Allahabad High Court
Struggle Against Pain Thru Its ... vs State Of U.P. And Others on 14 March, 2019
Bench: Sudhir Agarwal, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD (A.F.R.) Reserved on: 19.09.2018 Delivered on: 14.03.2019 Court No. - 34 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 12510 of 2006 Petitioner :- Struggle Against Pain through its President Respondent :- State Of U.P. And Others Counsel for Petitioner :- Ashutosh Mishra Counsel for Respondent :- C.S.C.,C.K. Misra, Neeraj Sharma, Rahul Mishra Hon'ble Sudhir Agarwal,J.
Hon'ble Ajit Kumar,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. This writ petition has been filed as a Public Interest Litigation (hereinafter referred to as "P.I.L.") under Article 226 of Constitution of India by a Society "Struggle Against Pain", registered under the provisions of Societies Registration Act, 1860 (hereinafter referred to as "Act, 1860"), vide certificate of registration dated 26th June, 1999. It has raised grievance of flagrant, blatant, bald and open defiance of statutory provisions of "The Uttar Pradesh Intoxicating Liquor (Objectionable Advertisements) Act, 1976" (hereinafter referred to as "U.P. Act, 1976") on the part of respondents-3 to 9 by issuing various advertisements in Print Media, Electronic Media as also through Sign Boards, Posters etc., displaying their brands, commonly known for brands of liquor.
2. It is said that petitioner is a registered society and amongst its objectives, one is to work against social evils like, intoxication, alcoholism etc. Petitioner organizes awareness camps, cultural programmes and workshops etc. against intoxication and alcoholism. Article 47 of Constitution of India imposes a duty upon State to bring about prohibition of consumption of intoxicating drugs except for medicinal purpose. Under U.P. Excise Act, 1910 (hereinafter referred to as "Act, 1910"), Legislation has also declared fundamental policy of excise administration in the State of U.P. to promote, enforce and carry into effect policy of prohibition of consumption, except for medicinal purposes, of intoxicating drinks and drugs, which are injurious to health.
3. In furtherance of aforesaid object, State Legislature has also enacted U.P. Act, 1976, which came into force on November, 1975. It was enacted with an objective to prohibit advertisements of liquor by cinematographic exhibitions, walls, buildings and hoardings in public places and to provide for matters connected therewith. Section 3 of U.P. Act, 1976 prohibits advertisement of intoxicating liquor by way of any publication which solicits use of, or offers for sale any intoxicating liquor. If there is any advertisement in violation of Section 3, a legal presumption has to be drawn under Section 4 against such person on whose behalf it is published, unless proved otherwise. Contravention of Section 3 is an offence under Section 6 and it provides for conviction and punishment of imprisonment which may extend to 6 months or with fine or with both. Power to investigate about offence has been conferred upon an Excise Officer, not below the rank of Excise Inspector, vide Section 8 of U.P. Act, 1976. He shall have same powers as are vested in an Officer In-charge of a Police Station under Chapter 12 of Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C. 1973"). Such Excise Officer may make investigation without any order of Magistrate. The offence under U.P. Act, 1976 is also compoundable vide Section 10, on payment of such compounding fee as found acceptable by District Magistrate. Section 11 confers power upon State Government to frame rules.
4. It is stated that Companies manufacturing and selling liquor are regularly advertising their brands to promote consumption and sale of liquor by making advertisement in electronic media, newspapers, magazines and in various other ways. These Companies also sponsor various shows like musical night, sport events etc. in the name of their well known brands of liquors and spend a huge amount on such mode of advertisements. These advertisements flagrantly and openly violate Section 3 of U.P. Act, 1976.
5. Some examples of such advertisements have been placed on record by way of Annexures-3 to 21. A brief detail of such photocopies of advertisements filed as Annexures- 3 to 21 is as under:
(i) Annexure 3 is a copy of invitation card issued in respect of a musical programme organized on 19th December, 2005 on 7:00 P.M. at Railway Stadium, Charbagh, Lucknow with tag "Chhaya Sunidhi Ka Jadoo" with a monogram, "Seagram's Imperial Blue". Seagram's Imperial Blue monogram is printed on a card which also mentions the word "Superhits" and in very small fonts, difficult to read, words "Cassettes and CDs" have been mentioned. On the back of card, terms and conditions are mentioned. There also, monogram of "Seagram's Imperial Blue" is mentioned and here also the words "Cassettes and CDs" are so small that it is difficult to read with naked eyes.
(ii) Annexure-5 is a photocopy from a magazine publishing an advertisement showing monogram of "Seagram's Blenders Pride Magical Nights". It does not mention any product of its own. On the top, words are mentioned as "Take the Guess work out of good taste". On the bottom words printed are "Taste that speaks for itself". A young boy with two girls are shown in the aforesaid advertisement and one girl has a glass in her hand containing some drink which is visible.
(iii) Annexure-6 is an advertisement mentioning the words "dqN yksx gksrs gSa Special". Thereafter, there is a monogram of SDP Director's 'Special'. In the said monogram, there is also a punch line, which is printed in such a small font that it is not visible with naked eyes. However at the bottom, following punch line is printed "ges'kk Smooth ges'kk Special".
