Possessing a Fake ISI Mark Roller Isn't an Offence Without Proof It Was Used, Kerala High Court Rules
The Kerala High Court has ruled that simply having an object that could carry a fake ISI mark is not an offence under the Bureau of Indian Standards Act, 1986, unless there is proof that the mark was actually used. The court dismissed an appeal by the Bureau of Indian Standards (BIS) and upheld the acquittal of a manufacturing firm and its partners.
The case began when BIS officials inspected the factory of M/s Mars Veneers and Boards. According to the prosecution, the firm did not hold a valid BIS licence, and officials allegedly found a roller bearing a spurious ISI mark, as well as a fake ISI mark on a factory wall. BIS filed a complaint against the partnership firm and its partners under Sections 11(1) and 12(b), read with Section 33, of the BIS Act.
During the trial, the prosecution examined three witnesses and produced six documents along with the seized roller. The Magistrate found that the prosecution had not proved that the accused used a spurious trademark or ISI mark on any article. No finished product bearing the alleged mark was produced, and the seizure of the roller was not proved beyond reasonable doubt to show that it was operational and capable of applying the mark. The accused were acquitted.
BIS challenged the acquittal, arguing that mere possession of a spurious ISI mark was enough to make out the offences. The accused countered that the law punishes the use of the mark, not its mere possession.
A Bench of Justice A. Badharudeen examined Sections 11, 12 and 33 of the BIS Act. Section 11 prohibits using the Standard Mark or its colourable imitation in relation to an article, process, patent, trademark or design without a licence, while Section 12 prohibits the unauthorised use of specified names, expressions and marks. The court noted that the legislature had deliberately used the word "use" in both provisions and never intended mere possession of a spurious mark to attract criminal liability.
The court pointed out that the prosecution had not detected, seized or produced any manufactured goods bearing a spurious or fake ISI mark. Its case rested only on the roller allegedly capable of applying the mark and the mark found on the factory wall. The Bench held that the prosecution needed to establish that the spurious mark had been used in the manufacture of goods, and that possession of an object capable of applying such a mark, without proof of actual use, did not satisfy the penal provisions.
The court agreed with the Magistrate's finding that the prosecution had failed to prove the use of any Standard Mark, trademark or ISI mark by the accused. It held that BIS's challenge to the acquittal was unsustainable, dismissed the criminal appeal and confirmed the Magistrate's judgment acquitting the firm and its partners.
Source: Verdictum