Kerala High Court
G.Jayaprakash vs State Of Kerala on 15 January, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942
WP(C).No.5740 OF 2017(S)
PETITIONER:
G.JAYAPRAKASH
AGED 51 YEARS, S/O.N.GANGADHARA PILLAI,
RESIDING AT SUSHIRI, PLAVILA, KALLAYAM P.O.,
THIRUVANANTHAPURAM - 695 043.
BY ADVS.
SRI.A.JAYASANKAR
SRI.ASHWIN SETHUMADHAVAN
SRI.MANU GOVIND
SMT.B.MEERA
SRI.S.SABARINADH
RESPONDENTS:
1 STATE OF KERALA
THROUGH ITS DEPARTMENT OF HEALTH & FAMILY WELFARE,
6TH FLOOR, ANNEX-II, GOVERNMENT SECRETARIAT,
STATUE JUNCTION, THIRUVANANTHAPURAM - 695 001.
2 THE DRUGS CONTROLLER AND LICENSING AUTHORITY
KERALA, PUBLIC HEALTH LABORATORY CAMPUS, RED CROSS
ROAD, VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035.
3 THE DEPUTY DRUGS CONTROLLER (AYURVEDA),
PUBLIC HEALTH LABORATORY CAMPUS, RED CROSS ROAD,
VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035.
4 THE SENIOR DRUG INSPECTOR (AYURVEDA),
PUBLIC HEALTH LABORATORY CAMPUS,RED CROSS ROAD,
VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035.
5 THE DRUGS CONTROLLER GENERAL OF INDIA
CENTRAL DRUGS STANDARD CONTROL ORGANIZATION,
FDA BHAVAN, ITO, KOTLA ROAD, NEW DELHI - 110 002.
6 MS.PANKAJAKASTHURI HERBALS INDIA P LTD.
POOVACHAL, TRIVANDRUM, KERALA - 695 575,
REPRESENTED BY ITS MANAGING DIRECTOR.
W.P.(C)No.5740 of 2017
2
7 M/S.MALAYALA MANORAMA COMPANY LTD.
MANORAMA BUILDING, K.K.ROAD,
KOTTAYAM - 686 001
(MALAYALA MANORAMA DAILY NEWSPAPER),
REPRESENTED BY ITS MANAGING DIRECTOR.
8 M/S.MATHRUBHUMI PRINTING AND PUBLISHING COMPANY
LIMITED
M.J.KRISHNAMOHAN MEMORIAL BUILDING
(MATHRUBHUMI BUILDINGS), K.P.KESAVA MENON ROAD,
KOZHIKODE - 673 001(MATHRUBHUMI DAILY
NEWSPAPER & MATHRUBHUMI NEWS CHANNEL),
REPRESENTED BY ITS MANAGING DIRECTOR.
9 M/S.JUPITER ENTERTAINMENT VENTURES PRIVATE
LIMITED,
JUPITER INNOVISION CENTRE, 54 RICHMOND ROAD,
BENGALURU - 560 025[ASIANET NEWS CHANNEL
(FORMERLY ASIANET GLOBAL)],
REPRESENTED BY ITS MANAGING DIRECTOR.
10 M/S.ASIANET COMMUNICATIONS LIMITED
ASIANET STUDIO COMPLEX, VALLAI KADAVU,
PULIYARAKONAM P.O.,THIRUVANANTHAPURAM -
695 573, REPRESENTED BY ITS MANAGING DIRECTOR.
11 M/S.MMTV LIMITED
NH-47, BYPASS ROAD, AROOR P.O.,
ALAPPUZHA - 688 534B[MANORAMA NEWS CHANNEL],
REPRESENTED BY ITS MANAGING DIRECTOR.
SRI K.V.SOHAN. STATE ATTORNEY FOR R1 TO R4,
SRI.P.VIJAYAKUMAR, ASG FOR R5,
SRI.MILLU DANDAPANI FOR R7 AND R11
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 15.01.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C)No.5740 of 2017
3
JUDGMENT
Dated this the 15th day of January, 2021
S.Manikumar, C.J.
