opposite party No. 2 to manufacture Glucose-D. Applicants firm purchases Glucose D from M/s. Sunrise Chemical Co. Ahmadabad and repack it in small packets. It has further been mentioned that even otherwise, there was no such allegation from the side of the informant that for such repacking. applicant is not entitled to do business. Reference has been make in the report that M/s. Heinz India Ltd. is processing/producing Glucose-D and using a particular Trade Mark. Other persons/producers cannot use it either on a packet or container. Allegation have been attributed for the use of trade mark identical to what M/s. Heinz India Ltd. is using.
(3.) It has been urged by the applicant that even if such allegations are accepted to be true on its face value, no offence under section 63 of the Copyright Act, 1957 is made out against the applicant. In the Copyright Act, the works in which Copyright subsists has been defined in section 13 which reads as under: (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say, (a) original literary, dramatic musical and artists works. (b) cinematograph films; and (c) sound recording. (2) Copyright shall not subsist in any work specified in sub-section (1), other than a work, to which the provisions of section 40 or section 41, apply, unless,- (i) in the case of published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India: and (ii) in the case of an unpublished work other than on (work of architecture), the author that the date of the making of the work a citizen of India in India; and (iii) in the case of an (work of architecture), the work is located in India. (3) Copyright shall not subsist (a) in any cinematography film if a substantial part of the film is an infringement of the copyright in any other work; (b) in any (sound recording) made in respect of a literary, dramatic or musical work if in making the (sound recording), copyright in such work has been infringed.;