ZAFFAR MOHAMMAD @ Z. M. SARKAR versus THE STATE OF WEST BENGAL

CHANDRACHUD, J. The appellant, who is a homoeopathic titioner, runs a dispensary at Harrison Road, Calcutta. In the of a Hindi newspaper, "Sanmarg", dated September 14, 1967 the following advertisement published :

p. 783, margin A

"New Life, New Vigour, New Spirit, New Wave. you want a cure, see today well known world-famous experienced registered Physician. Special diseases such 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 e\e.ctric treatment

p. 783, margin A

and ·are cured permanently ....... " In behalf of this advertisement, the appellant was prosecuted section 7 read with section 3 of the Drugs and Magic Remedies (Objectionable Advertisements Act 21 of 1954. The Presidency Magistrate, 8th Court, Calcutta convicted the appellant ot the aforesaid charge and sentenced him to pay a fine of Rs. The order of conviction and sentence having been confirmed High Court of Calcutta, the appellant has filed this appeal by leave.

p. 783, margin A

The Drugs and Magic Remedies (Objectionable Advertisements) Act provides by section 3, in so far as relevant, that no person take part in the publication of any advertisement "referring to drug in terms which suggest or are calculated to lead to the use that drug" for the maintenance or improvement of the capacity human beings for sexual pleasure or the diagnosis, cure or treatment. of any disease or condition specified in the Sechedule to the Act. 14 of the Schedule refers to "Disorders of the nervous system''. Section 7 of the Act makes it penal to contravene any of the sions of the Act.

p. 783, margin A

The contention of the appellant was and before us is that particular advertisement does not refer to any "drug" and therefore the provisions of the Act are not attracted. For appreciating this contention,· it is necessary to refer to section 2(b) of the Act runs thus:

p. 783, margin A

"2. In this Act, unless the context otherwise requires,- (a) * * * * (b) "drug" includes- (i) - a medicine for the internal or external use

p. 783, margin A

human beings or animals; (ii) any substance intended to be used for or the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or

p. 783, margin A

animals; (iii) any article, other than food, intended to affect . or influence in any way the structure or ::iny 7 84 organic function of the body of human beings

pp. 783–784, margin A

or animals; (iv) any article intended for use as a component of any medicine, substance or article, referred to

p. 784

in sub-clauses (i), (ii) and (iii)." The learned Magistrate as well as the High Court have taken· the view that the advertisement in question refers to a drug as defined by section 2(b) (ii) above as "machines of science" are a "substance" intended to be used in the diagnosis, cure or treatment of diseases in human beings. We do not propose to examine the correctness of this view because it seems to us clear that, in any event, the impugned part of the advertisement refers to a drug as defined by :;-:;ction 2 (b) (iii). 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 that provision. The so-called "machines of science" or of "electric treatment" whose magil'.ally curative properties were advertised by the appellant are articles intended to influence the organic function of the human body. Indeed, the very claim of the appellant is that by the use of these machines he could cure nervous diseases amongst other ailments. That a machine is an "article" requires no great Teaming either to expound or to understand. 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· 'Shorter Oxford English Dictionary' (Ed. 1964, Vol. I, p. 102) says that 'article' means. inter alia, "a piece of goods or property". Webster's 'New World Dictionary' defines an 'article' as a "commodity" and 'commodity' as "any useful thing" or "any article of commerce". (See Ed. 1962 pp. 83 and 295). Putting it simply, a "machine" is a "thing" and is therefore an "article". Law may not all be commonsense and logic may not be the life of law but commonsense is not taboo in law courts. A machine is after all intended to be and is conceived as a useful thing and is therefore an "article".

p. 784

The Statement of Objects and Reasons to the Act says that many an advertisement causes the ignorant and the unwary "to resort to quacks who indulge in such advertisements for treatments which cause great harm". The appellant may not be a quack, so will be assume, but his "machines of science" designed to confer on mankind the blessings of "New Life, New Vigour, New Spirit, New Wave" are most likely to trap the ignorant and the unwary. The articles of commerce which he has benefully advertised must, as far as po~sible and without doing violence to the language of the Act, be broui;.it within the mischief of the Act. It does no violence either to commonsense or to rules of interpretation to say that a machine is an "article".

p. 784, margin E

In the result, we confirm the judgment. of the High Court, though for a different reason, and dismiss this appeal. P.B.R. Appeal dismissed.

p. 784, margin H