THE DRUGS AND MAGIC REMEDIES(OBJECTIONABLE ADVERTISEMENTS)ACT, 1954ACT, 1954

Dr K V K SanthyAsst Professor of Law

History of Drug Law

The Poisons Act and the Dangerous Drugs Act were passed in 1919 and 1930 respectively. The Opium Act was quite old having being adopted as early as 1878. But to have a comprehensive legislation, which the rapid expansion of the pharmaceutical production and drug market required by the end of the second and drug market required by the end of the second decade for its control, the Indian Government appointed, in 1931,

a Drugs Enquiry Committee under the Chairmanship Lt. Col. R. N. Chopra which was asked to make sifting enquiries into the whole matter of drug production, distribution and sale by inviting opinions and meeting concerned people.

Recommended

Chopra Committee suggested creation of drug control machinery at the centre with branches in all provinces.

The establishment of a well-equipped Central Drugs Laboratory Laboratory

However, the Drugs Act was passed in 1940 partly implementing the Chopra recommendations. With the achievement of independence in 1947 the rest of the required laws were put on the Statute Book. In 1985, the Narcotic Drugs and Psychotropic Substances Act was enacted repealing the Dangerous Drugs Act 1930 and the Opium Act of 1878.

Drug Laws in India

.

•The Drugs and Cosmetics Act, 1940•The Pharmacy Act, 1948•The Drugs and Magic Remedies (Objectionable Advertisement) Act, •The Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954•The Narcotic Drugs and Psychotropic Substances Act, 1985•The Medicinal and Toilet Preparations (Excise Duties) Act, 1956•The Drugs (Prices Control) Order 1995 (under the Essential Commodities Act)

Advertisement

Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-

oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens,

the credibility is lost. In order to enforce an ethical regulating code, the Advertising Standards Council of India regulating code, the Advertising Standards Council of India

was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the

following basic guidelines misleading advertising advertisement are not offensive to generally accepted

standards of public decency

Drug on TV

Have you noticed the ever-increasing number of prescription drug television ads recently? They are heavy on emotion, and light on facts. The side effects are trivialized.side effects are trivialized.

Your doctor does NOT know everything. Your doctor simply repeats what the pharmaceutical companies' literature says. MOST doctors ARE PAID to push pharmaceutical drugs. Kiddie Prozac Docs Took Millions From Drug Makers.

BABA RAMDEV

Baba Ramdev

one swami, yoga guru Baba Ramdev, promised a cure for dreadful diseases like cancer and AIDS.

the Drugs and Magic Remedies Act states the Drugs and Magic Remedies Act states that no medical

practitioner should give a claim for cure. So, the ministry issued several notices to Baba Ramdev for these

claims. The amendment would seek to curb similar advertisements, officials said

RK Guptha…treatment for epilepsy in 2000, the Indian Medical Association had

declared him a quack after a committee had found that he was giving his patients toxic drugs in high doses.drugs in high doses.

May 2003, following a complaint from a consumer, the Advertising Standards Council of India had held that the advertisement violated the Drugs and Magic Remedies (Objectionable Advertisements) Act

Dwarf to Amitab BhachhanKerala

Dwarf to Amitab BhachhanKerala Young Nadiya, who was short, attracted to an

advertisement that promised to convert a dwarf into Amitabh Bachchan.

Fathima Hospital, had issued the advertisement, promised her that she would gain 10 cm in six promised her that she would gain 10 cm in six months through surgery, costing Rs 32,000.

The so-called correction surgery left her bedridden.

She approached Apollo Hospital, Chennai, which could restore her movement, but not completely.

Black Magic law in Maharashtra

This is the lacuna that the Maharashtra government hopes to fill with its Maharashtra Eradication of Black Magic and Evil and Eradication of Black Magic and Evil and Aghori Practices Bill, which was introduced in the 2005 winter session of the State Assembly.

Pranik healing, Rekhi

Pranik healing and reiki - been brought under the ambit of the law? And most important of all:

does the law impinge on the constitutional rights of an individual?

