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PETITIONER: DR. YASH PAL SAHI

       Vs.

RESPONDENT: DELHI ADMINISTRATION

DATE OF JUDGMENT: 29/11/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. GUPTA, K.C. DAS

CITATION:  1964 AIR  784            1964 SCR  (5) 582

ACT: The  Drugs and Magic Remedies (Objectionable  Advertisement) Act,  1954 ss. 2(d), 3, 7, 14(1)(c)-"Taking any part in  the publication  of  any advertisement"-Meaning  of-if  includes sending  within  the  territory of  India-Burden  of  proof- Conditions to be satisfied to fall under s. 14(1)(c).

HEADNOTE: The  appellant is the proprietor of a Homoeopathic  hospital in  New Delhi.  He runs a journal called  the  "Homoeopathic Doctor". 583 On the request of one Misri Singh the appellant sent  copies of the said journal and a list of medicines by V.P.P.  Misri Singh  was neither a registered medical practitioner  nor  a wholesale or retail Chemist even though he was working  with a registered medical practitioner as his clerk.  The list of medicines  sent  by  the appellant to Misri  Singh  bore  in printed  indelible ink the statement that it was  meant  for the  use of medical practitioners alone.  The appellant  was prosecuted under s. 3 read with s. 7 of the Drugs and  Magic Remedies (Objectionable Advertisement) Act, 1954.  The trial Magistrate  found  him  guilty of the  offence  charged  and sentenced  him  to  a  fine of  Rs.  1000.   On  appeal  the Additional  Sessions  Judge  confirmed  the  conviction  but reduced  the  fine  to Rs. 500.   The  appellant’s  revision petition was dismissed by the High Court The present  appeal is on special leave granted by this Court. On  behalf  of the appellant it was contended that s.  3  is subject to     the other provisions of the Act and therefore it is subject to s. 14 which provides that any advertisement sent confidentially in   the   prescribed   manner   to    a registered  medical  practitioner  or  wholesale  or  retail chemist  is exempted from the other provisions of  the  Act. Relying  on  this  section  it was  argued  that  since  the appellant  requested  in  writing  to  send  the   offending articles  the appellant had no duty to enquire whether  that person  is  a registered medical  practitioner  or  chemist. Further  the appellant relied on rule 6 of the Rules  framed under  the Act and contended that inasmuch as the list  sent by him bore the words printed in indelible ink "For the  use only  of registered medical practitioners" he  has  complied

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with the provisions of law. Held.-  (i)  The  definition  of "taking  any  part  in  the publication  of any advertisement" contained in s.  2(d)  of the  Act  is  wide enough to include  the  printing  of  the advertisement  and the sending of it in any part  of  India. Before  a  person is penalised it is not necessary  to  show that the contravention brought home to him is in the  nature of habitual contravention.  A single contravention will make a person guilty under s. 7. (ii)Section  3 is subject to the provisions of s. 14 and  if the  appellant’s  case  falls under s. 14, s.  3  cannot  be invoked  against him.  The prosecution has to show that  the person  to  whom  the  list  was  sent  is  not  a   medical practitioner.  Once this is established it is     for    the appellant to satisfy the court that his case falls under s. 14(1)(c).    The fact that the appellant has  complied  with one of    the  conditions  prescribed under r.  6  will  not bring the case of the appellant under s. 14(1)(c).

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 157  of 1962. Appeal  by special leave from the judgment and  order  dated February 9, 1962, of the Punjab 584 High  Court  (Circuit Bench) at Delhi in  Criminal  Revision Application No. 281-D of 1961. J.P. Goyal, for the appellant. B.K. Khanna and R.N. Sachthey, for the respondent. November 29, 1963.  The Judgment of the Court was  delivered by GAJENDRAGADKAR, J.-The appellant, Dr. Yash Pal Sahi, and his wife   Dr.  Susheela  Sahi,  are  the  proprietors,   of   a homoeopathic  hospital at Jangpura in New Delhi.  They  also run a journal called the "Homoeopathic Doctor".  It  appears that on May 15, 1958 Misri Singh wrote to the appellant that the  medicines manufactured by him were  proving  effective, and  he  therefore requested the appellant to send  him  his magazine  "Homoeopathic Doctor" from January 15, 1958 up  to the  date of the letter.  In this letter, Misri  Singh  also requested  the doctor to send him a list of  medicines  that might  have been printed by him and he promised to  pay  the requisite prices and suggested that the same should be  sent by V.P.P. Thereupon, a packet containing Exhibits P-1 to P-6 which are copies of the "Homoeopathic Doctor" and Ex.   P-7, which is a list of medicines was sent to Misri Singh on May, 24,  1958.  Misri Singh had written to the  appellant  under the instructions of Mr’ Seth, who is an officer in the Delhi Administration.  That is why when the packet was received by Misri Singh it was opened by him in the presence of Mr. Seth and other witnesses and the packet was found to contain Exs. P-1  to P-7.  The prosecution alleged that by  sending  this packet  to Misri Singh both the appellant and his  wife  had committed an offence under s. 3 read with s. 7 of the  Drugs and  Magic  Remedies (Objectionable  Advertisement)  Act  of 1954.   Later, the complaint against Dr. Susheela  Sahi  was withdrawn and the case proceeded only against the appellant. At  the trial, evidence was given by Mr. Seth,  Misri  Singh and Dr. Anant Parkash, with whom 585 Misri Singh works as a clerk.  The appellant was  questioned by  the  learned  Magistrate, who tried  the  case,  and  he admitted that Exs.  P-1 to P-7 had been sent to Misri Singh.

