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C.N. Brahmiah and ors. Vs. B. Narayanaswamy - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights;Criminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petn. No. 19 of 1952-53
Judge
Reported inAIR1953Kant110; AIR1953Mys110
ActsTrade Marks Act, 1940 - Sections 68; Retroceded Area (Application of Laws) Act, 1948; Mysore Trade Marks (Amendment) Act, 1944 - Sections 68; General Clauses Act, 1897 - Sections 5; Mysore Explosives Act; Silk Control Order - Sections 3-A
AppellantC.N. Brahmiah and ors.
RespondentB. Narayanaswamy
Appellant AdvocateV. Krishnamurthy, Adv.
Respondent AdvocateS.K. Venkatarangaiengar, Adv.
Excerpt:
.....look into the revised return filed by the assessee and scrutinize the same and thereafter to pass an order on merits in accordance with law-question of law answered against the revenue. - speaking generally a notification that brings any provision of an act must be deemed to become a part of the law itself and in that sense after the issue of the notification, the provision of the law, contingent upon the issue of notification, will become perfect and enforceable and it was this integrated act that was made applicable to the retracted area on and from the appointed day. 7. it was next argued that the act complained of was not an offence before 15-8-1948, and it could not become an offence by the introduction of the act into the retracted area;.....not so registered, and sentenced to pay a fine of rs. 10/- each, by the first class magistrate, civil area, bangalore.2. a concern run by the petitioners under the name and style of 'raja soap factory', manufacturing washing soaps in mysore city put up goods in the market for sale. the complainant indented in august 1950 for the supply of soaps and found on the packages supplied trade labels of the pattern of ex. p-3 displayed thus :'raja soap factorymysoreregisteredtrade 303 markregistered trade mark' 303 303 the goods with such representation areproved to have been delivered at the addressof the complainant in the civil area on orabout 4-9-1950. the case for the prosecutionis that the representation of the said trademark as registered is false and unauthorisedand the petitioners by.....
Judgment:

Balakrishnaiya, J.

1. The petitioners are convicted under Section 68, the Mysore TradeMarks Act, 1944 for having falsely published a Trade Mark as 'registered' when it was not so registered, and sentenced to pay a fine of Rs. 10/- each, by the First Class Magistrate, Civil Area, Bangalore.

2. A concern run by the petitioners under the name and style of 'Raja Soap Factory', manufacturing washing soaps in Mysore City put up goods in the market for sale. The complainant indented in August 1950 for the supply of soaps and found on the packages supplied trade labels of the pattern of Ex. P-3 displayed thus :

'Raja Soap Factory

Mysore

Registered

Trade 303 Mark

Registered Trade Mark' 303 303

The goods with such representation areproved to have been delivered at the addressof the complainant in the Civil Area on orabout 4-9-1950. The case for the prosecutionis that the representation of the said TradeMark as registered is false and unauthorisedand the petitioners by such publication havemade themselves liable for punishment underSection 63, Trade Marks Act. It is 'admitted that theTrade Mark used is not registered as claimed.

3. It is contended by Mr. V. Krishna Murthy for the petitioners that they are not liable to be convicted under the Trade Marks Act of 1944 as Section 68 of the said Act cannot be said to have been in force in the Civil Area on the date of the offence as the operation of the said section could only commence by a notification issued not less than one year after the commencement of the Act in a particular area. There is no force in this contention.

4. The Trade Marks Act, 1944 (hereinafter, referred to as the 'ACT') which extends to the whole of Mysore received the assent of His Highness the Maharaja on 31-7-1944; some portions of the said Act came into force immediately; it was provided in Section 68 of that Act that it would be 'applied from such date, not being earlier than one year from the commencement of the Act as the Government may by notification in the Official Gazette appoint in that behalf. In pursuance of the said requirement, a notification was duly published in the Official Gazette, dated 13-5-194 appointing 1-7-1948, to be the date of its enforcement. The Act was thus brought into force in its entirety on and from 1-7-1948 in the whole State of Mysore and it is not denied that the petitioners would become liable for false representation in Mysore City, if prosecuted there.

5. The question that falls for determination is whether the act of publication by the petitioners on the relevant date would constitute an offence in the Civil Area, which was retroceded to Mysore in August 1948. The laws in force in Mysore were applied to the Civil Area by the Retroceded Area (Application of Laws) Act of 1948 (hereinafter termed as the 'Extending Act') under which 15-8-1948 was appointed as the date from which the said laws would become operative in the Retroceded Area. The 'Extending Act' also declared that all the laws in force in the Retroceded Area immediately before the appointed day would cease to have force or validity on and subsequent to that day. The nature and the extent of operation of the laws applied depend essentially, on the exceptions, modifications and restriction prescribed by the 'Extending Act.' There are also provisions in the 'Extending Act' relating to the savings of some laws and modifications of others and these are set out in the several schedules appended to the 'Extending Act.' It is noteworthy that no exception is however made in the case of the Trade Marks Act, nor is its application otherwise limited or restricted. In the circumstances, the said Act should be deemed to have been applied in its entirety to the Civil Area as it stood in Mysore on the appointed day and to become operative and enforceable as and from that day.

It is argued that the Trade Marks Act was made applicable to the Civil Area in the form, as it stood in Mysore in 1944 with the power reserved under Section 68 of that Act for issuing a further notification. This argument is untenable. What was introduced into the Civil Area to be operative from the appointed day was the entire Act as existed on that date in Mysore State.. Surely the Act in existence in Mysore State was not one without the addition of the notification (for by that date, the Government had issued the notification under Section 08 of the Act) but the law which was implemented by the notification.

Speaking generally a notification that brings any provision of an Act must be deemed to become a part of the law itself and in that sense after the issue of the notification, the provision of the law, contingent upon the issue of notification, will become perfect and enforceable and it was this integrated Act that was made applicable to the Retracted Area on and from the appointed day. Further, the powers vested under Section 68 of the Act to issue a notification had become exhausted and no further power of making a fresh notification, lay. The section with the notification contemplated under it, had become indissolubly fused forming an integrated whole. What the Extending Act did was to apply the Trade Marks Act with Section 68 in its integrated form to the Civil Area on and from 15-8-1948.

6. In almost similar circumstances, this Court has held in Cr. R. P. _No. 6 of 1950-51 (A) that the Mysore Explosives Act, which was one of the laws applied by the 'Extending Act' to the Retroceded Area did not require further formalities as a condition' precedent to make it operative, as the Act introduced was by then a full-fledged one.

7. It was next argued that the act complained of was not an offence before 15-8-1948, and it could not become an offence by the introduction of the Act into the Retracted Area; and the learned Counsel invoked thedecision reported in 24 Mys LJ 59 (B) relating to the construction of Section 3-A of the Silk Control Order. It was laid down therein that the word 'possession' which was made penal was intended to cover an unlawful possession and not innocent possession. This contention does not appear to be sound. The offence is alleged to have been committed in September 1950 more than two years after the 'Extending Act.' It is not disputed that any Act of Legislature would become operative from the dateof its commencement, unless otherwise restricted; the argument thus implies that the Act could not have become enforceable on the date of its extension without a further notice, a contention which we have already rejected. The trial Court has thus rightly held that the petitioners are liable for the offence. In thecircumstances, we see no reason to interferewith the conviction and sentence. This revision petition is therefore dismissed.

8. Revision dismissed.


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