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2002 DIGILAW 563 (CAL)

Prabir Ghosh v. Jaya Ganguly

2002-08-22

Gorachand De

body2002
JUDGMENT Gorachand De, J. By this application under section 401 read with section 482 of the Code of Criminal Procedure Sri Prabir Ghosh, the complainant in Complaint Case No. 3500 of 2001 (TR 334/2001) has challenged the order of dropping of the complaint case and discharge of the accused in terms of the order dated 5.10.2001 passed by the learned Metropolitan Magistrate, 15th Court, Calcutta. 2. From the materials on record it transpires that the complainant described himself as the General Secretary of Bharatiya Bigyan-O-Yukti Badi Samity and filed a complaint before the learned Magistrate alleging that O. P. No.1 Smt. Jaya Ganguly claiming herself to be "Divine Mother" with supernatural power gave advertisement in different newspapers claiming that she has cured many patients suffering from cancer, paralysis and many incurable diseases and also in a Television talk "Jukti Tokko" she claimed that she had cured four cancer patients with the prescription of stones and threw challenge to the public to bring to her any number of cancer patients for complete cure with her prescription and spiritual power. It has been contended in the complaint that on scientific research it has been found that cancer was not curable in the manner indicated in the advertisement and that treatment as prescribed cannot cure cancer nor can it kill bacteria and virus. So it is alleged that the said advertisement was made with a view to call patients in her chamber for wrongful gain and for wrongful loss to the persons and thereby committed offence under sections 4 and 5 of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and accordingly, punishable under section 7 of the said Act read with section 420 of the Indian Penal Code. 3. The learned Magistrate after initial examination was pleased to take cognizance of the offence under section 7 of Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and thereafter issued process against O. P. No. 1 under section 204 of the Code of Criminal Procedure. But subsequently O. P. No.1 entered appearance before the Id. Magistrate and a petitioner was filed for dropping the case. 4. The learned Magistrate after hearing the complainant and the Id. counsel for the O. P. No.1 passed the impugned order dated 5.10. But subsequently O. P. No.1 entered appearance before the Id. Magistrate and a petitioner was filed for dropping the case. 4. The learned Magistrate after hearing the complainant and the Id. counsel for the O. P. No.1 passed the impugned order dated 5.10. 2001 coming to the conclusion that no offence was committed by the present petitioner and accordingly thought it fit to drop the case and to discharge the accused person. 5. In course of hearing Mr. B. R. Bhattacherjee, Id. counsel appearing on behalf of the complainant made a forceful argument alleging that the advertisement as published in the daily newspapers is sufficient to indicate that the O. P. No.1 issued those advertisements for the purpose of creating impression upon the general public that by spiritual power and also with the aid of stone, Talisman (kabach) and by resorting to other supernatural power patients can be cured though, in fact, such advertisements are misleading advertisement within the meaning of section 4 of the Act and such advertisement is also prohibited under section 3 of the Act. It is also argued that in the Television discussion the O. P. No.1 made a claim that she cured four cancer patients by her prescription and thereby again misled public within the meaning of section 4 of the Act. It is also contended that in the same Television show call was given to the public to send as many as cancer patients to the O. P. No.1 for such cure. So Mr. B. R. Bhattacharjee analysing the provision of the Act contended that it was undoubtedly an offence punishable under section 7 of the Act. 6. Mr. Sekher Basu, ld. Counsel appearing on behalf of O. P. No.1 however contended that the alleged advertisement in the newspaper is neither prohibited under section 3 of the Act nor there is any prohibition under section 4 or section 5 of the Act in publication of such advertisement. Mr. Basu further argued that the discussion in the Television programme "Jukti Tokko" was in connection with the topic "Jyotish Shastra Ki Bigyan ?" (Is Astrology a Science ?). In course of such discussion O. P. No.1 expressed her success as regards cure of the cancer patients. It is contended that it was neither an advertisement nor such discussion was prohibited under section 4 or under section 5 of the Act. 7. Mr. In course of such discussion O. P. No.1 expressed her success as regards cure of the cancer patients. It is contended that it was neither an advertisement nor such discussion was prohibited under section 4 or under section 5 of the Act. 7. Mr. Basu, further contended that the advertisement appearing in the daily newspapers is under the heading 'Jyotish' (means Astrology) and it is indicated that O. P. No. 1 is imbibed with supernatural power of Goddess Manasha and on the basis of "Tantra and Bashikaran" she can give guaranteed solution in respect of any problem in life, namely, increase of knowledge, disease, despondency, obstacles in works, children, domestic quarrel, problem in love affairs, marriage, property, education, business improvement and not getting reliefs in court in time. So all those items are problems of life and O. P. No.1 by such advertisement offered guaranteed solution and it never indicated that she was doing any act prohibited under section 3 or section 4 or section 5 of the Act. So Mr. Basu argued that the ld. Magistrate rightly dropped the proceeding finding out that no case was made out specially when there was evidence to show that the complainant was not in any way affected on publication of the advertisement. 8. The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 came into force on 30th April, 1954 and Preamble of the Act is as follows: "An act to control the advertisement 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." 9. Under section 2(c) of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 magic remedy has been defined as follows:- "Magic Remedy" Includes a talismen mantra kavacha and any other charm of any kind which is alleged to possess miraculous powers for or in the diagnosis, cure, mitigation treatment or prevention of any disease in human beings or function of the body of human beings or animals'. 10. 