Penal laws must be construed strictly to protect the rights of the accused.

S.K.KAPUR, J.

1. By this petition under Articles 226 and 227 of the Constitution the petitioners have asked for the quashing of prosecution pending against them before an Additional Judicial Magistrate 1st Class, Delhi, under section 7 read with section 3 (b) and (d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The prosecution against the petitioners is for violation of section 3 (b) and (d) of the said Act by alleged publication of two pamphlets, Annexures R. 1 and R. 2 in Hindi and Urdu. According to the respondents those pamphlets suggest or are calculated to lead to the use of the drugs mentioned therein for the maintenance or improvement of the capacity of human beings for sexual pleasure and for the cure, mitigation or treatment of certain diseases, disorders or conditions specified in the Schedule to the said Act. Section 3 of the said Act before amendment by Act No. 42 of 1963 read as under

"3. Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use of that drug for- (a) the procurement of miscarriage in women or prevention of conception in women; or

(b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or

(c) the correction of menstrual disorder in women; or

(d) the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act."

By the amending Act the following clause was substituted for clause (d) of section 3 of the principal Act:-

"(d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule, or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act: Provided that no such rule shall be made except- (i) in any respect of any disease, disorder or condition which requires timely treatment in consultation with a registered medical practitioner or for which there are normally no accepted remedies, and

(ii) after consultation with the Drugs Technical Advisory Board constituted under the Drugs and Cosmetics Act, 1940 (23 of 1940), and, if the Central Government considers necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani systems of medicines as that Government deems fit."

2. The petitioners allege that the words "or any other disease or condition which may be specified in rules made under this Act" in clause (d) of section 3 of the unamended Act were struck down by the Supreme Court in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi V. Union of India, (1960) 2 SCR 671: (AIR 1960 SC 554), and on the parity of reasoning the later part of the amended Section 3 (d) namely "or any other disease, disorder...... specified in the rules made under this Act" is also unconstitutional and in spite of the amendment the Legislature has failed to achieve a valid law. That question really does not arise before us because admittedly no rules have been framed and consequently no disease, disorder or condition has been specified by rules in exercise of power under the alleged unconstitutional part of clause (d) of section 3 of the Act as amended. The sole question therefore, is whether the pamphlets constitute an offence under section 3 (b) or the first part of section 3 (d) of the Act. Consequently, what we have to consider is whether the petitioners have been guilty of taking any part in the publication of any advertisement referring to any drug in terms which suggests or is calculated to lead to the use of that drug for the maintenance or improvement of the capacity of human beings for sexual pleasure or for the diagnosis, cure, mitigation, treatment or