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2016 Supreme(MP) 601
IN THE HIGH COURT OF MADHYA PRADESH
Alok Verma, J.
Tele World Marketing (M/s.) v. Entorr-10 Television Pvt.Ltd. and others
Miscellaneous Appeal No.1379 of 2016 (Indore) : against the order dated 12.7.2016, passed by VIIIth Additional District Judge, Indore in Civil Suit No.7-A of 2016; Decided on 2.9.2016.
A.K. Chitale with Vijay Tulsiyan for appellant;
Headnote:Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 -- Ss.3 and 4 -- Drugs and Magic Remedies (Objectionable Advertisement) Rules, 1955 -- R.3 -- Civil P.C., 1908 -- O.39 Rr.1 and 2
r/w S.151 -- objectionable advertisement -- stay application rejected by trial Court -- challenged -- power exercised by authorised person -- should follow principle of nature of justice -- appellant should be given opportunity to put up his case and evidence to show that advertisement not violated provisions of Act -- directions can be issued by State Government by notification -- prima facie case in favour of appellant -- not clear whether person issued direction was authorised or not -- irreparable injuries and balance of convenience is in favour of appellant -- appeal allowed -- impugned order set aside -- directions issued -- stayed.
Held : Needless to say that the power exercised by the authorised person should be after following principle of natural justice because when the order passed by an authorised person under sections 3 and 4 of the rules would curb the rights of the petitioner, and therefore, principle of natural justice should be followed and the appellant should be given an opportunity to put up his case and also to place such evidence to show that the advertisement is not violating any provision of the Act. 2013(2) JLJ 199, (2004)4 SCC 697, AIR 2012 MP 137 and 1982 Law Suit (Bom.) 55 referred to.
vks"kf/k vkSj peRdkfjd mipkj ¼vk{ksi.kh; foKkiu½ vf/kfu;e] 1954 & /kkjk 3 rFkk 4 & vks"kf/k rFkk peRdkfjd mipkj ¼vk{ksi.kh; foKkiu½ fu;e] 1955 & fu-3 & flfoy izfdz;k lafgrk] 1908 & vk-39 fu-1 rFkk 2 lgifBr /kkjk 151 & vk{ksi.kh; foKkiu & fopkj.k U;k;ky; }kjk jksd vkosnu [kkfjt & vk{ksfir & izkf/kd`r O;fDr }kjk 'kfDr dk iz;ksx & uSlfxZd U;k; ds fl}kar dk vuqlj.k djuk pkfg, & vihykFkhZ dks viuk ekeyk rFkk lk{; j[kus rFkk ;g iznf'kZr djus dk volj nsuk pkfg, fd foKkiu ls vf/kfu;e ds mica/kksa dk mYya?ku ugha gqvk gS & jkT; ljdkj }kjk vf/klwpuk }kjk funs'k tkjh fd, tk ldrs gSa & vihykFkhZ ds i{k esa izFken`"V~;k ekeyk & ;g Li"V ugha fd O;fDr ftlus funs'k tkjh fd, izkf/kd`r Fkk ;k ugha & viw.kZuh; {kfr rFkk lqfo/kk larqyu vihykFkhZ ds i{k esa & vihy eatwj & vk{ksfir vkns'k vikLr & funs'k tkjh] jksds x,A
vfHkfu/kkZfjr % dguk vko';d ugha fd izkf/kd`r O;fDr }kjk 'kfDr dk iz;ksx uSlfxZd U;k; ds fl}kar dk vuqlj.k ds i'pkr~ gksuk pkfg,] D;ksafd tc izkf/kd`r O;fDr }kjk /kkjk 3 rFkk 4 ds v/khu vkns'k ikfjr fd;k x;k] ;kph ds vf/kdkjksa ij fu;a=.k gksxk rFkk blfy, uSlfxZd U;k; ds fl}kar dk vuqlj.k gksuk pkfg, rFkk vihykFkhZ dks viuk ekeyk rFkk ,slh lk{; j[kus dk volj nsuk pkfg, ftlls iznf'kZr gks fd foKkiu vf/kfu;e ds fdlh Hkh mica/k dk mYy?kau ugha dj jgkA 2013 ¼2½ ts ,y ts 199] ¼2004½ 4 ,l lh lh 697] , vkb vkj 2012 e-iz- 137 rFkk 1982 ykW L;wV ¼ckWEcs½ 52 fufnZ"VA
1. This miscellaneous appeal is filed against the order passed by learned 8th Additional District Judge, Indore in Civil Suit No.7-A/16 dated 12.7.2016 whereby the learned Additional Sessions Judge dismissed the application filed by plaintiff-appellant under Order 39 rules 1 and 2 r/w section 151 CPC. The defendant-respondent remained ex parte before the lower Court as well as before this Court even after receiving the notice sent by this Court. The plaintiff-appellant filed a suit for declaration and injunction. According to averments made in the plaint, respondent No.6 issued a letter to respondents No.1 to 4 where he directed them to stop telecast of advertisement in respect of the product marketing by plaintiff-appellant named ‘Asthi-jeevak’ as in view of respondent No.6, the advertisement was violating the provisions of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (hereinafter called the ‘Act’).
2. According to plaintiff-appellant his business is solely depends upon receiving orders telephonically in response to the advertisement telecast on various TVs Channel. The consumers directly contact the appellant and place their orders and the drug is directly supplied to the address given by them. By stopping the advertisement, the business and commercial interest of the appellant were adversely effected, and therefore, he has prima facie case and also if no injunction is issued then the plaintiff-appellant would suffer irreparable injury. The balance of inconvenience also lies in favour of the plaintiff-appellant, and therefore, it was prayed by submitting the application that an injunction be issued against the directions issued by respondent No.6 to respondents No.1 to 4 and respondents No.1 to 4 may be allowed to continue telecasting of the advertisement.
3. As stated earlier, as the respondent No.6 remained ex parte before the lower Court as well as before this Court, no reply has been filed on his behalf. No notice was issued to remaining respondents being formal parties.
4. Before further examining the arguments raised by learned counsel before this Court, the relevant provisions of the Act may be reproduced below. Section 3 of the Act provides 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 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 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.
5. Entry 43 of the Schedule appended to the Act includes ‘Rheumatism’ as one of the disease against which no advertisement can be issued in which it was claimed and an impression is given that the drug would diagnose, cure, mitigate or prevent the disease. Section 4 of the Act provides as under :
4. Prohibition of misleading advertisements relating to drugs. -- Subject to the provisions of t
