JUDGMENT - S.J. DESHPANDE, J.:---This petition is filed by the original accused under Articles 226 and 227 of the Constitution of India challenging the order of conviction passed against the accused for the contravention of the provisions under section 7 read with section 3(d) of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (Act No. 21 of 1954) (hereinafter referred to as the "Drugs Act"). The conviction was recorded on November 29, 1978 in Criminal Case No. 82/S of 1978 and the same was upheld in the revisions by the learned Additional Sessions Judge, Greater Bombay by his judgment and order dated January 8, 1981 in Revision Application No. 11 of 1979. 2. The accused Smt. Kantirani J. Mangal is the sole proprietress of a shop called M/s. Breast Beauty Stores. This store was established in the year 1974. The accused is selling the articles known as Bust Developer and while advertising this Bust Developer, which is an instrument to be used for a proper development of breast of a woman, it is alleged that the accused had advertised a booklet in the form of Exhibit 'A' depicting the photograph of a women showing the use of bust developer with another photograph showing the instrument itself and the sketch of the supposed pump which is to be utilised in the process of using of this instrument. The instrument and the booklet are sold top the customers and they are separately charged. 3. On August 10, 1977, Drug Inspector Suhas Shamrao Anyaphanwar, who is the sole witness on behalf of the prosecution in this case raided the shop of the accused situated at Dadar, Bombay and seized the following articles : 1. Instrument which is called bust developer; and 2. Pamphlets in Hindi, Marathi and English containing the detailed description of the use of the instrument in one of the parts and in another part prefacing the introduction giving object and purpose of bust developer. In Exhibit 'A', first six paras show that there is a general description on the importance of the developed breast as far as women are concerned. There is a reference to Kalidas and Urvashi in relation to the description of the breast. The pamphlet, which is produced in this application, is in the English. In Exhibit 'A', first six paras show that there is a general description on the importance of the developed breast as far as women are concerned. There is a reference to Kalidas and Urvashi in relation to the description of the breast. The pamphlet, which is produced in this application, is in the English. The first six paragraphs of this pamphlets can be said to be the general introduction in regard to the position of developed breast for the purpose of beauty of females. This pamphlet further goes on to emphasise that in regard to muscular structure of a women it is necessary that the breast development should be carefully followed. It has commented on the other remedies and lastly it is stated in this pamphlet, the material portion of which is given in paragraph 9, how the instrument is to be used. 4. After the seizure of the pamphlets, 70 in English, 40 in Hindi and 70 in Marathi under the panchanama, the accused was prosecuted for the contravention of section 3 of the Drugs Act. The prosecution examined only one witness i.e, Inspector in support of its case. 5. The accused admitted the fact of seizure of the pamphlet and possession of the instrument as well as pamphlets. The defence of the accused is that the alleged product is not a drug within the meaning of the Drugs Act. It is the defence of the accused that the instrument is duly registered on October 18, 1975 at Serial No. 1995, Design No. 143514 with the Registrar of Trade Marks and Patents, therefore, the instrument is not an offending instrument. She denied to have advertised the same. 6. On the basis of these facts and the evidence of the witness for the prosecution, Suhas Shamrao Anyaphawar, the Drug Inspector, the learned trial Magistrate convicted the accused for the contravention of section 3 of the Drugs Act. However, he only sentenced her to pay a fine of Rs. 200/- in default to suffer R.I. for two months. The learned Magistrate found the instrument called bust developer is marketed by the accused and it is a drug within the meaning of the Drugs Act. It was also advertised and, therefore, he convicted the accused. 7. However, he only sentenced her to pay a fine of Rs. 200/- in default to suffer R.I. for two months. The learned Magistrate found the instrument called bust developer is marketed by the accused and it is a drug within the meaning of the Drugs Act. It was also advertised and, therefore, he convicted the accused. 