DIRECTORATE GENERAL OF HEALTH SERVICES Vs SOM PAN PRODUCT PVT. LTD. -Judgment by Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 22 January 2024
Judgment pronounced on : 24 January 2024
+ FAO 84/2022 & CM APPL. 16749/2022
DIRECTORATE GENERAL OF HEALTH SERVICES
….. Appellant
Through: Mr. Anupam Srivastava, ASC
for GNCTD with Ms. Sarita
Pandey Adv.
versus
SOM PAN PRODUCT PVT. LTD. ….. Respondent
Through: Mr. Dushyant K. Mahant, Adv.
+ FAO 89/2022 & CM APPL. 17347/2022
DIRECTORATE GENERAL OF HEALTH SERVICES
….. Appellant
Through: Mr. Anupam Srivastava, ASC
for GNCTD with Ms. Sarita
Pandey Adv.
versus
VISHNU POUCH PACKAGING PVT. LTD. ….. Respondent
Through: Mr. Dushyant K. Mahant, Adv.
CORAM:
HON’BLE MR. JUSTICE DHARMESH SHARMA
J U D G M E N T
FACTUAL BACKGROUND
1. This common order/judgment shall decide the two appeals,
FAO 84/2022 and FAO 89/2022, filed by the appellant, who is the
defendant in the two Civil Suits in question under Section 94 read
with Order XLIII Rule 1 (r) of the Civil Procedure Code, 19081
assailing separate orders dated 15.12.2021 passed by the learned
Additional District Judge-02, Tis Hazari Court, Central District,
Delhi2 in CS DJ No. 1588/2018 titled �Som Pan Product Pvt. Ltd. vs.
Directorate General of Health Services� and in CS DJ No. 1070/2018
titled �Vishnu Pouch Packaging Pvt. Ltd. vs. Directorate General of
Health Services�. The impugned orders raise a common question of
law arising from a similar set of facts and circumstances.
1 CPC
2 Trial Court
3 TMA
4 COTPA
FAO 84/2022
2. Briefly stated, the appellant/defendant issued a show cause
notice dated 25.04.2018 to the respondent company for displaying
huge board display of �DILBAGH�, a brand dealing in tobacco
products, at Dabri flyover for an event of Kathu Shyam Katha and a
community marriage function. It was the case of the appellant that
�DILBAGH� being a registered brand of tobacco under Section 34 of
the Trade Marks Act, 19993, the said advertisement or publicity for
promotion of �DILBAGH� Pan Masala is an indirect / surrogate
advertisement, and therefore, is in violation of Section 5 of The
Cigarettes and Other Tobacco Products (Prohibition of Advertising
and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 20034.
3. The said notice was replied to by the respondent/plaintiff vide
its letter dated 07.05.2018 challenging the show cause notice inter alia
on the ground that they were not manufacturing any tobacco product
of �DILBAGH� brand in India, and therefore, the question of
surrogate / indirect advertisement of the tobacco product of
�DILBAGH� brand does not arise. The show cause notice dated
25.04.2018 was challenged in civil suit bearing CS DJ No 1588/2018
seeking Permanent Injunction & other reliefs, and an application
under Order XXXIX Rule 1 & 2 CPC was moved for grant of ad-
interim injunction against the appellant/defendant from taking any
action against the respondent/plaintiff company under the law.
FAO No. 89/2022
4. Likewise, in this appeal too, the appellant/defendant issued a
show cause notice on 01.03.2018 to the respondent/plaintiff company
for putting up a huge and strategic display / promotion of �VIMAL�, a
brand dealing in tobacco products, that had been published on the
front page of the newspaper �Times of India”, in its edition dated
01.03.2018 wherein �Vimal Elaichi” was promoted. It was the case of
the appellant that �VIMAL� being a registered brand of tobacco under
class 34 of the TMA, the said advertisement was an indirect /
surrogate advertisement for promotion of �VIMAL Elaichi”, thus
falling foul of Section 5 of the COTPA.
