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  • Gujarat HC Quashes Copyright FIR Over Alleged Counterfeit Apple Accessories; Says Trademark Dispute Cannot Be Camouflaged as Copyright Offence to Bypass Statutory Safeguards

    Gujarat HC Quashes Copyright FIR Over Alleged Counterfeit Apple Accessories; Says Trademark Dispute Cannot Be Camouflaged as Copyright Offence to Bypass Statutory Safeguards

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

    Date: 18.09.2026

    Gujarat HC Quashes Copyright FIR Over Alleged Counterfeit Apple Accessories; Says Trademark Dispute Cannot Be Camouflaged as Copyright Offence to Bypass Statutory Safeguards

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    In an important ruling concerning the overlap between copyright and trademark enforcement in counterfeit-goods cases, the Gujarat High Court has quashed an FIR registered against a shopkeeper following the seizure of alleged counterfeit Apple-branded electronic accessories worth approximately β‚Ή15.11 lakh.

    Justice P. M. Raval held that commercial hardware such as AirPods, cables, power adapters and smartwatches does not, merely by being counterfeit or bearing a registered brand, constitute a literary or artistic work for the purpose of attracting criminal liability under Section 63 of the Copyright Act.

    The Court further held that the authorities could not subsequently sustain the case under the Trade Marks Act because the raid itself had been conducted without complying with the mandatory safeguards under Section 115(4)β€”including obtaining the prior opinion of the Registrar of Trade Marks and having the search and seizure conducted by an officer of the statutorily prescribed rank.

    FIR Registered Under Copyright Act Following Raid on Ahmedabad Shop

    • The petitioner, Jitendrabhai Mohanbhai Kriplani, approached the High Court under Section 482 CrPC seeking quashing of FIR C.R. No. 11191026220492 of 2022, registered on October 19, 2022 at Kalupur Police Station, Ahmedabad City.
    • The FIR invoked Sections 51, 63 and 64 of the Copyright Act, 1957.
    • The complainant was a manager of Griffin Intellectual Property Service Pvt. Ltd., which, according to the FIR, had been authorised by Apple Inc. to take legal action against persons allegedly infringing Apple’s rights or selling counterfeit iPhones, iPads, MacBooks, mobile phones and accessories.
    • Acting on information concerning alleged counterfeit Apple products being sold in shops in the Kalupur area, the complainant approached the police. A raid was subsequently conducted at β€œRaj Cover House”, where the petitioner was present.

    β‚Ή15.11 Lakh Worth of Alleged Counterfeit Apple Products Seized

    • According to the FIR, the authorities recovered several categories of allegedly counterfeit Apple-branded products, including AirPods, USB cables, power adapters, a smartwatch and different kinds of Apple-branded stickers and barcode/MRP labels.
    • The FIR placed the aggregate value of the seized items at β‚Ή15,11,193.
    • The key question before the High Court was whether allegations concerning the possession or sale of such duplicate commercial products could legally sustain criminal proceedings for copyright infringement.

    Petitioner: Counterfeit Hardware Is Not a Copyrightable β€œWork”

    • The petitioner argued that the seized goods did not fall within the categories of works protected under Section 13 of the Copyright Act.
    • His case was that AirPods, cables, adapters, smartwatches and similar electronic products were commercial articles rather than literary, dramatic, musical or artistic works.
    • Accordingly, the ingredients necessary for invoking Sections 63 and 64 of the Copyright Act were absent.
    • The petitioner further argued that if the allegation was actually one of misuse of Apple’s trademark on counterfeit goods, the case would fall under the Trade Marks Act, 1999, rather than being converted into a copyright prosecution.

    Gujarat HC: Commercial Hardware Is Not Literary or Artistic Work

    • The High Court accepted the central distinction advanced by the petitioner.
    • It held that copyright protection under Section 13 read with Section 2(c) is confined to protected categories of works, whereas hardware components, cables, power adapters and electronic devices are commercial industrial products.
    • The Court observed that misuse of a brand name or manufacture of duplicate hardware bearing a trademark would ordinarily constitute trademark falsification punishable under Sections 103 and 104 of the Trade Marks Act, rather than an offence under the Copyright Act.
    • It consequently held that mere possession or sale of counterfeit commercial goods or accessories bearing brand labels does not, by itself, satisfy the requirements of Sections 13 and 63 of the Copyright Act.

    FIR Failed to Identify Any Specific Copyrighted Literary or Artistic Work

    • The Court then examined whether the stickers, seals, packaging labels and other material allegedly recovered could independently support the copyright prosecution.
    • It noted that the FIR merely described the seized articles as goods infringing Apple’s copyright and bearing Apple’s trademark.
    • Crucially, however, the FIR did not identify any specific copyrighted literary workβ€”such as an instruction sheet or user manualβ€”or any specific artistic work such as an original graphical layout or packaging design whose copyright had allegedly been infringed.
    • The Court stressed that copyright is a statutory right, and an FIR invoking Section 63 must set out how the material allegedly infringed satisfies the statutory definition of a protected work under Sections 2 and 13.

    No User Manuals or Instruction Manuals Were Actually Seized

    • The complainant argued that product literature, packaging, labels and instruction manuals constituted original literary or artistic works belonging to Apple.
    • The High Court, however, examined the investigation papers and found that no instruction manual or user leaflet had actually been recovered or seized from the petitioner’s shop.
    • The Court said a new factual foundation could not be introduced during oral arguments when it was absent from the police recovery memo.
    • The recovery panchnama was also silent regarding any user or instruction manual. Photographs produced later through an affidavit-in-reply, which were not part of the investigation papers, could not be relied upon to cure that deficiency.

    MRP Tags and Barcodes Are Functional Data, Not Automatically Literary Works

    • The Court also addressed the argument that stickers, MRP labels and barcodes constituted literary works.
    • It held that an inclusive definition of β€œliterary work” cannot be stretched so far as to convert every commercial label or container into a literary work.
    • An MRP price tag, standard barcode or technical model sticker contains essentially functional and factual information, the Court observed, and cannot automatically be treated as an original literary work of authorship.
    • This distinction was central to the Court’s conclusion that the alleged counterfeit hardware and functional labels could not sustain the criminal copyright case as framed in the FIR.

    β€œCannot Camouflage a Trademark Dispute as a Copyright Offence”

    • One of the most significant observations in the judgment concerns attempts to invoke copyright law where the substance of the allegation is trademark counterfeiting.
    • The Court found that the primary allegation was the sale of counterfeit Apple hardware and accessories, a subject that fell within Sections 103 and 104 of the Trade Marks Act.
    • It held that the complainant could not camouflage a trademark dispute as a copyright offence in a manner that bypassed the procedural safeguards prescribed for trademark searches and seizures under Section 115 of the Trade Marks Act.

    Could the Case Continue Under the Trade Marks Act?

    • Having found Section 63 of the Copyright Act unsustainable, the High Court considered the respondents’ alternative submission.
    • The complainant and State argued that even if the Copyright Act provisions were incorrectly invoked, the allegations nevertheless disclosed offences under Sections 103 and 104 of the Trade Marks Act, 1999.
    • In other words, it was argued that incorrect labelling of the statutory provision in the FIR should not prevent the investigation from proceeding under the appropriate law.
    • The High Court rejected this argument because the Trade Marks Act contains its own mandatory safeguards governing search and seizure.

    Prior Opinion of Registrar Under Section 115(4) Is a Statutory Condition Precedent

    • Section 115(4) of the Trade Marks Act requires the police officer, before conducting search and seizure, to obtain the opinion of the Registrar on the facts involved in the offence relating to the trademark and abide by that opinion.
    • The High Court found from the FIR and police record that no prior written opinion had been sought or obtained from the Registrar of Trade Marks before the raid on Raj Cover House.
    • Justice Raval described this requirement as a β€œstatutory condition precedent” rather than a technical formality.
    • The Court viewed the safeguard as designed to prevent arbitrary police raids on commercial establishments at the instance of private corporate entities.
    • The Court consequently held that a search and seizure conducted in total defiance of Section 115(4) was vitiated.

    Raid Conducted by Officers Below Statutorily Required Rank

    • There was another fundamental procedural defect.
    • The Court noted that Section 115(4) provides that no police officer below the rank of Deputy Superintendent of Police or equivalent shall search and seize without warrant in such cases.
    • Although the initial application had been forwarded by the DCP Zone-03 to Kalupur Police Station, the actual raid, search and seizure were carried out under a Police Inspector along with head constables and police constables.
    • The High Court found these officers to be below the statutorily prescribed rank of DSP/ACP and consequently held that they lacked the requisite authority to conduct the search and seizure under the Trade Marks Act.

    Court Finds β€œColourable Exercise of Power”

    • The High Court went further and described the record as demonstrating a β€œclear pattern of colourable exercise of power.”
    • According to the Court, the complainant-company was aware that proceeding under the Trade Marks Act required the Registrar’s prior opinion and execution of the raid by an appropriately ranked police officer.
    • The Court found that what was essentially a trademark dispute had instead been presented as copyright infringement, thereby enabling an immediate raid through local police officers without satisfying those statutory safeguards.
    • The Court held that permitting the prosecution subsequently to fall back upon trademark charges would effectively sanction an evasion of the statutory mandate.
    • It reiterated that the FIR and seizure memo did not disclose recovery of original literary works or user manuals and that the controversy essentially concerned alleged falsification of a registered trademark on commercial accessories.

    Complainant’s Authority to Lodge FIR Was Upheld

    • Importantly, the High Court did not accept every contention raised by the petitioner.
    • The petitioner had challenged the complainant’s locus and authority to institute the proceedings.
    • On examining the authorisation documents, however, the Court found that authority had been given to the agency and, in turn, to its authorised person to lodge the FIR.
    • The petitioner’s objection regarding the complainant’s lack of locus was therefore rejected.
    • Thus, the FIR was not quashed because the complainant lacked authority. It was quashed because the Copyright Act provisions were found inapplicable to the allegations as framed and the statutory requirements necessary for a Trade Marks Act prosecution had not been followed.

    Gujarat HC Quashes FIR and All Consequential Proceedings

    • Summarising its conclusions, the Gujarat High Court held that the allegations did not satisfy the statutory ingredients of Sections 13 and 63 of the Copyright Act, since the commercial hardware in question did not constitute literary or artistic works for the purposes of the prosecution as framed.
    • It further held that Sections 103 and 104 of the Trade Marks Act could not simply be substituted to save the proceedings because the search, raid and seizure had been conducted in breach of Section 115(4)β€”both because the Registrar’s prior opinion had not been obtained and because the operation was carried out by officers below the prescribed rank.
    • Continuation of the proceedings, the Court concluded, would amount to an abuse of the process of Court and cause grave miscarriage of justice.
    • Accordingly, the High Court allowed Jitendrabhai Kriplani’s petition and quashed FIR C.R. No. 11191026220492 of 2022 dated October 19, 2022 and all consequential proceedings insofar as the petitioner was concerned.

