Debabrata Mookerjee, J.
1. The appellant Madan Lal Aurora has been convicted by a Presidency Magistrate under Section 10 read with Section 7 of the Essential Commodities Act and sentenced to detention till the rising of the Court and to pay a fine of Rs. 1000/-, in default to suffer rigorous imprisonment for six months. He has also been convicted under Section 482/485 of the Indian Penal Code and sentenced to pay a fine of Rs. 1000/-, in default to undergo rigorous imprisonment for six months'.
2. On behalf of the State an application for enhancement of the sentence passed on the appellant having been made, a Rule was issued by this Court. The appeal and the Rule have been heard together and are disposed of by this judgment.
3. On the 9th of May 1955 Santi Ranjan Roy Choudhury, a Trade Mark Investigator of Messrs. Hindusthan Vanaspati . lodged an information with the police complaining that Dalda products which were their manufacture were being adulterated and sold to members of the public in Dalda tins by Surendra Vegetable Stores at 171A, Harrison Road and 2, Babu Lal Lane. Action was accordingly requested to be taken by the Police in the interest of public health. On the basis of this information two search warrants were issued by the Additional Chief Presidency Magistrate authorising search of 171A. Harrison Road and 2, Babu Lal Lane.
4. On the 10th May 1955 two Sub-Inspectors of Police attached to the Enforcement Branch, K. L. Mukherjee (P.W. 1) and S. G. Moitra (P.W. 2) accompanied by the said Trade Mark Investigator of Hindusthan Vanaspati Manufacturing Limited searched 171A, Harrison Road and 2, Babu Lal Lane in the presence of search witnesses. The formalities of search and seizure were gone through and as a result of the search a large number of Dalda tins of different sizes and filler caps were recovered from the two places. Three seizure lists were prepared. Exhibit 3 related to the search of a shop at 171A, Harrison Road; Exhibit 4 to another shop described in the evidence as a fruit shop and Exhibit 6 were seizure list in respect ofsearch at 2, Babu Lal Lane. The two shop rooms situated at Harrison Road were in the same premises and premises No. 2, Babulal Lane was a godown at a contiguous place down a few houses from Harrison Road.
5. The appellant was found alone in charge of the shop room at 171A, Harrison Road when the police raided the shop. As a result of the search 110-10 Ibs. tins with the name 'Dalda' imprinted upon them along with contents were recovered; 36-5 Ibs. tins with the caps in tact with similar inscriptions on them were seized: 3-2 Ibs. tins with the name 'Dalda' inscribed upon them with contents intact were also seized. A sign board with inscription 'Surendra Vegetable Stores'' was taken charge of by the police. Certain rent receipts and a municipal licence were also seized. From the fruit shop in the same premises eight filler caps with the name 'Dalda' imprinted upon them were seized along with other labels. From 2, Babu Lal Lane several items of articles were recovered of which only 50 caps with the word 'Dalda' upon them need be mentioned.
6. After search of the Vegetable Stores shop and the fruit shop at premises 171A, Harrison Road, the search of the godown at 2, Babu Lal Lane took place. Before the search commenced, the appellant produced the key of the godown with which the padlock was opened.
7. The appellant had a brother Ramprokash Aurora by name. He died leaving behind him his widow and 2 or 3 sons of whom Surendra was one. The appellant with his nephews and sister-in-law lived at 61, Upper Chitpore Road and the business at 171A, Harrison Road, with the connected godown was run under the name and style of 'Surendra Vegetable Stores'. Presumably the firm's name was suggested by the name of one of the sons of the appellant's deceased brother.
8. Hindusthan Vanaspati Manufacturing Company Limited are the producers of 'Dalda' brand vanaspati among other products. Dalda would be packed in tins of varying sizes> 10 lbs., 5 lbs., 2 lbs., 7 lb. and 1/2 lb. containers. The vegetable product Dalda is manufactured according to the notification issued by the Vegetable Oil Products Controller, Government of India. That notification bore number S. R. O. 780 dated the 21st October, 1950. The word 'Dalda' is a registered trade mark with the device of a palm tree printed on the tins. The word 'Dalda' itself is an invented word which is part of the Trade Mark issued in favour of Hindusthan Vanaspati Manufacturing Co. Limited.
