Full Judgment Text
1 Cr WP 416/2015 group
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.416 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. S.B. Talekar, Advocate, instructed by Shri. Pavan P .
Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
With
Criminal Writ Petition No.380 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. Pavan P. Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
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2 Cr WP 416/2015 group
With
Criminal Writ Petition No.381 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. Pavan P. Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
CORAM: T.V. NALAWADE &
Smt. I.K. JAIN, JJ.
st
DATE : 31 MARCH 2015
ORDER:
1) All the three proceedings are filed to challenge
the notice given under section 41A (1) of the Code of
Criminal Procedure.
2) Criminal Writ Petition No.416 of 2015 is filed to
challenge the notice issued in respect of CR No.24/2014
registered in Ardhapur Police Station Nanded for offences
punishable under sections 179, 272, 273 etc. of the Indian
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3 Cr WP 416/2015 group
Penal Code and sections 26(2)(i), 26(2), 27(3)(d), (e), 59
etc. of the Food Safety and Standard Act, 2006 and it is
mainly in respect of Goa Gutkha and other similar food
articles. In this crime Goa Gutkha worth Rs. 8.81 lakh was
seized. Charge sheet is already filed but the police wants
to make further investigation under section 178(3) of the
Code of Criminal Procedure. The present petitioner is not
shown as accused in the charge sheet but the material
seized and information collected shows connection of the
petitioner with Goa Gutkha manufacture.
3) Criminal Writ Petition No.380 of 2015 is filed
in respect of CR No.5/2015 registered with Hadgaon
Police Station Nanded for offences punishable under
sections 188, 273 of the Indian Penal Code and sections
26(2)(i), 26(2), 27(3)(d),(e), 59 etc. of the Food Safety and
Standard Act, 2006.
4) Criminal Writ Petition No.381 of 2015 is filed in
respect of Crime No.52/2014 registered at Kandhar Police
Station Nanded for offences punishable under sections
181, 272, 273 of the Indian Penal Code and sections 26(2)
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
4 Cr WP 416/2015 group
(i), 26(2), 27(3)(d), (e), 59 etc. of the Food Safety and
Standard Act, 2006.
5) Both the sides are heard.
6) The learned counsel for the petitioner mainly
submitted that some false record is created in respect of
Crime No.5/2015 registered in Hadgaon Police Station. He
also submitted that the notice was replied by the
petitioner and he had informed to police about the
circumstances that he had no concern with Goa Gutkha at
present and he wanted more information from police like
copies of FIR etc. Copy of the said notice cum reply dated
4-2-2015 is produced. The present proceeding came to be
filed on 18-3-2015. It can be said that in response to the
notice the petitioner did not appear before police when he
was expected to appear on 10-2-2015 in all the matters.
Here itself it needs to be observed that there is either
some mistake or there is possibility of having similar
registration number in respect of two FIRs. However,
these two crimes were registered on different dates in the
same police station. In the present matter, in view of other
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5 Cr WP 416/2015 group
material this circumstance need not be dealt with in
detail.
7) The learned counsel for the petitioner argued
much on the provisions of Section 41-A of the Code of
Criminal Procedure and he submitted that this power is
not arbitrary and unless there is some material or
accusation against the petitioner, notice under section
41A (1) cannot be issued against the person like the
petitioner. Provision of Section 41A of the Code reads as
under :-
" 41A - Notice of appearance before police
officer. (1) The police officer shall, in all cases
where the arrest of a person is not required under
the provisions of sub-section (1) of section 41, issue
a notice directing the person against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
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6 Cr WP 416/2015 group
(3) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer
is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to
comply with the terms of the notice or is unwilling
to identify himself, the police officer may, subject to
such orders as may have been passed by a
competent Court in this behalf, arrest him for the
offence mentioned in the notice."
8) This provision needs to be read with the
provision of Section 41 of the Code. If the provision of the
old Code is compared with the amended provision it can
be said that some restrictions are put on the powers of the
police to arrest. They are expected to give now reasons
when the offence is punishable with imprisonment upto 7
years. The Apex Court had an opportunity to discuss this
(2014) 4 SCC 453 (Hema
provision in the case reported as
Mishra v. State of U.P.).
9) The discussion about the object behind Section
41A can be found in paragraph 20 of the case of Hema
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
7 Cr WP 416/2015 group
Mishra (cited supra) which reads as under :-.
