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Sekarreporter1: https://twitter.com/sekarreporter1/status/1554001911661363200?t=fh8iE9d3-v_0vEY1gv2LMg&s=08 [8/1, 12:43] Sekarreporter1: Actor Dhanush challenged the complaint filed under Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 through his lawyer @lawyervijayan Summons served to Actor Dhanush, Director of Wunderbar films to appear before the XVIII Metropolitan Magistrate Court, Siadapet,

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[8/1, 12:42] Sekarreporter1: https://twitter.com/sekarreporter1/status/1554001911661363200?t=fh8iE9d3-v_0vEY1gv2LMg&s=08
[8/1, 12:43] Sekarreporter1: Actor Dhanush challenged the complaint filed under Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 through his lawyer @lawyervijayan

Summons served to Actor Dhanush, Director of Wunderbar films to appear before the XVIII Metropolitan Magistrate Court, Siadapet, Chennai with regard to disclaimers not being displayed during cigarate smoking scenes for the film VIP.

Case came up for hearing before Hon’ble Justice N.Satish KumarJ. After hearing arguments of Advocate Vijayan Subramanian,the Hon’ble Court passed an order dispensing with the appearence of Actor Dhanush before Trial Court and posted the case for hearing on 10.08.2022

Vijayan Subramanian Advocate for Actor Dhanush

 

MEMORANDUM OF CRIMINAL ORIGINAL PETITION

(UNDER SECTION 482 Cr.P.C.)

IN THE HIGH COURT OF JUDICATURE AT MADRAS

(Criminal Jurisdiction)

Crl. O.P.  No.                   of 2022

in

STC. No. 4004 of 2022

(on the file of the Hon’ble XVIII Metropolitan Magistrate Court, Saidapet, Chennai – 15)

 

Mr. Dhanush (M – 37 Years),

Owner of Wunderbar Film Private Limited,

cum actor of Velai Illa Pattadhari film,

No. 76/31, Venkateswara Homes,

9th Floor, Kripa Building, Chamiers Road,

2nd Main Road, Raja Annamalaipuram,

Chennai – 600 028                                                                       … Petitioner / Accused 1

 

– VS –

 

State,

Represented by,

Dr. V.K. Palani,

Authorized Officer for Sec. 5 of COTPA, 2003,

Deputy Director [Research],

Directorate of Public Health and Preventive Medicine,

DMS Campus, Teynampet, Chennai – 600 006

…Respondent / Complainant

 

PETITION FOR QUASH FILED UNDER SEC. 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973

 

The Petitioner begs to submit as follows: –

 

  1. The Petitioner is Mr. Dhanush (M – 37 Years), Owner of Wunderbar Film Private Limited, cum actor of Velai Illa Pattadhari film, No. 76/31, Venkateswara Homes, 9th Floor, Kripa Building, Chamiers Road, 2nd Main Road, Raja Annamalaipuram, Chennai – 600 028.

 

The address for service of all notices and processes on the Petitioner
is that of his Counsels M/s. Vijayan Subramanian, M.V. Bhaskar,
A. Murali, Roshini R and Preetha Natarajan, Advocates, having their office at No. 17, Lakshmi Street, New Avadi Road, Kilpauk, Chennai – 600 010 (98413 20723, 98406 69573).

 

  1. The Respondent is the State, represented by V.K. Palani, Authorized Officer for Sec. 5 of The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade
    and Commerce, Production, Supply and Distribution) Act, 2003, Deputy Director [Research], Directorate of Public Health and Preventive Medicine, DMS Campus, Teynampet, Chennai – 600 006.

 

The address for service of all notices and processes on the Respondent is as stated above.

 

  1. It is submitted that the Petitioner is the producer of the film “Velai Illa Pattadhari”. The Tamil Nadu Peoples Forum for Tobacco Control, represented by its State Convenor filed a complaint dated 25/07/2014
    to the Principal Secretary to Government, Health and Family Welfare Department, Tamil Nadu regarding violation of Section 5 of Cigarette and Other Tobacco Products Act, 2003 through display of smoking scene of movie poster in Velai Illa Pattadhari (Tamil).