Does it restrict a person's religious freedom? Does it restrict individuals from performing religious rituals? The questions are many,

and the law - in spite of its efforts to cite specific instances - remains far from precise in its scope and

application. For instance, neither 'black magic' nor 'witchcraft' are defined in the law, even though both are

criminalized.

specific instances are given: 'preventing a person from taking medical

treatment in case of a dog, snake or scorpion bite and instead giving him bite and instead giving him

treatment like mantra-jantra, ganda-dora or such other things' is criminalized.

Similarly, 'claiming to perform surgery with fingers or claiming to change the sex of a fetus in the womb of a woman' is also punishable

MarketingBrand Name

GenericChemical Name Purpose Manufacturer

AbilifyAlavertAmitizaAricept

Astepro

aripiprazoleloratadinelubiprostonedonepezil HClazelastine HCl

antipsychoticallergyconstipationAlzheimer'sallergy

Bristol-Myers SquibbWyethSucampoPfizerMeda

Recent Prescription Drug TV Ads

CaduetChantix

Cymbalta

norvasc, lipitorvareniclineduloxetine

BP, cholesterolstop smokingdepres., pain

PfizerPfizerEli Lilly

EffexorEnablexEpiduo

EvistaFlowmax

venlafaxine HCldarifenacinadapaleneraloxifene HCltamsulosin HCl

depressionoveract. bladderacneosteoporosisBPH

WyethNovartisGalderma LabsEli LillyBoehringer Ingelheim

GardasilImitrexJanuviaLovaza

LyricaMirapexMirena

HPV vaccinesumatriptansitagliptinomega-3 esterspregabalinpramipexolelevonorgestrel

cervical cancermigrainediabeteshigh triglyceridesseizures, painRLSbirth control

MerckGlaxoSmithKlineMerckGlaxoSmithKlinePfizerBoehringerIngelheimBerlex

NasonexNeulastaNiaspan

mometasonefuroatepegfilgrastim

nasal allergiescancercholesterol

Schering PloughAmgenAbbott LabsNiaspan

Omnaris

OnglyzaOrenciaPristiq

pegfilgrastimniacinciclesonidesaxagliptinabataceptdesvenlafaxine

cholesterolnasal spraydiabetesarthritisdepression

Abbott LabsSepracorAstraZenecaBristol-Myers SquibbWyeth

RaptivaReclastRequip

RestasisRozerem

efalizumabzoledronic acidropinirole Hclcyclosporineramelteon

psoriasisosteoporosisRLSdry eyessleep aid

GenentechNovartisGlaxoSmithKlineAllerganTakeda

How many were removed?

How many of the latest TV ads listed above will eventually be pulled due to adverse side effects? About 1 out of 3, as were pulled in the older list at the top? You will find out, when the ongoing, de facto, long term drug safety tests are de facto, long term drug safety tests are completed ON YOU!You will be protected, just as soon as enough other hapless individuals have suffered devastating ill effects. It does not pay to be an "early adopter" in this business. The FDA works the same way as the FAA - only tragedy evokes action.

Brand Name(generic

name) Side Effects ManufacturerPrescribed For

Actonel(risedronate sodium)

Brief:Chest pain, digestive problems OFFICIAL:"Patient InformationActonel and Actonel with Calcium are prescription medications to treat and prevent postmenopausal osteoporosis. You should not take Actonel with Calcium if you are allergic to any of the ingredients, if you have low blood calcium (hypocalcemia), have kidneys that work poorly, or cannot stand or sit upright for 30 minutes. Do not take Calcium tablets if you have high blood calcium (hypercalcemia). If you have had kidney stones please tell

Aventis(Proctor and Gamble)

osteoporosis

calcium (hypercalcemia). If you have had kidney stones please tell your doctor before you start taking Actonel with Calcium. Stop taking Actonel with Calcium and tell your doctor if you experience difficult or painful swallowing, chest pain, or severe or continuing heartburn, as these may be signs of serious upper digestive problems. Follow dosing instructions carefully to lower the chance of these events occurring. Side effects for Actonel® (risedronate sodium tablets) are generally mild or moderate and may include back, muscle, bone or joint pain, stomach pain or upset, or constipation. Contact your doctor if symptoms are severe. Calcium may cause constipation, flatulence, nausea, abdominal pain, and bloating. Tell your health care providers, including your dentist, about all the medicines that you take. See Patient Information for information about Actonel with Calcium. If you have questions, please talk to your doctor."

