IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 RP.No. 617 of 2011(A) ------------------------ AGAINST THE JUDGEMENT/ORDER IN WPC.11410/2011 Dated 27/06/2011 .................... REVIEW PETITIONER(S): PETITIONER ----------------------------------------- K.C.ABRAHAM, SOLE PROPRIETOR OF M/S.KUNNATH PHARMACEUTICALS, VELLOORKUNNAM, MOOVATTUPUZHA, ERNAKULAM DISTRICT=676308. BY ADV. SRI.E.K.NANDAKUMAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH RESPONDENT(S): RESPONDENTS ------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SPECIAL SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE (F) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. DRUGS CONTROLLER (AYURVEDA, SIDDHA, UNANI), DRUGS CONTROL ADMINISTRATION, THIRUVANANTHAPURAM-695035. 3. DRUGS INSPECTOR (AYURVEDA), OFFICE OF THE DRUGS INSPECTOR, CIVIL STATION, ERNAKULAM- 682030. 4. PEOPLE UNION FOR CIVIL LIBERTIES, REPRESENTED BY ITS STATE GENERAL SECRETARY, P.A.POURAN, S/O.ANTONY, ADVOCATE,AGED 61 YEARS, RESIDING AT "SILENT VALLEY", MANJERY, MALAPPURAM-676121. RP.No. 617 of 2011(A) 2 5. AYURVEDA MEDICAL ASSOCIATION OF INDIA, AYURVEDA BHAVAN, XVIII/2-A, ANGAMALY, ERNAKULAM, REPRESENTED BY ITS GENERAL SECRETARY, DR.V.G.UDAYAKUMAR. *ADDL.R6 BAISIL ATTIPETTY @ BAISIL A.G., AGED 53 YEARS, S/O.GEORGE, RESIDING AT ATTIPETTY HOUSE, NAYARAMBALAM, ERNAKULAM DISTRICT - 682 509. *ADDL R6. IS IMPLEADED AS PER ORDER DATED 07.09.2011 IN I.A.NO.543/2011 IN R.P.NO.617/2011 GOVERNMENT PLEADER SRI.P.RAHIM FOR R1,2,3 SRI.A.G.BASIL FOR ADDL R6 THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 12/10/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR & P.Q.Barkath Ali JJ. = = = = = = = = = = = = = = = = = = = = = = = R.P. No.617 of 2011 in W.P.(c) No.11410 of 2011 = = = = = = = = = = = = = = = = = = = = = = = Dated this the 12 th day of October, 2011 ORDER V.Ramkumar J The review petitioner seeks an interim relief by way of stay of operation of the judgment dated 27.06.2011 in W.P.(c) No.11410/2011 to the extent it places a total restraint on the petitioner from giving or publishing any advertisement regarding “Musli Power Xtra” in any print or electronic media or through any of its websites till a test report is obtained by the State Government and requiring the petitioner to remove all hoardings containing advertisements of “Musli Power Xtra” within two weeks. 2. We heard the Senior Counsel Sri.A.K.Jayasankar Nambiar appearing for the petitioner, the learned Government Pleader appearing for respondents 1 to 3 and the learned counsel for respondents 4 to 6. 3. As per the judgment sought to be reviewed the State R.P. No.617 of 2011 2 Government was directed to initiate steps within one month of the date of receipt of a copy of the judgment to get the samples of the product of the review petitioner tested by the Central Drugs Laboratory (CDL), Ghaziabad and the Government was directed to take a decision in the matter within two months of receipt of the test report from the laboratory. In paragraph 12 of the judgment, the writ petitioner was restrained from publishing any advertisement about the drug in the print or electronic media or through any of its websites till appropriate orders are issued by the Government after obtaining the test report. 4. The judgment was pronounced on 27.06.2011. The Government Pleader submits that as on today the test report has not been received by the Government. This Court while disposing of I.A.No.543/2011 was not inclined to lift the total ban against the advertisements contained in paragraph 12 of the judgment hoping that the test result would be received soon. The case was accordingly adjourned to 12.10.2011 and observing that if by then the test results are not received then the question as to whether the writ petitioner should be permitted to advertise the product without making any claim regarding the R.P. No.617 of 2011 3 remedies could be considered. Since the test reports have not been received so far even within the extended period, the learned counsel for the review petitioner pressed for an interim order. 5. The main objection raised by the contesting respondents is that formerly the advertisements which were given by the review petitioner with regard to “Musli Power Xtra” claimed to have the following properties:- 1. Solves erectile problems. 2.Increases volume of ejaculation 3. Prolongs consumers performance. The main objection with regard to the advertisement is based on the provisions of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954, the object of which is to curb advertisements which claim cures for various diseases and thereby promote self medication and that ignorant and unwary persons might resort to self medication of such drugs. The earlier advertisements of the drug indicated that the drug had “aphrodisiac” properties. 6. The learned counsel appearing for the review petitioner R.P. No.617 of 2011 4 submits that the review petitioner had discontinued issuing such advertisements as above, but the blanket ban against any sort of advertisement with regard to the product has resulted in considerable loss to the review petitioner/ manufacturer. 7. The review petitioner who had filed the above writ petition now seeks only a limited prayer namely to advertise “Musli Power Xtra”in the manner shown in Annexures H1 to H4 in all of which the claim is only for 'a healthy and happy family'. Those advertisements do not claim that the said product has any cure for any disease or it has any magic remedy, or that it is a sex stimulent. 8. According to the contesting respondents the drug which did not produce any of the results which it formerly claimed is being marketed in the same form and therefore the present advertisement as contained in Annexures H1 to H4 also cannot be permitted. We cannot agree. Even according to the contesting respondents the product did not have any of the qualities claimed by the manufacturer then. If so, the product cannot be understood as one which has any of those qualities. There is no case that the product is unfit for human R.P. No.617 of 2011 5 consumption. The only advertisement which the petitioner seeks to make is by giving the photograph of the wrapper containing the product with a caption “Healthy and Happy Family” as contained in Annexures H1 and H2. However, we are not inclined to permit the review petitioner to give advertisements as contained in Annexures H3 and H4. It is made clear that this permission will be subject to the final result of the writ petition and this order does not, in any way, permit the petitioner to market any substance which is unfit for human consumption or which is injurious to health. Dated this the 12th day of October, 2011 V. RAMKUMAR, JUDGE P.Q.BARKATH ALI, JUDGE sj The last sentence in the order dated 12.10.2011 in R.P.617/2011 in W.P.(c) No.11410 of 2011 is substituted as: It is made clear that this order will not in any way permit the petitioner to market any substance which is unfit for human consumption or which is injurious to health.” R.P. No.617 of 2011 6