" 20. Reference in this connection may also be made
to Section 41-A CrPC inserted vide Act 5 of 2009
w.e.f. 1-11-2010, which reads as follows:
" 41A - Notice of appearance before police
officer. (1) The police officer shall, in all cases
where the arrest of a person is not required
under the provisions of sub-section (1) of section
41, issue a notice directing the person against
whom a reasonable complaint has been made, or
credible information has been received,or a
reasonable suspicion exists that he has
committed a cognizable offence, to appear
before him or at such other place as may be
specified in the notice.
(2) Where such a notice is issued to any
person, it shall be the duty of that person to
comply with the terms of the notice.
(3) Where such person complies and
continues to comply with the notice, he shall
not be arrested in respect of the offence
referred to in the notice unless, for reasons to
be recorded, the police officer is of the opinion
that he ought to be arrested.
(4) Where such peon, at any time, fails to
comply with the terms of the notice or is
unwilling to identify himself, the police officer
may, subject to such orders as may have been
passed by a competent Court in this behalf,
arrest him for the offence mentioned in the
notice."
The abovementioned provisions make it compulsory
for the police to issue a notice in all such cases where
arrest is not required to be made under clause (b) of
sub-section (1) of the amended Section 41. But, all the
same, unwillingness of a person who has not been
arrested to identify himself and to whom a notice has
been issued under Section 41-A, could be a ground for
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
8 Cr WP 416/2015 group
his arrest. The legislation has laid down various
parameters, warranting arrest of a person, which itself
is a check on arbitrary or unwarranted arrest and the
right to personal liberty guaranteed under Article 21
of the Constitution of India."
The interpretation done by the Apex Court and the
provision itself show that whenever notice is issued to any
person by the investigating officer, such person is bound
to comply with the terms of the notice considering the
wording of section and considering provision of Section
41-A(1) which provides that satisfaction of the
investigating officer is sufficient for issuing such notice
and that can be done even on reasonable suspicion. It can
be said that Courts are not expected to lightly interfere in
this power of the police. It always needs to be kept in
mind by the Courts that it is the statutory power given to
the police to make investigation and the persons
interested are always trying to use some provisions to
protract the things. Present case can be said to be one of
such category. In the present case the investigating officer
remained present before this Court. He also made some
submissions and the report prepared by him is also seen
by the Court.
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9 Cr WP 416/2015 group
10) In the present proceedings contentions are
made by the petitioner that in the past the petitioner was
engaged in Goa Gutkha. He also admits that even at
present on the pouch of the Goa Gutkha there is his
photograph. In all the cases, Goa Gutkha pouches are
seized and Gutkha is banned in the State. The petitioner
wants to show that he was dealing in the Gutkha business
in the past but after the ban imposed he has given up the
business. This contention of the petitioner cannot be
considered by this Court in the present proceeding. The
power is with the police to ascertain such thing. He can
appear before police and he can explain the things to the
investigating officer. Such submission cannot be heard in
the proceedings like present one and this Court is not
expected to deal with factual aspects. It is a part of
investigation process and questioning the notice will
amount to curtailing the power and preventing
investigation by way permitted by the Code.
11) Learned counsel for the petitioner has placed
reliance on the following reported cases :-
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10 Cr WP 416/2015 group
(1) (2012) 5 SCC 1 (Ramlila Maidan Incident, In Re.) ;
(2) (2014) 8 SCC 273 (Arnesh Kumar v. State of Bihar) ;
(2014) 4 SCC 453 (Hema Mishra v. State of U.P.)
(3) ;
(4) (2000) 10 SCC 651 (State of Bihar v Shiv Shankar
Singh).
12) Facts of the reported cases are altogether
different. It needs to be kept in mind that some
restrictions are put on the powers given to police in
section 41 of the Code but the powers of arrest are still
kept there. The wording used, the circumstances
mentioned for using the provision of section 41-A are
similar to the provisions of section 41 of the Code. In view
of the wording, it needs to be presumed that it depends
on the subjective satisfaction of the police officer issuing
such notice whether to use this procedure or not. The
power under section 41-A is a part of the power given
under section 41 of the Code. It can be said that by
following procedure given in section 41-A of the Code, the
investigating officer gives opportunity to the accused or
suspect to explain the things and that way the provision is
for the benefit of the accused or the suspect. A suspect or
accused can avoid unnecessary arrest by taking this
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
11 Cr WP 416/2015 group
opportunity. The provision of section 41-A (3) of the Code
shows that after the appearance of the accused/suspect
and the compliance of the conditions of the notice by the
accused the investigating officer needs to give reasons if
he forms opinion that such person needs to be arrested.