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On  these  facts,  the  learned  Magistrate  held  that  the appellant  ’was guilty of the offence charged and  sentenced him  to pay a fine of Rs. 1,000.  The  appellant  challenged the  correctness  of  this order by  an  appeal  before  the Additional  Sessions  Judge  at  New  Delhi.   The   learned additional’  Sessions  Judge considered  the  evidence,  and confirmed the findings recorded by the trial Magistrate.  In the  result,  the  order of conviction  passed  against  the appellant  was affirmed; but in regard to the  sentence  the learned Additional Sessions Judge took the view that a  fine of  Rs.  500 would meet the ends of justice.   The  findings made by the appellate Court show that the -parcel containing Exs.   P-1  to P-7 had been sent by the appellant  to  Misri Singh.   Exhibits P-1 to P-6 which -are the numbers  of  the publication  "Homoeopathic Doctor" did not come  within  the mischief  of  the Act, but Ex.  P-7,  which  is  ’Fehrist-i- Mujarabat’ did come within the mischief of the Act.  It is a list  of  medicines, and it purports to advertise  the  said medicines  by  describing their effect, and  prices  of  the medicines are also printed.  Inasmuch as it was found by the learned  Additional  Sessions Judge that the  appellant  had sent Ex.  P-7 to Misri Singh, his conviction was held to  be justified  under  s.  3  read with s. 7  of  the  Act.   The appellant  then took this matter before the High Court by  a revisional application It was urged before the High Court on his  behalf that in deciding the question as to whether  the appellant was guilty under s. 3 read with s. 7 the effect of the  provisions  contained  in  s.  14(1)(c)  had  not  been properly  appreciated.  The High Court was not impressed  by this  argument.   Accordingly,  the  revisional  application filed  by the appellant was dismissed.  It is  against  this order  that the appellant has come to this Court by  special leave. On  his behalf, Mr. Goyal has contended that the  conviction of the appellant is not justified, because 586 the  case of the appellant falls under s. 14 (1)(c)  of  the Act.   In  deciding  the  merits  of  this  argument  it  is necessary  to refer to the relevant provisions of  the  Act. This  Act  has been passed to control  the  advertisment  of drugs  in certain cases, to prohibit the  advertisement  for certain  purposes  of  remedies  alleged  to  possess  magic qualities  and to provide for matters  connected  therewith. Section  2 contains the definitions.  Section  2(d)  defines ’taking any part in the publication of any advertisement’ as including  (i) the printing of the advertisement,  (ii)  the publication of any advertisement outside the territories  to which  this  Act extends by or at the instance of  a  person residing  within the said territories.  It would be  noticed that  the definition of the expression ’taking any  part  in the  publication  of  any  advertisement’  is  an  inclusive definition,  and the two clauses bring out clearly the  main postulate  of the definition that if the prohibited  article is  sent, it would amount to publication within the  meaning of  the  Act.   The printing of the  prohibited  article  or advertisement  is included in publication.  But  publication does not mean printing alone; publication means sending  out the said advertisement outside India under cl. (ii), and so, if  sending out the advertisement outside India  is  brought within  the  purview  of the  inclusive  definition,  it  is difficult to resist the conclusion that sending out the same advertisement  within the-territories of India to which  the Act applies would amount to publication.  Therefore it seems to  us  that the definition prescribed by s.  (2d)  is  wide enough to take in the printing of the advertisement and  the

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sending of it to any part of India. That  takes us to s. 3 of the Act.  Sections 3 (c)  and  (d) are  the  provisions  with which  we  are  concerned.   They provide that:               "3. 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-               587               (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." It  has been found and cannot be now disputed that the  list of  advertisements (Ex.  P-7) contains medicines which  fall within the scope of ss. 3(c) and (d). Section 7 provides for the penalty, and it lays down that:               "Whoever contravenes any of the provisions  of               this Act shall, on conviction, be punishable-               (a)in  the  case of a first  conviction,  with               imprisonment  which may extend to six  months,               or with               fine, or both;               (b)in  the case of a  subsequent   conviction,               with  imprisonment  which may  extend  to  one               year, or with fine, or with both." This  section shows that before a person is penalised it  is not necessary to show that the contravention brought home to him is in the nature of a habitual contravention.  A  single contravention proved against a person would make him  guilty under  s.  7. That is why the scheme adopted  by  the  penal section is that it provides for a lesser punishment for  the first offence and a relatively more serious penalty for sub- sequent offences. Mr.  Goyal contends that in considering the question  as  to whether  the  appellant is guilty under s. 3 and s.  7  read together it is necessary to consider whether this case falls under  s.  14 or not.  He argues that s. 3 begins  with  the clause "Subject to the provisions of this Act", and he urges that  if the appellant’s case can fall under the  provisions of  s.  14,  s.  3 cannot  be  invoked  against  him.   This contention  is  no  doubt right.  Section  14  provides  for exceptions,  and it lays down that nothing in the Act  shall apply  to the cases falling under the clauses prescribed  by it.   Mr.  Goyal relies upon s. 14  (1)(c),  which  provides that: 588               "Nothing in this Act shall apply to-               any  advertisement relating to any  drug  sent               confidentially  in the prescribed manner  only               to  a registered medical practitioner or to  a               wholesale  or retail chemist for  distribution               among registered medical practitioners or to a               hospital or laboratory;" His  argument is that if Misri Singh wrote to the  appellant and  invited  him to send the list of medicines it  was  not expected  that  the appellant should make an enquiry  as  to whether Misri Singh was a registered medical practitioner or not.   In this connection, he has invited our  attention  to the fact that Misri Singh is in fact working as a clerk with Dr. Anant ]Parkash, and this fact is pressed into service by Mr. Goyal to show that it may be that the appellant  thought

