Partly allowed

Mahesh Ramnath Sonawane and Ors. v. the Union of India and Ors.

Bombay HC27 Nov 2014WP/1001/2002

Case brief

AI extract

What is this about?

This Public Interest Litigation challenged the telecast of drug advertisements on television channels as promoting self-medication. The High Court directed authorities to formulate a comprehensive policy on regulating such advertisements, ensuring compliance with the Drugs and Magic Remedies Act. The court also established strict timelines for authorities to process public complaints regarding ads

What did the court decide?

Directed respondents to frame a comprehensive policy for regulating drug advertisements on TV within six months; set timelines for addressing public complaints regarding specific drugs or ads.

Mahesh Ramnath Sonawane and Ors. Vs the Union… — Public Procurement and Tenders | Bombay HC (2014)

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(1) W.P. No. 1001 of 2002

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

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Writ Petition No. 1001 of 2002

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Mahesh Ramnath Sonawane, Age : 24 years, Occupation : Education, R/o. Plot No. 1183, Sai Nagar, N-6, CIDCO, Aurangabad.

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.. Petitioner no.1.

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Sachin C. Sarda, .. Petitioner no.2 deleted Age : 22 years, as per court's order Occupation : Education, dated 18-3-2002. R/o. Plot No. 1183, Sai Nagar, N-6, CIDCO, Aurangabad.

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versus

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The Union of India.

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The State of Maharashtra.

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2A. The Commissioner, Food & Drug Administration, Survey No. 341, Bandra Kurla Complex, Bandra East, Mumbai - 400 051.

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The Secretary, Information & Broadcasting, New Delhi.

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Channel Aaj Tak, '52', Mittal Court, 'A" Wing, 5th Floor, Nariman Point, Mumbai - 400 021. (www.AajTak.com).

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(2) W.P. No. 1001 of 2002

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Sony TV Channel, Sony Entertainment Television, '23', Shah Industrial Estate, Opposite Vira Desai Road, Andheri (West), Mumbai - 400 053 (www.setindia.com).

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Setmax, Sony Entertainment Television, '23', Shah Industrial Estate, Opposite Vira Desai Road, Andheri (West), Mumbai - 400 053.

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Sab TV, Shri Adhikari Brothers Television Network Ltd., Adhikari Chambers, Oberoi Complex, New Link Road, Andheri West, Mumbai - 400 053 (email : [email protected]).

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Alembic Ltd., Alambic Road, Industrial Area, Vadodara - 390003 (Mfg. Glycodin).

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Parke-Davis, Paville House, Off Veer Savarkar Marg, Prabhadevi, Mumbai - 400 025 (Gelusil Mps. & Benadryl Cough Formula).

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Green Pharmaceuticals, '14', Phanchratna Ind. Estate, Changodar, Taluka : Sanand, District : Ahmedabad (Mfg. Of D-Cold Total Tablets).

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(3) W.P. No. 1001 of 2002

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Paras Pharmaceutical Ltd., 1/7, GIDC Estate Kalol (N.G.)-382725 (D-Cold Syrup & Tablet Marketed By)

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Novartis India Ltd., '14', J-Tata Road, Mumbai - 400 020 (Mfg. Calcium Sandoz Tablet)

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.. Respondent no.12 deleted as per court's dated 18-3-2002.

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Reckitt Benchiser India Ltd., .. Respondent no.13 Enkay Centre, 2nd Floor, deleted as per court's Vanijya Nikunj, Udyog Vihar, order dated 18-3-2002. Phase 5, Gurgaon - 122 016 (Mfg. Disprin Paracetamol Tablet).

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Emcure Pharmaceutical Ltd., S-25/D-6, 'T' Block, MIDC, Bhosari, Pune - 411 026 (India) (Mfg. Benadryl).

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Maharashtra State Medical Council, .. Respondent no.15 Mumbai. deleted as per court's order dated 18-3-2002.

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All India Medical Council, .. Respondent no.16 New Delhi. deleted as per court's order dated 18-3-2002.