Thus the provision enables the police officer to collect
information from the accused/suspect without effecting
arrest and so the provision is not that way against persons
like petitioner if the power given under section 41(1) of
the Code is kept in mind. The provision of section 41 of
Code is never declared ultra vires and section 41-A is
introduced in the Code to see that the power of arrest
given under section 41 is not used unnecessarily. It is a
safeguard on casual exercise of the power given under
section 41 of the Code. In view of these circumstances,
the argument advanced on the basis of Articles 20 and 21
of the Constitution cannot help the person like present
petitioner. This Court hopes that provision of section 41-A
of the Code will be used by concerned also when poor or
persons not having any kind of influence are found in
similar situation.
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12 Cr WP 416/2015 group
13) In the present case reports are given, crimes
are registered and articles like Gutkha in huge quantity
are recovered and seized. When there is ban on
manufacture, sale, possession of the Gutkha in this State,
Gutkha of petitioner's brand is found in this State. This
Court has no hesitation to hold that challenge against
proprietary of the notice issued under section 41A of the
Code has no force. In view of these circumstances, this
Court holds that it is not a fit case to set aside the notice
under challenge.
14) All the petitions are dismissed.
15) Learned counsel for the petitioner requests for
grant of time of four weeks as he wants to challenge the
order. No such time can be given in view of the
mandatoryness of the provision. The request is rejected.
Sd/- Sd/-
(Smt. I.K. JAIN, J.) (T.V. NALAWADE, J. )
rsl
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Criminal Writ Petition No.416 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. S.B. Talekar, Advocate, instructed by Shri. Pavan P .
Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
With
Criminal Writ Petition No.380 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. Pavan P. Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
2 Cr WP 416/2015 group
With
Criminal Writ Petition No.381 of 2015
Jagdishprasad M. Joshi. .. Petitioner.
Versus
The State of Maharashtra
And Another. .. Respondents.
--------
Shri. Pavan P. Uttarwar, Advocate, for petitioner.
Smt. R.K. Ladda, Additional Public Prosecutor, for
respondent Nos.1 and 2.
--------
CORAM: T.V. NALAWADE &
Smt. I.K. JAIN, JJ.
st
DATE : 31 MARCH 2015
ORDER:
1) All the three proceedings are filed to challenge
the notice given under section 41A (1) of the Code of
Criminal Procedure.
2) Criminal Writ Petition No.416 of 2015 is filed to
challenge the notice issued in respect of CR No.24/2014
registered in Ardhapur Police Station Nanded for offences
punishable under sections 179, 272, 273 etc. of the Indian
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
3 Cr WP 416/2015 group
Penal Code and sections 26(2)(i), 26(2), 27(3)(d), (e), 59
etc. of the Food Safety and Standard Act, 2006 and it is
mainly in respect of Goa Gutkha and other similar food
articles. In this crime Goa Gutkha worth Rs. 8.81 lakh was
seized. Charge sheet is already filed but the police wants
to make further investigation under section 178(3) of the
Code of Criminal Procedure. The present petitioner is not
shown as accused in the charge sheet but the material
seized and information collected shows connection of the
petitioner with Goa Gutkha manufacture.
3) Criminal Writ Petition No.380 of 2015 is filed
in respect of CR No.5/2015 registered with Hadgaon
Police Station Nanded for offences punishable under
sections 188, 273 of the Indian Penal Code and sections
26(2)(i), 26(2), 27(3)(d),(e), 59 etc. of the Food Safety and
Standard Act, 2006.
4) Criminal Writ Petition No.381 of 2015 is filed in
respect of Crime No.52/2014 registered at Kandhar Police
Station Nanded for offences punishable under sections
181, 272, 273 of the Indian Penal Code and sections 26(2)
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
4 Cr WP 416/2015 group
(i), 26(2), 27(3)(d), (e), 59 etc. of the Food Safety and
Standard Act, 2006.
5) Both the sides are heard.