Instant Public Interest Litigation is filed for the following reliefs:
"i. Issue a writ in the nature of Mandamus commanding the 4 th
Respondent to initiate appropriate legal proceedings under
Drugs and Magical Remedies (Objectionable Advertisement)
Act, 1954 against the 6th Respondent, for creating and
propagating 'Misleading Advertisements' in the nature of
Exhibit P1 & P2, which is prohibited under Sections 3 & 4 of
the Act; within a timeframe to be stipulated by this Hon'ble
Court.
ii. Issue a writ in the nature of Mandamus commanding the 4 th
Respondent to initiate appropriate legal proceedings under
Drugs and Magical Remedies (Objectionable Advertisement)
Act, 1954 against all persons, including all the publishers like
Respondents No. 7-11, who has created, propagated,
published, creating, propagating or publishing any
'Misleading Advertisements', which are prohibited under
Sections 3 & 4 of the Drugs and Magical Remedies
(Objectionable Advertisement) Act, 1954; within a timeframe
to be stipulated by this Hon'ble Court.
iii. Issue a writ in the nature of Mandamus commanding the 3 rd
Respondent to consider Exhibit P3 representation and take
appropriate decision upon it, after affording an opportunity of
hearing to this Petitioner; within a timeframe to be stipulated
by this Hon'ble Court.
W.P.(C)No.5740 of 2017
iv. Issue a writ in the nature of Mandamus commanding the 1 st
Respondent to consider Exhibit P4 representation and take
appropriate decision upon it, after affording an opportunity of
hearing to this Petitioner; within a timeframe to be stipulated
by this Hon'ble Court."
2. Short facts leading to the filing of the writ petition are that,
"Pankajakasthuri Orthoherb Tablets" is a drug, manufactured and
described by the 6th respondent (M/s Pankajakasthuri Herbals India (P)
Ltd.) in Exhibit P1, which claims to cure 'Rheumatism'. A huge
advertisement campaign, for promoting the sales of "Pankajakasthuri
Orthoherb Tablets" has been initiated by the 6 th respondent, as evidenced
by Exhibit P2 dated 5.7.2016. These 'Objectionable
Advertisement'/'Misleading Advertisements' are prohibited under Sections
3 & 4 of the Drugs and Magical Remedies (Objectionable Advertisements)
Act, 1954. Though the petitioner has filed representations (Exhibits P3
dated 22.7.16 and P4 dated 22.7.16), no action has been take so far.
Hence the writ petition.
3. The Law Officer, Office of the Drugs Controller,
Thiruvananthapuram, has filed a counter affidavit dated 26.5.2017, on
behalf of respondents 1 to 4. Paragraphs 3 to 16, which are relevant for
the pupose of this case, are extracted hereunder:
W.P.(C)No.5740 of 2017
"3. It is admitted that ayurvedic products, especially
cosmetics are being advertised in the electronic and print media for
propagation of these products. These advertisements are subject
to the provisions of Drugs & Magic remedies (Objectionable
Advertisements) Act, 1954. The Drugs Control Department is the
enforcement agency of the said Act. Legal actions are being
initiated against those advertisements which are violating the
provisions of the stated Act and the officers has initiated cases
against 137 manufacturers/marketers in the State of Kerala for
violation of the DMR (OA) Act. Those cases are now pending
before the trial court in the State of Kerala. Hence the contention
of the petitioner that Government through its silent policy and
bureaucratic practice is permitting and encouraging malpractices
by standing as a mute spectator, is not based on facts. It is a fact
that the manufacturing and marketing of ayurvedic products are
based on public demand and hence the products with less demand
will be withdrawn and new products will be launched under the
provisions of Drugs & Cosmetics Act after obtaining permission
from the licensing authority. Hence the contention of the petitioner
in this regard is also not true.
