A.S. OKA, J.

The Petitioner Company carries on business, inter alia, of retail/direct marketing of products. It is stated that the Petitioner is marketing' a product known as "STEP-UP Body Growth Formula" manufactured by M/s. Siddhi Vinayak Herbals at village Anandnagar, Gwali Palasiya, Tehsil Mhow, District Indore, Madhya Pradesh. There is a license issued by the Licensing Authority, the Indian System of Medicine & Homeopathy, Madhya Pradesh to M/s Siddhi Vinayak Herbals to manufacture SET-UP Body Growth Formula Powder which is a proprietary ayurvedic medicine. The Petitioner has stated that the said license has been issued on 29th January 2011. The Petitioner got scripts prepared for advertising the said product on television channels. The Petitioner by this petition has challenged the action of the Food and Drugs Administration of the State of Maharashtra of issuing communications to various television channels. By the said communications, the channels have been informed that under the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter referred to as the said Act of 1954), no person shall take any part in the publication of any advertisements referring to any drugs which in terms suggest or are calculated to lead to the use of that drug for diagnosis, cure, mitigation, treatment or prevention of any disease or disorders or condition specified in the schedule of the said Act of 1954. The channels were directed to stop telecasting of the advertisements of the said product sold by the Petitioner. The prayer in this Petition is for quashing said communications issued to various television channels.

2. There is a reply filed by Shri V.A. Jawadekar, the Assistant Commissioner in the office of the Food and Drug Administration, Government of Maharashtra on behalf of the second to seventh Respondents. In the reply, a reliance is placed on Clause (d) of Sub section (3) of the said Act of 1954. It is contended that the advertisement of the said product by the Petitioner squarely falls within the prohibition imposed by Section 3 of the said Act of 1954.

3. The learned senior counsel appearing for the Petitioner submitted that the prohibition under Section 3 of the said Act of 1954 extends only to harmful and/or prohibited drugs. He submitted that the product SET-UP body growth formula is not a harmful drug. It is contended that it is not a prohibited drug. He pointed out that none of the notices/ communications have been addressed to the Petitioner or to manufacturers of the product and the same have been directly addressed to the television channels. The learned senior counsel submitted that as the product is being manufactured under a license duly granted by the Government of Madhya Pradesh under the provisions of the Drugs and Cosmetics Act, 1940, the same cannot be termed as a prohibited drug.

4. The learned senior counsel appearing for the Petitioner relied upon a decision of the Apex Court in the case of Tata Press Limited v. Mahanagar Telephone Nigam Limited and Others [(1995) 5 SCC 139]. He urged that as held by the Apex Court, a commercial advertisement is protected under clause (a) of Article 19(1) but is subject to Article 19(2) of the Constitution of India. He submitted that a commercial speech which is deceptive, unfair, misleading and untruthful would be hit by Article 19(2) of the Constitution of India. He pointed out that the Apex Court in the decision in the case of Tata Press Limited, (supra) has dealt with its earlier decision in the case of Hamdard Dawakhana and Another v. Union of India [AIR 1960 SC 554] . He pointed out that in fact the Apex Court has distinguished the said decision. He invited our attention to Paragraph 18 of the said decision in the case of Tata Press Limited which holds that the Apex Court in the case of Hamdard Dawakhana (supra) was dealing with the advertisement of a prohibited drugs and commodities. He submitted that in Hamdard Dawakhana (sup