The advertisement of a breast development instrument and a pamphlet describing its use are not offending articles within the meaning of section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, where the instrument is not a drug as defined in section 2(b) of the Act and the advertisement does not refer to any magic remedy as defined in section 2(c) of the Act.

Headnote:
DRUGS AND MAGIC REMEDIES (OBJECTIONABLE ADVERTISEMENTS) ACT, 1954 - SECTION 3(D) - ADVERTISEMENT OF BREAST DEVELOPMENT INSTRUMENT - NOT AN OFFENDING ARTICLE - CONVICTION QUASHED.
Fact of the Case:

The accused, the sole proprietress of a shop called M/s. Breast Beauty Stores, was convicted for contravening the provisions of section 7 read with section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (Drugs Act). The conviction was based on the advertisement of a bust developer instrument and a pamphlet describing its use. The accused challenged the conviction, arguing that the instrument was not a drug within the meaning of the Drugs Act and that the advertisement did not refer to any magic remedy.
Finding of the Court:

The court held that the instrument and the pamphlet were not offending articles within the meaning of section 3 of the Drugs Act. The court found that the instrument was not a drug as defined in section 2(b) of the Act because it did not have any reference to any of the ailments specified in Clauses (a) to (c) of section 3 of the Act. The court also found that the advertisement did not refer to any magic remedy as defined in section 2(c) of the Act.
Issues: 1. Whether the instrument and the pamphlet were offending articles within the meaning of section 3 of the Drugs Act? 2. Whether the advertisement referred to any magic remedy as defined in section 2(c) of the Act?
Ratio Decidendi: 1. The court held that the instrument was not a drug as defined in section 2(b) of the Act because it did not have any reference to any of the ailments specified in Clauses (a) to (c) of section 3 of the Act. The court also found that the advertisement did not refer to any magic remedy as defined in section 2(c) of the Act. 2. The court held that the word 'article' used in section 2(b)(iii) of the Act must have a reference to certain ailments as provided by Clauses (i) and (ii) of Clause (b) of section 2 of the Act in order to give full meaning of article especially in view of Clause (iv) of Clause (b) of section 2 of the Act.
Final Decision: The court allowed the petition, set aside the conviction and sentence passed by the lower courts, and acquitted the accused.

JUDGMENT - S.J. DESHPANDE, J.:---This petition is filed by the original accused under Articles 226 and 227 of the Constitution of India challenging the order of conviction passed against the accused for the contravention of the provisions under section 7 read with section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (Act No. 21 of 1954) (hereinafter referred to as the "Drugs Act"). The conviction was recorded on November 29, 1978 in Criminal Case No. 82/S of 1978 and the same was upheld in the revisions by the learned Additional Sessions Judge, Greater Bombay by his judgment and order dated January 8, 1981 in Revision Application No. 11 of 1979.

2. The accused Smt. Kantirani J. Mangal is the sole proprietress of a shop called M/s. Breast Beauty Stores. This store was established in the year 1974. The accused is selling the articles known as Bust Developer and while advertising this Bust Developer, which is an instrument to be used for a proper development of breast of a woman, it is alleged that the accused had advertised a booklet in the form of Exhibit 'A' depicting the photograph of a women showing the use of bust developer with another photograph showing the instrument itself and the sketch of the supposed pump which is to be utilised in the process of using of this instrument. The instrument and the booklet are sold top the customers and they are separately charged.

3. On August 10, 1977, Drug Inspector Suhas Shamrao Anyaphanwar, who is the sole witness on behalf of the prosecution in this case raided the shop of the accused situated at Dadar, Bombay and seized the following articles :

1. Instrument which is called bust developer; and

2. Pamphlets in Hindi, Marathi and English containing the detailed description of the use of the instrument in one of the parts and in another part prefacing the introduction giving object and purpose of bust developer.

In Exhibit 'A', first six paras show that there is a general description on the importance of the developed breast as far as women are concerned. There is a reference to Kalidas and Urvashi in relation to the description of the breast. The pamphlet, which is produced in this application, is in the English. The first six paragraphs of this pamphlets can be said to be the general introduction in regard to the position of developed breast for the purpose of beauty of females. This pamphlet further goes on to emphasise that in regard to muscular structure of a women it is necessary that the breast development should be carefully followed. It has commented on the other remedies and lastly it is stated in this pamphlet, the material portion of which is given in paragraph 9, how the instrument is to be used.

4. After the seizure of the pamphlets, 70 in English, 40 in Hindi and 70 in Marathi under the panchanama, the accused was prosecuted for the contravention of section 3 of the Drugs Act. The prosecution examined only one witness i.e, Inspector in support of its case.

5. The accused admitted the fact of seizure of the pamphlet and possession of the instrument as well as pamphlets. The defence of the accused is that the alleged product is not a drug within the meaning of the Drugs Act. It is the defence of the accused that the instrument is duly registered on October 18, 1975 at Serial No. 1995, Design No. 143514 with the Registrar of Trade Marks and Patents, therefore, the instrument is not an offending instrument. She denied to have advertised the same.

6. On the basis of these facts and the evidence of the witness for the prosecution, Suhas Shamrao Anyaphawar, the Drug Inspector, the learned trial Magistrate convicted the accused for the contravention of section 3 of the Drugs Act. However, he only sentenced her to pay a fine of Rs. 200/- in default to suffer R.I. for two months. The learned Magistrate found the instrument called bust developer is marketed by the accused and it is a drug within the meaning of the Drugs Act. It was also advertised and,

Click Here to Read the rest of this document

Judicial Analysis