Madras High Court
R.Amala vs The State Represented By on 20 November, 2023
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1771 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.11.2023
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1771 of 2023 and
Crl.M.P.Nos.16833 & 17232 of 2023
R.Amala ... Petitioner
Vs.
The State represented by
The Drug Inspector,
Royapettah Range, Zone-III,
D.M.S Campus, 259-261,
Annasalai, Teynampet,
Chennai-600 006. ... Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 r/w 401 of
Criminal Procedure Code, to set aside the order in Crl.A.No.121 of 2022 dated
09.08.2023 on the file of the V ADDL SESSIONS JUDGE, Chennai confirmed
in C.C.No.7860 of 2017 dated 10.06.2023 on the file of IV Metropolitan
Magistrate, at Saidapet, Chennai.
For Petitioner : Mr.L.Infant Dinesh
For Respondent : Mr.A.Damodaran,
Additional Public Prosecutor
ORDER
The petitioner/accused in C.C.No.7860 of 2017 was convicted by the learned IV Metropolitan Magistrate, Saidapet, Chennai (trial Court) by judgment, dated 10.06.2022 and sentenced to undergo Simple Imprisonment for one month and to pay a fine of Rs.10,000/- in default to undergo one week https://www.mhc.tn.gov.in/judis Page No.1/10 Crl.R.C.No.1771 of 2023 Simple Imprisonment for offence punishable under Section 7(b) of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. Aggrieved over the same, the petitioner preferred an appeal before the learned V Additional Sessions Judge, Chennai in C.A.No.121 of 2022 (lower appellate Court). The lower appellate Court by judgment, dated 09.08.2023 dismissed the appeal confirming the conviction and sentence of the trial Court, dated 10.06.2022. Challenging the same, the present Criminal Revision Case is filed.
2.The case against the petitioner is that the petitioner is the Proprietrix of M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai, who caused an advertisement in 'Kungumam Doctor' magazine, dated 16.12.2016 at page No.83 in respect of a drug named “Jinga Gold Capsules” with the claim that 'it can increase the sexual pleasure of men'. This is an objectionable advertisement as per Section 3(b) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (For Short 'Act'). On 21.12.2016, a show cause memo issued by the Drugs Inspector/PW1 to the Editor of 'Kungumam Doctor' magazine for contravening in publishing objectionable advertisement. The Editor was requested to disclose the details of person who gave such advertisement. On 26.12.2016, the Editor replied disclosing the advertisement was given by M/s.Reeha Herbal Marketing, Anna Nagar, https://www.mhc.tn.gov.in/judis Page No.2/10 Crl.R.C.No.1771 of 2023 Pammal, Chennai. On 09.01.2017, a show cause notice issued by the Drugs Inspector/PW1 to M/s.Reeha Herbal Marketing, Anna Nagar, Pammal Chennai for causing advertisement for the drug “Jinga Gold Capsules” and followed by another letter, dated 14.02.2017, but no reply received. Again second reminder, dated 25.04.2017 was sent, this also not responded. Hence, the Drugs Inspector/PW1 personally visited the premises of M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai, delivered third reminder, dated 12.06.2017 which was acknowledged by one Mr.Mohammed Riyas, head of the wing, thereafter too, no reply which only proved the fact that the Firm was guilty and their willingness to disclose details. On 19.09.2017, the sanction was received to prosecute the petitioner, Proprietrix of M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai who contravened Section 3(b) of the Act.
3.During trial, on the side of the prosecution, two witnesses examined as PW1 & PW2, thirteen documents marked Exs.P1 to P13. On the side of the defence, no witness examined and no document marked. It is seen that the petitioner was convicted for similar offence in C.C.No.23 of 2016 by the learned IV Metropolitan Magistrate, Saidapet, Chennai, against which, the petitioner not preferred appeal. Second time, similar offence has been committed.
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4.The learned counsel for the petitioner submitted that PW1/Investigating Officer/Drugs Inspector not verified or tested the herbal contents of the medicine. PW1 admits that in the advertisement there is no explicit of direct connotation to show that 'the herbal can increase the sexual pleasure of men'. He further admits that no enquiry conducted to prove that whether any person used such medicine got affected. The learned counsel further submitted that the complainant himself has conducted the investigation, which is bad in law. For this point, reliance placed on the judgment of the Hon'ble Apex Court in the case of “Mohan Lal Versus State of Punjab reported in (2019) 4 SCC (Cri) 215”. PW2, another Drugs Inspector admits that he had not conducted any further investigation, merely filed the charge sheet before the trial Court. He further submitted that the advertisement of the medicine is only recommended to males suffering from weakness and to “maintenance of improvement of capacity of” which would not get attracted for violating Section 3(b) of the Act. The learned counsel for the petitioner raised objection on the point of jurisdiction since the premises of M/s.Reeha Herbal Marketing is located at Anna Nagar, Pammal, Chennai, PW1/Drugs Inspector is of Royapettah range, hence, the factory premises is beyond the jurisdiction. The Drugs Inspector, Royapettah had no jurisdiction to investigate the case. For this point, he relied on the decision of the Hon'ble Apex Court in the case https://www.mhc.tn.gov.in/judis Page No.4/10 Crl.R.C.No.1771 of 2023 of “Y.Abraham Ajith and others Versus Inspector of Police, Chennai and another reported in 2004 SCC (Cri) 2134”.
