# DR. YASH PAL SAHi v. DELHI ADMINISTRATION

- **Citation:** [1964] 5 S.C.R. 582
- **Court:** Supreme Court of India
- **Decided:** 1962-02-09
- **Case number:** Criminal Appeal No. 157 of 1962
- **Bench:** P.B. Gajendragadkar, K.C. Das Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-yash-pal-sahi-v-delhi-administration-2996
- **Pages:** 9

## Headnote

The Drugs and Magic Remedies (Objectionable Advertisement)
Act, 1954 ss. 2(d), 3, 7, l4(l)(c)-"Taking any part in the publication
of any advertisement"-Meaning of-If includes sending within
the territory of India-Burden of proof-Conditions to be satisfied
to fall under s. 14(l)(c).
·
The appellant is the proprietor of a Homoeopathic hospital
in New Delhi. He runs a journal called the "Homoeopathic Doctor'.'.
-
t
-
-
-
•..
5 S:C.R.
SUPREME COURT REPORTS
583
On the request of one Misri Singh the appellant sent copies of the
said journal and a list of medicines by V.P.P. 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 s. 3 read with s. 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 s. 3 is subject
to the other provisions of the Act and therefore it is subject to
s. 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 ot "taking any part in the publication
of any advertisement" contained ins. 2(d} of the Act is wide enough
to include the printing of the advertisement and the sending of
it in any part oflndia. 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 s. 7.
(ii) Section 3 is subject to the provisions of s. 14 and if the
appellant's case falls under s. 14, s. 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
s. 14(l){c). 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 s. 14{1)(c).

