A S P KURUP Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner in the Original Petition is a practising Advocate, and the Treasurer of the All Kerala Consumers' Resistance Movement. In this Original Petition he challenges the publication of advertisement similar to one in Ext. P2. Ext. P2 is a postal card in which the following is printed:

(2.) On behalf of the respondents a detailed counter affidavit dated 14th December, 1981, is filed. It is averred in the counter affidavit that Malaria was taking a large toll of life and in order to tackle the situation the National Malaria Control Programme was taken up in 1953. As part of the programme, the Government of India wanted to educate the people and provide easy and cheap cure for the disease. As a result of the experiments, it was established that "Choloroquin'' with a clinical dose of 4 tablets is an adequate treatment for the clinical cure of Malaria if taken sufficiently early. So in national interest and in order to control and cure Malaria, Government took a decision to give publicity to the use of this drug. Large advertisements containing full details of the drug and its manner of administration are being issued through several media. The advertisement released by the short slogan printed on post cards and Inlands is only a part of the publicity programme. It is intended only to alert the public against the possibility of a fever being Malarial and at popularising the drug. The advertisement does not show that Choloroquin should be taken for all types of fever. On the other hand, the advertisement itself indicates that Choloroquin is recommended in case of Malaria fever alone. It is contended in the counter affidavit that the points raised in the original petition are not matters which could be investigated or adjudicated in proceedings under Art.226 of the Constitution. At any rate it is contended that S.14 clause (d) of Drugs and Magic Remedies (Objectional Advertisement) Act 1954 (Act 21 of 1954) makes it clear that an advertisement published by the Government is exempt from all provisions of the Act.

(3.) Mr. Mathew Zachariah, counsel for the petitioner argued only one aspect arising in this case. According to counsel, S.4(c) of the Act, Drugs and Magic Remedies (Objectional Advertisement) Act (Act 21 of 1954) prohibits false or misleading advertisements relating to drugs Counsel contends that the advertisement appearing in Ext. P2 is misleading in material particular and so there is a clear violation of S.4(c) of the Act (Act 21 of 1954). In this view the plea is that the petitioner is entitled to the remedies sought for in the Original Petition. Counsel further contends that according to S.2(b)(ii), drug includes any substance and according to S.2(b)(iii) drug includes any article which means even machines of science, etc., advertised in Newspaper since they are articles within the meaning of S.2(b)(iii) and therefore drug for the purpose of the Act. Reliance is placed on the decision reported in Zaffar Mohammed v. The State of West Bengal (1976 SC 171).