5. The respondent/plaintiff company also replied to the show
cause notice vide letter dated 08.03.2018 and refuted the allegations
that the publicity of its product in question was in any manner
surrogate advertisement and inter alia it was stated that they are not
manufacturing any tobacco product of �VIMAL� brand in the
domestic market. The respondent/plaintiff company also challenged
the show cause notice by filing suit CS DJ No. 1070/2018 seeking
permanent injunction & other reliefs, and filed an application under
Order XXXIX Rules 1 & 2 of the CPC seeking temporary injunction
against it from proceeding in terms of the impugned show cause notice
dated 01.03.2018.
6. The applications in the aforesaid two Civil Suits under Order
XXXIX Rule 1 & 2 of the CPC were decided vide separate orders
dated 15.12.2021, whereby the operation of the impugned notices
dated 25.04.2018 and 01.03.2018 was stayed, which is being assailed
in the present two appeals. Further, the respondent/plaintiff companies
were allowed to carry out their advertisement campaign with regards
to the product in question till the final disposal of the suit.
GROUNDS OF APPEAL
7. The grounds taken for appeal in the two appeals are more or
less of a similar nature and the separate impugned orders dated
15.12.2021 are assailed inter alia on the ground that the learned Trial
Court decided the application under Order XXXIX Rule 1 & 2 of CPC
without first deciding the issue of the maintainability of the suit qua
section 29 of the COTPA, which provides protection to the
government authorities against any suit, prosecution or legal
proceeding for an action done or intended to be done in good faith;
and that Section 5 of COTPA categorically bars advertisement of
cigarettes and other tobacco products by any person engaged or
purported to be engaged in the production, supply and distribution of
cigarettes and tobacco products.
8. In this regard, in FAO No. 84/2022, it was stated that
admittedly, the respondent is engaged in the business of selling
�DILBAGH� pan masala amongst other established products of
�DILBAGH� brand, that inter-alia includes chewing tobacco, zarda,
bidi and gutka; and that the learned Trial Court failed to appreciate
that the trademark �DILBAGH� is registered by the
respondent/plaintiff under Class 34 (Tobacco) and inter-alia sells
products known as �Dilbagh Pan Masala”, �Dilbagh Tango Gulab”,
�Scented Mithi Supari”, �Dilbagh Tanatan Khaini, Dilbagh Ragda”,
�Dilbagh Bidi” etc., that categorically puts the respondent/plaintiff in
the category of persons covered within the four corners of Section 5
COTPA; and that the learned Trial Court failed to appreciate that the
use of brand name �DILBAGH� is a clear case of surrogate or indirect
advertisement of its pan masala by using tobacco of brand
�DILBAGH� and it is emphasized that �gutka” is only one of the
forms of tobacco, which is banned for sale in India and that learned
Trial Court failed to appreciate that grant or refusal of injunction will
adversely affect the interest of general public of health, which cannot
be compensated otherwise.
9. Likewise, in FAO 89/2022 the impugned order dated
15.12.2021 is assailed inter alia on the grounds as stated above,
except that for the similarity to the effect that �VIMAL” brand is
registered by the respondent/plaintiff company under Class 34
(Tobacco) and inter-alia sells products known as �Vimal Pan Masala”,
�Vimal Zarda”, �Vimal Apna Tobacco”, �Vimal Jhatka”, �Vimal
Ragda”, �Vimal Signature”, �Vimal King” and it is submitted that the
learned Trial Court failed to appreciate that indirect use of �VIMAL”
brand in advertisement would amount to surrogate advertisement in
terms of Section 5 of the COTPA r/w Rule 2 (e) of COTP Rules.
LEGAL SUBMISSIONS:
10. Learned counsel for the appellant/defendant vehemently urged
that the learned Trial Court did not consider the issue of
maintainability of the suit qua Section 29 of the COTPA, and it
completely overlooked the scope and ambit of Section 5 of the
COTPA, which prohibits direct and indirect advertisement, which has
to be read along with Rule 2 (e) (i) of the COTP Rules, 2004.
