Lundbeck India Private Limited vs State of Karnataka

The present petition has been filed by accused Nos.1 to 3, challenging the issuance of process as against the petitioners-accused and praying this

Court to set aside/quash the order dated 30.11.2011 in PCR.No.24/2011 (CC.No.1006/2011) passed by the Metropolitan Magistrate, Traffic Court-I,

Mayo Hall Unit, Bangalore.

It is the case of the petitioners that petitioner No.1 M/s.Lundbeck India Private Limited, is a Company registered under the Companies Act. It is

dealing with multinational pharmaceutical aspects and petitioner Nos.2 and 3 are the Managing Director and General manager, Legal & Company

Secretary. The said Company manufactures drugs including “Deanxit†which is a combination of Melitracen-10 mg and Flupenthixol 0.5 mg. It

has also a license for manufacture and marketing of the said product. One Dr.Chandra M.Gulhati, Author,

Publisher, Editor and Printer of Monthly Index of Medical Specialities (MIMS) published a defamatory article which reads as under:-

“Deanxit: Dubious, Unlawful Approval

The fixed-dose combination of flupenthixol and melitracen, sold under the brand name of Deanxit by Lundbeck, is not permitted for use in Denmark,

its country of origin but is exported to developing countries.

• Deanxit is not approved by drug control authorities of advanced countries such as United Kingdom, Canada, Australia, Japan, etc. Interestingly,

both flupenthixol and melitracen are not allowed for use by the U.S. Food and Drug Administration (USFDA) even as individual medicines.

• Melitracen does not appear in any standard, authoritative text book of pharmacology such as Goodman and Gilman or Avaido. It is not listed in

any Pharmacopoeia.

• Even though melitracen, one of the two ingredients is not approved, the Drugs Controller General, India (DCGI), cleared the combination without

mandatory clinical trials on patients in India.

• It is being aggressively promoted for a wide range of known and unknown disorders such as psychogenic depression, depressive neuroses,

masked depression, psychosomatic affections, menopausal depression, dysphoria in alcoholics and drug addicts etc. without mandatory clearance from

DCGI.â€​

The aforesaid publication deteriorated the reputation of the petitioner-Company and also affected the medical community as a whole as well as the

general public. The publication of Dr.Gulhati did not relate in generic terms to a combination drug as stated above. It related in specific terms to

Deanxit, the trade name under which Lundbeck markets its product containing Melitracen 10 mg and Flupenthixol 0.5 mg. The said article targeted the

petitioner-Company and as such the Company was constrained to issue a legal notice to MIMS calling upon to refrain from disparaging the reputation

and credentials of the petitioner-Company. Despite receipt of such notice, MIMS continued to publish the defamatory article vide its various editions

and as such petitioner-Company initiated criminal proceedings in PCR.No.3748/2011 before the Metropolitan Magistrate Bangalore. The aforesaid

publication not only led to causing disrepute and disesteem to the petitioner-Company, but also triggered off a series of republications by multiple other

parties and the said publications affected the business of the petitioner-Company, as such the petitioners proceeded to make clarificatory

announcement in ‘Times of India’, Delhi Edition, dated 24.2.2011, ‘The New Indian Express’ dated 25.2.2011,

‘Bangalore Mirror’, dated 24.2.2011 so also approached this Court in WP.No.7570/2011. This Court by an order dated 3.3.2011 disposed of the

said writ petition directing the DCGI to provide an opportunity of being heard to the petitioner-Company before initiating any action for preventing and

supplying Deanxit. On 11.3.2011, the Director General of Health Services issued a notice to the first petitioner-Company to explain its position with

regard to the impugned publication made pertaining to Deanxit to which the petitioner-Company gave a detailed reply on 28.3.2011 and another reply

on 29.3.2011 explaining its position vis-a-vis the publication made in “Times of India†and “The Hindu†newspapers. In the said publication it

is mentioned and explained that the said publication is not intended to and does not in any manner suggest and is not calculated to lead to usage of the

drug Deanxit and in the said publication it was also clarified that the intention of publication was to bring to the notice of the medical professionals in

the country about the factual aspects relating to the legitimate process followed by the first petitioner-Company at the time of getting the approval of

Deanxit. Subsequently on 12.7.2011 a show-cause notice was issued by the Drug Control Department, Government of Karnataka seeking its

clarification with regard to the impugned publication to which petitioner-Company issued a detailed response on 20.7.2011, wherein it has been

explained in detail and the reasons for the said publication. Despite the said response to the show-cause notice dated 11.3.2011 and 12.7.2011, the

respondent initiated a private complaint and subsequently it was registered in CC.No.1006/2011 and the learned Magistrate exempted the recording of

sworn statement as the complainant is a public servant and without considering whether there existed a prima facie case, proceeded to issue summons

to the petitioners. Aggrieved by such order and challenging its legality and correctness, the petitioners are before this Court.