7. The accused filed a revision application against this conviction before the Additional Sessions Judge and the learned Additional Sessions Judge has confirmed that conviction agreeing with the reasons given by the learned Magistrate. It was also stated by the accused that it was only her shop which was singled out by the prosecution. Both the courts have not been impressed by any of the arguments advanced on behalf of the accused and they have held tat the instrument bust developer and the pamphlet Exhibit 'A' which is on record are offending articles within the meaning of the Act and, therefore, they have convicted the accused. It is against this conviction that the present criminal application is filed by the accused under Articles 226 and 227 of the Constitution of India. 8. Mr. A.V. Gangal, the learned Advocate for the petitioner, has urged the following submissions in this matter. Mr. Gangal firstly urged that the prosecution founded on the charge of contravention of the provisions of sections 3 is illegal because section 3 of the Drugs Act is ultra vires the Constitution. According to Mr. Gangal, section 3 of the Drugs Act infringes Articles 19(1)(a), 19(1)(g) and 301 of the Constitution of India. I would have entertained this objection and issued notice to the Attorney General at the outset. But in view of the judgment of the Supreme Court, reported in (Hamdard Dawakhana v. Union of India)1, A.I.R. 1960 S.C. 554, the challenge to vires of the Act is not well-founded, because in the above case the constitutionality of this very Act is not well-founded, because in the above case the constitutionality of this very act was challenged before the Supreme Court and the Supreme Court has upheld the validity of the Act. Therefore, I have not allowed Mr. Gangal to urge that point any further. 9. Second submission of Mr. Gangal was that the alleged instrument is only a device to improve the general body of the females. Mr. Therefore, I have not allowed Mr. Gangal to urge that point any further. 9. Second submission of Mr. Gangal was that the alleged instrument is only a device to improve the general body of the females. Mr. Gangal referred to several authors from eastern as well as western side in order to support his contention that the development of breast is ann essential part of the nursing beauty of the females. I am not referring to any of those authors as it is not necessary to considered the historical background and the poetic imagination based on the description of the breast of the females. It cannot be disputed that a pair of beautiful breast is an essential part of the body of a woman. We are not concerned in this case with the objects and purpose of developing the beauty with regard to the breast. Mr. Gangal then contended that the instrument and the advertisement following it are not offending articles within the meaning of section 3 of the Act at all. Section 3 of the Act which is relevant reads as under : "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 the drug for--- (a) ............. (b) ............. (c) ............. (d) the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder or condition specified in the Schedule or any other disease, disorder or condition (by whatsoever name called) which may be specified in the rules made under this Act." The prosecution heavily relies on the above Clauses (d) of section 3 of the Act especially the words "disease, disorder of condition specified in the Schedule. The schedule attached to Act provides the name of the disease, disorder or condition and at Serial No. 21 it is mentioned as under : "21. Form and structure of the female bust". 10. Relying on this entry at Serial No. 21 in the Schedule coupled with the provisions of section 3(d) of the Act, the learned Public Prosecutor Mr. The schedule attached to Act provides the name of the disease, disorder or condition and at Serial No. 21 it is mentioned as under : "21. Form and structure of the female bust". 10. Relying on this entry at Serial No. 21 in the Schedule coupled with the provisions of section 3(d) of the Act, the learned Public Prosecutor Mr. V.N. Damle, for the State has contended that the alleged instrument and the pamphlet dealing with this particular form are covered by the provisions of the Act and, therefore, the advertisement of this article is prohibited within the meaning of section 3 of the Act. In this connection I will first examine the purpose and scope of the provisions of section 3 of the Act, because it is the object of this Act, which is to be given due consideration while interpreting the words used in the said section. The Act was passed in the year 1954 by the Parliament to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith. The contention of the learned Advocate for the petitioner was that the publication and the advertisement of the instrument of pamphlet do not refer to any magic remedy at all and if there is no connection with the purpose of remedies alleged to possess magic qualities, the said advertisement or such article which is not used for the magic remedy will not be an offending article within the meaning of the said Act. 11. Mr. Gangal invited my attention to a judgment of