minal Appeal No 157 of 1962
Appeal by special leave from the judgment and order dated February 9 1962 of the Punjab 584 High Court Circuit Bench at Delhi in Criminal Revision Application No 281 D of 1961
JP Goyal for the appellant
BK Khanna and RN Sachthey for the respondent
November 29 1963
The Judgment of the Court was delivered by GAJENDRAGADKAR J
The appellant 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 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 VPP Thereupon a packet containing Exhibits P 1 to P 6 which are copies of the Homoeopathic Doctor and exhibit P 7 which is a list of medicines was sent to Misri Singh on May 24 1958
Misri Singh had written to 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 Misri Singh 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 packet to Misri Singh both the appellant and his wife had committed an offence under section 3 read with section 7 of the Drugs and Magic Remedies Objectionable Advertisement Act of 1954
Later the complaint against Dr Susheela Sahi was withdrawn and the case proceeded only against the appellant
At the trial evidence was given by Mr Seth Misri Singh and Dr Anant Parkash with whom 585 Misri Singh works as a clerk
The appellant was questioned by the learned Magistrate who tried the case and he admitted that Exs
P 1 to P 7 had been sent to Misri Singh
On these facts the learned Magistrate held that the appellant was guilty of the offence charged and sentenced him to pay a fine of Rs 1000
The appellant challenged the correctness of this order by an appeal before the Additional Sessions Judge at New Delhi
The learned additional  Sessions Judge considered the evidence and confirmed the findings recorded by the trial Magistrate
In the result the order of conviction passed against the appellant was affirmed but in regard to the sentence the learned Additional Sessions Judge took the view that a fine of Rs 500 would meet the ends of justice
The findings made by the appellate Court show that the parcel containing Exs
P 1 to P 7 had been sent by the appellant to Misri Singh
Exhibits P 1 to P 6 which are the numbers of the publication Homoeopathic Doctor did not come within the mischief of the Act but exhibit P 7 which is Fehrist i Mujarabat  did come within the mischief of the Act
It is a list of medicines and it purports to advertise the said medicines by describing their effect and prices of the medicines are also printed
Inasmuch as it was found by the learned Additional Sessions Judge that the appellant had sent exhibit P 7 to Misri Singh his conviction was held to be justified under section 3 read with section 7 of the Act
The appellant then took this matter before the High Court by a revisional application It was urged before the High Court on his behalf that in deciding the question as to whether the appellant was guilty under section 3 read with section 7 the effect of the provisions contained in section 141c had not been properly appreciated
The High Court was not impressed by this argument
Accordingly the revisional application filed by the appellant was dismissed
It is against this order that the appellant has come to this Court by special leave
On his behalf Mr Goyal has contended that the conviction of the appellant is not justified because 586 the case of the appellant falls under section 14 1c of the Act
In deciding the merits of this argument it is necessary to refer to the relevant provisions of the Act
This Act has been passed to control the advertisment of drugs in certain cases to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith
Section 2 contains the definitions
Section 2d defines taking any part in the publication of any advertisement  as including i the printing of the 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
It would be noticed that the definition of the expression taking any part in the publication of any advertisement  is an inclusive definition and the two clauses bring out clearly the main postulate of the definition that if the prohibited article is sent it would amount to publication within the meaning of the Act
The printing of the prohibited article or advertisement is included in publication
But publication does not mean printing alone publication means sending out the said advertisement outside India under cl
ii and so if sending out the advertisement outside India is brought within the purview of the inclusive definition it is difficult to resist the conclusion that sending out the same advertisement within the territories of India to which the Act applies would amount to publication
Therefore it seems to us that the definition prescribed by section 2d is wide enough to take in the printing of the advertisement and the sending of it to any part of India
That takes us to section 3 of the Act
Sections 3 c and d are the provisions with which we are concerned
They provide that 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 of that drug for 587 cthe correction of menstrual disorder in women or dthe diagnosis cure mitigation treatment or prevention of any venereal disease or any other disease or condition which may be specified in rules made under this Act
 It has been found and cannot be now disputed that the list of advertisements exhibit P 7 contains medicines which fall within the scope of sections 3c and d
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 ain the case of a first conviction with imprisonment which may extend to six months or with fine or both bin the case of a subsequent conviction with imprisonment which may extend to one year or with fine or with both
 This section shows that before a person is penalised it is not necessary to show that the contravention brought home to him is in the nature of a habitual contravention
A single contravention proved against a person would make him guilty under section 7
That is why the scheme adopted by the penal section is that it provides for a lesser punishment for the first offence and a relatively more serious penalty for sub sequent offences
Mr Goyal contends that in considering the question as to whether the appellant is guilty under section 3 and section 7 read together it is necessary to consider whether this case falls under section 14 or not
He argues that section 3 begins with the clause Subject to the provisions of this Act and he urges that if the appellant s case can fall under the provisions of section 14 section 3 cannot be invoked against him
This contention is no doubt right
Section 14 provides for exceptions and it lays down that nothing in the Act shall apply to the cases falling under the clauses prescribed by it