 

smoking visuals of hero and directed the Petitioner  Producer  herein  to
reply to the said letter within one week from the receipt of the letter.
  • It is submitted that Central Board of Film Certification had sent a letter dated 03/07/2014 stating that the trailer of the film “Velai Illa Pattadhari” contains smoking visuals of hero and also the film posters contain
  1. It is submitted that the Petitioner had sent a reply letter dated 07/07/2014 to the Central Board of Film Certification stating that all the posters of the film containing the said visuals has been removed and apologised for the said act of the Petitioner.

 

  1. It is submitted that the censor certificate was issued by CBFC vide proceedings dated 14/07/2014. The Petitioner submits that the film contained disclaimers for smoking during the beginning and as well as after interval and the said disclaimer were also shown whenever the smoking scenes was shown in the film. It is submitted that the Petitioner had issued another letter to CBFC confirming the disclaimer has been issued.

 

  1. It is submitted that the Tamil Nadu Peoples Forum for Tobacco Control represented by its State Convenor Mr. S. Cyril Alexander filed a complaint before CBFC stating that the Cigarette smoking scene contains without any disclaimer. It is submitted that CBFC has sent a reply dated 04/08/2014 stating that the Petitioner has inserted health spots at the beginning and immediately after interval.

 

  1. It is submitted that, CBFC further stated that the Petitioner has inserted anti-tobacco health warning as a prominent static message at the bottom of the scene during the period of display of tobacco products or the use in the film. It is submitted that CBFC also informed Tamil Nadu Peoples Forum for Tobacco Control that the Petitioner also agreed to insert audio-visual disclaimer on the ill-effects of tobacco use. It is submitted that the Petitioner has complied the direction of CBFC.

 

  1. It is submitted that the the Tamil Nadu Peoples Forum for Tobacco Control filed a writ petition numbered as 21698 of 2014. The the Tamil Nadu Peoples Forum for Tobacco Control has sought for a prayer as extracted below;

 

“WRIT OF MANDAMUS” or any appropriate Writ, Order of Direction, DIRECTING the Second Respondent to prosecute the Fifth Respondent under Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply and Distribution) Act, 2003 within a time frame fixed by this Hon’ble Court and further, DIRECTING the First Respondent to take appropriate action against the Fourth Respondent for the dereliction of duty committed in respect of violations of law by the Fifth Respondent within time framed fixed by this Hon’ble Court and pass any other or further orders as this Hon’ble Court may deem to be fit in these circumstances and thus render justice.”

 

  1. It is submitted that the said writ petition came up for hearing before the first bench on 30/08/2014 and the Hon’ble first bench has dismissed the writ petition and the order is extracted below;

 

“The norms regarding monitoring the prohibition under the Cigarettes and Other Tobacco Products Act, 2003, are in force and a committee is already constituted, as is the own case of the Petitioner as per pages 1 to 3 of the typeset. Representation is stated to have been made to the Committee. It is for the Committee to find out whether there is any violation or not. Every citizen cannot become a super censor board or a super authority in the form of petitioning the court under a Public Interest Litigation.

 

We are, thus, not inclined to entertain the petition. The writ petition, accordingly, stands dismissed. No costs.”

 

  1. It is submitted that the Hon’ble First Bench had clearly stated that the Tamil Nadu Peoples Forum for Tobacco Control has given their representation to the committee and it is for the committee to find out any violation or not. It is submitted that the the Tamil Nadu Peoples Forum for Tobacco Control had filed another writ petition before the Single Judge seeking the prayer which is extracted below;

“For the reasons stated in the accompanying affidavit, the Petitioner herein prays that this Hon’ble Court may be please to issue a Writ, Order or Direction, in the nature of WRIT OF MANDAMUS or any appropriate Writ, Order of Direction, DIRECTING the Second Respondent to prosecute the Fifth Respondent under Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulations of Trade and Commerce, Production, Supply and Distribution) Act, 2003 within a time frame fixed by this Hon’ble Court and further, DIRECTING the First Respondent to take appropriate action against the Fourth Respondent for the dereliction of duty committed in respect of violations of law by the Fifth Respondent within time framed fixed by this Hon’ble Court and pass any other or further orders as this Hon’ble Court may deem to be fit in these circumstances and thus render justice.”

 

  1. The the Tamil Nadu Peoples Forum for Tobacco Control instead of approaching the state level committee has directed by the First Bench of this Hon’ble High Court in W.P. No. 21698 of 2014 has filed another writ petition with the very same pleadings and very same prayer.

