Dr. Yash Pal Sahi vs Delhi Administration

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 157 of 1962

Decision Date: 29 November 1963

Coram: P.B. Gajendragadkar, K.C. Das Gupta

In the matter titled Dr Yash Pal Sahi versus Delhi Administration, the Supreme Court of India delivered its judgment on 29 November 1963. The opinion was authored by Justice P B Gajendragadkar, with Justice K C Das Gupta also sitting on the bench. The case is reported in the 1964 volumes of the All India Reporter at page 784 and the Supreme Court Reporter (5) at page 582, and it concerns the Drugs and Magic Remedies (Objectionable Advertisement) Act of 1954, specifically sections 2(d), 3, 7 and 14(1)(c). The central issue was the interpretation of the phrase “taking any part in the publication of any advertisement,” whether that phrase includes the act of sending an advertisement within the territory of India, what burden of proof applies, and what conditions must be satisfied for an advertisement to fall within the exemption provided by section 14(1)(c). The appellant, Dr Yash Pal Sahi, owned a homeopathic hospital in New Delhi and published a journal called “Homoeopathic Doctor.” At the written request of an individual named Misri Singh, the appellant sent copies of the journal together with a list of medicines by registered post. Misri Singh was neither a registered medical practitioner nor a licensed wholesale or retail chemist, although he worked as a clerk for a registered practitioner. The list that accompanied the journal was printed in indelible ink with a statement indicating that it was “meant for the use of medical practitioners alone.” On this basis, the appellant was prosecuted under section 3 read with section 7 of the Act. The trial magistrate found the appellant guilty and imposed a fine of Rs 1,000. On appeal, the Additional Sessions Judge upheld the conviction but reduced the fine to Rs 500, and the High Court subsequently dismissed the appellant’s revision petition. The Supreme Court entertained the appeal on special leave. The appellant argued that section 3 must be read subject to the other provisions of the Act, particularly section 14, which exempts any advertisement sent confidentially in the prescribed manner to a registered medical practitioner or a licensed chemist from the other prohibitions. Relying on this exemption, the appellant contended that because he had received a written request to send the articles, he owed no duty to verify whether the recipient was a registered practitioner or chemist. Further, the appellant relied on Rule 6 of the Rules made under the Act, asserting that the printed legend “For the use only of registered medical practitioners” satisfied the statutory requirement. The Court held that the definition of “taking any part in the publication of any advertisement” in section 2(d) is broad enough to cover both the printing of the advertisement and its transmission to any part of India. The Court clarified that, before penalising a person, it is not necessary to demonstrate that the contravention was habitual; even a single breach suffices to render a person guilty under section 7. The Court further observed that section 3 is indeed subject to the provisions of section 14, and if the appellant’s conduct falls within the ambit of section 14, the prohibitions of section 3 cannot be invoked against him. Accordingly, the prosecution must prove that the individual to whom the list was sent was not a medical practitioner. Once that is established, the burden shifts to the appellant to demonstrate that the circumstances satisfy the conditions of section 14(1)(c). The Court noted that merely complying with one of the conditions prescribed in Rule 6 does not, by itself, bring the appellant’s case within the exemption of section 14(1)(c).

The Court observed that even a single breach is sufficient to render a person liable under section 7 of the Act. It further held that the operation of section 3 is subject to the provisions of section 14; consequently, if the appellant’s situation falls within the ambit of section 14, section 3 cannot be invoked against him. Accordingly, the prosecution bears the burden of proving that the recipient of the medicines list was not a registered medical practitioner. Once that point is established, the onus shifts to the appellant to demonstrate that his case is covered by subsection 14(1)(c). The Court noted that merely complying with one of the conditions laid down in rule 6 does not, by itself, place the appellant’s case within the scope of subsection 14(1)(c). The judgment proceeded under the heading “Criminal Appellate Jurisdiction” and concerned Criminal Appeal No. 157 of 1962, filed by special leave against the judgment and order dated 9 February 1962 of the Punjab High Court (Circuit Bench) at Delhi in Criminal Revision Application No. 281‑D of 1961. Counsel for the appellant and counsel for the respondent were instructed, and the judgment was delivered on 29 November 1963 by Justice Gajendragadkar. The appellant, Dr Yash Pal Sahi, together with his wife Dr Susheela Sahi, owned a homeopathic hospital in Jangpura, New Delhi, and also published a journal titled “Homoeopathic Doctor”. On 15 May 1958, an individual named Misri Singh wrote to the appellant stating that the medicines prepared by the appellant were proving effective and requested that the journal issues from 15 January 1958 up to the date of his letter be sent to him. In the same correspondence, Misri Singh asked for a list of medicines that the appellant might have printed, offered to pay the appropriate price, and suggested that the items be dispatched through a messenger identified as V.P.P. In response, the appellant sent a parcel on 24 May 1958 containing exhibits P‑1 to P‑6, which were copies of the “Homoeopathic Doctor”, and exhibit P‑7, a list of medicines. Misri Singh had written to the appellant on the instructions of Mr Seth, an officer of the Delhi Administration; consequently, when the parcel was received it was opened by Misri Singh in the presence of Mr Seth and other witnesses, who verified that the package contained exhibits P‑1 to P‑7. The prosecution alleged that by sending this parcel, both the appellant and his wife had committed an offence punishable under section 3 read with section 7 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. The complaint against Dr Susheela Sahi was later withdrawn, leaving the case to proceed solely against Dr Yash Pal Sahi. At trial, testimony was recorded from Mr Seth, Misri Singh and Dr Anant Parkash, a clerk working with Misri Singh. The appellant was examined by the learned Magistrate, who tried the case, and he admitted that exhibits P‑1 to P‑7 had indeed been sent to Misri Singh. Based on these facts, the learned Magistrate concluded that the appellant was guilty of the offence charged.

