STATE Vs. AIMIL PHARMACEUTICALS INDIA PVT LTD

JUDGEMENT

(1.) A complaint was received from one Dr. Rajiv Kumar against the respondent namely, AIMIL Pharmaceuticals (India) Pvt. Ltd. It was alleged therein that the big hoardings were displayed on various parts of Delhi showing a man and woman sitting on opposite side of a bed in a sad mood with a thought that "kash Maine bhi 'ashree Forte' liya hota". Alongwith this fee advertisement further states "ek Vishwashiya Swasth Vardhak Evam Shakti Dayak Ayurvedi, Aushadhi". As per his understanding the advertisement mounted in a manner gives an impression to the on-looker that the Ashree Forte is an aphrodisiac drug meant to induce sexual desire/ restore or improve one's sexual performance. As the drug has no such effects, the advertisement being misleading and false needs to be enquired into. On receipt of a complaint, the Commission directed the Director General of Investigation and Registration (the DG for short), to conduct a preliminary investigation. The DG submitted the report dated 11th November, 1991 stating that the claim in regard to usefulness of the drug for improving/retaining sexual vitality is" not based on any scientific test/study conducted by any Competent Authority. As the report was not complete in all respects for issuance of Notice of Enquiry, the DG was again directed to submit a supplementary report complete in all respects. Another report (supplementary report) as submitted on 18th January, 1993 with the same Conclusion that the advertisements/hoardings mounted by and on behalf of the respondent were misleading and false and as such the case was fit for issuance of Notice of Enquiry. Thereafter NOE dated 12th August, 1993 was issued under Sections 36 A, 36b (d) and 36d of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act ).

(2.) The respondent filed a reply thereto and stated that it is a company which is engaged in manufacture of Ayurvedic medicines. It is manufacturing wide range of Ayurvedic pharmaceuticals products in the range of proprietary, classic and OTC as per the formula indicated in the ancient text of Ayurveda its manufacturing unit is at Naraina Industrial Area, Phase-I, New Delhi which is equipped with latest machinery in the pharmaceutical culture. It prepares the medicines in most scientific manner and with utmost precision under meticulous inspection. It also exports medicines abroad. One of the drugs manufactured is' Ashree Forte' capsules, which was introduced in the market in the month of April, 1990. The capsule in issue is a composition of various herbs, which are available in nature and are procured from natural source. This improves digestents metabolism, restores as well improves the physiological functions of the body. One of the components i. e. , 'bajikaran' aims to improve the sperm count and morphology which acts as an aphrodisiac and restores health and energism from the day long activities. This product is approved by the Drug Licence No. DL194 (Aandu) by the Drug Controller, Delhi Administration, Delhi. It is composed of 22 items having different uses and benefits as mentioned in the various text books. The respondent never gave any advertisement/hoarding giving an impression that "ashree Forte" is an aphrodisiac drug which restores/improves sexual performance. In fact in any of its advertisements as given, the word sex never appears. The complaint filed that the hoarding mounted on behalf of the respondent was withdrawn after a period of time is not correct, as no material is there to support this contention raised in the complaint. Accordingly all the charges levelled are denied. On completion of the proceedings, the following issues were framed : (1) Whether the respondents have been or are indulging in unfair trade practices as indicated in the Notice of Enquiry (2) If the answer to the foregoing issue is in the affirmative, whether the unfair trade practices are prejudicial to public interest or to the interest of the consumer or consumers generally

(3.) The evidence was led both by way of affidavits as well by examination of the witnesses on both sides. Dr. Rajiv Kumar deposed on behalf of the DG, Shri Anil Kumar Sharma and Shri B. N. Sinha were examined on behalf of the respondent. Reply to the interrogatories/further better particulars as raised on behalf of the DG were also answered by the respondent. The respondent also furnished copies of literature of various drugs as well some research reports on the subject.