1. This is an application Under Section 482 of the Cr.PC The petitioners are being tried in the court of the Addl. Chief Metropolitan Magistrates, 32nd Court, Esplanade, Bombay. The offences are in relation to the Trade and Merchandise Marks Act 1958.
2. The articles manufactured are electrical goods. So far as the manufacture of such articles is concerned, respondent No. 2 who has prosecuted the petitioners has no objection to the manufacture as such. The whole objection is to the use of certain trade mark. They are electrical goods like of which are manufactured by many persons in this country. The petitioners are also claiming that right to use the trade mark.
3. In the criminal court the electrical goods were attached after the search was taken by the Police Officer. They are estimated at Rs. 1,00,000/- by respondent No. 2 but the petitioners say that they are worth Rs. 1,54,000/-. The petitioners applied to the Magistrate for releasing the goods for the purpose of being exported to Nigeria. That application was opposed and has been rejected by the Magistrate by his order dated July 15, 1S76. Being dissatisfied by that order, the petitioners who are accused have filed this application.
4. Very briefly stated the petitioners' say is that they are getting manufactured and exporting these goods for the past several years under the same trade mark. They have secured a contract of exporting to Nigeria and the goods lying in attachment with the Magistrate form part of the goods which are going to be exported to Nigeria. Ships are not readily available for sending the goods to Nigeria. However, one such steamer is likely to be available very shortly, and hence they moved this Court by an application for releasing those goods in their favour on such terms and conditions as the Court may decide. The petitioners have volunteered to furnish a bond in the amount of Rs. 1,54,000/- which is the market value of the goods, according to them.
5. This petition is opposed by respondent No. 2 who is the original complainant before the Magistrate. Respondent No. 1 is the State of Maharashtra who concedes that the goods may be allowed to be exported after obtaining a bond from the petitioners.
6. Two points really arise for our consideration. Shri Porus Mehta, learned counsel for respondent No. 2, has technical objection to the entertaining of the petition itself. According to him, the order of custody of the goods pending the trial is interlocutory order and against such an order the New Code expressly denies any right of revision application. He also argues that where the legislature denies a particular right to a particular litigant under the provisions of the Code the party should not be allowed to circumvent those provisions by resorting to inherent powers Under Section 482. This is the principal technical objection. On the merits the objection is that the goods are a subject-matter of a criminal trial. If the trial ends in a conviction the goods are liable to be forfeited Under Section 85 of the Trade and Merchandise Marks Act 1958.
7. On both these points we do not see any merit and we are inclined to allow this application. It has to be remembered that all procedural laws are made for the purpose of bringing about the main result of doing justice between the parties and also justice to the cause. When we consider this case primarily on the merits, we find that a mere statement of merits will show how no technical objection needs to be allowed to prevail in this case but an order should be made in favour of the petitioners.
8. Here are goods which are common articles in the market. Such goods are being manufactured daily in this country and the whole dispute relates to the use of certain trade mark. For proving whether such trade mark is used, no special evidence seems to be necessary because the accused persons are admitting the use of the trade mark themselves. Besides filing this criminal application respondent No. 2 has also resorted to a civil remedy by filing suit No. 779 of 1976 on the Original Side of this Court. In that proceeding a Notice of Motion, being No. 637 of 1976, was taken out and after hearing the parties, this Court has passed an order on its Original Side by which no order is passed on Motion taken out by the plaintiffs therein (respondent No. 2 here) except that on the defendants (present petitioners here) undertaking to the High Court to maintain accounts in respect of sales and to deposit such statements of sales in a sealed cover with the Prothonotary and Senior Master goods are permitted to be exported on the disputed Trade Mark. Present respondent No. 2 has been given liberty to take inspection of such statements deposited in this Court. A general permission seems to have been given to export goods with the trade mark but for all such exports an account has to be properly maintained And the same has to be submitted to this Court. That provision has obviously been made for the purpose of ascertaining the quantum of damages that may be award-able to the plaintiff in case the suit is allowed.
9. Here are therefore two parties who are pitted against each other in two different cases as complainant and accused, and plaintiff and defendant. The subject-matter is the use of trade mark and the export of certain electrical goods. With the same-subject-matter in a civil dispute, export is permitted with the same trade mark only on the condition that accounts may be maintained to ascertain the damages payable to the plaintiff. In the present matter we think that retention of goods is not at all necessary for the use or misuse of the trace mark. There is no question of identifying the goods. The detention is necessary only for the purpose of confiscation and forfeiture of the goods, if at all Under Sections 84 and 85 of the Trade and Merchandise Marks Act 1958.
10. It is true that it is primarily for the criminal Court to decide whether the goods should be forfeited. The order of forfeited is obviously one in favour of the State Government which is the principal prosecuting agency who would benefit from that order. Before us a concession is made on behalf of the State by the learned Public Prosecutor that the goods may be released as they will earn foreign exchange for the country and even if an order of forfeiture were to be ultimately passed the Government Will be satisfied with the recovery of the market value of those goods from the present petitioners. What is therefore pleaded is that goods may be released provided bond for the adequate market value is obtained from them.
11. The above narration of facts themselves show that this is not a case which would technically fall under the provisions of Section 451 Cr.PC as the goods are obviously not perishable. In fact the facts of this case are so peculiar that this case is taken out of the routine matters and it is a special type of case by itself. A special case requires an appropriate application of mind for passing appropriate orders in the interest of justice. We do not therefore see any charm in merely detaining the goods except to satisfy the animus of respondent No. 2. We do not think that the court can enter the arena in such a manner on behalf of either party. The larger interest of this case lies in taking a bond and releasing the goods so that when conviction is obtained appropriate orders could be passed. If there is no conviction and no decree, the detention shall be bad and the earning of the foreign exchange by the State would be unnecessarily jeopardised.
12. Shri Mehta for respondent No. 2 wants us particularly to note that his client will have no objection to the goods being delivered to the petitioners and exported, provided the trade mark is re-> moved from those goods. However, the petitioners state that there is no such condition so far as the export permitted by the original side of this High Court if' concerned, and their contract with the Nigeria party is on the basis of the present trade mark. In the circumstances we do not see how we can direct the petitioners at this stage to remove the trade mark and export the goods, as the use of the trade mark is the main bone of contention between the parties.
13. We therefore allow this petition and direct that the goods attached be delivered to the petitioners on their executing a bond in the amount of Ks. 1,60,000/- to the satisfaction of the Magistrate.
14. Accordingly, rule is made absolute en condition that bond in the sum of Rs. 1,60,000/- is obtained from the petitioners to the satisfaction of the Magistrate before the goods are allowed to be exported.
15. Shri Mehta at this stage applies for leave to appeal to the Supreme Court, which is refused. In the peculiar circumstances of the case discussed above, we refuse the application of Shri Mehta for stay of the operation of this order.