4. The contention of the petitioner that the inaction of the
statutory authorities of the state is, resulting in the compromising
of health standard is not true. There are around 1000 licensed
manufacturers, in the state, out of which only less than 10
manufactures advertise their products in violation of DMR(OA) Act,
for which the officers under the respondent has initiated legal
action. As there is no issue on public health, the petition may not
be considered as public interest litigation.
5. The 3rd respondent had granted Ayurveda Drug
Manufacturing Licence to the 6th respondent for the manufacture of
W.P.(C)No.5740 of 2017
the drug in the name, Pankaja Kasthuri Ortho Herb Tablets
intended for the treatment of all types of arthritis. The petitioner
submitted a complaint in the matter on 26/07/2016 to the 3 rd
respondent regarding misleading claim such as GOODBYE JOINT
PAINS & RELIEF FOR JOINT PAINS in the advertisement of the
product. As per Section 3(d) of the DMR(OA) Act 1954, no person
shall take any part in the publication of any advertisement referring
to any drug in terms which suggest or calculated to lead to the use
of that drug for the diagnosis, cure, mitigation, treatment or
prevention of any disease, disorder or condition specified in the
Schedule or any other disease, disorder or condition which may be
specified in the rule made under this Act 1954. Out of the 54
numbers of disease, disorder or condition mentioned in the
Schedule to the Act, Rheumatism, is included as item number 43.
Since joint pain is one of the main symptoms of Rheumatism, the
phrases GOODBYE JOINT PAINS & RELIEF FOR JOINT PAINS, in
the advertisement of product suggest or lead to use of the same
for the treatment of Rheumatism which is violation under DMR
(OA) Act.
6. It is admitted that the 6 th respondent who is the
manufacture of the drug Pankajakasthuri Ortho Herb Tablets had
advertised the drug in the print and electronic media of respondent
7 to 11. Usually the manufactured Ayurveda drugs are marketed
either through prescription of the doctors or by advertising the
product. The 6th respondent has included the testimony of persons
who were relieved from Rheumatism and allied disorders after
consuming the product Pankajakasthuri Ortho Herb Tablets. As the
advertisement is violation of the DMR(OA) Act, two cases are
registered against the 6th respondent, by the 4th respondent and
another officer attached to the office of the Drugs Inspector
W.P.(C)No.5740 of 2017
(Ayurveda), Ernakulam. True copy of the report submitted by
Drugs Inspector (Ayurveda) before the Judicial First Class
Magistrate Court --XI is produced herewith and marked as Exhibit
R1(a). True copy of the report submitted before the Judicial First
Class Magistrate Court, Kalamassery, Ernakulam by the officer
under respondent No.2 is produced herewith and marked as
Exhibit R1(b).
7. Hence the contention of the petitioner that neither the 4 th
respondent nor 2nd and 3rd respondents are opening their eyes
towards these continuing infraction, is not true. It is admitted that
the petitioner made a complaint to the Officer of the 3 rd
respondent but it is not true that no action is taken against it. A
show cause notice was issued to 6th respondent for violation of
Section 3(d) of the DMR(OA) Act 1954 by 3 rd respondent. The 6th
respondent challenged the show cause notice by filing W.P.(C)
No.11030/2017 before this Hon'ble Court and this Hon'ble Court
issued an interim order staying the passing of the final order in the
proceedings initiated by respondent No.3. True copy of the interim
order in W.P.(C) No. 11030/2017 is produced herewith and marked
as Exhibit R1(c).
8. Respondent No. 6 submitted a reply to the show cause
notice. But final decision could not be taken due to Exhibit R1(c)
order. The contention of the petitioner that the existing
bureaucratic practice in relation to objectionable advertisement in
the State of Kerala is pathetic is not true.
9. The 6th respondent is manufacturing various drugs under
the drug licences issued from the department. The drug approved
for manufacture include Ilogen excel, which was advertised earlier.
