News Features

Are search warrants properly used?

By Kirthisiri Jayasinghe
It has become a common practice these days for warrants to be obtained to search premises suspected of having infringed goods or materials used for such purposes defined under the Intellectual Property Act, No.36 of 2003. This no doubt is a desirable provision if consistently applied, but there seem to be doubts as to the stage at which such a search warrant could be obtained.

The fundamental question is, whether a search warrant is available -
1. On merely filing information in court, of an offence of infringement being committed, or
2. Only after a named suspect is brought before court and charged with the offence of infringement as set out in Section 197 of the Act.
Therefore, the question is whether a search warrant could be obtained against a person before he is ‘formally charged in court.’
The relevant Sub-Sections of Section 197states –

“197. (1) (a), Upon receipt of information of an offence being committed under this Part, a Magistrate may issue either a summons requiring the person alleged to have committed such offence to appear in court and show cause or where such person fails to appear issue a warrant for the arrest of such person;
(b). The Magistrate may, upon being satisfied by information on oath that there are reasonable grounds to believe that any goods or things by means of which, or in relation to, which such alleged offence has been committed are in any house or premises of the person charged on the basis of such information, or in his possession or under his control, in any place, such Magistrate may issue a warrant under his hand.”
Sub-section (c) sets out the procedure to be followed in executing the search warrant so issued and taking into custody any incriminating material.

The cardinal difference between Subsection 1 (a) and (b) quoted above, is that Subsection (a) is available against a person alleged to have committed an offence and who fails to appear before court on summons whereupon the Magistrate may issue a warrant for the arrest of such person.
Whereas Subsection (b) empowers a Magistrate to issue a warrant to search the premises of a person charged for incriminating evidence on being satisfied on information on oath.

It is patently clear from the wording of this sub-section that it applies only to a person charged and not to one alleged to have committed an offence under the relevant provisions of the Act. The difference between ‘a person charged’ and ‘one alleged’ as set out in Subsections (a) and (b) above therefore is of paramount importance. Section 182 of the Code of Criminal Procedure sets out the stage at which one becomes ‘a person charged.’ It is different from ‘one alleged’ or ‘accused.’ This Section of the Code of Criminal Procedure is reproduced here for greater clarity:

“182. (1) Where the accused appears or is brought before the court, the Magistrate shall, if there is sufficient ground for proceeding against the accused, frame a charge against the accused.
(2). The Magistrate shall read such charge to the accused and ask him if he has any cause to show why he should not be convicted.”

It would therefore appear that the pre-requisite to issue a warrant to search any premises of any person under the Intellectual Property Act is that he should be first charged, i.e. the procedure set out in Section 182 of the Code of Criminal Procedure should be first satisfied. Then and only then, would the Magistrate consider issuing a search warrant under Section 197 (1) (b) of the Intellectual Property Act.

It would also be relevant to mention that the Intellectual Property Act is a special law and any provisions set out therein has precedence over other similar provisions, if any, in any other law. Thus, the search warrant procedure set out in Section 197 of the Intellectual Property Act stands by itself notwithstanding similar procedure in any other legal enactment.
It would be of academic interest to trace the origin and the rationale behind the provision relating to search warrants in intellectual property law. Intellectual property litigation is mostly governed by the general principles of civil procedure. This procedure of obtaining search warrants on ex-parte evidence first came into existence in Great Britain in the Case of Anton Piller vs Manufacturing Processes, 1976 RPC 719. This procedure has now been given statutory force by its enactment into the UK. Civil Procedure Act of 1997 thereby emphasising the civil nature of such matters. It is in this context that the Sri Lankan law has provided certain safeguards in the issue of search warrants, where necessary, only in respect of persons charged as set out above.
(The writer an Attorney-at-Law is the Former Registrar of Patents and Trade Marks and UNDP Consultant)