KembaraXtra - Bharatiya Nyaya Sanhita - Section 349: Selling Goods Marked with a Counterfeit Property Mark



Q1. What does Section 349 of the Bharatiya Nyaya Sanhita provide?

Answer:

Section 349 of the Bharatiya Nyaya Sanhita, 2023 (BNS) makes it an offence for any person to:

• Sell;
• Expose for sale; or
• Possess for the purpose of sale,

any goods or articles upon which a counterfeit property mark has been affixed or impressed.

The offence also applies where the counterfeit property mark appears not only on the goods themselves but also on:

• The case;
• Package;
• Box;
• Carton;
• Container; or
• Any other receptacle containing the goods.

The section aims to protect genuine ownership, commercial honesty, consumer confidence, and fair trade by preventing the circulation of falsely marked goods in the marketplace.

Example / Application:

A shopkeeper knowingly sells cartons of electrical appliances bearing a counterfeit manufacturer's property mark to deceive customers into believing they are genuine products. Such conduct attracts liability under Section 349.

Q2. What is the object of Section 349?

Answer:

The principal object of Section 349 is to prevent fraudulent trade involving counterfeit property marks.

Property marks identify the ownership or origin of goods. Counterfeit property marks create confusion regarding ownership and may enable dishonest traders to profit from deception.

The provision seeks to:

• Protect lawful owners of goods.
• Protect consumers from fraudulent purchases.
• Preserve confidence in commercial transactions.
• Prevent circulation of falsely marked goods.
• Discourage dishonest trade practices.

By penalising not only the manufacturer but also sellers and dealers, the law attempts to remove counterfeit goods from the market.

Example / Application:

A dealer sells construction materials falsely bearing the property mark of a reputed company. Customers purchase them believing they are genuine. Section 349 protects both the rightful owner and the consumers.

Q3. Which provision of the Indian Penal Code corresponds to Section 349 of the Bharatiya Nyaya Sanhita?

Answer:

Section 349 of the Bharatiya Nyaya Sanhita, 2023 corresponds to Section 486 of the Indian Penal Code, 1860.

The language of the provision has been retained without any substantive change.

Accordingly, the legal principles governing the offence continue to apply under the Bharatiya Nyaya Sanhita.

Q4. What are the essential ingredients of the offence under Section 349?

Answer:

To establish an offence under Section 349, the prosecution must prove the following ingredients:

First Ingredient – Goods Bearing a Counterfeit Property Mark

The goods or articles must bear a counterfeit property mark.

The counterfeit mark may appear:

• Directly on the goods; or
• On any case, package, carton, container, or other receptacle containing the goods.

Second Ingredient – Prohibited Conduct

The accused must have:

• Sold the goods;
• Exposed the goods for sale; or
• Possessed the goods for the purpose of sale.

Mere ownership without the intention to sell does not ordinarily attract this provision.

Third Ingredient – Failure to Establish the Statutory Defences

Once the prosecution establishes the above facts, the accused must prove one of the statutory defences available under Section 349.

Example / Application:

A trader keeps counterfeit-branded mobile accessories in his shop for sale. Even if no sale has yet taken place, possession for sale satisfies the requirements of Section 349.

Q5. What is meant by a "counterfeit property mark"?

Answer:

A property mark is a mark used to indicate that movable property belongs to a particular owner.

A counterfeit property mark is a false or imitation property mark intended to make others believe that the goods belong to, or originate from, a person who is not their true owner.

Such marks are used to deceive purchasers, dealers, transporters, or public authorities.

Example / Application:

A trader places the property mark of a well-known textile manufacturer on garments produced by another factory. The mark is counterfeit.

Q6. Does Section 349 apply only when the counterfeit mark appears on the goods themselves?

Answer:

No.

The section has a wider scope.

Liability arises if the counterfeit property mark is affixed or impressed:

• On the goods themselves; or
• On the case;
• Package;
• Box;
• Carton;
• Bag;
• Container; or
• Any other receptacle in which the goods are contained.

This prevents traders from escaping liability merely because the false mark appears on the packaging rather than on the goods.

Example / Application:

A carton containing ordinary watches bears the counterfeit property mark of a famous watch manufacturer, although the watches themselves are unmarked. Section 349 still applies.

Q7. What are the statutory defences available under Section 349?

Answer:

Section 349 provides three statutory defences.

The accused must prove any one of the following.

Defence 1 – Reasonable Precautions

The accused must establish that:

• He took all reasonable precautions to avoid committing the offence; and
• At the time of sale or possession, he had no reason to suspect that the property mark was counterfeit.

This defence protects honest dealers acting with due care.

Defence 2 – Disclosure of Information

The accused must prove that:

• Upon demand made by or on behalf of the prosecutor,
• He supplied all information within his power regarding the persons from whom he obtained the goods.

This encourages cooperation with investigating authorities.

Defence 3 – Innocent Conduct

The accused may also prove that:

• He otherwise acted innocently.

This enables genuinely innocent traders to avoid criminal liability.

Example / Application:

A retailer purchases goods from an authorised distributor, verifies the invoices, and later discovers that the goods bear counterfeit property marks. If the retailer proves reasonable precautions and provides complete information regarding the supplier, the statutory defence may succeed.

