Bharatiya Nyaya Sanhita, 2023 (BNS) Section 348: Counterfeiting Property Mark Instruments – Law & Case Laws

The Bharatiya Nyaya Sanhita, 2023 (BNS), marks a pivotal shift in Indian criminal law, replacing several provisions of the Indian Penal Code (IPC). Among its provisions, BNS Section 348 plays a crucial role in preserving the integrity of property marks—an essential part of commercial identity and consumer trust.

Understanding BNS Section 348

BNS Section 348 penalizes the act of making or possessing any instrument used to counterfeit a property mark. The section is preventive in nature, ensuring criminal liability arises even before the counterfeit mark is applied to goods or property.

Text of the Provision:
Whoever makes or has in his possession any die, plate or other instrument for the purpose of counterfeiting a property mark, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Essential Elements
To establish an offence under BNS Section 348, the prosecution must prove:

1. The person made or possessed an instrument.
2. The instrument was capable of counterfeiting a property mark.
3. There was intention or knowledge that it would be used for such a purpose.

What is a Property Mark?

A property mark refers to a distinctive symbol, logo, or sign used to indicate ownership over goods or movable property. It serves as a safeguard against theft, misappropriation, or unauthorized usage.

For example:

• A logistics company may stamp its parcels with a unique mark.
• An industrial unit may inscribe machinery with a distinct emblem.

Counterfeiting such marks misleads consumers, infringes on intellectual property, and damages brand credibility.

Short Note on BNS Section 348

This section closely aligns with Section 485 of the Indian Penal Code (IPC), which has now been repealed under the BNS framework.

Relevant Case Laws

State of Maharashtra v. Yusuf Yusufbhai Patel (1968)
In this case, authorities seized packaging materials bearing fake labels of a reputed brand. Although the goods were not yet distributed, the mere possession of counterfeit-making tools was considered sufficient to establish criminal intent.
Judgment: The court held that intent and possession of instruments, even without direct usage, fulfilled the conditions for conviction.

Ciba Ltd. v. M. Ramalingam (1968 AIR 1104)
The accused had created tools to replicate the trade dress of a pharmaceutical company. Though the counterfeit drugs were not circulated, the tools themselves pointed to the intent to deceive.
Held: Counterfeit tools used for mimicking registered marks undermine commercial ethics and endanger public health.

Cadbury India Ltd. v. Neeraj Food Products (2007)
Though primarily a civil case under trademark law, the defendant was found using packaging identical to Cadbury’s product design. The court stressed that such acts, when supported by counterfeit tools, invite criminal and civil liability.

Legal Interpretation and Application

BNS Section 348 is designed as a proactive tool in combating commercial fraud. It doesn’t wait for actual damage or distribution of fake goods. Instead, it targets the preparatory phase—creation or possession of instruments capable of counterfeiting property marks.

This provision ensures:

• Protection of trademarked commercial identity
• Prevention of economic offences
• Strengthening of consumer protection frameworks

Illustrations and Practical Scenarios

Example 1:
A factory is raided and found in possession of metal dies used to replicate a well-known brand’s logo on textile tags. Even if no counterfeit clothing is found, the act of possessing these dies can lead to prosecution under BNS Section 348.

Example 2:
An individual stores rubber stamps that mimic packaging markings used by a government-certified food agency. These instruments, though unused, are sufficient to invoke criminal liability.

Evidentiary Challenges

The success of prosecution depends on proving:

• The instrument is indeed capable of counterfeiting
• The accused had intent or knowledge regarding its use

Expert testimony, forensic analysis of seized materials, and circumstantial evidence often form the basis of proof.

Possible Defences

An accused may raise the following defences:

• Absence of intent: The tools had no connection to any property mark
• Lawful possession: The instruments were used for legitimate purposes
• Lack of knowledge: The items were unknowingly stored

However, courts typically examine the totality of circumstances, including location, nature of tools, and any history of previous offences.

Connection with Other BNS Provisions

• Section 347 – Counterfeiting of property marks
• Section 349 – Counterfeiting marks used by public servants or authorities
• Bharatiya Sakshya Adhiniyam – Governs the evidentiary process in such cases

In serious matters, charges under intellectual property laws and the Trade Marks Act, 1999 may also be applicable concurrently.

Conclusion

BNS Section 348 serves as a crucial provision in India’s fight against counterfeit trade and intellectual property violations. It criminalizes not just the act of counterfeiting but the very intent and preparation behind it.

In an age where brand identity and product authenticity play a significant role in consumer decisions, legal safeguards like Section 348 uphold commercial integrity and consumer trust.

Stakeholders in manufacturing, distribution, and branding must remain vigilant against misuse of tools and instruments that may fall within the purview of this provision.

Disclaimer

This article is intended for informational and academic purposes only and does not constitute legal advice. For specific legal concerns or case-related queries, readers are advised to consult a qualified legal professional.