http://www.vaughns-1-pagers.com/medicine/prescription-drug-tv-ads.htm

What is Advt? 2 (a) " advertisement " includes any notice, circular, label,

wrapper, or other document, and any announcement made orally or by any means of producing or transmitting light, sound or smoke;

(b) drug " includes- (i) a medicine for the internal or external use of human beings or animals ;

(ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of

(ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or animals;

(iii)any article, other than food, intended to affect or influence in any way the structure or any organic function of the body of human beings or animals;

(iv)any article intended for use as a component of any medicine, substance or article, referred to in sub clauses (i), (ii) and (iii)

Taking any part

(d) taking any part in the publication of any advertisement includes-

(i) the printing of the advertisement, (ii)the publication of any advertisement (ii)the publication of any advertisement

outside the territories to which this Act extends by or at the instance of a person residing within the said territories;

Prohibition

3. Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders.

Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are referring to any drug in terms which suggest or are calculated to lead to the use of that drug for-

(a) the procurement of miscarriage in women or prevention of conception in women; or

(b) the maintenance or improvement of the capacity of human beings for sexual pleasure ; or

(c) the correction of menstrual disorder in women ;

Exceptions

Provided that no such rule shall be made except- (i)in respect of any disease, disorder or condition

which requires timely treatment in consultation with a registered medical practitioner or for which there are normally no accepted remedies, and are normally no accepted remedies, and

(ii)after consultation with the Drugs Technical Advisory Board constituted under the Drugs and Cosmetics Act, 1940 (23 of 1940) and, if the Central Government considers necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani systems of medicines as that Government deems fit.]

Misleading Ads, False Claims

4. Prohibition of misleading advertisements relating to drugs. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement relating to a drug if the advertisement contains any matter drug if the advertisement contains any matter which-

(a) directly or indirectly gives a false impression regarding the true character of the drug;

or (b) makes a false claim for the drug; or (c) is otherwise false or misleading in any

material particular

Magic Remedies

5. Prohibition of advertisement of magic remedies for treatment of certain diseases and disorders. 5.Prohibition of advertisement of magic remedies for treatment of certain diseases and disorders. No person carrying on or and disorders. No person carrying on or purporting to carry on the profession of administering magic remedies shall take any part in the publication of any advertisement referring to any magic remedy which directly or indirectly claims to be efficacious for any of the purposes specified in section 3.

What is magic remedy?

(c) " magic remedy " includes a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, miraculous powers for or in the diagnosis, cure, mitigation, treatment or prevention of any disease in human beings or animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals

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Importing Ads

6. No person shall import into, or export from, the territories to which this Act extends any document containing an advertisement of the nature referred to in section 3, or section 4, or section 5, and any documents containing any section 5, and any documents containing any such advertisements shall be deemed to be goods of which the import or export has been prohibited under section 19 of the Sea Customs Act, 1878 (8 of 1878) and all -the provisions of that Act shall have effect accordingly, except that section 183 thereof shall have effect as if for the word " shall " therein the word " may " were substituted.

Penalty

7.Penalty. Whoever contravenes any of the provisions of this Act 1*[or the rules made thereunder] shall, on conviction, be punishable (a) in the case of a first conviction, punishable (a) in the case of a first conviction, with imprisonment which may extend to six months, or with fine, or with both; (b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both.

Power of investigation

(1)Powers of entry, search, etc. Subject to the provisions of any rules made in this behalf, any Gazetted Officer authorised by the State Government may, within the local limits of the area for which he is so authorised,-Government may, within the local limits of the area for which he is so authorised,-

(a) enter and search at all reasonable times, with such assistants, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed ;

[9a. Offences to be Cognizable.– Notwithstanding anything contained in the

Code of Criminal Procedure, 1898 (5 of 1898), an offence punishable under this Act shall be an offence punishable under this Act shall be cognizable.]

Non cognizable offence

10.Jurisdiction To Try Offences

court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this shall try any offence punishable under this Act.

(b) seize any advertisement which he has reason to believe contravenes any of the provisions of this Act: Provided that the power of seizure under this clause may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by reason of its being embossed or otherwise, from such document, article or thing without affecting the its being embossed or otherwise, from such document, article or thing without affecting the integrity, utility or saleable value thereof ;

(c) examine any record, register, document or any other material object found in any place mentioned in clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.