(iv) Annexure-7 is a copy of advertisement without advertising some product in a very conspicuous manner. Three boys, two girls are shown in the advertisement having mask on their face and one girl has mask in her hand. On the side, there is a monogram of 'Radico' and then following words are shown "vc 8 PM gS nqfu;k dk lcls rsth ls fcdus okyk czkUM" "u;k 8pm www liveyourdreamsat 8pm.com".
(v) Annexure- 8 is an advertisement of Mc.Dowell's. In the background it shows hills and two boys on motor-cycle, one in a happy mood. There is a monogram of "McDowell's". It mentions the words "Mc.Dowell's No. 1 Celebration". Then there is a punch line "fny ls ft;ks" mentioned in the advertisement. It also does not show/ mention any product but the monogram is shown as pasted on a bottle.
(vi) Annexure-9 is an actual monogram taken out from a liquor bottle of "McDowells No. 1 Celebration XXX Rum". It is same as has been shown in the advertisement, copy whereof has been filed as Annexure-8, except word "XXX Rum" which has not been shown in the monogram of Annexure-8.
(vii) Annexure-10 is an advertisement of M/s Shaw Wallace, in which half faced boy with goggles and one Carton of bottle is shown in the advertisement alongwith Golf Ball. On the top, it mentions the name "Shaw Wallace Estd. 1886". In the middle of advertisement, it mentions the words "Be tomorrow, Today !". The paper carton mentions the words "Royal Challenge" and "An Exquisite Set of Three Premium Golf Balls". Then there is a hologram of "Royal Challenge" with words in a very small font "Golf Accessories" and at the end, is a punch line "What's Life Without A Royal Challenge !".
(viii)Annexure-11 is an advertisement of Shaw Wallace showing four boys and a girl. It contains a hologram of "SDP Director's Special Black" and punch line "make it black". In very small words on its side, it has mentioned the words "Director's Special Black Cassettes and CDS".
(ix) There is another advertisement of "Seagram's Royal Stag" at Page-36 of writ petition, which is a part of Annexure-11 showing in the advertisement four girls and one boy. On the top, it mention the words "It's your Party, Make it Large". After monogram of Seagram's Royal Stag, it contains words 'Mega Music'. On the side, there is a line with words "Cassettes and CDs available in select music retail".
(x) Annexure-12 is an advertisement of Royal Stag showing cricket player with bat in hand in player's uniform. At the top, words "It's your Challenge, Make it Large" are mentioned. Under Seagram's monogram the words 'Mega Cricket' is printed at the end in very small font, difficult to read with naked eyes. Words "Seagram's Royal Stag Cricket Gear" are also mentioned.
(xi) Annexure-13 is an advertisement of Seagram's Imperial Blue with mention of word "SUPERHITS". In small fonts, following words are mentioned "Cassettes and CDs". Three girls and a boy are shown in advertisement and it contains a punch line "MEN WILL BE MEN". This advertisement has been taken from a weekly magazine 'Outlook' dated 27th December, 2004 and at Page 66 of the paper book.
(xii)Annexure-14 is an advertisement taken from weekly magazine 'Outlook' dated 18th July, 2005 (Page-64). It contains in the background two times the words 'TELLER' showing a girl smiling and talking with a person in queue and hologram and monogram of "Seagram's Imperial Blue" are shown with additional words "Packaged Drinking Water" and then there is a punch line in the advertisement, that is, "Men will be men".
(xiii)Annexure-15 is an advertisement of Shaw Wallace showing Golf Players on horse, sketched in the background with lines "No. It's neither a sport nor a pastime. It's a lifestyle". There is a monogram of Shaw Wallace and it contains the word "Antiquity". In very small font, it mentions "Cassettes & CDs". Then there is a punch line "So True. So Blue.".
(xiv)Annexure-16 is an advertisement of Kingfisher Premium with its monogram and a punch line "Food tastes better with" and on paper some food items are shown. By the side of advertisement, there is a line in a very small font, difficult to read, with the words "Packaged Drinking Water".
(xv)Annexure-17 is an advertisement of Gilbey's "Green Label". On the top, there is a punch line "dqN ikuk gS dqN dj fn[kkuk gS!" Two boys are there in advertisement, one of them has a mike in his hand and another has folded paper. In very illegible small font at the bottom, two words i.e. "PURE AQUA" are printed.
(xvi)Annexure-18 is an advertisement of Mc.Dowell's No. 1. One person is showing a finger and there are two punch lines mentioned at the top and bottom i.e. ";g jkmaM esjs uke!" and "le>nkj dks b'kkjk dkQh", respectively. After great difficulty, we could find a word, written in a very small font, which is almost illegible and it is "Soda".
(xvii)Similar is an advertisement in Annexure-19 which is of Mc.Dowell's No. 1, on which a punch line on the top reads ",d pqids ls" and on the bottom, it reads "le>nkj dks b'kkjk dkQh".
(xviii)Annexure-20 is an advertisement showing on beach side, two girls and one boy in bathing clothes. It mentions words "I'M iN tHe Mood For MiSCHieF" and monogram of "WHITE MISCHIEF" in bold letters "Holidays" in small letters are printed. On the side, there is advertisement of "X-RAY VISION SUNGLASSES".
(xix)In Annexure-21, there is an advertisement of bottle of "White Mischief Vodka". This "White Mischief" is a product of M/s Shaw Wallace Company.
