Shri Amit Singh & Anr. vs The State
2011 Latest Caselaw 2426 Del

           IN THE HIGH COURT OF DELHI: NEW DELHI

+             CRL. M.C. No. 648/2011

%             Judgment decided on: 6th May, 2011


SHRI AMIT SINGH & ANR.                            ....PETITIONERS

                          Through:   Mr. A.J. Bhambhani, Ms. Nisha
                                     Bhambhani and Mr. Victor
                                     Ahanthem, Advs.

                          Versus

THE STATE                                       ....RESPONDENT
(THROUGH THE DRUG INSPECTOR)
DRUGS CONTROL DEPARTMENT

                          Through:   Mr. Arvind Gupta, APP for the
                                     State.

                               AND
              CRL. M.C. No. 3757/2010
M/S HT MEDIA LTD. & ORS.                          ....PETITIONERS

                          Through:   Mr. A.J. Bhambhani, Ms. Nisha
                                     Bhambhani and Mr. Victor
                                     Ahanthem, Advs.

                          Versus

THE STATE                                       ....RESPONDENT
(THROUGH THE DRUG INSPECTOR)
DRUGS CONTROL DEPARTMENT

                          Through:   Mr. Arvind Gupta, APP for the
                                     State.

Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


       1. Whether the Reporters of local papers
          may be allowed to see the judgment?             No

       2. To be referred to Reporter or not?              No


CRL. M.C. No. 648/2011                                   Page 1 of 9
CRL. M.C. No. 3757/2010
         3. Whether the judgment should be

            reported in the Digest?                                 Yes

A.K. PATHAK, J. (Oral)

1. By way of above noted petitions under Section 482 of the

Code of Criminal Procedure, 1973 read with Article 227 of the

Constitution of India petitioners seeks quashing of summoning

order dated 28th October, 2010 passed by Metropolitan

Magistrate as also the complaint under Section 3(d) read with

Section 7 of Drugs And Magic Remedies (Objectionable

Advertisements) Act, 1954 (hereinafter referred to as "the Act")

filed by the respondent.

2. Both the above petitions arise out of the same complaint,

summoning order, inasmuch as, facts involved therein are same,

thus, are being disposed of together.

3. It was alleged in the complaint that an advertisement was

got published by „Centre for Sight‟ in the „Hindustan Times‟ dated

31st October, 2009 claiming cure for cataract by Breakthrough

Innovation in cataract surgery through a drug named Akreos(R)

AO Micro Incision lens by Bausch & Lomb Company. It may be

noted here that „Centre for Sight‟ is running eye hospitals across

the city. M/s HT Media Limited was the publisher of the

newspaper „Hindustan Times‟. The offending advertisement was

published in contravention of Section 3(d) of the Act, thus,

petitioners were liable to be punished under Section 7 of the Act.

CRL. M.C. No. 3757/2010

4. Relevant it would be to refer Section 3 of the Act at this

stage which reads 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 improvements 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. Section 3 (d) envisages that no person shall take part in the

publication of any advertisement referring to any „drug‟ in terms

CRL. M.C. No. 3757/2010 which suggest or are calculated to lead to the use of that „drug‟

for the diagnosis, cure, mitigation, treatment or prevention of any

disease, disorder or condition be specified in the Schedule, or

any other disease, disorder or condition which may be specified

in the rules made under the Act. Perusal of serial no. 11 of the

Schedule shows that diseases and disorders of „optical system‟

would fall within the meaning and scope of Section 3(d) of the

Act. Section 7 of the Act encompasses the penal consequences in

case of contravention of any of the provisions of the Act or rules

made thereunder.

6. Sole question which has to be answered in this case is

whether the offending advertisement amounts to advertising a

„drug‟ within the meaning of Section 3 of the Act or is it only

informative of the improved methodology and improved

equipment availability of the procedure involved in a cataract

surgery.

7. In this context it would be relevant to refer the offending advertisement with advantage, which reads as under:-

"Breakthrough Innovation in Cataract Surgery Award Winning Technology Reviving The Joys of Vision"

"With the advent of newer technologies and modern innovations, cataract surgery has come a long way. It has been a long journey from the traditional extra capsular cataract surgery to small incision cataract surgery to Phacoemulsification surgeries. We have gone ONE STEP AHEAD and achieved ways to reduce

CRL. M.C. No. 3757/2010 the incision size of the cataract surgery (making it less than 1.8 mm) there by speeding the wound healing and wound stability and decreasing the post operative corneal astigmatism.

This has been made possible by a combination of improved methodology and improved equipment availability. The combination of high vacuum flow restrictive tubing, STELLARIS MICS needle, the Stellaris Microsurgical System and the MICROINCISIONAL lenses by Bausch and Lomb provide us just that. In Stellaris Micro Incision Cataract Surgery system, cataract can be removed through a very small incision of 1.8mm followed by an implantation of AKREOS AO MIL.

Cataract Surgery at Centre For Sight is now being done routinely through 1.8/2 mm incision. Cataract Surgery/Micro Coaxial Cataract surgery) using the Bausch & Lomb Stellaris MICS.

