1. INTRODUCTION:
In a recent judgment passed on July 10th, 2023 by Justice N. Anand Venkatesh in the case of Sv. Rm. Ramanathan and others Vs. State and others (hereinafter referred to as the “Case”), the Hon’ble Madras High Court (hereinafter referred to as the “MHC”) quashed criminal proceedings pending against the Petitioners (defined below) and held that display of advertising banners featuring a picture of a lead actor prominently smoking a cigarette would not be in violation of Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter the “COTPA”), since such portrayal is not backed by any persons engaged in the business of cigarettes or other tobacco products.
This Case forms a crucial part in the interpretation and application of the provisions of the COTPA and the penal provisions emanating for violation thereof. It also serves as a landmark for protection of producers and distributors of cinematograph films going forward, from potentially frivolous complaints and petitions.
2. FACTUAL BACKGROUND OF THE CASE:
Criminal proceedings were initiated by the State represented by Dr. V. K. Palani (“First Respondent”) before the 18th Metropolitan Magistrate Court, Saidapet, Chennai (“MMC”) under Section 5 of the COTPA, which is punishable under Section 22 of the COTPA, against Sv. Rm. Ramanathan, N. Venkatesh, C.T. Ramanathan, Aishwarya Rajnikanth and Dhanush, Owner of Wunderbar Film Pvt. Ltd. and actor of Velai Illa Pattadhari film (collectively “Petitioners”, and “P1”, “P2”, “P3”, “P4” and “P5” respectively).
P1, P2 and P3 are persons in charge of certain cinema halls and malls where the posters of Velai Illa Pattadhari (“Film”) with P5, the lead actor of the Film smoking a cigarette were displayed for promotion of the Film. The private complaint was filed with the specific allegation that the violation was done by the producer of the Film, the owner and actor of the Film and the proprietors of various theatres where the Film was sought to be released. The further allegation that has been made in the complaint was that as the advertisement had directly or indirectly suggested or promoted the use or consumption of cigarettes and as the actor in the Film was displayed to be smoking cigarettes, it would unnecessarily attract those in the adolescent age, lead to cultivating such a habit and ultimately go against the interest of the younger generation. 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.
It is pertinent to note that Mr. S. Cyril Alexander, State Convenor, Tamil Nadu People’s Forum for Tobacco Control (“Second Respondent”) had earlier in 2014 filed a public interest litigation for a similar cause which was dismissed by the MHC by an order dated 13th August, 2014. In the order, the MHC highlighted that the ‘Committee’ was already constituted, and it is on the Committee to find out whether there is any violation or not and that citizens cannot become a super censor board in the form of petitioning the courts under a public interest litigation.
The Second Respondent then filed a writ petition before the MHC to direct appropriate authorities to take action against Wunderbar Film Pvt. Ltd., for violation of Section 5 of the COTPA and seek appropriate action against the Chairman, Central Board of Film Certification, Chennai -34 for dereliction of duty committed with respect to the violation of the law committed by P5. The MHC by an order dated 27th October, 2021, disposed the writ petition with certain directions, pursuant to which the Committee constituted under the COTPA found Wunderbar Film Pvt. Ltd. to be in violation of Section 5 of the COTPA and authorised the lodging of a complaint by the First Respondent against the Petitioners.
The Petitioners in the instant matter approached the MHC under Section 482 of the Code of Criminal Procedure, 1973 seeking the quashing of the criminal proceedings pending against them.
The issue before the MHC was whether the allegations made against the Petitioners would constitute an offence under Section 5 of the COTPA.
3. ANALYSIS BY THE MHC:
a. Section 5 of the COTPA focuses on prohibition of advertisement of cigarettes and other tobacco products by persons engaged in the production, supply or distribution of cigarettes or any other tobacco products and also persons having control over a medium to advertise the aforesaid. The said section also prohibits persons taking part in any such advertisement which suggests or promotes the use or consumption of cigarettes or any other tobacco products and bars any person from entering into a contract to promote the same.
b. Section 5 of the COTPA is a charging section and therefore a strict interpretation of the same has to be applied to the facts in each instance to ascertain whether penal provisions would be applicable. 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.
c. The MHC opined that the facts of the Case where the complaint alleged violation of Section 5 of the COTPA merely because the banners of the Film portrayed the lead actor (P5) smoking would not be a violation of the section since the same is not done by persons prohibited from doing the same under the aforementioned section and neither was there any contract by virtue of which such publicity was done. The MHC further clarified that the producer and distributors in the instant matter were engaged in the movie business and not in the business of cigarettes or other tobacco products and this vital distinction between what has been stated in the provision and what comes out of the allegations made in the complaint made all the difference.
d. The MHC further opined that Rule 9 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004, made under the COTPA (“Rules”) do restrict the depiction of any tobacco products or their usage in any form by means of promotional materials and posters of films and television programmes, however, the Rules or the COTPA do not prescribe any consequence for violation of the same. The MHC highlighted that the complaint was only under Section 5 of the COTPA and not under any rule and further reiterated the well established principle of law that the rules under any statute cannot override the statute itself.
4. CONCLUSION:
In light of the aforementioned observations, the MHC quashed all criminal proceedings pending against the Petitioners.
Therefore, vide this judgment, the MHC has established that the mere use of cigarettes or other tobacco products in any publicity paraphernalia would not be in violation of Section 5 of the COTPA, if not backed by any persons involved in the business of cigarettes or other tobacco products. This opinion of the MHC will go a long way in deterring frivolous lawsuits and criminal proceedings against producers and distributors of films and television shows.
The judgement also highlights that there is much to be addressed in terms of legislations to prevent the promotion of cigarettes and tobacco products. It remains to be seen whether any steps are taken by the legislature to amend the punishing section of the COTPA to cover rules.
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