Punjab & Haryana HC: Trade Mark Search & Seizure Cannot Be Conducted by Officer Below DSP Rank

Aadrikaa Legal Services (ALS)- Law I Litigation I Arbitration

Date: 19.09.2026

Punjab & Haryana HC: Trade Mark Search & Seizure Cannot Be Conducted by Officer Below DSP Rank

The Punjab and Haryana High Court has quashed a criminal prosecution under Sections 103 and 104 of the Trade Marks Act, 1999, holding that the mandatory safeguards prescribed under Section 115(4) were violated because the search and seizure was conducted by an officer below the rank of Deputy Superintendent of Police and without obtaining the prior opinion of the Registrar of Trade Marks.

In Ashok Kumar v. State of Punjab & Anr., CRM-M-12823-2021 (O&M), Justice Jasjit Singh Bedi held that the statutory procedure had been breached on two counts and that there was consequently a “clear statutory embargo” on the initiation and continuation of the criminal proceedings.

The judgment was delivered on 10 January 2023.

Allegations of Selling Duplicate “North Face” and “Jansport” Bags

• The proceedings originated from a complaint submitted by Vishal Joshi, described as an Enforcement Officer of United Overseas Trade Mark Company.
• The complainant alleged that Ashok Kumar, proprietor of Amar Bag House, was manufacturing, selling and supplying duplicate bags bearing the marks “North Face” and “Jansport.”
• On the basis of the complaint, FIR No. 10 dated 1 February 2019 was registered at Police Station Mahilpur, District Hoshiarpur, initially under Sections 63 and 65 of the Copyright Act, 1957.

136 Allegedly Fake Bags Recovered During Raid

• During the investigation, the police raided the petitioner’s shop.
• According to the judgment, the search resulted in recovery of 60 black bags carrying the “North Face” mark and 76 bags carrying the “Jansport” mark, totalling 136 bags.
• A wooden board carrying a “Jansport” company sticker was also recovered. The recovered bags were alleged to be fake and were taken into police possession.
• However, the legality of the manner in which this search and seizure was carried out ultimately became decisive before the High Court.

Copyright Charges Deleted; Trade Marks Act Invoked

• After investigation, the police initially prepared the final report under Sections 63 and 65 of the Copyright Act.
• The matter was thereafter sent to the District Attorney, Hoshiarpur, who opined that offences under Sections 103 and 104 of the Trade Marks Act, 1999 were made out. Consequently, the Copyright Act offences were deleted and the report under Section 173(2) CrPC was presented under Sections 103 and 104 of the Trade Marks Act.
• Charges were subsequently framed against Ashok Kumar under those provisions on 1 February 2021.
• The petitioner then approached the High Court under Section 482 CrPC, seeking quashing of the FIR, the order framing charges and all consequential proceedings.

Petitioner Challenges Search and Seizure Under Section 115(4)

• Ashok Kumar’s principal argument was that the investigation had failed to comply with the mandatory requirements of Section 115(4) of the Trade Marks Act.
• He raised two specific objections.
• First, the search and seizure had been conducted by officers of the rank of Sub-Inspector/Assistant Sub-Inspector, whereas Section 115(4) authorises warrantless search and seizure by a police officer not below the rank of Deputy Superintendent of Police or equivalent.
• Second, the police had not obtained the opinion of the Registrar of Trade Marks before conducting the search and seizure, as required by the proviso to Section 115(4).
• The petitioner therefore argued that the entire search and seizure stood vitiated and the resulting criminal prosecution could not legally continue.

What Section 115(4) of the Trade Marks Act Requires

• The High Court reproduced Section 115 of the Trade Marks Act and closely examined its statutory safeguards.
• Under Section 115(3), offences under Sections 103, 104 and 105 are cognizable.
• However, Section 115(4) provides that a police officer not below the rank of Deputy Superintendent of Police or equivalent may conduct a warrantless search and seizure where satisfied that an offence referred to in Section 115(3) has been, is being, or is likely to be committed.
• Crucially, the proviso further states that before conducting any search and seizure, the police officer shall obtain the opinion of the Registrar on the facts involved in the offence relating to the trade mark and shall abide by that opinion.
• Thus, the Court treated the statutory scheme as imposing substantive procedural safeguards upon police action in such trademark prosecutions.

Search by Sub-Inspector Violated Section 115(4)

• The High Court found from the recovery memo and the final report under Section 173(2) CrPC that the search and seizure had in fact been conducted by an officer of the rank of Sub-Inspector.
• Justice Bedi held that this directly violated Section 115(4), because the raid and consequential search and seizure were required to be undertaken by an officer not below the rank of Deputy Superintendent of Police or equivalent.
• The Court consequently held that the proceedings emanating from the FIR were liable to be quashed on this ground.

