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State of Bombay Vs. Geoffrey Manners and Co. (No. 1) and ors. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights;Criminal
CourtMumbai High Court
Decided On
Case NumberCri. Appeal No. 116 of 1950
Judge
Reported inAIR1951Bom45; (1951)53BOMLR112; ILR1951Bom518
ActsMerchandise Marks Act, 1889 - Sections 2, 2(3), 6 and 7; Indian Penal Code (IPC), 1860 - Sections 482, 486 and 487
AppellantState of Bombay
RespondentGeoffrey Manners and Co. (No. 1) and ors.
Appellant AdvocateC.K. Dapthary, Adv. General and ;H.M. Choksi, Govt. Pleader and ;N.K. Petigara, Public Prosecutor
Respondent AdvocateM.P. Amin, ;Amarchand and ;Mangaldas, Advs. for Accused (1, 2 and 5)
DispositionAppeal allowed
Excerpt:
.....such product marked with false trade mark.; the accused were selling a product known as 'anne french cleansing milk' which was manufactured by them in india and sold in bottles which bore a label with the inscription, 'anne french cleasning milk. apply with cotton wool and remove with tissues. 4, old bond street, london, w. 1' with each bottle was enclosed a brochure which stated, 'anne french cleansing milk, price 3s. 6d. and 1s. 6d. a bottle, can be obtained from chemists, stores or direct from anne french, 4 old bond street, london, w. 1.' on the question whether the accused had committed offences under sections 6 and 7 of the indian merchandise marks act, 1889, and sections 482, 486 and 487 of the indian penal code, 1860 :-; that there was a false trade description applied..........received from the rangoon customs authorities with respect to a product which was known as anne french cleansing milk. dr. dhume purchased a bottle of this product from one abbasbhai akbarally. the bottle bore a green label with the following inscriptions:'anne french cleansing milk apply with cotton wool & remove with tissues. 4, old bond street, london, w. 1.' at the time of the purchase, dr. dhume inquired from abbasbhai as to whether it was art english product as stated on the face of the label. abbasbhai then wrote on the reverse of the invoice the following guarantee ;'guaranteed english make. made in england.a. f. abbas & co. agent's name : geoffrey manners & co. ballard estate.' it is the prosecution case that this product was not manufactured at 4, old bond. street,.....
Judgment:

Rajadhyaksha, J.

1. This is an appeal by the State of Bombay against an order of acquittal passed by the Chief Presidency Mag. acquitting the five accused who were charged with having committed offences under Sections 6 & 7, Indian Merchandise Marks Act, IV [4] of 1889 & under Sections 482, 486 & 497, I. P. C.

2. The prosecution case in brief was this There were originally five accused before the trial Ct. Accused 1 was a company going by the name of Geoffrey Manners & Co. having its office at Ballard Estate, Fort, Bombay. The other four accused were the directors of that company. Dr. Dhume, who is the Deputy Director of Industries, Bombay, was put on an inquiry on information received from the Rangoon Customs Authorities with respect to a product which was known as Anne French Cleansing Milk. Dr. Dhume purchased a bottle of this product from one Abbasbhai Akbarally. The bottle bore a green label with the following inscriptions:

'ANNE FRENCH Cleansing Milk

Apply with cotton wool & remove with tissues.

4, Old Bond Street, London, W. 1.'

At the time of the purchase, Dr. Dhume inquired from Abbasbhai as to whether it was art English product as stated on the face of the label. Abbasbhai then wrote on the reverse of the invoice the following guarantee ;

'Guaranteed English Make. Made in England.A. F. Abbas & Co.

Agent's Name : Geoffrey Manners & Co. Ballard Estate.'

It is the prosecution case that this product was not manufactured at 4, Old Bond. Street, London W. 1, as stated on the label, but that it was of Indian manufacture. With the bottle was enclosed a brochure which contained the following statement:

'Anne French Cleansing Milk, price 3s. 6d. & 1s. 6d. a bottle can be obtained from Chemists, Stores or direct from ANNE FRENCH, 4, Old Bond Street, London, W. 1.'

