1. This rule was issued upon the Chief Presidency Magistrate of Calcutta to show cause why the conviction and sentence of the petitioner under Rule 5 of the rules framed under Ordinance 21 [XXI] of 1944 should not be set aside.
2. It appears that on 9-1-1946, a complaint against the present petitioner was preferred to the Chief Presidency Magistrate, Calcutta, in the following terms:
I have the honour to submit that the marginally noted accused person is violating the rules made by Government under Section 11, Public Health (Emergency Provisions) Ordinance, 1944, and issued with notification No. 1843-Mdl., dated 22-5-1945, by making unauthorised advertisements about the treatment of venereal diseases on sequels of venereal diseases on signboards, walls etc., and in newspapers.
3. On receipt of this petition of complaint, summons was issued upon the petitioner under Rule 5 of the rules framed under Section 11 of the Ordinance. One witness only was examined for the prosecution and this witness proved that he had personally seen the signboard of the Oriental Dispensary at No. 103, Harrison Road, Calcutta and on this signboard were the words 'Impotency', 'Sex diseases', 'Wet dreams', treated here'. In addition to this evidence, a copy of a newspaper, the Nationalist, dated Friday 24-8-1945, was produced which contained an advertisement of the Oriental Dispensary at No. 103, Harrison Road, Calcutta. This advertisement reads as follows:
Don't Go in the Wrong-Way. When you are distressed and attacked by burning diseases or by any painful and chronic diseases it is not impossible to be misguided by big and charming advertisements of quacks and self-made doctors. In this way your money and your health both pass away. Though you are described by those doctors incurable yet you have got full hope of your cure. You should at once see and consult a real-experienced physician who can make real treatment with the help of his modern scientific instruments. For this-you can safely see matchless and imperial sex-specialist Dr. Z.M. Sirkar, first class gold medalist and numberless certificate-holder from all classes. Undermentioned diseases are cured with double money return guarantee without operation. Magic-like effect within a few seconds
Loss of Vigour, Weakness, Nervous debility, Decaying diseases, Premature old age, Mental disorder, Spermatorrhea, Leucorrhoea, Chronic female diseases, Want of Rejuvenation, Hydrocele, Leprosy, Lucoderma and (Piles).
4. The accused merely pleaded not guilty, and no evidence was adduced on his behalf.
5. On this evidence the learned Magistrate came to the conclusion that Rules 8 of the rates framed under the Ordinance had been contravened and be convicted the accused and sentenced him to pay a fine of Rs. 200 and in default to undergo rigorous imprisonment for three weeks.
6. This rule was issued on the ground that the evidence on record and the facts found and proved did not make out any offence punishable under Rule 5 of the rules.
7. In his judgment the learned Magistrate found that Rule 3 of the rules had been contravened but the trial throughout was merely in respect of a contravention of the rules in view of the publication and advertisement by signboard and by advertisement in the newspaper. Until the final order was passed there is nothing to indicate whether the Magistrate was proceeding in respect of a contravention of Rule 3, or Rule 4, or of both. Rule 3 of the rules provides:
No person shall print, publish, circulate or otherwise distribute or cause to be printed, published, circulated or otherwise distributed whether for the purpose of sale or free of charge, any notice, advertisement, handbill or document whatever other than a bona fide medical treatise, if such notice, advertisement, handbill or document contains any reference to the prevention, cure, relief of any venereal disease or any symptom or sequels of any venereal disease unless such notice, advertisement, handbill or document either has been issued by or under the order of Provincial Government or has been previously submitted to the said Government or approved by it by order in writing.
Rule 1 reads thus:
No person other than the Provincial Government shall in any way advertise any place as a place at which any venereal disease or any symptom or sequels of any venereal disease is or can be treated unless such person has applied for and received the prior approval in writting of the Provincial Government in this behalf.
8. No attempt has been made to show that the signboard or the advertisement in the newspaper to which I have referred above was issued by or under the order of the Provincial Government, or had been previously submitted to the said Government, or approved by it by an order in writing. No attempt has been made to show that the present petitioner has applied for and received the prior approval in writing of the Provincial Government to this advertisement of the Oriental Dispensary as a place at which venereal diseases or symptom or sequels thereof may be treated. The only argument is that the signboard and the advertisement in the newspaper do not contravene either of these rules. Reliance was placed on the cross-examination of the only witness. This witness deposed in cross-examination as follows:
Sex-specialist means a specialist in sexual diseases. Excepting venereal diseases there are other sex-diseases such as deformity of sex organs. Sex-diseases include venereal diseases. A man not specialising in cure of venereal diseases cannot be a sex-specialist. Stioman's Medical Dictionary will show that. In Ex. 1 the diseases that the accused wants to cure have been shown. All the diseases noted at the end of Ex. 1 need not necessarily be sequels of venereal disease though they may be also sequels of venereal disease. All sex-diseases are not sequels of venereal disease. The diseases named on the signboard such as impotency and wet dreams showed that he wanted to cure diseases that did not connote that they must be venereal diseases.
9. It is on this evidence and on the language used in the signboard and the newspaper advertisement that it is contended that the accused' person did not publish any notice containing any reference to the prevention, cure or relief of any venereal disease or any symptom of sequels of any venereal disease. It is further contended that it is not advertised that the Oriental Dispensary is a place at which any venereal disease or any sequels of venereal disease is or can be treated.
10. In my opinion, this advertisement and the signboard have got to be regarded as they would be regarded by the man in the street, not' as they would be regarded by members of the medical profession looking at them with the eyes, of a specialist. The people to be treated are the victims of disease and members of the ordinary public. They are not members of the medical profession reading these in a special and limited sense. I am satisfied that any ordinary individual reading the signboard and the advertisement would read them as advertisements of the cure of venereal diseases; and in my opinion the advertisement and the signboard both clearly: contravened Rule 1 and also I think, Rule 3 of the rules framed under Ordinance 21.
11. In this view the accused was rightly convicted and I see no reason to interfere with the sentence. The rule is accordingly discharged.