 

  1. It is submitted that CBFC has filed counter affidavit in the said writ petition stating that the film VIP has been certified on 14/07/2014 as per the Cinematograph Act and Rules. CBFC confirmed that the certified Film do contain the required mandatory disclaimers for smoking during the beginning as well as after interval and also in the smoking scene wherever shown. CBFC also further confirmed that the petitioner herein has complied with the directions issued by them.

 

  1. It is submitted that the Hon’ble Single Judge has passed an order on 02/11/2021 as follows:

 

  1. It is also brought to the notice of this Court that effective implementation of the provisions of the Act is lacking and inspite of several instances which all are in the public domain is not addressed or taken note of for the purpose of initiation of action. Thus, the State has to sensitize the authorities competent for the purpose of exercise of vigil over such illegalities and irregularities regarding violations under the provisions of the Act. It is needless to state that the 5th respondent (the Petitioner herein) and aggrieved persons are at liberty to defend their case.

 

  1. In view of the aforesaid discussions, this Court is inclined to pass the following orders;

 

(i) Respondents 2 and 3 are directed to proceed with all further actions in continuation of the legal notice of violation already issued by the Nodal Officer viz., Director of Public Health and Preventive Medicine and by following the procedures as contemplated under the provisions of the Act as W.P.No.24355 of 2014 well as the Rules or Guidelines, within a period of six weeks from the date of receipt of a copy of this order.

 

(ii) Respondents 2 and 3 are directed to ensure that the Committee constituted under Section 25 of the Act functions continuously and the vacancies are to be duly filled up then and there without causing any delay.

 

(iii) Respondents 2 and 3 are directed to ensure that the complaints, information’s provided to the competent Committee are responded swiftly and actions are initiated without causing any undue delay under the provisions of the Act.

 

  1. To the shock and surprise, a summon dated 13/06/2022 was received by the Petitioner on 18/06/2022. The Petitioner came to know that a complaint was filed under Section 190(1)(a) and 200 Cr.P.C. r/w punishable u/s 22 r/w section 5 of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 and related rules and regulations.
  2. It is submitted that upon a perusal of the complaint filed by the Respondent before the Hon’ble XVIII Metropolitan Magistrate Court at Saidapet, Chennai, the Petitioner is given to understand that O (Ms) No. 565 dated 17/12/2021 was issued by the Health and Family Welfare Department. It is submitted that based on the order passed in W.P. No 24355 of 2014, the government has re-constituted the State Level Monitoring Committee to monitor the violations under Section 5 of the Cigarettes and other Tobacco Products Act, 2003.

 

  1. It is submitted that subsequently a circulation note dated 10/02/2022 was circulated between the members of the committee and the committee gave recommendations and the circular note was not signed by the chairman of the committee but the authorised officer proceeded to lodge a complaint before Jurisdiction Magistrate Court under Cr.P.C., 1973 without any application of mind.

 

  1. The Petitioner respectfully submits that the Complaint raised by the Respondent against the Petitioner before the Hon’ble XVIII Metropolitan Magistrate Court, Saidapet, Chennai in STC. No. 4004/ 2022 is vitiated and untenable and has been filed with ulterior motives. It is submitted that the Hon’ble Single Judge passed an order in W.P. No. 24355 of 2014 dated 02/11/2021 stating that the Committee has to be constituted and the Committee shall function continuously. It is submitted that with regard to the complaint against the Petitioner, the Hon’ble Court in para 26 of the order clearly stated that the Petitioner is at liberty to defend their case before the Committee.

 

  1. It is submitted that the circulation note dated 10/02/2022 is passed without any application of mind by the Respondent and other members of the committee. It is submitted that the Petitioner has not received any notice to appear before the committee to defend the case as per the order passed by the Hon’ble Single Judge. It is submitted that the circulation note dated 10/02/2022 with regard to the Petitioner is not in

    accordance with the order passed in P. No. 24355 of 2014 dated 02/11/2021 as no opportunity of hearing the Petitioner before the committee was provided to the Petitioner and the same amounts to violation of natural justice.

 

  1. It is submitted that the Respondent has simply stated in the circulation note dated 10/02/2022 that the Film title “VIP” was released on 18th July 2014 had violated the relevant provisions of COTPA, 2003 and it has been proven for violation of Section 5 and action recommended to be initiated under Section 22 of the COTPA, 2003. It is submitted that the said order is a non-speaking order and the same is not in accordance with Law and the said order is passed without any application of mind.