Reference was invited to the Notification dated 31.05.20055 to the
effect that indirect advertisement would inter alia include use of name
or brand of tobacco products for marketing, promoting or advertising
other goods, services and events under Rule 2 (e). Learned counsel for
the appellant also challenged the observations of the learned Trial
Court contained in paragraph (7.1) onwards of the impugned order(s)
to the effect that since the sale of gutka is banned through the country,
there is no reason / occasion for the respondent to indulge in
surrogate advertisement for promotion of product which cannot be
sold in the country. It was pointed out that the act of indirect or
surrogate advisement has to be appreciated in the context of
manufacturers or traders selling pan masala without tobacco with
flavoured chewing tobacco in separate sachets but often conjointly
sold together by the same vendor. In her submissions she relied on the
5 G.S.R. 345(E), dt. 31-5-2005 (w.e.f. 2-11-2006) by Ministry of Health & Family Welfare,
as corrected by G.S.R. 599(E), dt. 28-9-2006.
decision in Union of India & Ors. v. Unicorn Industries6. Learned
counsel further relied on Mahesh Bhatt and ors v. Union of India
and Ors7 and Colgate Palmolive (India) Ltd. v. Hindustan Lever
Ltd.8
11. Per contra, learned counsel for the respondent/plaintiff
company urged that merely for the fact that the brand names are
registered under Class 34 per se does not imply indirect or surrogate
advertisement of banned products, particularly when the brand name
is also registered under Class 29, 30 and 31 of the TMA for various
other kinds of food products. Alluding to the advertisements /
publicity material in question, which was found to be objectionable, it
was vehemently urged that the same does not in any manner promote,
sell or imply marketing of the banned items in the nature of gutka,
tobacco or banned substances. It was urged that if there is any issue of
permissibility of the product now being sold by VIMAL brand names
on question on health grounds, the government is very well within its
powers to ban the manufactures sale or marketing of the products,
which in any case has not been done, so much so that export of gutka
and tobacco items is allowed. Referring to the provisions of the
COTPA and relevant Rules, it was urged that Section 29 of the
COTPA is inapplicable as the impugned show cause notice issued in
the two cases by the appellant are ultra vires of the said Act.
6 AIR 2019 SC 4436.
7 2008 SCC OnLine Del 159.
8 (1999) 7 SCC 1.
ANALYSIS AND DECISION
12. I have given my thoughtful consideration to the submissions9
advanced by the learned counsel for the rival parties at the Bar. I have
gone through the record of the case besides written submissions and
the case law relied upon by the parties.
13. The main plank of the challenge to the impugned orders passed
by the learned Trial Court is with regard to the suits being barred by
Section 29 of the COTPA, which reads as under:-
9 Written Submissions on behalf of Appellant/Defendant filed on 17/12/2023; Written Submissions
on behalf of Respondent/Plaintiff filed on 22/01/2024.
10 (2020) 2 SCC 557.
11 1991 Supp. (2) SCC 649.
�29. Protection of action taken in good faith.
No suit, prosecution or other legal proceeding shall lie against the
Central Government or any State Government or any officer of the
Central Government or any State Government for anything which
is in good faith done or intended to be done under this Act.�
14. It is well settled that Section 9 of the CPC vests jurisdiction
with the Civil Courts for trying any suit or proceedings under common
law unless the suit or proceeding is expressly or impliedly barred by
any law. At the core of a provision laying down exclusion of
jurisdiction of the Civil Court lies the fundamental question as to
whether or not the action or anything done under the Special Act is
maintainable or fall within the jurisdiction of such Act. In the case of
Nusli Neville Wadia v. Ivory Properties & Ors.10, it was held that
the Court has power or inherent jurisdiction to entertain suits in
respect of actions or proposed action falling outside the scope and
ambit of the special jurisdiction. Reference can also be made to Ishar
Singh v. National Fertilizers & Anr.11, Chiranjilal Shrilal Goenka
(Deceased) Through LRs v. Jasjit Singh & Ors.12 and Saraswati &
Ors. v. Lachanna (Dead) Through LRs13. In other words, if the
purported action of the appellant/GNCTD falls within the four corners
of the COTPA, the jurisdiction of the Civil Court to entertain any
challenge to the Act done or purported to be done under the COTPA
shall be excluded.