Karnataka High Court reported in (State of Karnataka v. R.M.K. Shrivasubramanya Om)2, 1978 Cri.L.J. 853 wherein the provisions of section 3 of the Act were considered by the Karnataka High Court. The Division Bench of the Karnataka High Court held as under : "In a nutshell, the publication of an advertisement to amount to an offence should have reference to drug and that should have been suggested as a cure for certain ailments mentioned in Clauses (a) to (d) of section 3. Since the contravention of section 3 is made punishable the section has to be strictly construed. Since the contravention of section 3 is made punishable the section has to be strictly construed. And the prosecution must bring the act of an accused within the mischief of law by proving all the ingredients of that offence strictly." In the Karnataka High Court case it was held by the learned Judges that the alleged advertisement was not punished by the accused himself and further the impugned advertisement which was given in that particular case had no reference to magic cure, and, therefore, the Karnataka High Court held that the accused was not guilty and thus the appeal of the State was dismissed. Mr. Gangal relies on the portion of the judgment of the Karnataka High Court and states that a reference to the drug as suggested must relate to the magic remedy as provided by the preamble of the Act. In my opinion, it is true that Clauses (a) to (d) of the said section 3 refer to specific instances of ailment. Clauses (a) refers to the procurement of miscarriage in women or prevention of conception in women. Clause (b) refers to the maintenance or improvement of the capacity of human beings for sexual pleasure. Clause (c) refers to the correction of mennstrual disorder in women and Clause (d) refers to the ailment which I have quoted above. It is contended by Mr. Gangal that any disease, disorder or condition specified in the Schedule has to be read in the context of preceding ailments which are mentioned in Clauses (a) to (c) should be conjointly read in order to attract the prohibition of section 3(d) of the Act. It is necessary in this case to refer to the definition of the 'advertisement'. The definition of the word 'advertisement' is given in section 2(a) as under : "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, aloud or smoke." 12. It is also necessary in this case to refer to the definition of a 'drug' given in section 2(b) of the Act, which reads as under : "2. (b) 'drug' includes--- (i) .............. (ii) ............. It is also necessary in this case to refer to the definition of a 'drug' given in section 2(b) of the Act, which reads as under : "2. (b) 'drug' includes--- (i) .............. (ii) ............. (iii) any article other than food, intended to affect influence in any way the structure or any organic function of the body of human beings or animals." Relying on this sub-clause (iii) of Clause (b) of section 2 of the Act, it is contended by the learned Public Prosecutor for the State that the definition of 'advertisement' as found in section 2(a) of the Act does not warrant any such proposition that the alleged article which is advertised must have reference to any such drug, which must provide for some magic remedy. 13. Here, the definition of 'magic remedy' is also necessary and material in this respect. The words 'magic remedy' are defined in Clause (c) of section 2 of the Act, which runs as under : "2(c)'magic remedy' includes a talisman, mantra, kavacha, and any other charm of any kind which is alleged to possess miraculous power 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." Now, the wording of the definition of 'advertisement' while defining the word 'drug' has used four categories. Section 2(b) defines the word 'drug' which says that 'drug' includes (i) a medicine, (ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment etc. (iii) any article, other than food and (iv) any article intended for use as component of any medicine, substance or article referred to in sub-clauses (i), (ii) and (iii). Different terminology in using the words medicine as given in sub-clause (i) and any substance as mentioned in sub-clause (ii) and using the words any article other than food quoted in sub-clause (iii) and kind of any article mentioned in sub-clause (iv) has to be given some meaning and if that meaning is to be given sub-clause (iv) of Clause (b) of section 2 of the Act is very instructive in this regard. Clause (b)(iv) of section 2 defines as follows : "2(b)(iv) : any article intended for use as a component of any medicine, substance or article, referred to in sub-clauses (i), (ii) and (iii)." It is noticeable here that the word 'article' in Clause (b)(iv) has been given widest meaning and it has been connected with the use of medicine, substance or article as used in the sub-clauses (i) to (iii) of Clause (b) of section 2 of the Act. If the words 'any article' included in sub-clause (iv) has got a reference to sub-clause (i) to (iii), I do not find any justification as to why the word 'article' used in sub-clause (iv) should not have the same meaning. If uniform meaning is given to the word 'article, I think that the drug as defined in section 2(b) of the Act must necessarily include an article, which must have a reference to certain ailments, which are described in section 3 of the Act. 