R/CR.MA/21846/2022(GJHC240769882022) JUDGMENT DATED:

07/09/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE

FIR/ORDER) NO. 21846 of 2022

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE P. M. RAVAL

==========================================================

Approved for Reporting Yes No

✔

==========================================================

JITENDRABHAI MOHANBHAI KRIPLANI

Versus

STATE OF GUJARAT & ANR.

==========================================================

Appearance:

MR PREMAL S RACHH(3297) for the Applicant(s) No. 1

MR. MIHIR JOSHI, SENIOR COUNSEL WITH MR HASIT R VED(13794) for

the Respondent(s) No. 2

MR. ROHAN SHAH, APP for the Respondent(s) No. 1

==========================================================

CORAM:HONOURABLE MR.JUSTICE P. M. RAVAL

Date : 07/09/2026

ORAL JUDGMENT

1.Petitioner before this Court has invoked provisions of Section

482 of the Code of Criminal Prosecutor, 1973 (for short “Cr.P.C.”),

praying to quash the set aside the FIR being C.R.

No.11191026220492 of 2022, dated 19.10.2022, lodged before the

Kalupur Police Station, Ahmedabad City, for the offences

punishable under Sections 51, 63 and 64 of the Copyright Act, 1957,

alongwith the consequential proceedings arising therefrom.

2.The facts narrated in the FIR qua the present petitioner in

nutshell are that the complainant namely Vishalsinh Hirasinh by

caste Jadeja, residing at House No.6/B, Madhukanj Society,

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Maninagar, and working as a Manager at Griffin Intellectual

Property Service Pvt. Ltd. located at 107, Himalaya House, Palton

Road, Mumbai. The company has been empowered by an

authorization letter issued by Apple Inc. Corporation to take legal

action against the persons who infringe upon copyrights or sell

counterfeit iPhone, iPad, MacBooks, Mobiles and Mobile

Accessories of Apple Inc. Corporation. On that basis, complainant’s

company has authorized complainant to take such action. In

discharge of his duty, the complainant required to investigate

persons who manufacture or sell counterfeit products including

iPhone, iPad, MacBook, Mobiles and Mobile Accessories bearing

the trademark of Apple Inc. Corporation and to initiate legal action

against them.

2.1The Company received private information that in the Kalupur

area on Relief Road, inside the Murtimant Complex, on the second

floor, in a shop named “Raj Cover House” as well as in Mangalmurti

Complex on the ground floor in shops named “Raj Mobile

Accessories”, “Ravi Mobile Accessories”, “Mangalmurti Cover

House & Mobile” and “Ronak Mobile” the respective shop owners

were selling counterfeit Apple Inc. iPhone back covers, date cables,

toughened glass, desktop charges, and other itemized goods. Based

on that information, complainant a preliminary private inquiry to

verify the facts, which were confirmed to be true.

2.2.In this regard, the complainant met the D.C.P., explained the

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details regarding his company and the aforementioned shops, and

submitted a written application requesting permission to inspect the

said shops. The D.C.P. Zone-03, forwarded the application to the

Kalupur Police Station. Thereupon, the complainant met the Police

Inspector at Kalupur Police Station and informed the matter in

details. The Police Inspector then directed the complainant to the

Kalupur Chowki Surveillance Squad, the complainant met the

officer in charge there, introduced his team members and company

representatives, showed the necessary authorization documents, and

acquainted him with the situation. The officer called upon other

police personnel, including unarmed head constable – Hitenkumar

Shankarlal (Buckle No.9087), unarmed police constable –

Balvantsinh Sardarsinh (Buckle No.6515), unarmed police constable

– Yuvrajsinh Rajendrasinh (Buckle No.12666), unarmed assistant

police constable – Jaydevsinh Dashrathsinh (Buckle No.13270) and

unarmed police constable – Dhaval Ambaram (Buckle No.6555), as

well as representatives from complainant’s company namely

Pankajbhai Hirabhai Padmshali, Vinaybhai Fulchand Mehta,

Balaram Amarsinh Thakor and Bhupendra Dahyabhai Vaghela.

After briefing everyone on the facts, he ordered a raid on the said

premises.

2.3.The officer then summoned two independent panchas from the

vicinity of the police station, briefed them on the facts, and requested

them to act as panchas for the raid. The panchas voluntarily agreed.

