c ZAFFAR MOHAMMAD @ Z. M. SARKAR v. THE STATE OF WEST BENGAL November 25, 1975 (Y. V. CHANDRACHUD AND A. C. GUPTA, JJ.) r • Drugs and Magic Remedies (Objectionable Advertiseme111s) Act (21 of 1954) t
-S. 3-Scope of. Section 3 of the Drugs and Magic Remedies (Objectionable Advertisements> Act provides that no person shall take part in the publication of any advertise- ment 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 or treatment of anY disease or condition specified in the Schedule to th.e kt. Section. 7 of the Act makes it penal to contravene any of the provisions of tbe Act. The appellant inserted an advertisement in a newspaper to the effect that he would treat diseases ''with new methods, new 1nachines of science anc! elec1r;c I reatlnent".
He was prosecuted under s. 7 read with s. 3 of the Act and was convicted and sentenced. The High Court confirmed the conviction and senten- ce. On appeal to this Court. it was contended that the particular advertisement did not refer to any "drug" and, therefore, the provisions of the Act were not attracted.
Dismissing the appeal, HELD : "Machines of science" designed to confer on mankind the blessings of "New Life, New Vigour, New Spirit, New Wave" advertised by the appeJ.- Jant are most likely to trap the ignorant and the unwary.
The articles of' com- merce which the appellant had banefully advertised must be brought within the mischief of the Act. [784 GHl ( 1) Any article other than food which is intended to affect or inflnence in any way any 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. [784CJ (2) A machine is a tangible thing which can both be seen and felt and as snch, it answers the description of an article within the meaning of s. 2(b )(iii) of _the Act.
A machi'ne is intended to be and is conceived as a nsefUl thing and is therefore, an "article''. It does no violence either to commonsense or to rules of interpretation to say that a machine is an "article". [784-D-EJ
CRIMINAL APPELLATE JURISDICTION : Crimrnal Appeal No. 162 of 1971. Appeal by special leave from the Judgment and Order dated the 11th December, 1970 of the Calcutta High Court in Criminal Revi- sion No. 145 of 1969.
I 1 N. C. Talukdar, Prodyut Kumar Chatterjee and Sukumar Basu for the Appellant. G. S. Chatterjee and Sukumar Basu for the Respondents. ' I ZAFFAR MOHAMMAD v. WEST BENGAL (Chandrachud, /.) 783
The Judgment of the Court was delivered by CHANDRACHUD, J. The appellant, who is a homoeopathic prac- titioner, runs a dispensary at Harrison Road, Calcutta. In the bsue 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 want a cure, see today 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 e\e.ctric treatment and ·are cured permanently ……. " In behalf of this advertisement, the appellant was prosecuted under section 7 read with section 3 of the Drugs and Magic Remedies (Objectionable Advertisements
Act of 1954. The learned Presidency Magistrate, 8th Court, Calcutta convicted the appellant ot the aforesaid charge and sentenced him to pay a fine of Rs. 100/-. The order of conviction and sentence having been confirmed by the High Court of Calcutta, the appellant has filed this appeal by special leave.
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 or treatment. of any disease or condition specified in the Sechedule to the Act. Item 14 of the Schedule refers to "Disorders of the
nervous system''. Section 7 of the Act makes it penal to contravene any of the provi- sions 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 the Act are not attracted. For appreciating this contention,· it is necessary to refer to section 2(b) of the Act which runs thus:
"2. In this Act, unless the context otherwise requires,- (a) * (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 disease in human beings or animals; (iii) any article, other than food, intended to affect . or influence in any way the structure or ::iny
i1) 7 84 (iv) SUPREME COURT ~EPORTS (1976] 2 S.C.R. organic function of the body of human beings or animals; any article intended for use as a component of any medicine, substance or article, referred to
in sub-clauses (i), (ii) and (iii)." 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 to us clear that, in any event, the impugn- ed part of the advertisement refers to a drug as defined by :;-:;ction
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.
The so-called "machines of science" or of "electric treatment" whose magil'.ally 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 Teaming 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. I, 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 common- sense 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 be assume, but his "machines of science" designed to confer on man- kind 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 benefully advertised must, as far as po~sible and without doing violence to the language of the Act, be broui;.it within the mischief of the Act. It does no violence either to commonsense or to rules of interpretation to say that a machine is an "article".
In the result, we confirm the judgment. of the High Court, though for a different reason, and dismiss this appeal. P.B.R. Appeal dismissed.