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2013 Supreme(Del) 373
High Court of Delhi
G.P. MITTAL J.
H.T. Media Ltd & Others
Versus
State
CRL.M.C. Nos.3060, 3922 of 2010, 3456 of 2011, 837 of 2012 & CRL.M.A.No.3466 of 2012
Decided on : 08-04-2013.
For the Petitioners:A.J. Bhambhani, Ms. Nisha Bhambhani, Apurv Chandoola, Advocates.
For the Respondent: Ms. Rajdipa Behura, APP.
The main legal point established in the judgment is the interpretation of the Drugs and Magic Remedies Act, particularly Section 3, and the application of the bar of limitation under Section 468 of the Code.
Headnote:
Drugs and Magic Remedies Act - Advertisements - Section 3, Section 7 - The court discussed the advertisements in violation of Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. The judgment highlighted the legal provisions of the Act, their interpretations, and their influence on the court's decision.
Fact of the Case:
The Petitioners sought quashing of complaints and summoning orders related to advertisements alleged to violate the Drugs and Magic Remedies Act. The advertisements claimed instant relief from various diseases through Ayurvedic medicines and machines.
Finding of the Court:
The court found that the advertisements did not violate Section 3 of the Act as they did not advertise specific drugs for the cure of ailments. The court invoked its powers under Section 482 of the Code to prevent abuse of the court's process and quashed the complaint in one case. In the other cases, the complaints were not barred by limitation and the trial was allowed to proceed.
Issues: The issues involved the alleged violation of the Drugs and Magic Remedies Act through the advertisements, vicarious liability of the officers of the company, and the bar of limitation under Section 468 of the Code.
Ratio Decidendi: The court held that the advertisements did not violate the Act as they did not advertise specific drugs for the cure of ailments. The court also clarified the bar of limitation under Section 468 of the Code and its application to the complaints.
Final Decision: The court quashed one complaint and allowed the trial to proceed in the other cases. The complaints were not barred by limitation and the trial was directed to proceed in accordance with the law.
G.P. Mittal, J.
1. By virtue of these four Petitions (Crl. M.C.3060/2010, 3922/2010, 3456/2011 and 837/2012), the Petitioners who are the publisher/printer and local editors seek quashing of the four complaints and the summoning order dated 18.11.2010, 09.08.2010, 13.12.2010 and 08.08.2011 respectively.
2. Before proceeding further, let me in brief state about the advertisements which are alleged to be in violation of Section 3 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 (the act of 1954).Crl.M.C.3060/2010
3. The Petition relates to an advertisement dated 22.08.2009 published in Hindustan (Hindi) whereby the advertiser claimed instant relief from diseases like high blood pressure, sugar through a fully Ayurvedic medicine which did not have any side effect. As per the advertisement, the patient was advised to contact Dr. Bengali (Kishan Malik) at the address as mentioned in the advertisement.CRL.M.C. 3922/2010
4. This Petition relates to an advertisement dated 19.11.2009 which was published in Hindustan (Hindi). As per this advertisement, a Blood Circulatory Machine (BCM) could be used for 15 minutes to get rid of obesity, diabetes, heart problem, arthritis and blood pressure. There was an offer of free gift with every purchase of BCM. Telephone Numbers were provided to get a free demo if somebody was interested and the address of the place of availability of this machine was also stated in the advertisement. CRL.M.C. 3456/2011
5. This Petition also relates to an advertisement dated 11.12.2009 published in the earlier said newspaper. The advertisement relates to two exercise machines “Crazy Fit Massager” and “Leg Massager” by the company M/s. Amazing Health Solution. In the advertisement, it was claimed that it was world’s No.1 trusted selling brand. It was stated that “Crazy Fit Massager” can be used to reduce fat, obesity and back pain, improve blood circulation, could be used in decreasing blood pressure, builds bone density and muscle strength, helps in constipation and diabetes control. It was stated that “Leg Massager” decreases diabetes, massages foot, ankles and calves, increases the tone of skin and helps in relief from pain due to long drive. For placing an order for the machine, certain numbers were given. It was stated in the advertisement that the machine could be used for 15 minutes which would be equivalent to walking for 10,000 steps or 2.5 kms.CRL.M.C. 837/2012
6. The advertisement in this Petition is also dated 05.08.2010 published in Hindustan Times (English). The advertisement relates to a machine “Vacurect” which provides relief from certain diseases and dysfunctions of the male organ. The machine was stated to be approved by US-FDA and could be obtained from M/s Vacurect Erection Enhancement System by placing an order at the number given in the advertisement.
The details of the advertisement is:
“HIGLY RECOMMENDED FOR MEN WITH GET - Erectile Dysfunction (ED)/Impotence YOUR (DUE to Diabetes, Stress, Hypertension, BP, Age, SEX Prostate, Excessive Smoking and Drinking etc.) LIFE - Premature Finish (Early Discharge) BACK /Less Confident (Build confidence and prolong Love making) ___ Micro Organ/Small Organ (Effective Penis Enhancer/developer)”
7. The following contentions are raised on behalf of the Petitioner:
(i) The Act of 1954 prohibits advertisement of certain drugs for treatment of certain diseases as mentioned in Section 3 or in the Schedule (under Section 3 (d) ) to the Act so as to prevent any self medication by the patient. It is urged that in Crl.M.C.3060/2010, there was no such advertisement. Rather the patient was advised to contact Dr. Bengali. It is thus urged that in this Petition there is no violation of Section 3 read with Section 7 of the Act of 1954. Reliance is placed on Hamdard Dawakhana v. Union of India, 1960 AIR (SC) 554 and K.S. Saini & Anr. v. Union of India, AIR 1967 Punjab 322.
(ii) Section 9 of the Act of 1954 deals with the vicarious liability