6) The learned counsel for the petitioner mainly
submitted that some false record is created in respect of
Crime No.5/2015 registered in Hadgaon Police Station. He
also submitted that the notice was replied by the
petitioner and he had informed to police about the
circumstances that he had no concern with Goa Gutkha at
present and he wanted more information from police like
copies of FIR etc. Copy of the said notice cum reply dated
4-2-2015 is produced. The present proceeding came to be
filed on 18-3-2015. It can be said that in response to the
notice the petitioner did not appear before police when he
was expected to appear on 10-2-2015 in all the matters.
Here itself it needs to be observed that there is either
some mistake or there is possibility of having similar
registration number in respect of two FIRs. However,
these two crimes were registered on different dates in the
same police station. In the present matter, in view of other
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
5 Cr WP 416/2015 group
material this circumstance need not be dealt with in
detail.
7) The learned counsel for the petitioner argued
much on the provisions of Section 41-A of the Code of
Criminal Procedure and he submitted that this power is
not arbitrary and unless there is some material or
accusation against the petitioner, notice under section
41A (1) cannot be issued against the person like the
petitioner. Provision of Section 41A of the Code reads as
under :-
" 41A - Notice of appearance before police
officer. (1) The police officer shall, in all cases
where the arrest of a person is not required under
the provisions of sub-section (1) of section 41, issue
a notice directing the person against whom a
reasonable complaint has been made, or credible
information has been received, or a reasonable
suspicion exists that he has committed a cognizable
offence, to appear before him or at such other place
as may be specified in the notice.
(2) Where such a notice is issued to any person, it
shall be the duty of that person to comply with the
terms of the notice.
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
6 Cr WP 416/2015 group
(3) Where such person complies and continues to
comply with the notice, he shall not be arrested in
respect of the offence referred to in the notice
unless, for reasons to be recorded, the police officer
is of the opinion that he ought to be arrested.
(4) Where such person, at any time, fails to
comply with the terms of the notice or is unwilling
to identify himself, the police officer may, subject to
such orders as may have been passed by a
competent Court in this behalf, arrest him for the
offence mentioned in the notice."
8) This provision needs to be read with the
provision of Section 41 of the Code. If the provision of the
old Code is compared with the amended provision it can
be said that some restrictions are put on the powers of the
police to arrest. They are expected to give now reasons
when the offence is punishable with imprisonment upto 7
years. The Apex Court had an opportunity to discuss this
(2014) 4 SCC 453 (Hema
provision in the case reported as
Mishra v. State of U.P.).
9) The discussion about the object behind Section
41A can be found in paragraph 20 of the case of Hema
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
7 Cr WP 416/2015 group
Mishra (cited supra) which reads as under :-.
" 20. Reference in this connection may also be made
to Section 41-A CrPC inserted vide Act 5 of 2009
w.e.f. 1-11-2010, which reads as follows:
" 41A - Notice of appearance before police
officer. (1) The police officer shall, in all cases
where the arrest of a person is not required
under the provisions of sub-section (1) of section
41, issue a notice directing the person against
whom a reasonable complaint has been made, or
credible information has been received,or a
reasonable suspicion exists that he has
committed a cognizable offence, to appear
before him or at such other place as may be
specified in the notice.
(2) Where such a notice is issued to any
person, it shall be the duty of that person to
comply with the terms of the notice.
(3) Where such person complies and
continues to comply with the notice, he shall
not be arrested in respect of the offence
referred to in the notice unless, for reasons to
be recorded, the police officer is of the opinion
that he ought to be arrested.
(4) Where such peon, at any time, fails to
comply with the terms of the notice or is
unwilling to identify himself, the police officer
may, subject to such orders as may have been
passed by a competent Court in this behalf,
arrest him for the offence mentioned in the
notice."
The abovementioned provisions make it compulsory
for the police to issue a notice in all such cases where
arrest is not required to be made under clause (b) of
sub-section (1) of the amended Section 41. But, all the
same, unwillingness of a person who has not been
arrested to identify himself and to whom a notice has
been issued under Section 41-A, could be a ground for
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
8 Cr WP 416/2015 group
his arrest. The legislation has laid down various
parameters, warranting arrest of a person, which itself
is a check on arbitrary or unwarranted arrest and the
right to personal liberty guaranteed under Article 21
of the Constitution of India."