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The Programme Executive, Doordarshan Commercial Service, Mandi House, New Delhi. .. Respondents.

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Petitioner appearing as party in person.

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Mr. S.B. Deshpande, Assistant Solicitor General of India, for respondent nos.1, 3 and 17.

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Mrs. M.A. Deshpande, Assistant Government Pleader, for respondent nos. 2 and 2A.

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(4) W.P. No. 1001 of 2002

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Mr. S.R. Andhale, Advocate, for respondent no.4 (Absent).

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Mr. A.M. Kanade, Advocate, for respondent nos.5 and 6 (Absent).

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Mr. S.B. Agrawal, Advocate, for respondent no.7 (Absent).

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Mr. S.V. Adwant, Advocate, for respondent no.8.

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Mr. C.V. Korhalkar, Advocate, for respondent no.9.

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Mr. R.R. Mantri, Advocate, for respondent nos.10 and 11.

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Respondent nos.12, 13, 15 and 16 deleted as per leave dated 18-3-2002.

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Respondent no.14 served (Absent).

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CORAM : B.P. DHARMADHIKARI & A.M. BADAR, JJ.

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DATE : 27TH NOVEMBER 2014

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ORAL JUDGMENT (Per B.P. Dharmadhikari, J.) :

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Matter is listed as an old matter to be taken up by according the precedence on Thursday as per roster assignment.

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The petitioner - Shri M.R. Sonawane, a practicing Advocate of this Court now, has filed this petition in February 2002, when he was a student. The grievance in the petition is about need of taking appropriate steps to prohibit self-medication or self-treatment. The petition has been amended only once i.e. in February 2003. The prayers in the petition are as under :-

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(5) W.P. No. 1001 of 2002

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(A) It is, therefore, prayed that rule may be issued to respondents & the respondents may be directed to stop such misleading advertisements which are harmful to general public.

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(A[a]) It is, therefore, prayed that, the respondent nos.2[A] and 3 may kindly be directed to initiate prosecution against the concerned advertiser as provided in the cable television networks [regulation] Act, 1995, and Drugs and Magic Remedies [objectionable advertisements] Act, 1954.

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(A[b]) It is, therefore, prayed that, the respondent nos. 1 to 2[a] may kindly be directed to ban manufacturing, selling, advertising, drug namely phenylpropanolamine throughout India with immediate effect in the interest of public at large.

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This Court has passed a speaking order on 31st March 2003, noticing briefly the grievance made and on that day, noted statement made on affidavit by Joint Commissioner, Food & Drugs Department of Maharashtra State at Aurangabad. Certain directions were issued to respondent nos.1 and 3, as also respondent no.17, to take appropriate action against telecast of advertisements assailed by the petitioner in petition. We find it appropriate to re-produce that order :-

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(6) W.P. No. 1001 of 2002

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“Heard Shri Mahesh Sonawane party-in-
person, who has filed this writ petition as
public interest petition whereby the
petitioner is seeking writ from this Court
prohibiting the respondents from displaying
advertisements in glorified forms regarding
the drugs and medicines etc.

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2.The respondents in this writ petition
are Union of India, Government of
Maharashtra, Television Channels who are
telecastingtheadvertisements,the
manufacturers of the said drugs but, the
main respondents in this petition being
respondent nos.1, 2, 2A, 17, this writ
petition was listed for hearing on 21st
February, 2003. Shri Godhamgaonkar, learned
Standing Counsel appearing for respondent
nos.1 and 3 had sought time of four weeks
for filing affidavit. Accordingly, time was
granted and the matter is placed before us
for further hearing today. In the meantime,
affidavit on behalf of the Joint
Commissioner, Food & Drugs Department,
Maharashtra State, Aurangabad, came to be
filed wherein the Joint Commissioner has
made a statement that, -

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"4. I further say and submit that this deponent has already initiated action against the manufacturer of the Onergy capsule for issuing the warning under

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(7) W.P. No. 1001 of 2002

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letter No. Takid/771/2002/16 dated 25th October 2002. The said warning letter dated 25-10-2002 is annexed herewith and marked as Exh.R-2. After receipt of the reply from the manufacturer of Onergy capsule replying Respondent will scrutinise the matter in the light of section 3 of the DMR Act and if the deponent is satisfied that the manufacturer has violated section 3 by advertising the Onergy capsule on T.V. Channel in that case, further necessary action for banning the advertisement will be initiated by the department.