 

  1. It is submitted that with regard to the Petitioner’s case, the Respondent recommended in circulation note dated 10/02/2022 that the action taken by them may be submitted to the Hon’ble High Court of Madras.

The recommendations are as stated below:

 

  1. Committee may recommend imposing Rs. 1,000 as fine for each 9 individual violators as per COTPA Act, 2003 and Rules through Court procedure and this can be posted in mass media.

 

  1. The authorised officer shall lodge a complaint before Jurisdiction Magistrate Court under CRPC, 1973 and to take prosecution against the 9 violators.

 

  1. The Respondent has stated in Para 10 of their complaint that as per circulation note dated 10/02/2022, the committee recommended the authorised officer to lodge a complaint before Jurisdiction Magistrate Court under CRPC, 1973 and as per the committee’s direction, the Respondent has filed the present complaint and the said statement is completely in contrary to the circulation note dated 10/02/2022.

 

  1. The Petitioner is constrained to approach this Hon’ble Court and is filing this present Memorandum of Criminal Original Petition to call for the records and quash the Complaint filed by the Respondent in STC 4004/2022 before the Hon’ble XVIII Metropolitan Magistrate Court at Saidapet, Chennai, on the following among other grounds:

 

GROUNDS

 

  1. The complaint filed against the Petitioner under Section 190(1)(a) and 200 CRPC r/w punishable u/s 22 r/w section 5 of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 and related rules and regulations is not maintainable because the said provision is only applicable for advertisements by manufacturers, suppliers or distributors of tobacco products. None of the sub sections of the said provision can be used against the producer of a film or the artists therein unless the alleged scene was an advertisement for a tobacco product. The depiction of a person smoking in a cinema requires a health disclaimer as a part of censorship regulations. Such disclaimers having been put, as admitted by the censor board before this Court in aforesaid Writ Petition, the prosecution launched by the committee under S.5 is wholly unsustainable.

 

  1. It is submitted that IndianPenal Code does not contain any provision for attaching vicarious liability on the part of the Managing Director or the Directors of the Company when the accused is the Company.

 

  1. It is submitted that the Hon’ble Judge passed an order in W.P. No. 24355 of 2014 dated 02/11/2021 stating that the Committee has to
    be constituted and the Committee shall function continuously and stated that the Petitioner is at liberty to defend their case before the Committee. The Petitioner Company was not given an opportunity to defend the case before the committee and the same amounts to violation of  principle of natural justice. The present complaint was filed

 

  1. It is submitted that the circulation note dated 10/02/2022 is passed without any application of mind by the Respondent and other members of the committee. It is submitted that the Petitioner Company has not received any notice to appear before the committee to defend the case as per the order passed by the Hon’ble Single Judge. Based on the circulation note, the present complaint has been filed. For this reason, the complaint has to be quashed.

 

  1. It is submitted that the Respondent has simply stated in the circulation note dated 10/02/2022 that the Film title “VIP” was released on 18th July 2014 had violated the relevant provisions of COTPA, 2003 and it has been proven for violation on Section 5 and action recommended to be initiated under Section 22 of the COTPA, 2003. It is submitted that the said order is a non-speaking order and the same is not in accordance with Law and the said order is passed without any application of mind. Based on the said non-speaking order, the present complaint has been filed against the Petitioner. For this reason, the complaint has to be quashed.

 

  1. It is submitted that CBFC confirmed that the certified Film VIP do contain the required mandatory disclaimers for smoking during the beginning as well as after interval and also in the smoking scene wherever shown. CBFC also further confirmed that the petitioner herein has complied with the directions issued by them. It is very clear that offences u/s 22 r/w section 5 of the Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003 has been made out.

 

  1. It is submitted that with regard to the Petitioner’s case, the Respondent recommended in circulation note dated 10/02/2022 that the action taken by them may be submitted to the Hon’ble High Court of Madras but the Respondent proceeded to file the complaint without any application of mind. For this reason, the complaint has to be quashed.

