Bombay High Court: In a petition seeking urgent relief of de-sealing of factory premises allegedly sealed after registration of First Information Report (‘FIR’) for offences under Section 420 of the Penal Code, 1860 (‘IPC’) and Sections 103, 104 and 105 of the Trade Marks Act, 1999 (‘TM Act’), the division Bench of Sharmila U. Deshmukh and Arif S. Doctor, JJ. directed the authorities to de-seal the said factory premises while explaining that provisions under Section 115(4) of TM Act do not allow police to seal premises.
It was contended that the provisions under Section 115 of TM Act do not empower the police to seal factory premises. Provisions under Section 115(4) of TM Act were pointed out to submit that police have authority to seize without warrant goods, die, block, machine, plate, other instruments or things involved in committing the offence, and that sealing of the factory is not permissible.
The respondent State explained that the machinery was huge making it impossible for the police to seize the same in accordance with Section 115(4) of TM Act, and thus, the factory was sealed to secure the said machinery and ensure that it is not used in commission of offence.
The Court perused the provisions under Section 115 of TM Act which provides that “there is no power vested in the police to seal the factory premises where the incriminating articles are situated.” It was further added that Section 115(4) permits the police to seize without warrant articles/items which are enumerated in the said provision.
The Court said that it is an undisputed fact that the police have no power to seal the factory premises. Regarding alternate remedy before the Judicial Magistrate, the Court clarified that as per the provisions, whenever there is seizure of articles, they need to be produced before the Magistrate. However, there is no seizure of articles in the instant case, and sealing the factory premises is not permissible.
The Court opined that the petitioner made out a prima facie case for grant of ad-interim relief seeking directions for opening the seal of factory premises. It further stated that the police are empowered to seize incriminating articles in accordance with Section 15(4) of TM Act.
[Mahendra Dattu Gore v. State of Maharashtra, 2023 SCC OnLine Bom 1074, Order dated 17-5-2023]
Advocates who appeared in this case :
For Applicant: Advocate Rameshwar Totla, Advocate Rahul Totla, Advocate Ashwin Poojari;
For Respondent: Additional Public Prosecutor Sangeeta D Shinde, Advocate Aniket Nikam, Advocate Aashish Satpute.