9. Complaint having been received about the sale of spurious stuff attempted to be passed off as genuine Dalda, the company appeared to have put upon an enquiry as a result of which they came to suspect that Surendra Vegetable Stores of 171A, Harrison Road and 2, Babu Lal Lane were manufacturing and selling spurious Dalda. This led to the information lodged with the police on receipt of which search warrants were issued and fee seizures made.
10. According to the prosecution case the containers were genuine Dalda containers exceptfor the fact that in some cases the filler caps were interfered with evidently for the purpose of getting out of the tins genuine Dalda and restuffing them with spurious products. There was also some evidence of tampering of the numbers imprinted by the manufacturers at the factory. Except for these, the containers were the Company's genuine containers, but the stuff inside was spurious. Immediately after the seizure of the tins of Surendra Vegetable Stores at 171A, Harrison Road, samples were taken by the police officers in the presence of witnesses. One sample was taken from 10 lbs. 'Dalda' tin (Ext. II) and another from a 5 Ibs. tin (Ext. IV). In each case the sample was divided into four parts. One part was given to the accused, another to the Trade Mark Investigator of Hindusthan Vanaspati ., the third was sent to the Chemical Examiner Government of West Bengal and the fourth was retained by the police for future reference and it was this sample which was produced in Court. This procedure was followed both with regard to the stuff taken from Exhibits II and IV. The samples were sealed and signed by the search witnesses.
11. In the course of investigation the police visited a shop at 75-A Chittaranjan Avenue, That shop was run by the local agents of Hindusthan Vanaspati . and it used to sell Dalda brand vanaspati in containers of varying sizes on wholesale basis. Two samples were taken from the shop and they were also sent to the Chemical Analyst for purposes or comparison with the samples taken from 171-A, Harrison Road.
12. The Chemical Examiner reported in due course that the samples marked A and B which were taken from 171-A, Harrison Road were different from the samples obtained from the local agents of Hindusthan Vanaspati at 75-A, Chittaranjan Avenue. The report further stated that the sample marked B which was one of the samples containing stuff obtained from 171-A, Harrison Road showed that the moisture content was in excess of the allowable limit prescribed under Government notification No. S. R. O. 780. That notification prohibited the manufacture, stock or sale of any vegetable oil product which did not conform to certain specified provisions one of which was that such oil shall in no case have moisture content exceeding Order 25 per cent.
13. On receipt of the Chemical Examiner's report the police submitted a chalan under Section 7 of the Essential Commodities Act on the 22nd of August 1955. On the same date the investigating police officer complained to the Magistrate that investigation had disclosed the commission of other offences namely, offences under Sections 483/488 and 489 of the Indian Penal Code inasmuch as the appellant had used false Trade Mark and committed kindred offences. A prayer was made for issue of process against the appellant for commission of offences which related to infringement of Trade Mark rights. There was thus a charge sheet under Section 7 of the Essential Commodities Act and a complaint under the Indian Penal Code for infringement of Trade Mark rights. The two cases appear to have been tried together and the appellant was charged under Section 7 of the Essential Commodities Act for havingin his shop at 171-A, Harrison Road about 149 tins of Dalda brand vanaspati in tins of varying sizes, the contents of which did not conform to the specification laid down in Government Notification No. S. R. O. 780 dated 21st of October, 1950 and thus violated the Vegetable Oil Product Control order and committed an offence punishable under the Essential Commodities Act. He was also charged under Section 482 with having at 171-A, Harrison Road and 2, Babu Lal Lane in his possession the containers and 50 caps with the word 'Dalda' inscribed upon them to denote that the goods were the manufacture of Hindusthan Vanaspati . The appellant was further charged under Section 485 with having at 171-A, Harrison Road and 2, Babu Lal Lane in his possession certain caps, collectively marked Exhibit IX, for the purpose of counterfeiting the trade mark of Hindusthan Vanaspati .
14. To the charges framed the appellant pleaded not guilty and his defence seems to be that Surendra Vegetable Stores was an establishment which belonged to his brother and he had no connection whatever with the shop. His case further was that on the evidence adduced, he could not, in any manner, be said to have manufactured or stored the allegedly spurious vegetable products which were said to have been attempted to be passed off as the manufacture of Hindusthan Vanaspati .
15. There were thus three charges preferred against the appellant. Although the evidence in support of them is largely the same, we have nevertheless to consider the evidence appropriate to each in order to be satisfied whether the appellant's convictions have been properly made.