 

  1. The Respondent has stated in Para 10 of their complaint that as per circulation note dated 10/02/2022, the committee recommended the authorised officer to lodge a complaint before Jurisdiction Magistrate Court under CRPC, 1973 and as per the committee’s direction, the Respondent has filed the present complaint and the said statement is completely in contrary to the circulation note dated 10/02/2022 and there was no direction given by the committee and only recommendations were given to consider.

 

  1. The Respondent has failed to consider that the posters pertaining to the said Film ‘Velai Illa Pattathari’ were created and displayed in the theaters by the fans and the Petitioner company has not made any arrangements with regard to the banners and posters in the theatres.

 

  1. It is important to note that the Petitioner company never ‘took part’ in advertising the Posters of the said Film VIP which promotes or suggests the use or consumption of cigarettes which is a pre-condition for the
    applicability of the provisions of Sec. 5(1) COTPA. In this context it will be useful to refer to the judgment delivered by the Hon’ble High Court of Bombay in the case of National Organisation for Tobacco Eradication Vs. Keshu Ramsay reported in 2010 SCC Online Bom 1074/ 2011 Cri. L.J. 508, wherein the Court succinctly laid down the meaning of ‘take part’ as it appears in the COTPA, 2003. The Court held as follows:

 

“Lord Denning M. R. was dealing with interpretation of a similar expression, namely “takes part in the item” in section 9 of the Representation of People’s Act, 1969 in James Marshall v. BBC, ((1979) 3 All ER 80) and in that context Lord Denning observed that the words “takes part in” do not mean “is shown in”, they do not even go so far as to mean “co-operates in” They only mean actively participates in the item. That was also the view of Waller LJ when he said that “takes part in the item” mean “actively participates in item” Lord Waller LJ stated that the words require “active participation” and Cumming Bruce LJ, went a step further to say that “takes part in” mean “voluntarily participates in” The billboard or hoarding in question is an advertisement which was meant to promote anchor products on the banner of the film. Considering the text and context of expression used, it cannot be said that accused no. 4 AB Corporation Limited or accused no. 5 Amitabh Bachchan “took part in the said advertisement” on the billboard even if it could be said that it showed use of tobacco products or a smoking situation whilst advertising the anchor products of accused no. 3(i.e. M/s Anchor Daewoo India Limited), as contemplated by sub-rule 4, of Rule 2 of the aforesaid Rules. The billboard is a creature of accused no. 3 Anchor and M/s Intech International and if in creating the same they have used a clip from the film “Family” showing accused no. 5 Amitabh Bachchan as a don smoking a cigar it cannot be said that accused no. 5 Amitabh Bachchan has taken part in the said advertisement, as
contemplated by the last part of sub-section (1) of section 5, of the Act. Accused no. 5 Amitabh Bachchan has not taken part in the advertisement put up on the hoarding.”

Thus, it is clear from the above that the Petitioner company never took part in any advertisement, which directly or indirectly suggests or promotes the use or consumption of cigarettes or tobacco products.

 

  1. The Petitioner understands that the photographs enclosed by the Respondent with the Complaint have not been filed in accordance with law and do not comply with the requirements of Sec. 65-B of the Evidence Act, 1872, which mandate that a certificate u/s. 65-B(4) must accompany any electronic record before the commencement of trial. The electronic digital evidence of the photos is not produced before the Court in accordance with the relevant statue and also do not comply with the mandatory certification requirement and hence are not to be admitted into evidence by the Court. On this ground also the Complaint is liable to be quashed.

 

It is humbly prayed that this Hon’ble Court may be pleased to dispense with the personal appearance of the Petitioner in STC. No. 4004 of 2022 on the file of the Hon’ble XVIII Metropolitan Magistrate Court at Saidapet, Chennai – 15 and thus render justice.

 

It is most respectfully prayed that this Hon’ble Court may be pleased to grant Interim Stay of all further proceedings in STC. No. 4004 of 2022 before the Hon’ble XVIII Metropolitan Magistrate Court at Saidapet, Chennai – 15, pending disposal of the above Crl. O.P. and thus render justice.

 

In such circumstances, it is most humbly prayed that this Hon’ble Court may be pleased to call for the records culminating in STC. No. 4004 of 2022 on the file of the Hon’ble XVIII Metropolitan Magistrate Court at Saidapet, Chennai – 15 and quash the same and thus render justice.

 

Dated at Chennai on this the 18th day of July 2022

 

 

COUNSEL FOR PETITIONER

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