Rajadhyaksha, J.



1. This is an appeal by the State of Bombay against an order of acquittal passed by the Chief Presidency Mag. acquitting the five accused who were charged with having committed offences under Ss. 6 and 7, Indian Merchandise Marks Act, IV [4] of 1889 and under Ss. 482, 486 and 497, I. P. C.



2. The prosecution case in brief was this. There were originally five accused before the trial Ct. Accused 1 was a company going by the name of Geoffrey Manners and Co. having its office at Ballard Estate, Fort, Bombay. The other four accused were the directors of that company. Dr. Dhume, who is the Deputy Director of Industries, Bombay, was put on an inquiry on information received from the Rangoon Customs Authorities with respect to a product which was known as Anne French Cleansing Milk. Dr. Dhume purchased a bottle of this product from one Abbasbhai Akbarally. The bottle bore a green label with the following inscriptions:

"anne French Cleansing Milk

Apply with cotton wool and remove with tissues.

4, Old Bond Street, London, W. 1."

At the time of the purchase, Dr. Dhume inquired from Abbasbhai as to whether it was an English product as stated on the face of the label. Abbasbhai then wrote on the reverse of the invoice the following guarantee :

"Guaranteed English Make. Made in England.

A. F. Abbas and Co.

Agents Name : Geoffrey Manners and Co. Ballard Estate."

It is the prosecution case that this product was not manufactured at 4, Old Bond Street, London W. 1, as stated on the label, but that it was of Indian manufacture. With the bottle was enclosed a brochure which contained the following statement:

"Anne French Cleansing Milk, price 3s. 6d. and 1s. 6d. a bottle, can be obtained from Chemists, Stores or direct from ANNE FRENCH, 4, Old Bond Street, London, W. 1."

The prosecution, therefore, contend that by reason of the particulars on the label, viz., "4, Old Bond Street, London," and the statement made in the brochure the accused had committed offences of applying a false trade description and of selling goods to which a false trade description had been applied. It was, therefore, alleged that the accused had committed offences under Ss. 6 and 7, Indian Merchandise Marks Act, 188

9. It was also alleged that the accused were guilty also under Ss. 482, 486 and 487, I. P. C. for having sold goods marked with a false trade mark and for making a false mark upon the receptacle containing goods.

3. The prosecution case was supported by the evidence of Dr. Dhume himself and by the evidence of Abbasbhai who had sold the articles to Dr. Dhume. From the evidence it is clear, and the point was admitted before the lower Court and has not been disputed before us, that the goods were in fact manufactured in India. In an appln. which was made by the accused to the Director of Industries, it has been clearly admitted that

"the Anne French Cleansing Milk was manufactured in their factory at Cadell Road, Mahim from raw materials and that the bottle label and outer packings were also being manufactured in India, in other words the product as a whole was of Indian Manufacture."

This was in pursuance of their appln. for being exempted from customs duties by reason of the fact that the articles were of Indian manufacture, and for this purpose a certificate was sought to be obtained from the Director of Industries. The appln. is Ex. A in this case. It is, therefore, perfectly clear that Anne French Cleansing Milk together with the bottle and the packing materials has in fact been manufactured in India. The question, therefore, arises as to what offence, if any, the accused have committed. The accused in their statements before the trial Ct. merely stated that they denied the charges and had nothing further to add. No evidence was led on their behalf. But in the course of the arguments, a suggestion was made by the counsel appearing on behalf of the accused that though the article was manufactured in India, the formula therefor was obtained from the Anne French Laboratories which are at 4, Old Bond Street, London, W.

1. It was also urged on behalf of the accused that in the returns which the accused had submitted to Govt. it had been made clear that the articles had been manufactured in India. The learned Mag., on the score of these arguments, held that there was no dishonest intention on the part of the accused and that they had in fact furnished to Govt. full and complete particulars of the place of origin and the manufacture of the Anne French Cleansing Milk. He, therefore, held that the conduct of the accused in furnishing particulars as frankly as they had done and their conduct throughout clearly exonerated them from any guilt. He accordingly accepted the defence of the accused and acquitted them of the charges which had been brought against them. It is against that order of acquittal that the State of Bombay has come in appeal. Notices of this appeal have not been served on accused 3 and 4 and the appeal has been heard only as against accused 1, 2 and 5.