16. The first charge relates to the contravention of an order made under Section 3 of the Essential Commodities Act. Section 3 says that the Central Government may make an order and provide for regulating the production of manufacture of any essential commodity. Section 2 of the Act defines essential commodities and foodstuff is one such commodity. By virtue of the power given by Section 3 the Central Government promulgated an order S. R. O. 780 of the 21st October, 1950, by which the manufacture, stock or sale of any vegetable oil product which did not conform to the specifications of that order was prohibited. It provided that the vegetable oil products shall be prepared by hydrogenation from only such edible harmless vegetable oils or mixtures as were permitted by the Vegetable Oil Products Controller for India. It was also provided that such product shall not have moisture exceeding Order 25 per cent. The allegation against the appellant is that he contravened the provisions of this order by manufacturing, storing or stocking vegetable product which did not conform to the specifications prescribed in Government notification No. S. R. O. 780 dated 21st October, 1950.
17. In order that a charge under Section 7 of the Essential Commodities Act might be brought home, the prosecution adduced evidence to prove the appellant's connection with Surendra Vegetable Stores, (After reviewing the evidence his Lordship continued).
18. From the evidence which we have just reviewed it seems reasonably clear that the accused appellant had connection with Surendra Vegetable Stores. It has been argued on the appellant's behalf that the evidence, such as it is, does not establish satisfactorily the fact that the appellant had anything to do with the business of selling vegetable products. It has been argued that his mere presence at the shop on the particular day when the search was made would not justify a conclusion that he was responsible for manufacturing or storing spurious edible oil. We cannot possibly accept this contention in view of the evidence which we have just reviewed. The Magistrate thought that since the family hailed from the Punjab, it was only likely that the appellant being member of a Mitakshara family would be co-owners of the business in vegetable oil. We do not need to draw that inference since we are satisfied from the evidence which we have referred to above that it is quite sufficient to entitle us to hold that the appellant was one of the persons interested in the business and that he did manufacture or store spurious vegetable oil which did not conform to the Government specification.
19. The evidence relative to the search and seizure had been severely criticised on behalf of the appellant. It is said that the persons who witnessed the search of the two shops at 171A, Harrison Road or at 2, Babu Lal Lane were not local witnesses. The suggestion was that they were under the influence of the police and somehow prevailed upon to give untrue evidence against the appellant. We are not at all impressed with this criticism. It is true that the two search witnesses -- Ajoy Kumar Chakravarty (P. W. 7) and Badal Chandra De (P. W. 9) -- who deposed respectively to the search of the shop at 171A, Harrison Road and the godown at 2, Babulal Lane did not belong to the locality. It is well known that it is not always easy to procure local witnesses. As a matter of fact, there is the definite evidence in the case given by the investigating Police Officer, who was one of the officers conducting the search, that local shop keepers had been approached but they refused to act as search witnesses. This evidence stands uncontradicted and we are not persuaded that the two search witnesses who deposed in the case gave false evidence. Indeed the number of tins seized at 171A, Harrison Road would preclude the possibility of those tins being foisted upon the appellant. The evidence of the police officers is that when they approached the shop at 171A, Harrison Road the appellant, readily complied with their requisition to bring down, on the pavement in front of the shop, the receptacles which were intended to be seized. There was no protest made by the appellant and it was not even remotely suggested that he objected to the search taking place on the ground that he had nothing to do with the shops and the godown that were proposed to be searched.
20. The next criticism was that the evidence relative to the taking of samples was entirely unsatisfactory and that being so the result of analysis of such samples could not be depended upon for the purpose of holding that the samples were spurious. (His Lordship after stating the evidence relating to the taking of samples, proceeded:) This line of evidence is clearly incongruous with what the witness stated earlier in his evidence and was contradicted by the evidence of the police officers whose evidence we have no reason to doubt or disbelieve that the sampling was properly done in presence of all concerned.
21. It was then said that it would be somewhat risky to rely upon the report of the Government Chemical Examiner in view of the fact that considerable delay occurred in sending the samples, and in obtaining the result of examination of the samples sent. It is to be recalled that the samples were collected on the 10th of May. They were sent to the Chemical Examiner on the 27th of May and the report of the Chemical Examiner was received on the 5th of August, 1955. We do not think there has occurred any very undue delay in either sending the samples for chemical examination or in submitting the report. (After narrating the circumstances in which the samples were sent, his Lordship proceeded.) Thus there can be no doubt that the stuff seized from 171A, Harrison Road was not in conformity with the specification and the appellant having manufactured or stored the stuff, contravened an order made under Section 3 of the Essential Commodities Act.