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 section 2(b)(ii) of the Act. The expression the structure or any organic function of the body of human beings or animals used in sub-clause (ii) of Clause (b) of section 2 of the Act along with the 'article' came for interpretation before the Supreme Court and the learned Public Prosecutor has invited my attention to the judgment of the Supreme Court reported in (Jaffar Md. v. State of West Bengal)3, A.I.R. 1976 Supreme Court 171. The learned Public Prosecutor has heavily relied on this judgment of the Supreme Court in support of his contention that the instrument and the pamphlet will answer the expression of Clause (iii) of Clause (b) of section 2 of the Act, therefore, in view of the above judgment of the Supreme Court the 'drug' includes the impugned article in this case and on the basis of the ratio laid down in the above case, it was contended that the alleged instrument and the pamphlet are the articles within the meaning of section 2(b)(iii) and once that meaning is accepted, the prosecution is well founded. 14. 14. The Supreme Court in the above case was dealing with the advertisement under the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and the advertisement in that case was as follows : "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........" It was this advertisement which was before the Supreme Court and the argument in that case which was advanced is discussed by the Supreme Court in paragraph 3 of its judgment. It was held by the Supreme Court as under : "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 section 2(b)(iii). The so called "machines of science" or of "electric treatment" whose magically curative properties were advertised in a newspaper by the appellant to cure nervous diseases, and designed according to advertisement to confer on mankind the blessings of new life and new vigour, are 'articles' intended to influence the organic function of the human body. 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 Supreme Court has further observed that the very claim of the appellant in that case was that by the use of machines he could cure nervous diseases amongst other ailments and that machine is an 'article' requires no great learning either to expound or to understand. Relying on these words of the advertisement, that is, magically curative property as advertised by the appellant in the said case, the Supreme Court referred to the statement and objects of the Act and held that the said advertisement quoted above was likely to trap the ignorant and the unwary. The main argument which was advanced in the said case before the Supreme Court was that the machines of science are 'substance' intended to be used in diagnosis, cure or treatment of diseases in human beings were not said to be the article within the meaning of section 2(b)(iii) of the Act. The main argument which was advanced in the said case before the Supreme Court was that the machines of science are 'substance' intended to be used in diagnosis, cure or treatment of diseases in human beings were not said to be the article within the meaning of section 2(b)(iii) of the Act. And it is against this background that the Supreme Court held that machines of science is an article within the meaning of section 2(b)(iii) of the Act and, therefore, in my opinion the observation of the Supreme Court will have to be read in the context of that advertisement and it is not applicable to the facts of the present case. 15. The learned Public Prosecutor invited my attention to a paragraph in Exhibit 'A' and contended first of all that the whole reading of contents of the pamphlet Exhibit 'A' by way of advertisement of this pamphlet amounts to an offence. In my opinion, I am unable to accept this contention. A fair reading of the whole contents of the pamphlet can never amount to an objectionable matter. Then the learned Public Prosecutor specifically invited my attention to paragraph 8 of Exhibit 'A' which is as follows : "It is every woman's birthright to possess a pair of beautiful breasts. Against this background of a long expressed and unfulfilled desire for a remedy for such a deficiency felt by innumerable women and girls that 'Breast Beauty Stores' introduces a new and dependable 'Breast Beauty Bust Developer.' It is only marketed after having been subjected to rigorous tests and long research and is an advance in any appliance in the same field. With proper, careful