15. Insofar as FAO No. 84/2022 is concerned, it is pertinent to
mention that the learned Trial Court vide the impugned order dated
15.12.2021 also dealt with the objection raised by the
appellant/defendant about jurisdiction of the Civil Court being barred
by Section 29 of the COTPA, and it would be relevant to reproduce
the observations by the learned trial Court, which reads as under:-
12 (1993) 2 SCC 507
13 (1994) 1 SCC 611
�8. The defendant has contended that as per Section 29 of the
COTPA Act, no suit or legal proceeding can be instituted against
the defendant for actions taken in good faith or under this Act. In
this regard, Ld. Counsel for the plaintiff submitted that certain
corporation producing alcohol or alcohol related products are
advertising their brands through music CDs. No action has been
taken against such corporations and/or advertisements.
8.1 The defendant has not given any specific reply in this
regard. Accordingly, this point is not addressed by the defendant.
At this stage, the court would not like to make any observation
regarding the action of the defendant, whether it is in good faith or
not.�
16. At first glance, the aforesaid reasoning appears to be quite
cryptic and it manifestly appears that the learned Trial Court has failed
to address the issue of its jurisdiction to entertain the suit in terms of
Section 29 of the COTPA. However, there is more to the story than
what meets the eye. It would be expedient to re-produce Section 5 of
the COTPA, which provides as under:-
�5. Prohibition of advertisement of cigarettes and other tobacco
products.�
(1) No person engaged in, or purported to be engaged in, the
production, supply or distribution of cigarettes or any other tobacco
products shall advertise and no person having control over a
medium shall cause to be advertised cigarettes or any other tobacco
products through that medium and no person shall take part in any
advertisement which directly or indirectly suggests or promotes the
use or consumption of cigarettes or any other tobacco products.
(2) No person, for any direct or indirect pecuniary benefit, shall�
(a) display, cause to display, or permit or authorise to
display any advertisement of cigarettes or any other tobacco
product; or
(b) sell or cause to sell, or permit or authorise to sell a
firm or video tape containing advertisement of cigarettes or
any other tobacco product; or
(c) distribute, cause to distribute, or permit or authorise
to distribute to the public any leaflet, hand-bill or document
which is or which contains an advertisement of cigarettes or
any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any land,
building, wall, hoarding, frame, post or structure or upon or
in any vehicle or shall display in any manner whatsoever in
any place any advertisement of cigarettes or any other
tobacco product:
PROVIDED that this sub-section shall not apply in relation to�
(a) an advertisement of cigarettes or any other tobacco
product in or on a package containing cigarettes or any
other tobacco product;
(b) advertisement of cigarettes or any other tobacco
product which is displayed at the entrance or inside a
warehouse or a shop where cigarettes and any other tobacco
products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise promote or
agree to promote the use or consumption of�
(a) cigarettes or any other tobacco product; or
(b) any trade mark or brand name of cigarettes or any
other tobacco product in exchange for a sponsorship, gift,
prize or scholarship given or agreed to be given by another
person.