Subsequently, the officer, other police personnel, the panchas, and

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company personnel traveled in private vehicles to the Murtimant

complex located on Relief Road, Kalupur. Alighting on the roadside,

they proceeded to the second floor of Murtimant Complex and

conducted a raid on the shop named “Raj Cover House”

2.4.Inside the shop, one individual was present. Upon being

questioned by the officer in the presence of the police team, the

company members, and the panchas, he disclosed his identity as

Jitendrabhai Mohanbhai by caste Kiplani, aged 39 years, occupation:

business, residing at Flat No.1, Samiksha Apartment, near Punjabi

Hall, Navrangpura, Ahmedabad City. Keeping that individual

present, the officer, police personnel, and team inspected the shop in

the presence of the panchas. During the search, goods infringing

upon the copyright of Apple Inc. Corporation and bearing the Apple

trademark were recovered, as follow:

1.iPhone AirPods-3: 52 units, valued at Rs.4,000/- each,

total value: Rs.2,08,000/-

2.iPhone AirPods: 178 units, valued at Rs.2000/- each,

total value: Rs.3,56,000/-

3.iPhone AirPods Pro: 179 units, valued at Rs.3000/- each,

total value: Rs.5,37,000/-

4. iPhone C-USB Cable: 80 units, valued at Rs.1000/- each,

total value: Rs.80,000/-

5.iPhone C+C 35W Power Adapter (Dock): 116 units,

valued at Rs.1,500/- each, to value: Rs.1,74,000/-

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6.iPhone C Power Adapter (Dock): 110 units, valued at

Rs.1,000/- each, total value Rs.1,10,000/-

7.iPhone Dual C Port Power Adapter: 12 units, valued at

Rs.1,000/- each, total value Rs.12,000/-

8.iPhone Smart Watch: 8 units, valued at Rs.4,000/- each,

total value: Rs.32,000/-

9.iPhone AirPods Pro Side Cover Sticker: 250 units,

valued at Rs.2/- each, total value: Rs.500/-

10.iPhone Apple Mono Sticker: 650 units, valued at Rs.1/-

each, total value: Rs.650/-

11.iPhone Apple Side Sticker with Bar code: 500 units,

valued at Rs.1/- each, total value: Rs.500/-

12.iPhone Apple M.R.P. Sticker: 380 units, valued at Rs.1/-

each, total value: Rs.380/-

13.iPhone Apple M.R.P. Sticker with Bar code: 63 units,

valued at Rs.1/- each, total value: Rs.63/-

14.iPhone Apple Side Seal Sticker: 100 units, valued at

Rs.1/- each, total value: Rs.100/-

2.5.The total value of these various counterfeit Apple items

recovered and seized in the presence of the panchas for inspection

amounts to Rs.15,11,193/-.

3.Learned Advocate Mr. Premal S. Rachh for the petitioner

would submit that the product alleged to have been recovered from

the shop of the present petitioner does not fall within the meaning of

work in which copyright subsists, i.e., literary, dramatic, musical or

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artistic as per the provisions of Section 13 of the Copyrights Act,

1957. Thus, when the products seized by the police personnel does

not fall within the parameters of Section 13, the invocation of

Sections 63 and 64 of the Copyright Act are wrongly invoked

against the present petitioner as the ingredients of the offences

alleged are not satisfied, hence, argued to quash and set aside the

impugned FIR.

3.1.Learned Advocate would further submit that on the plain

reading of the entire FIR, neither literary, dramatic, musical or

artistic work, cinematographic film, sound recording, program or

performance in which the broadcast reproduction right or a

performer’s right subsists under the Copyright Act are not infringed.

More particularly, when the entire case is based upon of selling

duplicate products of the complainant company, and therefore, the

product which have been seized, more particularly, iPhone Air Pod,

iPhone C-USB, iPhone C+C 35W power adapter, iPhone C power

adapter, iPhone dual C port power adapter, iPhone smart watch,

iPhone Air Pod Pro side cover stickers, iPhone Apple mono sticker,

iPhone Apple side cover sticker with bar code, iPhone Apple MRP

sticker with bar code, etc., would not fall within the provisions of

Section 2(c), namely artistic work nor fall within the definition of

term infringing copy as defined under Section 2(m) of the Copyright

Act. Learned advocate would further argue that nor does the

allegations levelled in the FIR would attract Section 2(o), namely the

literary work, since it includes computer program, tables, and

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compilations including computer database, which is not the case on

hand, nor present case falls within the definition of 2(h), dramatic

work, and is thus argued to quash the present FIR.