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I further say and submit that the deponent will verify the involvement of manufacturer in the advertisement of drugs which are mentioned by the petitioner in the light of section 4 of the Act and if it is found that the advertisement gives false impression regarding true character of the drug etc., in that case, appropriate action will be taken against the manufacturer and the said advertisement will be banned from exhibiting on T.V. Channel. "

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In the above statements, the said
respondent has assured this Court that
proper steps will be taken in that behalf.
We accept the statements made in the
affidavit of the Joint Commissioner and
permit him to take appropriate action as per
the assurance given in the affidavit. For
that purpose, we give two months' time. We
hope and trust that within the specified
time, the concerned authorities will take
concrete steps and take action in accordance

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(8) W.P. No. 1001 of 2002

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with law against the persons concerned.

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3.Similarly, we direct the respondent
nos.1, 3 and 17 to take appropriate action
against the telecast of advertisements as
alleged by the petitioners in the petition.
Though, time was granted on 21st February
2003, no affidavit is filed and therefore,
we have to pass the order that the
respondent nos.1, 3 and 17 shall take
concretestepstoseethatsuch

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advertisements are not telecasted if the
telecast of those advertisements violate any
of the provisions of law and if the
respondent nos.1, 3 ad 17 are satisfied that
those advertisements being telecasted
through television channels should be
stopped or should be directed to be
modified, they shall do accordingly. For
this purpose, we give two months' time to
respondent nos.1, 3 and 17 and they are
directed to file progress report in the
shape of affidavit within the aforesaid
time. Though, initially we thought not to
adjourn the matter on account of non-filing
of affidavit, but considering larger public
interest in the matter, we are of the view

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that some more time is required to be
granted. Therefore, we grant time as sought
for. We hope and trust that the respondent
nos.1, 3 and 17 will demonstrate before us

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(9) W.P. No. 1001 of 2002

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their honest and sincere efforts in this
regard.

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4.We direct that the copies of affidavit
/ report be served to the petitioners and
co-respondents well in advance. The learned
Standing Counsel Shri Godhamgaonkar assures
that the date of serving of the report will
be intimated to the petitioners and the
petitioners will personally collect the
copies from the office of the Standing
Counsel, Union of India.

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5.Put up the matter for further hearing
on 21st June 2003.”

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After this order, matter was again looked into on 10-6-2003 and thereafter Rule was issued on 26-6-2003.

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Though the petitioner has made reference to various advertisements in relation to drugs like Tablet D' Cold total, Syrup D' Cold and Cough, Gelusil MPS antacid, Glycodin Cough Syrup, Benadryl Cough Formula, Onergy Capsule, in the present matter, we find it appropriate to refer to only one drug i.e. Tablet D' Cold total, to understand the grievance made.

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Mr. Sonawane has invited attention to judgment of Hon'ble Apex Court, in the case of Hamdard Dawakhana and another Vs. Union of India and others , reported in AIR 1960 SC 554 , particularly paragraphs 20 and 21, where the Hon'ble Apex Court has considered challenge to

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(10) W.P. No. 1001 of 2002

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constitutional validity of Section 3 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 [For short, hereinafter referred to as “1954 Act”] . He contends, that the entire Act has been found to be valid and the Hon'ble Apex Court has held that the Act covers all advertisements which may promote self-medication or self-treatment. He has also invited attention to the pleadings in petition about tablet D' Cold total. According to him, the advertisement mesleads a common man and contains false and misleading material. He further submits, that the positive impact or aspect of said drug is written in English as well as in Hindi, on one side of the package of the tablet, while the precautions to be taken are written only in English. According to him, this is misleading and suppression of fact or then, giving of half truth and, therefore, prohibited under Rule 6(1)(d) of Cable Television Network Rules, 1994.