17. It is pertinent to mention here that Section 3(a) of the COTPA
defines �advertisement” to include any visible representation by way
of notice, circular, label, wrapper or other document and also includes
any announcement made orally or by any means of producing or
transmitting light, sound, smoke or gas. It would further be expedient
to draw reference to the Notification dated 31.05.200514, which was
passed in exercise of powers conferred under Section 31 of the
COTPA thereby laying down COTP Rules, 2004 and Rule 2(e) reads
as under:-
14 Supra (n5).
�(e) �Indirect advertisement� mentioned in Section 5(1) of the Act
means:
(i) the use of a name or brand of tobacco products for
marketing, promoting or advertising other goods, services
and events;
(ii)the marketing of tobacco products with the aid of a brand
name or trademark which is known as, or in use as, a
name or brand for other goods and services;
(iii)the use of particular colours and layout and or
presentation that are associated with particular tobacco
products, and
(iv)the use of tobacco products and smoking scenes when
advertising other goods and services.�
18. It would be expedient to point out that the aforesaid provision
came up for a detailed discussion in the cited case of Mahesh Bhatt
(supra), wherein it was held as follows:-
�16…The object and purpose behind the Act and the Rules, which
are comprehensive legislations, is to regulate, trade, sale
distribution and advertisement of tobacco products and discourage
use of tobacco products…�
19. It was further observed as follows:-
�17…Keeping in view the nature, object and purpose behind the
Act, the evil sought to be curbed, which the Act seeks to deal with
and applying the �mischief rule� we prefer the latter interpretation,
that is, the Act seeks to prohibit, direct and direct, advertisement by
the person engaged in production, supply or distribution of
cigarettes and also any person having control over the media shall
be prohibited from advertising, directly or indirectly, cigarettes or
tobacco products. Any other interpretation would prohibit a person
from participating directly or indirectly in any offending
advertisement but would permit and tacitly allow indirect
advertisements by dealers, manufacturers, media etc.�
20. Further, the following significant observations also came to be
made:-
�19. The impugned Rules by definition Clause 2(e) seek to define
�indirect advertisement�. It cannot be denied that advertisements
can be direct or indirect. In the media, surrogate advertisement or
indirect advertisement is often resorted to. To leave out indirect
advertisements would in fact make the legislation toothless and
capable of avoidance at will. Rules seek to effectuate and ensure
proper implementation of Section 5 of the Act. The impugned
Rules, which seek to define the term �indirect advertisement�.
Therefore cannot be regarded as ultra virus or seeking to go beyond
the parent statute. The relevant Rules, their scope, import, purpose
and reasonableness has been discussed in the later portion of this
judgment and is not being separately examined under this
heading.�
21. At the same time, what must also be appreciated is that the
aforesaid observations came to be passed by this Court in the case of
Mahesh Bhatt (supra) in the context where the constitutional validity
of the COTPA besides the Rules framed therein was challenged,
which challenge was declined holding inter alia that commercial
advertisements are entitled to limited protection under Article 19 (1)
(a) of the Constitution if they are in public interest and thereby it was
held that any restrictions imposed on the electronic media and
cinematographic films prohibiting exposure of cigarette and tobacco
products are reasonable and justified.
22. In the cited case of Unicorn Industries (supra) there was a
challenge to the amendment brought out by the Government by way of
notification in the �First” and �Second” Schedule to the Central Excise
Tariff Act, 1985 so as to bring the product pan masala in the negative
list, and the same being no longer eligible from exemption from excise
duty. Dismissing the challenge to withdrawal of exemption from
imposing of excise duty on pan masala with tobacco and pan masala
sans tobacco, it was observed that the same measures had been
brought out after a lot of scientific research conducted by the experts
in the field and consumption of tobacco with/sans pan masala was
hazardous to health, and therefore, bringing the pan masala sans
tobacco within the ambit of negative list in the Act was found to be in
the larger public interest.
23. Reverting to the instant matter, avoiding a long jurisprudential
discourse, suffice to point out, the hoarding in question showing the
brand name �Dilbagh pan masala” and inviting action by the
appellant/defendant under Section 5 of the COTPA read with relevant
Rules was dealt with by the learned Trial Court to find out a prima
facie case in favour of the respondent/plaintiff, that reads as under:-
�7.1(b) The main point raised by the defendant is that the
plaintiff is carrying out a surrogate ad-campaign whereby the
product �DILBAGH PAN MASALA� is being advertised to
promote tobacco products of the plaintiff under the brand name
�DILBAGH�. On the other hand Ld. Counsel for the plaintiff
submitted that since the year 2013 in view of the order by Hon”ble
Supreme Court the advertisement and sale of gutka is banned
throughout the country. As per the schedule of the COPTA ACT
pan masala without tobacco is not a product to which COPTA ACT
applies.
