Enhanced Penalty on a Second Conviction

In one line

A second conviction under section 103 or section 104 carries a higher floor, one year and one lakh rupees, and convictions under the repealed 1958 Act do not count.

The provision

"WHOEVER HAVING ALREADY BEEN CONVICTED of an offence UNDER SECTION 103 OR SECTION 104 IS AGAIN CONVICTED OF ANY SUCH OFFENCE shall be punishable FOR THE SECOND AND FOR EVERY SUBSEQUENT OFFENCE with IMPRISONMENT for a term which SHALL NOT BE LESS THAN ONE YEAR but which MAY EXTEND TO THREE YEARS, AND with FINE which SHALL NOT BE LESS THAN ONE LAKH RUPEES but which MAY EXTEND TO TWO LAKH RUPEES:

PROVIDED that the court may, FOR ADEQUATE AND SPECIAL REASON TO BE MENTIONED IN THE JUDGEMENT, impose a sentence of imprisonment for a term of LESS THAN ONE YEAR or a fine of LESS THAN ONE LAKH RUPEES:

PROVIDED FURTHER that for the purposes of this section, NO COGNIZANCE SHALL BE TAKEN OF ANY CONVICTION MADE BEFORE THE COMMENCEMENT OF THIS ACT."

Broken down

"Having already been convicted of an offence under section 103 or section 104." The earlier conviction may be under either section; the later may be under either. A man convicted under section 104 for selling, and later convicted under section 103 for making, is within the section.

"For the second and for every subsequent offence." The enhanced floor applies to the second, the third and every later conviction alike. There is no further escalation.

The floors rise, the ceilings do not. Imprisonment goes from a minimum of six months to a minimum of one year, but the maximum stays at three years. The fine goes from a minimum of fifty thousand to a minimum of one lakh, and the maximum stays at two lakh rupees.

And the same reducing proviso applies, in the same words: adequate and special reason, mentioned in the judgment.

The second proviso

"No cognizance shall be taken of any conviction made before the commencement of this Act."

The Act commenced on 15 September 2003, by notification S.O. 1048(E). So a conviction under the repealed Trade and Merchandise Marks Act 1958, or under any earlier law, is disregarded for the purposes of section 105.

Why the proviso exists. The 1958 Act had no minimum sentence. To let convictions obtained under a different and lighter regime trigger a one year minimum under a new Act would be to give the new law a retrospective sting, and the proviso prevents it.

A conviction after 15 September 2003 counts, whenever the offence was committed, because the proviso speaks of the date of the conviction.

The three sentencing provisions together