In this case, the appellant was initially charged and sentenced to pay a fine of Rs. 1,000 for the offence alleged against him. The appellant challenged the correctness of that order by filing an appeal before the Additional Sessions Judge at New Delhi. The learned Additional Sessions Judge examined the evidence presented at trial and confirmed the findings recorded by the trial magistrate. Consequently, the judge affirmed the conviction but altered the monetary penalty, holding that a fine of Rs. 500 would satisfy the ends of justice. The appellate findings established that the parcel containing Exhibits P‑1 to P‑7 had been dispatched by the appellant to Misri Singh. Exhibits P‑1 to P‑6, which are numbers of the publication “Homoeopathic Doctor,” were held not to fall within the mischief of the Act. However, Exhibit P‑7, titled “Fehrist‑i‑Mujarabat,” was found to fall within the mischief of the Act because it listed medicines and advertised their effects and prices. Since the Additional Sessions Judge found that the appellant had sent Exhibit P‑7 to Misri Singh, his conviction was deemed justified under section 3 read with section 7 of the Act. Dissatisfied with that outcome, the appellant filed a revisional application before the High Court. In that application, it was contended that the court had failed to appreciate the effect of the provisions contained in section 14(1)(c) while deciding guilt under sections 3 and 7. The High Court was not persuaded by that submission and therefore dismissed the revisional application. The appellant subsequently obtained special leave to approach this Court, alleging that his conviction was unwarranted because his conduct fell within the exception provided by section 14(1)(c) of the Act. In order to address that argument, it is necessary to refer to the relevant statutory provisions. The Act was enacted to control the advertisement of drugs in certain circumstances, to prohibit advertisements that claim magical qualities, and to provide for matters connected therewith. Section 2 contains the definitions applicable to the Act. Section 2(d) defines “taking any part in the publication of any advertisement” as including (i) the printing of the advertisement and (ii) the publication of any advertisement outside the territories to which the Act extends, when carried out by or at the instance of a person residing within those territories. The definition is expressly inclusive, and the two clauses clearly indicate that sending a prohibited article constitutes publication within the meaning of the Act. Thus, the printing of the prohibited article, together with its dispatch, satisfies the statutory concept of publication under the Act.

In this case the Court explained that the definition of “publication” under section 2(d) includes not only the act of printing an advertisement but also the act of sending the advertisement outside India as described in clause (ii). Because the definition is inclusive, the Court found it difficult to accept any argument that sending the same advertisement within the Indian territories to which the Act applies would not amount to “publication”. Consequently, the Court held that the definition in section 2(d) is sufficiently wide to cover both the printing of an advertisement and its distribution to any part of India. Turning to section 3 of the Act, the Court focused on sub‑clauses (c) and (d), which prohibit any person from taking part in the publication of an advertisement for a drug in terms that suggest or are calculated to lead to the use of that drug for the correction of menstrual disorder in women, or for the diagnosis, cure, mitigation, treatment or prevention of any venereal disease or any other disease or condition that may be specified in rules made under the Act. The Court noted that the list of advertisements placed before it as Exhibit P‑7 undeniably contains medicines that fall within the ambit of sections 3(c) and 3(d). Section 7 of the Act, the Court observed, prescribes the penalty for any contravention, providing for imprisonment of up to six months or a fine, or both, for a first conviction, and up to one year of imprisonment or a fine, or both, for a subsequent conviction. This provision indicates that a single proven contravention is sufficient to render a person guilty under section 7, and the penal scheme intentionally imposes a lesser punishment for a first offence and a more serious penalty for repeat offences.