22. It was attempted to be argued that in any event it was nearly impossible to fix the liability on the appellant for contravention of the Vegetable Oil Products Control Order inasmuch as the evidence even if delivered would not clearly establish that the appellant was responsible for such contravention. Section 10 of the Essential Commodities Act makes the position clear. That Section deals with the offence of contravening an order made under Section 3 of the Act where such offence is committed by a Company. 'Company' is defined in that section as meaning any association of individuals. Sub-section (2) of Section 10 further provides that if an offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any officer of the Company, the person charged shall be liable to be punished. For the purpose of the section the word 'Company', as we have indicated, would include even an association of individuals. Assuming for one moment that the members of the Aurora family were all interested in the business of running the shop, the appellant cannot possibly escape liability in view of the specific provision contained in Section 10. This will be the position on the assumption that the members of the Aurora family were all interested in the business of running the shop. Perhaps we need not make that assumption since the evidence such as it is, makes the position perfectly plain that it was the appellant who in fact was running the shop and therefore there can be no question of his being able to evade the liability which attaches to contravention of an order made under Section 3 of the Essential Commodities Act. We believe the evidence which we have recited above that the accused appellant was seen all alone in the shop not only on the day of the search but he was known by other competent witnesses to have been running the business.
23. It was said that the evidence is extremely meagre to suggest that the receptacres containing vegetable oil were kept for sale. We do not think it was necessary for the prosecution to adduce evidence of purchasers who had made their purchases from the shop. The circumstances clearly proved that the receptacles containing vegetable products were stored for same. Indeed the evidence of one of the police officers was that he found the Dalda tins exposed for sale.
24. Another argument was put forward that it was suggested that the appellant was a dealer in Dalda, then there would surely be caps and empty tins found in his shop. Reliance was placed on a statement made by P. W. 10, H. C. Ganguli, that Surendra Vegetable Stores of 171A, Harrison Road was one of their customers. It must be borne in mind that the evidence is not that a large number of empty receptacles were found. A reference to the seizure list taken along with the evidence of witnesses would clearly suggest that the tins seized were full tins and not empty ones.
25. The Analyst's report was attempted to be challenged from another point of view. It was said that in view of the evidence of K. L. Mukherjee (P. W. 1) that he could not say when the sample bottles were cleansed it would be risky to rely on the result of analysis. (On evidence his Lordship rejected the argument.)
26. There was a further criticism that in any event the Chemical Examiner aught to have been called to give evidence in the case in order to clarify the nature and extent of the adulteration of the samples in question. Section 510 of the Code of Criminal Procedure provides that a document purporting to be a report of the Chemical Examiner proves itself; but the Court may, if it thinks fit examine the expert. Obviously in this case the Court did not feel that it was necessary to examine the Chemical Examiner. Sub-section (2) of the section provides that the Court shall, on the application of the prosecution or the accused, summon and examine the Chemical Examiner whose report has been produced in the case. There was no question of compelling the prosecution to examine the Chemical Examiner when it had no doubt as to the result of the analysis. If the defence thought that the report ought to be tested, then surely nothing was easier for the defence than to apply to the Magistrate for summoning the Chemical Examiner. Indeed, the Court was bound to summon the Chemical Examiner if only a request was made. The language employed in Sub-section (2) is imperative. It leaves to the Court no option and as soon as a request is made to that effect the Court is bound to summon. It seems to us to be a thoroughly belated objection that the Chemical Examiner's report is inconclusive.