6. Advertisements with attractive pictures, quotes and punches easily suggest a products brand. These are two dimensional. One, the direct suggestion is something which is apparently not mentioned but those who are dealing in these products can understand instantly. Another dimension is such which is on cover but inconsequential. In such advertisements, other things are mentioned in such a manner that a person cannot read it, unless come very close to such advertisements and that too after some efforts. Moreso, these words of inconsequential product can be read either with magnifying glass or with great difficulty one can distinguish from other things.
7. Advertisements apparently show some products surrogately, inasmuch as location of either products is not apparent, but still those who regularly consume such products are well aware of the brands and can immediately get an idea of the product suggested in the advertisement. These kinds of advertisements are "surrogate advertisements" of the product produced at the behest of Manufacturers and Sellers of a commodity, direct convening whereof is not permissible.
8. Petitioner claims that these advertisements were brought to notice of Excise Commissioner and Principal Secretary (Excise) vide letter dated 26.11.2005. However, advertisements in the same manner continued to appear and displayed in Magazines, Newspapers, Hoardings etc.
9. Petitioner was informed by office of Excise Commissioner, vide letter dated 27th January 2006 that all these advertisements do not contain reference, explicitly, to any liquor item, but mentions about CDs, Cassettes, Drinking Water and Sunglasses etc., hence same cannot be taken to be a contravention of Section 3 of U.P. Act, 1976.
10. Petitioner claims that huge amount of expenses are incurred by liquor manufacturing and selling companies on advertisements. They encourage consumption and sale of their liquor products in a clandestine manner. Advertisements are made in a manner that real products are shown in the form of Holograms/Monograms, without mentioning the word "liquor" or kind of liquor, in order to escape punishment provided under U.P. Act, 1976 or some other provisions. In a very clandestine manner, reference of other things of inconsequential value qua the quantum of expenses is given. This is nothing but advertisement of liquor products, surrogately, and must be treated to be a direct violation of Section 3 of U.P. Act, 1976, hence such persons should be prohibited, and, in any case be stopped, from publishing such advertisements.
11. Respondents have appeared through different counsels and have filed counter affidavits.
12. Firstly, we propose to refer to counter affidavit filed on behalf of liquor Manufacturers and Sellers, who are impleaded as respondents- 3 to 9 in this writ petition.
13. A composite counter affidavit has been filed on behalf of respondents- 3, 7, 8 and 9 i.e. Mc. Dowell and Company Limited, Triumph Distillers and Vintners Private Limited, Shaw Wallace Distilleries Ltd and Herbertsons Limited, respectively. It is said that respondents- 3, 7, 8 and 9 have amalgamated with M/s Mc. Dowell Company Ltd., and name of said company is now also changed to "United Spirits Ltd.", therefore, writ petition filed without impleading amalgamated company, a separate legal entity is not maintainable. Order of amalgamation passed by Karnataka High Court and Certificate of Incorporation issued for registration of Company, pursuant thereto, have been placed on record as Annexure CA-1 to the counter affidavit. Amalgamation order was passed by Karnataka High Court on 23rd June, 2006 and fresh Certificate of Incorporation was issued by Registrar of Companies on 17th October, 2006. It is also said there is no mention of any intoxicating liquor in the advertisements of respondents-3, 7, 8 and 9, hence complaint of violation of Section 3 of U.P. Act, 1976 is false and incorrect; petitioner has no locus standi; copy of objects and Memorandum of Association have not been filed; no fundamental or legal rights of petitioner are involved, therefore, writ petition as P.I.L. deserves to be dismissed; Respondents- 3, 7, 8 and 9 sponsor entertainment activities like sports, musical events and other cultural activities; any invitation or advertisement for promotion of such events cannot be said to be violation of Section 3 of U.P. Act, 1976; there is no violation of any statute; the activities of above respondents in sponsoring sports and other events cannot be treated as soliciting, use or offer for sale, any intoxicating liquor; Respondents are manufacturing golf accessories, cassettes and CDs, water, soda, Holidays, X Ray Vision Sunglasses, CD racks and other products and advertisement of same cannot be treated to be an advertisement for soliciting use or offer for sale, intoxicating liquor, hence writ petition deserves to be dismissed.
14. In the counter affidavit filed by respondent-2, it is said that Item-8 List-2, Schedule-7 of the Constitution of India empowers State to make laws with regard to intoxicating liquors, that is to say, production, manufacture, possession, transport, purchase and sale of intoxicating liquors. State of U.P., exercising powers conferred on it and keeping in view Article 47 of Constitution of India, has made Laws, Rules and Policies, controlling intoxicating liquors. Revenue earned by State Government from manufacture and sale of intoxicating liquors is spent on development and welfare of people. State Government never encourages directly or indirectly publication or causes to be published any advertisement, which solicits use of, or offers for sale any intoxicating liquor in State of U.P. Rather, Provincial legislature has enacted U.P. Act, 1976 which strictly prohibits publication or cause to be published any advertisement which solicits the use of, or offers for sale, any intoxicating liquor. Violation of provisions of U.P. Act, 1976 is punishable, having been declared an offence. With regard to petitioner, an objection is raised that aims and objects of Society have not been disclosed and it is not clear as to in what field Society renders its services; no data has been furnished by petitioner to demonstrate that provisions of U.P. Act, 1976 are being violated and State Government and its officers are not keeping a check on such violators; Annexure-3 to the writ petition are documents filed by petitioner which do not mention the word "Liquor" and instead "Imperial Blue Cassettes and CDs" are printed, hence, same cannot be considered as violation of provisions of U.P. Act, 1976; Excise Department cannot take action on publication of surrogate advertisements since the same cannot be construed as violation of Section-3 of U.P. Act, 1976; advertisements placed on record by petitioner do not solicit the use of, or offer for sale of any intoxicating liquor, instead the same advertise items like Cassettes and CDs, Golf Balls etc; Section 3 of U.P. Act, 1976 prohibits an advertisement which solicits use of, or offers for sale any intoxicating liquor and unless an advertisement is squarely covered by provisions of said Act, no action can be taken under U.P. Act, 1976; a close examination of hoardings, advertisements etc. referred to by petitioner do not show any violation of provisions of U.P. Act, 1976; complaint of petitioner was closely examined by Excise Department and finding that advertisements did not depict wine, liquor or beer hence, reply was given by letter dated 27.01.2006. Therefore, writ petition is thoroughly misconceived and liable to be dismissed.
