K S SAINI Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution the petitioners have asked for the quashing of prosecution pending against them before an Additional Judicial Magistrate 1st Class, Delhi, under Section 7 read with Section 3 (b) and (d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954. The prosecution against the petitioners is for violation of Section 3 (b) and (d) of the said Act by alleged publication of two pamphlets, Annexures Rule 1 and Rule 2 in Hindi and Urdu. According to the respondents those pamphlets suggest or are calculated to lead to the use of the drugs mentioned therein for the maintenance or improvement of the capacity of human beings for sexual pleasure and for the cure, mitigation or treatment of certain diseases, disorders or conditions specified in the Schedule to the said Act. Section 3 of the said Act before amendment by Act No. 42 of 1963 read as under:-

(2.) THE petitioners allege that the words "or any other disease or condition which may be specified in rules made under this Act" in clause (d) of Section 3 of the unamended Act were struck down by the Supreme Court in Hamdard Dawakhana (Wakf) Lal Kuan, Delhi v. Union of India, (1960) 2 SCR 671: (AIR 1960 SC 554), and on the parity of reasoning the later part of the amended Section 3 (4 namely "or any other disease, disorder. . . . . specified in the roles made under this Act" is also unconstitutional and in spite of the amendment the Legislature has failed to achieve a valid law. That question really does not arise before us because admittedly no rules have been framed and consequently no disease, disorder or condition has been specified by rules in exercise of power under the alleged unconstitutional part of clause (d) of Section 3 of the Act as amended. The sole question therefore, is whether the pamphlets constitute an offence under Section 3 (b) or the first part of Section 3 (d) of the Act. Consequently, what we have to consider is whether the petitioners have been guilty of taking any part in the publication of any advertisement referring to any drug in terms which suggests or is calculated to lead to the use of that drug for the maintenance or improvement of the capacity of human beings for sexual pleasure or for the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule. That takes us straight to the pamphlets. It is not disputed by Mr. Shanker that the pamphlets in Hindi and Urdu are substantially the same, except to the extent with which I shall deal a little later. According to Mr. Shanker, there are some additional words in the Urdu pamphlet at page 7 where the medicine "sainimine 'f'" is advertised. I will, therefore, take the Urdu pamphlet into consideration because if that does not offend any of the two provisions of the said Act, the Hindi Pamphlet can certainly not.

(3.) BEFORE I deal with the pamphlets I would like to dispose of an objection on behalf of the respondents that since prosecution is pending we should not interfere at this stage and leave the parties to have recourse to the regular procedure prescribed by law. I am not inclined to accept this contention for, as laid down by the Supreme Court in R. P. Kapur v. State of Punjab, AIR 1960 SC 866, if the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged, it may be a fit case for quashing the proceedings. If, therefore, the pamphlets do not offend either Section 3 (b) or Section 3 (d), which are the only provisions alleged to have been violated, then it would, in my opinion, be a proper case for quashing the proceedings.