10. Under section 5 of the Act there is provision of advertisement of magic remedy for treatment of certain diseases and disorders and it runs as follows: "N0 person carrying on or purporting to carryon the profession of administering magic remedies shall take any part in the publication of any advertisement referring to any magic remedy which directly or indirectly claims to be efficacious for any of the purpose specified in section 3." Thus the publication of any advertisement referring to any magic remedy for the purpose specified under section 3 of the Act has been prohibited. So let it be construed what magic remedy are prohibited under section 3 of the Act. Section 3 of the Act is reproduced below: "Prohibition of advertisement of certain drugs for treatment of certain diseases and disorders-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- a) the procurement of miscarriage in women or prevention of conception in women, or b) the maintenance of improvements of the capacity of human beings for sexual pleasure, or c) the correction of menstrual disorder in women, or d) the diagnosis, cure, mitigation, treatment of 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: Provided that no such rule shall be made except- (i) in respect of any disease, disorder or condition which requires timely treatment in consultation with a registered medical practitioner or for which there are normally no accepted remedies, and (ii) after consultation with the Drugs Technical Advisory Board constituted under the Drugs and Cosmetics Act, 1940 (23 of 1940) and, if the Central Government consideres necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani Systems of Medicines as that Government deem fit." So, it is sufficiently clear that in the alleged advertisement in newspapers there is no indication of use of any drug for the purposes as enumerated under section 3 of the Act. It is simply indicated in the advertisement that the problems enumerated therein can surprisingly be solved. It is simply indicated in the advertisement that the problems enumerated therein can surprisingly be solved. Such advertisement is published under the heading "Jyotish" (means astrology) indicating that it would be supernatural or spiritual or astrological solution. Spiritual, supernatural or astrological activities are not prohibited in this country, nor taking avocation of Astrologer is an offence and accordingly, publication of advertisement of Astrology or of an astrologer cannot be construed to be an offence under the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 or under any of the statute. So, after a due consideration of the facts and circumstances of this case, I hold and conclude that publication of an advertisement in the manner done in this case cannot be construed to be an offence punishable under section 7 of the Act. 11. As regards discussion in the Television it is rightly pointed out by Mr. Basu that it was not an advertisement but a discussion on a topic for finding out whether astrology had any scientific sanction. This particular topic is not only well discussed in ages, but the Scientists, Philosophers, Scholars and Thinkers have also been working in the field for finding out a proper answer. But until now there is no acceptable solution on this topic and still now it if; q questionable issue. Hence, it is too early to make any comment on the supremacy of Science over Astrology, or to conclude that Astrology has no basis or effect. Moreover, it would be unsafe for the present to call supernatural power or a spiritual power to be ineffective though it cannot be proved or established with scientific precision. 12. Fight between Science and religion is nothing but a man-made quarrel between material and spirialitual world. The existence of a superior, supernatural or spiritual power uptil now is beyond the material knowledge and wisdom. The existence of God or His surprising power may be believed or disbelieved. The quest for such a power will remain amongst the thinkers, Scientists and the spiritual leaders. But for that reason time has not come to conclude that there is no spiritual force in this country nor there is any existence of super power like God. The existence of God or His surprising power may be believed or disbelieved. The quest for such a power will remain amongst the thinkers, Scientists and the spiritual leaders. But for that reason time has not come to conclude that there is no spiritual force in this country nor there is any existence of super power like God. Similarly it is not ripe enough to conclude that spirituel power or supernatural power has got no existence and the believers of such power cannot be construed to be misled within the meaning of the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954. The main object of the Act can be found in its preamble indicated hereinabove. Its main object is to prohibit advertisement on such Drugs and Magic Remedies which can be construed as medicine or remedy for the treatment of diseases and ailments indicated under section 3 or 4 of the Act. In the present advertisement there is no element affecting section 3 or 4 or 5 of the Act. So from this stand point also the ld. Magistrate came to a just decision that the case against the present appellant was without any basis and he rightly dropped the proceeding. 13. Lastly it is also to be mentioned that the complainant appears to be a leader of a Scientific Based Organisation and he is imbibed with the scientific methods of thinking. But there is nothing in the complaint to show or indicate that he could have any grievance against the impugned Television discussion in which the allegedly spiritual power-holder claims that she had already cured four of the cancer patients. There is nothing on record to show or indicate that the appellant ever treated any patient produced before her by the complainant or she failed to give any advise for a solution. It is simply stated in the complaint that the complainant went to the present appellant on an occasion and he met her along with four persons in respect of their respective problems when she failed to render any satisfactory assistance or answer. That statement in the complaint is a vague and no date was indicated on which he met the accused and that satisfactory answer or assistance the complainant was wanting. That statement in the complaint is a vague and no date was indicated on which he met the accused and that satisfactory answer or assistance the complainant was wanting. It is a conviction of the complainant that cancer cannot be cured by Stones or Metallic substance as because this is a clinical disease, as has been opined by the Cancer Experts. On the other hand, the appellant opined in the Television discussion that cancer patients could be cured by spiritual or supernatural power. But mere opinion on a questionable topic cannot be construed to be an offence punishable under section 7 of the Act. Moreover, in the alleged advertisement in the newspapers it was never claimed that cancer can be cured by magic remedy. 14. So after a due consideration of the materials on record and the submissions made by the ld. counsels, I do not find any reason to interfere with the order passed by the learned Magistrate. The revisional application is thus rejected. 15. Let urgent certified xerox copy of this order be made available to the leaned advocates of the appearing parties, if applied for. Revisional application rejected.