    Why This Judgment Matters

    • The ruling draws an important boundary between copyright enforcement and trademark counterfeiting.
    • The judgment does not hold that counterfeit branded electronic goods are lawful. Rather, it holds that allegations of counterfeiting must be prosecuted under the correct statutory framework, and the procedural safeguards attached to that legislation cannot be avoided by characterising a trademark dispute as copyright infringement.
    • The decision is especially significant for intellectual-property enforcement agencies, brand-protection companies, police authorities, retailers and businesses because it stresses that the choice of statute directly affects the legality of search, seizure and prosecution.
    • Where the substance of an allegation concerns falsification of trademarks on commercial products, authorities cannot use the Copyright Act merely to circumvent the safeguards specifically prescribed by Section 115(4) of the Trade Marks Act.

    Key Takeaway

    Counterfeit commercial hardware bearing a registered brand does not automatically constitute copyright infringement. Where the allegations essentially concern trademark falsification, the Trade Marks Act must be followedβ€”including its mandatory search-and-seizure safeguards. A trademark dispute cannot be dressed up as a copyright case merely to bypass those statutory requirements.

    Connected Matter

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

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

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    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • CESTAT Chennai: Refund Limitation Cannot Begin Before Final Assessment Order Is Communicated to Importer

    CESTAT Chennai: Refund Limitation Cannot Begin Before Final Assessment Order Is Communicated to Importer

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

    Date: 18.09.2026

    CESTAT Chennai: Refund Limitation Cannot Begin Before Final Assessment Order Is Communicated to Importer

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    In an important ruling concerning the limitation period for Customs refunds arising from provisional assessments, the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Chennai has held that the one-year limitation under Section 27(1B)(c) of the Customs Act, 1962 must be reckoned from the date on which the order finalising the provisional assessment is communicated to the person entitled to claim the refund, and not merely from the date on which the order is passed.

    The Tribunal dismissed the Revenue’s appeal against Tamilnadu Newsprint and Papers Ltd. (TNPL) and upheld the Commissioner (Appeals)’ finding that TNPL’s refund claim was not time-barred.

    Background: β‚Ή75.50 Lakh Refund Arising From Provisional Assessment

    • TNPL had imported non-coking coal under Bill of Entry No. 3551653 dated October 17, 2013. The Bill of Entry was provisionally assessed because original documents and the test report were unavailable at the time of assessment.
    • After the relevant documents were produced, the Assistant Commissioner of Customs, Nagapattinam finalised the assessment through Order-in-Original No. 35/2014 dated April 30, 2014. The finalisation resulted in a finding that TNPL had paid excess Customs duty of β‚Ή75,50,539, which was ordered to be refunded.
    • TNPL subsequently filed its refund claim dated May 13, 2015, received by Customs on May 15, 2015. After the Department issued a deficiency memo, the claim was resubmitted on June 4, 2015 and received on June 9, 2015.

    Customs Department Rejected Refund as Time-Barred

    • The Department took the position that the limitation period had commenced on April 30, 2014, when the provisional assessment was finalised.
    • According to Customs, Section 27(1B)(c) specifically provides that where duty has been paid provisionally under Section 18, the one-year limitation period is computed from the date of adjustment of duty after final assessment.
    • On that reasoning, even TNPL’s original filing in May 2015 was beyond one year from April 30, 2014. The adjudicating authority therefore rejected the refund as time-barred by Order No. 37/2015 dated September 2, 2015.

    Commissioner (Appeals) Allowed TNPL’s Appeal

    • The Commissioner (Appeals), however, set aside the rejection.
    • It held that under Section 153 of the Customs Act, an order has to be communicated in the prescribed manner and that the relevant date for pursuing a remedial measure is the date on which the order is communicated to the affected person.
    • The appellate authority relied upon CESTAT’s decision in Indian Oil Corporation Ltd. v. Commissioner of Customs, 2014 (308) E.L.T. 169 (Tri.-Del.).
    • TNPL had also produced a postal cover bearing the postal authority’s seal and stamp as evidence regarding receipt of the finalisation order. The Department, on the other hand, could not establish an earlier date of communication. The Commissioner (Appeals) consequently directed the refund claim to be considered, prompting Revenue to approach CESTAT.

    Core Question Before CESTAT

    • The Tribunal identified the central issue as whether TNPL’s refund claim relating to duty paid provisionally under Section 18 was filed within the one-year limitation prescribed under Section 27(1B)(c).
    • The Department argued for a literal construction: the statute refers to the date of adjustment following final assessment and does not expressly use the word β€œcommunication.”
    • CESTAT, however, held that the provision could not be interpreted in isolation from the settled principles governing limitation where an affected person has to pursue a legal remedy.

    Limitation Cannot Begin Before Party Knows About the Order

    • The Tribunal placed significant reliance on the Supreme Court’s judgment in Collector of Central Excise, Madras v. M.M. Rubber & Co., 1991 (55) E.L.T. 289 (SC).
    • CESTAT explained that the Supreme Court had distinguished between two situations.
    • Where a statutory authority is required to exercise its own power within a prescribed period, limitation may run from the date the order is made because the authority cannot claim ignorance of its own action. But where limitation governs the right of an aggrieved person to pursue a remedy, actual or constructive knowledge of the order becomes essential.
    • Applying that principle, CESTAT observed that TNPL was not the author of the final assessment order. It was the person required to act upon that order to recover excess duty. It would therefore be incongruous for the limitation period to begin running even before the order was communicated to it.

    Gujarat High Court’s GAIL Ruling Followed

    • The Tribunal found substantial support in Principal Commissioner of Customs, Ahmedabad v. GAIL (India) Ltd., (2024) 20 Centax 516 (Guj.).
    • The Gujarat High Court had considered essentially the same question: whether the β€œdate of service” of an order finalising provisional assessment is relevant for calculating limitation under Section 27(1B)(c), despite the statutory language referring to adjustment of duty after final assessment.
    • The High Court decided the issue against Revenue and held that communication of the finalisation order to the assessee is a condition sine qua non for filing the refund claim within the prescribed period.
    • Importantly, CESTAT also noted the Gujarat High Court’s finding that mere uploading of an assessment order on the Department’s portal, without more, would not satisfy the requirement of communication.
    • CESTAT consequently held that the issue was no longer res integra.

    One-Year Period Runs From Communication of Final Assessment Order

    • The Chennai Bench crystallised the legal position in clear terms.
    • It held that the one-year limitation prescribed under Section 27(1B)(c), for refund of duty paid provisionally under Section 18, runs from the date on which the order finalising the assessment is communicated to the person entitled to the refund, rather than from the bare date on which the finalisation order is passed.
    • This distinction is significant for importers whose provisional assessments are finalised but where the resulting order is communicated after a delay.

    Mere Dispatch Is Not Enough; Customs Must Prove Service

    • CESTAT went further and examined what amounts to valid communication under Section 153 of the Customs Act.
    • The Tribunal held that the Department must demonstrate actual communication in accordance with the prescribed statutory mechanism. Mere assertion that an order was dispatched is insufficient.
    • It relied upon the Larger Bench ruling in Margra Industries Ltd. v. Commissioner of Customs, New Delhi, 2006 (202) E.L.T. 244 (Tri.-LB), which held that dispatch by post without proof of delivery does not constitute sufficient compliance where the special statute itself prescribes the manner of service.
    • The Bench also relied upon the Madras High Court’s decision in Schiller Healthcare India Pvt. Ltd. v. Assistant Commissioner of Customs, 2021-TIOL-1357-HC-MAD-CUS, where the Court dealt with the hierarchy of modes of service contemplated under Section 153.

    Burden of Proving Communication Lies on Revenue

    • Another important principle emerging from the ruling concerns the burden of proof.
    • Referring to its earlier ruling in Rane (Madras) Ltd. v. Commissioner of GST and Central Excise, Chennai South Commissionerate, along with the Chhattisgarh High Court’s decision in Vijay Pratap and the Supreme Court’s ruling in Saral Wire Craft Pvt. Ltd., the Tribunal held that the prescribed statutory method of service must be strictly followed.
    • CESTAT stated that the burden of proving that an order adversely affecting an assessee has been served through the prescribed method rests on Revenue.

    Section 153 Applies to Assessment Orders Too

    • Revenue could also not escape the communication requirement merely because the order in question finalised a provisional assessment rather than being an adjudication order in the conventional sense.
    • The Tribunal noted that Section 153 speaks of an β€œorder or decision” without restricting its operation to adjudication orders.
    • Further, provisional assessment falls within the definition of β€œassessment” under Section 2(2) of the Customs Act.
    • Relying upon Commissioner of Customs (Export), Mumbai v. Goodwill Sales Pvt. Ltd., 2016 (343) E.L.T. 1193 (Tri.-Mumbai), CESTAT observed that although assessment and adjudication are conceptually distinct, both constitute orders or decisions for purposes of the Customs Act.

    Revenue Failed to Prove Earlier Service

    • On the facts, the Department could not produce evidence demonstrating that the finalisation order had been dispatched to TNPL by registered post, speed post or another method contemplated under Section 153, much less evidence establishing delivery on an earlier date.
    • TNPL, in contrast, had produced the postal cover bearing the seal and stamp of the postal department.
    • The Department’s suggestion that the postal cover might have contained some other correspondence was rejected by the Tribunal as a bare surmise unsupported by evidence.

    Refund Claim Held Within Limitation

    • After adopting the date of communication as the relevant starting point, the Tribunal found TNPL’s refund claim to be within the statutory limitation.
    • The order records that, reckoned from the accepted date of communication, the one-year period expired on June 10, 2015. TNPL’s refund claim dated May 13, 2015 and received on May 15, 2015 was therefore within time.
    • Even its resubmission after curing the deficiencyβ€”made on June 4 and received by Customs on June 9, 2015β€”fell within the one-year period.

    Revenue’s Appeal Dismissed

    • CESTAT ultimately found no error in the Commissioner (Appeals)’ conclusion that TNPL’s refund claim was not barred by limitation.
    • Accordingly, the Tribunal dismissed the Revenue’s appeal and upheld Order-in-Appeal No. 91/16-TRY(CUS) dated April 5, 2016, with consequential relief in accordance with law. Thus, Tamilnadu Newsprint and Papers Ltd. succeeded before CESTAT on the limitation issue.

    Why the Ruling Matters for Importers

    The judgment has practical significance beyond TNPL’s individual refund claim. It reinforces that an importer cannot ordinarily be deprived of a statutory remedy by allowing limitation to run from an order that has not been properly communicated to it.

    The decision is particularly relevant in cases involving provisional assessment under Section 18, refund applications under Section 27, and disputes regarding service or communication under Section 153 of the Customs Act.

    The ruling also underscores a crucial evidentiary point for Customs proceedings: where Revenue relies on an earlier date of service to defeat a claim on limitation, the burden of establishing proper communication through the statutorily prescribed mode rests upon the Department.

