Dismissed

Institute of Indinsa Therapies Rep.by Is Proprietor v. the State of Kerala

Kerala HC12 Jun 2019Crl.MC/880/2015

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed a writ petition seeking to quash proceedings under Section 482 Cr.P.C. The petitioners advertised a drug for curing diabetes, violating the Drugs and Magic Remedies Act. The Court held the prima facie case was made out and the petition failed.

What did the court decide?

The petition for quashing the criminal proceedings was dismissed.

Institute of Indinsa Therapies Rep.by Is Proprietor… — Execution and Attachment | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 12TH DAY OF JUNE 2019 / 22ND JYAISHTA, 1941

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Crl.MC.No. 880 of 2015

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CC NO.103/2013 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM

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PETITIONERS/ACCUSED:

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1 INSTITUTE OF INDIAN THERAPIES, DOOR NO.V/170A, ANNAMANADA, THRISSUR 680 741, REPRESENTED BY THE PROPRIETOR, DR.K.MAHESH MENON, S/O.T.A.RADHAKRISHNA MENON, MALIKAPARAMBIL HOUSE, ANNAMANADA P.O, THRISSUR 680 741.

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2 DR.K.MAHESH MENON, AGED 39, S/O.T.A.RADHAKRISHNA MENON, MALIKAPARAMBIL HOUSE, ANNAMANADA P.O, THRISSUR 680 741. PROPRIETOR OF INSTITUTE OF INDIAN THERAPIES, DOOR NO.V/170A, ANNAMANADA, THRISSUR 680 741.

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BY ADVS. SRI.N.M.MADHU SMT.C.S.RAJANI SRI.P.P.HARRIS

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RESPONDENT/COMPLAINANT:

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THE STATE OF KERALA, REPRESENTED BY THE DRUGS INSPECTOR (SPECIAL INTELLIGENCE BRANCH), OFFICE OF THE DRUGS CONTROLLER, THIRUVANANTHAPURAM-695 035.

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SMT. M. K. PUSHPALATHA, SENIOR PUBLIC PROSECUTOR

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.MC.No. 880 of 2015

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ORDER

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The 2^nd petitioner is the proprietor of a concern by name “Institute of Indian Therapies”. The said concern is engaged in the manufacture and sale of Ayurvedic Products. The petitioners published an advertisement in the Mathrubhumi Daily dated 23.01.2012 highlighting the medicinal benefits of “Madhuramrutham” a drug manufactured by them. The advertisement proclaims, among other things, that any person could control diabetes and mitigate its ill effects by consuming 2 gms of “Kanmadarasayanam”. They also highlight the medicinal benefits of “Kanmadarasayanam” and goes on to state that 15 ml of “Madhuramrutham” manufactured by the petitioners contain 2 gms of “Kanmadarasayanam”. A picture of a bottle containing the drug manufactured by the petitioners is also published and they urge that any person can mitigate diabetes, if he chooses to consume the drug.

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The aforesaid advertisement came to the notice of the de facto complainant, who has been appointed under Section 21 of the Drugs and Cosmetics Act, 1940, to exercise powers under the Drugs and Magic Remedies (Objectionable

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Advertisement) Act, 1954. Alleging that the advertisement was clearly calculated to lead to the use of the drug “Madhuramrutham” to cure diabetes, a scheduled disease, a complaint was lodged before the learned Magistrate alleging violation of Section 3 (d) of the Act.

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The proceedings before the learned Magistrate are sought to be quashed by this petition filed under Section 482 of the Code of Criminal Procedure.

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Sri N.M.Madhu, the learned counsel appearing for the petitioners, vehemently contended that the offence under Section 3 of the Act will not be made out against the petitioners. According to the learned counsel, “Kanmadam”, which is otherwise known as Silajit, is a wonder medicine. He would place much reliance on authoritative ayurvedic text books such as “Ashtangahridaya” and “Indian Materia Medica” to substantiate his contention. He would contend that the advertisement brought out by the petitioners does not say that their product would give any magical results. All that was advertised was that 'Kanmadam', which is a major ingredient of 'Madhuramrutham' , the drug manufactured by the petitioners, is beneficial for persons with diabetes to control their disease

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and nothing more. He would also contend that the complaint is barred by limitation.