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Mr. Sonawane has also invited attention to a Division Bench judgment of this Court, in the case of GMT Teleshopping Private Ltd. Vs. Union of India and others , reported in 2013(5) Mh.L.J. 661 , to show that the above mentioned 1960 judgment of Hon'ble Apex Court has been followed. He further contends that respondent no.2A i.e. Food & Drug Administration has till date, not taken any coercive action against any manufacture or against any television cable network or channel for telecast of or for publishing the advertisements which violate above mentioned 1954 Act. He has also urged that some of the medicines so advertised contain harmful ingredients. According to him, those chemicals or their use as a component of any medicine is already prohibited elsewhere in other countries and still the same are advertised and a common man, who is impressed after watching telecast, purchases it directly from the medicine shop and falls

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(11) W.P. No. 1001 of 2002

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prey to it.

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He also invites attention to the fact that this Court has called for a report from respondent no.2A - Food and Drug Administration, and the report submitted before this Court, on 20th June 2003, by the said authority, does not look into any of these challenges.

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He contends, that in India, sale of medicines directly to customer or across the counter is not open and it is regulated. The drugs are either required to be supplied on prescription of a Doctor or then, administered under supervision of a Doctor. Hence, manufacturers have rightly employed or taken services of Salesmen / Medical Representatives to contact such Doctors. Mr. Sonawane submits that thus, there is no need of having such advertisements for viewing by general public on any television channel.

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Adv. Mr. Mantri appearing for respondent nos.10 and 11, and Adv. Mr. Korhalkar for respondent no.9, state that the petition has been filed under wrong impression. According to them, medicines are being manufactured after proper license in country and hence, no objection to their components or ingredients can be raised. They further submit that 1954 Act does not cover all medicines and hence, reference thereto or recourse thereto is also not open. Judgment delivered by the Hon'ble Apex Court in the case of Raj Kapoor Vs. Laxman , reported in 1980 AIR (SC) 605 , is relied upon, to urge that once it is shown that drug is being manufactured under a valid license, and the advertisement is allowed to be shown on television, by a competent authority, the contentions of present nature are not available and cannot be looked into.

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(12) W.P. No. 1001 of 2002

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Adv. Mr. Mantri submits, that the Drugs and Cosmetics Act, 1940 [For short, hereinafter referred to as “1940 Act”] vide its Schedule H, gives list of drugs which can be sold only on prescription and vide its Schedule G, enlists drugs which need to be taken under medical supervision. He contents, that there are several medicines or drugs which need not be purchased under prescription or which need not be taken by a patient under medical supervision. He has invited attention to the medicines like Vicks, Balm, some Ointments and other Ayurvedic preparations. His submission is, in this situation, when respondent no.2A has given a report to this Court, the present grievance , which is too general in nature, cannot be entertained.

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Both learned Counsel submit, that if the petitioner is offended or aggrieved by any particular advertisement, he can make grievance in relation thereto, but in the present matter, no cognizance can be taken by this Court.

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The learned AGP Mrs. M.A. Deshpande appearing for respondent nos.2 and 2A - State of Maharashtra, relies upon reply affidavit, as also report submitted by respondent no.2A to oppose the challenge.

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The learned ASGI Mr. S.B. Deshpande has appeared for respondent no.1. Mr. Sonawane has submitted that he was asked to collect a copy of reply from the office of Counsel then representing respondent no.1 and accordingly he has collected it. However, when he collected the copy, it was not sworn. No such reply is placed on record in the present matter. We find that the respondent no.1 does not appear to have filed any reply before

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(13) W.P. No. 1001 of 2002

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this Court.

