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M/s. Dharma Pharmacy Pvt. Ltd., Tamil Nadu, Rep. By its Director, V. Dharmalingam & Others v/s The State of Tamil Nadu, Rep. By T.Gowri, Drugs Inspector, Chennai & Another

    Crl.O.P. Nos. 4847 of 2017 & 27548 of 2016 & Crl.M.P. Nos. 14062 & 14063 of 2016 & 3620 & 3621 of 2017
    Decided On, 12 August 2022
    At, High Court of Judicature at Madras
    By, THE HONOURABLE MR. JUSTICE RMT. TEEKAA RAMAN
    For the Appearing Parties: V.Selvaraj, Advocate, S. Udaya Kumar, Government Advocate (Crl.Side).


Judgment Text
(Prayer: This Criminal Original Petition is filed under Section 482 of Cr.P.C., to call for the records in C.C.No.6352 of 2016 on the file of the X Metropolitan Magistrate Court, Egmore, Chennai – 600 006 and quash the same.

This Criminal Original Petition is filed under Section 482 of Cr.P.C., to call for the records in C.C.No.2841 of 2016 on the file of the IV Metropolitan Magistrate Court, Saidapet, Chennai – 600 016 and quash the same.)

Common Order

1. As petitioners and the issue involved in both the Criminal Original Petitions viz., Crl.O.P.Nos.4847 of 2017 and 27548 of 2016 are one and the same, by consent, they were taken up together and the submissions of the learned counsel on either sides were heard.

2. The brief facts of the case are as follows:

(i) On September 2015, an advertisement has been published in the monthly magazine viz., “Health Choice”, Volume 8, Issue 9, Page 39 with respect of a drug “UTRAVIT-Syrup 200 ml” with the claim that the said drug is a remedy and cures “Menstrual disorders in women and Disease and Disorders of the uterus, Disorders of menstrual flows and Female diseases (in general)” “TAMIL” was noticed by the then Drugs Inspector within her jurisdiction, which is an objectionable advertisement as per Section 3(c) and Section 3(d) r/w.S1.Nos.12, 13 and 18 of the Schedule of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 [hereinafter referred to as “Special Act”].

(ii) On 09.09.2015, a show cause memo was sent to the Editor, “Health Choice”, M/s.Dharma Publications, for publishing the said objectionable advertisement which is in contravention of (1) Section 3 (c) of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. (2) Section 3 (d) read with the Schedule under Sl.No.12 of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. (3) Section 3 (d) read with the Schedule under Sl.No.13 of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and (4) Section 3 (d) read with the Schedule under Sl.No.18 of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954, and the Editor was also requested to disclose the details of the advertising person.

(iii) A reply dated 15.10.2015 was received by the then Drugs Inspector, Arumbakkam Range i/c from the Editor, Health Choice, wherein, he has stated that the referred advertisement are all regarding Ayurvedic products which does not refer to any magic remedy or magic cure or has he tried to make a false claim or mislead to give a false impression regarding the true character of the products mentioned, but it referred only to the basic quality of the products and has not disclosed the details of the advertising person.

(iv) Thereafter, the then Drugs Inspector, Arumbakkam Range i/c. has sent a letter to the Director of Drugs Control, Tamil Nadu, requesting for the permission to investigate at the premises of Dharma Publications [publisher of Health Choice Magazine], to proceed further with this investigation.

(v) On 22.06.2016, the respondent inspected the premises of Dharma Publications. During inspection, the respondent handed over the Reminder III dated 22.06.2016 to the Editor, Health Choice Magazine requesting him to disclose the details of the advertising person. But he has refused to receive the Reminder III dated 22.06.2016 and also refused to give the written statement about the constitution of the company.

(vi) The respondent sent a show cause memo to the manufacturing company M/s.Dharma Pharmacy Pvt. Ltd., No.48, G.W.T. Road, opp. to Rajiv Gandhi Memorial, Sriperumbudhur – 602 105, Tamil Nadu, India, but received no reply. Further a reminder letter dated 19.07.2016 was also sent to above company, for which there was no reply either.

(vii) On 03.08.2016, the respondent submitted a detailed report to the Director of Drugs Control, Tamil Nadu Chennai-06 requesting to prosecute the petitioners and accordingly the sanction order was received on 29.08.2016 to prosecute the petitioners.

