M.N.Kapoor - (1.) BOTH these cases are directed against the order dated 19.1.1976, passed by the 4th Additional District and Sessions Judge, Allahabad. By this order the learned Sessions Judge had set aside the order of the Magistrate dated 18.10.1975 refusing to release the attached property in favour of the accused Zuber Ahmed. The learned Sessions Judge by the impugned order directed the Magistrate to release the property in favour of Zuber Ahmed after taking such security as considered necessary. The facts giving rise to this petition briefly stated are as follows:-
(2.) SURENDRA Kumar Chawala lodged a First Information Report dated 22.5.1975 alleging that Zuber Ahmed committed offences under Sections 78 and 79 of Trade and Merchandise Marks Act, 1958, by applying false trade marks to the articles prepared by him. SURENDRA Kumar Chawala claimed that he was the Proprietor of a trade mark TORCH for soaps registered in his name and the accused was marketing his goods under similar labels. On the basis of this First Information Report a raid was made in the premises of the accused on 14.6.1975 and several articles were seized including the machine for printing labels and many dies. Several labels of Sunlight, Lifebuoy and Rin Soaps were also found. All these articles were taken into custody by the police. Hindustan Lever Ltd. then filed a complaint on 25.6.1975 to the same effect. That complaint was forwarded to the police for investigation. Investigation on the basis of this complaint as well as on the basis of the First Information Report lodged by SURENDRA Kumar Chawala were pending when an application was moved by Zuber Ahmed on 2.8.1975 for releasing all the seized articles in his favour. That application was rejected by the Magistrate on 4.8.1975 by a short order which was as follows :- "Heard Being Case property, these property shall not be returned at this stage." A revision was preferred against that order which was dismissed by the Additional Sessions Judge on 1.10.1975. The learned Sessions Judge had observed while dismissing the revision that the learned Magistrate should have disposed of the application of the applicant according to Section 457 rather than Section 451 of the Criminal Procedure Code. It may be observed here that the Magistrate himself had not cited any section but he has used the words "case property". On 1.10.1975, the accused moved another application before the Magistrate for release of the property. That was again rejected by the Magistrate on 18.10.1975. Another revision was filed against this order which was allowed by the 4th Additional District and Session Judge, Allahabad, by his order dated 19.1.1976. The present revision and the petition under Section 482 Criminal Procedure Code are directed against this very order. The learned Sessions Judge took the view that only a complaint has been filed by Hindustan Lever Ltd. and no other case was pending against Zuber Ahmed. He, therefore, ordered that all the seized property be released. He, however, directed that some wrappers and soaps bearing the prints of Hindustan Lever Ltd. may be preserved.
(3.) LEARNED counsel for the applicant has challenged this order mainly on the ground that the principle of res judicata applied and the learned Sessions Judge should not have reversed the order of his predecessor. It was also argued that the Magistrate himself could not have reversed his previous order as was held in the case of Muneshwar Bux Singh v. State, AIR 1956 All. page 199. So far as the principle of res judicata is concerned, reliance was placed on the case of State of Rajasthan v. Tara Chand Jain, AIR 1973 SC 2131, Bhagat Ram v. State of Rajasthan, AIR 1972 SC 1502, Sambasivam 1940 AC 458 and Manipur Administration v. Thokehon Bira Singh, AIR 1965 SC 87. The fact remains that there was no change in the circumstances when the second application was moved on 1.10.1975. It was therefore, not proper for the learned Sessions Judge to have taken a different view than the one which was taken by his predecessor. On merits also it cannot be said that the seized property should have been released in favour of the accused simply because investigation was progressing and charge-sheet had not been submitted or the court had not taken cognizance because investigation had been ordered on the basis of the complaint filed by Hindustan Lever Ltd. It would depend upon the circumstances of each case whether the property which is reported under Section 457 Criminal Procedure Code could be returned to the accused persons. In the present case my attention was also invited to Section 85 of the Trade and Merchandise Marks Act, 1958, which provides that goods can be forfeited even if the accused is acquitted. Under these circumstances it was not proper for the learned Sessions Judge to have passed the order releasing the property in favour of the accused person at this stage. Now charge-sheet too has been submitted on 1/5/1976 and a report has been submitted on the basis of the complaint on 6/10/1975. Both the cases have been ordered to be amalgamated and are ready for hearing. Charges have also been framed. It therefore, appears to be proper that the case itself is tried at a very early date and disposed of within three months. I am informed that the learned Magistrate who is trying this case is on long leave. It is therefore, directed that the record be sent back to the Chief Judicial Magistrate, Allahabad, who shall recall the case and shall either try the case himself or send it to some other Magistrate under him for trial. Learned counsel for the revisionist and the petitioner under Section 482 Criminal Procedure Code as well as the learned counsel for the accused have given an undertaking that there will be no delay on the part of anyone of them in the trial.;