The prosecution, therefore, contend that by reason of the particulars on the label, viz., '4, Old Bond Street, London,' & the statement made in the brochure the accused had committed offences of applying a false trade description & of selling goods to which a falsa-trade description had been applied. It was, therefore, alleged that the accused had committed offences under Sections 6 and 7, Indian Merchandise Marks Act, 1889. It was also alleged that the accused were guilty also under Sections 482, 486 & 497, I. P. C. for having sold goods marked with a false trade mark & for making a false mark upon the receptacle containing goods.

3. The prosecution case was supported by the evidence of Dr. Dhume himself & by the evidence of Abbasbhai who had sold the articles to Dr. Dhume. From the evidence it is clear, & the point was admitted before the lower Court & has not been disputed before us, that the goods were in fact manufactured in India. In an appln. which was made by the accused to the Director of Industries, it has been clearlyadmitted that

'the Anne French Cleansing Milk was manufactured in their factory at Cadell Road, Mahim from raw materials & that the bottle label & outer packings were also being manufactured in India, in other words the product as a whole was of Indian Manufacture.'

This was in pursuance of their appln. for being exempted from customs duties by reason of the fact that the articles were of Indian manufacture, & for this purpose a certificate was sought to be obtained from the Director of Industries. The appln. is Ex. A in this case. It is, therefore, perfectly clear that Anne French Cleansing Milk together with the bottle & the packing materials has in fact been manufactured in India. The question, therefore, arises as to what offence, if any, the accused have committed. The accused in their statements before thetrial Ct. merely stated that they denied the charges & had nothing further to add. No evidence was led on their behalf. But in the course of the arguments, a suggestion was made by the counsel appearing on behalf of the accused that though the article was manufactured in India, the formula therefor was obtained from the Anne French Laboratories which are at 4, Old Bond Street, London, W. 1. It was also urged on behalf of the accused that in the returns which the accused had submitted to Govt. it had been made clear that the articles had been manufactured in India. The learned Mag., on the score of these arguments, held that there was no dishonest intention on the part of the accused & that they had in fact furnished to Govt. full & complete particulars of the place of origin & the manufacture of the Anne French Cleansing Milk. He, therefore, held that the conduct of the accused in furnishing particulars as frankly as they had done & their conduct throughout clearly exonerated them from any guilt. He accordingly accepted the defence of the accused & acquitted them of the charges which had been brought against them. It is against that order of acquittal that the State of Bombay has come in appeal. Notices of this appeal have not been served on accused 3 & 4 and the appeal has been heard only as against accused 1, 2 & 5.

4. It seems to us that on the admitted fact that the goods were manufactured in India, the accused are clearly guilty of the offences with which they were charged. Sub-section (2) of Section 2, Merchandise Marks Act, describes in Clause (b) thereof that a 'trade description' means any description, statement or other indication, direct or indirect, as to the place or country in which, any goods were made or produced. Sub-section (3) of that section defines 'false trade description' as meaning a trade description which is untrue in a material respect as regards the goods to which it is applied. It is not necessary that the application of the trade description should be to the goods themselves. But under Section 5, Merchandise Marks Act :

'A person shall be deemed to apply a trade description to goods who-

(a) applies it to the goods themselves, or ...

(c) places, encloses or annexes any goods which are sold, or are exposed or had in possession for sale or any purpose of trade or manufacture, in, with or to any covering, label, reel or other thing to which a trade description has been applied.'