    Connected Matter

    Gujarat High Court: Customs Refund Limitation Cannot Run Until Final Assessment Is Communicated to Importer; Mere ICEGATE Upload Not Enough

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Chennai

    Disclaimer

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    Write to us at office@aadrikaalaw.com

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    Ravi Shekhar Jha – Advocate, Bar Council of Delhi

  • Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

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

    Date: 17.09.2026

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has set aside the Trade Marks Registry’s refusal to register the pharmaceutical word mark β€œELMENTIN”, holding that it could not be regarded as phonetically similar to the earlier registered mark β€œELEMENTAL” merely because both marks related to medicinal and pharmaceutical products.

    In Elyon Pharmaceuticals Pvt. Ltd. v. The Registrar of Trademarks, C.A.(COMM.IPD-TM) 153/2021, Justice C. Hari Shankar held that ELMENTIN and ELEMENTAL have distinctly different sounds, syllabic structures and meanings. The Court also observed that differences in the pharmaceutical composition of competing products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Trademark Registry Had Rejected β€œELMENTIN”

    • Elyon Pharmaceuticals Pvt. Ltd. had filed Application No. 2668081 seeking registration of the word mark β€œELMENTIN” for a pharmaceutical composition containing Amoxycillin and Clavulanic Acid.
    • The Examiner of Trade Marks rejected the application by an order dated August 27, 2018, invoking Section 11(1)(b) of the Trade Marks Act, 1999.
    • The objection was based on an earlier registered trademark, β€œELEMENTAL”, registered in favour of Juggat Pharma Pvt. Ltd. for medicinal and pharmaceutical preparations in Class 5. The Registry considered ELMENTIN deceptively similar to ELEMENTAL and found a potential likelihood of confusion.
    • Elyon Pharmaceuticals challenged the rejection before the Delhi High Court.

    Elyon Pharmaceuticals: ELMENTIN and ELEMENTAL Sound Different

    • Counsel for Elyon Pharmaceuticals argued that the two marks could not properly be regarded as phonetically similar and, therefore, the basis for refusing registration was unsustainable.
    • The Registrar defended the decision, arguing that the phonetic difference between the two expressions was minimal and that ELEMENTAL already stood registered for medicinal and pharmaceutical preparations in the same class.
    • After examining the rival contentions, however, the High Court disagreed with the Registry.

    Delhi HC: The Two Words Have β€œDistinctly Different Sounds”

    • Justice Hari Shankar observed that, when properly articulated, ELMENTIN and ELEMENTAL have distinctly different sounds.
    • The Court specifically noted that even the concluding syllables of the two expressions were different.
    • This distinction was important because trademark similarity cannot be determined merely by identifying common letters or portions of competing marks. The marks must be considered from the perspective of their overall visual and phonetic impression and the circumstances in which consumers encounter them.

    Court Applies the Classic β€œPianotist” Test

    • The Delhi High Court relied upon the well-established test laid down in In re Pianotist Co.’s Application, [1906] 23 RPC 774.
    • Under that approach, competing marks must be assessed by considering their look and sound, the goods to which they are applied, the nature of likely consumers, the surrounding circumstances and what is likely to happen if both marks are used normally in the marketplace.
    • The Court noted that the Pianotist test had received approval from the Supreme Court in Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449, and Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723.

    β€œELMENTIN” Is a Coined Word; β€œELEMENTAL” Is an Ordinary English Expression

    • Applying that test, the Court found substantial differences between the marks.
    • β€œELEMENTAL” was described as a word of common English usageβ€”an adjective associated with β€œelement” and synonymous with β€œfundamental.”
    • β€œELMENTIN,” on the other hand, was a coined expression having no etymological meaning.
    • The Court also compared the syllabic structures. ELMENTIN contains three syllables, while ELEMENTAL contains four. Their concluding syllables were also different.
    • These distinctions led the Court to conclude that it was difficult to sustain the Examiner’s finding that use of the two marks for pharmaceutical preparations was likely to confuse the public.

    Coined and Arbitrary Marks Entitled to Greater Protection

    • The Court further observed that ELMENTIN, being a meaningless, arbitrary and coined word, was entitled to additional trademark protection.
    • For this proposition, the judgment referred to Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB).
    • The ruling therefore reinforces the significance of invented or arbitrary terminology when examining distinctiveness and competing trademark claims.

    Different Pharmaceutical Compositions Can Reduce Likelihood of Confusion

    • One of the most significant observations in the judgment concerns the composition of pharmaceutical products.
    • The High Court noted that the record did not establish whether the pharmaceutical composition sold under the earlier ELEMENTAL mark was the same as the composition for which Elyon Pharmaceuticals sought registration of ELMENTIN.
    • Justice Hari Shankar observed that if the two pharmaceutical compositions were different, that would constitute an additional mitigating factor against the likelihood of confusion among the public.
    • The observation is important because it indicates that the likelihood-of-confusion inquiry in pharmaceutical trademarks is not necessarily confined to comparing the words in isolation. The nature and composition of the underlying products may also be relevant to the overall factual assessment.

    Section 11(1)(b) Rejection Set Aside

    • Section 11(1)(b) of the Trade Marks Act deals with situations where similarity with an earlier trademark, coupled with identity or similarity of the relevant goods or services, creates a likelihood of confusion on the part of the public, including likelihood of association with the earlier mark.
    • After applying the phonetic, visual and contextual comparison, the High Court held that the Examiner’s conclusion that ELMENTIN was disentitled to registration because of the pre-existing ELEMENTAL mark could not be sustained.
    • The rejection order was accordingly set aside.

    Application Remanded to Trade Marks Registry for Fresh Consideration

    • Importantly, the Delhi High Court did not itself finally order registration of ELMENTIN.
    • Instead, Application No. 2668081 was remitted to the concerned officer of the Trade Marks Registry for de novo consideration.
    • The Registry was directed to consider the application on its own merits, but it was specifically restrained from rejecting the application on the grounds contained in Sections 11(1)(a) or 11(1)(b) of the Trade Marks Act.
    • The appeal was accordingly allowed to that extent, with no order as to costs.

    Cases Referred to by the Delhi High Court

    The judgment expressly refers to four authorities while explaining the applicable principles of trademark comparison:

    1. In re Pianotist Co.’s Application, [1906] 23 RPC 774 β€” the classic test requiring marks to be compared by look, sound, goods, consumers and surrounding circumstances.
    2. Amritdhara Pharmacy v. Satya Deo Gupta, AIR 1963 SC 449 β€” Supreme Court approval of the Pianotist approach.
    3. Khoday Distilleries v. Scotch Whisky Association, (2008) 10 SCC 723 β€” also cited as approving the Pianotist standard.
    4. Kirorimal Kashiram Marketing & Agencies Ltd. v. Shree Sita Chawal Udyog Mill, (2010) 44 PTC 293 (DB), and South India Beverages Pvt. Ltd. v. General Mills Marketing Inc., (2015) 61 PTC 231 (DB) β€” relied upon concerning protection available to arbitrary and coined marks.

    Why the Judgment Matters for Pharmaceutical Trademarks

    • The ruling provides a useful framework for examination of allegedly similar pharmaceutical marks. It indicates that similarity should not be determined simply because two marks share some letters or are registered in the same class.
    • Instead, the decision requires consideration of the overall appearance, pronunciation, syllabic structure, meaning, nature of the products, relevant consumers and surrounding commercial circumstances.
    • It is equally important that the Court did not treat different pharmaceutical compositions as automatically eliminating confusion. Rather, it described such difference as an additional mitigating factor, meaning it forms part of the broader likelihood-of-confusion assessment.

    Key Takeaway

    The Delhi High Court’s ruling establishes that ELMENTIN could not be refused merely on the ground that it was allegedly phonetically similar to ELEMENTAL.

    The Court found meaningful differences in sound, syllables, meaning and overall impression and set aside the Section 11(1)(b) rejection. At the same time, the judgment should not be read as a final grant of trademark registration.

    The application was sent back to the Registry for fresh consideration on its own merits, subject to the Court’s direction that it could not again be rejected under Sections 11(1)(a) or 11(1)(b).

    Connected Matter

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

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    Source: Delhi High Court

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  • CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

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

    Date: 17.09.2026

    CESTAT Mumbai: Vitamin and Enzyme Premixes for Animal Feed Classifiable Under CTH 2309

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), Mumbai has ruled in favour of DSM Nutritional Products India Pvt. Ltd. in a long-running customs classification dispute, holding that imported vitamin premixes and enzyme preparations meant for use in animal feeding are classifiable under Customs Tariff Heading (CTH) 2309, and not under CTH 2936 or CTH 3507 as contended by Customs.

    A Division Bench comprising S.K. Mohanty, Member (Judicial), and M.M. Parthiban, Member (Technical) set aside the May 8, 2024 order of the Commissioner of Customs (Appeals), JNCH, Nhava Sheva, and allowed Customs Appeal Nos. 87088 to 87126 of 2024 with consequential relief. The final order was pronounced on September 11, 2026.

    The ruling is significant for the tariff classification of feed-grade vitamin and enzyme premixes, particularly where such products contain active ingredients along with carriers, fillers, stabilisers, anti-caking agents and other substances specifically designed for animal-feed applications.

    DSM Imported Vitamin and Enzyme Premixes for Animal Feeding

    • DSM Nutritional Products India imported preparations containing vitamins and enzymes from its related overseas supplier, DSM Nutrients Asia Pacific Private Limited, Singapore.
    • The imports included a range of Rovimix vitamin premixes and Ronozyme enzyme preparations, which were intended for use in preparation of animal feed.
    • DSM classified these products under CTH 2309, covering preparations of a kind used in animal feeding.
    • Because the overseas supplier was a related party, the assessments had remained provisional since October 2010. The Special Valuation Branch subsequently concluded in 2016 that the relationship had not influenced the declared import price.

    Customs Sought Classification Under Chapters 29 and 35

    • The dispute arose after the Central Intelligence Unit and Special Investigation & Intelligence Branch examined the classification adopted by DSM.
    • Customs took the position that the vitamin and vitamin premixes should be classified under CTH 2936, while enzyme preparations should fall under CTH 3507, instead of Heading 2309.
    • Consequently, provisional assessments covering imports from October 2010 to December 2020 remained pending.
    • DSM repeatedly sought finalisation of the assessments and refund of pre-deposits/Extra Duty Deposits. When the matter remained unresolved, it approached the Bombay High Court in Writ Petition No. 3323 of 2021. The High Court directed Customs to finalise the provisional assessments.

    Customs Finalised Assessments Against DSM

    • The Assistant Commissioner of Customs eventually passed an Order-in-Original dated September 22, 2023 rejecting DSM’s classification under CTH 2309.
    • The authority classified the vitamin products under CTH 2936 and enzyme products under CTH 3507, finalised the assessments under Section 18(2) of the Customs Act, 1962, demanded differential customs duty with interest and ordered appropriation against deposits already made by DSM.
    • Interestingly, the Tribunal recorded that the exact amount of duty demanded, confirmed or appropriated was not mentioned in the operative portion of the original order.
    • The Commissioner (Appeals) subsequently upheld the classification adopted by the original authority and dismissed DSM’s appeals, leading to the proceedings before CESTAT.