Mr Goyal relies upon section 14 1c which provides that 588 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 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 show 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 Misri Singh is not a registered medical practitioner and so the question arises whether the appellant can claim that his case falls under section 141c at all
It is true that in order to bring home to the appellant the offence charged the prosecution may have to show that the person to whom the list was sent was not a registered medical practitioner
Once that fact is established it is for the appellant to satisfy the Court that his case falls under section 141c
It is in that connection that Mr Goyal relied upon r 6 of the Rules framed under the Act
Rule 6 prescribes that All documents containing advertisements re lating to drugs referred to in clause c of sub 589 section 1 of section 14 shall be sent by post to a registered medical practitioner or to a whole sale or retail chemist
The Rule further adds that Such documents shall 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 It is common ground that the list sent by the appellant to Misri Singh does bear printed in indelible ink the statement that it was meant for the use of registered medical practitioners alone
Mr Goyal suggests that once it is shown that the list complied with this part of the requirement of R 6 it should be held that the case of the appellant falls under section 141c
We are not prepared to accept this argument
Rule 6 prescribes some conditions which have to be complied with by a person who sends lists of medicines to Which the Act applies so as to bring his case within section 14 1c
One requirement is that the list should have printed in indelible ink the statement to which we have just referred
The other requirement to which it refers is that the list should be sent to a registered medical practitioner or wholesale or retail chemist
In relation to this requirement we have the statutory provision prescribed by section 14 1c itself that it must be sent confidentially to a registered medical practitioner
The fact that one of the conditions prescribed by R 6 has been complied with does not lead to the inference that the other conditions prescribed either by section 141c or by R 6 have also been complied with
Therefore we do not think that Mr Goyal is justified in contending that his case falls under section 141c
Mr Goyal has also invited our attention to the fact that this was a case in which the appellant was virtually tempted to send exhibit P 7 to Misri Singh and he argues that as soon as Mr Misra Singh found that that Est contained in indelible ink the statement that it was meant for registered medical practitioners he need not have bothered to look into it and in fact should have sent it back to the appellant
This 590 argument in our opinion is not well conceived
The whole object of the Act is to save ignorant people from being duped to purchase medicines just because their effect is advertised in eloquent terms
That is why the Act provides that lists of medicines describing the qualities and attributes of different medicines should be sent only to registered medical practitioners or hospitals
That being so it would not be a fair argument to urge that even though the appellant might have sent the list to a person who was not a registered medical practitioner the recipient of the list should have been out on his guard and should not have looked into the list
We are therefore satisfied that the High Court was right in holding that the offence charged against the appellant has been duly proved
In regard to the sentence the learned Additional Sessions Judge has reduced the sentence of Rs 1000 fine imposed on the appellant by the learned trial Magistrate to Rs 500 and that we think is a fair order to make
In the result the appeal fails and is dismissed
Appeal dismissed


Summary:
The appellant is the proprietor of a Homoeopathic hospital in New Delhi
He runs a journal called the Homoeopathic Doctor
583 On the request of one Misri Singh the appellant sent copies of the said journal and a list of medicines by VPP Misri Singh was neither a registered medical practitioner nor a wholesale or retail Chemist even though he was working with a registered medical practitioner as his clerk
The list of medicines sent by the appellant to Misri Singh bore in printed indelible ink the statement that it was meant for the use of medical practitioners alone
The appellant was prosecuted under section 3 read with section 7 of the Drugs and Magic Remedies Objectionable Advertisement Act 1954
The trial Magistrate found him guilty of the offence charged and sentenced him to a fine of Rs 1000
On appeal the Additional Sessions Judge confirmed the conviction but reduced the fine to Rs 500
The appellant s revision petition was dismissed by the High Court The present appeal is on special leave granted by this Court
On behalf of the appellant it was contended that section 3 is subject to the other provisions of the Act and therefore it is subject to section 14 which provides that any advertisement sent confidentially in the prescribed manner to a registered medical practitioner or wholesale or retail chemist is exempted from the other provisions of the Act
Relying on this section it was argued that since the appellant requested in writing to send the offending articles the appellant had no duty to enquire whether that person is a registered medical practitioner or chemist
Further the appellant relied on rule 6 of the Rules framed under the Act and contended that inasmuch as the list sent by him bore the words printed in indelible ink For the use only of registered medical practitioners he has complied with the provisions of law
Held i The definition of taking any part in the publication of any advertisement contained in section 2d of the Act is wide enough to include the printing of the advertisement and the sending of it in any part of India
Before a person is penalised it is not necessary to show that the contravention brought home to him is in the nature of habitual contravention
A single contravention will make a person guilty under section 7
iiSection 3 is subject to the provisions of section 14 and if the appellant s case falls under section 14 section 3 cannot be invoked against him
The prosecution has to show that the person to whom the list was sent is not a medical practitioner
Once this is established it is for the appellant to satisfy the court that his case falls under section 141c
The fact that the appellant has complied with one of the conditions prescribed under r 6 will not bring the case of the appellant under section 141c