3.2.Learned Advocate Mr. Rachh would further submit that, if at

all, it is a case of breach of trademark, then under such

circumstances also, when there is an allegation of selling of

duplicate products without obtaining opinion of the Registrar, which

is mandatory, and only a police officer not below the rank of D.C.P.

or equivalent can investigate the offence, and in the present case,

investigation having been carried by PSI, by an officer below the

rank of D.C.P., a case of trademark is also not made out since the

complainant has made out a case of breach of trade mark, more

particularly, Sections 103 and 104 of the Trademark Act. The said is

also not attracted in the case on hand, and has thus, argued to quash

the FIR.

3.3.Learned Advocate would further submit that the Copyright Act

is concerned with the reproduction of either the painting, sculpture,

drawing, engraving or photography or architecture work of art or

product of artistic craftsmanship or a literary work of an author from

being reproduced, however, is not concerned with the commercial

production of commercial articles with the help of ideas borrowed

from an artist, since the purpose of Copyright Act is not to prevent

rival manufacturers from using the same idea or to prevent

competition between them, but the same is to protect the original

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artwork from being reproduced.

3.4.Learned Advocate further submitted that the artwork used by

the respondent No.2 - company in the course of business does not

fall within the definition of an original literary, dramatic, musical,

artistic or cinematographic film or record, but it purely falls within

the definition as provided under the Trademarks Act or the Design

Act, however, would fall under the Copyright Act. And thus, the FIR

lacking the very basic ingredients to attract the penal provisions of

the Copyright Act, which deserves to be quashed and set aside.

3.5.Learned Advocate would further submit that from the goods

which have been found from the present petitioner's shop is

concerned, cannot be said to be reproduction of the artwork/design

on the product as manufactured and sold by respondent No.2 within

the meaning of Section 13(1) and 14(c) of the Copyright Act. Thus,

the use of the artwork/design by the petitioner cannot be said to be

infringement of copyright, and therefore, the impugned FIR deserves

to be quashed and set aside.

3.6.Learned Advocate drawing attention towards Section 15 of the

Copyright Act would argue that in view of what has been provided

in Section 15, the moment the artwork/design has been applied to the

article more than 50 times by an industrial process, the copyright of

the said artwork ceases, and therefore, also the impugned FIR is

required to be quashed and set aside.

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3.7.Learned Advocate Mr. Premal Rachh for the petitioner would

further submit that on careful examination of Section 63 which is

foisted on the petitioner would go on to show that there has been an

infringement in the work alleged to have been copied. However,

there is no infringement of copyright at all in the case on hand. More

particularly, the mobile accessories that the petitioner is selling does

not fall within the scope of the ambit of copyright. And thus,

Sections 51 and 54 of the Copyright Act are wrongly invoked

against the present petitioner and the same does not pertain to any

offence but provides for the power of police to seize infringing

copies.

3.8.To substantiate his claim, the learned Advocate Mr. Premal

Rachh would rely on the following authorities:

1.Mihir Surendrabhai Shah vs. State of Gujarat & Ors.,

reported in 2023 (3) GLH 575.

2.Binita Rahul Shah vs. State of Gujarat, reported in

2009 (0) AIJEL-HC 221331.

3.Mayur Kanaiyalal Shah vs. State of Gujarat, reported

in 2023 (0) AIJEL-HC 247430.

4.Nainesh Chinubhai Patel vs. State of Gujarat, reported

in 2013 (0) AIJEL-HC 230395.

5.Dagubhai Musabhai Sheikh vs. State of Gujarat,

reported in 2023 (0) AIJEL-HC 247011.

6.Reckeweg and Co. Gmbh. and Ors. vs. Adven Biotech

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Pvt. Ltd., reported in MANU/DE/0961/2008.

7.Sandip S/o. Ramashankar Dube and Another vs. State

of Maharashtra and Another, decided by Hon’ble High

Court of Judicature at Bombay Nagpur Bench, Nagpur,

in Criminal Application (APL) No.1541 of 2025.

8.Ashok Kumar vs. State of Punjab and Another, decided

by Hon’ble High Court of Punjab and Haryana at

Chandigarh, in CRM-M-12823-2021 (O&M).

9.Maya Appliances Private Limited vs. Pigeon

Appliances Private Limited, reported in

2004(4)CTC334.

4.Per contra, learned Senior Counsel Mr. Mihir Joshi along with

learned Advocate Mr. Hasit R. Ved for the original complainant and

learned Additional Public Prosecutor Mr. Rohan Shah for the State

would submit that the present complainant is authorized to lodge the

complaint inasmuch as the special power of attorney executed on

15.10.2022 for the period of 2 years clearly recites that the

constituted attorney or any officer appointed / nominated by M/s.

Griffin Intellectual Property Services Pvt. Ltd. shall only carry out

the powers hereby granted pursuant to instructions from an

authorized representative of the company. Under the circumstances,

the present complainant is authorized to lodge the FIR.

