BNS Section 342: Counterfeiting Device Or Mark Used For Authenticating Documents Described In Section 338, Or Possessing Counterfeit Marked Material

Definition of BNS Section 342

Section 342 of the Bharatiya Nyaya Sanhita (BNS), 2023 states:

(1) Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document described in section 338, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who, with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

(2) Whoever counterfeits upon, or in the substance of, any material, any device or mark used for the purpose of authenticating any document or electronic record other than the documents described in section 338, intending that such device or mark shall be used for the purpose of giving the appearance of authenticity to any document then forged or thereafter to be forged on such material, or who with such intent, has in his possession any material upon or in the substance of which any such device or mark has been counterfeited, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Explanation and Illustration of BNS Section 342

This section is applicable to any person within the sovereign borders of India, whether citizen, resident or otherwise. It deals with the offence of counterfeiting authentication device. Let us break down the section to get a better understanding of it.

• Offence

  Sometimes in order to prevent a document from getting counterfeited, a unique mark is imprinted on the document with a device. This mark may be very intricate with certain tiny markers or details that may not be visible to the naked eye but can only be authenticated by someone who knows exactly where to look for these markers. Counterfeiting such markers by merely imitating them is usually impossible and one would need the device used to make the mark in order to counterfeit a document that is authenticated by that mark. This section provides for the offence of counterfeiting or illegally possessing such a device or mark used for authenticating documents. The offence has been categorised into two subsections. While fundamentally the offence remains the same in both, the conditions and circumstances under which these offences are performed can have differing consequences in terms of seriousness and punishment. Let us take a look at the two one by one.

• Subsection (1) one provides for the offence:

  • Counterfeiting or illegally possessing any device or mark which is used for authenticating documents
  • Possessing any document that has been marked with such counterfeited device or mark despite knowing that it is counterfeit.

• However, the provisions of this section are only applicable if such counterfeiting measures have been taken for forging documents as described under Section 338. Section 338 provides for forgery of valuable documents such as share certificates, wills, etc.
  
  Examples of such devices or marks are, unique marks used to authenticate share certificates or a notary’s seal used to authenticate a will.
  
  Subsection (2) provides for counterfeiting any device or mark used for authenticating all other documents other than the ones described under Section 338. Counterfeiting these marks or devices will be an offence under this subsection,
  
  An examples of such devices or marks are the hologram mark on a PAN card or the QR mark on the Aadhaar card. Counterfeiting these marks will be an offence under this subsection.

• Punishment

  Any person found guilty of counterfeiting or illegally possessing any device of mark used for authenticating documents as described under section 338, or possessing any document described under section 338 that has been marked with such a counterfeit device or mark shall be punished with imprisonment for life, or with imprisonment for a term which may extend to seven years, and shall also be liable to fine.
  
  Any person found guilty of counterfeiting or illegally possessing any device of mark used for authenticating any document other than the ones described under section 338, or possessing any document other than the ones described under section 338 that has been marked with such a counterfeit device or mark shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

• The above actions may not be an offence under this section if:

  • The offender is forced or coerced into performing the offence
  • The offender is a minor or not of sane mind.

• However, there may be other sections under the BNS under which the above actions can be prosecuted and while they may be disqualified under the provisions of this section, such actions will still be punishable under the provisions of those respective sections of the BNS.

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