Mere Possession Of Object Capable Of Being Affixed With Fake ISI Mark Not Punishable Under BIS Act Without Proof Of Use: Kerala High Court
The Court upheld the acquittal of a manufacturing firm and its partners after finding that no finished product bearing a spurious ISI mark had been detected, seized or produced.
Justice A. Badharudeen, Kerala High Court
The Kerala High Court has held that merely possessing an object capable of being affixed with a spurious ISI mark does not attract Sections 11 and 12, read with Section 33, of the Bureau of Indian Standards Act, 1986, without evidence establishing its use in manufacturing goods.
The High Court consequently dismissed the Bureau of Indian Standards’ appeal and affirmed the accused’s acquittal.
The Court was hearing a criminal appeal filed by the Bureau of Indian Standards against a Judicial First Class Magistrate Court order acquitting a manufacturing firm and its partners of offences under Sections 11(1) and 12(b), read with Section 33, of the BIS Act.
A Bench of Justice A. Badharudeen observed: “On scanning the statutory words in Sections 11 and 12, read with Section 33 of the BIS Act, the ‘use’ of a spurious ISI mark is punishable under the said provisions and mere possession of an object capable of affixing such a mark, without any evidence to establish its use in the manufacture of goods, does not attract the penal provisions of Sections 11 and 12, read with Section 33 of the BIS Act.”
Advocate Manoj Ramaswamy appeared for the Bureau. Advocate K. Mohanakannan appeared for the accused, while Public Prosecutor M.A. Shihab appeared for the State.
Background
BIS officials inspected the factory of M/s Mars Veneers and Boards and allegedly found a roller bearing a spurious ISI mark, although the firm did not hold a valid BIS licence. The officials also allegedly found a spurious 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 trial, the prosecution examined three witnesses and produced six documents and 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 properly proved beyond reasonable doubt to establish that it was operational and capable of applying the mark. The accused were consequently acquitted.
Challenging the acquittal, BIS contended that mere possession of a spurious ISI mark was sufficient to constitute the alleged offences. The accused argued that the provisions penalised the use of the mark and not its mere possession.
Court’s Observations
BIS Act Penalises Use, Not Mere Possession
The Court examined Sections 11, 12 and 33 of the BIS Act. It noted that Section 11 prohibited the use of the Standard Mark or its colourable imitation in relation to an article, process, patent, trademark or design without a licence. Section 12 similarly prohibited the unauthorised use of specified names, expressions and marks.
The Court reproduced the relevant statutory prohibition under Section 11: “No person shall use, in relation to any article or process, or in the title of any patent,or in any trade mark or design the Standard Mark or any colourable imitation thereof, except under a licence.”
The Court observed that the legislature had consciously employed the word “use” in both Sections 11 and 12. It held that the statutory language did not treat the mere possession of a spurious mark as sufficient to impose criminal liability.
The Court 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.”
No Manufactured Goods Bearing Spurious Mark Were Produced
The Court noted that the prosecution did not detect, seize or produce any manufactured goods bearing a spurious or fake ISI mark. Its case was confined to the roller allegedly capable of applying the mark and the mark found on the factory wall.
The Bench stated: “In this connection it is relevant to note that as found by the learned Magistrate, no manufactured goods, bearing a spurious or 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 MO1. Apart from that the prosecution case is that a fake ISI mark also was affixed on the wall.”
The Court held that the prosecution was required to establish that the spurious mark had been used in the manufacture of goods. Possession of an object capable of applying such a mark, without proof of its actual use, did not satisfy the penal provisions.
The Court therefore 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.
The Court stated: “In such view of the matter, the learned Magistrate is right in finding that the prosecution failed to prove the use of any standard trade mark or ISI mark in the instant case, to impose penal consequences on the accused persons. In fact, the said finding is only to be justified.”
Conclusion
The Court held that BIS’s challenge to the acquittal was unsustainable. It dismissed the criminal appeal and confirmed the Magistrate’s judgment acquitting the manufacturing firm and its partners.
Cause Title: Bureau of Indian Standards v. M/s Mars Veneers and Boards and Others (Neutral Citation: 2026:KER:79827)
Appearances
Appellant: Advocate Manoj Ramaswamy
Respondents: Advocates K. Mohanakannan and A.R. Pravitha; Public Prosecutor M.A. Shihab