5.He further submitted that the “Jinga Gold Capsules” is a herbal product and has no harmful contents. Without considering the same, the trial Court passed the erroneous judgment which the lower appellate Court also confirmed, hence, the judgment of both the Courts below are liable to be set aside. The “Jinga Gold Capsules” was not published as medicine for curing any ailment as projected by the prosecution/Drugs Inspector/PW1. Further, the “Jinga Gold Capsules” not tested in any laboratory to find out its ingredients and its harmfulness to the common public. He further submitted that no charges under Section 211(7) Cr.P.C., has been framed against the petitioner. In view of above, the Criminal Revision to be allowed setting aside the judgments of the Courts below.
6.The respondent/Drugs Inspector filed counter submitting that the main objective of the Act is to prevent self medication or self treatment and for which the advertisement commenting certain drugs and medicines are prohibited to save the ignorant and unwary people. As per the Act, advertisement of certain drugs is prohibited and it is not necessary a person https://www.mhc.tn.gov.in/judis Page No.5/10 Crl.R.C.No.1771 of 2023 should get affected after which an Investigating Officer should take any action based on the complaint. The Drug Inspector/PW1 in this case almost completed the investigation and thereafter, PW2, the successor of PW1 sent reminder to M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai and submitted a proposal for sanction and obtained the same. He further submitted that “Jinga Gold Capsules” is an Ayurvedic proprietary drug which is clearly printed in its label. Hence, it would fall under Section 2(b)(i) of the Act. The prohibitory advertisement was published in 'Kunguman Doctor' magazine on 16.12.2016 at page No.83. The magazine office is situated within Royapettah range, hence, the respondent has got jurisdiction under Section 178 Cr.P.C., to investigate the case. In this case, the investigation was initiated by the Drugs Inspector/PW1, thereafter, the investigation was continued and the charge sheet filed by PW2. Hence, the objection of the petitioner that the complainant and the Investigating Officer are one and the same would not apply. He further submitted that the petitioner not denied the fact that she was convicted in C.C.No.23 of 2016 by judgment, dated 12.02.2016 wherein she was directed to pay a fine of Rs.3,000/-. The petitioner paid the fine amount and the judgment, dated 12.02.2016 became final, no appeal filed.
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7.He further submitted that there is no denial by the petitioner that she is not the Proprietrix of M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai which manufactured “Jinga Gold Capsules” and caused advertisement in 'Kunguman Doctor' magazine. In view of the same, he submitted that the revision is without merits, the same is liable to be dismissed.
8.Considering the submissions and on perusal of the materials, it is seen that the entire business operation i.e., manufacture and production was being carried out by one Mohammed Riyas which is not seriously disputed. Even when the Drugs Inspector visited M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai, it was only Mohammed Riyas who was present there, received the reminder. During enquiry, it was found that it was Mohammed Riyas who was in complete control of entire manufacture and marketing of the “Jinga Gold Capsules”. No doubt, that will not absolve the petitioner since the petitioner being the Proprietrix of M/s.Reeha Herbal Marketing, Anna Nagar, Pammal, Chennai is not denied. As per Section 9(1) proviso, if it is proved that the offence was committed without the knowledge or due diligence can been exercised to prevent commission of such offence. That person cannot be proceeded against for violation of the Act.
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9.Now, the petitioner filed an affidavit stating that the advertisement has been caused not to deceive any public and also she refrains from such acts in future. Further, the petitioner came forward to pay additional fine in lieu of jail sentence.
10.Section 7(b) of the Act states that the imprisonment may extend to one year, or with fine, or with both. In view of the same and considering the fact that the petitioner is a woman, tendered apology, undertakes not to violate the Act and its Rules in future, this Court is inclined to interfere with the judgments of the Courts below.
11.Accordingly, this Court confirms the conviction of the Courts below for offence punishable under Section 7(b) of the Act and set asides the sentence of one month Simple Imprisonment and confirms the fine amount of Rs.10,000/-. Further, the petitioner is directed to remit a sum of Rs.1,00,000/- (Rupees one lakh only) to the Cancer Institute (WIA) (Regional Cancer Centre), Adyar, Chennai-600 020 (Account No.149710011005477, Andhra Bank, Madhya Kailash Branch) on or before 11.12.2023. https://www.mhc.tn.gov.in/judis Page No.8/10 Crl.R.C.No.1771 of 2023
12.With the above modification, this Criminal Revision Case is partly allowed. Consequently, the connected Miscellaneous Petition are closed.
13.Post the matter under the caption 'For Reporting Compliance' on 12.12.2023.
20.11.2023 Speaking Order/Non Speaking Order Index : Yes/No Internet : Yes/No Neutral Citation: Yes/No vv2 To
1.The V Additional Sessions Court, Chennai.
2.The IV Metropolitan Magistrate Court, Saidapet, Chennai.
3.The Drug Inspector, Royapettah Range, Zone-III, D.M.S Campus, 259-261, Annasalai, Teynampet, Chennai-600 006.
4.The Public Prosecutor, High Court, Madras.
https://www.mhc.tn.gov.in/judis Page No.9/10 Crl.R.C.No.1771 of 2023 M.NIRMAL KUMAR., J.
vv2 Crl.R.C.No.1771 of 2023 20.11.2023 https://www.mhc.tn.gov.in/judis Page No.10/10