Mere possession of an object bearing a fake ISI mark does not establish an offence without proof of its use, Kerala High Court rules

The Bureau of Indian Standards (BIS) alleged that, during an inspection of the first respondent’s factory, officials found a roller bearing a spurious ISI mark and a similar mark on the factory wall.

The BIS prosecuted the firm and its partners under Sections 11 and 12 read with Section 33 of the Bureau of Indian Standards Act, 1986. The Magistrate acquitted them, finding that the prosecution had not proved use of the mark on any manufactured goods and had not satisfactorily proved the seizure or working condition of the roller. BIS appealed.

1. Whether the Magistrate erred in finding that the prosecution failed to prove an offence under Section 11 read with Section 33 of the BIS Act, 1986

2. Whether the Magistrate erred in finding that the prosecution failed to prove an offence under Section 12 read with Section 33 of the BIS Act, 1986

3. Whether the Magistrate’s acquittal should be interfered with

Section 11 of the BIS Act, 1986 prohibits using the Standard Mark, or a colourable imitation of it, in relation to an article or process, or in a patent title, trade mark or design, except under licence; Section 12 prohibits specified uses of names or marks containing “Indian Standard” or related expressions without the Bureau’s previous permission. Contravention of these provisions is punishable under Section 33.

The statutory prohibition concerns use of the mark; mere possession of an object capable of affixing a spurious mark, without evidence that the mark was used, does not attract Sections 11 or 12 read with Section 33.

The Court held that the Act’s use of the word “use,” and its omission of “possess,” did not permit criminal liability to be imposed on the basis of mere possession of a spurious mark.

No manufactured goods bearing the alleged mark were detected, seized or produced. The evidence instead concerned a roller allegedly bearing the mark and a mark on the factory wall; it did not establish that the mark had been used in manufacturing goods. The Magistrate therefore correctly found the alleged statutory contraventions unproved.

The Magistrate’s judgment acquitting the accused was confirmed.