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The learned Senior Public Prosecutor, on the other hand, would forcefully refute the submissions. She would refer to the advertisement and it is pointed out that the petitioners, while highlighting the medicinal benefits of the drug manufactured by them, had claimed that Kanmadam can cure blood sugar, provide energy, relax rigid joints, protect kidney, strengthen weak internal organs, rejuvenate sexuality, relieve pain et cetera. The above advertisement was published calculatedly to lead to the use of the drug by gullible persons and to indulge in self medication.

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I have considered the submissions advanced and

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have gone through the complaint filed by the de facto complainant and also the advertisement brought out by the petitioners.

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Act 21 of 1954 was enacted to control the advertisement of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities, and to provide for matters connected therewith. The title of the Act also shows that it is directed

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against objectionable advertisements. Section 2(a) defines “advertisement‟ and it includes any notice, circular, label,

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wrapper or other document, and any announcement made orally or by any means of producing or transmitting light, sound or smoke;

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Section 2 (b) defines drug and it reads as follows:

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“Section 2 (b) “drug‟ includes -

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“(I) a medicine for the internal or external use of human beings or animals;

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(ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or animals;

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(iii) any article, other than food, intended to affect or influence in any way the structure or any organic function of the body of human beings or animals;

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(iv) any article intended for use as a component of any medicine, substance or article, referred to in subclauses (i), (ii) and (iii); “

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Section 2 (c) defines “magic remedy” and it includes a talisman, mantra, kavacha, and any other charm of any kind

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which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any

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disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of

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the body of human beings or animals.

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Section 3 deals with Prohibition of advertisement of

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certain drugs for treatment of certain diseases and disorders. It reads as follows:

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“—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—

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(a) the procurement of miscarriage in women or prevention of conception in women; or

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(b) the maintenance or improvement of the capacity of human beings for sexual pleasure; or

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[(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:

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Provided that no such rule shall be made except—

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(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

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(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

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Crl.MC.No. 880 of 2015

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expedience in respect of Ayurvedic and Unani systems of medicines as that Government deems fit;

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Item No. 9 in the Schedule attached to the act is Diabetes.”

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Unquestionably, the intention is that there should be no advertisements for drugs for certain diseases so that the general public may not be misled into using them for ailments, which they are suffering from, or, which they may imagine they are suffering from, and, which they might believe to be curable by consuming the drug manufactured by the petitioners.

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In the case on hand, there are credible materials, which show that the petitioners had published advertisement in the newspaper suggesting that the drug manufactured by the them, if consumed, would mitigate diabetes, a disease mentioned in the schedule. They have highlighted the medicinal effects of “Kanmadam' and gives a clear indication that it is a wonder drug and a one stop cure for several ailments and diseases. In the very same advertisement, they narrate that consuming 2 gms of “Kanmadarasayanam” will be enough to mitigate the ill effects of diabetes. They go on to state that 15 ml of “Madhuramrutham”, contains 2 gms of “Kanmadam”.

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Having considered the intent and purport of the advertisement, the contention of the petitioners that they were merely advertising the benefits of “Kanmdam” is difficult to accept at this stage.

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It is by now trite that the inherent jurisdiction under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution only when such exercise is justified by the tests specifically laid in the Section itself.

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The Apex Court, in Amit Kapoor v. Ramesh Chander and Another [(2013) 1 SCC (Cri) 986], had occasion to lay down down certain principles in respect of exercise of jurisdiction under Section 482 of the Cr.P.C. One of the principles is that the Court should apply the test as to whether the un-controverted allegations, as made from the record of the case and the documents submitted therewith, prima facie establish the offence or not. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised

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ex debito justitiae , i.e., to do real and substantial justice for administration of which alone, the courts exists.

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Having gone through the materials, prima facie , I am of the view that the petitioners have not made out a case for quashing the proceedings. It is made clear that any opinion expressed above shall not be treated as an expression on merits of the case.

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This petition will stand dismissed.

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SD/-

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RAJA VIJAYARAGHAVAN V., JUDGE

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DSV/14.06.19

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Crl.MC.No. 880 of 2015

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