Kerala High Court: While dismissing an appeal filed by the Joint Director of the Bureau of Indian Standards (complainant), a Single Judge Bench of A. Badharudeen, J., held that mere possession of fake ISI mark is insufficient to prove culpability under Sections 11 and 12, read with Section 33, Bureau of Indian Standards Act, 1986 (BIS Act). While upholding the Magistrate’s decision, it held that the legislature never intended the word “possess” to fasten the criminal culpability. The “use” of such mark is thus a necessary ingredient to attract criminal liability under the said offences.
Background
A complaint was filed against Mars, Veneers & Boards and its partners (accused persons) alleging that they have committed offences punishable under Sections 11(1) and 12(b) read with Section 33, BIS Act. The complainant along with 3 other officials inspected the factory of the accused persons and found 1 roller having a fake ISI mark without having any valid license issued by the BIS to have and hold such ISI mark. Further, it was noticed by the officials that, a spurious ISI mark was also there on the wall of the factory. The Magistrate took cognizance of the offence and proceeded with the trial.
The Magistrate while acquitting the accused persons held that the prosecution failed to prove by cogent and believable evidence that the accused persons had used a trade mark or ISI mark on any articles to attract the offence under Section 11 read with Section 33, BIS Act. Moreover, it also failed to produce any finished product affixed with the so-called fake ISI mark found in the roller as well as on the wall to find use of the same by the accused persons. Mere seizure of Material Object 1 roller did not prove beyond reasonable doubt to show the same as one in working condition which would be capable of using the fake ISI mark therein.
Aggrieved by the decision, the complainant filed an appeal before the High Court.
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Contentions
The complainant argued that mere possession of a spurious ISI mark is enough to attract the offences under Sections 11 and 12 read with Section 33, BIS Act. Hence, the Magistrate went wrong in finding that the complainant failed to prove the use of the fake trade mark or ISI mark under the said offences.
The accused persons contended that mere possession of a trade mark or ISI mark for affixing the same on manufactured goods did not attract offence under Sections 11 and 12 read with Section 33, BIS Act.
Issues
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Whether the Magistrate went wrong in finding that the prosecution failed to prove commission of offence under Section 11 read with Section 33, BIS Act?
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Whether the Magistrate went wrong in finding that the prosecution failed to prove commission of offence under Section 12 read with Section 33, BIS Act?
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Is it necessary to interfere with the verdict of the Magistrate?
Analysis
The Court after perusing the contentions from either side examined the necessary ingredients required to attract offences under Sections 11 and 12 read with Section 33, BIS Act.
Section 11, BIS Act prohibits the use of the standard mark, or any colourable imitation thereof, in relation to any article, process, title of a patent, trade mark, or design, except under a license.
Section 12, BIS Act provides that no person may, without the Bureau’s prior permission and except as prescribed, use any name resembling the Bureau’s name or containing “Indian Standard” or its abbreviation. The same restriction applies to any mark or trade mark used in relation to an article or process containing “Indian Standard” or “Indian Standard Specification” or their abbreviations.
The Court noted that under both the sections, the word “used” is explicitly mentioned by the legislation makers and stated:
“In both Sections 11 and 12, the legislature vigilantly incorporated the word ‘used’ and the legislature in its wisdom never intended the word ‘possess’ to fasten criminal culpability on mere possession of a spurious ISI mark.”
It further noted that as found by the Magistrate, no manufactured goods, bearing a fake ISI mark were either detected, seized or produced before the court. Instead, a roller, alleged to be used for the purpose of mixing, bearing a fake ISI mark was taken into custody as MO 1. The complainant also alleged that the fake ISI mark was also affixed on the wall.
Section 33, BIS Act provides for penal consequence with imprisonment for a term extending up to 1 year, or with a fine extending up to ₹50,000, or with both.
The Court observed that upon reading the statutory provisions, the “use” of fake ISI mark is punishable. Mere possession without any evidence to establish its use in the manufacture of goods does not attract the penal provisions under Sections 11 and 12, read with Section 33, BIS Act.
Also Read: BIS Revises Hallmarking Fees for Gold, Silver | SCC Times
Decision
In view of the above analysis, the Court while upholding the decision by the Magistrate, held that the prosecution failed to prove the use of any standard trade mark or ISI mark. Accordingly, it dismissed the appeal.
[Bureau of Indian Standards v. Mars Veneers & Boards, 2026 SCC OnLine Ker 18628, decided on 14-10-2026]
Advocates who appeared in this case:
For the Complainant: Manoj Ramaswamy, Advocate.
For the Accused Persons: K. Mohanakannan and A.R. Pravitha, Advocates.