But the officers of the department initiated 10 cases against the
manufacturer at that time for advertisement of the drug Ilogen
W.P.(C)No.5740 of 2017
excel. The advertisement of this drug is not seen published now in
the print and electronic media. The drug approved as Panjajeeraka
Gudom permitted to M/s. Maruthwa Pharma, Thiruvananthapuram
and the drug Poshaka Plus permitted to M/s. Maruthwa Pharma
were advertised in violation of the Act and hence the licence
granted to these two products were suspended for one month by
the 3rd respondent on 10/10/2012. Moreover the following 4 cases
are registered against Maruthwa Pharma for the violation of the
DMR(OA) Act for the drug Maruthwa Mydays.
a) The Drugs Inspector, Kottayam filed a case for Maruthwa
Mydays before the JFMC III, Kottayam as ST.335/12, in this case,
the accused was punished by the court on 18/01/2014.
b) The Drugs Inspector, Thiruvananthapuram filed another case of
the same product before the JFMC, Neyyattinkara as ST. 4/2014,
the accused in this case was punished by the Court on 23/04/2014.
c) The Drugs Inspector, Ernakulam filed another case for
contravention of DMR(OA) Act for the drug Maruthwa Mydays
before the JFMC(III) Ernakulam as CC No. 6495/12 which is
pending before the Court.
d) The Drugs Inspector, Malappuram registered another case
against Maruthwa Pharma for the advertisement of the drug
Maruthwa Mydays. In short, 4 cases are initiated against M/s.
Maruthwa Pharma, out of which in 2 cases the accused was
punished as per the Act.
10. The 3rd respondent had permitted Lavanathailam,
Vajithailam, Navarathailam, Anjanathailam, Madhuramritham, Ayu
Care no fat, Med Honey etc to M/s. Institute of Indian Therapies,
Thrissur. As the advertisements of these drug contravene DMR(OA)
Act, the Drug Inspectors of the Department initiated the following
cases.
W.P.(C)No.5740 of 2017
a) The Drugs Inspector, Thrissur filed case against Lavanathailam
before the JFMC, Chalakkudy as ST.7204/201, in this case, the
accused was punished by the Court on 18/07/2013.
b) The Drugs Inspector (Ayurveda), Kollam filed another case
against Lavanthailam before the CJMC, Kollam as ST.312/201, in
which the Hon'ble Court punished the accused on 14/02/2013.
c) The Drugs Inspector, Thrissur filed case against Vajithailam
before the JFMC, Chalakkudy as ST 7203/2011, which is pending
before the Court.
d) The Drugs Inspector, Thiruvananthapuram filed a case against
Vajthailam before the Addl. OM, Thiruvananthapuram as CC
493/2011 which is pending before the court.
e) The Drugs Inspector, Pathanamthitta filed case against
Vajithailam, before the JFMC II, Pathanamthitta as ST 1408/2012
in which the accused was punished.
f) The Drugs Inspector, Kottayam filed a case against Vajithailam,
before the JFMC III Kottayam in which the accused was punished.
g) The Drugs Inspector, Ernakulam filed case against Vajithailam,
before the JFMC II, Ernakulam in this case the accused was
punished on 02/01/2013.
h) The Drugs Inspector, Thrissur filed a case against the drug
Ayucare no fat before the JFMC, Kunnamkulam as CC.2118/2013 in
which the accused was punished on 18/12/2013.
i) The Drugs Inspector, Thiruvananthapuram filed a case against
Muthuramritham before JFMC, Kattakkada as CC. 1102/2012,
which is pending before the court.
j) The Chief Inspector, Drugs Intelligence Squad,
Thiruvananthapuram filed case against Muthramritham before the
JFMC III, Thiruvananthapuram as CC 103/2013 which is pending
before the Court.
W.P.(C)No.5740 of 2017
k) The Drugs Inspector, Ernakulam filed a case against
Mathuramritham before the JFMC II, Ernakulam as CC 6496/2012,
in this case the accused was punished on 08/07/2013.
l) The Drugs Inspector, Wayanad filed a case against
Mathuramritham before the JFMC, Wayanad as ST. 1265/2012, in
which the accused was punished on 27/05/2013.
m) In addition to this the Drug Inspectors of Thiruvananthapuram,
Wayanad, Ernakulam, Allappey & Pathanamthitta registered 5
cases against the Drug Med Honey manufactured by Institute of
Indian Therapies., Thrissur. All these cases are under trial before
the various Courts in their jurisdiction.
n) Moreover another case is also registered for manufacture of
Kizhi kit without drug manufacturing license against M/s. Institute
of Indian Therapies, in this case also the accused is punished by
the Court.