The Court then turned to the argument raised by counsel for the respondent, who contended that in order to determine whether the appellant is guilty under sections 3 and 7 read together, it must first be examined whether the case falls within the exception provided by section 14. The counsel emphasized that section 3 commences with the words “Subject to the provisions of this Act”, and therefore argued that if the appellant’s situation is covered by the provisions of section 14, section 3 cannot be applied to him. The Court acknowledged that this contention is well‑founded. Section 14 indeed provides for specific exceptions, stating that nothing in the Act shall apply to cases that fall within the clauses prescribed therein. The counsel specifically relied upon subsection 14(1)(c), which declares that “Nothing in this Act shall apply to any advertisement …”. The Court considered this reliance in the context of the present facts.

In this matter, the Court examined the provision that reads, “Nothing in this Act shall apply to‑ any advertisement relating to any drug sent 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;”. Counsel for the appellant argued that when Misri Singh wrote to the appellant and invited him to send the list of medicines, the appellant was not expected to inquire whether Misri Singh was a registered medical practitioner. To support this contention, the counsel pointed out that Misri Singh was actually employed as a clerk by Dr. Anant Parkash, and suggested that the appellant might have reasonably believed that Misri Singh was a registered medical practitioner. The counsel further emphasized that this line of argument had not been raised before any of the lower courts. Upon reviewing the record, the Court found no evidence that the appellant possessed any knowledge regarding Misri Singh’s identity or his employment status. Consequently, the Court held that the novel plea before it—that the appellant may have acted in good faith on the belief that Misri Singh was a registered medical practitioner—could not be allowed to assist him. The factual finding that Misri Singh is not a registered medical practitioner raised the question of whether the appellant could legitimately claim that his conduct falls within the exception provided by section 14(1)(c). The Court noted that, in order to establish the offence charged, the prosecution may indeed need to prove that the individual to whom the list was sent was not a registered medical practitioner. Once that fact is established, the onus shifts to the appellant to demonstrate that his case is covered by section 14(1)(c). In this context, the counsel relied upon rule 6 of the Rules framed under the Act. Rule 6 provides, “All documents containing advertisements relating to drugs, referred to in clause (c) of sub‑section (1) of section 14, shall be sent by post to a registered medical practitioner or to a wholesale or retail chemist”. The rule further mandates that such documents must bear, at the top, printed in indelible ink in a conspicuous manner, the words “For the use only of registered medical practitioners or a hospital or a laboratory”. Both parties accepted that the list dispatched by the appellant to Misri Singh bore this printed statement. Counsel for the appellant suggested that because the list complied with this particular requirement of rule 6, the appellant’s case should be deemed to fall within the ambit of section 14(1)(c). The Court, however, was not prepared to accept this line of reasoning. It observed that rule 6 sets out several conditions that must be satisfied by a person who sends lists of medicines to which the Act applies, and compliance with only one of those conditions does not automatically satisfy the other conditions laid down either by section 14(1)(c) or by rule 6, which are necessary to bring the appellant’s case within the statutory exception.

The Court examined section fourteen paragraph one clause c, noting that one condition required the list to bear a statement printed in indelible ink. It also observed that another condition mandated that the list be sent to a registered medical practitioner or to a wholesale or retail chemist as prescribed by the same provision. Regarding the latter requirement, the Court pointed out that the statute itself demanded confidential delivery of the list specifically to a registered medical practitioner. The Court held that compliance with one requirement of Rule six could not be taken to mean that the other statutory or regulatory conditions were automatically satisfied. Consequently, the Court concluded that the counsel for the appellant was not entitled to argue that his case fell within the ambit of section fourteen paragraph one clause c. The counsel further highlighted that the appellant was on the verge of sending Exhibit P‑7 to Misri Singh and contended that the recipient, upon seeing the indelible ink statement, need not have examined the document and should have returned it. The Court found this line of reasoning unpersuasive, emphasizing that the purpose of the Act was to protect uninformed persons from being misled into purchasing medicines based on overly flattering advertisements. Accordingly, the legislation required that lists describing qualities and attributes of medicines be dispatched solely to registered medical practitioners or to hospitals, not to the general public. Therefore, the Court rejected the argument that, even if the appellant had sent the list to someone who was not a registered medical practitioner, the recipient should have remained on guard and refrained from reviewing the list. The Court affirmed that the High Court was correct in finding that the offence alleged against the appellant had been duly proved. Concerning the quantum of punishment, the Court noted that the learned Additional Sessions Judge had reduced the fine imposed by the trial magistrate from one thousand rupees to five hundred rupees. The Court regarded this reduction as a fair and appropriate order in the circumstances of the case. Accordingly, the appeal was dismissed and the appellant’s conviction and reduced fine were upheld.