If, therefore, the statements which have been made on the label & in the brochure are in fact false trade descriptions, then the accused would be guilty under Sections 6 & 7, Merchandise Marks Apt, unless they can prove for the purposes of Section 6 that they had acted withoutintent to defraud or under Section 7 they had taken all reasonable precautions against committing an offence against this section, & that on demand made by or on behalf of the prosecutor had given all the information in his power with respect to the persons from whom they had obtained such goods, or otherwise they had aoted innocently. It was argued on behalf of the accused by Mr. Amin that the inscription which appeared on the label was not a false trade description within the meaning of g. 2,, Merchandise Marks Act, & that therefore the penal provisions of Sections 6 & 7 could not be applied to the accused. We are unable to accept-this contention. This inscription on the label bears the words 4, Old Bond Street, London W.1.' We can conceive of no reason why these words should have been included in the label except for the purpose of making it appear to the public, who purchased that article, that the goods were in fact manufactured at 4, Old Bond Street, London W.1. The brochure makes; the position even clearer. The concluding words of the brochure which I have quoted above state that 'the goods could be had direct from Anne French,' the address of which was given as 4, Old Bond Street, London W.1. This is a clear suggestion that the articles were in fact manufactured originally by the firm of Anna Frenoh in 4, Old Bond Street, London W.1, from whom they could be purchased directly but that they could also be had from the various chemists & stores. It would be noticed that the prices which have been quoted there for the different sizes of bottles are 3s. 6d. & 1s. 6d. This quotation of the prices in English currency could only induce one to believe that the articles were manufactured in England, It would be noticed that Abbasbhai who sold the article to Dr. Dhume was prepared to give a guarantee that the articles were in fact of English make, i.e., made in England. This indicates how even a retail businessman was taken in by the inscription on the label of the bottle & by the brochure enclosed therewith. It was argued by Mr. Amin on behalf of the accused that the goods, although manufactured in India, were according to the formula which had been obtained from Anne French of 4, Old Bond Street, London, W.1. There is no evidence to support this contention as no evidence to that effect was led by the accused. Even this statement does not appear in the statement of the accused recorded under Section 842, Cri. P. C. But even assuming that the contention of the learned counsel is correct that the goods were manufactured in pursuance of a formula which was obtained under a contract from Anne French of 4, Old Bond Street, the inscription of the label& the brothure does not suggest that the goodswere manufactured in India in accordance with that formula. Several goods are marketed in India which are manufactured in India in accordance with the formula obtained from foreign countries. But m such a case it is madeclear that the manufacture m India was in accordance with such formula. Here, the inscription on the bottle & the statement made in the brochure give no indication whatever that the goods were manufactured in India in accordance with the foreign formula. On the other hand the brochure seems clearly to suggest that the goods could be obtained from Anne French, 4, Old Bond Street, London, W.1, who presumably were to be regarded as the manufacturing firm. It is quite clear as to why the accused wanted it to be believed that the article was of English manufacture. The cleansing milk is a luxury to let article, & such articles would have a greater marketable value if they were manufactured in some European country, preferably France or England. In order therefore to make it appear that the goods were manufactured elsewhere than in India, i.e. they were manufactured in England, that the inscription on the bottle bears the words '4, Old Bond Street, London W.1.' The brochure makes a clear suggestion that the article could be had direct from the manufacturers Anne French of 4, Old Bond Street, but that it could be had from any of the chemists & other stores. We have, therefore, no doubt that the trade description does purport to indicate that the goods were manufactured in England. This view, taken with the fact that the goods were manufactured in India, leave no doubt that there was a false trade description applied to the goods & enclosures sold with the goods. Accordingly, the accused would be guilty under Section 6 & Section 7, Merchandise Marks Act of 1889. It would be then for the accused to establish that they acted without intent to defraud or that they had acted innocently in this manner. It was contended by Mr. Amin that the accused had in submitting their returns to Govt. in accordance with the requirements of the Industrial Statistics Act of 1942, made it clear that the goods have in fact been manufactured in India. The returns are for the years 1946, 1947 & 1948. But even these returns do not make it clear that they were with respect to Anne French Cleansing Milk. One refers to 'cream cleansing milk.' In the second there is only a reference to 'cream' & in the third, there is no reference at all. It is, therefore, not altogether clear that even in the returns to the authorities they stated that Anna French Cleansing Milkwas manufactured by them at their factory inCadell Road. But even assuming that they had given full description of the manufacture of this Anne French Cleansing Milk m their returns that would in no way exonerate the accused. The return was made in a confidential document supplied to Govt. What we are concerned with is the representation made by the accused to the public who were the purchasers of those articles & to them the representation is clear that the goods were manufactured in England. Accordingly, we are of the opinion that the accused are guilty under Sections 6 & 7, Merchandise Marks Act.

