Bharatiya Nyaya Sanhita: Section 349 – Selling goods marked with a counterfeit property mark

Whoever sells, or exposes, or has in possession for sale, any goods or things with a counterfeit property mark affixed to or impressed upon the same or to or upon any case, package or other receptacle in which such goods are contained, shall, unless he proves—

(a) that, having taken all reasonable precautions against committing an offence against this section, he had at the time of the commission of the alleged offence no reason to suspect the genuineness of the mark; and

(b) that, on demand made by or 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

(c) that otherwise he had acted innocently,

be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Simplified Explanation

Section 349 of the Bharatiya Nyaya Sanhita 2023 deals with the sale or possession for sale of goods marked with a counterfeit property mark. This provision criminalizes the act of selling or possessing for sale goods that bear a counterfeit property mark, and it sets out a defense mechanism for those who can prove they acted innocently or took reasonable precautions.

Key Provisions of Section 349:

Selling or Possessing Goods with a Counterfeit Property Mark:

• Whoever sells, exposes, or possesses for sale any goods or items that are marked with a counterfeit property mark affixed to the goods or to any case, package, or receptacle containing the goods, shall be liable to punishment unless the following conditions are met:

Defenses Available:

A person charged under this section may avoid punishment if they can prove one or more of the following:

1. Reasonable Precautions: They had taken all reasonable precautions to avoid committing the offense, and had no reason to suspect the genuineness of the property mark at the time of the alleged offense.
2. Information Disclosure: Upon request by the prosecutor, they provided all available information about the persons from whom they obtained the goods.
3. Innocent Action: They otherwise acted innocently, without knowledge of the counterfeit nature of the mark.

Punishment:

• If the person is found guilty and fails to prove their innocence, they can be punished with:
  • Imprisonment of either description for a term that may extend to one year,
  • Or with a fine,
  • Or with both imprisonment and fine.

Summary:

Section 349 makes it a criminal offense to sell or possess for sale goods marked with a counterfeit property mark. It allows for a defense if the individual can prove they were unaware of the counterfeit mark and had taken steps to avoid committing the offense. The penalty for violation can include up to one year of imprisonment, a fine, or both.

Purpose:

This section aims to prevent the circulation of counterfeit goods by holding individuals accountable for selling or distributing products that have been fraudulently marked. It provides a fair opportunity for sellers to prove innocence if they can show they were not negligent or fraudulent in their actions.