15. Separate rejoinder affidavits and supplementary rejoinder affidavits have been filed. In the rejoinder affidavit filed in reply to counter affidavit of respondent-2, it is said that State Government's declaration that it keeps in mind guiding principles of Article 27 of Constitution of India is extremely doubtful. Reference is made to information given by Excise Department under Right to Information Act, 2005 (hereinafter referred to as "Act, 2005"), stressing upon the fact that liquor shops must be opened in all such areas of every districts where there is a possibility of use of intoxicants. Copy of Memorandum of Association of Society has also been placed on record wherein Clause-4(5) of Aims and Objects of Society, reads as under:-
^^5- ngst] u'kk[kksjh] eknd nzO;ksa ds izlkj] tqvk] fHk{kkVZu ,oa vU/kfo'okl tSlh lkekftd dqjhfr;ksa ds mUewyu ,oa tula[;k fu;a=.k gsrq dk;Z'kkyk] xksf"B;ksa rFkk lkaLd`frd dk;Zdykiksa dk vk;kstu djukA** "5. Organising workshops, symposiums and cultural activities for eradication of social evils like dowry, drug addiction, proliferation of intoxicating drugs, gambling, begging, superstitions etc. and for control of population growth." (English Translation by Court)
16. Reliance is placed on a report published by University of Connecticut, U.S.A. on the subject "Alcohol advertising contributes to increase drinking among youths" confirming that youth who saw more alcohol advertisements, resulted in increase of consumption of liquor by 1 per cent. This news item was also published in daily newspaper "Dainik Jagran" dated 04.01.2006 published at Allahabad. Department of Prohibition, State of U.P. has also raised alarm showing harm of consumption of liquor to younger generation and to society. In this regard an affidavit has been filed as Annexure-RA-4 to rejoinder affidavit. Photographs of some liquor shops have been filed as Annexures RA-5 and RA-7 to rejoinder affidavit to demonstrate that pictorial signboards are present in English Liquor Shops. In respect of photographs (Annexure-RA-5), an R.T.I. enquiry was made and in reply thereof Excise Department has admitted that such signboards could not have been displayed at a liquor shops and it is covered by prohibition under Section 3 of U.P. Act, 1976 and in this regard, information is being collected. Subsequently, by letter dated 27.04.2007 it is said that aforesaid display was not with an object to encourage use of, or sale of intoxicating liquor, therefore, no action has been taken against licensee. On pages 39, 40 and 41 of rejoinder affidavit, which is part of Annexure-RA-7, there are three photographs of display on licenced English Liquor Shops which also display liquor bottles clearly, mentioning the words "English Wine Shop" and some of them refers to wine shop. On page 40 of rejoinder affidavit, in front of a cold beer shop, there is a hoarding mentioning the word "Godfather" and a glass filled with beer showing an artistic bottle in the form of a girl, mentioning at the bottom, the words "Beer Shop".
17. Annexures- RA-6 and RA-7 to the rejoinder affidavit and averments made in this regard have been replied in supplementary counter affidavit filed by respondent-2 stating that these photographs were examined and it was found that there is no advertisement of liquor, beer or wine and instead these were advertisements of other items. It is also said that if any liquor company organizes an event, Excise Department has no control over such activity and no action can be taken under U.P. Act, 1976, in respect of such an events.
18. In the supplementary rejoinder affidavit, sworn on 27.11.2017, in reply to supplementary counter affidavit of respondent-2, petitioner reiterates that direction should be issued to prohibit "surrogate advertisements" resorted to by Alcohol Companies i.e. liquor manufacturing companies to promote their brands of liquor. It is also said that State Government has not taken any action to curb such advertisements. In the supplementary rejoinder affidavit filed in reply to supplementary counter affidavit of respondent-2, petitioner has given certain material to demonstrate, what "surrogate advertisement" is, and how is being practised and utilized by liquor manufacturing companies to promote their items of liquor in the garb of other items. It is said that "surrogate advertisement" is practised to promote sale of products like liquor and tobacco etc., advertisement whereof is prohibited by law. Companies organize programmes in various cities of State, declaring contest and in a clandestine manner they are all connected with liquor shops. Respondent-5 distribute lucky scratch coupons to win prizes with liquor like Imperial Blue, affixing posters etc through liquor shops. One of such poster has been filed as Annexure-SRA-5 to supplementary rejoinder affidavit.
