The court established that the definition of solicitation and advertisement under the Abkari Act does not encompass movie trailers shared on social media.

ORDER

Dated this, the 10^th day of March, 2023 The petitioners are the Director and Producer respectively of a movie by name 'Nalla samayam'. The petitioners published the trailer of their movie as a YouTube video in the official facebook page of the first petitioner. Thereupon a complaint was received at the Excise Range Office, Kozhikode alleging that one of the characters in the trailer claimed MDMA as a substance that would give energy to the user. As the allegation appeared to be correct on seeing that trailer and no statutory warning was seen exhibited during the scene in which the characters in the movie consumed alcohol, Crime No. 218 of 2022 was registered at the Excise Range Office, Kozhikode against the petitioners for offences under Section 55 I and 55 H of the Abkari Act . The petitioners are seeking to quash all further proceedings in the crime registered against them.

2. Learned counsel for the petitioners contended that, even if the prosecution allegations are accepted in their entirety, the offences alleged against the petitioners are not made out. Referring to Section 55H , it is contended that penalty is attracted only when a person gives any advertisement soliciting use or offering any liquor or intoxicating drug. The trailer of a movie cannot be equated with advertisement and even otherwise, the trailer does not contain any scene in which the characters solicit the use of or offer liquor or intoxicating drug. It is contended that Section 55 I is also not attracted since that penal provision would apply only if cinemas containing scenes showing consumption of liquor or exhibition of liquor is exhibited in theatres without warning. The argument is that the publication of a trailer in the social media and exhibition of cinemas in threatre are entirely different.

3. Learned Public Prosecutor submitted that in one of the scenes in the trailer, a character is exhorting the use of MDMA by stating that the drug gives energy and happiness to the users. The facial expression of the characters is also intended to create that impression. Thus, the petitioners promoted the use of drugs which is sufficient to attract the offence under Section 55 H. The offence under Section 55 I is attracted since statutory warning was not exhibited while showing alcohol consumption scenes.

4. In the nature of the contention advanced, it is necessary to have a close scrutiny of Sections 55 H and 55 I of the Abkari Act .

“55H. Penalty for unlawful advertisement.- Whoever prints, publishes or gives any advertisement soliciting use of or offering any liquor or intoxicating drug shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to twenty five thousand rupees or with both:

Provided that, this section shall not apply to price list for display at the points of sale for consumer information.”

“55I. Penalty for showing scene of liquor or consumption or exhibition of liquor in cinemas exhibited in theatres without warning.- (1) No scene containing use or consumption or exhibition of liquor in cinema shall be picturised and exhibited in theatres without the warning “CONSUMPTION OF ALCOHOL IS INJURIES TO HEALTH/മദ(cid:3)പ(cid:5)ന(cid:7) ആര(cid:11)(cid:5)ഗ(cid:3)ത(cid:14)ന(cid:15) ഹ(cid:5)ന(cid:14)ക(cid:11)(cid:7)" in such scene in contrasting colours clearly visible and having a size covering 1/10^th of the total size of the scene.

(2) Whoever exhibits or causes to exhibit any cinema having a scene in contravention of the provisions of sub-section 91) in any theatre shall, on conviction, be punished with simple imprisonment for a term which may extent to six months or with fine which may extend to ten thousand rupees or with both.”

5. Here the prosecution allegation is regarding the statement of one of the characters in the trailer that, consumption of MDMA would give energy and a happy feeling. The short question is whether, by including such a scene, the trailer would amount to publication or adve