Whether proviso to Section 115(4) of TM Act is applicable to search warrants issued by the Courts under Section 93 of Code of Criminal Procedure? (Whether the opinion of Registrar is required even when the search warrant is issued by the court u/s 93?)
The court started with the interpretation of the term ‘proviso’ and pointed out that a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. The court observed that the proviso to Section 115(4) cannot be interpreted beyond the section.i.e., it is restricted only to those searches by the police which are conducted without warrant. There is no indication in the language that the proviso is intended to apply as a proviso to Section 93 of the Code. The two provisions operate independently as one relates to searches pursuant to warrants issued by the courts and the other relates to searches by police officers without a Court warrant.
It was also observed that the court may take the opinion of Registrar before issuing a search warrant under Section 93 but that opinion will not be binding. It is upto the discretion of the court whether it wants to take the opinion or not.
The court has rightly determined that the proviso to Section 115 (4) of the Trademarks Act is limited in its scope and applies only to search conducted by police officers without warrant. It however, does not override the provisions of other statutes and laws such as Section 93 of the Code of Criminal Procedure. Thus if a search warrant is issued by the court under Section 93, the opinion of the Registrar of TM is not mandatory for police officers.
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