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DRUGS AND MAGIC REMEDIES (OBJECTIONABLE ADVERTISEMENTS) ACT, 1954
21 of 1954
STATEMENT OF OBJECTS AND REASONS "In recent years there has been a great increase in the number of objectionable advertisements published in newspapers or magazines or otherwise relating to alleged cures for veneral diseases, sexual stimulants and alleged cures for diseases and conditions peculiar to women. These advertisements tend to cause the ignorant and the unwary to resort to self-medication with harmful drugs and appliances, or to resort to quacks who indulge in such advertisements for treatments which cause great harm. It is necessary in the public interest to put a stop to such undesirable advertisements. This Bill is intended for this purpose. 2, It is considered that the necessary legislation should be enacted by the Centre in order to deal with this menance on uniform lines. Such legislation is relatable to the Entry "Drugs and Poisons" in the Concurrent List in the
Seventh Schedule to the Constitution of Indiain so far as undesirable advertisements relating to drugs are concerned and to the Entry "Legal, Medical and other Professions" in the same List in regard to similar advertisements of magic remedies by persons who practise the profession of administering such remedies. The Bill when enacted will supersede State laws where they exist to the extent to which they are repugnant to the Central law" - Gazette of India, 1953, Extra., Pt. II,Sec. 2, p. 1057. 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. Be it enacted by Parliament as follows :- Act extended to Sikkim with modifications w.e.f. 1-11-89 - See Gaz. of Ind., 20-10-88 and 26-10-89, Pt. II, S. 3(ii), Ext., p. 3 (No. 533) and p. 2 (No. 691). The Act has been extended to the Union territory of- (1) Dadra and Nagar Haveli by Regn. 6 of 1963 (1-7-1965); (2) Pondicherry by Regn. 7 of 1963 (1-10-1963); and (3) Goa, Daman and Diu by Regn. 11 of 1963 (1-7-1965). (Goa is now a State).
SECTION 01: SHORT TITLE, EXTENT AND COMMENCEMENT
(1) This Act may be calledthe Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954-.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to persons domiciled in the territories to which this Act extends who are outside the said territories.
(3) It shall come into force on such date1as the Central Government may, by notification in the Official Gazette, appoint.
SECTION 02: DEFINITIONS
- In this Act, unless the context otherwise requires,-
(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, sound or smoke;
(b) "drug" includes -
(i) a medicine for the internal or external use of human beings or animals;
(ii) any substance intended to be used for or in the diagnosis, cure, mitigation, treatment or prevention of disease in human beings or animals;
(iii) any article, other than food, intended to affect or influence in any way the structure or any organic function of the body of human beings or animals;
(iv) any article intended for use as a component of any medicine, substance or article, referred to in sub - clauses (i), (ii) and (iii).
(c) "Magic remedy" includes a talisman, 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 animals or for affecting or influencing in any way the structure or any organic function of the body of human beings or animals;
2[(cc) "registered medical practitioner" means any person,-
(i) who holds a qualification granted by an authority specified in, or notified under,section 3 of the Indian Medical Degrees Act, 1916 , or specified in the Schedules to theIndian Medical Council Act, 1956 ; or
(ii) who is entitled to be registered as a medical practitioner under any law for the time being in force in any State to which this Act extends relating to the registration of medical practitioners;]
(d) "taking any part in the publication of any advertisement" includes -
(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;3[* * * * * *]
SECTION 03: 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 maintennace or improvement of the capacity of human beings for sexual pleasure; or
(c) the correction of menstrual disorder in women; or
4[(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: 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 theDrugs and Cosmetics Act, 1940-and, if the Central Government considers necessary, with such other persons having special knowledge or practical experience in respect of Ayurvedic or Unani systems of medicines as that Government deems fit.]
SECTION 04: PROHIBITION OF MISLEADING ADVERTISEMENTS RELATING TO DRUGS
- Subject to the provisions of this Act, no person shall take any part in the publication of any advertisement relating to a drug if the advertisement contains any matter which -
(a) directly or indirectly gives a false impression regarding true character of the drug; or
(b) makes a false claim for the drug; or
(c) is otherwise false or misleading in any material particular.