I have heard Sri Sajan Poovayya, learned Senior Counsel for the petitioners and Sri I.S.Pramod Chandra, learned SPP-II for the respondent-State.

The learned Senior Counsel by drawing my attention to the publication made by Dr.Gulhati in MIMS, submitted that the said information published is

misguiding not only the general public, but even the doctors who are practicing and as such the reply has been given in this behalf by publication as per

Annexure-H under the heading “Important Announcement on Deanxit an original research product of H Lundbeck, Denmark†wherein it is

specifically mentioned that it is issued for the information of medical profession. He further submitted that after publication of the said item in Times of

India dated 24.2.2011, the Director General of Health Services issued notice on 11.3.2011 asking to explain the position in the matter in the light of the

provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (‘Act’ for short) to which the petitioner-Company has

given the reply on 28.3.2011 and 29.3.2011. Subsequently on 12.7.2011, Drug Control Department, Government of Karnataka has issued notice to the

petitioners on 12.7.2011 to which the petitioners have given reply on 20.7.2011 and the Director General of Health Services has not initiated any

proceedings till date which itself indicates that there is no violation of any of the provisions of the Act and it is deemed acceptance of the reply given

by the petitioners. Even though such being the case, on the same grounds, even by reiterating what has been stated in the notice with little

modification, the Drugs Control Department, through Drug Inspector, State Intelligence Branch, Bangalore has issued similar notice and even the reply

was also given to the said notice dated 20.7.2011 similar to one which has already been given to the Director General of Health Services. In spite of

that, the said Department has filed a private complaint against the petitioners and the learned Magistrate without application of mind has issued

summons to the petitioners. He further submitted that the learned Magistrate has to apply his mind to a complaint at the initial stage itself and to see

whether a case has been made out against the accused persons before issuing the process on the basis of the complaint. He further submitted that the

complaint must contain all the ingredients to enable the learned Magistrate to make up his mind for issuance of process and he has to ascertain

whether the allegations constitute an offence or not and the complaint is liable to be dismissed or not. In order to substantiate his contention, the

learned Senior Counsel has relied upon the decision in the case of SMS Pharmaceuticals Limited Vs. Neeta Bhalla, reported in (2005) 8 SCC 89. He

further submitted that the application of mind by the learned Magistrate should be reflected in the order. The mere statement that he has gone through

the complaint, documents and heard the complainant will not be sufficient. The detailed discussion and expression of his view is neither required nor

warranted, it must reflect in the order. In order to substantiate the said contention, he relied upon the decision in the case of Anil Kumar Vs.

M.K.Aiyappa, reported in (2013)10 SCC 705. He further submitted that at the time of taking cognizance, the learned Magistrate has to ascertain the

true character of legislation and he has to go through the whole enactment, objects, purpose, true intention, scope and effects of its provisions and

thereafter to take action. He further submitted that the object of the Act was merely to put a curb on advertisements which offend against the

decency or morality and prevent self-medication or treatment by prohibiting instruments which can be used to advocate the same or which tend to

spread the evil. In order to substantiate his argument and how the Legislation has to be interpreted, he relied upon the decision in the case of Hamdard

Dawakhana Vs. Union of India, reported in AIR 1960 SC 554.

It is his further submission that all the advertisements are not offences and not lead to the violation of the object and purpose of law. The

advertisement which is the moot issue in this case is not an advertisement to encourage the self-medication or treatment by violating any of the

provisions of the Act. He further submitted that prima facie the said advertisement is only for the purpose of clarification and as such it is not going to

violate Section 3(d) of the Act and the Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955 (‘Rules’ for short). On these

grounds, he prays to allow the petition by quashing the proceedings as against the petitioners.