27. On behalf of the appellant it was somewhat faintly argued that the question of mens rea arose for consideration in this case and the learned Magistrate completely failed to take into account the facts and circumstances for the purpose of arriving at a correct conclusion as to whether the accused had the requisite guilty mind. It is true that unless a statute expressly or by necessary implication rules out mens rea as a constituent part of a crime, a person should not be found guilty of the crimeunless he is proved to have a guilty mind. But there may arise a case when the object of the Act and the language employed in it might reasonably entitle the Court to think that proof of guilty mine is not essential to proof of crime. The question was considered by the Supreme Court in the case of Hariprosad Rao v. The State, : 1951CriLJ768 where it was held that the legislature may prohibit an Act or enforce a duty in such words as to make the prohibition or duty absolute. To ascertain whether a statute has that effect, regard must be had to the object of the statute and to the words used. A reference to the Essential Commodities Act would clearly show that if a person contravenes an order made under Section 3 of the Act, he exposes himself to the risk of punishment prescribed by the Act. There are no qualifications attached to the section. Quite obviously the object of the Essential Commodities Act was to provide, in the interest of the general public, for the control of production, supply and distribution of and trade and commerce in, certain essential commodities. It is quite conceivable that in such circumstance the legislature meant to provide by necessary implication that the prohibitions introduced by orders passed under the Act were of an absolute nature. The orders passed under the Act would be orders to ensure supply and production of essential commodities in the interest of the general public. That being so, we cannot agree with the contention that in case of violation of an order promulgated under the Act there must be positive proof of the existence of a guilty mind. The language employed in the statute and the object of the Act appear to indicate that an absolute prohibition was intended to be conveyed by the relevant order passed in pursuance of Section 3 of the Act.
28. A complaint was made that the examination of the accused under Section 342 of the Code of Criminal Procedure was anything but satisfactory. The record of that examination does not indicate what were the questions asked and what were the answers obtained. It is true that the examination that was had in this case was somewhat cryptic; It might even be called, in one sense, inadequate. It was recorded by the Magistrate that the appellant merely stated that Surendra Vegetable Stores belonged to his brother and he had no connection whatever with the shop. It must be recalled that this examination was made by a Presidency Magistrate. Section 362(2-A) provides that in every case tried by a Presidency Magistrate in which an appeal lies, such Magistrate shall make a memorandum of the substance of the examination of the accused. Such memorandum shall be signed by the Magistrate with his own hand and shall form, part of the record. Section 362(2-A) is a specific provision which, in our view, overrules the general provision contained in Section 364(1) of the Code. The question then arises whether the record of examination could be held so inadequate as to entitle us to think that the appellant had been prejudiced. In the case of Moseb Kaka Chowdhury v. State of West Bengal, : 1956CriLJ940 the Supreme Court ruled that a trial was not to be set aside merely because the examination of the accused was inadequate. There must be proof of prejudice to the accused and unless miscarriage of justice was shown to have occurred, particularly in a case where the accused was represented by counsel, and inadequate examination under Section 342 cannot be made a ground for setting aside the conviction. Indeed this decision reiterates an earlier decision of that Court in the case of Bimadhai Prodhan v. State of Orissa, : 1956CriLJ831 . We have accordingly to consider whether from the circumstances proved it could reasonably be said that there has occurred any prejudice in the present case. Although there were three charges, the facts produced in proof of all these, were not very complicated. In plain words, there could have been no difficulty for the accused to appreciate the principal facia alleged against him that he had substituted spurious stuff for Dalda stuff and by so doing he had contravened the provision of the law; neither could he have any difficulty in understanding that he had used false trade mark and used other peoples' receptacles and attempted to pass off stuff on unwary members of the public as being their manufacture which in fact it was not. The appellant was represented by his lawyer in the court below and we do not think it could be reasonably said that he was at all prejudiced by the kind of examination made by the Magistrate under Section 342 of the Code of Criminal Procedure, We are not prepared to say that this examination, though not very full, did cause any real prejudice or cause a failure of justice.