## Text

582
SUPREME COURT REPORTS
[1964]
1963
It appears that cl. 3(2) may have been deliberately
worded so as to raise a limited presumption in order to
Manipur
exclude cases of cultivators who may on occasions
Administration be in possession of more than 100 mds. of foodgrains
v.
grown in their fields. If a cultivator produces more
M. Nila
than 100 mds. in his fields or otherwise comes into
Chandra Singh possession of such quantity of foodgrains once in a
year and casually sells them or stores them, the Order
Gajendragadkar apparently did not want to make such possession,
J. ·
sale or storage liable to be punished under cl. 3(1)
read with s. 7 of the Essenti!J,l Commodities Act.
However that may be, having regard to the words
used in cl. 3(2), we are unable to hold that the Judicial
Commissioner was wrong in coming to the conclusion
that cl. 3(2) by itself would not sustain the prosecution
case that the respondent is a dealer under cl. 3(1);
and that inevitably means that the charge under s. 7
of the Essential Commodities Act is not proved against
him. That being so, we must hold that the order of
acquittal passed by the Judicial Commissioner is
right.
1963
November 29
The appeal accordingly fails and is dismissed.
Appeal dismissed.
DR. YASH PAL SAHi
v.
DELHI ADMINISTRATION
(P.B. GAJENDRAGADKAR AND K.C. DAS GUPTA, JJ.)
The Drugs and Magic Remedies (Objectionable Advertisement)
Act, 1954 ss. 2(d), 3, 7, l4(l)(c)-"Taking any part in the publication
of any advertisement"-Meaning of-If includes sending within
the territory of India-Burden of proof-Conditions to be satisfied
to fall under s. 14(l)(c).
·
The appellant is the proprietor of a Homoeopathic hospital
in New Delhi. He runs a journal called the "Homoeopathic Doctor'.'.
-
t
-
-
-
•..
5 S:C.R.
SUPREME COURT REPORTS
583
On the request of one Misri Singh the appellant sent copies of the
said journal and a list of medicines by V.P.P. 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 s. 3 read with s. 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 s. 3 is subject
to the other provisions of the Act and therefore it is subject to
s. 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 ot "taking any part in the publication
of any advertisement" contained ins. 2(d} of the Act is wide enough
to include the printing of the advertisement and the sending of
it in any part oflndia. 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 s. 7.
(ii) Section 3 is subject to the provisions of s. 14 and if the
appellant's case falls under s. 14, s. 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
s. 14(l){c). 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 s. 14{1)(c).
CRIMINAL APPELLATE JURISDICTION:
Criminal
Appeal No. 157 of 1962.
Appeal by special leave from the judgment and
order dated February 9, 1962, of the
Punjab
1963
Dr. Yash P,11
Sahi
v.
Delhi
Administration
l
1963
584
SUPREME COURT REPORTS
[1964]
High Court (Circuit Bench) at Delhi in Criminal ·
Revision Application No. 281-D of 1961.
Dr. Yash Pal
Sahi
J.P. Goyal, for the appellant.
v.
B.K. Khanna and R.N. Sachthey, for the responDelhi
dent.
Administration
November 29, 1963. The Judgment of the Court
G . -d- dk was delivered by
·
a1en raga
ar
J.
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 V.P.P.
Thereupon, a packet containing Exhibits P-1 to P-6
which are copies of the "Homoeopathic Doctor"
and Ex. 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 s. 3 read with s. 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. Arrant Parkash, with whom
ii-!'
5 S.C.R.
SUPREME COURT REPORTS
585
\
• -
Misri Singh works as a clerk. The appellant was
1963
questioned by the learned Magistrate, who tried the
case, and he admitted that Exs. P-1 to P-7 had been Dr. Yash Pal
sent to Misri Singh.
On these facts, the learned
Sahi
Magistrate held that the appellant was guilty of
v.
the offence charged and sentenced him to pay a fine
Delhi
of Rs. 1,000. The appellant challenged the correct- Administration
ness of this order by an appeal before the Additional
. -
.
Sessions Judge at New Delhi. The learned additional Ga;endragadkai
Sessions Judge considered the evidence, and confirmed
1·
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 Ex. 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 Ex. P-7 to Misri Singh, his
conviction was held to be justified under s. 3 read
with s. 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 s. 3 read with s. 7 the effect
of the provisions contained in s. 14(l)(c) 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
I
1963
Dr. Yash Pal
Sa hi
v.
Delhi
Administration
Gajendragadkar
J.
586
SUPREME COURT REPORTS
[1964]
the case of the appellant falls under s. 14 (1 )( c) 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 2( d) 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 s. (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 s. 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-
-
..
,...;
5 S.C.R.
SUPREME COURT REPORTS
587
l c) the correction of menstrual disorder in
women; or
(d) the 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."
lt has been found and cannot be now disputed that
the list of advertisements (Ex. P-7) contains medicines
which fall within the scope of ss. 3(c) 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-
(a) in the case of a first conviction, with imprisonment which may extend to six months, or with
fine, or both;
(b) in 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 s. 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 subsequent offences.
Mr. Goyal contends that in considering the
question as to whether the appellant is guilty under
s. 3 and s. 7 read together it is necessary to consider
whether this case falls under s. 14 or not. He argues
that s. 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 s. 14, s. 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 s. 14 (I)( c), which provides that:
1963
Dr. Yash Pal
Sa hi
Y.
Delhi
Administration
Gajendragadkar
J.
1963
Dr. Yash Pal
Sa hi
v.
Delhi
Administration
Gajendragadkar
J.
588
SUPREME COURT REPORTS
"Nothing in this Act shall apply toany 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 s. 14(l)(c) 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 s. 14(l)(c). 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-
r
5 S.C.R.
SUPREME COURT REPORTS
589
section (1) of section 14, shall be sent by post
1963
to a registered medical practitioner or to a wholesale or retail chemist".
Dr. Yash Pal
Sa hi
The Rule further adds that "Such documents shall
v
bear at the top, printed in indelible ink in a conspi-
. Deihi
cuous manner, the words 'For the use only of registered Administration
medical practitioners or a hospital or a laboratory'."
It is common ground that the list sent by the appellant Gajendragadkar
to Misri Singh does bear printed in indelible ink the
J.
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 s. 14(1 )( c ). 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
· s. 14 (l)(c). 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 s. 14 (l)(c)
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 s. 14(l)(c) 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 s. 14(1 )( c ).
Mr. Goyal has also invited our attention to the
fact that this was a case in which the appellant was
virtually tempted to send Ex. P-7 to Misri Singh,
and he argues that as soon as Mr. Misra Singh found
that that list 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
SUPREME COURT REPORTS
.
II!
[1964)
·~
...
1963
argument, in our opinion, is not well-conceived.
The whole object of the Act is to save ignorant people
Dr. Yash Pal from being duped to purchase medicines just because
Sahi
their effect is advertised in eloquent terms. That
v ·
is why the Act provides that lists of medicines describDelhi
ing the qualities and attributes of different medicines
Administration should be sent only to registered medical practitioners
--
or hospitals. That being so, it would not be a fair
Gqjendragadkar argument to urge that even though the appellant
J.
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. 1,000 fine imposed on the appellant by the
learned trial Magistrate to Rs. 500 and that we
think is a fair order to make.
1963
December 2
In the result, the appeal fails, and is dismissed.
Appeal dismissed.
COMMISSIONER OF INCOME-TAX, BOMBAY
v.
JAMES ANDERSON
(A.K. SARKAR, M. HJDAYATULLAH AND J.C. SHAH, JJ.)
Income tax Act (XI of 1922), s. 24B-Scope of-Death of Shareholder-Liability of legal representative-Extent of.
G, a holder of certain shares of a private limited company
made a will disposing of his estate and died on May 13, 1945.
The respondent obtained Letters of Administration "durante
absentia" to the estate, and in pursuance of an agreement between
himself, the company and one M to sell the shares to M, handed
over the share certificates to M against payment of the price. M
failed to present the share certificates for registration and the name
i
,.
H .
'
•
.....
. ,
•