Another important development, which has taken place, is the development of AKREOS AOMIL. The Bausch & Lomb Micro Incision IOLs provide the advantage of being able to pass through a very tiny incision 1.8/2mm. These lenses are also aspheric lenses, aberration free which can increase the contrast sensitivity and the visual acuity for the patient.

Providing ways and means to make the incision small while doing Phaco would be fruitless if we had to increase the incision in order to place the lens. Thus with increasing popularity of micro Phaco came the need of modify the lenses and their delivery system to make the effort worth while With AKREOS AO MIL (B&L), Centre for Sight provides just that. Watch out for the next part of this series on November 14 THE PATIENT CAN WALK IN AND WALK OUT OF THE OPERATION THEATRE"

8. A perusal of the above quoted advertisement which, in fact,

is in the shape of "an advertorial" clearly shows that it was

CRL. M.C. No. 3757/2010 informative in nature about the latest technology and

methodology in the field of cataract surgery where incision size of

the cataract surgery has been reduced to less than 1.8 mm

thereby speeding the wound healing and wound stability and

decreasing the post operative corneal astigmatism which had

been made possible by a combination of improved methodology

and improved equipment availability. It appears to have been

published to disseminate the information about new and latest

technology and methodology of "cataract surgery". Overall

reading of the advertisement clearly indicates that „Centre for

Sight‟ had made an attempt to bring to the notice of public at

large about the new technology which had been innovated and

the same in no manner can be termed as an advertisement to the

sale and use of any particular „drug‟, inasmuch as, „Centre for

Sight‟ was neither the manufacturer nor dealer nor retail seller of

such devices including the lenses. It was simply using the

equipment developed by Bausch & Lomb. Thus, in my view

offending advertisement does not infringe the provisions of

Section 3 (d) of the Act.

9. There is yet another angle with which matter has to be

looked into. It is to be seen as to whether the offending

advertisement violates Section 3(d) of the Act in the context of

aims and object for what law makers thought in its wisdom to

promulgate the Act. It appears that there had been influx of

CRL. M.C. No. 3757/2010 number of objectionable advertisements published in the

newspapers, magazines or otherwise relating to cures for variety

of diseases in general including the alleged cures for diseases and

conditions peculiar to the women resulting in self medication

with harmful drugs and appliances. To curb such harms, in the

interest of public, the Act had been promulgated to protect the

ignorant and unwary public. In K.S. Saini vs. Union of India,

AIR 1967 Punjab 322, it was held that the object of the Act is to

avoid self medication by people or their being misled by various

advertisements. The necessary condition, therefore, is that the

advertisement must induce others into using the „drug‟

advertised. In Hamdard Dawakhana vs. Union of India, 1960

AIR (SC) 554, Supreme Court has observed that the object of the

Act is to prevent self-medication or treatment by prohibiting

instruments which may be used to advocate the same or which

tend to spread the evil. Thus, it is clear that the whole object of

the Act is to save ignorant people from being duped to purchase

medicines just because their effect is advertised in eloquent

terms. The publication of an advertisement, to amount to an

offence, should have reference to a „drug‟ and that „drug‟ should

have been suggested as a cure for certain ailments mentioned in

clauses (a) to (d) of section 3 and advertisement should be of

such nature that ignorant people will be misled into self-

CRL. M.C. No. 3757/2010 medication or self-treatment. In the present case, if the contents

of advertisement are read and understood in the context of aims

and objects for which the Act has been brought in force, it cannot

be said that the advertisement violates Section 3(d) of the Act.

The lenses, with the help of devices as mentioned in the

advertisement, cannot be used by an individual himself after

buying the same from the market to cure the „cataract‟. A patient

has to visit a hospital and undergo eye operation by a registered

medical practioner in the field, thus, it cannot be said that the

public at large can resort to self-medication by using the alleged

lens as mentioned in the advertisement.

10. As I have already held that the offending advertisement was

aimed at educating the general public about the advancements in

the field of cataract surgery, I need not dwell on the issue

whether Micro Incision lens and other devices as referred therein

would fall within the ambit and scope of "drugs" as defined under

Section 2(b)(iii) of the Act. However, it may be noted that the

notification no. S.O. 1468 (E) dated 6th October, 2005 issued by

the Ministry of Health & Family Welfare, wherein Intra Ocular

lenses had been defined as "drugs", reliance whereupon has been

placed by learned APP, has been issued in pursuance of Section

3 of the Drugs and Cosmetics Act, 1940 and not under the Act

which is involved in this case. This notification, otherwise, is of

no help to the facts of the present case.

CRL. M.C. No. 3757/2010

11. For the foregoing reasons, in my view, the allegations in the

complaint, even if taken on their face value, do not disclose any

offence as alleged in the complaint. Therefore, both the petitions

are allowed and summoning order as well as complaint case

titled "State vs. Amit Singh & Others" pending in the court of

Metropolitan Magistrate is quashed.

12. Petitions are disposed of in the above terms.

A.K. PATHAK, J.

MAY 06, 2011 ga

CRL. M.C. No. 3757/2010