Company as offender

9. (1)Offences by companies. If the person contravening any of the provisions of this Act is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

Exception

Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

Offence by company

(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence was committed with the consent or connivance of, or is attributable to consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company, such director manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly

What is company?

Explanation.-For the purposes of this section,- (a) " company " means any body corporate and includes a firm or other association of individuals, and (b)" director " association of individuals, and (b)" director " in relation to a firm means a partner in the firm.

Act will not apply

14.Savings. Nothing in this Act shall apply to-(a) any sign board or notice displayed by a registered medical practitioner on his premises indicating that treatment for any premises indicating that treatment for any disease, disorder or condition specified in section 3, the Schedule or the rules made under this Act, is undertaken in those premises ;

Act will not apply

(b) any treatise or book dealing with any of the matters specified in section 3 from a bona fide scientific or social standpoint ; or (c) any advertisement relating to any drug sent advertisement relating to any drug sent confidentially in the manner prescribed under section 16 only to a registered medical practitioner ; or (d) any advertisement relating to a drug printed or published by the Government ; or

Act will not apply

(e) any advertisement relating to a drug printed or published by any person with the previous sanction of the Government granted prior to the commencement of the Drugs and Magic Remedies (Objectionable Advertisements) Remedies (Objectionable Advertisements) Amendment Act, 1963 (42 of 1963); Provided that the Government may, for reasons to be recorded in writing, withdraw the sanction after giving the person in opportunity of showing cause against such withdrawal.] 15 Power to exempt from application of Act.

No ads for these Diseases

Diseases and Ailments (by whatever Name described) which a Drug may not Purport to Prevent or Cure or Make Claims to Prevent or Cure.Cure.

There should not be any advertisement about cure or prevention or making any claims about cure or prevention, for following diseases

Schedule

1. Appendicitis 2. Arteriosclerosis 3. Blindness 4. Blood poisoning 5. Bright's disease 6. Cancer 7. Cataract 8. Deafness 9. Diabetes 10. Diseases and disorders of the brain 11. Diseases and and disorders of the brain 11. Diseases and disorders of the optical system 12. Diseases and disorders of the uterus 13. Disorders, of menstrual flow 14. Disorders of the nervous system 15. Disorders of the prostatic gland 16. Dropsy 17. Epilepsy 18. Female diseases (in general) 19. Fevers (in general) 20. Fits

Schedule

21. Form and structure of the female bust 22. Gall stones, kidney stones and bladder stones 23. Gangrene 24. Glaucoma 25. Goitre 26. Heart diseases 27. High or low blood pressure Heart diseases 27. High or low blood pressure 28. Hydrocele 29. Hysteria 30. Infantile paralysis 31. Insanity 32. Leprosy 33. Leucoderma 34. Lockjaw 35. Locomotorataxia 36. Lupus 37. Nervous debility 38. Obesity 39. Paralysis 40. Plague 41.

Schedule

41. Pleurisy 42. Pneumonia 43. Rheumatism 44. Ruptures 106c S. No. Name of the disease, disorder or condition 45. Sexual impotence 46. Smallpox 47. Stature of persons 48. Sterility in women 49. Trachoma impotence 46. Smallpox 47. Stature of persons 48. Sterility in women 49. Trachoma 50. Tuberculosis 51. Tumours 52. Typhoid fever 53. Ulcers of the gastrointestinal tract 54. Venereal diseases, including syphilis, gonorrhoea, soft chancre, venereal granuloma and lympho granuloma

Power to exempt

15.Power to exempt from application of Act. If in the opinion of the Central Government public interest requires that the advertisement of any specified drug or class advertisement of any specified drug or class of drugs

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Cases State of Uttaranchal Vs. Rajesh Kumar Gupta (2007)1SCC355 Advertisements issued by him in various newspapers claiming

that medicines used by him were prepared from herbal plants collected from the Banks of Ganges and by application thereof patients suffering from epilepsy can be cured.

The State, alleged that in his medicine, he had been using unlabelled tablets containing psychotropic substances making the unsuspecting patients addicted to the drugs, raided the premises of the said clinics. 70 kgs. pure phenobarbitone were premises of the said clinics. 70 kgs. pure phenobarbitone were recovered.