19. Rejoinder affidavit filed in reply to counter affidavit of respondents-3, 7, 8 and 9 is similar as that has been filed in reply to counter affidavit of respondent-2, therefore, we are not repeating the same.
20. A separate counter affidavit has been filed by respondent-5, Messrs Seagram India Private Limited. It is claimed that writ petition though styled as a Public Interest Litigation, in fact, is a publicity oriented and deserves to be dismissed as no cause of action, requiring adjudication by this Court involving any public interest cause, has arisen. Petitioner has no locus-standi to maintain the writ petition. Allegations are vague, evasive, incomplete and do not establish any violation of law alleged to have been committed by respondent-5. Advertisements referred in petition do not disclose that the same pertain to liquor. Section 3 of U.P. Act, 1976 will be applicable only when advertisement pertain to intoxicating liquor. None of the advertisement solicits the use of intoxicating liquor and there is nothing even to suggest such an inference. There is also no offer for sale of any intoxicating liquor in the aforesaid advertisements and Section 3 of U.P. Act, 1976 has no application. Respondent-5 promotes and organizes lifestyle, entertainment and musical events. These events have created an identity of their own. Such events are organized by respondent-5 on regular basis. Programme organized by respondent-5 at Charbagh Railway Station, Lucknow on 19.12.2005 referred to in para-11 of writ petition, was a "Musical" programme and therein a well-known newspaper was a Media partner. Said programme was to promote an artist and music. Respondent-5 promotes music and has earned a brand image for its music CDs and cassettes. Respondent-5 has tied up with "Planet M", a leading chain of Music Stores across the country for sale of CDs and cassettes, promoted under entertainment platforms like, Royal Stag Mega Music. One of the advertisements of respondent-5 pertains to Packaged Drinking Water and has nothing to do with the sale of intoxicating liquor. Respondent-5 also regularly sponsors sports events and associate its brands for such sporting events. Such an activity is legitimate and neither can be said to be nor amounts to solicit use of, or offering for sale, any intoxicating liquor. Some illustrations of such events are given in para-17 of the counter affidavit. Respondent-5, also sponsors syndicate columns in newspapers on sporting events by a renowned sport expert or person of that field. These are special columns in the newspapers associated with sporting events. Under the platform "Royal Stag Mega Cricket", respondent-5 engages itself in the sale of sporting gear and apparels. The use of name and brands by respondent-5 in respect of apparels and sporting gear cannot be treated as to solicit the use of, or offering for sale, any intoxicating liquor. None of the advertisements referred to in the writ petition relating to respondent-5 depicts intoxicating liquor. The Holding company of respondent-5 is Messrs Pernod Ricard S.A. which owns various trademarks/trade names/brands either directly or through its Subsidiary, Associate or Affiliate Companies. Respondent-5 uses the trademarks and brands as a licensee in India. It is further suggested that scheme of U.P. Act, 1976 does not intend to impose a total ban on all or any advertisement in respect of intoxicating liquor. Prohibition contained in Section 3 of U.P. Act, 1976 is only limited to those advertisements that solicits the use of, or offer for sale, any intoxicating liquor. Any advertisement that fails to meet the above criteria will not fall within Section 3 of U.P. Act, 1976. In this regard, reference is made to Explanation of Section 3 of U.P. Act, 1976.
21. In the rejoinder affidavit filed by petitioner in reply to counter affidavit of respondent-5, it is said that time has come for States and Union of India to think seriously for taking steps to achieve the goal set up by Article 47 of Constitution of India. It is an inglorious fact of which judicial notice can be taken that more and more younger generation in this country are getting addicted to liquor. It has not only become a fashion to consume liquor but also an obsession with very many. Advertisements made by respondent-5 are nothing but "Surrogate Advertisements" to promote use and consumption of product like, liquor manufactured by respondent-5 and what is patent is not the aim but what is latent is a real message.
22. Directive principles contain an ultimate goal which the country has to achieve and even if directive principles are not directly enforceable they are not ineffective but have life and force of fundamentals. Objectives and purpose of directive principles can be given vitality and affect the course of law by treating the same as criteria of reasonableness whenever any action of Executive or Legislature is to be judged on the anvil of constitutional provisions and legislative intent behind the enactment.
23. A supplementary counter affidavit has been filed raising some more objections. Firstly that an omnibus petition is not maintainable, inasmuch as, every advertisement has to be examined and evaluated separately, hence, petitioner cannot be allowed to seek omnibus prayers in respect of different kinds of advertisements issued by different companies and the proceedings in the Court cannot be allowed to become a fact-finding enquiry requiring evaluation of complex questions of fact. Central Government has enacted Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as "C.T.N. Act, 1995"). Rules have also been framed thereunder and Rule-7 talks of advertising on cable services. It also prohibits an advertisement which promote, directly or indirectly production, sale or consumption of, besides others tobacco products, wine, alcohol, liquor or other intoxicants. The brand name or logo which is used for the products like, liquor etc. may be advertised on cable services subject to certain conditions mentioned in the said Rules. Besides, the code of self-regulation contained in India has been published by Advertising Standards Council of India and in the light of aforesaid provisions, for for mere use of brand name for advertisement of other products, petitioner cannot make a complaint that advertisements are "surrogate" and, in fact, are for promotion of sale and consumption of liquor and liquor items. Respondent-5 has got trademark registered for "Royal Stag Packaged Drinking Water" and "Carbonated Soda in Class 32". "Royal Stag Mega Music CDs" were launched in 2004 and respondent-5 has also secured trademark registration in Class-9. He has also collaborated with Universal Music to manufacture and distribute Royal Stag Music Compact Discs which are available on Amazon and Flipkart. It is also borne to the extent that U.P. Act, 1976 if read in the manner as are being suggested by petitioner, it would be contrary to C.T.N. Act, 1995 and would be beyond legislative competence since the subject is under the Parliament vide Entry 31 of List I of 7th Schedule of Constitution of India. Any absolute prohibition under Section 3 of U.P. Act, 1976 with regard to advertisement would render the provisions of U.P. Act, 1976 ultra vires being contrary to the otherwise provisions of Central Government legislature and in such a case, Central Government legislation would prevail. It is said that even otherwise U.P. Act, 1976 even to the extent it prohibits advertisement of liquor products must be considered as violative of Articles 14 and 19 of Constitution as there can be no absolute prohibition on advertisements of liquor products.