    DSM: Products Are Exclusively Intended for Animal Feed

    • DSM argued that the disputed vitamin and enzyme premixes were exclusively intended for animal feeding and were not used for human consumption.
    • The preparations contained vitamins or enzymes as active ingredients together with carriers, fillers, anti-caking agents, stabilisers and other additives selected keeping their animal-feed end use in view.
    • DSM further used these imported premixes to manufacture composite premixes containing vitamins, minerals, enzymes and other ingredients, which were also intended exclusively for animal feeding.
    • DSM therefore relied heavily on the Larger Bench decision in Tetragon Chemie (P) Ltd. v. Collector of Central Excise, Bangalore, 2001 (138) E.L.T. 414 (Tri.-LB), which had held that premixes of the relevant nature used in animal feeding fall under the animal-feed heading. That ruling was upheld by the Supreme Court when the Revenue’s appeal was dismissed.

    Earlier Venkateshwara B.V. Bio Corp Ruling Became Crucial

    • A particularly important aspect of DSM’s case was the Tribunal’s earlier ruling in Venkateshwara B.V. Bio Corp Private Limited v. Commissioner of Customs (NS-I), (2025) 26 Centax 283 (Tri.-Bom.).
    • DSM argued that the classification dispute in Venkateshwara was virtually identical, arose from the same investigation and even involved the same overseas supplier, DSM Nutritional Products Asia Pacific Pte. Ltd., Singapore.
    • In that case, CESTAT had classified the imported products under CTI 2309 9090. Customs challenged that ruling before the Supreme Court, but its appeal was dismissed on February 7, 2025.
    • The Supreme Court order reproduced on page 10 of the CESTAT judgment records that it found no good ground to interfere with the Tribunal’s decision, particularly in light of Circular No. 188/22/96-CX dated March 26, 1996, and dismissed the Revenue’s appeal.

    Core Issue Before CESTAT: CTH 2309 vs 2936/3507

    • The Tribunal framed the principal issue as whether the imported vitamin premixes and enzyme preparations for feed/animal grade were classifiable under CTI 2309 9020 as claimed by DSM, or whether vitamins should be classified under CTH 2936 and enzymes under CTH 3507 as determined by Customs.
    • Customs had reasoned that vitamins and enzymes had specific tariff headings and that a specific classification should prevail over what it regarded as the more general or residual animal-feed heading.
    • The Commissioner (Appeals) had relied substantially upon Rule 3(a) of the General Rules for Interpretation and the ingredients of the imported products in concluding that vitamins belonged under 2936 and enzyme preparations under 3507.

    CESTAT Finds Customs Order Legally Deficient

    • The Tribunal was not persuaded by that approach.
    • It observed that neither the Commissioner (Appeals) nor the original authority had undertaken a sufficiently detailed examination of the scope of the competing tariff headings and the relevant HSN Explanatory Notes.
    • According to CESTAT, a comprehensive classification exercise under the Customs Tariff Act, 1975 required proper examination of the competing entries rather than merely proceeding on the premise that Chapters 29 and 35 contained more specific descriptions.
    • The Tribunal therefore found, even at the preliminary level of its analysis, that the impugned appellate order was not sustainable.

    Larger Bench in Tetragon Chemie Supports Heading 2309

    • CESTAT then relied on the Larger Bench ruling in Tetragon Chemie.
    • That decision had considered the specific question whether preparations used in animal feeding consisting of one or more vitamins mixed with diluents should be classified under the vitamin heading or under the animal-feed heading.
    • The Larger Bench concluded that premixes containing mineral substances, vitamins or provitamins, trace elements, appetisers, soya flour or meal, yeast and similar ingredients were covered by Heading 23.09 of the HSN, corresponding to the relevant animal-feed heading in the Central Excise Tariff.
    • The Larger Bench ultimately answered the classification issue in favour of the assessees.
    • CESTAT noted that this decision was upheld by the Supreme Court in 2001 (132) E.L.T. 525 (S.C.).

    Indian Trading Bureau Decision Also Favoured Animal-Feed Classification

    • The Mumbai Bench further referred to Indian Trading Bureau Private Limited v. Commissioner of Customs (Port), Kolkata, 2024 (2) TMI 1030 – CESTAT Kolkata.
    • In that case, vitamins and enzymes used as animal-feed additives were classified under CTH 2309 rather than the competing tariff heading asserted by Revenue.
    • The decision emphasised the product literature showing that the goods were part of animal feed and were not fit for human consumption.
    • The Revenue’s appeal against that decision was also dismissed by the Supreme Court.

    CESTAT: DSM’s Case Identical to Venkateshwara Classification Dispute

    • The Tribunal found the classification dispute in DSM’s appeals to be identical to the issue already considered in Venkateshwara B.V. Bio Corp.
    • It noted that the overseas supplier in the present case was also one of the suppliers involved in that earlier dispute.
    • The Venkateshwara decision had examined the Customs Tariff Act, General Rules for Interpretation, competing tariff headings 2309 and 2936, HSN Explanatory Notes and CBEC Circular No. 188/2/96-CX dated March 26, 1996.
    • That decision had concluded that the disputed goods were classifiable under CTH 2309 and not CTH 2936, and the Supreme Court subsequently declined to interfere with the Tribunal’s decision.

    Vitamin and Enzyme Feed Preparations Classifiable Under CTH 2309

    • On the basis of these authorities and its own analysis, the Mumbai Bench concluded that DSM’s imported goods were properly classifiable under CTH 2309 of the First Schedule to the Customs Tariff Act, 1975.
    • The Tribunal expressly held that the May 8, 2024 appellate order sustaining classification under CTH 2936 and CTH 3507 did not withstand legal scrutiny and was legally unsustainable.
    • This finding resolved the substantive classification dispute in DSM’s favour.

    DSM Nutritional Products Wins 39 Customs Appeals

    • CESTAT accordingly set aside the impugned Order-in-Appeal and allowed DSM Nutritional Products India’s appeals, together with consequential relief, if any, in accordance with law.
    • The ruling therefore represents a substantive victory for DSM on tariff classification: its animal-feed vitamin and enzyme preparations were held classifiable under Heading 2309, rather than being split between the vitamin and enzyme headings in Chapters 29 and 35.

    Key Legal Takeaway

    The decision reinforces an important classification principle for feed-grade preparations: the presence of vitamins or enzymes as active ingredients does not, by itself, necessarily require classification of the finished preparation under the standalone vitamin or enzyme headings.

    The nature of the preparation, its composition, HSN guidance, relevant tariff notes, established judicial precedent and its exclusive design and use in animal feeding must all be considered.

    The ruling is particularly important because CESTAT found the dispute materially covered by previous decisionsβ€”including Tetragon Chemie and Venkateshwara B.V. Bio Corpβ€”whose outcomes had survived Revenue challenges before the Supreme Court.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Mumbai

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  • Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

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

    Date: 17.09.2026

    Supreme Court Acquits Two in NDPS Case Over Broken Chain of Custody: Says FSL Report Cannot Survive Serious Gaps in Sample Integrity

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Supreme Court has acquitted two persons convicted in a narcotics case after finding serious deficiencies in the prosecution’s evidence concerning the identification, sealing, safekeeping and movement of samples allegedly drawn from the seized contraband.

    In Abdul Rajik v. State of M.P. along with Govind v. State of M.P., 2026 INSC 1001, a Bench of Justice Sandeep Mehta and Justice Manmohan held that the link evidence had been completely breached, undermining the sanctity and integrity of the samples. Once the Forensic Science Laboratory (FSL) report was excluded, there was no legally admissible evidence establishing that the seized substance was charas.

    Background of the NDPS Case

    • The prosecution alleged that on November 29, 2004, police in Jabalpur received information that two persons were carrying charas in bags. A raiding team intercepted Abdul Rajik and Govind at Bandariya Tiraha.
    • According to the prosecution, 1 kilogram of suspected charas was recovered from Abdul Rajik’s bag and 800 grams from Govind’s bag. Samples were drawn and the accused were arrested. The FSL subsequently reported that the samples were charas.
    • The Special NDPS Court convicted both accused. Abdul Rajik was sentenced to 10 years’ rigorous imprisonment with a fine of β‚Ή1 lakh, while Govind was sentenced to eight years’ rigorous imprisonment with a fine of β‚Ή80,000. The Madhya Pradesh High Court dismissed their appeals in November 2010 and affirmed the convictions.
    • The matter ultimately reached the Supreme Court.

    Sections 42 and 50 Not Applicable to Search of Bags in Public Place

    • The accused argued, among other things, that the mandatory requirements of Sections 42, 50 and 52A of the Narcotic Drugs and Psychotropic Substances Act, 1985 had not been complied with.
    • The Supreme Court, however, did not accept the challenge based on Sections 42 and 50.
    • It observed that the alleged recovery was from bags being carried by the accused when they were apprehended in an open public place. Consequently, the Court held that neither Section 42 nor Section 50 applied to the search and seizure in the circumstances of the case.
    • The acquittal instead turned principally on the failure to establish reliable link evidence and chain of custody, considered alongside total non-compliance with Section 52A.

    Supreme Court Finds Serious Problems With Identification of Samples

    • The Court closely examined the evidence of the seizure officer regarding the manner in which representative samples were drawn and sealed.
    • It found that the officer did not state that the sample packets themselves had been sealed by him or that identifiable markings β€” such as signatures or thumb impressions of the accused, panch witnesses or seizure officer β€” had been placed on those packets.
    • The sample packets were also not separately produced and exhibited when the muddamal articles were produced before the trial court.
    • The Court further examined the sample panchnamas and found no indication that the packets had been secured with signatures or identifiable chits enabling the samples subsequently tested by the FSL to be correlated with the contraband allegedly recovered from each accused. Even the FSL report did not refer to signatures or thumb impressions on the sample packets.

    Missing Link Between Maalkhana and FSL

    • Another major deficiency concerned the prosecution’s failure to establish the movement and safe custody of the samples.
    • Although the maalkhana register recorded the deposit of samples on November 29, 2004, the Supreme Court noted that there was no corresponding entry recording their exit from the police station for transportation to the FSL.
    • The prosecution also failed to prove documents such as the police station forwarding letter and road certificates that could establish the link between seizure, storage and delivery to the laboratory.
    • The Court stressed that evidence regarding safe custody is crucial because the prosecution must demonstrate that the very samples drawn from the seized substance reached the forensic laboratory without substitution, interference or unexplained gaps.

    Unexplained Five-Day Gap Further Breaks Chain of Custody

    • The Court identified another material discrepancy.
    • The forwarding letter from the Office of the Superintendent of Police was dated December 1, 2004, whereas the FSL report recorded that the samples were received through Constable Ramkrishna on December 6, 2004.
    • The prosecution provided no explanation as to where the samples remained and in whose custody they were kept during this five-day period. The carrier constable was also not examined.
    • The Supreme Court described this unexplained five-day gap as a grave discrepancy that completely breached the link in the chain of custody.