Per contra, the learned SPP-II vehemently argued that the accused are responsible for the advertisement and it is in violation of Section 3(d) of the

Act. By drawing my attention, he submitted that the said advertisement nowhere reflects that it is in response to the publication made by Dr.Gulhati in

MIMS. It is just like any other general advertisement. He further submitted that when once it is considered to be an advertisement, it attracts the penal

provision and even Rule 5 of the Rules clearly says that how the advertisement may be made and if that has not been followed, then under such

circumstances, it is the violation of the provisions of Section 3 of the Act and in that light, the learned Magistrate has rightly appreciated the things and

has taken cognizance and issued the summons as against the petitioners. He further submitted that if at all there is any lacuna, the petitioners are

having every right to file an appropriate application before the concerned Court for discharge. He further submitted that the petitioners have not made

out any good grounds to quash the proceedings. On these grounds, he prays to dismiss the petition.

It is the first contention of the learned Senior Counsel that as per the Act, all advertisements are not offences and they will not lead to penal action.

With this background, if the provisions of the Act are perused and ascertained the predominant purpose, true intent, scope and the object of the Act,

the preamble shows that the object of the Act is to control the advertisement of drugs in certain cases, i.e., diseases and to prohibit the advertisements

relating to remedies pretending to have magic qualities and provide for other matters connected therewith and to prevent self-medication or treatment

or by prohibiting instruments which may be used to advocate the same or to which tend to spread the evil. This proposition of law has also been

interpreted by the Constitutional Bench of Hon’ble Apex Court in the case of Hamdard Dawakhana Vs. Union of India (quoted supra). At

paragraphs-13, 14, 15 and 23, it has been observed by the Hon’ble Apex Court as under:-

(13) With this background in view we proceed to examine the provisions of the Act and ascertain the predominant purpose, true intent, scope and the

object of the Act. The preamble shows that the object of the Act was to control the advertisement of drugs in certain cases, i.e., diseases and to

prohibit advertisements relating to remedies pretending to have magic qualities and provide for other matters connected therewith. The title of the Act

also shows that it is directed against objectionable advertisements. The definition section (s. 2) in cl. (a) defines advertisements and in cl.(b) drugs

which include (i) medicines for use of human beings and animals, (ii) substances for use of diagnosis, treatment or prevention of diseases in human

beings and animals, (iii) articles other than food which- affect the organic functions of the body of human beings or animals and (iv) articles intended

for use as a component of any medicine etc., Cl. (c) defines magic remedies to include a talisman, mantra, kavacha and other charms and (d) relates

to the publication of any advertisement and (e) what a venereal disease is. Section 3 prohibits advertisement of drugs for treatment of diseases and

disorders. Clause (a) of S. 3 deals with procurement of miscarriage in women for prevention of conception; cl. (b) with maintenance or improvement

of capacity of human beings for sexual pleasure; cl. (c) with diagnosis and cure of venereal and other diseases. Section 4 prohibits misleading

advertisements relating to drugs. Section 5 similarly prohibits advertisements of magic remedies efficacious for purposes specified in s. 3. Section 6

prohibits the import into and export from India of certain advertisement. Section 14 is a saving clause which excludes registered practitioners, treatises

or books, advertisements sent confidentially to medical practitioners, wholesale or retail chemists for distribution among registered medical

practitioners or to hospitals or laboratories. It also excludes advertisements printed or published by Government or with the previous sanction of the

Government. Section 15 gives the Government the power to grant exemptions from the application of ss. 3, 4, 5 and 6 in certain cases.

(14) As already stated when an enactment is impugned on the ground that it is ultra vires and unconstitutional what has to be ascertained is the true

character of the legislation and for that purpose regard must be had to the enactment as a whole, to its objects, purpose and true intention and to the

scope and effect of its provisions or what they are directed against and what they aim at 1957 S.C.R. 399: ((S) AIR 1957 SC 297). Thus examined it

cannot be said that the object of the Act was merely to put a curb on advertisements which offend against decency or morality but the object truly and

properly understood 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. No doubt in S.3 diseases are expressly mentioned which have relation to sex and disorders peculiar to women but taken as a whole it

cannot be said that the object of the Act was to deal only with matters which relate to indecency or immorality. The name and the preamble are