4. It seems to us that on the admitted fact that the goods were manufactured in India, the accused are clearly guilty of the offences with which they were charged. Sub-s

. (2) of S. 2, Merchandise Marks Act, describes in cl. (b) thereof that a "trade description" means any description, statement or other indication, direct or indirect, as to the place or country in which, any goods were made or produced. Sub-S. (3) of that section defines "false trade description" as meaning a trade description which is untrue in a material respect as regards the goods to which it is applied. It is not necessary that the application of the trade description should be to the goods themselves. But under S. 5, Merchandise Marks Act:

"A person shall be deemed to apply a trade description to goods who-

(a) applies it to the goods themselves, or ...

(c) places, encloses or annexes any goods which are sold, or are exposed or had in possession for sale or any purpose of trade or manufacture, in, with or to any covering, label, reel or other thing to which a trade description has been applied."

If, therefore, the statements which have been made on the label and in the brochure are in fact false trade descriptions, then the accused would be guilty under Ss. 6 and 7, Merchandise Marks Act, unless they can prove for the purposes of S. 6 that they had acted without intent to defraud or under S. 7 they had taken all reasonable precautions against committing an offence against this section, and that on demand made by or on behalf of the prosecutor had given all the information in his power with respect to the persons from whom they had obtained such goods or otherwise they had acted innocently. It was argued on behalf of the accused by Mr. Amin that the inscription which appeared on the label was not a false trade description within the meaning of S. 2, Merchandise Marks Act, and that therefore the penal provisions of Ss. 6 and 7 could not be applied to the accused. We are unable to accept this contention. This inscription on the label bears the words 4, Old Bond Street, London W.1." We can conceive of no reason why these words should have been included in the label except for the purpose of making it appear to the public, who purchased that article, that the goods were in fact manufactured at 4, Old Bond Street, London W.

1. The brochure makes the position even clearer. The concluding words of the brochure which I have quoted above state that "the goods could be had direct from Anne French," the address of which was given as 4, Old Bond Street, London W.

1. This is a clear suggestion that the articles were in fact manufactured originally by the firm of Anne French in 4, Old Bond Street, London W.1, from whom they could be purchased directly, but that they could also be had from the various chemists and stores. It would be noticed that the prices which have been quoted there for the different sizes of bottles are 3s, 6d and 1s. 6d. This quotation of the prices in English currency could only induce one to believe that the articles were manufactured in England. It would be noticed that Abbasbhai who sold the article to Dr. Dhume was prepared to give a guarantee that the articles were in fact of English make, i. e. made in England. This indicates how even a retail businessman was taken in by the inscription on the label of the bottle and by the brochure enclosed therewith. It was argued by Mr. Amin on behalf of the accused that the goods, although manufactured in India, were according to the formula which had been obtained from Anne French of 4, Old Bond Street, London, W.

1. There is no evidence to support this contention as no evidence to that effect was led by the accused. Even this statement does not appear in the statement of the accused recorded under S. 342, Cri. P. C. But even assuming that the contention of the learned counsel is correct that the goods were manufactured in pursuance of a formula which was obtained under a contract from Anne French of 4, Old Bond Street, the inscription of the label and the brochure does not suggest that the goods were manufactured in India in accordance with that formula. Several goods are marketed in India which are manufactured in India in accordance with the formula obtained from foreign countries. But in such a case it is made clear that the manufacture in India was in accordance with such formula. Here, the inscription on the bottle and the statement made in the brochure give no indication whatever that the goods were manufactured in India in accordance with the foreign formula. On the other hand, the brochure seems clearly to suggest that the goods could be obtained from Anne French, 4, Old Bond Street, London, W.1, who presumably were to be regarded as the manufacturing firm. It is quite clear as to why the accused wanted it to be believed that the article was of English manufacture. The cleansing milk is a luxury toilet article, and such articles would have a greater marketable value if they were manufactured in some European country, preferably France or England. In order therefore to make it appear that the goods were manufactured elsewhere than in India, i. e. they were manufactured in England, that the inscription on the bottle bears the words "4, Old Bond Street, London W.1." The brochure makes a clear suggestion that the article could be had direct from the manufacturers Anne French of 4, Old Bond Street, but that it could be had from any of the chemists and other stores.We have, therefore, no doubt that the trade description does purport to indicate that the goods were manufactured in England. This view, taken with the fact that the goods were manufactured in India, leave no doubt that there was a false trade description applied to the goods and enclosures sold with the goods. Accordingly, the accused would be guilty under S. 6 and S. 7, Merchandise Marks Act of 1889.It would be then for the accused to establish that they acted without intent to defraud or that they had acted innocently in this manner. It was contended by Mr. Amin that the accused had, in submitting their returns to Govt. in accordance with the requirements of the Industrial Statistics Act of 1942, made it clear that the goods have in fact been manufactured in India. The returns are for the years 1946, 1947 and 1948. But even these returns do not make it clear that they were with respect to Anne French Cleansing Milk. One refers to "cream cleansing milk." In the second there is only a reference to "cream" and in the third, there is no reference at all. It is, therefore, not altogether clear that even in the returns to the authorities they stated that Anne French Cleansing Milk was manufactured by them at their factory in Cadell Road. But even assuming that they had given full description of the manufacture of this Anne French Cleansing Milk in their returns, that would in no way exonerate the accused. The return was made in a confidential document supplied to Govt. What we are concerned with is the representation made by the accused to the public who were the purchasers of those articles and to them the representation is clear that the goods were manufactured in England. Accordingly, we are of the opinion that the accused are guilty under Ss. 6 and 7, Merchandise Marks Act.