    Chain of Custody Essential Before FSL Report Can Be Relied Upon

    • The Supreme Court laid down an important evidentiary principle for NDPS prosecutions: the prosecution must establish through proper link evidence that samples extracted from the alleged contraband were properly sealed and remained in a safe and secure condition from seizure until receipt by the FSL.
    • For an FSL report to be relied upon, the prosecution must establish through credible oral and documentary evidence a complete chain of custody preserving the integrity and sanctity of the samples.
    • This assumes particular significance in NDPS prosecutions because the chemical analysis ordinarily provides the scientific foundation for establishing whether the recovered material was in fact a prohibited narcotic drug or psychotropic substance.

    Total Non-Compliance With Section 52A

    • The Supreme Court also considered compliance with Section 52A of the NDPS Act, which provides safeguards relating to inventory, photographs and representative sampling of seized narcotic substances.
    • The Court clarified that mere non-compliance with Section 52A or the applicable Standing Orders/Rules does not automatically vitiate every trial or result in acquittal. The relevant question includes whether and to what extent the non-compliance caused prejudice to the accused.
    • However, the Court distinguished minor procedural lapses from complete non-compliance. It found that in the present case no effort whatsoever was made to undertake the Section 52A procedure for drawing representative samples in the presence of a Magistrate, amounting to total non-compliance.

    Supreme Court Relies on Earlier NDPS Precedents

    • The Court referred to Narcotics Control Bureau v. Kashif, (2024) 11 SCC 372, and Bharat Aambale v. State of Chhattisgarh, (2025) 8 SCC 452, while explaining that Section 52A non-compliance does not by itself automatically lead to acquittal and that prejudice and evidentiary consequences must be examined.
    • It also relied upon Nadeem Ahamed v. State of West Bengal, 2025 SCC OnLine SC 1779, where failure to draw representative samples before a Magistrate and absence of a certified inventory were held to undermine the integrity of the seizure and sampling process.
    • The Court further referred to State of Rajasthan v. Tara Singh, (2011) 11 SCC 559, which emphasised the significance of accounting for the custody of seized samples between dispatch and receipt at the laboratory, particularly given the stringent penalties under the NDPS Act.

    FSL Report Discarded

    • Applying these principles, the Supreme Court concluded that the link evidence had been totally breached, resulting in the collapse of the sanctity and integrity of the samples.
    • Consequently, the FSL report could no longer safely be relied upon and had to be discarded.
    • Once the FSL report was excluded, there was no other legally admissible evidence proving that the substance allegedly recovered from Abdul Rajik and Govind was charas within Section 2(iii)(a) of the NDPS Act, an essential foundational fact for attracting penal consequences under Section 20.

    Burning Suspected Substance Is Not Scientific Proof of Charas

    • The Supreme Court also rejected the seizure officer’s assertion that the suspected substance had been tested by burning a portion of it and could therefore be identified as charas.
    • The Court found no scientific material demonstrating that a substance could reliably be identified as charas merely by burning it. Accordingly, such testimony could not substitute for reliable scientific evidence establishing the identity of the alleged contraband.

    Supreme Court Acquits Both Accused

    • The Court ultimately held that the prosecution had failed to prove that the substance recovered from the accused was charas.
    • It therefore found the convictions recorded by the Special NDPS Court and affirmed by the Madhya Pradesh High Court unsustainable in law and extended the benefit of doubt to both appellants.
    • The Supreme Court set aside the conviction and sentence and acquitted Abdul Rajik and Govind of all charges. Since both were already on bail, the Court directed that they need not surrender and discharged their bail bonds. The appeals were accordingly allowed.

    Key Legal Takeaway

    The judgment reinforces that in NDPS prosecutions, an FSL report cannot be viewed in isolation from the evidentiary chain connecting the tested sample with the substance allegedly seized from the accused. While every procedural irregularity under Section 52A does not automatically result in acquittal, total non-compliance coupled with serious defects in identification, sealing, safekeeping and movement of samples can destroy the prosecution’s link evidence.

    Where that breakdown makes it impossible to establish that the substance scientifically tested was the same substance allegedly recovered from the accused, the forensic report may lose its evidentiary foundation.

    Connected Matter

    Supreme Court Acquits Man Sentenced to 10 Years; Finds Serious Lapses in NDPS Sampling Procedure

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

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    Source: Supreme Court

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  • Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

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

    Date: 16.09.2026

    Gujarat High Court: Raiding Officer Cannot Himself Be the Gazetted Officer Offered for Search Under Section 50 NDPS Act

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has suspended the 15-year rigorous imprisonment imposed on two persons convicted in a commercial-quantity NDPS case and granted them bail pending their criminal appeals, after finding a prima facie issue of non-compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.

    A Division Bench comprising Justice Ilesh J. Vora and Justice R.T. Vachhani, in Moneshkumar Sukhenbhai Garange v. State of Gujarat, passed the common interim order on 29 April 2026 in Criminal Misc. Application No. 1 of 2026 in Criminal Appeal Nos. 408 and 685 of 2026.

    The Court found substance, at the prima facie stage, in the contention that the raiding officer could not have offered the accused an option of being searched before himself, in addition to the statutory alternatives of a Magistrate or Gazetted Officer. The Bench accordingly suspended the sentence during pendency of the appeals.

    Importantly, the order is not a final acquittal. The High Court expressly clarified that its observations are tentative and prima facie and will not affect the final hearing of the criminal appeals.

    Two Accused Sentenced to 15 Years in Mephedrone Case

    • The applicants, original Accused Nos. 1 and 2, had been convicted under Sections 8(c), 22(c) and 29 of the NDPS Act by the Additional Sessions Judge, Ahmedabad, in Special NDPS Case No. 42 of 2023.
    • By judgment dated 25 November 2025, they were sentenced to 15 years’ rigorous imprisonment and a fine of β‚Ή2 lakh. They subsequently filed criminal appeals before the Gujarat High Court and sought suspension of sentence and bail during pendency of those appeals.

    Prosecution Alleged 118.240 Grams of Mephedrone Was Recovered

    • According to the prosecution, SOG Ahmedabad received secret information on 5 February 2023 that the accused had travelled to Rajasthan to obtain MD drugs and were returning to Ahmedabad in a Ford car.
    • Police recorded the information, transmitted it to a superior officer and intercepted the vehicle while it was allegedly entering Ahmedabad from the Gandhinagar-Koba Circle side towards Indira Bridge.
    • During the personal search, police claimed to have recovered 59.150 grams of mephedrone from Himesh Garange and 59.090 grams from Monesh Garange, making a total alleged recovery of 118.240 grams.
    • The prosecution examined 15 witnesses and produced 51 documents during trial. Accused Nos. 1 to 3 were eventually convicted under Sections 8(c) and 22(c) read with Section 29 of the NDPS Act.

    Accused Challenge Search Under Section 50 NDPS Act

    • Senior Advocate Yatin Oza, appearing for the applicants, raised several objections to the conviction.
    • A principal contention was that there had been non-compliance with Section 50 of the NDPS Act, which provides safeguards when an authorised officer is about to search a person.
    • The accused had allegedly been told that they could be searched before a Gazetted Officer, the nearest Magistrate, or before PW-8 B.P. Chaudhary himself, who was the raiding officer and a Gazetted Officer.
    • The defence argued that Section 50 does not contemplate such a β€œthird option” and that the raiding officer could not simultaneously offer himself as the Gazetted Officer before whom the accused could choose to be searched.
    • Other arguments were also raised concerning Sections 42 and 43 and the handling and custody of samples, including alleged inconsistencies concerning the colour of the contraband, dispatch particulars and non-examination of the person who carried the samples to the FSL.
    • The High Court, however, primarily focused on the Section 50 issue while considering whether the sentence should be suspended.

    State Invokes Commercial Quantity and Section 37 Rigours

    • The State opposed the applications, arguing that the trial court had correctly convicted the applicants on the basis of the evidence.
    • It maintained that the police officers were duly empowered to conduct the search and seizure and that the accused had been informed of their rights under Section 50 before consenting to the search.
    • The prosecution also relied upon the presumptions under Sections 35 and 54 of the NDPS Act and emphasised that the case involved commercial quantity. It therefore contended that the stringent requirements of Section 37 of the NDPS Act should apply even at the stage of considering suspension of sentence and bail pending appeal.

    Appellate Court Must Examine Whether Conviction Has Fair Chance of Being Set Aside

    • The Gujarat High Court referred to the Supreme Court’s decision in Om Prakash Sahni v. Jai Shankar Chaudhary & Anr., (2023) 6 SCC 123 on the principles governing suspension of sentence pending appeal.
    • The Court noted that, while deciding such an application, the appellate court may examine whether there is something apparent or gross on the face of the record that gives rise to a prima facie conclusion that the conviction may ultimately not be sustainable.
    • The Bench was conscious that the evidence could not be fully re-analysed at the interim stage. However, because the conviction was based upon the contraband allegedly recovered during the applicants’ personal searches, the Court considered compliance with Section 50 to be particularly significant.

    Section 50 Safeguard Must Be Properly Communicated

    • The High Court referred to the Constitution Bench judgment in State of Punjab v. Baldev Singh, (1999) 6 SCC 172.
    • The Constitution Bench had explained that an accused about to be personally searched must be informed of the existence of the right under Section 50(1) to be searched before the nearest Gazetted Officer or Magistrate. Failure to observe the statutory safeguard can render recovery from the personal search suspect and affect a conviction based upon that recovery.
    • The Gujarat High Court then considered the more specific issue of whether the searching officer could introduce a third alternative.

    Supreme Court’s Parmanand Judgment: β€œThird Option” Can Vitiate Section 50 Compliance

    • The Bench placed significant reliance on State of Rajasthan v. Parmanand & Anr., (2014) 5 SCC 345.
    • In Parmanand, the Supreme Court emphasised that communication of the right under Section 50 must be clear, unambiguous and individual, because the safeguard is intended to protect an accused against the possibility of false implication in cases carrying stringent punishments.
    • More importantly, the Supreme Court had disapproved of an accused being told that, besides the nearest Magistrate or Gazetted Officer, he could be searched before a senior police officer who was himself part of the raiding party.
    • The Supreme Court reasoned that the statutory safeguard is intended to give the accused the opportunity of a search in the presence of an independent officer. Providing a third option not contemplated by Section 50 could frustrate that protection.

    Searching Officer Cannot Act in Dual Capacity

    • The Gujarat High Court also discussed State of Rajasthan v. Ram Chandra.
    • The Supreme Court had explained that if the officer proposing to conduct the search is himself a Gazetted Officer and gives the accused the option of being searched in his own presence, the requirement of Section 50 would not be satisfied because the searching officer cannot act in a dual capacityβ€”both as the officer conducting the search and as the Gazetted Officer before whom the accused is offered the statutory choice of search.
    • This distinction became central to the Gujarat High Court’s consideration of the present applications.