indicative of the purpose being the control of all advertisements relating to drugs and the use of the word animals in cl. (b) of the definition section

negatives the object being merely to curb the emphasis on sex and indecency. Section 4 further suggests that the legislature was trying to stop

misleading advertisements relating to drugs. Section 5 also tends to support the object being prohibition of advertisements suggesting remedies for all

kinds of diseases. Section 6 also points in the same direction, i.e., to stop advertisements as to drugs. Sections 14 and 15 are a clearer indication that

there should be no advertisements for drugs for certain diseases in order that the general public may not be misled into using them for ailments which

they may imagine they are suffering from and which they might believe to be curable thereby. That this is so is shown by the fact that such

advertisements can be sent to medical practitioners, hospitals and laboratories. The exclusion of Government advertisements and the power to give

exemption all point to the objective being the stopping of advertisements of drugs for the object above-mentioned and not merely to stop

advertisements offending against morality and decency.

(15) Mr. Munshi's argument was that s. 3 was the key to the Act and that the object and direct effect of the Act was to stop advertisements and

thereby impair the right of free speech by directly putting a prohibition on advertisement. If the contention of Mr. Munshi were accepted then the

restriction to be valid must fall within cl. (2) of Art. 19 of the Constitution. In other words it must have relationship with decency or morality because

the other restrictions of that clause have no application. If on the other hand the submission of the learned Solicitor-General is accepted then the

matter would fall under sub-cls. (f) and (g) and the restriction under Art. 19(6). The object of the Act as shown by the scheme of the Act and as

stated in the affidavit of Mr. Merchant is the prevention of self-medication and self-treatment and a curb on such advertisements is a means to

achieve that end. Objection was taken that the preamble in the Act does not indicate the object to be the prevention of treatment of diseases

otherwise than by qualified medical practitioners as the English Venereal Diseases Act 1917 does. In this Court in many cases affidavits were allowed

to be given to show the reasons for the enactment of a law, the circumstances in which it was conceived and the evils it was to cure. This was done

in the case of 1959 SCR 279: (AIR 1958 SC 538). Similarly, in Kathi Raning v. State of Saurashtra 1952 SCR 435: (AIR 1952 SC 123) and in

Kavalappara Kottarathil Kochunni v. The State of Madras, AIR 1959 SC 725, affidavits were allowed to be filed setting out in detail the

circumstances which led to the passing of the respective enactments.

(23) 'Advertisement' in the Act, it was argued, included not only advertisements in newspapers and periodicals and other forms of publication but also

on cartons, bottlesand instructions inside a carton. Without this latter kind of advertisement, it was submitted, the user would be unable to know what

the medicine was, what it was to be used for and how ? If the purpose of

the Act is to prevent objectionable and unethical advertisements in order to discourage self-medication and self-treatment it cannot be said that the

definition is too wide keeping in view the object and the purpose of the Act which have been set out above. It is these evils which the Act seeks to

cure and if the definition of the word ‘advertisment’ was not so broad and inclusive it would defeat the very purpose for which the Act was

brought into existence.

On close reading of the aforesaid dictum, it is very clear that self-medication through advertisement has to be discouraged. In that light, the said Act

has to be interpreted in this behalf. With that background, let me consider whether the publication made by Dr.Gulhati impeached the main object of

M/s.Lundbeck India Private Limited and the subsequent advertisement in the newspapers, i.e., “Times of India†and “The Hindu†is only an

announcement or reply to the publication made in MIMS.

The reply given by petitioners to the said publication reads as under:

“Important Announcement on

DEANXIT

An original research product of H Lundbeck, Denmark Deanxit has been approved by Drug Controller General of India after mandatory clinical trials.

The regulatory Phase III trail were conducted at Lady Hardinge Hospital, New Delhi and at Institute of Psychiatry and Human Behaviour, Goa.

Further Deanxit has also been subjected to extensive post- marketing surveillance study on large Indian population in India for safety and tolerability.

Deanxit a safe anxiolytic antidepressant, is approved and marketed in over 20 countries, including Switzerland, Austria, Spain, and Singapore among

others.

Deanxit is approved by Danish Medicines Agency for manufacture in Denmark and for export.

Deanxit has over 40 years of international repute and has been prescribed to nearly 100 million patients world wide.