It is alleged that through NCPL 336.88 kgs., 524 kgs., 537.32 kgs. and 117 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively and through BSGMCS 398.65 kgs., 406.88 kgs., 519.95 kgs. and 235.12 kgs. of drugs (phenobarbitone) were sold in the years 2001-2002, 2002-2003, 2003-2004 and 2004-2005 (April to July) respectively.

Charges were framed against him under Section 8 read with Section 22 of the Narcotic Drugs ] Psychotropic Substances Act, 1985 ('1985 Act', for short) and Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954.

Respondent admittedly possesses an AyurvedaShastri degree.

By reason of a notification issued by the State of Uttar Pradesh dated 24.2.2003, the practitioners of Ayurvedic system of medicines are authorised to Ayurvedic system of medicines are authorised to prescribe allopathic medicines also.

Respondent runs a clinic commonly known as 'Neeraj Clinic'. He is said to be assisted by eight other medical practitioners being Allopathic and Ayurvedicdoctors. It is also not in dispute that only seven medicines were seized and they are mentioned in Schedules G and H of the Drugs and Cosmetics Act.

Zaffar Mohammad alias Z.M. SarkarVs. The State of West Bengal AIR1976SC171

The appellant, who is a Homoeopathic practitioner, runs a dispensary at Harrison Road, Calcutta. In the issue of a Hindi newspaper, "Sanmarg", dated September 14, 1967 he had the following advertisement published:“New Life, New vigour, New Spirit, New Wave. If you “New Life, New vigour, New Spirit, New Wave. If you want a cure, see to-day well known world-famous experienced registered Physician. Special diseases such as oldness in youth, all sorts of defects in nerves, or weakness, laziness are treated with full responsibility, with new methods, new machines of science and electric treatment and are cured permanently....”

The Drugs and Magic Remedies (Objectionable Advertisements) Act provides by Section 3, in so far as relevant, that no person shall take part in the publication of any advertisement "referring to any drug in terms which suggest or are calculated to lead to the use of that drug" for the maintenance or improvement of the capacity of human beings for sexual pleasure or the diagnosis, cure of treatment of any disease or condition specified in the Schedule to the Act. Item 14 of the Schedule refers to "Disorders of the nervous system". Section 7 of the Act makes if penal to contravene any of the provisions of the Act.

The contention of the appellant was and before us is that the particular advertisement does not refer to any "drug" and therefore the provisions of advertisement does not refer to any "drug" and therefore the provisions of the Act are not attracted. For appreciating this contention,

The learned Magistrate as well as the High Court have taken the view that the advertisement in question refers to a drug as defined by Section 2(b)(ii) above as "machines of science" are a "substance" intended to be used in the diagnosis, cure or treatment of diseases in human beings.

We do not propose to examine the correctness of this view because it seems 10 us clear that, in any event, the impugned part of the advertisement refers to a drug as defined by Section 2(b)(iii). Any article, other than food, which is intended to affect or influence in any way any organic function of the body of a human being is a drug within the meaning of that provision.organic function of the body of a human being is a drug within the meaning of that provision.

The so-called "machines of science" or of "electric treatment" whose magically curative properties were advertised by the appellant are articles intended to influence the organic function of the human body. Indeed, the very claim of the appellant is that by the use of these machines he could cure nervous diseases amongst other ailments.

That a machine is an "article" requires no great learning either to expound or to understand. A machine is a tangible thing which can both be seen and felt and as such it answers the description of an 'article' within the meaning of Section 2(b)(iii) of the Act. The 'Shorter Oxford English Dictionary' (Ed. 1964, Vol. 1, p. 102) says that 'article' Dictionary' (Ed. 1964, Vol. 1, p. 102) says that 'article' means, inter alia, "a piece of goods or property". Webster's 'New World Dictionary' defines an 'article' as a "Commodity" and 'commodity' as "any useful thing" or "any article of commerce". (See Ed. 1962 pp. 83 and 295). Putting it simply, a "machine" is a "thing" and is therefore an "article". Law may not all be commonsense and logic may not be the life of law but commonsense is not taboo in law courts. A machine is after all intended to be and is conceived as a useful thing and is therefore an "article".