24. In the supplementary rejoinder affidavit, petitioners have denied what has been said by respondent-5 in supplementary counter affidavit and it is also said that respondents have not challenged the words of U.P. Act, 1976, they are bound to absorb the same. There is no contradiction between the provisions of U.P. Act, 1976, C.T.N. Act, 1995 and the Rules framed thereunder. The contention that U.P. Act, 1976 is ultra vires is also denied.
25. Sri Ashutosh Mishra, Advocate has advanced arguments on behalf of petitioner, Sri Ravi Kant, Senior Advocate assisted by Sri Rahul Mishra, Advocate has appeared for respondent-5, Sri Neeraj Sharma, Advocate has appeared on behalf of other private respondents while learned Standing Counsel has made submissions on behalf of State of U.P. and its Officials.
26. Both sides in the arguments, in fact, reiterated what has been pleaded in the writ petition, counter and rejoinder affidavits which we have dealt in detail hereinabove. Hence, instead of repeating arguments, we proceed to consider the issues raised in the writ petition.
27. In our view, questions which we need to consider are as under:-
(i) Whether advertisements made by respondent-Companies, some of which are placed on record, can be said to be such advertisements where what is apparent is not being promoted but what is suggested or lurking is promoted and can be brought within the ambit or are in the nature of "Surrogate Advertisement" i.e. apparent advertisement for one product but dominating advertisement for another product, by suggestions, but keeping it latent.
(ii) Whether advertisements in question can be constituted as violating Section 3 of U.P. Act, 1976.
(iii) Whether provisions of U.P. Act, 1976 in any manner, are beyond the legislative competence of Provincial Legislature or to the extent dominated by the provisions of C.T.N. Act, 1995 and the Rules framed thereunder, hence inoperative after enactment of C.T.N. Act, 1995.
28. There is an old and very popular song of a well-known Hindi movie and the most popular phrase/line thereof is "कहीं पे निगाहें, कहीं पे निशाना" "Look at somewhere, target somewhere". If we want to understand the term "Surrogate Advertisement", the aforesaid line of the song very presciently stands defined and denoted.
29. The term "Advertisement" has been defined in U.P. Act, 1976, therefore, we cannot go into the general concept of advertisement but would have to look into the nuisance of term "Advertisement" in the manner it is defined in Statute itself. Section 2(a) of U.P. Act, 1976 defines the term "Advertisement" and reads as under :-
"2(a) "advertisement" includes any printed, cyclostyled, type-written, handwritten or painted matter or a design or pictorial representation and also includes the distribution or display of such matter, design or representation on any wall, building or hoarding in a public place or an announcement by means of producing or transmitting light or sound, whether by cinematographic exhibition, neon signs or otherwise;"
30. U.P. Act, 1976 came into force in November, 1975 i.e. on the date when U.P. Intoxicating Liquor (Objectionable Advertisements) Ordinance, 1975 (hereinafter referred to as "Ordinance, 1975") was enacted. The purpose of said Act is to prohibit advertisements of liquor by cinematographic exhibition, on walls, buildings in public places and to provide for matters connected therewith.
31. The definition of "Advertisement" is inclusive. Though it covers various ways and modes of advertisement but being inclusive of any other mode, if subsequently invented or discovered for advertisement, can also be read in the definition of "Advertisement" under Section 2(a) of U.P. Act, 1976.
32. It is not in dispute that modes and manners of advertisement which are in question, come within the term "Advertisement" as defined in Section 2(a) of U.P. Act, 1976. Now, what is prohibited can be seen after going through Section 3 of U.P. Act, 1976. Any advertisement which solicits the use of, or offers for sale of any intoxicating liquor, is prohibited. However, a mere signboard on any premises where intoxicating liquor is manufactured or sold or offered for sale indicating merely that such liquor is manufactured, or sold or offered for sale in that premises, or any catalogue or price list of such liquor, shall not amount to publication of such advertisement.
33. What is excluded by explanation in Section 3 of U.P. Act, 1976 is an indication that the place meant for manufacture of liquor or sale of liquor, if it is shown by exhibiting on board etc, it will not be treated an advertisement prohibited by U.P. Act, 1976 but it should not offer for consumption or solicits consumption of liquor in any manner. In a shop where liquor is being sold, the indicating words "Here is a liquor shop" and similar other signboards etc., by itself would not be in the cluches of prohibition under Section 3 of U.P. Act, 1976 but anything more than that which solicits use or offer for sale intoxicating liquor is prohibited.