7.1(c) In the impugned notice also rule 2(a) of notification dated
31.05.2005 is quoted. It was submitted on behalf of the defendant
that Section 5 of the COPTA ACT shall be read with Rule 2(a) of
the rules made therein. [It is pertinent to observe that Rule 2(e) of
Cigarettes and Other Tobacco Prohibition of Advertisement or
Regulation of trade and Commerce, production, supply and
distribution) Rules, 2004 is the same as rule 2(a) of notification
dated 31.05.2018]. In the rules the words �Indirect Advertisement�
are mentioned. In my considered opinion, the words �Indirect
Advertisement� correspond to the words �Surrogate
Advertisement�, used in advertisement business parlance. For
examining a matter of surrogate advertisement Rule 2(e) is the
relevant rule. Section 5 of the COPTA ACT prohibits display
advertisement, Sale etc. of cigarettes and other tobacco products. In
Section 5 of the COPTA Act, there is no specific prohibition
regarding surrogate advertisement. It is only upon reading of Rule
2(e) that the situation is clear particularly Rule 2(e)(i) which
prohibits the use of a name of brand of tobacco product for
marketing, promoting or advertising other goods services and
events.
7.1(d) It was submitted on behalf of the plaintiff that Dilbagh Pan
Masala is 100% tobacco free. It is not the case of the defendant that
Dilbagh pan masala has any tobacco or other banned substance. In
this regard, it is pertinent to observe that the defendant has
nowhere claimed that Dilbagh pan masala contained any tobacco,
nicotine or any other banned substance. The defendant has also not
produced any material to show, under which class or classes the
brand name Dilbagh is registered. The defendant has also not
produced any material to show, under which class or classes the
brand name Dilbagh is registered. The defendant has nowhere
claimed that Dilbagh pan masala is registered under Class 34.
7.1(e) It is pertinent to observe that the said hoarding containing
the name of the product is question was put at Dabri Flyover. It
was a local advertisement within the country. In view of the order
of the Hon”ble Supreme Court in the year 2013, the sale of gutka is
banned throughout the country. In such circumstances, there is no
reason/occasion for the plaintiff to indulge in surrogate
advertisement for the promotion of a product which it cannot sell in
the country.
7.1(f) Ld. Counsel for the defendant argued that tobacco pouches
were being sold with pan masala pouches. Such information was
not printed on the pan masala pouches. In this regard, Annexure-A
(colly) was filed alongwith affidavit dated 30.11.2021. In
Annexure-A (Colly) there are two pages having black and white
print outs of pan masala pouches (including Dilbagh Pan Masala)
and tobacco pouches. One envelope containing one pouch each of
�Dilbagh Pan Masala�, Vimal Pan Masala and Kamla Pasand Pan
Masala is also filed. Small pouches containing tobacco are also in
this envelope. However, the defendant did not produce any credible
material to show that the plaintiff is advertising these tobacco
pouches or that the sale of these tobacco pouches is illegal. On
none of these tobacco pouches the brand name �DILBAGH� is
anywhere mentioned.
7.1(g) In view of the above, it can be summarised that the product
in question is not alleged to be containing any tobacco or other
band substance. The sale of gutka is banned throughout the
country. There is no reason or occasion for the plaintiff to advertise
its tobacco products through �indirect advertisement�.