The interpretation done by the Apex Court and the
provision itself show that whenever notice is issued to any
person by the investigating officer, such person is bound
to comply with the terms of the notice considering the
wording of section and considering provision of Section
41-A(1) which provides that satisfaction of the
investigating officer is sufficient for issuing such notice
and that can be done even on reasonable suspicion. It can
be said that Courts are not expected to lightly interfere in
this power of the police. It always needs to be kept in
mind by the Courts that it is the statutory power given to
the police to make investigation and the persons
interested are always trying to use some provisions to
protract the things. Present case can be said to be one of
such category. In the present case the investigating officer
remained present before this Court. He also made some
submissions and the report prepared by him is also seen
by the Court.
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
9 Cr WP 416/2015 group
10) In the present proceedings contentions are
made by the petitioner that in the past the petitioner was
engaged in Goa Gutkha. He also admits that even at
present on the pouch of the Goa Gutkha there is his
photograph. In all the cases, Goa Gutkha pouches are
seized and Gutkha is banned in the State. The petitioner
wants to show that he was dealing in the Gutkha business
in the past but after the ban imposed he has given up the
business. This contention of the petitioner cannot be
considered by this Court in the present proceeding. The
power is with the police to ascertain such thing. He can
appear before police and he can explain the things to the
investigating officer. Such submission cannot be heard in
the proceedings like present one and this Court is not
expected to deal with factual aspects. It is a part of
investigation process and questioning the notice will
amount to curtailing the power and preventing
investigation by way permitted by the Code.
11) Learned counsel for the petitioner has placed
reliance on the following reported cases :-
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
10 Cr WP 416/2015 group
(1) (2012) 5 SCC 1 (Ramlila Maidan Incident, In Re.) ;
(2) (2014) 8 SCC 273 (Arnesh Kumar v. State of Bihar) ;
(2014) 4 SCC 453 (Hema Mishra v. State of U.P.)
(3) ;
(4) (2000) 10 SCC 651 (State of Bihar v Shiv Shankar
Singh).
12) Facts of the reported cases are altogether
different. It needs to be kept in mind that some
restrictions are put on the powers given to police in
section 41 of the Code but the powers of arrest are still
kept there. The wording used, the circumstances
mentioned for using the provision of section 41-A are
similar to the provisions of section 41 of the Code. In view
of the wording, it needs to be presumed that it depends
on the subjective satisfaction of the police officer issuing
such notice whether to use this procedure or not. The
power under section 41-A is a part of the power given
under section 41 of the Code. It can be said that by
following procedure given in section 41-A of the Code, the
investigating officer gives opportunity to the accused or
suspect to explain the things and that way the provision is
for the benefit of the accused or the suspect. A suspect or
accused can avoid unnecessary arrest by taking this
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
11 Cr WP 416/2015 group
opportunity. The provision of section 41-A (3) of the Code
shows that after the appearance of the accused/suspect
and the compliance of the conditions of the notice by the
accused the investigating officer needs to give reasons if
he forms opinion that such person needs to be arrested.
Thus the provision enables the police officer to collect
information from the accused/suspect without effecting
arrest and so the provision is not that way against persons
like petitioner if the power given under section 41(1) of
the Code is kept in mind. The provision of section 41 of
Code is never declared ultra vires and section 41-A is
introduced in the Code to see that the power of arrest
given under section 41 is not used unnecessarily. It is a
safeguard on casual exercise of the power given under
section 41 of the Code. In view of these circumstances,
the argument advanced on the basis of Articles 20 and 21
of the Constitution cannot help the person like present
petitioner. This Court hopes that provision of section 41-A
of the Code will be used by concerned also when poor or
persons not having any kind of influence are found in
similar situation.
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::
12 Cr WP 416/2015 group
13) In the present case reports are given, crimes
are registered and articles like Gutkha in huge quantity
are recovered and seized. When there is ban on
manufacture, sale, possession of the Gutkha in this State,
Gutkha of petitioner's brand is found in this State. This
Court has no hesitation to hold that challenge against
proprietary of the notice issued under section 41A of the
Code has no force. In view of these circumstances, this
Court holds that it is not a fit case to set aside the notice
under challenge.
14) All the petitions are dismissed.
15) Learned counsel for the petitioner requests for
grant of time of four weeks as he wants to challenge the
order. No such time can be given in view of the
mandatoryness of the provision. The request is rejected.
Sd/- Sd/-
(Smt. I.K. JAIN, J.) (T.V. NALAWADE, J. )
rsl
::: Uploaded on - 09/04/2015 ::: Downloaded on - 02/06/2024 02:55:08 :::