Madras High Court: In criminal original petitions filed for offence under Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (‘COPTA’) against Actor Dhanush, Director Aishwarya Rajnikanth and others for displaying the actor smoking a cigarette in the movie “Velaiyilla Pattathari” posters, N. Anand Venkatesh, J. has said that the continuation of the criminal proceedings as against the accused persons will amount to an abuse of process of court . Thus, the Court quashed the said criminal proceedings.
The petitioner alleged that as the advertisement had directly or indirectly promoted the use or consumption of cigarettes as the actor in the movie was displayed smoking cigarettes. Further, there was a conspicuous absence of the disclaimer mandated under the Rules 8(1)(d) and 8(1)(i)of the COPTA Rules, 2004 for a minimum duration of 20 seconds, whereby the actor should have informed about the ill effects of the tobacco products in the beginning and in the middle of the movie and when it is displayed in the television. Accordingly, it was alleged that the accused persons committed an offence under Section 5 of the COTPA, which is punishable under Section 22 of the COTPA.
Issue:
Whether the allegations made in the complaint will constitute an offence under Section 5 of the COTPA?
Analysis:
After perusing Section 5, COPTA, the Court said that this provision imposes a complete taboo on the advertisement of cigarettes or any other tobacco products by persons engaged in or purported to be engaged in production, supply or distribution of cigarettes or any other tobacco products. The provision further bars a person from entering a contract to promote the use or consumption of cigarettes or any other products.
The Court noted that in present case, the only allegation that has been made in the complaint is that the advertisement banners of the movie were found to carry the picture of the lead actor prominently smoking cigarette. This act, per se, cannot be brought within the purview of Section 5 of the COTPA since the display was not done by persons engaged in the production, supply or distribution of cigarettes or any other tobacco products and the person, who was depicted as smoking cigarette, was not under any contract with the entity or the person engaged in production, supply or distribution of cigarettes or any other tobacco products nor he was promoting their product.
The Court said that the penal statute has to be strictly construed since the consequence of an action taken under the statute will touch upon the life or personal liberty guaranteed under Article 21 of The Constitution of India. If the facts do not constitute an offence, the Court cannot try to expand the scope of the provision by considering the adverse impact that a tobacco or tobacco product can have on the society and particularly the younger generation.
The Court said that the complainant seemed to have been under the impression that since the producers and the distributors of the movie were engaged in erecting the posters with the lead actor shown to have been smoking, the same would constitute an offence under Section 5 of the COTPA. Further, it said that the producers and the distributors in the present case are engaged in movie business and are not engaged in the business of cigarettes or other tobacco products. This vital distinction between what has been stated in the provision and what comes out of the allegations made in the complaint makes all the difference.
The Court further noted that in Rule 9 COPTA Rules, 2004 there is a bar for depicting any tobacco products or their usage in any form by means of promotional materials and posters of films and television programmes. However, the criminal complaint has been filed not for the violation of any Rules and it has been filed specifically for the violation of Section 5 of the COTPA. Further, it reiterated that the Rules cannot outweigh or override an Act and they have to be read in consonance with the provisions of the Act.
[Sv. Rm. Ramanathan v. State, 2023 SCC OnLine Mad 4522, Order dated 10-07-2023]
Advocates who appeared in this case :
For Petitioner: Advocate Ravi Gupta, Senior Counsel P.S. Raman, Advocate V. Chandrakanthan, Advocate Ullasavelan;
For Respondent: Additional Public Prosecutor A. Damodaran, Advocate S. Sathiachandran
Buy Constitution of India HERE
