AIMIL PHARMACEUTICALS (INDIA) PVT. LTD vs State

A complaint was received from one Dr. Rajiv Kumar against the respondent namely, AIMIL Pharmaceuticals (India) Pvt. Ltd. It was alleged therein that the big hoardings were displayed on various parts of Delhi showing a man and woman sitting on opposite side of a bed in a sad mood with a thought that "Kash Maine bhi ''Ashree Forte'' liya hota". Alongwith this fee advertisement further states "Ek Vishwashiya Swasth Vardhak Evam Shakti Dayak Ayurvedi, Aushadhi". As per his understanding the advertisement mounted in a manner gives an impression to the on-looker that the Ashree Forte is an aphrodisiac drug meant to induce sexual desire/ restore or improve one''s sexual performance. As the drug has no such effects, the advertisement being misleading and false needs to be enquired into. On receipt of a complaint, the Commission directed the Director General of Investigation and Registration (the DG for short), to conduct a preliminary investigation. The DG submitted the report dated 11th November, 1991 stating that the claim in regard to usefulness of the drug for improving/retaining sexual vitality is" not based on any scientific test/study conducted by any Competent Authority. As the report was not complete in all respects for issuance of Notice of Enquiry, the DG was again directed to submit a supplementary report complete in all respects. Another report (supplementary report) as submitted on 18th January, 1993 with the same Conclusion that the advertisements/hoardings mounted by and on behalf of the respondent were misleading and false and as such the case was fit for issuance of Notice of Enquiry. Thereafter NOE dated 12th August, 1993 was issued under Sections 36 A, 36B(d) and 36D of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief the Act).

THE respondent filed a reply thereto and stated that it is a company which is engaged in manufacture of Ayurvedic medicines. It is manufacturing wide range of Ayurvedic pharmaceuticals products in the range of proprietary, classic and OTC as per the formula indicated in the ancient text of Ayurveda its manufacturing unit is at Naraina Industrial Area, Phase-I, New Delhi which is equipped with latest machinery in the pharmaceutical culture. It prepares the medicines in most scientific manner and with utmost precision under meticulous inspection. It also exports medicines abroad. One of the drugs manufactured is'' Ashree Forte'' capsules, which was introduced in the market in the month of April, 1990. THE capsule in issue is a composition of various herbs, which are available in nature and are procured from natural source. This improves digestents metabolism, restores as well improves the physiological functions of the body. One of the components i.e., ''Bajikaran'' aims to improve the sperm count and morphology which acts as an aphrodisiac and restores health and energism from the day long activities. This product is approved by the Drug Licence No. DL194 (A&U) by the Drug Controller, Delhi Administration, Delhi. It is composed of 22 items having different uses and benefits as mentioned in the various text books. THE respondent never gave any advertisement/hoarding giving an impression that "Ashree Forte" is an aphrodisiac drug which restores/improves sexual performance. In fact in any of its advertisements as given, the word sex never appears. THE complaint filed that the hoarding mounted on behalf of the respondent was withdrawn after a period of time is not correct, as no material is there to support this contention raised in the complaint. Accordingly all the charges levelled are denied. On completion of the proceedings, the following issues were framed : (1) Whether the respondents have been or are indulging in unfair trade practices as indicated in the Notice of Enquiry ? (2) If the answer to the foregoing issue is in the affirmative, whether the unfair trade practices are prejudicial to public interest or to the interest of the consumer or consumers generally ?

The evidence was led both by way of affidavits as well by examination of the witnesses on both sides. Dr. Rajiv Kumar deposed on behalf of the DG, Shri Anil Kumar Sharma and Shri B.N. Sinha were examined on behalf of the respondent. Reply to the interrogatories/further better particulars as raised on behalf of the DG were also answered by the respondent. The respondent also furnished copies of literature of various drugs as well some research reports on the subject.

Both the parties were heard at length through their respective Advocates. The evidence brought on record on both sides has also been perused. The disputed issue in the present enquiry relates to aphrodisiac effect of the drug namely, "Ashree forte" as suggested by the alleged pictorial advertisement by way of hoarding allegedly displayed in various parts of Delhi. The said advertisement is stated to show a man and a woman sitting opposite side of a bed with a sad expression that "Kash maine bhi Ashree Forte'' liya hota". Admittedly, the copy of the advertisement in this form has not been placed before us despite the Commission directing the DG to place the same on record alongwith the PIR, There were other requirements to be complied with as is evident from the letter of the DG to the complainant. The respondent on the other hand has denied that there ever existed any such hoarding. This stand has been taken both in its reply to the notice of enquiry as well to the interrogatories, The witnesses appearing for the respondent also denied the respondent having advertised in a manner as stated in the complaint.

AS stated by their Lordships of Hon''ble Supreme Court of India in the case of M/s. Lakhanpal National Limited, (1993) 1 CTJ 345 (SC), in order to consider whether a particular act dubbed as unfair trade practice, it is necessary to examine whether the representation so made contains false statement and is misleading. What is to be seen is whether a reasonable man after reading the advertisement is induced to buy a product and forms a belief different from what the truth is. This has to be viewed with objectivity in an impersonal manner. This can only be answered if such a representation is placed for inspection. The tricky language if at all used has to be interpreted against the background of a pictorial depictment. Even for the sake of arguments, if it is accepted, though not admitted, that such a hoarding existed at one point of time which was subsequently withdrawn as it is difficult to conceive that any person and for that matter a doctor can conjure up such an image in his mind just for the sake of it, at best, the Commission can pass an order desisting the party for displaying such hoarding in future as admittedly the hoarding is no more there. On the other hand the very basis on which the enquiry was instituted has not been shown to exist, supported by necessary documents. The copies of the advertisement as appearing in the various newspapers in different languages as enclosed show only a man sitting in a pensive mood with the thought in his mind "I wish, I''d had Ashree Forte Capsules". The drug is stated to be a dependable herbal tonic with traditional secrets for healthy life. The supporting documents from Charak Samhita Chiktsa Sthransm, as well the research papers show that constituents of the drug have an effect of improving general health. The effect of various constitutes comprising the drug on physical health of a person as given reveal that the herbs have an effect on the general vitality of a person. These have not been denied on behalf of the DG. While it is true that the effect of a particular drug on improvement of the vitality of the person in general can be tested after consuming the drug, it has not been shown that the claim of the respondent is false or misleading. The complainant while accepting that drug is sold in Government dispensaries has not cited any single instance denying the effect on the general vitality of a person. The drug in its turn has been manufactured under the licence given by the Government and is sold on counter. In absence of a copy of the disputed advertisement which is the basis for initiation of proceedings, we are convinced that no case has been made out for passing the cease and desist order at present. The judgments cited on behalf of the respondent have no direct relevance as they have been given on the facts as available in each case. The Notice of Enquiry therefore, deserves and is directed to be discharged. There is no order as to the costs on the facts and in the circumstances of the case. NOE discharged.