Deanxit has not been banned in any country or has been asked to be withdrawn by any Authority of any country.

Lundbeck complies with pharmacovigilance obligations globally and there has been no known serious adverse effect on Deanxit reported in India or

elsewhere.â€​

As per the publication, Mr.Gulhati has published an article with reference to Deanxit under the heading “Red Alert and Unlawful Approvalâ€

with reference to various aspects as extracted above. If the said advertisement is closely read, definitely it impeaches the reputation of Deanxit. He

has specifically mentioned that the said drug is prohibited in the country of origin for its distribution. In that light, if the announcement which has been

made in two newspapers stated supra is perused, in the heading itself it shows that it is an important announcement on Deanxit an original research

product of H Landbeck, Denmark and therein they have clarified about the medicine Deanxit and its approval and other things. Even it has been

specifically indicated that the said announcement has been made for the purpose of information of medical profession by Lundbeck India Private

Limited. In that backdrop, if the intention of the Legislation is seen, no such magic remedial measures have been suggested as alleged in the notice

issued by the complainant. At the time of considering the said announcement, it has to be read as a whole and under what background the said

announcement has been made. Admittedly, the publication of Dr.Gulhati was made earlier to the announcement made on Deanxit by petitioner No.1-

Company which was got published on 24.2.2011. Even on close reading of the publication in MIMS as well as the publication of Lundbeck, it clearly

goes to show that it is in reply to the publication which has been made by Dr.Gulhati in respect of Deanxit. Though during the course of arguments,

learned SPP-II made the submission that the announcement does not reflect that it is in response to the publication made by Dr.Gulhati, at the time of

interpreting the documents, it is the duty of the Court to conjointly read both the documents and thereafter the interpretation of the documents has to

be made and they should be read along with subsequent exchange of notices to that effect. In that light, the announcement made in two newspapers is

nothing but it is only in order to make a clarification to the publication made by Dr.Gulhati and not otherwise.

In order to attract the provisions of the Act as per the decision in the case of Hamdard Dawakhana Vs. Union of India quoted supra, it is for the

purpose to put curb on advertisements which offend against decency or morality and prevent self-medication or treatment in this behalf. First of all the

advertisement which is said to have been made must be in violation of Section 3 of the Act as the title of the Act itself indicates that it is in order to

avoid the magic remedies through which the self-medication or treatment is taken away from the public.

For the purpose of brevity, I quote Section 3 of the Act and Rule 5 of the Rules, which read as under:-

“Section 3. Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders â€" 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 improvement 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.

“Rule 5. Manner in which advertisements may be sent confidentially â€" All documents containing advertisements relating to drugs referred to in

clause (c) of sub-section (1) of section 14, shall be sent by post to a registered medical practitioner by name or to a wholesale or retail chemist, the

address of such registered medical practitioner or wholesale or retail chemist being given. Such document 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.â€​

In that light, if the entire publication and the reply given by the petitioners are seen together, there is no violation and it appears that there is some

force in the arguments advanced by the learned Senior Counsel for the petitioners.

Even it is the contention of the learned Senior Counsel that the learned Magistrate while taking cognizance, he has not applied his mind to the

allegations in the complaint and has not seen whether the said allegations constitute an offence against a person or a company or not. In order to

substantiate his contention, he has relied upon the decision in the case of SMS Pharmaceuticals Limited Vs. Neeta Bhalla, (quoted supra), wherein at

paragraph-5 it has been observed by the Hon’ble Apex Court as under:-

Section 203 of the Code empowers a Magistrate to dismiss a complaint without even issuing a process. It uses the words ""after considering"" and

the Magistrate is of opinion that there is no sufficient ground for proceeding"". These words suggest that the Magistrate has to apply his mind to a

complaint at the initial stage itself and see whether a case is made out against the accused persons before issuing process to them on the basis of the

complaint. For applying his mind and forming an opinion as to whether there is sufficient ground for proceeding, a complaint must make out a prima

facie case to proceed. This, in other words, means that a complaint must contain material to enable the Magistrate to make up his mind for issuing

process. If this were not the requirement, consequences could be far reaching. If a Magistrate had to issue process in every case, the burden of work

before the Magistrates as well as harassment caused to the respondents to whom process is issued would be tremendous. Even Section 204 of the

Code starts with the words ""if in the opinion of the Magistrate taking cognizance of an offence there is sufficient ground for proceeding"" The words

sufficient ground for proceeding"" again suggest that ground should be made out in the complaint for proceeding against the respondent. It is settled

law that at the time of issuing of the process the Magistrate is required to see only the allegations in the complaint and where allegations in the

complaint or the charge-sheet do not constitute an offence against a person, the complaint is liable to be dismissed.

