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Criminal Petition for Special Leave to Appeal No. 30‑D of 1970, decided on 24th June 1970.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 26th February 1970, in Revi sion No. 458 of 1965).

------S. 482‑Trade mark, false use of Three lower Courts concurrently finding with substantial grounds that two products in question displayed margin of difference, thereby raising reasonable doubt with regard to mala fides of accused‑Lower Courts neither acting fancifully or arbitrarily in weighing evidence nor their view wholly untenable‑Case, held, not fit for interference by Supreme Court Leave to appeal refused‑Constitution of Pakistan (1962), Art. 58(3).

Hamid‑ul‑Haq Chowdhury, Senior Advocate Supreme Court (A. H. Mirza, Advocate Supreme Court with him) instructed by B. C. Panday, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing : 24th June 1970.

This petition for special leave to appeal is directed against the acquittal of the respondent Moktab Hossain of charge under section 482 of the Pakistan Penal Code, which was brought on a complaint by the petitioner against him. The acquittal was recorded by Mr. A. Rahim, Magistrate 1st Class, Jamalpur, on the 15th of July 1964, and the petitioner's efforts to have it reversed, in revisional jurisdiction, by the Sessions Judge and the High Court have failed, and he has finally come up to this Court.

The complaint proceeded on the allegation that the petitioner company has been manufacturing and selling a medicine under the registered trade mark of "Saribadi Salsa", in special types of bottles with labels pasted on them, since the year 1914, which has acquired considerable popularity over the years. Lured by the popularity and the huge sales of the aforesaid product of the petitioner‑company, the respondent, with a fraudulent motive, has started selling a medicine, named as "Saribadi Sab Salsa", in bottles of an identical type with identical labels fixed thereon with those of the petitioner‑company, falling within the mischief of section 482 of the Penal Code. The learned trial Magistrate, on an examination of the labels and evidence led by the parties, came to the conclusion that the two labels on the respective bottles of the petitioner and the respondent‑companies were sufficiently different and were not apt to deceive an ordinary unwary purchaser". The learned Sessions Judge and the learned Judges in the High Court have affirmed this view.

The respective medicines of the two concerns, as bottled and labelled, were exhibited in the High Court by the learned counsel for the petitioner, and the concurrence of the learned Judges with the view of the Courts below is based on their own physical observation of the articles in question. The learned Judges have further remarked that the complaint of the petitioner itself was not a bona fide one, as he did not take any action against the respondent, although the latter has been concurrently selling his medicine since quite a long period of time, and his shop was only fifty yards away from that of the petitioner. Mr. Hamid‑ul‑Haq Chowdhury, the learned counsel for the petitioner, has argued that the Courts below have made an erroneous approach to the case, as under the terms of section 480 of the Penal Code, which defines the offence, it was enough for the prosecution to show that the respondent's product in the manner in which it was bottled and labelled by him was likely to produce a reasonable belief in the public mind that it was the medicine of the petitioner‑com pany and was being passed off as such, and it was for the respondent to prove that it did not. The examination of the articles and of the evidence, if made in the perspective as suggested by Mr. Hamid‑ui‑Haq Chowdhury, with the onus heavily on the respondent to prove his innocence may lead to different conclu sion than that reached by the Courts below, but it cannot be said that they have acted fancifully or arbitrarily in weighing the evidence and ordering the respondent's acquittal and the view adopted by them is wholly untenable. In any case, it is not a case for our interference after the three Courts have found con currently and not without a substantial ground that there is a margin of difference in the display of the two products in question, to raise a reasonable doubt with regard to the mala fides of the respondent.

The petition is dismissed.

Petition dismissed.

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