The Bharatiya Nyaya Sanhita, 2023 (BNS), a modernized criminal code replacing the Indian Penal Code, has introduced a series of provisions aimed at streamlining the justice system and enhancing the enforcement of economic and property-related crimes. One such provision is BNS Section 349, which addresses the sale of goods marked with counterfeit property marks. This section plays a pivotal role in deterring counterfeiting, protecting intellectual property rights, and preserving consumer trust.
Short Note on BNS Section 349
Section 349 of the Bharatiya Nyaya Sanhita, 2023 criminalizes the act of selling, offering for sale, or possessing for sale any goods marked with a counterfeit property mark, provided the seller knows or has reason to believe the mark is counterfeit. This section protects genuine brand owners from infringement and ensures consumers are not misled by fraudulent representations.
Text of BNS Section 349
“Whoever sells, or exposes, or has in possession for sale, any goods or things with a counterfeit property mark affixed, knowing or having reason to believe the same to be counterfeit, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”
Essential Ingredients
To invoke liability under BNS Section 349, the following must be established:
- Sale or exposure for sale, or possession of goods for sale.
- Affixation of a counterfeit property mark on those goods.
- The knowledge or reasonable belief of the counterfeit nature.
Mere possession is insufficient unless accompanied by knowledge or intent. The mental element (“mens rea”) remains central to the offence.
Definition of Counterfeit Property Mark
A property mark is a mark used to indicate that goods belong to a particular person or business. A counterfeit property mark refers to a deceptive imitation of that mark, made with the intent to mislead consumers or gain undue commercial advantage. For instance, using a logo closely resembling “Nike”, “Samsung”, or “Rolex” on unauthorised products would fall under this definition.
Key Case Laws of BNS Section 349
State of Maharashtra v. Shree Amrut Soap Factory (2003)
In this case, soaps bearing a logo deceptively similar to a reputed brand were sold in the market. Though the soap was of reasonable quality, the court held that deception through branding was sufficient to attract criminal liability, as it undermined consumer trust.
Coca-Cola Co. v. Bisleri International Pvt. Ltd. (2009)
While primarily a civil case under trademark law, the Delhi High Court emphasized that selling goods with deceptively similar marks can lead to criminal liability, aligning with the objectives of provisions like BNS Section 349.
S.S. Batra v. State (Delhi High Court, 2018)
Here, the accused was found selling footwear imitating international brands. The court inferred knowledge of the counterfeit mark based on the price discrepancy, unverified source, and poor packaging, confirming that circumstantial evidence can establish culpability.
Nature of the Offence
Punishment: Imprisonment up to one year, or fine, or both.
Cognizability: Non-cognizable – police cannot arrest without court permission.
Bailability: Bailable – the accused has the right to be released on bail.
Interpretation of “Knowledge or Reason to Believe”
Courts generally look at:
- Pricing anomalies – e.g., luxury products sold at abnormally low prices.
- Source of goods – absence of legitimate procurement documentation.
- Packaging quality – misspellings, cheap material, and incorrect logos.
- Reputation of the seller – prior involvement in counterfeit sales.
These factors help determine whether the accused knew or ought to have known that the property mark was counterfeit.
Practical Implications for Businesses
For Sellers and Retailers:
- Ensure goods are procured from authorized distributors.
- Maintain proper invoices and records of procurement.
- Avoid deals that appear too good to be true.
- Verify branding and labeling carefully before stocking items.
For Manufacturers:
- Invest in intellectual property protection (trademarks, patents).
- Periodically audit markets for counterfeit products.
- Educate distribution chains about the legal risks of counterfeit sales.
Examples of BNS Section 349 Offending Conduct
- A street vendor selling “Ray-Ban” sunglasses with forged branding.
- Online listings of “Apple” chargers that are counterfeit imitations.
- Distributors of “branded” pharmaceuticals using fake packaging.
- Retailers offering apparel with forged tags and logos.
Even if these products are not manufactured by the seller, knowingly selling or possessing them for sale brings liability under BNS Section 349.
Difference from Trademark Infringement
While trademark infringement is a civil wrong under the Trade Marks Act, 1999, BNS Section 349 introduces criminal liability for counterfeit mark usage. A brand owner can simultaneously pursue civil damages and criminal prosecution.
Consequences of Violation
- Legal penalties: Imprisonment, fines, or both.
- Seizure of counterfeit goods.
- Loss of business reputation.
- Potential blacklisting from supplier networks or e-commerce platforms.
- Exposure to civil suits for damages by the aggrieved brand owner.
Enforcement Challenges
Despite its utility, enforcement of BNS Section 349 faces hurdles such as:
- Lack of consumer awareness.
- Difficulty in proving “knowledge”.
- Poor coordination between trademark holders and law enforcement.
However, with rising focus on consumer rights and intellectual property enforcement, this section can become an effective tool.
Conclusion
BNS Section 349 Selling goods marked with a counterfeit property mark is a welcome provision aimed at curbing deceptive practices in commerce. It reinforces accountability across the supply chain and upholds the integrity of genuine brands. Importantly, it ensures that consumers are not misled by counterfeit marks that misrepresent the origin or quality of goods. Businesses must remain vigilant and ensure they are not inadvertently violating this law, as ignorance of the counterfeit nature is not always a sufficient defense.
Disclaimer
This article is intended for general informational purposes only and does not constitute legal advice. Readers are advised to consult a qualified legal professional for specific legal concerns or litigation matters relating to BNS Section 349 or trademark infringement.
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