SECTION 05: PROHIBITION OF ADVERTISEMENT OF MAGIC REMEDIES FOR TREATMENT OF CERTAIN DISEASES AND DISORDERS
- No person carrying on or purporting to carry on 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 purposes specified insection 3-
SECTION 06: PROHIBITION OF IMPORT INTO, AND EXPORT FROM, INDIA OF CERTAIN ADVERTISEMENTS
- No person shall import into, or export from, the territories to which this Act extends any document containing an advertisement of the nature referred to insection 3-, orsection 4-, orsection 5-, and any documents containing any such advertisements shall be deemed to be goods of which the import or export has been prohibited underSection 19 of the Sea Customs Act, 1878and all the provisions of that Act shall have effect accordingly, except thatSection 183thereof shall have effect as if for the word "shall" therein the word "may" were substituted.
SECTION 07: PENALTY
- Whoever contravenes any of the provisions of this Act 5[or the rules made thereunder] 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 with both;
(b) in the case of a subsequent conviction, with imprisonment which may extend to one year, or with fine, or with both
SECTION 08: POWERS OF ENTRY, SEARCH, ETC
(1) Subject to the provisions of any rules made in this behalf, any gazetted officer authorised by the State Government may, within the local limits of the area for which he is so authorised -
(a) enter and search at all reasonable times, with such assistants, if any, as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;
(b) seize any advertisement which he has reason to believe contravenes any of the provisions of this Act:
Provided that the power of seizure under this clause may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing, if the advertisement cannot be separated by reason of its being embossed or otherwise, from such document, article or thing without affecting the integrity, utility or saleable value thereof;
(c) examine any record, register, document or any other material object found in any place mentioned in clause clause (a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
(2) The provisions of theCode of Criminal Procedure, 1898, shall, so far as may be, apply to any search or seizure under this Act as they apply to any search or seizure made under the authority of a warrant issued undersection 98of the said Code.
(3) Where any person seizes anything underclause (b) or clause (c) of sub-section (1), he shall as soon as may be, inform a Magistrate and take his orders as to the custody thereof].
OBJECTS AND REASONS "........... The constitutionality of this Act was challenged before the Supreme Court on the ground that the Act as a whole infringed the fundamental right of freedom of speech and expression under Art. 19(1)(a) of the Constitution and the fundamental right to carry on trade and business under Art. 19(l)(f) and (g). The Supreme Court while upholding the provisions of the Act in general struck down a part of cl. (d) ofsection 3-and the whole of S. 8 as invalid on the ground that the power to specify diseases by rule and the power of seizure conferred by the section are too wide. It has, therefore, become necessary to amend that Act so as to eliminate the defects pointed out by the Court." - S.O.R., Gazette of India, 10-5-1964, Pt. II,Sec. 2-, Extra, p. 474.
SECTION 09: OFFENCES BY COMPANIES
- (1) If the person contravening any of the provisions of this Act is a company, every person who at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence was committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or the officer of the company, such director, manager, secretary or other officer of the company shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
SECTION 09A: OFFENCES TO BE COGNIZABLE
- Notwithstanding anything contained in theCode of Criminal Procedure, 1898, an offence punishable under this Act shall be cognizable.]
SECTION 10: JURISDICTION TO TRY OFFENCES
- No Court inferior to that of a Presidency Magistrate or a Magistrate of the first class shall try any offence punishable under this Act.
SECTION 10A: FORFEITURE
- Where a person has been convicted by any Court for contravening any provision of this Act or any rule made thereunder, the Court may direct that any document (including all copies thereof), article or thing, in respect of which the contravention is made, including the contents thereof where such contents are seized under clause (b) of sub-section ( I ) ofsection 8-, shall be forfeited to the Government.]
SECTION 11: OFFICERS TO BE DEEMED TO BE PUBLIC SERVANTS
- Every person authorised undersection 8-shall be deemed to be a public servant within the meaning ofSection 21 of the Indian Penal Code-
SECTION 12: INDEMNITY
- No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act.
SECTION 13: OTHER LAWS NOT AFFECTED
- The provisions of this Act are in addition to, and not in derogation of, the provisions of any other law for the time being in force.
SECTION 14: SAVINGS
- Nothing in this Act shall apply to -
(a) any signboard or notice displaced by a registered medical practitioner on his premises
indicating that treatment for any disease, disorder or condition specified inSection 3-, the
Schedule or the rules made under this Act, is undertaken in those premises; or
(b) any treatise or book dealing with any of the matters specified insec. 3-from a bona fide scientific or social standpoint; or
(c) any advertisement relating to any drug sent confidentially in the manner prescribed undersection 16-only to a registered medical practitioner; or
(d) any advertisement relating to a drug printed or published by the Government; or
(e) any advertisement relating to a drug printed or published by any person with the previous sanction of the Government granted prior to the commencement of the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act, 1963 : Provided that the Government may, for reasons to be recorded in writing, withdraw the sanction after giving the person an opportunity of showing cause against such withdrawal.]