and patient use over the period it should leave every under developed or insufficiently developed girl or woman satisfied with the intended result." Relying on this paragraph the words 'new and dependable 'Breast Beauty Bust Developer' and linking them and connecting with the advertisement, which is also in the same words as quoted in the judgment of the Supreme Court using the words "New Life, New Vigour New Spirit, New Wave", it was strongly contended by the learned Public Prosecutor that this is not a general statement of any particular theory or the above statement is not a summary of any general thought, but it is a direct invitation to the customers that a new hope to improve their development of breasts, inasmuch as this is an advertisement of marketable article. Relying on this specific paragraph it was also contended that this is an article which offends in terms of ltem No. 21 of the schedule and, therefore, the accused is liable to answer. 16. In this connection it is useful to refer to the words used in Entry No. 21 of the schedule 'From and structure of the female bust.' The schedule before giving item numbers mentions three words 'disease' disorder or condition.' There are as many as 54 entries in this schedule. With the help of the learned Advocate, I had gone through the ltem No. 21 and other entries and they have some reference of every kind of ailments and disease. It is desirable to note that the person of a female is specially unique in one respect, as compared to man. She is endowed with breasts. The structure and form of the breasts are matter of special form of beauty as for as females are concerned. In this connection it is useful to refer to the definition of 'breasts', which is given in the dictionary "S is for Sex" by Robert Chartham. It reads as under : "Breasts: The breasts are cushons of fat and tissue---------surrounding the mammary glands. The biological purpose of the breasts is to provide nourishment for the very young baby. In the girl, the breasts begin to develop during puberty, and this development is one of the first signs that sexual development has begun. It reads as under : "Breasts: The breasts are cushons of fat and tissue---------surrounding the mammary glands. The biological purpose of the breasts is to provide nourishment for the very young baby. In the girl, the breasts begin to develop during puberty, and this development is one of the first signs that sexual development has begun. According to the action of the glands producing the harmones that control sexual activity, which work at varying rates in different people, the breasts may develop slowly or quickly, and may be over or under-developed. In the male, the breasts are normally unaffected by puberty and remain flat all his life. However, in rare cases the male breasts may take on feminine contours during the early years of puberty.... The girl's breasts are connected with her sexual system and on this account they are sensitive or erogenous zones." It can be said that the glands are inseparable parts of breasts and the development of the breasts is essential. They have also great sexual attraction for the best men and the development of the breast during adolescence is psychologically important to a girl's reaction to her sexuality. Suckling, as breast-feeding is some times called, takes place when the baby is fed from the mother's breasts. Most authorities had agreed that the mother's milk, provided it is of normal good quality, cannot be improved upon as a food at least during the baby's first four or five months. In view of this position if any ground is made for the development of breasts on the lines on which it is done by the advertisements I do not think that such an advertisement would be an offending article within the meaning of section 3 of the Act. 17. The contents of the above Exhibit 'A' advertised and published does not relate to any of the so-called magic cures. I am conscious that section 3 of the Act does not refer to any magic cure. But in view of the aims and objects of the Act mentioned in preamble, I am inclined to think that the main purpose of the Act is to prohibit such magic remedies and so restrictions will have to be made on such advertisements containing reference to magic cure. Remedies provided for health, sociability or developing beauty are not hit by the section. Remedies provided for health, sociability or developing beauty are not hit by the section. The remedies referred for immediate and forthwith cure giving hopes to the customers in a magic fashion are prohibited. Therefore, the contention of the learned Public Prosecutor that a particular paragraph in Exhibit 'A' in regard to 'Breasts Beauty Bust Development' is objectionable within the meaning of the Act, is rejected. 