(viii) Based on sanction order dated 29.08.2016, a complaint was filed before the X Metropolitan Magistrate Court, Egmore at Chennai on 30.08.2016, which was taken on file in C.C.No.6352 of 2016.

(ix) Similarly, for the contravention of Section 3(c) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 punishable under Section 7(a) and Section 3(d) read with the schedule under Sl.Nos.9 and 12 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, based on the sanction order dated 21.06.2016, a private complaint has been made by the then Drugs Inspector, Mylapore Range, before the IV Metropolitan Magistrate Court, Saidapet, which was taken on file in C.C.No.2841 of 2016.

3. The learned Advocate Mr.V.Selvaraj, appearing on behalf of the petitioners would contend that the subject matter of this case is squarely covered by the Judgment rendered by my brother Mr.Justice M.Govindaraj, made in WP Nos.34099 of 2012 and 45 of 2013 dated 11.04.2022.

4. I had the benefit of going through the said judgment, wherein the learned Judge of this Court has held at Paragraph No.5, that the prosecution initiated by the 4th respondent therein as a Drugs Inspector under Section 21 of the Act viz., Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'General Act'), deals with Allopathy drugs only and he is not an Inspector appointed under Chapter IV-A Section 33-G of the General Act and therefore, the 4th respondent therein had no jurisdiction to issue such notice and also relied upon certain notifications issued in the year of 2016 by the Central Government in respect of appointing certain authorities as “Licencing Authorities” under the Drugs and Cosmetics Rules, 1945 and accordingly, the learned Judge has held that in view of the notification issued for Indian Medicine, District wise for the appointment of Drugs Inspector (Allopathy Medicine) and the Drug Inspectors (Ayurveda, Siddha and Unani) are acting in different spheres, exercising their powers with respect to the medication of their respective fields and therefore, held that the prosecution initiated by the Drugs Inspector (Allopathy) in respect of alleged violation of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, is not sustainable in law.

5(i). After perusing the above said judgment, I am unable to affix my concurrence to the view expressed by my learned Brother for the following reasons:

(a) No doubt, it is true that certain amendment has been made under Section 33 (G) of the General Act, whereby Drug Inspectors are appointed for the respective filed viz., Ayurveda, Siddha and Unani. It is to be noted that the above amendment was related to Section 33 (G) of the General Act and not in the Special Act.

(b) The alleged occurrence is prior to the amendment. The above factual position is not disputed by either of the parties.

(c) In the instance case, the prosecution has been launched by the Drugs Inspector appointed under the Special Act and necessary sanction for prosecution has also been granted and has been instituted before the competent Court as defined under Section 8 of the Special Act viz., Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which reads as follows:

8. Powers of entry, search, etc.—(1) Subject to the provisions of any rules made in this behalf, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised,—

(a) enter and search at all reasonable times, with such assistants, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;

(b) seize any advertisement which he has reason to believe contravenes any of the provisions of this Act:

Provided that the power of seizure under this clause may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by reason of its being embossed or otherwise, from such document, article or thing without affecting the integrity, utility or saleable value thereof;

(c) examine any record, register, document or any other material object found in any place mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of any offence punishable under this Act.

(2) The provisions of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be, apply to any search or seizure under this Act as they apply to search or seizure made under the authority of a warrant issued under section 98 or the said Code.

(3) Where any person seizes anything under clause (b) or clause (c) of sub-section (1), he shall, as soon as may be, inform a Magistrate and take his orders as to the custody thereof.]

(ii) It remains to be stated that show cause notices were also been issued to the parties and necessary show cause notice has also been issued to the Registrar of Companies to furnish the details and 2nd show cause notice for the default on non reply of 1st show cause notice, were also issued and thereafter, prosecution has been launched.

(iii) The private complaint has been filed by the Drugs Inspector, Mylapore Range, in C.C.No.2841 of 2016, for the contravention of Section 3(c) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 punishable under Section 7(a) of the said Act and Section 3(d) read with the schedule under Sl.No.9 and 12 of the Drugs and Magic Remedies (Objectionable Advertisements) Act.

(iv) Similarly, a private complaint has been filed by the Drugs Inspector, Arumbakkam Range in C.C.No.6352 of 2016, for the contravention of Section 3(c) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 read with disease mentioned in Sl.Nos.12, 13 and 18 of the Schedule which is punishable under Section 7(a) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

6. The learned counsel Mr.Selvaraj appearing on behalf of the petitioners would contend that the prosecution is bad for want of authority by the complainant.