11. The officers of the Department initiated the following 3
cases against M/s. Kunnath Pharmaceuticals for the advertisement
of the drug Musli Power xtra.
a) The DI, Ernakulam filed a case against Musli Power xtra before
JFMC II, Ernakulam as CC. 640/2017, in this case the accused is
convicted by the Court and the appeal is filed by the accused.
b) The DI (Ayurveda), Ernakulam failed a case against Musli Power
xtra before the JFMC, Ernakulam as CC. 393/2011, in this case the
accused is convicted by the Hon'ble Court and the appeal is filed
by the accused.
c) The DI, Ernakulam filed another case against Musli Power xtra
before the JFMC II, Muvattupuzha as CC. 5213/2011, which is
pending before the Court.
12. The DI (IB), Ernakulam filed a case against Dhathri for
advertisement of the drug Diavita Plus before the JFMC, Ernakulam
W.P.(C)No.5740 of 2017
as ST. 245/2011, in this case the accused was punished on
12/02/2013. The DI, Kottayam also filed case against Diavita Plus
before the JFMC III, Kottayam, in this case also the accused was
punished by the Court.
13. In short the officers of the department is in constant
vigil about the contravention of the DMR(OA) Act and initiate
action against its violation, if detected.
(i) It is true that the established company like Kottakkal
Aryavaidysala, Vaidyaratnam Oushadasala and other similar firms
are manufacturing drugs of the similar nature, but none among
them are advertising such drugs is admitted. It is because the drug
manufactured by them are mainly traditional medicines prescribed
by the doctors appointed by them through their own branches.
(ii) The contention of the petitioner that the manufacturers
withdraw their products on and thereafter after a short break,
market the same with a new name and style is not true. Generally
the manufacturers obtain approval of different types of drugs, and
advertise the products during different periods based on several
factors.
(iii) The contention of the petitioner that, no actions are usually
taken up against offenders is not true. At present 137 cases are
pending before different courts in the State of Kerala, including two
cases against the 6th respondent and other leading companies
mentioned in the petition.
(iv) The contention of the petitioner that the prosecution are all
futile, is not true, in almost all the cases the accused were
punished. The contention of the petitioner that even the case of
2011 is under investigation till date, is not true, as the complaint
under DMR(OA) Act has to be filed before the court within a year
after the seizure. As majority of the cases are finalized with
W.P.(C)No.5740 of 2017
conviction, the claim of the petitioner that investigation are lagging
due to lack of evidence and materials is not true.
(v) The argument of the petitioner that this policy that prompts
and encourages the person, like 6th respondent to act in
contravention of the Act, is not true. The officers of the
department initiated prosecution action against the offenders when
violations are detected and at present 137 cases are pending
before various trial courts in the state. True copy of the details of
such cases are produced herewith and marked as Exhibit R1(d).
14. The petitioner had made complaint against other
companies before the 1st respondent which is considered and
action is being initiated as per the Act and Rules. The exhibits
produced as P7 also mentions such action initiated by the
respondent.
15. The officers under the Drugs Controller initiated cases in
all the districts in Kerala. Exhibit R1(d) will show the details of the
cases pending. In the year 2014, 14 manufacturers are convicted
for violation of DMR(0A) Act. In the year 2015, 16 manufacturers
and in the year 2016, 15 manufacturers are convicted.
16. Exhibit R1(d) gives the details of the cases pending.
From the above paragraph, it is clear that several manufacturers
are convicted pursuant to the proceedings initiated by these
respondents."