29. We have now to consider the two charges under sections 482 and 485 of the Indian Penal Code. Before we refer to the relevant evidence it would be useful to consider the genesis of these two charges along with the criticisms made on behalf of the appellant that they constituted a sort of a second string to the bow to rope in the appellant. It was said that the party aggrieved were the Hindusthan Vanaspati Mfg. Co. Ltd. whose Trade Mark rights were said to have been infringed. They themselves did not complain to the court but left it to be made by the police officer concerned. It is true that no complaint was preferred on behalf of Hindusthan Vanaspati' Mfg. Co., Ltd. before the Magistrate. What happened was that during the pendency of investigation into the charge of offence under Section 7 of the Essential Commodities Act, the Trade Mark Inspector acting on behalf of his employers, Hindusthan Vanaspati . addressed a note to the investigating police officer requesting action to be taken for infringement of Trade Mark Rights. We need not refer to the petition addressed to the Police Officer but the fact remain that request was made for action to be taken in the matter. On the day the charge sheet was submitted, a complaint was addressed by the investigating Police Officer to the Chief Presidency Magistrate setting out the relevant facts and praying for issue of process against the appellant and another for trial of charges under Section 482 and allied sections. Thus the Magistrate who came to deal with the case under Section 7 of the Essential Commodities Act had before him also certain allegations which made out a case of infringement of the trade mark rights. The Magistrate's order sheet seems to suggest that at one stage the two cases were treated or going to be treated as separate cases, buteventually they were treated as one case. The record shows that after having heard the evidence of quite a number of witnesses, the Magistrate decided to frame charges not only under Section 7 of the Essential Commodities Act, but also under Sections 482 and 485 of the Indian Penal Code. We find nothing irregular or improper in the procedure adopted. The proceedings under the Essential Commodities Act were obviously initiated upon the report of a public servant. If during the pendency of that proceeding the Magistrate came to hear evidence which made out that the accused before him had also committed other offences, it was quite open to the Magistrate to frame charges in respect of those other offences. Incidentally it may be mentioned that there is no bar to the taking of cognizance of offences under Sections 482 and 485 in the sense that there is no provision in the Code of Criminal Procedure which obliges the person whose trade mark rights have been infringed to be the complainant in the case. The sections which appear under the subheading 'Conditions requisite for initiation of proceedings' commencing with Section 190 are to be found in Chapter XV, the Code of Criminal Procedure. It is nowhere said that in order that a complaint for infringement of trade mark rights might be entertained, it is necessary that the party aggrieved must himself make the complaint. That being the position, we think there was nothing irregular or improper in the Magistrate framing charges under Sections 482 and 485 against the appellant when it appeared to him in the course of the proceedings under Section 7 of the Essential Commodities Act that the appellant had infringed the trade mark rights of Hindusthan Vanaspati .
30. Section 478 of the Indian Penal Code says that the expression 'trade mark' includes a trade mark registered under the Trade Marks Act, 1940. Section 480 describes what amounts to using a false trade mark. Leaving out such parts of the section as are unnecessary to our immediate purpose the section would read thus: 'Whoever uses any receptacle with any mark thereon, in a manner reasonably calculated to cause it to be believed that any goods contained in any such receptacle so marked, have a connection in the course of trade with a person with whom they have not any such connection, is said to use a false trade mark'. The case here clearly is that the receptacles which were found on search of the two shops at 171-A, Harrison Road and 2, Babu Lal Lane were genuine receptacles. The allegation is that the stuff manufactured by Hindusthan Vanaspati Mfg. Co. Ltd. was abstracted from the tins and spurious stuff was put in its place. The marks were maintained on the receptacles, only the stuff inside was changed. The receptacles thus filled in were stored for sale in the shop. That, according to the prosecution, constituted user under Section 482. Similarly about 50 caps which were recovered from 2, Babu Lal Lane which had been imprinted with the registered trade mark of Hindusthan Vanaspati . were found in the possession of the appellant. If, therefore, the finds of the receptacles, the caps etc. are believed and if the samples taken from some of the I receptacles in the shop are proved not to be genuine Dalda, then of course the elements of the chargesof offences under Sections 482 and 485 are, in our view, established.
31. According to the prosecution the Hindusthan Vanaspati Mfg. Co., Ltd. have their trade mark registered. Their case is that there was infringement of their registered trade mark. As we have seen, section 478 says that for the purposes of the Code the expression 'trade mark' includes a trade mark registered under the Trade Marks Act, 1940. 'Mark' is defined in Section 2(f) of the Trade Marks Act, 1940. It includes a device, brand, heading, lable ticket, name, signature word, letter or numeral or any combination thereof. Clause (1) defines 'trade mark' as a mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some person having the right either as proprietor or as registered user to use the mark whether with or without any indication of the identity of the person. Section 6 is important and it says that a trade mark shall not be registered unless it contains at best one of the essential particulars mentioned in the section, One such particular mentioned in the section is the use of one or more invented words. Section 11 provides for registration of parts of trade marks and of trade mark as a series. It says where the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and the part as separate trade marks. Section 12 speaks of associated trade marks and Sub-section (2) of Section 44 says that the use of the whole of a registered trade mark shall for the purposes of this Act be deemed to be also use of any trade mark being a part thereof and registered in accordance with Sub-section (1) of Section 11 in the name of the same proprietor.
