Advertisement Under Drugs & Magic Remedies Act Includes Oral Advertisements As Well: Allahabad High Court

In an appeal filed against the order of Additional Sessions Judge passed in 2011 which held the appellant liable under Section 7 of the Act, Justice Sadhna Rani Thakur has observed that advertisements under the said Act can be oral as well.

It explained that the objective of the Act is to punish objectionable advertisements or quacks having a tendency to persuade the ignorant, unwary individuals to either resort to self-medication having harmful repercussions.

In the present case, considering the fact that Appellant-accused had participated in an exorcism willingly, misleading the public, the Court held that he must undergo the punishment laid down in the Act.

Background

A group of police officers was on patrol duty in 2006 when they were informed of a tantric fooling people through an exorcism, in a nearby village. The group immediately reached the spot and witnessed a huge crowd, a tantric having two pits before him covered with wooden planks and mud, containing two people inside and the public claimed that through tantric's magic, these two people will come out alive in 24 hours.

The police immediately removed those two people from the pits and they were breathing very slowly and one of the pits also had a snake inside them. These two people were found to be tantric's disciple named Udaibhan Gaud and a resident of the same village named Kanhaiya Lal.

The police immediately registered an FIR charging all three accused with Section 308 (Attempt to commit culpable homicide) and Section 420 (Cheating) of IPC and Section 7 of Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954.

Section 7 prescribes penalty for contravention of the Act, which includes the prohibition of advertisement of magic remedies for treatment of certain diseases and disorders.

Once the charge sheet was filed and the case reached Special Judge, Deora, all three accused were charged with 420 IPC and S.7 of the Act and only the tantric was charged with S.308 of IPC.

The prosecution could not produce any material evidence and all three accused denied the occurrence of the act and prayed that they were falsely implicated in the case. After considering all evidence, the lower court could only find the offence under S.7 of the Act to be proved against the accused and thus they were each fined with INR 1,000.

The present appeal has been filed by Kanhaiya Lal, who was a class 12 student at the time, stating that the trial court has erred in passing the judgment based on evidence not admissible under the Indian Evidence Act and that such order suffered from illegality, irregularity and perversity and thus is liable to be set aside.

Counsel for respondent however submitted that the lower court had given judgment only after a thorough perusal of evidence before it and the judgment was not unjust or improper and thus should be confirmed.

Findings

The Court observed that neither any offerings (flowers, rupees, incense sticks etc.) were produced in the court, nor any person had filed a complaint with regard to the incident. However, the court noted that two witnesses who were present at the spot support the prosecution case and the site plan and charge sheet filed by the investigating officer works as secondary evidence.

Further noting that the word advertisement in S.2(a) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 include any announcement orally made and thus since the present appellant participated in the exorcism by getting himself buried alive in a pit covered with mud and wooden planks is a proof of is participation in the Act and the lower court has rightly reached the conclusion that appellant has committed an offence under S.7 of the said Act.

Further averring that if a person has committed an offence then he must be ready to undergo the punishment fixed for the same by the statute, the Court dismissed the appeal and upheld the conviction and sentence recorded by the lower court.

Case Title: Kanhaiya Lal Nishad v. State of U.P.
Case Citaion: 2022 LiveLaw (AB) 29