4. That apart, respondents 1 to 4 have produced along with the
counter affidavit Exhibit R1(d), the details of cases registered for
violation of Drugs and Magic Remedies (Objectionable Advertisements)
Act, 1954, pending in various courts at different stages.
W.P.(C)No.5740 of 2017
5. From the counter affidavit, it could be deduced that suitable
action was taken against the alleged violators before the court of
competent jurisdiction, and that a show cause notice has been issued to
M/s.Pankajakasthuri Herbals India (P) Ltd., respondent No.6, for violation
of Section 3(d) of the Drugs and Magic Remedies (Objectionable
Advertisements) Act, 1954 by the Deputy Drugs Controller (Ayurveda),
respondent No.3.
6. Being aggrieved, respondent No.6 has challenged the show
cause notice, by filing W.P.(C)No.11030 of 2017 before this court, and
that a learned single Judge of this court has stayed the passing of the
final order, in the proceedings initiated by respondent No.3. Thus, it
could be seen that suitable action has been taken. Therefore, there is no
need to issue any mandamus, as prayed for. Hence, the writ petition is
dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar
Chief Justice
Sd/-
Shaji P.Chaly
Judge
vpv
W.P.(C)No.5740 of 2017
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1. A TRUE PHOTOCOPY OF THE DESCRIPTION OF THE
"PANKAJAKASTHURI ORTHOHERB", AS OBTAINED
FROM THE OFFICIAL WEBSITE OF THE 6TH
RESPONDENT.
EXHIBIT P2. A TRUE PHOTOCOPY OF SUCH ADVERTISEMENT,
PROPAGATED BY THE 6TH RESPONDENT FOR
PROMOTING 'PANKAJAKASHTURI ORTHOHERB
TABLET' AND PUBLISHED BY 7TH RESPONDENT ON
05.07.2016.
EXHIBIT P3. A TRUE PHOTOCOPY OF THE REPRESENTATION
PREFERRED BY THE PETITIONER TO THE 3RD
RESPONDENT DATED 22.07.2016.
EXHIBIT P4. A TRUE PHOTOCOPY OF THE REPRESENTATION
PREFERRED BY THE PETITIONER TO THE 1ST
RESPONDENT GOVERNMENT DATED 22.07.2016.
EXHIBIT P5. A TRUE PHOTOCOPY OF SUCH AN ADVERTISEMENT,
PROPAGATED BY THE 6TH RESPONDENT FOR
PROMOTING 'PANKAJAKASTHURI ORTHOHERB
TABLET' AND PUBLISHED BY 8TH RESPONDENT
ON 07.12.2016.
EXHIBIT P6. A TRUE PHOTOCOPY OF THE STATUS OF VARIOUS
PROSECUTIONS, INITIATED UNDER THE DRUGS AND
MAGICAL REMEDIES (OBJECTIONABLE
ADVERTISEMENT) ACT, 1954, OBTAINED BY THE
PETITIONER UNDER THE RIGHT TO INFORMATION
ACT.
EXHIBIT P7. A TRUE PHOTOCOPY OF THE COMMUNICATION
NO.9065/F/14/AKV DATED 22.03.2014 ISSUED BY
THE 1ST RESPONDENT TO THE PETITIONER
ADMITTING INFRACTIONS OF THE DRUGS AND
MAGICAL REMEDIES (OBJECTIONABLE
ADVERTISEMENT) ACT, 1954.
W.P.(C)No.5740 of 2017
RESPONDENTS' EXHIBITS:
EXT.R1(A): TRUE COPY OF THE REPORT SUBMITTED BY DRUGS
INSPECTOR (AYURVEDA) BEFORE THE JUDICIAL
FIRST CLASS MAGISTRATE COURT-XI.
EXT.R1(B): TRUE COPY OF THE REPORT SUBMITTED BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT,
KALAMASSERY, ERNAKULAM.
EXT.R1(c): TRUE COPY OF THE INTERIM ORDER IN WPC
11030/2017.
EXT.R1(D): TRUE COPY OF THE DETAILS OF THE CASES.
/TRUE COPY/
P.A. TO JUDGE