34. The dictionary meaning of word "Advertisement" in common parlance is a piece of information in a newspaper, on television, a picture on a wall, etc. that tries to persuade people to buy something, to interest them in a new job etc. The objective of advertisement is to change the thinking pattern (buying behavior of the recipient), so that he or she is persuaded to take the action desired by advertiser. Normally, advertisements are straight and clear. Very impeccably and boldly they refer to product for which advertisement is meant for. There is nothing concealed, nothing latent, no clandestine message is involved but it is transparent and open declaration of product for which advertisement is meant for.
35. However, there are some products, advertisements whereof are banned or prohibited. In such cases, recent research and inside probe conducted in last few decades show that concerned agencies have found out an indirect way and that has been given a new terminology i.e "Surrogate Advertisement". Advertisement to sale of goods, services etc. is neither bad nor can be condemned since it is part and parcel of commercial activity of Manufacturer or Service provider etc. but one cannot forget that those who are advertising have also to bear a broad social responsibility since the effect of advertisement is very wide and far-reaching.
36. 'Surrogate' has been defined in Wharton's Law Lexicon Dictionary, Seventeenth Edition 2018 at page 1824:
"One that is substituted or appointed in the room of another, as by a bishop, chancellor, judge etc., especially an officer appointed to dispense licences to marry without banns;
A substitute; especially, a person appointed to act in place of another."
37. P Ramanatha Aiyar's The Law Lexicon, Fourth Edition 2017 at page 1862 defines the word 'Surrogate':
"Is one that is substituted or appointed in the room of another; as by a Bishop, Chancellor, Judge, etc. A person or thing acting in place of another."
38. 'Surrogate' has been defined in Stroud's Judicial Dictionary Of Words And Phrases, Eighth Edition at page 2904:
"Is he who is appointed in the stead of another, most commonly of a bishop or his chancellor."
39. The Concise Oxford Dictionary Of Current English, Eighth Edition 1990 at page 1228 defines 'surrogate' as:
"a substitute, especially, for a person in a specific role or office."
40. 'Surrogate' has been defined in Black's Law Dictionary, Eighth Edition at page 1485:
"A substitute especially, a person appointed to act in the place of another."
41. The above definitions broadly show that "Surrogate" means a "Substitute". Surrogate advertisements are like "Advertisements" which duplicate the brand image of one product to promote another product of same brand. 'Surrogate' or 'substitute' could either resemble the original product or could be a different product altogether but it is marketed under the established brand name of original product. Surrogate advertisements are resorted by Product Owners to promote and advertise the products and brands when the original product cannot be advertised on mass media. Liquor is one such product, direct or indirect advertisement whereof, for the purpose of augmenting its sale or consumption, is prohibited.
42. It is a matter of common knowledge that though constitutional goal enshrined under Article 47 of Constitution of India is total prohibition but the hard and unfortunate reality is that revenue from excise, mainly pertains to liquor and constitute major part of earning by every State, therefore, there is a clash of interest every time within the State as to how it should maintain balance between the two. We have completed 69 years of enforcement of Constitution but still policy of complete prohibition has been adopted only by one or two States. Broadly, major income of other States is from the activities relating to exciseable items like, tobacco, liquor etc.
43. Manufacturers who have invested huge funds in establishing factories for manufacture of liquor, the traders who pay huge excise to State for taking right to trade in liquor in a periodical auction etc. have their own interest of more business otherwise they are bound to suffer losses. Augmentation in consumption and sale of liquor can be by advertisements which have strong influence in our life.
44. Here, Legislation like U.P. Act, 1976 comes in the way by preventing advertisements and that is how, Manufacturers and Traders have to resort to other ways which is nothing but a blatant endeavour to defeat law by taking benefit of loopholes in law. Here comes a kind of proxy war between Advertisers and the State.
45. Advertisers simply explain that they are not advertising "product" that are banned or prohibited but as a matter of act, in an indirect manner, they are actually achieving their lurking goals.
46. If we look into the advertisements which have been placed before us, we find something strange therein. The basic purpose of an advertisement is to explain, as a form of communication to persuade an audience/viewers/readers/ listeners to purchase or to take some action upon products, ideals or services. It includes the name of product or service and how that product or service would benefit the consumers to persuade a target market to purchase or to consume that particular brand. Advertisement means and includes essentially a thing to induce consumption to make people buy things that they do not want otherwise or may not want otherwise.
47. Thus the items of advertisements are displayed boldly and clearly leaving no scope of imagination. In India, rural people have a less literacy rates, and in urban areas, with semi literate people in majority. Repetition of Brand names of certain items create an impact on the mind of people. In particular, on adolescents, the advertisement by pictures, whether on television or films or magazines etc., have greater impact than what is explained by words.
48. However, strangely enough, in the advertisements in question, we do not find either the product sought to be advertised mentioned with clarity, nor there is any attempt that product by itself should come to the vision of people for persuasion, whereof advertisement is being made. Even the alleged direct product is mentioned in a very inconspicuous manner. It is difficult to understand what kind of advertisement it is in respect of product for which the respondent-Company, in fact, apparently suppose. We have no manner of doubt that these advertisements do not satisfy the basic requirements of 'advertisement' and, therefore, these advertisements are not meant for what is patent but more space and message, on what is latent.