32. It is thus clear that there may be a single mark or a series of marks registered. In the instant case the prosecution proved by producing the certified copies of the register of trade marks showing that the word 'Dalda' is a mark which has been registered in favour of Hindusthan Vanaspati Mfg. Co. Ltd. The Company also proved their right to the exclusive use of a certain device with a palm tree and the word 'Dalda' written upon it, along with the word 'Vanaspati' in English and other things. So by proof of these documents, exhibit 22 series, it has been established that Hindusthan Vanaspati Mfg. Ltd. have their trade mark rights declared not only with respect to the design containing the palm tree and the word 'Dalda' written on it, they have also got an exclusive right to the use of the invented word 'Dalda'.
33. The containers and the caps produced in the case would clearly indicate that they were being used by the appellant and such use, in the circumstances proved, constituted clear infringement of trade mark rights and amounted to user of false trade mark. Section 482 casts a qualified onus upon the accused. It says that when the use of a false trade mark is proved, the user shall be liable to be punished unless it is proved that he had acted without intent to defraud. In this case we do not need to depend upon this onus cast upon the accused. There is, in our view, abundant evidence produced by the prosecution which establisies aliunde that the appellant used the 'Dalda'mark in receptacles which contained spurious liquid. The finds of the caps (Ext. IX collectively) from the godown at 2, Babu Lal Lane clearly show that they were being possessed by the appellant for the purpose of denoting that certain goods were the manufacture and merchandise of Hindusthan Vanaspati Mfg. Co, Ltd. which in fact they were not. The prosecution case is that these caps were intended to be used or actually used on receptacles which contained spurious edible oil.
34. There having been some evidence to indicate that marks of tampering on some of the caps as well as at the bottom of some of the tins were discovered, it was argued on behalf of the appellant that such tampering would necessarily have the effect of making the receptacles dissimilar from the genuine ones; that would therefore not be counterfeiting, but displaying divergences, between genuine receptacles from spurious ones. The basis of this argument was furnished by the evidence of Sand Ranjan Roy Chowdhury (P W. 12) who stated that he noticed at least on one receptacle, exhibit XII, signs of tampering and double printing of code marks. According to him it was a faked code mark which did not tally with the register of code marks maintained by the Company. With reference to exhibit XII the Production Superintendent (P. W. 15) and Inspector of Central Excise (P. W. 16) both of whom are employees of Hindusthan Vanaspati Mfg. Co. Ltd, proved between them that code HO-23 marked 1955 had not been given by the Company onexhibit XII. It was a 10 lbs. tin which had not been manufactured in March, 1955 on which date according to the code mark found on it, it was said to have been manufactured. All this evidence merely Showed that in some cases certain fictitious numbers were imprinted at the bottom of the receptacles to mislead unsuspecting members of the public. The mark actually found on exhibit XII was, therefore, a fictitious one; but that cannot possibly mean that the imprinting of a fictitious mark did not amount to counterfeiting. It is fey no means necessary that there should be absolute identity; The proper test is whether the general get up is likely to deceive the unwary purchaser. We, cannot, therefore, accept this contention simply because there was tampering with some of the caps or tampering with the code mark found at the bottom of one of the receptacles would have the effect of destroying the prosecution case that the receptacles were used to deceive purchasers into the belief that they contained genuine Dalda which in fact they did not so contain.
35. It has been argued that a shop keeper is not an expert. He is not an adept in deciding nice questions of trade mark rights. We do not think any question of niceties arises; the thing was so gross that anyone could understand what it meant. If the prosecution allegations are true and we have no reason to disbelieve them, then it must be held that Dalda containers with the device of a palm tree and the word Dalda written upon them, were being used for deceiving unwary members of the public into the belief that the contents were the contents of Hindusthan Vanaspati , which in fact they were not. As we have indicated there was the device of a palm treewith the word Dalda upon it; the Company had not only a right to the device, but had exclusive right to the use of the invented word 'Dalda'. In such circumstances we cannot but hold that there was intention, to deceive customers into the belief that the spurious stuff contained in the tins were genuine stuff manufactured by Hindusthan Vanaspati .