5. They would also be guilty under Sections 482, 486 & 497, I. P. C. The accused have undoubtedly used a false trade mark, inasmuch as they have marked the goods in a manner reasonably calculated to cause it to be believed that the goods contained in the receptacle are the manufactures of persons whose manufacturer they are not. Under Section 482, whoever uses any false trade mark ... is guilty of an off nce Unless he pr ves that he acted without intent to defraud. Under Section 486, whoever has in possession for sale any goods with a counterfeit trade mark impressed upon the same, is guilty of an offence unless he proves that having taken 11 reasonable precaution against committing an offence under that section, he has at the time of the offence no reason to suspect the genuinen Ss of the mark & that on demand made c n behalf of the prosecutor he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or that he had otherwise acted innocently. It would be noticed that Section 486 is pari materia with Section 7, Indian Merchandise Marks Act. Section 487 punishes a person who makes any false marks upon any package or other receptacle containing goods calculated to cause any person to believe that such receptacle contains goods which it does not contain or that the goods contained in such receptacle are of a nature or quality different from the real nature or quality thereof unless he proves that he acted without intent to defraud. In view of the fact that this goods in this particular case were in fact manufactured in India, & the fact that the inscription on the bottle & the details contained in the brochure did cause it to be believed that the goods were manufactured not in India but by Anne French of 4, Old Bond Street, London W 1, we think that the accused are guilty under Sections 482, 486 & 497, I P. C. We must, therefore, set aside the order of acquittal passed by the learned Chief Presidency Mag & convict the accused for the offences with which they have been charged.

6. So far as the question of sentence is concerned, it bad been urged by Mr. Amin that this was merely a technical offence, & that theends of justice would be met if only a fine were to be imposed, if the Ct. was not willing to accept an apology tendered on behalf of the accused. The learned Advocate General, on the other hand, pressed for a substantive sentence of imprisonment being passed. We are inclined to take a more serious view of the offence. We do not think it is only a technical offence. It is, in our opinion, a deliberate deception practised upon the public. It is true that in this particular case the offence refers to a Luxury toilet article. But we do not know how long this process has been going on & how long the public is being deceived in this manner. Such offences are not of infrequent occurrence, although, we understand, this is the first case which has come to the notice of this Ct. If offences of this kind were committed in connection with more vital articles such as drugs, consequences might well be serious. When offences of this type come to notice, we think it is our duty to impose a deterrent punishment. Accordingly, we sentence accused 2 & 5 to undergo rigorous imprisonment for one month & pay a fine of Rs. 200 under Section 6, Merchandise Marks Act, & to undergo rigorous imprisonment for three months & to pay a fine of Rs. 1,000 under Section 486, I. P. C. We do notpropose to pass separate sentences in respect ofoffences under Section 7, Merchandise Marks Act, &Sections; 482 & 487, I. P. C., in view of Section 71, I. P. C. The substantive sentences should run concurrently. In default of payment of fine, under Section 6, Merchandise Marks Act, accused 2 & 6 should undergo rigorous imprisonment for a further period of 15 days & in default of payment of fine under Section 486, I. P. C., to undergo rigorous imprisonment for a further period oftwo months.

7. Warrant of arrest to issue, & the accused to undergo the sentences passed upon them.

8. So far as accused 1 is concerned, we impose a fine of Rs. 200 under Section 6, Merchandise Marks Act & a fine of Rs. 1,000 under Section 486, I. P. C.

9. The accused to pay the costs of the prosecution both in this Ct. & in the lower Court.

10. Appeals against accused 3 & 4 to be kept pending.


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