The Madras High Court on Monday quashed criminal proceedings under Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, initiated against Actor Dhanush, Director Aishwarya Rajnikanth and others by one Cyril Alexander for showing the actor smoking a cigarette in the posters of the movie “Velaiyilla Pattathari”.
Justice Anand Venkatesh said the continuation of the criminal proceedings against the accused persons will amount to an abuse of process of court.
“In the instant 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 noted.
Cyril Alexander had alleged that the producers of the movie violated COTPA, which prohibits the promotion of use or consumption of cigarettes or any other tobacco products either directly or indirectly through advertisements via any medium.
Justice Venkatesh noted that Section 5 of COTPA is a penal provision which has to be construed in a strict manner.
“The main thrust of the provision is to prohibit persons, who are engaged in production, supply or distribution of cigarettes or any other tobacco products from advertising the same. All the other prohibitions that are prescribed under Section 5 of the COTPA revolve around only those persons engaged in those activities. Hence, the act of advertisement is directly relatable to those, who are engaged in the production, supply or distribution of cigarettes or any other tobacco products. Such advertisements can happen through a medium and through any other person, who may enter into a contract or otherwise to promote the use or consumption of cigarettes and other tobacco products,” the court noted.
The court also noted that it could not be swayed by emotions as the penal statute touched upon the personal liberty guaranteed under Article 21 of the Constitution.
“A 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. Hence, the Court cannot be swayed by emotions and popular beliefs and the Court has to necessarily construe the provisions strictly and see if the facts of the case make out an offence. 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 observed.
The Additional Public Prosecutor had also relied on the notifications issued by the Ministry of Health and Family Welfare in 2004 and 2011 which led to the introduction of Rules barring the depiction of tobacco products or their usage in any form through promotional materials and posters of films and television programs.
The court, however, noted that the criminal complaint was filed specifically for violation of Section 5 of COTPA and not for violation of rules. The court also added that the Rules cannot outweigh or override the Act.
Case Title: Sv. Rm. Ramanathan and Others v State and Others
Citation: 2023 LiveLaw (Mad) 195
Counsel for the Petitioner: Mr.P.S.Raman, Senior Counsel for Mr.Vijayan Subramanian, Mr.S.Ravi for M/s.Gupta & Ravi, Mr.V.Chandrakanthan, Mr.Ullasavelan
Counsel for the Respondent: Mr.A.Damodaran, Additional Public Prosecutor, Mr.S.Sathiachandran