SECTION 15: POWER TO EXEMPT FROM APPLICATION OF ACT
- If in the opinion of the Central Government public interest requires that the advertisement of any specified drug or class of drugs10[or any specified class of advertisements relating to drugs] should be permitted, it may, by notification in the Official Gazette, direct that the provisions ofsections 3-,4-,5-and6-or any one of such provisions shall not apply or shall apply subject to such conditions as may be specified in the notification to or in relation to the advertisement of any such drug or class of drugs10[orany such class of advertisements relating to drugs.]
SECTION 16: POWER TO MAKE RULES
-(1) The Central Government may, by notification in the Official Gazette, make rules' for carrying out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may-
(a) specify any11[disease, disorder or condition] to which the provisions ofsection 3-shall apply;
(b) prescribe the manner in which advertisements of articles or things referred to in clause
(c) of12[* * *]Section 14 -may be sent confidentially.
13[(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session in which it is so laid or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.]
SCHEDULE 01:
(SeeSections 3 (d)-and14-) _______________________________________________________________________ S. No. Name of the disease, disorder or condition ________________________________________________________________________ 1. Appendicitis 2. Arteriosclerosis 3. Blindness 4. Blood poisoning 5. Bright's disease 6. Cancer 7. Cataract 8. Deafness 9. Diabetes 10. Diseases and disorders of the brain 11. Diseases and disorders of the optical system 12. Diseases and disorders of the utrus 13. Disorder of mentstrual flow 14. Disorder of the nervous system 15. Disorder of the prostatic gland 16. Dropsy 17. Epilepsy 18. Female disease (in general) 19. Fevers(in general) 20. Fits 21. Form and structure of the female bust 22. Gall stones, kidney stones and bladder stone 23. Gangrene 24. Glaucoma 25. Goitre 26. Heart doseases 27. High or low blood pressure 28. Hydrocele 29. Hysterria 30. Infantile paralysis 31. Insanity 32. Leprosy 33. Leucoderma 34. Lockjaw 35. Locomotor ataxia 36. Lupus 37. Nervous debility 38. Obesity 39. Paralysis 40. Plague 41. pleurisy 42. Pneumonia 43. Rheumatism 44. Ruptures 45. Sexual importence 46. Smallpox 47. Stature of persons 48. Sterility in women 49. Trachoma 50. Tuberculosis 51. Tumors 52. Typhoid fever 53. Ulcers of the gastro-intestinal tract 54. Venereal diseases, including syphilis, gonorrhea, soft chancre, venereal granuloma and lympho granuloma] ________________________________________________________________________
Foototes:
1. 1st April 1955, see S.R.O. 511, dated 26th February, 1955, published in Gazette of India, 1955 Pt. II Sec. 3 p. 449.
2. Clause (cc) inserted by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act, 1963 (42 of 1963), S. 2 (7-12-1963).
3. Clause (e) omitted,by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act, 1963 (42 of 1963), S. 2 (7-12-1963).
4. Substituted for the original clause (d) by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act (42 of 1963), S. 3 (7-12-1963).
5. Inserted by Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act (42 of 1963), S. 4 (7-12-1963).
10. Inserted by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act 42 of 1963, S. 9 (7-12-1963).
11. For Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955, see Gazette of India, 1955,Pt. II, Sec. 3, p. 449.
12. Substituted for the words "disease or disorder" by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act, 1963 (42 of 1963), S. 10 (7-12-1963).
13. Words "sub-section (1) of", omitted,by the Drugs and Magic Remedies (Objectionable Advertisements) Amendment Act, 1963 (42 of 1963), S. 10 (7-12-1963).
DRUGS AND MAGIC REMEDIES (OBJECTIONABLE ADVERTISEMENTS) RULES, 1955
S. R. O.512, dated the 26th February, 1955.—In exercise of the powers conferred by Sec, 16 of the Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 (21 of 1954), the Central Government hereby makes the following rules, namely:
RULE 01: SHORT TITLE AND COMMENCEMENT
(1) These rules may be called the Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955.
(2) They shall come into force on such date1as the Central Government may, by notification in the official Gazette, appoint.