5. They would also be guilty under Ss. 482, 486 and 487, I. P. C. The accused have undoubtedly used a false trade mark, inasmuch as they have marked the goods in a manner reasonably calculated to cause it to be believed that the goods contained in the receptacle are the manufactures of persons whose manufacture they are not. Under S. 482, whoever uses any false trade mark ... is guilty of an offence unless he proves that he acted without intent to defraud. Under S. 486, whoever has in possession for sale any goods with a counterfeit trade mark impressed upon the same, is guilty of an offence unless he proves that having taken all reasonable precaution against committing an offence under that section, he has at the time of the offence no reason to suspect the genuineness of the mark and that on demand made on behalf of the prosecutor he gave all the information in his power with respect to the persons from whom he obtained such goods or things, or that he had otherwise acted innocently. It would be noticed that S. 486 is pari materia with S. 7, Indian Merchandise Marks Act. Section 487 punishes a person who makes any false marks upon any package or other receptacle containing goods calculated to cause any person to believe that such receptacle contains goods which it does not contain or that the goods contained in such receptacle are of a nature or quality different from the real nature or quality thereof unless he proves that ha acted without intent to defraud. In view of the fact that the goods in this particular case were in fact manufactured in India, and the fact that the inscription on the bottle and the details contained in the brochure did cause it to be believed that the goods were manufactured not in India but by Anne French of 4, Old Bond Street, London W. 1, we think that the accused are guilty under Ss. 482, 486 and 487, I. P. C. We must, therefore, set aside the order of acquittal passed by the learned Chief Presidency Mag. and convict the accused for the offences with which they have been charged.



6. So far as the question of sentence is concerned, it bad been urged by Mr. Amin that this was merely a technical offence, and that the ends of justice would be met if only a fine were to be imposed, if the Ct. was not willing to accept an apology tendered on behalf of the accused. The learned Advocate General, on the other hand, pressed for a substantive sentence of imprisonment being passed. We are inclined to take a more serious view of the offence. We do not think it is only a technical offence. It is in our opinion, a deliberate deception practiced upon the public. It is true that in this particular case the offence refers to a luxury toilet article. But we do not know how long this process has been going on and how long the public is being deceived in this manner. Such offences are not of infrequent occurrence, although, we understand, this is the first case which has come to the notice of this Ct. If offences of this kind were committed in connection with more vital articles such as drugs, consequences might well be serious. When offences of this type come to notice, we think it is our duty to impose a deterrent punishment. Accordingly, we sentence accused 2 and 5 to undergo rigorous imprisonment for one month and pay a fine of Rs. 200 under S. 6, Merchandise Marks Act, and to undergo rigorous imprisonment for three months and to pay a fine of Rs. 1,000 under S. 486, I. P. C. We do not propose to pass separate sentences in respect of offences under S. 7, Merchandise Marks Act, and Ss. 482 and 487, I. P. C., in view of S. 71, I. P. C. The substantive sentences should run concurrently. In default of payment of fine, under S. 6, Merchandise Marks Act, accused 2 and 5 should undergo rigorous imprisonment for a further period of 15 days and in default of payment of fine under S. 486, I. P. C., to undergo rigorous imprisonment for a further period of two months.



7. Warrant of arrest to issue, and the accused to undergo the sentences passed upon them.

8. So far as accused 1 is concerned, we impose a fine of Rs. 200 under S. 6, Merchandise Marks Act and a fine of Rs. 1,000 under S. 486, I. P. C.



9. The accused to pay the costs of the prosecution both in this Ct. and in the lower Court.



10. Appeals against accused 3 and 4 to be kept pending.

Appeal allowed.