The Statement of Objects and Reasons to the Act says that many an advertisement causes the ignorant and the unwary "to resort to quacks who indulge in such advertisements for treatments which cause great harm." The appellant may not be a quack, so will we assume, but his "machines of science" designed to confer on mankind his "machines of science" designed to confer on mankind the blessings of "New Life, New Vigour, New Spirit, New Wave" are most likely to trap the ignorant and the unwary. The articles of commerce which he has banefully advertised must, as far as possible and without doing violence to the language of the Act, be brought within the mischief of the Act. It does no violence to either to commonsense or to rules of interpretation to say that a machine is an "article".

Dr. Yash Pal Sahi Vs. Delhi AdministrationAIR1964SC784

Dr. Yash Pal Sahi, and his wife Dr. Susheela Sahi, are the proprietors of a homoeopathic hospital at Jangpura in New Delhi. They also run a journal called the "Homoeopathic Doctor".

It appears that on May 15, 1958 Misri Singh wrote to the appellant that the medicines manufactured by him were proving effective, and he therefore requested the appellant proving effective, and he therefore requested the appellant to send him his magazine "Homoeopathic Doctor" from January 15, 1958 up to the date of the letter.

In this letter, Misri Singh also requested the doctor to send him a list of medicines that might have been printed by him and he promised to pay the requisite prices and suggested that the same should be sent by V.P.P. Thereupon, a packet containing Exhibits P-1 to P-6 which are copies of the "Homoeopathic Doctor" and Ex. P-7, which is a list of medicines was sent to Misri Singh on May 24, 1958.

Misri Singh had written of the appellant under the instructions of Mr. Seth, who is an officer in the Delhi Administration. That is why when the packet was received by MisriSingh it was opened by him in the presence of Mr. Seth and other witnesses and the packet was found to contain Exs. P-1 to P-7 . The prosecution alleged that by sending this prosecution alleged that by sending this packet to Misri Singh both the appellant and his wife had committed an offence under s. 3 read with s. 7 of the Drugs and Magic Remedies (Objectionable Advertisement) Act of 1954.

"3. Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement referring to any drug in terms which suggest or are calculated to lead to the use that drug for -

. . . . . (c) the correction of menstrual disorder in women; or (d) the diagnosis, cure, mitigation, treatment or prevention of

any venereal disease or any other disease or condition which may specified in rules made under this Act."

It has been found and cannot be now disputed that the list of advertisements (Ex. P-7) contains medicines which fall within the advertisements (Ex. P-7) contains medicines which fall within the scope of Sections 3(c) and (d).

5. Section 7 provides for the penalty, and it lays down that : "Whoever contravenes any of the provisions of this Act shall, on

conviction, be punishable - (a) in the case of a first conviction, with imprisonment which may

extend to six months, or with fine, or both; (b) in the case of a subsequent conviction, with imprisonment

which may extend to one year, or with fine, or with both."

s. 14(1)(c), which provides that : "Nothing in this Act shall apply to - any advertisement relating to any drug sent

confidentially in the prescribed manner only confidentially in the prescribed manner only to a registered medical practitioner or to a wholesale or retail chemist for distribution among registered medical practitioners or to a hospital or laboratory;"

His argument is that if Misri Singh wrote to the appellant and invited him to send the list of medicines it was not expected that the appellant should make an enquiry as to whether Misri Singh was a registered medical practitioner or not. In this connection, he has invited our attention to the fact that Misri Singh is in fact working as a clerk with Dr. Anant Parkash, and this fact is pressed into service by Mr. Goyal to show that it may be that the appellant thought that Mr. Misri Singh was a registered medical practitioner. Such a plea has, however, not been made in any of the Courts below.

In fact, the record does not shows that the appellant knew In fact, the record does not shows that the appellant knew any thing about Misri Singh or his employment. Therefore, the point sought to be made by Mr. Goyal for the first time before us that the appellant might have bona fide believed that Misri Singh was a registered medical practitioner cannot avail him. It has been proved as a fact that Mr. MisriSingh is not a registered medical practitioner, and so, the question arises whether the appellant can claim that his case falls under s. 14(1)(c) at all.

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