36. It is not necessary to prove actual sale for the purpose of bringing the charge under Section 482 or 485 of the Indian Penal Code home to the appellant. It would be enough if circumstances, are proved to establish that the tins were actually stored for sale. The evidence which we have discussed clearly shows intention on the part of the appellant to deceive unwary members of the public. There can be no question of the appellant having acted honestly in the mutter. It may be observed that the elements of the offences charged, do not require proof of any person having actually deceived. It is enough if the circumstances proved are sufficient to establish that prospective buyers were likely to be deceived.
37. The charges under Sections 482 and 485 were criticised on behalf of the appellants on the ground that they were somewhat misleading. The criticism mainly is that the word 'uses' employed' in Section 482 was not to be found within the four-corners of the charge under Section 482 as framed. We do not think this criticism has any substance. We have to look to the substance of things and not to mere technicalities. It is well known that even if a charge is wrongly framed, the conviction is not liable to be quashed unless and until pre-judice has accrued to the appellant. As was held by the Supreme Court in the well known case Willie (William) Slaney v. State of M. P., : 1956CriLJ291 that a charge in a criminal trial is not to be regarded as a ritualistic formula. In order to be able to decide whether a charge was bad, we have to take into account the evidence and the circumstances of the case; and unless we are satisfied that the accused was in fact prejudiced there can be no question of the trial being held had on the ground of the defect in the charge. The evidence clearly was that the appellant used containers with the trade mark of Hindusthan Vanaspati . on them which he displayed in his shop; the evidence clearly was that some of the receptacles contained spurious edible oil which was just attempted to be passed off as genuine Dalda products. In such circumstances there can be no question of prejudice accruing to the appellant.
38. We are satisfied that the finds of the search of the two rooms at 171A, Harrison Road and at 2, Babulal Lane clearly show that the appellant was in possession of a large number of receptacles, caps etc. containing the special trade mark imprint of Hindusthan Vanaspati . Some of the receptacles were found to contain spurious vegetable products which were intended to be passed off as genuine Dalda products.
39. There is good and acceptable evidence in proof of the elements of the two offences under Sections 482 and 485 of the Code. There is clear evidence that the appellant used receptacles bear-ing some marks in manner reasonably calculated to cause it to be believed that they were the manufacture or merchandise of Hindusthan Vanaspati . There is evidence that the contents of some of them were not the merchandise of Hindusthan Vanaspati . who had distinctive mark registered under the Trade Marks Act as . The word 'Dalda' and the imprint of a palm tree were found on each of the caps; the evidence suggests that the appellant possessed the trade mark for the obvious purpose of denoting that the goods bearing such marks were the merchandise of Hindusthan Vanaspati . which in fact they were not.
40. We have considered with care the appellant's defence that he had nothing to do with the business and consequently he was innocent of the charges. We are wholly unable to accept his denial. We must hold that the offences under Section 7 read with Section 10 of the Essential Commodities Act and under Sections 482 and 485 of the Indian Penal Code have been brought home to the appellant.
41. We think, therefore, that the convictions have been properly had. We wish to observe that the trying Magistrate convicted the appellant under Sections 482/485. There were two charges under the Penal Code; one under Section 482 and the other under Section 485. He should have recorded separately the conviction in respect of each. He passed a lump sentence of fine of Rs. 1000/- for what ho described as the charge of offence under Sections 482/485. This was indeed unsatisfactory to a degree. We proceed on the footing that be wanted to pass a sentence under Section 482 and refrained from passing a separate sentence under Section 485. We accordingly affirm the convictions of the petitioner under Sections 482 and 485 and maintain the sentence of fine of Rs. 1000/- in default, rigorous imprisonment for six months under that section. We pass no separate sentence under Section 485 of the Indian Penal Code.
42. The appeal is accordingly dismissed. The order of the Magistrate directing destruction of Exhibits IV, VII (collectively) and IX (collectively) is maintained.
43. We have considered the facts and circumstances of the case and we do not think we should, at this distance of time enhance the sentence passed on the appellant. It is true that the offences he committed were grave offences; but taking into account all the facts and circumstances We are not prepared to say that the sentence is so inadequate as to require our interference.
44. The Rule is discharged.
D.N. Das Gupta, J.
45. I agree.