    Raiding Officer Offered Himself as an Option: Gujarat High Court

    • On examining the evidence of PW-8 and the written notices at Exhibits 80 and 82, the High Court found that PW-8, who was himself the raiding officer, had informed the accused that they could be searched before him, a Magistrate or any Gazetted Officer.
    • The Bench consequently recorded a prima facie view that the raiding officer could not have given the accused an option to be searched before himself.
    • Relying on Parmanand and the Supreme Court’s decision in State of Himachal Pradesh v. Surat Singh, the High Court held that there was substance in the applicants’ argument concerning non-compliance with Section 50 of the NDPS Act.

    15-Year Sentence Suspended; Accused Granted Bail

    • Without undertaking an extensive examination of the merits, the Division Bench held that the circumstances justified exercise of discretion in favour of the applicants.
    • The Court therefore suspended the 15-year sentence imposed by the Special NDPS Judge during pendency of the criminal appeals and directed that the applicants be released on bail upon furnishing a personal bond of β‚Ή10,000 each with one surety each of the like amount.
    • The accused were directed not to leave India without prior permission of the High Court, to appear when the appeals are taken up for final hearing and to intimate any change in address to the concerned police station and the Court.

    Bail Order Does Not Set Aside NDPS Conviction

    • The legal effect of the order needs to be distinguished from a final decision on the appeals.
    • The Gujarat High Court has not acquitted the applicants or finally declared the search illegal. Their convictions remain under challenge in the pending criminal appeals.
    • The Court specifically stated that the observations in the suspension-of-sentence order are β€œtentative and prima-facie in nature” and shall not come in the way when the appeals are heard finally.

    Why the Order Is Significant

    The order reiterates the importance of strict adherence to procedural safeguards in cases involving personal search under the NDPS Act, particularly where the alleged recovery forms the principal basis of conviction.

    It also highlights a crucial distinction under Section 50: merely informing an accused about a Gazetted Officer or Magistrate may not necessarily cure the process if the notice simultaneously introduces a legally impermissible option that could dilute or confuse the statutory right.

    The Gujarat High Court’s prima facie reasoning therefore reinforces the proposition that the officer proposing to conduct the personal search cannot present himself as the independent Gazetted Officer contemplated by the Section 50 safeguard.

    At the same time, because the present order concerns only suspension of sentence pending appeal, the final determination of the legality of the search, conviction and evidentiary issues remains open.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

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  • Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

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

    Date: 16.09.2026

    Gujarat High Court: Trademark Application Cannot Be Denied Advertisement Merely Due to Section 11(1) Objection

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Gujarat High Court has allowed an appeal filed by Lincoln Pharmaceuticals Private Limited against the rejection of its trademark application for β€œGLYPANTA”, holding that Section 20 of the Trade Marks Act, 1999 permits advertisement of a trademark application despite objections under Section 11(1).

    Justice Mauna M. Bhatt, by an order dated 20 November 2025 in Lincoln Pharmaceuticals Private Limited v. Registrar of Trade Marks & Anr., R/Civil Appeal No. 7 of 2025, quashed the Trade Marks Registry’s rejection order dated 11 August 2025 and directed the Registry to proceed with advertisement of the application within three months.

    The ruling does not amount to final registration of β€œGLYPANTA.” The Court directed advertisement of the application, leaving any opposition to be considered independently on its merits.

    Lincoln Pharmaceuticals Sought Registration of β€˜GLYPANTA’

    • Lincoln Pharmaceuticals had filed an application on 22 August 2023 under Section 18(1) of the Trade Marks Act, 1999, seeking registration of the mark β€œGLYPANTA.”
    • The application was examined by the Trade Marks Registry, which issued an examination report raising objections. Lincoln Pharmaceuticals responded through a detailed reply dated 30 October 2023, raising various grounds in support of registration.
    • According to the pharmaceutical company, however, the grounds raised in its response were not properly considered before the application was ultimately rejected on 11 August 2025.
    • The rejection prompted Lincoln Pharmaceuticals to approach the Gujarat High Court under Section 91 of the Trade Marks Act.

    Section 11(1) Objection Raised Over Similar Trademark

    • The principal objection before the Registry arose under Section 11(1) of the Trade Marks Act, which deals with relative grounds for refusal of trademark registration, including situations where similarity with an earlier trademark may create a likelihood of confusion.
    • Lincoln Pharmaceuticals argued that the objection was unsustainable and that its detailed response to the examination report had not been properly considered.
    • One of the company’s key arguments was that even where competing pharmaceutical trademarks fall within the same class, differences in the composition of the respective pharmaceutical products may constitute an additional mitigating factor while assessing likelihood of confusion.

    Delhi High Court’s Elyon Pharmaceuticals Decision Cited

    • To support this argument, Lincoln Pharmaceuticals relied upon the Delhi High Court’s decision in Elyon Pharmaceuticals Pvt. Ltd. v. Registrar of Trademarks, C.A. (COMM.IPD-TM) 153/2021, decided on 23 August 2023.
    • In that case, the Delhi High Court had considered the marks β€œELEMENTAL” and β€œELMENTIN” and observed that differences in the pharmaceutical composition of products could provide an additional mitigating consideration when examining the possibility of public confusion.
    • Lincoln Pharmaceuticals relied on this reasoning to argue that the Registry’s Section 11(1) objection against β€œGLYPANTA” should not have resulted in rejection of its application in the manner adopted.

    Company Says β€˜GLYPANTA’ Was Already in Use Since 2023

    • Another argument raised before the High Court was that the Registry had relied upon trademarks that were proposed to be used, whereas Lincoln Pharmaceuticals claimed that β€œGLYPANTA” had been in use since 2023 and had acquired a substantial market for the product.
    • The company also objected to the fact that its application had been rejected before publication in the Trade Marks Journal.
    • Its contention was that publication would enable the statutory process to proceed and, if any third party wished to oppose the application, such opposition could thereafter be considered in accordance with law.

    Section 20 Permits Advertisement Despite Section 11 Objections: Lincoln Pharmaceuticals

    • Lincoln Pharmaceuticals placed particular reliance upon Section 20 of the Trade Marks Act, 1999.
    • It argued that even where objections under Sections 11(1) or 11(2) exist, the statutory framework permits advertisement of a trademark application.
    • The company therefore sought an opportunity for its application to be advertised rather than being rejected outright before publication.
    • The Registry’s counsel also raised an issue concerning non-joinder of the opposition party. Lincoln Pharmaceuticals responded that no private respondent was required at that stage because the challenge concerned rejection of the application before publication.
    • The High Court recorded that counsel appearing for the respondents could not dispute the provisions of Section 20.

    Gujarat High Court Relies on Section 20

    • After considering the submissions, Justice Mauna M. Bhatt noted that Section 20 permits advertisement despite objections under Section 11(1).
    • On that basis, the Court allowed Lincoln Pharmaceuticals’ appeal and quashed and set aside the Trade Marks Registry’s order dated 11 August 2025.
    • The Registry was then specifically directed to proceed with advertisement of the subject trademark application in accordance with the proviso to Section 20 of the Trade Marks Act.
    • The Court directed that the exercise be completed within three months from receipt of its order.

    Any Opposition to β€˜GLYPANTA’ Must Be Decided on Its Own Merits

    • Significantly, the High Court did not direct the Registry to grant final registration of β€œGLYPANTA.”
    • Instead, the Court restored the application to the stage of advertisement. It expressly provided that if any opposition is filed against the trademark application after advertisement, such opposition must be decided on its own merits.
    • Thus, Lincoln Pharmaceuticals succeeded in having the rejection order set aside and obtaining publication of its application, but the ultimate registrability of β€œGLYPANTA” remains subject to the statutory process, including any opposition that may be filed.

    Why the Judgment Matters for Trademark Applicants

    • The order is significant for trademark prosecution because it highlights the distinction between an examination-stage objection and the subsequent advertisement/opposition process.
    • In the circumstances before it, the Gujarat High Court relied on Section 20 to permit the application to proceed to advertisement despite the Section 11(1) objection, rather than allowing the pre-publication rejection to stand.
    • The decision is particularly relevant to pharmaceutical trademark applications, where the Registry frequently examines competing marks closely because of concerns regarding similarity and confusion. The case also demonstrates that factors such as the nature and composition of competing pharmaceutical products may be raised by an applicant while responding to relative-ground objections, though the Gujarat High Court did not finally adjudicate the merits of the β€œGLYPANTA” mark’s registrability in this order.

    Key Legal Takeaway

    The immediate principle emerging from the order is that the existence of a Section 11(1) objection does not, by itself in the circumstances considered by the Court, prevent the application from being advertised under Section 20.

    At the same time, advertisement should not be confused with registration. Publication gives third parties an opportunity to oppose the mark, and the Registry retains the responsibility to determine any such opposition on its merits.

    Connected Matter

    Delhi High Court Sets Aside Rejection of β€œELMENTIN” Trademark; Says Phonetic Similarity Must Be Assessed by Look, Sound and Surrounding Circumstances

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Gujarat High Court

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  • CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

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

    Date: 16.09.2026

    CESTAT Delhi- Packaging Material Cannot Be Treated at Par with Imported Input Under Advance Authorisation

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Customs, Excise & Service Tax Appellate Tribunal (CESTAT), New Delhi has allowed an appeal filed by M/s N.V. Distilleries and Breweries Ltd., setting aside an adjudication order that had sought recovery of customs duty on the allegation that the company violated the conditions of Notification No. 96/2009-Cus dated 11 September 2009 while fulfilling export obligations under the Advance Authorisation Scheme.

    The Principal Bench comprising Dr. Rachna Gupta, Officiating President, and Ms. Hemambika R. Priya, Member (Technical) delivered Final Order No. 51464/2026 on 15 September 2026 in Customs Appeal No. 50064 of 2020.

    The Tribunal drew an important distinction between an input physically incorporated in the exported product and packaging materials used for packing that product, holding that bottles, caps and labels could not be placed at par with the imported Vatted Malt Scotch used in manufacturing Indian Made Foreign Liquor (IMFL).

    The Dispute: Advance Authorisation and Rule 19(2) Benefits

    • N.V. Distilleries was engaged in the manufacture of Indian Made Foreign Liquor (IMFL), Country Liquor, PET bottles and un-denatured spirit. The dispute originated from intelligence received by the Directorate of Revenue Intelligence (DRI), Chandigarh Regional Unit concerning alleged violation of the conditions governing Advance Authorisations.
    • The Department alleged that the appellant had violated the condition contained in Notification No. 96/2009-Cus because, while using duty-free imported inputs under Advance Authorisations, it had also used domestically procured bottles, caps and labels under Rule 19(2) of the Central Excise Rules, 2002 in the exported IMFL.
    • According to the Department, exports manufactured using such domestically procured duty-free materials could not be counted towards discharge of the export obligation under the Advance Authorisations.

    Show Cause Notice Proposed Substantial Customs Duty Recovery

    • A Show Cause Notice dated 20 October 2016 proposed, among other things, recovery of β‚Ή1,93,62,179 in customs duty by invoking the bonds executed at the time of duty-free imports and Section 28(4) of the Customs Act, 1962, along with interest under Section 28AA.
    • A further customs duty demand of β‚Ή94,20,905 was proposed in respect of two Advance Authorisations on the allegation of failure to fulfil export obligations. The notice also proposed appropriation of amounts already deposited and penalties under Sections 114A and 114AA of the Customs Act, 1962.
    • The proposals in the Show Cause Notice were subsequently confirmed through Order-in-Original No. 14/2019 dated 30 August 2019, leading N.V. Distilleries to approach CESTAT.