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It is, in this background, that we have considered the controversy. The judgment of Hon'ble Apex Court, in the case of Hamdard Dawakhana and another (supra) , shows that there the validity of 1954 enactment has been upheld. While so doing, Hon'ble Apex Court has observed, that the Act read as a whole, does not merely prohibit advertisement relating to drugs and medicines connected with diseases expressly mentioned in Section 3 of the Act, but they cover all advertisements which are objectionable or unethical and are used to promote self-medication and self-treatment. Hon'ble Apex Court has observed, that “This is the content of the Act” . It is, therefore, obvious that no argument to the contrary can be entertained by this court. Section 2(b) thereof, which defines ‘drug’, is an inclusive definition which has got very wide sweep. It, therefore, does not restrict itself to any particular type of medicine or drugs. Thus, advertisements cannot be used to promote selfmedication or self-treatment of any drug.

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At this stage, it is necessary to refer to the judgment relied upon by Adv. Mr. Mantri, in the case of Raj Kapoor Vs. Laxman (supra) . There, Hon'ble Apex Court has found prosecution under Section 292 of Indian Penal Code, unsustainable. The Hon'ble Apex Court has found that the film ‘Satyam Shivam Sundaram’ had a valid certification under Section 5A of Cinematograph Act, 1952. In the light of said provision, Section 79 of IPC was found to be exculpatory and, therefore, prosecution under Section 292 was quashed. Thus, this judgment shows that the film had necessary certification from Censor Board and, therefore, a provision in IPC

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(14) W.P. No. 1001 of 2002

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which helped a holder of such certificate as he was acting in good faith or was justified by law in exhibiting the film, was found relevant. In the present matter, the certification of advertisement by Censor Board under Cinematograph Act by itself cannot be decisive. If self-medication or selftreatment is to be avoided, and the advertisement is aimed at encouraging it or contains that potential, the advertisement may be required to be considered by some other expert Agency or Board before it is so released. The judgment of Hon'ble Apex Court, therefore, has no application in the present matter.

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Section 3 of 1954 Act deals with prohibition of advertisement of certain drugs for treatment of certain diseases and disorders. The said Section prohibits a person from taking part in the publication of any advertisement referring to any drug which suggests or is calculated to lead to the use of that drug for the purposes which are stipulated in clauses (a) to (d). Section 4, subject to other provisions of the 1954 Act, prohibits a person from taking part in such publication if the advertisement contains any matter which directly or indirectly gives a false impression regarding the true character of the drug or makes a false claim for the drug, or is otherwise false or misleading in any material particular. Thus, when Section 3 may be read as restricted to particular type of disorders or drugs, Section 4 appears to be a general prescription with wider scope. Though some arguments were advanced before us, about the phrase ‘regarding the true character of the drug’ employed in Section 4(a), for the present adjudication, we do not find it necessary to go into it as none of the respondents have suggested that the advertisements pointed out by the petitioner are permitted by any provision under 1954 Act.

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(15) W.P. No. 1001 of 2002

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The Division Bench judgment of this Court, in the case of GMT Teleshopping Private Limited (supra) , shows that, there, the advertisement was of product "STEP-UP Body Growth Formula" on various television channels. The Division Bench was considering Section 3 of 1954 Act, and was not required to look into Section 4 thereof. However, the object of 1954 Act i.e. to prevent self-medication finds reiteration there by this Court. Again, further observations show, that television being very powerful media and viewers include illiterate, nive or innocent people likely to accept advertisement to be true, the telecast of such advertisement may have adverse effect. These observations, though made while considering provisions of Section 3 of 1954 Act, also hold good in the present matter. It cannot be disputed, that all such advertisements to which Mr. Sonawane has invited our attention, are aimed at ultimate consumer. His contention, that the marketing of such drugs or medicines has to be by trained persons like Medical Representatives and that too, by contacting the qualified Doctors, also cannot be likely brushed away. Whether, such advertisements showing capacity to grant instant relief give a false impression regarding the true character of the drug or contains a false claim for the drug or is otherwise false or misleading in any material particular necessitates perusal of concerned advertisements. But, petitioner himself has stated that since last about two weeks such advertisements are not appearing on any channel. If the respondents want to further direct sale of drugs without any prescription, or its use without any intervention of Doctors, the situation may warrant its viewing to find out whether it attracts bar under S. 4 of 1954 Act.