4.1.Learned Senior Counsel would further submit that the

definition of literary work is an inclusive definition and therefore,

the photographs, the packaging, the promotional material, the

literature and the product literature found from the shop of the

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petitioner would fall within the meaning of Sections 2(c), 2(o) and

2(s) of the Copyright Act, 1957, and thus, the complainant -

company who are the owners of the copyright who are vested with

the rights therein and would amount to unauthorized reproduction of

the plaintiff's literary and artistic work, which ultimately would

amount to infringement of the copyright as per Section 51 of the said

Act.

4.2.Learned Senior Counsel would also submit that literary work

as provided under Section 13 of the Copyright Act is concerned,

would include all works expressed in writing, irrespective whether

such work have any literary merit or not. Learned Senior Counsel

would also submit that Section 13 of the Act does not talk about

originality of ideas, but merely states that the work in question

should not be copied from some other work, but should originate in

the author, being the product of his labour and skill, and has thus

argued that when stickers, MRP with bar code, brochures/user

manual which are literary work of the company of complainant, the

petitioner has no authority to get it printed, more particularly, having

deceptive and similar packing as well as writings which would

squarely fall within the provisions of Section 13 of the Copyright

Act which subsists in the company. And thus, literary work refer to

written or printed matter in which the copyright subsists with the

complainant - company would clearly fall within the four corners of

the infringement attracting the penal provisions of the Copyright Act

and has thus argued to reject the present petition.

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4.3.Lastly, it is submitted that even if the instruction manuals

found with the goods sold by the petitioner under the name and style

of the company of the complainant would amount to original literary

work over which no other person has any right to copy the said

work, over which the company has exclusive right only to exploit all

the rights flowing from such ownership as set out in Section 14 of

the Copyright Act. Under the circumstances, there is clear

infringement of Section 51 of the Copyright Act, and petitioner

having no license from the owner of the copyright, by selling such

product with instruction manual, stickers and packaging which are

the primary acts of infringement, has thus, argued to reject the

present petition.

4.4.To buttress his arguments, learned Senior Counsel has relied

on following citations:

1.Agarwala Publishing House, Khurja, District

Bulandshahr vs. Board of High School and

Intermediate Education U.P. Allahabad, reported in

1966 SCC OnLine All 124.

2.Koninlijke Philips N.V. and Ors. vs. Amazestore and

Ors., reported in MANU/DE/1390/2019.

3.Microsoft Corporation vs. Mr. Deepak Raval & Anr.,

reported in 2006 SCC OnLine Del 1670.

4.5.Learned Senior Counsel for the complainant would further

submit that the presence of duplicate / counterfeit Apple products in

the petitioner's store were ascertained prior to conducting the search

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and seizure by the local police at the premises of the petitioner's

store, pursuant to which photographs were taken by the complainant

which would confirm the presence of duplicate / counterfeit Apple

products in the petitioner's store bearing identical trademark used

and registered by the Apple Inc Corporation. It is thus argued that

these photographs prima facie demonstrate that the petitioner is

liable for the offence punishable under Section 63 of the Copyright

Act 1957, as he has unauthorizedly reproduced / copied / infringed

the original literary work belonging to Apple Inc Corporation

namely (i) labels and (ii) product literature (including instruction

manuals). Thus, it is argued that these photographs would clearly

indicate that the proprietary logo / device mark of Apple and various

other trademarks of Apple Inc Corporation were illegally used on

duplicate and counterfeit copies of Apple products which were being

distributed, sold / offered for sale by the petitioner without having

any authorization or license from Apple Inc Corporation. Thus, it is

argued that the product literature / instruction printed on the packing

as well as contained detailed instruction manual provided within the

box would certainly qualify as original literary works of Apple Inc

Corporation. More particularly, Apple Watch, AirPods and Apple

Adapter would clearly indicate as to how separate offences under

Trademarks Act, 1999, on one hand and Copyright Act, 1957, on the

other hand, have been committed by the petitioner, and has thus,

argued to reject the present petition which do not merit any

interference by the hands of this Court at the very nascent stage.