    Appellant: Imported VMS and Domestic Packaging Were Different Materials

    • The appellant’s central argument was that the essence of the Advance Authorisation Scheme is that the imported input must be physically incorporated in the resultant export product.
    • In the present case, the appellant had imported Vatted Malt Scotch (VMS) under Advance Authorisation, which was incorporated into the IMFL subsequently exported.
    • However, the bottles, caps and labels were domestically procured under Annexure-45 and Rule 19(2) of the Central Excise Rules. Therefore, according to the appellant, there was no overlapping or double benefit because the imported material and the domestically procured materials were entirely different.
    • The appellant further argued that the Government’s export incentive framework is intended to neutralise domestic taxes and duties so that taxes are not exported. According to it, Advance Authorisation was availed for imported VMS, whereas Annexure-45 was utilised for domestically procured glass bottles, caps and labels, with the duty benefit being claimed only once in each case.
    • Reliance was placed upon the Punjab and Haryana High Court’s decision in R.P. International v. Union of India, 2017 (353) E.L.T. 307 (P&H).

    Revenue: Exemption Notification Must Be Strictly Construed

    1. The Revenue defended the adjudication order by contending that Condition (viii) of Notification No. 96/2009-Cus prohibited counting exports involving inputs sourced under Annexure-45 towards fulfilment of Advance Authorisation obligations.
    2. It alleged that the appellant had simultaneously used domestically sourced duty-free goods and imported duty-free material and had therefore breached the exemption conditions.
    3. The Department also relied upon the Supreme Court decisions in CCE, Chandigarh-I v. Mahaan Dairies, (2004) 11 SCC 798 and Commissioner of Customs (Import), Mumbai v. Dilip Kumar & Company, 2018 (361) E.L.T. 577 (S.C.) to argue that exemption notifications must be strictly interpreted and their conditions strictly complied with.

    CESTAT Examines Meaning of β€œMaterials”

    • The Tribunal identified the principal question as whether the importer had failed to fulfil its export obligations and violated Notification No. 96/2009-Cus, thereby attracting customs duty, interest and penalties under Sections 114A and 114AA.
    • CESTAT examined the Advance Authorisation framework and noted that the scheme permits duty-free import of inputs physically incorporated in the manufactured or resultant product that is required to be exported.

    Significantly, the Tribunal examined the definition of β€œmaterials” under the notification. It noted that the definition separately identifies:

    • raw materials, components, intermediates, consumables, catalysts and parts required for manufacture of the resultant product; and
    • packaging materials required for packing the resultant product.

    This statutory distinction became central to the outcome.

    Packaging Material Is Different From Manufacturing Input: CESTAT

    • CESTAT held that the notification itself differentiates between goods required for manufacture of the resultant product and goods merely used for packaging.
    • In this case, the raw material imported for manufacture of the resultant IMFL was VMS. Bottles, caps and labels, on the other hand, constituted packaging materials domestically procured under Annexure-45.
    • The Tribunal therefore held that the relevant condition of Notification No. 96/2009-Cus would apply to the imported material used in manufacturing the resultant product and that the packaging materials could not simply be equated with VMS.

    R.P. International Decision Relied Upon

    • CESTAT also relied on R.P. International v. Union of India to explain the distinction between the DFIA Scheme and the Advance Authorisation Scheme.
    • The Punjab and Haryana High Court had explained that while DFIA permits duty-free import of inputs β€œrequired for production of export product”, Advance Authorisation concerns inputs that are β€œphysically incorporated in the export product.”
    • Applying that distinction, CESTAT found that in the case of Advance Authorisation, the relevant imported input was the material physically incorporated into the resultant exported product.
    • The Tribunal consequently held that the packaging material had been wrongly placed at par with the imported VMS used in manufacturing IMFL. Since the packaging material was not physically incorporated in the IMFL itself, the exports were wrongly alleged to violate the Advance Authorisation conditions. The findings contained in the Order-in-Original were therefore liable to be set aside.

    DRI Jurisdiction Objection Rejected

    • The appellant also challenged the jurisdiction of DRI officers to initiate proceedings under Section 28 of the Customs Act.
    • CESTAT referred to the Supreme Court litigation concerning the competence of DRI officers to issue demand notices. It noted that although the earlier Supreme Court decision had held against DRI’s jurisdiction, the subsequent review judgment held that DRI officers, when appointed as customs officers and assigned the relevant functions of a β€œproper officer,” are competent to issue Show Cause Notices under Section 28.
    • The Tribunal therefore rejected N.V. Distilleries’ jurisdictional objection.
    • This aspect of the decision is important: the importer did not succeed on the DRI jurisdiction ground. Its appeal succeeded on the substantive merits of the Advance Authorisation dispute.

    CESTAT Sets Aside Order-in-Original and Allows Appeal

    Ultimately, CESTAT held that although the preliminary issue concerning DRI jurisdiction was decided against the appellant, the appellant succeeded on merits.

    The Tribunal accordingly set aside the Order-in-Original dated 30 August 2019 and allowed the appeal of N.V. Distilleries and Breweries Ltd.

    Significance for Advance Authorisation Holders

    The ruling is significant for exporters operating under the Advance Authorisation Scheme because it emphasises that the nature and role of each material must be examined before alleging violation of an exemption condition.

    The Tribunal’s reasoning distinguishes an imported input that is physically incorporated into the resultant export product from materials used for its packaging.

    The mere use of domestically procured packaging materials under another duty-relief mechanism cannot, on the reasoning adopted in this case, automatically justify treating those packaging materials at par with the imported manufacturing input. At the same time, the decision should not be read as permitting non-compliance with conditions attached to Advance Authorisations generally.

    The ruling turns on the wording of Notification No. 96/2009-Cus and the Tribunal’s finding that VMS and the domestically procured bottles, caps and labels occupied materially different roles in relation to the exported IMFL.

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: CESTAT Delhi

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  • Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

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

    Date: 15.09.2026

    Delhi High Court Acquits NDPS Accused Over Three-Month Delay in Sending Drug Sample for Testing; Raises Doubt Over Safe Custody

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has held that an unexplained delay in sending a seized narcotic sample for forensic examination can prove fatal to the prosecution where the evidence fails to establish that the sample remained in proper and safe custody during the intervening period.

    In Rishi Dev @ Onkar Singh v. State (Delhi Administration), CRL.A. No. 757 of 2000, the High Court set aside the appellant’s conviction under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and acquitted him after finding serious deficiencies in the prosecution’s handling and preservation of the seized sample. The judgment was delivered by Justice S. Muralidhar on 1 May 2008.

    The Court held that where there is doubt whether the sample ultimately tested by the forensic laboratory was the very sample recovered from the accused, the benefit of that doubt must necessarily go to the accused.

    Trial Court Had Sentenced Accused to 10 Years’ Rigorous Imprisonment

    • The appeal arose from a judgment dated 25 November 2000 passed by the Additional Sessions Judge, Delhi, convicting Rishi Dev in FIR No. 290/90 for allegedly possessing 300 grams of smack.
    • The trial court had sentenced him to 10 years’ rigorous imprisonment and imposed a fine of β‚Ή1 lakh, with a further six months’ rigorous imprisonment in default of payment.
    • According to the prosecution, police personnel were checking passers-by near Tejab Mill, Bhola Nath Nagar, Shahdara, when the appellant allegedly attempted to move away and subsequently ran on being asked to stop.
    • After he was apprehended, the police claimed to have recovered a packet containing brown-coloured powder from his clothing. The substance was allegedly weighed at the spot and found to be 300 grams, from which a 50-gram sample was separated for forensic testing. The laboratory report subsequently stated that the sample tested positive for smack.

    Accused Challenged Chain of Custody and Delay in Forensic Testing

    • Before the Delhi High Court, the appellant raised several objections to the prosecution case.
    • These included alleged non-compliance with Section 50 of the NDPS Act, absence of independent public witnesses, questions regarding the weighing of the contraband, handling of seals, the presence of the FIR number on documents allegedly prepared before registration of the FIR, and significant delay in sending the sample for forensic analysis.
    • A particularly serious objection concerned the delay between seizure and forensic examination.
    • The sample had been collected in December 1999, but the first attempt to send it to the forensic laboratory was made only on 1 March 2000. The appellant argued that there was no satisfactory explanation for what happened to the sample during this lengthy intervening period.

    Delhi HC Notes NCB’s 72-Hour Requirement

    • The High Court referred to Parminder Singh v. State of Haryana, in which the Punjab and Haryana High Court had considered the Narcotics Control Bureau instructions requiring sealed sample parcels to be deposited with the Chemical Examiner within 72 hours.
    • Justice Muralidhar described the requirement as salutary because tampering with a sample recovered from an accused can have fatal consequences for the prosecution case.
    • The Court stressed the need for strict compliance with safeguards concerning the preservation and prompt forwarding of samples.
    • The Court also referred to Matloob v. State (Delhi Administration) and the Delhi High Court Rules requiring articles intended for chemical examination to be forwarded without the least possible delay.

    Evidence Raised Serious Doubts About What Happened to Sample

    • After examining the prosecution witnesses, the High Court found considerable uncertainty regarding the handling of the seized material.
    • The Court observed that for more than two months no attempt was made to send the sample for chemical examination. The first attempt occurred on 1 March 2000 when the sample was taken to Chandigarh.
    • It was subsequently returned and redeposited in the malkhana on 3 March. Another entry indicated that the sample was eventually sent to the FSL at Malviya Nagar on 15 March 2000.
    • More importantly, the evidence indicated that the investigating officer had put the FIR number on the parcels and recovery memo at the police station, but no entry was made regarding removal of the case property from the malkhana for that purpose.
    • These circumstances assumed particular importance because the sample remained within the control of police authorities for a considerable period before forensic testing.

    Delay Alone Is Not Always Fatal

    • The Delhi High Court clarified an important legal distinction: mere delay in sending a narcotic sample for testing is not automatically fatal in every NDPS prosecution.
    • Referring to the Supreme Court decision in Valsala v. State of Kerala, the Court explained that a delayed sample can still be relied upon if the prosecution satisfactorily proves that the seized material remained in proper custody and proper form throughout the intervening period.
    • What is critical is the integrity of the chain linking the seized substance with the sample ultimately examined by the forensic laboratory.
    • The Court also referred to State of Gujarat v. Ismail U Haji Patel, where the Supreme Court emphasised that the decisive question is not simply delay but whether the prosecution establishes that the seized articles remained in proper custody and that the samples examined by the chemical analyst actually related to the seized articles.

    Prosecution Failed to Establish Safe Custody

    • Applying these principles, the High Court found that the prosecution evidence merely disclosed dates on which the sample entered or left the malkhana.
    • It did not satisfactorily explain the nearly three-month delay or establish what happened to the sample during the intervening period.
    • The Court therefore concluded that it was not satisfied that the sample remained in proper and safe custody or that the material eventually sent for forensic testing was necessarily the same sample recovered from the appellant.