Q8. What is meant by "reasonable precautions"?

Answer:

Reasonable precautions refer to the steps that an ordinary prudent trader would take before purchasing or selling goods.

These may include:

• Purchasing goods from authorised dealers.
• Examining invoices and purchase records.
• Checking manufacturer details.
• Verifying authenticity certificates.
• Inspecting labels and packaging.
• Maintaining proper business records.

The law does not require absolute certainty but expects reasonable commercial diligence.

Example / Application:

A wholesaler verifies supplier registration, GST documents, invoices, and manufacturer authorisation before purchasing goods. Such conduct may constitute reasonable precautions.

Q9. Why does the law require disclosure of the supplier's identity?

Answer:

The law encourages traders to assist the authorities in tracing the actual source of counterfeit goods.

Accordingly, if demanded by the prosecutor, the accused should provide:

• The supplier's name.
• Address.
• Business details.
• Purchase invoices.
• Any other information within his knowledge.

Failure to cooperate may deprive the accused of the statutory defence.

Example / Application:

A retailer produces invoices, supplier details, transport records, and purchase orders when questioned by investigators. This may support the defence under Section 349.

Q10. What is meant by "acted innocently"?

Answer:

A person acts innocently when he has:

• No dishonest intention.
• No knowledge of the counterfeit mark.
• No reasonable ground to suspect fraud.
• Conducted business honestly and in good faith.

The burden of proving innocence lies upon the accused.

Example / Application:

A newly appointed sales employee unknowingly sells goods already stocked by the employer and bearing counterfeit property marks. Depending on the facts, the employee may establish innocent conduct.

Q11. Who bears the burden of proving the statutory defences?

Answer:

Unlike the general rule in criminal law, Section 349 places a reverse burden upon the accused.

The prosecution must first establish that:

• The goods bore a counterfeit property mark; and
• The accused sold, exposed for sale, or possessed them for sale.

Thereafter, the accused must prove one of the statutory defences, namely:

• Reasonable precautions.
• Disclosure of information.
• Innocent conduct.

If none of these defences is established, criminal liability follows.

Example / Application:

A shopkeeper found selling counterfeit-branded cosmetics must prove that he acted diligently and innocently if he wishes to rely on the statutory defences.

Q12. What is the punishment under Section 349?

Answer:

A person convicted under Section 349 is punishable with:

• Imprisonment of either description for a term which may extend to one year; or
• Fine; or
• Both imprisonment and fine.

Classification

The offence is:

• Non-cognizable.
• Bailable.
• Triable by any Magistrate.

Example / Application:

A trader convicted of selling goods bearing counterfeit property marks may be sentenced to imprisonment, fine, or both depending upon the gravity of the offence.

Q13. Why is Section 349 important?

Answer:

Section 349 plays an important role in protecting the integrity of commercial transactions.

The provision:

• Protects consumers from deception.
• Safeguards the rights of genuine owners.
• Discourages counterfeit trade.
• Promotes fair competition.
• Strengthens confidence in commercial markets.

The statutory defences ensure that honest traders who exercise reasonable care are not unfairly punished, while dishonest dealers cannot escape liability merely by claiming ignorance.

Example / Application:

The sale of counterfeit pharmaceutical products bearing false property marks may endanger public health. Section 349 helps prevent such fraudulent practices and promotes accountability in trade.

Key Provisions (Study Notes)

Section 349

Punishes any person who:

• Sells;
• Exposes for sale; or
• Possesses for sale,

goods bearing a counterfeit property mark.

The counterfeit mark may appear:

• On the goods; or
• On the case, package, carton, container, or any other receptacle containing the goods.

Corresponding IPC Provision

• Equivalent to Section 486 of the Indian Penal Code, 1860.
• The language of the provision remains unchanged under the Bharatiya Nyaya Sanhita.

Essential Ingredients

• Goods bear a counterfeit property mark.
• The accused:
• Sells the goods;
• Exposes them for sale; or
• Possesses them for sale.
• The accused fails to establish any statutory defence.

Statutory Defences

The accused may avoid liability by proving:

• He took all reasonable precautions and had no reason to suspect the genuineness of the mark.
• He supplied all available information regarding the supplier upon demand.
• He otherwise acted innocently.

Burden of Proof

• The prosecution must prove the sale, exposure for sale, or possession for sale of goods bearing a counterfeit property mark.
• The accused bears the burden of proving one of the statutory defences.

Classification

• Non-cognizable.
• Bailable.
• Triable by any Magistrate.

Punishment

• Imprisonment up to 1 year; or
• Fine; or
• Both.

Key Takeaway

Section 349 of the Bharatiya Nyaya Sanhita, 2023 criminalises the sale, exposure for sale, or possession for sale of goods bearing a counterfeit property mark, whether the mark appears on the goods themselves or on their packaging or receptacle. The provision protects consumers, genuine owners, and commercial integrity by preventing the circulation of falsely marked goods in the marketplace. While it imposes liability on those dealing in counterfeit-marked goods, it also safeguards honest traders by providing statutory defences where they have taken reasonable precautions, cooperated with investigators, or otherwise acted innocently. Thus, Section 349 strikes a balance between effective enforcement against counterfeit trade and fairness to bona fide dealers.