YASH PAL SAHI Vs. DELHI ADMINISTRATION

JUDGEMENT

(1.) The appellant, Dr. Yash Pal Sahi, and his wife Dr. Susheela Sahi are the proprietors of a homeopahtic hospital at Jangpura in New Delhi. They also run a journal called the "Homeopathic Doctor". It appears that on May 15, 1958 Misri Singh wrote to the appellant that the medicines manufactured by him were proving effective, and he therefore requested the appellant to sent him his magazine "Homeopathic Doctor" from January 15, 1958 up to the date of the letter. In the letter, Misri Singh also requested the doctor to send him a list of medicines that might have been printed by him and he promised to pay the requisite prices, and suggested that the same should be sent by V. P. P. Thereupon a packet containing Exhibits P-1 to P-6 which are copies of the "Homeopathic Doctor" and Ex. P-7, which is a list of medicines was sent to Misri Singh on May 24, 1958. Misri Singh had written to the appellant under the instructions of Mr. Seth, who is an officer in the Delhi Administration. That is why when the packet was received by Misri Singh it was opened by him in the presence of Mr. Seth and other witnesses and the packet was found to contain Exs. P-1 to P-7. The prosecution alleged that by sending this packet to Misri Singh both the appellant and his wife had committed an offence under S. 3 read with S. 7 of the Drugs and Magic Remedies (Objectionable Advertisements) Act of 1954. Later, the compliant against Dr. Susheela Sahi was withdrawn and the case proceeded only against the appellant.

(2.) At the trial, evidence was given by Mr. Seth, Misri Singh and Dr. Anant Parkash, with whom Misri Singh works as a clerk. The appellant was questioned by the learned Magistrate, who tired the case, and he admitted that Exs. P-1 to P-7 had been sent to Misri Singh. On these facts, the learned Magistrate held that the appellant was guilty of the offence charged and sentenced him to pay a fine of Rs. 1000/-. The appellant challenged the correctness of this order by an appeal before the Additional Sessions Judge at New Delhi. The learned Additional Sessions Judge considered the evidence and confirmed the findings recorded by the trial Magistrate. In the result, the order of conviction passed against the appellant was affirmed, but in regard to the sentence, the learned Additional Sessions Judge took the view that a fine of Rs. 500/- would meet the ends of Justice. The findings made by the appellate Court show that the parcel containing Exs. P-1 to P-7 had been sent by the appellant to Misri Singh, Exhibits P-1 to P-6 which are the numbers of the publication "Homeopathic Doctor" did not come within the mischief of the Act, but Ex. P-7 which is 'Fehristi Mujarabat' did come within the mischief of the Act. It is a list of medicines, and it purports to advertise the said medicines by describing their effect, and prices of the medicines are also printed. Inasmuch as it was found by the learned Additional Sessions Judge that the appellant had sent Ex. P-7 to Misri Singh, his conviction was held to be justified under S. 3 read with S. 7 of the Act. The appellant then took this matter before the High Court by a revisional application. It was urged before the High Court on his behalf that in deciding the question as to whether the appellant was guilty under S. 3 read with S. 7 the effect of the provisions contained in S. 14(1)(c) had not been properly appreciated. The High Court was not impressed by this argument. Accordingly, the revisional application filed by the appellant was dismissed. It is against this order that the appellant has come to this Court by special leave.

(3.) On his behalf, Mr. Goyal has contended that the conviction of the appellant is not justified, because the case of the appellant falls under S. 14(1)(c) of the Act. In deciding the merits of this argument it is necessary to refer to the relevant provisions of the Act. This Act has been passed to control the advertisement of drugs in certain cases, to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. Section 2 contains the definitions. Section 2(d) defines 'taking any part in the publication of any advertisement' as including (i) the printing of the advertisement, (ii) the publication of any advertisement outside the territories to which this Act extends by or at the instance of a person residing within the said territories. It would be noticed that the definition of the expression 'taking any part in the publication of any advertisement' is an inclusive definition, and the two clauses bring out clearly the main postulate of the definition that if the prohibited article is sent, it would amount to publication within the meaning of the Act. The printing of the prohibited article or advertisement is included in publication. But publication does not mean printing alone, publication means sending out the said advertisement outside India under cl. (ii), and so, if sending out the advertisement outside India is brought within the purview of the inclusive definition, it is difficult to resist the conclusion that sending out the same advertisement within the territories of India to which the Act applies would amount to publication. Therefore it seems to us that the definition prescribed by S. 2(d) is wide enough to take in the printing of the advertisement and the sending of it in any part of India.