49. Respondents' main business is Manufacture and sale of liquor. Some of the accounting details placed on record by petitioner show that a very small amount of business is carried out in the products in respect whereto respondents claim to run parallel business comparing to principal business of liquor with which respondents' business are involved. Sponsoring of activities like cultural, sports, music etc. by itself cannot be said to be illegal, unlawful or otherwise prohibited but sponsoring of such events with an objective to use a well-known liquor brand, in our view, would fall within the category of "Surrogate Advertisements". Respondents have not chosen to place on record the quantum of business, they had in the ancillary and incidental items for which they claim that advertisements in question have been published vis-a-vis, the corresponding liquor brands and, therefore, we are not befitted to compare the same to find out whether a prudent Manufacturer or Advertiser would do what is being done by respondents so as to find out whether advertisements in question are surrogate advertisements or not but we are satisfied that some of the advertisements, apparently, are for something else than what is pretended.
50. The alleged products like packaged drinking water, CDs and cassettes etc. are mentioned in such an inconspicuous manner that it is difficult to find out, what product is being advertised and, therefore, message is clear that advertisement is for well-known brand for larger item than what is lesser known. The purpose of advertisement in such a manner is obviously to make and ensure that customers do not forget the branded liquor, for which, advertisements are meant. It is a kind of negative advertisement also which apparently has promotion skill than prohibition.
51. In this regard, we may refer to the fact that Government of India enacted Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as "COTPA Act, 2003"). Constitutional validity of this enactment was challenged in Mr. Mahesh Bhatt and Kasturi and Sons Vs. Union of India and another 147 (2008) DLT 561. Supreme Court upheld constitutionality and held that commercial advertisements are entitled to limited protection under Article 19(1)(a) of Constitution, if they are in public interest. Commercial advertisements of tobacco products are not protected under Article 19(1)(a) of Constitution. Commercial advertisements will include indirect or surrogate advertisements which promote and encourage use of tobacco products. Court held that restrictions imposed on electronic media and cinematographic films are reasonable and justified. Restrictions imposed on print media to prevent publication of brand names, logos of tobacco products are also in larger public interest and to promote right to life. Therein, Court also observed that Constitution of Committee representing diverse voices, interests and groups to look into the cases as to whether there is a case of surrogate advertisement or prohibited advertisement or not, is a reasonable safeguard to prevent abuse of power.
52. What has been observed in respect of tobacco, in our view, can be applied to liquor also.
53. Promotion of liquor, directly or indirectly, in the matter of production, sale or consumption by way of advertisement is also prohibited under Rule 7(2)(viii)(A) of Cable Television Networks Rules, 1994 (hereinafter referred to as "CTN Rules, 1994").
54. Advertisements in question, if literally we have to say, undoubtedly one cannot say that directly there is any message to public at large to solicit use of liquor or offer for sale but mention of product for which advertisement is made very inconspicuously or in some advertisements not at all, is nothing but a clear way of advertisement of something which is prohibited. These advertisements are at the instance of respondents whose principal business is manufacture of liquor, hence, there can be no other inference but that there is an indirect way of soliciting and promoting sale and consumption of liquor, therefore, what is prohibited in law, is being contravened with impunity by respondents in a very clandestine manner. Advertisements in question, thus, in our view, cannot be held as to satisfy the basic tendencies of advertisement of a product but here the product is the brand name of something which is prohibited, though is being advertised in the garb of something which is inconspicuous and inconsequential and that is why, it is mentioned in a similar way or not at all mentioned.
55. Our discussion leaves no other inference except that respondents are violating provision of Section 3 of U.P. Act, 1976 and Excise Authorities appear to be giving lip service to the provisions of Statute and are more active and serious to look into the matter for violation than for implementation and compliance. Some of the signboards affixed outside liquor shops not only mention the place for sale but more than that still have not been treated as in violation of Section 3 of U.P. Act, 1976 by Excise Authorities and thus, it is nothing but a clear defiance of implementation of law by Officials and Authorities of Excise Department of State of U.P. We have no hesitation in condemning such act on their part.
56. So far as validity of U.P. Act, 1976 is concerned, we do not find that anything contained therein is contrary to what has been stated in Central Enactment i.e. C.T.N. Act, 1995 or the Rules framed thereunder, or in any way, it is beyond the legislative competence. In fact, learned counsel for respondents have not advanced any serious argument on this aspect and basic endeavor on their part was to take out, advertisements in question, from the purview of Section 3 of U.P. Act, 1976. However, we are satisfied that advertisements in question are not saved and suffer from vice which is prohibited by Section 3 of U.P. Act, 1976.
57. We, therefore, allow this writ petition and direct State of U.P. and Excise Commissioner as also Police authorities to ensure that within the territory of State of U.P. advertisements in question as well as similarly placed advertisements of Liquor Manufactures and Traders are not displayed, shown on televisions or cinema halls or circulated or published in any newspaper and magazines etc. Authorities concerned shall take appropriate action in this regard so that in the State of U.P. such advertisements are not carried out/ displayed/ exhibited/ published etc.
58. Petitioners shall be entitled to cost which we quantify to Rs. 25,000/- which shall be equally shared and paid by respondents-3 to 9.
Order Date :- 14.03.2019 Siddhant Sahu