So also, he has relied upon the decision in the case of Anil Kumar Vs. M.K.Aiyappa (quoted supra), wherein at paragraph-11 the Hon’ble

Apex Court has observed as under:-

The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed case examined the

requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where a jurisdiction is

exercised on a complaint filed in terms of Section 156(3) or Section 200 Cr.P.C., the Magistrate is required to apply his mind, in such a case, the

Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind

by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant,

as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with

the Magistrate to order investigation under Section 156(3) CrPC should be reflected in the order, though a detailed expression of his views is neither

required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for

ordering investigation.

The Hon’ble Apex Court in the aforesaid decisions has held that at the time of issuing process, the Magistrate is required to see only the

allegations in the complaint and if the allegations in the charge sheet do not constitute an offence, the complaint is liable to be dismissed. In that

background, if the order of the trial Court taking cognizance is looked into, it reads as under:

Advocate for complainant present. Complainant is a Government servant. Hence exempted from giving sworn statement. There are sufficient grounds

for proceeding against the accused.

The learned Magistrate has not specifically stated as to what document he has verified and what evidence which has been weighed before passing

such order. Mere statement that he has gone through the complaint, documents and heard the complainant, is not sufficient to take cognizance as held

in the case of Anil Kumar Vs. M.K.Aiyappa (quoted supra). The order should reflect the detailed expression of the Court and the reasons for taking

cognizance. In that light, the order passed by the learned Magistrate taking cognizance is also not sustainable in law and the same is liable to be set

aside.

Even if paragraph-14 of the complaint is perused, it is mentioned that announcement amounts to advertisement suggesting and leads to use of the

drug Deanxit as anxiolytic and antidepressant which are diseases and disorders of the brain listed at Sl.No.10 of the Schedule to the Act, thereby

violates the provisions of the Act. If the said complaint is read along with the object and its title, the Act is intended to control the advertisement of

drugs in certain cases, i.e., diseases and to prohibit advertisements relating to remedies pretending to have magic qualities and provide for other

matters connected therewith. But on close reading of the complaint along with the publication made, no such words are found to show that the said

advertisement contains magic qualities so as to attract the provisions of the Act. It only contains its approval, contents and its wide circulation in

various countries. Nowhere it attracts self-medication and use of such drug. The said complaint does not say as to in what way it leads to

advertisement and violates the purpose stated supra. In that light, it shows that no offence has been made out.

Even it is the submission of the learned Senior Counsel that the first notice came to be issued by the Director General of Health Services to which

the reply was also given on 28.3.2011 and thereafter the said Director General of Health Services has not initiated any proceedings till date. If the said

notice is perused with the notice issued by the State Drug Inspector, it is on similar lines with little modification. Under such circumstances, I am of the

considered opinion that there is a deemed acceptance of the reply given by the accused-petitioners to the first notice issued by the Director General of

Health Services. In that light, the petitioners have made out a case to show that it is only an announcement or reply to the publication issued by

Dr.Gulhati and it is not an advertisement as contemplated under the Act so as to attract the penal provisions. In that light, the petitioners are entitled to

take the said benefit.

Though during the course of arguments, the learned SPP-II by drawing my attention to Rule 5 of the Rules submitted that it specifies the manner

in which advertisement may be sent for publication, the said provision is applicable only to the advertisements made under the Act. But in the case on

hand, it is only a clarification to the publication made in MIMS. In that light, the said provision is not applicable and the contention of the learned SPP-

II is not going to help in any manner.

Keeping in view the aforesaid facts and circumstances of the case, the petition is allowed. The impugned order dated 30.11.2011 in PCR.No.24/2011

(CC.No.1006/2011) passed by the Metropolitan Magistrate, Traffic Court-I, Mayo Hall Unit, Bangalore is set aside.