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that Mr. Misri Singh was a registered medical  practitioner. Such a plea has, however, not been made in any of the Courts below.  In fact, the record does not show that the appellant knew  any  thing  about  Misri  Singh  or  his   employment. Therefore, the point sought to be made by Mr. Goyal for  the first time before us that the appellant might have bona fide believed   that  Misri  Singh  was  a   registered   medical practitioner cannot avail him.  It has been proved as a fact that   Mr.   Misri  Singh  is  not  a   registered   medical practitioner,  and  so,  the  question  arises  whether  the appellant can claim that his case falls under s. 14(1)(c) at all.   It  is  true  that in order  to  bring  home  to  the appellant  the offence charged the prosecution may  have  to show  that  the person to whom the list was sent was  not  a registered   medical  practitioner.   Once  that   fact   is established,  it is for the appellant to satisfy  the  Court that  his  case  falls under s. 14(1)(c).   It  is  in  that connection  that  Mr. Goyal relied upon r. 6  of  the  Rules framed under the Act.  Rule 6 prescribes that:               "All  documents containing advertisements  re-               lating to drugs, referred to in clause (c)  of               sub-               589               section  (1) of section 14, shall be  sent  by               post  to a registered medical practitioner  or               to a whole-sale or retail chemist". The Rule further adds that "Such documents shall bear at the top.  printed in indelible ink in a conspicuous manner,  the words ’For the use only of registered medical  practitioners or  a hospital or a laboratory It is common ground that  the list sent by the appellant to Misri Singh does bear  printed in indelible ink the statement that it was meant for the use of  registered  medical  practitioners  alone.   Mr.   Goyal suggests  that once it is shown that the list complied  with this part of the requirement of R. 6 it should be held  that the  case of the appellant falls under s. 14(1)(c).  We  are not  prepared  to accept this argument.  Rule  6  prescribes some conditions which- have to be complied with by a  person who sends lists of medicines to Which the Act applies so  as to  bring his case within s. 14 (1)(c).. One requirement  is that  the  list  should have printed in  indelible  ink  the statement  to  which  we  have  just  referred.   The  other requirement  to which it refers is that the list  should  be sent  to a registered medical practitioner or  wholesale  or retail  chemist.  In relation to this requirement,  we  have the  statutory provision -prescribed by s. 14 (1)(c)  itself that it must be sent confidentially to a registered  medical practitioner.    The  fact  that  one  of   the   conditions prescribed  by R. 6 has been complied with does not lead  to the inference that the other conditions prescribed either by s.  14(1)(c)  or  by  R. 6 have  also  been  complied  with. Therefore,  we do not think that Mr. Goyal is  justified  in contending that his case falls under s. 14(1)(c). Mr.  Goyal has also invited our attention to the  fact  that this was a case in which the appellant was virtually tempted to send Ex.  P-7 to Misri Singh, and he argues that as  soon as  Mr.  Misra  Singh  found  that  that  Est  contained  in indelible ink the statement that it was meant for registered medical practitioners he need not have bothered to look into it,  and in fact should have sent it back to the  appellant. This 590 argument, in our opinion, is not well-conceived.  The  whole object  of  the Act is to save ignorant  people  from  being duped  to  purchase medicines just because their  effect  is

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advertised in eloquent terms.  That is why the Act  provides that  lists  of  medicines  describing  the  qualities   and attributes  of  different medicines should be sent  only  to registered  medical practitioners or hospitals.  That  being so, it would not be a fair argument to urge that even though the  appellant might have sent the list to a person who  was not a registered medical practitioner, the recipient of  the list  should have been out on his guard and should not  have looked into the list.  We are, therefore, satisfied that the High  Court  was right in holding that the  offence  charged against  the appellant has been duly proved.  In  regard  to the  sentence,  the learned Additional  Sessions  Judge  has reduced  the  sentence  of Rs. 1,000  fine  imposed  on  the appellant  by  the learned trial Magistrate to Rs.  500  and that we think is a fair order to make. In the result, the appeal fails, and is dismissed.             Appeal dismissed.