Comment Interpretation of rule.—The general power of framing rules for effectuating the purposes of the Act, would plainly authorise and sanctify the framing of such a rule.2
RULE 02: DEFINITIONS
—In these rules, unless the context otherwise requires,—
(1) the "Act" means theDrugs and Magic Remedies (Objectionable Advertisements) Act, 1954-(21 of 1954) ; and
(2) "section" means a section of the Act.3[* * *]
RULE 03: SCRUTINY OF MISLEADING ADVERTISEMENT RELATING TO DRUGS
—4[Any person authorised by the State Government in this behalf may, if satisfied that an advertisement relating to a drug contravenes the provisions of Sec.4] by order, require the manufacturer, packer, distributor or seller of the drug to furnish, within such time as may be specified in the order of such further regarding the composition of the drug or the ingredients thereof or any other information in regard to that drug as he deems necessary for holding the scrutiny of the advertisement and where any such order is made, it shall be the duty of the manufacturer, packer, distributor or seller of the drug to which the advertisement relates to comply with the order. Any failure to comply with such order shall, for the purposes of Sec.7, be deemed to be a contravention of the provisions of Sec.4:
Provided that no publisher or advertising agency of any medium for the dissemination of any advertisement relating to a drug shall be deemed to have made any contravention merely by reason of the dissemination by him or if any such advertisement, unless such publisher or advertising agency has failed to comply with any discretion made by the authorised person in this behalf calling upon him or it to furnish the name and address of the manufacturer, packer, distributor, seller or advertising agency, as the case may be, who or which caused such advertisement to be disseminated.
RULE 04: PROCEDURE TO BE FOLLOWED IN PROHIBITED IMPORT INTO, AND EXPORT FROM INDIA OF CERTAIN ADVERTISEMENTS
(1) If the Customs Collector has reasons to believe that any consignment contains documents of the nature referred to in Sec.6, he may, and if requested by an officer appointed for the purpose by the Central Government, shall, detain theconsignment and dispose it of in accordance with the provisions of the Sea Customs Act, 1878 (VIII of 1878)5, and the rules made thereunder, and shall also inform the importer or exporter of the order so passed:
Provided that if the importer or exporter feels aggrieved by an order passed by the Customs Collector under this sub-rule and makes a representation to him within one week of the date of the order and has given an undertaking in writing not to dispose of the consignment without the consent of the Customs Collector and to return the consignment when so required to do by the Customs Collector the Customs Collector shall pass an order making over the consignment to the importer or exporter, as the case may be:
Provided further that before passing any order under this sub-rule or under the first proviso thereto, the Customs Collector shall consult the officer appointed for the purpose by Central Government.
(2) If the importer or exporter who has given an undertaking under the first proviso to sub-rule (1 ) is required by the Customs Collector to return the consignment or any portion thereof, he shall return the consignment or portion thereof within ten days of the receipt of the notice.
RULE 05: MANNER IN WHICH ADVERTISEMENTS MAY BE SENT CONFIDENTIALLY
6—All documents containing advertisements relating to drugs referred to in Cl.(c) of sub-section (1) ofSec. 14-, shall be sent by post to a registered medical practitioner by name or to a wholesale or retail : chemist, the address of such registered medical practitioner or wholesale or retail chemist being given. Such document shall bear at the top, printed in indelible ink in a conspicuous manner the words. "For the use only of registered medical practitioners or a hospital or a laboratory".
RULE 06: PROHIBITION OF ADVERTISEMENT OF DRUGS FOR TREATMENT OF DISEASE, ETC.
7—No person shall also take 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 the diagnosis, cure, mitigation, treatment or prevention of any disease, disorder, or condition specified in the Schedule annexed to these rules.
Footnotes:
1. 1st April, 1955 is the date on which these rules came into force vide S.R.O. 512. dated the 26th February, 1955.
2. Ram Autar Santosh Kumar v. State of Bihar, A.I.R. 1987 Pat. 13 at p. 17.
3. Rule 3 was omitted and rules 4 to 7 re-numbered as rules 3 to 6 by S.O.1688, dated the 22nd May, 1962.
4. Substituted by S.O. 826, dated the 10th April, 1361.
5. Repealed by the Customs Act, 1962.
6. Substituted by S.O. 348, dated 20th January, 1962.
7. Substituted by G.S.R. 442 (E). dated 1st June, 1982 (w.e.f. 1st June, 1982).
SCHEDULE 01:
(See Rule 6) 1.Asthama 2.AIDS
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