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5.Heard learned Advocates for the respective parties. Under

Section 13 read with Section 2(c) of the Copyright Act, 1957,

copyright protection is strictly confined to original literary, dramatic,

musical, or artistic works, sound recordings, and cinematograph

films. Hardware components, cables, power adapters, and electronic

devices are commercial industrial products. Misusing a brand name

or producing duplicate hardware bearing a trademark constitutes

falsification of Trade Marks punishable under Sections 103 and 104

of the Trade Marks Act, 1999, rather than an offence under the

Copyright Act. As held in the case of Binita Rahul Shah (Supra)

spare parts do not fall under “artistic or literary work.” Attempting to

prosecute duplicate commercial spare parts under Section 63 of the

Copyright Act is an abuse of process. Thus, selling duplicate

commercial items bearing a registered trademark cannot attract

Section 63 of the Copyright Act unless the FIR explicitly establishes

the existence of a copyrightable artistic work. Therefore, mere

possession or sale of counterfeit commercial goods / accessories

bearing brand labels does not fulfill the ingredients of Section 13/63

of the Copyright Act.

6.As far as counterfeit Stickers, Seals, and Packaging Labels

(Apple Mono Stickers, Side Covers, MRP / Barcode Stickers, Seal

Stickers - Items 9 to 14 as stated in the FIR), the FIR discloses only

that the complainant (Vishalsinh Hirasinh Jadeja, Manager at Griffin

Intellectual Property Service Pvt. Ltd.) was authorized by Apple Inc

Corporation to take legal action against persons manufacturing or

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selling counterfeit iPhones, iPads, MacBooks, and mobile

accessories bearing the trademark of Apple Inc Corporation. The

FIR also discloses information regarding the location of shops in

Murtimant Complex and Mangalmurti Complex selling counterfeit

Apple covers, cables, chargers and toughened glass, followed by

details of the police team and private panchas assembled for the raid.

The FIR also discloses details of the search at “Raj Cover House”

and the identity of the person present (Jitendrabhai Mohanbhai

Kiplani). It lists recovered items 1 - 4 (AirPods and C-USB cables)

with unit counts and valuations. It also discloses recovered items 5–

14 (Power adapters, smartwatches, Mono stickers, side stickers,

MRP stickers, and seal stickers) with unit counts and valuations,

totaling Rs.15,11,193/-. As a matter of legal analysis, the FIR merely

describes the seized items as “goods” infringing upon the copyright

of Apple Inc Corporation and bearing the Apple trademark. It does

not state that Apple holds copyright in any specific literary work

(such as instruction sheets or user manuals) or artistic work (such as

a specific graphical layout, original artwork, or visual packaging

design). Copyright is purely a statutory right, and an FIR cannot

invoke Section 63 without explicitly setting forth how the seized

material satisfies the definition of a protected “work” under Section

2 read with Section 13. Without explicit pleadings in the FIR

demonstrating infringement of an original literary or artistic work

(such as manuals or graphical packaging artwork), the allegations

relate solely to trademark misuse. Even the recovery panchnama is

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silent on the aspect of any recovery of user manual or instruction

manual and reliance by informant by way of photographs which are

not part and parcel of investigation papers but are placed on record

by affidavit in reply cannot be relied upon. Consequently, criminal

charges under Section 63 of the Copyright Act against hardware and

standard stickers are vulnerable to being quashed under Section 482

Cr.P.C. / Section 528 B.N.S.S., leaving the matter to be governed

strictly under the Trade Marks Act, 1999.

7.The FIR explicitly lists recovered items – AirPods, USB

cables, power adapters, and smartwatches. Commercial hardware

and electronic spare parts do not constitute “literary, dramatic,

musical, or artistic works” under Section 2(c) or Section 13 of the

Copyright Act, 1957. Selling duplicate goods bearing a registered

logo or brand name attracts penal provisions for trademark

falsification under Sections 103 and 104 of the Trade Marks Act,

1999. Converting a trademark violation into a Copyright Act offence

is a misapplication of the statute.

8.It is the complainant’s stand that the definition of “literary

work” is inclusive, so promotional material, packaging and literature

recovered from the shop fall under Sections 2(c), 2(o), and 2(s),

making their reproduction a copyright infringement under Section

51. The product packaging, visual layouts, and logos are commercial

identifiers governed by Section 2(zb) of the Trade Marks Act, 1999

(which explicitly includes packaging and combination of colors). An

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inclusive definition cannot be expanded to convert every commercial

label or container into a literary work. Under Section 2(o), a literary

work requires textual/literary authorship. The seizure memo in the

FIR lists physical products (AirPods, adapters, cables) and

functional stickers (MRP/barcode labels) are not independent literary

creations. It is argued by Senior Counsel that Section 13 does not

require artistic or literary merit – it only requires that the work

originated from the author. Therefore, printing stickers, MRPs with

barcodes, or user manuals constitutes copying written/printed matter

in which copyright subsists and therefor prima facie attracts penal

provisions of copy right Act.