    Trial Court’s β€˜Practical Approach’ Rejected

    • The trial court had sought to explain the forensic delay by referring generally to the heavy workload of laboratories and the possibility that laboratory officials might refuse to accept samples because of overcrowding.
    • The Delhi High Court expressly disagreed with that approach.
    • It held that the case record should contain written entries demonstrating that an attempt was made to send the sample for testing within the prescribed period. Strict compliance was important because a sample retained in a police malkhana under seals belonging to police officers remained under police control, giving rise to the possibility of tampering and resealing.
    • The Court further held that where the prosecution seeks to explain a delay on the ground that the forensic laboratory could not accept the sample, the record must demonstrate a genuine attempt to dispatch it promptly and its return for reasons beyond the prosecution’s control.

    Such a deficiency in the documentary record cannot subsequently be cured merely through oral evidence.

    Doubt Over Sample Integrity Must Benefit Accused

    • The High Court emphasised that the reliability of a forensic report ultimately depends upon proof that the sample examined was actually the sample recovered from the accused.
    • Where safe custody itself becomes doubtful, the evidentiary value of the laboratory result is correspondingly undermined.

    The Court held:

    β€œIf there is doubt as to the safe custody of the sample that is recovered from the accused, then the benefit of such doubt, must obviously enure to the accused.”

    Three-Month Delay Held Fatal; Accused Acquitted

    • On the facts of the case, the Delhi High Court found that the prosecution had β€œfailed miserably” to satisfy the legal requirements concerning preservation and safe custody of the sample.
    • The nearly three-month delay was held fatal because the prosecution failed to establish that the seized sample had been properly preserved throughout that period and that the sample eventually tested was the same material originally seized.
    • Since the appeal succeeded on this ground alone, the High Court found it unnecessary to examine the appellant’s remaining objections.
    • Accordingly, the Court set aside the conviction dated 25 November 2000 and sentence dated 27 November 2000, acquitted Rishi Dev of the offence under Section 21 of the NDPS Act and directed that he be released forthwith unless required in another case.

    Significance of the Judgment

    The judgment is an important authority on the chain of custody and forensic integrity of seized narcotic samples in NDPS prosecutions.

    It does not establish that every delay beyond 72 hours automatically invalidates an NDPS prosecution. Rather, its central principle is that where there is substantial delay, the prosecution must be able to demonstrate through reliable evidence and contemporaneous records that the seized sample was properly sealed, preserved and safely kept and that the sample ultimately tested was the same sample recovered from the accused.

    In prosecutions carrying severe penal consequences, the forensic chain cannot rest upon assumptions. If an unexplained gap creates reasonable doubt about the identity or integrity of the sample, that doubt may go to the root of the prosecution case.

    Connected Matter

    Delhi High Court Grants Bail Under NDPS Act Over 51-Day Delay in Sampling

    Aadrikaa Legal Services is a trusted legal and regulatory support partner providing end-to-end legal solutions to law firms, corporate organizations, and businesses across India. We specialize in paralegal services, litigation support, tax and regulatory matters, delivering reliable, efficient, and result-oriented legal assistance.

    Our services include comprehensive paralegal support, drafting and documentation, legal research, case management, litigation handling, and representation support across various judicial and quasi-judicial forums. We also assist in direct and indirect tax matters, customs, GST, corporate regulatory compliance, and legal advisory.

    Source: Delhi High Court

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  • Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

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

    Date: 15.09.2026

    Delhi HC Cancels Deceptively Similar β€˜ROCKPAPA’ Trademark; Holds Prior User Has Superior Rights Over Registered Proprietor

    This Short Article has been prepared & written by Advocate Ravi Shekhar Jha-Delhi High Court, New Delhi. The views expressed are based on his interpretation of the law. He can be reached at his email id intelconsul@gmail.com .  

    The Delhi High Court has ordered removal of a deceptively similar β€˜ROCKPAPA’ device mark from the Trade Marks Register, holding that the rights of a prior user can prevail over those of a subsequent user even where the latter has obtained trademark registration.

    In Kia Wang v. Registrar of Trade Marks & Anr., C.O. (COMM.IPD-TM) 2/2021, Justice Jyoti Singh allowed a rectification petition filed by Kia Wang and directed the Registrar of Trade Marks to remove the impugned device mark registered under Trademark No. 4400360 in Class 09. The judgment was delivered on 15 September 2023.

    The Court found the rival marks strikingly similar and concluded that the respondent’s adoption was tainted by bad faith and dishonest intention, aimed at encashing upon the goodwill associated with the petitioner’s mark.

    Dispute Over β€˜ROCKPAPA’ Device Mark

    • Kia Wang claimed that he and his wife founded the ROCKPAPA brand in 2014, primarily for products aimed at children, including headphones, pencil boxes and school bags, as well as audio-related products such as headphones, earphones, loudspeakers and portable media players.
    • According to the petition, the brand operated internationally, including in Australia, Canada, Europe, the United States and India. The domain name for ROCKPAPA was registered on 9 April 2014, and the products were also marketed through e-commerce platforms.
    • The petitioner also relied upon trademark registrations obtained abroad, including in the United Kingdom, Australia, United States, Japan and Canada.

    Respondent Obtained Registration in India in 2020

    • Respondent No. 2, Sachin Garg, proprietor of Pooja Creations, applied for registration of the impugned device mark on 7 January 2020. It was subsequently registered in Class 09 for mobile phones and accessories, including chargers, adaptors, batteries, screen protectors, power banks, mobile covers, memory cards, card readers and handsfree devices.
    • Kia Wang claimed that he discovered the registration only in June 2021 and thereafter approached the Delhi High Court seeking rectification of the Register under Sections 47, 57 and 125 of the Trade Marks Act, 1999.
    • Respondent No. 2 did not appear despite service and was eventually proceeded against ex parte. The Registrar did not file a counter-affidavit, though written submissions were placed before the Court.

    Prior User Rights Can Override Subsequent Registration

    • One of the central issues before the Court was the petitioner’s claim of being the prior adopter and prior user of the ROCKPAPA mark.
    • The Court relied upon the Supreme Court decisions in Milmet Oftho Industries v. Allergan Inc., (2004) 12 SCC 624; S. Syed Mohideen v. P. Sulochana Bai, (2016) 2 SCC 683; and Neon Laboratories Ltd. v. Medical Technologies Ltd., (2016) 2 SCC 672.
    • Referring to these authorities, the High Court reiterated that the β€œfirst in the market” test assumes significance where competing trademarks are similar.

    It observed that the β€œfirst user” rule is a seminal feature of trademark law and held that:

    A prior user’s rights will override those of a subsequent user even though the subsequent user’s trademark may have obtained registration.

    On the evidence before it, the Court accepted Kia Wang’s claim of use since 2014. His prior use, overseas registrations and continuous use of the mark established that the trademark had become distinctive of his goods and associated with him.

    Court Finds Rival Marks Strikingly Similar

    • The judgment contains a side-by-side visual comparison of the two device marks on page 15. Both use a substantially similar stylised face/hair/moustache device together with the word β€œRockpapa”.
    • The Court observed that the similarity between the two marks was β€œwrit large on a bare perusal.”
    • It held that the similarity of the marks, coupled with identity of the competing goods, created a likelihood of consumer confusion and could adversely affect the petitioner’s reputation and goodwill.

    Bad-Faith Trademark Registration Can Be Cancelled

    • The Court then examined Section 11(10)(ii) of the Trade Marks Act, 1999, which requires the Registrar to take into consideration the bad faith involved either on the part of the applicant or opponent while dealing with trademark registration.
    • Relying particularly upon BPI Sports LLC v. Saurabh Gulati, 2023 SCC OnLine Del 2424, the Court explained that β€œbad faith” essentially involves the absence of honest intention and may include dishonest commercial conduct, fraud, deception or an attempt to appropriate another party’s trademark.
    • Applying this principle, the Court found β€œlittle doubt” that Respondent No. 2 had acted with dishonest intention in adopting a similar mark for identical goods, including copying important visual characteristics of the petitioner’s device mark.
    • The Court concluded that the intention was to encash upon the goodwill of the petitioner’s trademark. It also noted that Respondent No. 2 had chosen not to contest the proceedings or rebut the petitioner’s claim of prior use.

    Maintaining β€˜Purity of the Register’ Is a Matter of Public Interest

    • The High Court went beyond the private dispute between the parties and emphasised the broader public-interest function of trademark rectification.
    • It referred to Khoday Distilleries Ltd. v. Scotch Whisky Association, (2008) 10 SCC 723, where the Supreme Court stressed the importance of maintaining the purity of the Trade Marks Register and considering the likelihood of deception or confusion.
    • The Court also relied on Hardie Trading Ltd. v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92, while considering who qualifies as a β€œperson aggrieved” entitled to seek rectification.
    • The Court held that Kia Wang qualified as a β€œperson aggrieved” because the respondent’s registration operated as a restraint upon legal rights flowing from the petitioner’s prior, long, continuous and uninterrupted use of the mark.

    Important Finding on Section 11(1) and Well-Known Trademark Claim

    • An important nuance in the judgment is that the Court did not accept every ground advanced by the petitioner.
    • Kia Wang had argued that the impugned registration violated Sections 11(1) and 11(2) because ROCKPAPA was an earlier and well-known trademark.
    • The Court rejected this particular argument. It observed that, for purposes of Section 11, the petitioner’s mark did not qualify as an β€œearlier trade mark” because it was neither registered in India nor covered by the specified categories of Indian/international/convention applications. The Court also found that the material and pleadings were insufficient to classify ROCKPAPA as a well-known trademark under Section 2(1)(zg) read with Section 11(6).
    • This makes the judgment particularly significant: the petition succeeded principally on prior-user rights, deceptive similarity, bad-faith adoption and the need to maintain purity of the Registerβ€”not because ROCKPAPA was judicially declared a well-known trademark.

    Delhi High Court Orders Trademark Removed Within Four Weeks

    • Ultimately, the Court allowed the rectification petition and directed the Registrar of Trade Marks to remove Trademark No. 4400360, registered on 7 January 2020 in Class 09, from the Register.
    • The Registrar was directed to complete the rectification within four weeks from receipt of the judgment.

    Key Legal Principle

    The judgment reinforces three significant principles of Indian trademark law: prior user rights may prevail over subsequent registration; bad-faith adoption of a deceptively similar mark can justify cancellation; and rectification jurisdiction serves the wider public interest of maintaining the purity of the Trade Marks Register.

    At the same time, the decision demonstrates that foreign registrations or international popularity alone do not automatically make a mark an β€œearlier trade mark” or a β€œwell-known trademark” in India for the purposes of Section 11.

    Connected Matter

    Delhi High Court: Prior Formal Declaration Not Required to Claim Protection as a Well-Known Trademark Under Section 11(2)

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    Source: Delhi High Court

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