18. The next submission which was made by Mr. Gangal, the learned Advocate for the petitioner-accused is that assuming that this article is an offending article and the contents of Exh. A which are advertised amount to advertisement within the meaning of section 3, his client is entitled to the benefit of exemption given under section 14(b) of the Act. Section 14(b) of the Act is relevant, which reads as under : "14(b) :--- Nothing in this Act apply to--- (a)............ (b) any treatise or book dealing with any of the matters specified in section 3 from a bona fide scientific or social stand point." Relying on this Clause (b) of section 14 of the Act, it was submitted by Mr. Gangal that the contents of Exhibit A are safe because they are expressed in words which can be said to be the expression of bona fide scientific or social stand point. It is not necessary for me to discuss the contents and examine this point. I do not think that these contents of Exhibit A can be said to be an expression of scientific or social stand point. The emphasis on this Exhibit 'A' is purely personal in the sense that it is particular marketable and product and as rightly contended by the Public Prosecutor it cannot be said that it is dealing with new point which is of general scientific or social interest. The contents are simpliciter of an advertisement of particular product and that too this product is produced by the accused himself. It is not possible to say that these contents of Exh. 'A' though there are references to certain authors and description given by them can be said to be an expression of social or scientific stand point. There is no comparison with the other samples or products to show that it is taking a general view of the matter. Therefore, this argument that this pamphlet is dealing with social or scientific stand point is not acceptable to me. 19. There is no comparison with the other samples or products to show that it is taking a general view of the matter. Therefore, this argument that this pamphlet is dealing with social or scientific stand point is not acceptable to me. 19. The word 'article' used in section 2(b)(iii) of the Act, in my opinion must have a reference to certain ailments as provided by Clauses (i) and (ii) of Clause (b) of section 2 of the Act in order to give full meaning of article especially in view of Clause (iv) of Clause (b) of section 2 of the Act. I think that the proper reading of the word 'article' must mean that the drug as defined in section 2 of the Act must have necessary reference to curative i.e. it must have reference to remedial aspect of the ailment and in this connection I propose to follow the judgment of the Karnataka High Court reported in 1978 Cri.L.J. 853, where the definition of section 3 of the Act has been considered and the Karnataka High Court has held that the advertisement as defined in section 2(a) of the Act must have a reference to a drug, which has been suggested as a cure for the situation mentioned in Clauses (i), (ii) and (iii) of Clause (b) of section 2 of the Act. 20. In this case the said advertisement and the instrument have no reference to any such ailments at all. Therefore, in my opinion, the conviction of the accused is not justified. Both the courts were in error in going by the definition and the words used in the Entry No. 21 of the Schedule and relying on the statement of the prosecution witness. I am also disposed to think that the Act was passed by the Parliamentary in 1952 and we are living in 1982. The things and surroundings have changed so fast that the very concept of the objectionable advertisement will be to be re-examined in the new environment of permissive culture emerging around us. It would be hazardous to regard such advertisement as objectionable. The things and surroundings have changed so fast that the very concept of the objectionable advertisement will be to be re-examined in the new environment of permissive culture emerging around us. It would be hazardous to regard such advertisement as objectionable. I may also refer that if Chhayagit on television can be legitimately be a subject of detailed attention, I do not find any justification whatsoever to take any rigid view of the matter and the, therefore, while interpreting the word 'article' in its widest amplitude and especially relying on the provisions of section 2(a), (b) and (c) of the Act, I hold that the impugned pamphlet and the instrument cannot be said to be the objectionable article or the drug, within the meaning of the Act and, therefore, the conviction of the petitioner accused is liable to be set aside. 21. In the result, the petition is allowed. The rule is made absolute. The order of conviction and sentence passed by the learned Magistrate, 28th Court Esplanade, Bombay, dated November 29, 1978 which was confirmed by the Additional Sessions Judge, Greater Bombay by his order dated January 8, 1981 is set aside. The accused is acquitted of the charge with which she was charged. Fine, if paid, be refunded to the accused-petitioner. -----