9.Under Section 13, copyright subsists only in original literary

works. An MRP price tag, a standard barcode, or a technical model

sticker contains purely functional and factual data. Factual data or

standard numbers cannot originate as an “original literary work” of

authorship. Learned Senior Counsel’s argument that instruction

manuals found with the goods constitute original literary work under

Section 14, and selling products with duplicate manuals and

packaging infringes copyright under Section 51. However, on

examining the actual seizure which this Court has perused from the

papers of investigation [also for the case on hand list in the FIR

Items 1 to 14], no instruction manuals or user leaflets were ever

recovered or seized from the petitioner's shop. Learned Senior

Counsel cannot invent a new factual foundation during oral

arguments that is absent from the police recovery memo. Basic

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safety or operational instructions printed inside a hardware package

are purely ancillary / functional text to a hardware device. The

primary offence alleged is the sale of counterfeit Apple hardware

(accessories), which falls squarely under Sections 103 & 104 of the

Trade Marks Act, 1999. The complainant cannot camouflage a

trademark dispute as a copyright offence to bypass procedural

safeguards (such as search/seizure rules under Section 115 of the

Trade Marks Act).

10.Following judgments are relied upon by learned Senior

Counsel for the complainant:

Sr.

No.

Case NameWhether they apply to the facts of

the present case or not

1.Agarwala

Publishing

House v.

Board of

High School

Distinguishable: Dealt with actual

educational question papers and books

containing substantial literary

authorship. Does not apply to

commercial product stickers, MRP

tags, or hardware accessories.

2.Koninklijke

Philips N.V.

v.

Amazestore

Distinguishable: Was a civil suit for

permanent injunction where specific

copyright ownership in product user

guides and packaging design was

formally proved with evidence. It does

not lay down that a criminal FIR

under Section 63 can be sustained

without pleading or seizing such

manuals.

3.Microsoft

Corporation

Distinguishable: Involved counterfeit

software operating systems

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v. Deepak

Raval

(Windows/Office) and End-User

License Agreements (EULA).

Software programs are explicitly

defined as “literary works” under

Section 2(o). Electronic hardware

(chargers, cables) does not enjoy this

statutory status.

11.Whereas, learned Advocate for the petitioner has relied on

following judgments and the crux of judgments are as follows:

Sr.

No.

Case NameOutcom

e

Reasons for Outcome

1.Mihir

Surendrabhai

Shahvs. State

of Gujarat &

Ors.

Allowed

(FIR/Cri

minal

Proceedi

ngs

Quashed)

Lack of Locus Standi /

Authorization: The

complainant claimed to

be an officer of “IPR

Vigilance India

Company,” but failed to

produce any document,

authorization, or contract

with Hyundai Motor

Company permitting them

to conduct searches or file

complaints on their

behalf.

Breach of Mandatory

Proviso to Section 115(4):

The investigating

authority failed to obtain

the mandatory prior

opinion from the

Registrar of Trade Marks

before carrying out search

and seizure.

Violation of Officer

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Rank Requirement: Under

Section 115(4) of the

Trade Marks Act, 1999,

search and seizure must

be conducted by an

officer not below the rank

of Deputy Superintendent

of Police (DSP). Here, the

search and investigation

were conducted by a Sub-

Inspector (PSI).

2.Binita Rahul

Shah vs.

State of

Gujarat

Allowed

(FIR/Cri

minal

Proceedi

ngs

Quashed)

The dispute was

essentially civil and

commercial in nature

without criminal intent

(mens rea).

The complainant failed

to establish essential

statutory elements of

copyright infringement

under Sections 63 of the

Copyright Act, making

continuation of criminal

proceedings an abuse of

court process.

3.Mayur

Kanaiyalal

Shah vs.

State of

Gujarat

Allowed

(FIR

Quashed)

Merely selling

duplicate or spurious

hardware spare parts does

not automatically

constitute an offense of

copyright infringement

under Section 63 of the

Copyright Act.

Relied directly on the

Binita Rahul Shah

principle, holding that

civil disputes or

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trademark issues cannot

be improperly masked as

criminal copyright

offenses.

4.Nainesh

Chinubhai

Patel vs.

State of

Gujarat

Allowed

(FIR

Quashed)

The allegations in the

FIR, even if accepted at

face value, failed to

disclose the basic

statutory ingredients

required to constitute an

IP/trademark offense.

Invoked Section 482

CrPC powers to prevent

malicious prosecution

where no prima facie case

was established.

5.Dagubhai

Musabhai

Sheikh vs.

State of

Gujarat

Allowed

(FIR

Quashed)

The complainant could

not produce evidence of

original ownership over a

recognized "artistic work"

or valid copyright

creation.