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The question, whether particular drug or medicine can be

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(16) W.P. No. 1001 of 2002

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allowed to be advertised so as to make the masses aware about its availability or impact, or then, the advertisements should not be allowed and the canvassing thereof may be restricted only to qualified medical practitioners, definitely has some policy implications. The present petition has been filed in the year 2002 and advertisements then available on channel had been pointed out. Mr. Sonawane has fairly stated that thereafter, some manufacturers have withdrawn their advertisements.

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The issues raised in the present Writ Petition, treated as Public Interest Litigation, are of vital importance for common man and society at large. During arguments, Mr. Sonawane has attempted to invite our attention to certain documents to show that in recent past, some new advertisements were appearing on different channels. In the light of observations made above, we find that a telecast of such advertisements in relation to drugs or medicines only after clearance thereof, by Censor Board under Cinematograph Act, 1952, may not be in public interest. There is no material on record, to show that the Cinematograph Act empowers Censor Board to consider the provisions of 1954 Act. Similarly, as Censor Board is not party, it is not clear, whether the Members thereof consider breach of said enactment. Coupled with this, may be a question of their technical competence to understand the exact nature or impact of such advertisements on masses.

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The report filed by respondent no.2A on record, on 26-6-2003, does not deal with all these facets or aspects. It only speaks of opportunity of hearing extended to various manufacturers and then a general remark, that the television channels and manufacturers of the formulations would be

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(17) W.P. No. 1001 of 2002

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directed by the respondent, to display the static or crawling warning throughout length of advertisement wherever required. Again, what result such warning would achieve, is doubtful. Whether it offers immunity from violation of S.4 of 1954 Act. The legislative object behind avoiding selfmedication or self-treatment by using drugs must be kept in mind while undertaking this exercise. The report of respondent no.2A before this Court ignores this object.

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In this situation, after hearing all learned Counsel as also Mr. Sonawane, we find it necessary for respondent nos.1, 2 and 2A, to evolve a comprehensive policy. The authorities have to first decide whether all drugs or medicines can be allowed to be advertised on such channels and if such advertisement is to be permitted, what should be the content thereof. The contents cannot be contrary to provisions of 1954 Act, be it Section 3 or Section 4. If advertisements can be permitted, the fact that such advertisements encourage self-medication or self-treatment, will also be required to be kept in mind and adequate safeguards in that respect may be required to be provided. Perhaps, a regulatory authority may also then be essential. Such regulatory authority may, on lines with Censor Board, also clear the advertisements of a particular drug or medicine, if such advertisement is not contrary to law & is permitted by the respondents. But as all these questions need a deeper scrutiny and a case specific study is essential, we are not inclined to issue any positive directions at this stage. We direct respondent nos.1 and 2 to consider these issues and to take suitable decision upon it within a period of six months from today.

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However, if petitioner or any citizen comes across any such

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(18) W.P. No. 1001 of 2002

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advertisement on any channel and finds it violating any statutory provision, including bar under Sections 3 and 4 of 1954 Act, such aggrieved person can make appropriate representation in relation to that advertisement, to respondent no.2A or to the Drug Controller of India, as also to respondent no.17. If such grievance is received by any of these authorities, the authority shall be duty bound to take suitable decision upon it, within a period of two months of its receipt. The decision reached shall be communicated to the complainant by R.P.A.D. within said period.

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The petition also contains a prayer which has got bearing on manufacturing activity and, therefore, contents of a particular drug. Again, complaint of this nature can be made by any citizen in relation to any drug which is found to contain the prohibited or injurious ingredient. The aggrieved person, therefore, must make a suitable representation even in this respect, to competent authorities and then approach a competent court and seek necessary relief therefor. If petitioner is still aggrieved by any such particular medicine or drug, like "phenylpropanolamine". we give him liberty to place his grievance before competent authority similarly. Said authority & competent forum shall examine it, and take a responsible decision upon it, within 4 weeks of its receipt. We hereby caution such authority & forum that any breach of this direction will be viewed as contempt of this Court & any negligence in taking the decision, may be viewed as dereliction of duty towrds society at large.

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