BNS Section 349: Selling Goods Marked With A Counterfeit Property Mark

Definition of BNS Section 349

Section 349 of the Bharatiya Nyaya Sanhita (BNS), 2023 states:

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.

Explanation and Illustration of BNS Section 349

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

• Offence

  This section deals with selling any goods that possess a false property mark. A property mark is a seal or insignia that is imprinted on movable property by the owner to demonstrate ownership of the product. Such marks are usually very unique and intricate so as to avoid counterfeiting. And modern property marks are applied by some sort of unique equipment or device that is not available in the market. This is also done to mitigate any counterfeiting action.
  
  Section 349 deals with persons who sell or make available for sale any item that has been marked by a counterfeited property mark. However, this section also provides three exceptions to the offence.
  
  (a) If a person comes into possession of an item with a property mark, and takes all the reasonable steps to authenticate such property mark and still finds the mark to be genuine at the time of selling the item, then such person cannot be held culpable under this section even if the property mark is found to be false afterwards.
  
  (b) And such person, on being informed by a prosecutor that such mark is fake, cooperates fully with the demands of the prosecutor and provides all information available to him.
  
  (c) And that at no point of this transaction did he ever perform any act of offence deliberately or suspiciously.

• Punishment

  Any person found guilty of selling goods bearing a false property mark shall be punished with imprisonmen for a term which may extend to one year, or with fine, or with both.
  
  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.
  • The offender is unaware of the false mark as described under the provisions of this section.

• 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.

• Illustration

  X acquires a valuable collection item bearing the property mark of a famous artist. He sells it to Y for a high price. Y later finds the property mark to be false. X is charged with offence under the provisions of Section 349.
  
  However, on enquiry, X produces an authentication certificate for the property mark from a reputed authentication agency and provides all the information regarding the seller he had bought it from so as to help identify the source of the counterfeiting. X is acquitted of his charges under the provisions of Section 349.

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