Without establishing

subsisting copyright

ownership, criminal

charges under Section 63

of the Copyright Act

cannot legally stand.

6.Reckeweg

and Co.

Gmbh. vs.

Adven

Biotech Pvt.

Ltd.

Rejected

(Injuncti

on

Applicati

on

Dismisse

d)

Numeric and alpha-

numeric series (e.g., R-1

to R-75) used purely to

designate homeopathic

formulations lack

sufficient inherent

distinctiveness or artistic

originality to claim

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independent copyright

protection.

The court found no

prima facie case of

passing off or copyright

infringement to warrant

an interim injunction.

7.Sandip

Ramashankar

Dube vs.

State of

Maharashtra

Allowed

(Applicat

ion under

Sec. 482

Allowed;

FIR

Quashed)

Misapplication of law:

Using a registered

trademark on counterfeit

goods attracts the Trade

Marks Act, 1999, not

Section 63 of the

Copyright Act.

An FIR registered

under the Copyright Act

for what is strictly a

trademark dispute is

legally unsustainable and

must be quashed.

8.Ashok

Kumar vs.

State of

Punjab

Allowed

(Petition

Allowed;

FIR

Quashed)

Non-compliance with

mandatory statutory

procedure under Section

115(4) of the Trade

Marks Act, 1999 (failure

to obtain the mandatory

prior opinion from the

Registrar of Trade Marks

and search conducted

below the rank of DSP).

Procedural statutory

safeguards under the

Trade Marks Act are

mandatory; non-

compliance invalidates

the search, seizure, and

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consequential

proceedings.

9.Maya

Appliances

Pvt. Ltd. vs.

Pigeon

Appliances

Pvt. Ltd.

Allowed

(Interim

Injunctio

n

Granted

in favor

of

Plaintiff)

The plaintiff

successfully proved prior

continuous adoption and

extensive use of the

trademark/brand, building

significant goodwill and

reputation.

The defendant’s

adoption of a deceptively

similar mark for identical

kitchen appliances created

a high likelihood of

consumer confusion,

establishing a clear case

for passing off.

12.Thus, the judgments relied upon by learned Advocate for the

petitioner are helpful in the following manner:

A.Mandatory Statutory Non-Compliance (Trade Marks

Act): Cases No.1 and No.8 prove that criminal

proceedings under the Trade Marks Act are legally void

if the investigation was conducted by an officer below

the rank of DSP (e.g., a PSI) or carried out without the

mandatory prior opinion of the Registrar of Trade Marks

under Section 115(4).

B.Misapplication of Copyright Law to Commercial/Spare

Parts Disputes: Cases No.2, No.3, No.5, and No.7

establish that selling generic or duplicate commercial

spare parts does not constitute criminal copyright

infringement under Section 63. Further, trademark

counterfeiting disputes cannot be improperly converted

into copyright FIRs.

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13.Failure to establish prima facie rights & locus Standi: Cases

No.1, No.4, No.6, and No.9 demonstrate that private agency

representatives cannot register FIRs without written authority, nor

can parties claim exclusive copyright / trademark protection over

generic, functional, or non-distinctive components / part numbers

without meeting strict statutory standards. However, these cases are

not helpful to the petitioner as far as locus for lodging FIR is

concerned, as it would be evident for the recitals of the document

relied by learned advocate for the complainant that authority is

already given to the Agency and in turn any authorized person of

that agency is also equally authorized to lodge FIR. Thus, the

contention of complainant having no locus to lodge FIR is not

tenable thus, rejected.

14.Having arrived at the finding that the invocation of Section 63

of the Copyright Act, 1957, is wholly impermissible and

unsustainable in law qua commercial hardware, this Court is now

called upon to examine whether the proceedings can be permitted to

continue under the penal provisions of the Trade Marks Act, 1999 –

specifically Sections 103 and 104. Since the learned Senior Counsel

for the complainant / State strongly argued that even if Section 63 of

the Copyright Act is dropped, the factual matrix disclosed in the FIR

clearly establishes a prima facie case of falsifying trademarks and

selling goods bearing false trade descriptions under the Trade Marks

Act, 1999. It was submitted that a mere wrong labeling of statutory

provisions in an FIR would not disentitle the investigating agency

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from proceeding under the appropriate penal law.