Prior Opinion of Registrar of Trade Marks Was Also Mandatory

• There was a second and independent statutory violation.
• The Court found that no opinion of the Registrar of Trade Marks had been obtained before the search and seizure.
• The Sub-Inspector who conducted the search was therefore not only below the statutorily prescribed rank but had also proceeded without complying with the proviso to Section 115(4).
• The High Court held that the proceedings were liable to be quashed on this ground as well.

State Argues Objections Should Be Decided During Trial

• The State opposed the quashing petition.
• It argued that after registration of the FIR, the police had completed investigation and presented the report under Section 173(2) CrPC. Charges had also been framed.
• According to the State, the grounds raised by the petitioner could therefore be adjudicated during the trial rather than being used to quash the prosecution at the threshold.
• However, the State also conceded that its reply contained no specific denial of the petitioner’s contentions concerning the alleged statutory violations.
• The High Court ultimately rejected the argument that the petitioner should be relegated to trial because the defect concerned violation of the statutory conditions governing the very search and seizure underlying the prosecution.

Mandatory Procedure Under Trade Marks Act Cannot Be Ignored

• The High Court relied on its earlier decisions in Anil Kumar v. State of Punjab & Anr. and Satpal & Anr. v. State of Punjab & Ors..
• In Anil Kumar, the Court had held that Section 115(4) does not permit an officer below the rank of DSP to conduct the relevant search and seizure. It had further held that obtaining the Registrar’s opinion before such action was mandatory, observing that use of the word “shall” indicated the mandatory nature of the requirement.
• Similarly, in Satpal, the Court held that where the search was conducted by a Sub-Inspector without obtaining the Registrar’s opinion, the proceedings stood vitiated. It emphasised that where a statute creating an offence also prescribes a procedure, authorities cannot simply ignore that procedure.

Other High Court Precedents Support Mandatory Compliance

• The judgment also referred to the Madhya Pradesh High Court decision in Kasim Ali v. State of Madhya Pradesh & Anr., where prosecution under the Trade Marks Act was found unsustainable because the mandatory Section 115 procedure had not been followed.
• That decision similarly recognised that a search under Section 115(4) must be conducted by the prescribed rank of police officer and only after obtaining the Registrar’s opinion.
• The Punjab and Haryana High Court also considered Pitambra Industries v. State of Madhya Pradesh & Ors., in which the Madhya Pradesh High Court treated obtaining the Registrar’s opinion before search and seizure as a sine qua non and held that compliance with Section 115(4) was mandatory.
• The Court further referred to the Bombay High Court’s ruling in Shrenik Shantilal Dhadiwal v. State of Maharashtra & Ors., where investigation by an Assistant Police Inspector without the Registrar’s opinion was found contrary to Section 115(4).

Bhajan Lal Principles Applied

• The petitioner also relied upon the Supreme Court’s landmark judgment in State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Supp (1) SCC 335.
• Among the recognised categories for exercising jurisdiction under Section 482 CrPC is a situation where there exists an express legal bar under the Code or the concerned statute to the institution or continuation of criminal proceedings.
• Applying this principle, the High Court found that Section 115(4) had been violated in two material respects:
• the search and seizure was undertaken by an officer below the rank of DSP, and the proceedings were initiated without obtaining the opinion of the Registrar of Trade Marks.
• The Court therefore concluded that there was a clear statutory embargo on the initiation and continuation of the proceedings.

FIR, Charges and Entire Criminal Proceedings Quashed

Having found both statutory violations established, the Punjab and Haryana High Court allowed Ashok Kumar’s petition.

It quashed:

• FIR No. 10 dated 1 February 2019 under Sections 103 and 104 of the Trade Marks Act at Police Station Mahilpur, District Hoshiarpur;
• the order dated 1 February 2021 framing charges against the petitioner; and
• all subsequent proceedings arising from the FIR.

Thus, Ashok Kumar succeeded before the High Court, and the prosecution arising from the allegedly counterfeit “North Face” and “Jansport” bags was brought to an end because the mandatory statutory procedure governing search and seizure had not been followed.

Key Takeaway

The judgment underscores that the procedural safeguards contained in Section 115(4) of the Trade Marks Act cannot be bypassed in criminal enforcement actions involving offences under Sections 103, 104 and 105.

Where a warrantless search and seizure is undertaken under Section 115(4), the judgment treats two requirements as critical: the officer conducting the statutory search must be not below the rank of Deputy Superintendent of Police or equivalent, and the prescribed opinion of the Registrar of Trade Marks must be obtained before the search and seizure. In Ashok Kumar, failure to satisfy both requirements was sufficient for the High Court to hold that continuation of the prosecution was legally impermissible and to quash the FIR, charge-framing order and all consequential proceedings.

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Source: Punjab & Haryana High Court

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Ravi Shekhar Jha – Advocate, Bar Council of Delhi