7. Per contra, the learned Government Advocate (Crl. Side) would contend that the prosecution launched by the officer is under the Special Remedies Act and therefore, he is empowered as per Section 8 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and after obtaining necessary sanction for prosecution, the private complaint has been filed before the competent jurisdictional Magistrate. He would further submit that though there is no provision for show cause notice, by observing the principles of natural justice, a show cause notice was issued. However, the accused/petitioner has not replied and subsequently, the details of the company has been ascertained from the Registrar of Companies and prosecution has been launched under various provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

8. Taking into consideration that the reasoning assigned by my brother Justice, in the above said case viz., WP Nos.34099 of 2012 and 45 of 2013, I find that brother Justice has dealt only with the amendment to the Drugs and Cosmetics Act, 1940, which is a General Act, which enables for the appointment of Drugs Inspectors for (Ayurveda, Siddha and Unani) for “issuance of licence” with regard to respective field of Ayurveda, Siddha and Unani and has not dealt with the prosecution in respect of violation of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, which is a Special Act.

9. Under the Special Act, any Drugs Inspector can be authorised to move the application for sanction. It is up to the Director General of Drugs to appoint a person for prosecution. In this regard, Section 8 of the Special Act has been referred to and hence, in the absence of any amendment to Section 8 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, (the 'Special Act'), I am of the considered view that any Drugs Inspector, who is appointed by the Director General of Drugs can maintain prosecution de hors whether, it is Allopathy or Ayurvedha or Siddha or Unani and hence, I am not in agreement with the view expressed by the learned Judge in the above said writ petitions.

10. Therefore, since my brother Justice has taken a different view in the above said writ petitions and I am taking a different view as stated supra, the papers may be placed for consideration before My Lord, Hon'ble The Chief Justice for the constitution of a Division Bench, if My Lord, Hon'ble The Chief Justice deems fit to consider the following question of law.

“In the absence of any amendment to Section 8 of the Special Act, whether a Drugs Inspector, who is appointed under Section 8 of the Special Act viz., Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, is competent to launch a prosecution, in respect of any drug falling under Ayurvedha, Siddha or Unani, if the said Drugs Inspector, is an Allopathy Drugs Inspector?

or in other words

Whether in respect of violation or contravention of any provisions of the Special Act viz., Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, only the Drug Inspectors of the respective field (Ayurvedha, Siddha, Unani) are competent / eligible to launch the prosecution, in the absence of any amendment to the Special Act.”

11. Before parting with, I would like to share my views on the words “Advertisement” and “Drug” in the definition clause, which also includes that the publication, viz., it means and include “online publication” of the material involved in Ayurvedic and Siddha Medicines. With regard to that, an amendment has been made in the General Act, viz., Drugs and Cosmetics Act, 1940 to the effect for creating and seeking permission from the Ministry of Ayush, Government of India under the UHNP Code.

12. It is to be noticed that the “online sale of drugs” which offers reversible of certain disease that has been mentioned in the schedule to the Special Act, includes 'Diabetes'.

13. I have come across two of such “online advertisements” for the reversal of diabetes, which I find that is in contravention of the regulation 9 of the schedule under Sections 3(d) and 14 of the Special Act.

14. Th

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e sum and substance of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, is in respect of any disorder mentioned in the regulation attached to the schedule in the said Act, the use of the word 'cure' is banned while, the word, 'control' is permitted. 15. Since it is a matter of public interest, following the practice adopted by this Court, Registry is directed to place the above request for consideration of My Lord the Hon'ble The Chief Justice, if it deems fit for initiation of suo motu action, (i) for regulation of “online advertisements” of drugs and medicinal tablets that are specifically banned under the Special Act viz., The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. (ii) To create a controlling mechanism for the said purpose, since I find that there are no rules or regulations in respect on 'online advertisement and sale', framed in Tamilnadu therefor. 16. Thus, in addition to the question of law raised in Paragraph No.10, the matter may be placed before My Lord the Hon'ble The Chief Justice, with a request to consider the above said position as prevalent as of today, “(i) as to the 'regulation of online advertisements' of medicines for certain diseases which are specifically prevented under the Special Act (ii) to create a mechanism for regulation of objectionable online advertisements that are in contravention of the various sections of the Special Act; and (iii) to regulate, so as to enable the prosecution to be launched upon the scrupulous advertisements in the interest of public health at large”.
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