15.This Court is unable to accept the aforesaid submission. Where

a special statute provides a specific mechanism and attaches

mandatory statutory safeguards before an act of search, seizure, and

criminal prosecution can be initiated, the investigating agency

cannot be permitted to bypass such statutory mandates under the

guise of investigating another offense. The prosecution under the

Trade Marks Act, 1999, collapses in its entirety on the following

statutory and procedural grounds:

Section 115(4) of the Trade Marks Act, 1999, contains an

unambiguous statutory proviso as follows:

“Provided that the police officer, before making

any search and seizure, shall obtain the opinion of

the Registrar on facts involved in the offence

relating to trade mark and shall abide by the

opinion so obtained.”

16.A bare perusal of the FIR narrative and the police record

reveals that no prior written opinion was ever sought or obtained

from the Registrar of Trade Marks regarding the validity,

registration, or comparison of the trade marks before executing the

raid at Raj Cover House. The Legislatures in its wisdom enacted

Section 115(4) as a mandatory guardrail to prevent arbitrary police

raids on commercial establishments at the behest of private corporate

entities. Obtaining the Registrar’s opinion is a statutory condition

precedent, not a mere technical formality. Search and seizure

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executed in total defiance of Section 115(4) renders the search void

ab initio, and any evidence gathered pursuant to such an illegal raid

is legally vitiated.

17.Further, Section 115(4) of the Trade Marks Act, 1999

mandates:

“No police officer below the rank of Deputy

Superintendent of Police or equivalent shall search and

seize without warrant…”

18.From the explicit recitals in the FIR, it is evident that the

initial application was forwarded by the D.C.P. Zone-03 to the

Kalupur Police Station. The actual raid, search, and seizure were

executed under the command of a Police Inspector along with Head

Constables and Police Constables (Buckle Nos.9087, 6515, 12666,

13270, and 6555). A Police Inspector or Head Constable is an officer

below the rank of Deputy Superintendent of Police (DSP) / Assistant

Commissioner of Police (ACP). Consequently, the entire search and

seizure operation was carried out by officers lacking the statutory

authority and jurisdiction to act under the Trade Marks Act, 1999. It

is a settled canon of criminal jurisprudence that the law does not

permit a party to achieve indirectly what it is expressly prohibited

from doing directly.

19.The record demonstrates a clear pattern of colourable exercise

of power. The complainant-company, fully aware that a raid under

the Trade Marks Act, 1999, required prior opinion from the

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Registrar and execution by a DSP rank officer, deliberately dressed

up a pure trademark dispute as a “Copyright Infringement” under

Section 63 of the Copyright Act, 1957. This subterfuge was

employed precisely to bypass the statutory checks of Section 115 of

the Trade Marks Act and obtain an immediate raid through local

station-level police officers, more so, when it is the case of the

complainant that by making prior visit he found such articles being

sold remained indolent on the aspect of obtaining prior opinion form

the Registrar and the execution by a DSP rank officer for conducting

investigation and or raid under such circumstances, Courts of law

cannot act as silent spectators to such procedural circumvention.

Allowing the Complainant / State to now “convert” or fallback upon

Trademark charges would amount to sanctioning a deliberate

evasion of statutory mandate. The arguments raised by the learned

Senior Counsel attempting to bring commercial packaging, MRP

stickers, and hardware items under the umbrella of ‘literary work’

under Section 2(o) are legally unsustainable. The FIR and seizure

memo fails to disclose the recovery of any original literary work or

user manuals. The dispute essentially pertains to the alleged

falsification of a registered trademark on commercial accessories,

which attracts the Trade Marks Act, 1999, and not the Copyright

Act, 1957.

20.In light of the above discussion:

(i)The allegations in the FIR do not satisfy the statutory

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ingredients of Sections 13 and 63 of the Copyright Act, 1957,

as commercial hardware do not constitute ‘artistic or literary

works’.

(ii)The penal provisions under Sections 103 and 104 of the

Trade Marks Act, 1999, cannot be sustained or substituted, as

the search, raid, and seizure were executed in flagrant breach

of the mandatory provisions of Section 115(4) of the Trade

Marks Act, 1999 (absence of Registrar’s opinion and

execution by an unauthorized officer below the rank of DSP).

(iii)Permitting the continuation of the criminal proceedings

under the impugned FIR would be nothing short of an abuse of

the process of Court and would cause grave miscarriage of

justice.

21.Accordingly, the present petition is Allowed. FIR being C.R.

No.11191026220492 of 2022, dated 19.10.2022, lodged before the

Kalupur Police Station, Ahmedabad City and all consequential

proceedings arising therefrom qua the present petitioner are hereby

quashed and set aside.

22.Rule is made absolute to the aforesaid extent. Direct service is

permitted.

(P. M. RAVAL, J)

NITIN MAKWANA

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