Accordingly, the plaintiff has a prima facie case.�
24. Learned counsel for the appellant vehemently urged that
Section 3 (p) defines �tobacco products” as those which are specified
in the Schedule. The Schedule inter alia vide item No.8 reads as �pan
masala or any chewing material having tobacco as one of its
ingredients (by whatever named called).� It would be apposite to
appreciate that the use of word �or”15 after pan masala and before any
�chewing material” prima facie signifies that it is used as a disjunctive
word, and thus, only such pan masala which is laced with the tobacco
or having tobacco as one of its ingredients i.e., tobacco products that
would fall within the mischief of Section 5(1) of the COTPA. There
is no challenge to the fact by the appellant that the �pan masala� in
question is one which is not laded or having ingredients of tobacco. It
is also demonstrated that although the brand names are registered
under Class 34, the same brand name is also registered for various
15 �Conj. 1 used to link alternatives. 2 introducing a synonym or explanation of a preceding word
or phrase. 3 otherwise”, Concise Oxford English Dictionary (OUP 1999).
other kinds of products under Class 29, 30 and 31 of the TMA.
Indeed, chewing of pan masala is hazardous to health but the State
Government or for that matter the Central Government has not chosen
to ban the sale or marketing of the same. In the cited case of Mahesh
Bhatt (supra) the Division Bench of this Court quoted with approval
from the decision in Denis v. US16 that �a legislation may be
constitutional yet it may not be desirable�.
25. The plea of the appellant that Rule 2 (a) of the COTP Rules is
squarely applicable, is not tenable as both the respondents/plaintiffs
are not engaged in manufacturing, marketing or sale of tobacco, gutka,
bidi, or zarda in any manner in the country. Further, the plea that
advertisement by using brand name �DILBAGH pan masala� is
indirect or surrogate advertisement since pan masala is clandestinely
sold or marketed or made available for sale, or marketed along with
gutka along with tobacco products is a question which can only be
decided after recording evidence by the parties. In other words, the
plea that in order to circumvent the ban on sale of gutka and pan
masala containing tobacco, the same or other sister manufacturers and
traders are selling pan masala sans tobacco with flavoured chewing
tobacco in separate sachets but often conjointly sold together by the
same vendors from the same premises, is a matter of evidence to be
decided during the trial.
26. Likewise, is the position with regards to use of brand name
�VIMAL� in the questioned advertisement, which is under challenge
in FAO 89/2022, which is about display of a hoarding selling
16 (1950) 341 US 492
�VIMAL Elaichi”, which by no means falls under the Schedule to the
COTP Rules. At the cost of repetition, the plea that �VIMAL Elaichi”
is sold along with other products under the same brand with flavoured
chewing tobacco in separate sachets conjointly and often from the
same premises, is one which would require recording of evidence. It
would be mere repetition that other products of brand name �VIMAL�
are also registered under Class 29, 30 and 31 of the TMA. It is a
matter of evidence whether or not use of brand names for selling
articles such as pan masala and Elaichi would amount to indirect or
surrogate advertisement so as to promote, sell or imply marketing of
banned items in the nature of gutka or tobacco, which incidentally is
not banned for export from India.
27. In so far as the legal parameters of irreparable loss and balance
of convenience are concerned, the reasoning of the learned Trial Court
in the two cited cases are ditto to the following effect:
�7.2(a) The balance of convenience is in favour of the plaintiff.
The plaintiff can be allowed to continue with its pan masala
business as per law. If the advertisement of the plaintiff for the
product in question is stopped during the pendency of this suit it
will cause loss of revenue as well as goodwill which will be
irreparable. It may be argued that the plaintiff can be compensated
in terms of money, however, the loss of good will cannot be
assessed or compensated. If the product of a manufacturer is
missing from the market for sometime; it is not probable for the
said product to make a comeback.�
28. Again, while the aforesaid reasoning at first impact appears to
be a little erratic, but then what can be deciphered is that the
respondent/ plaintiff has a fundamental right to carry on business
under Article 19(1)(g) of the Constitution of India, for the sale and
marketing of pan masala sans tobacco so long as it is has
constitutional sanction. When that legal right exists, certainly the
appellant/defendant could only take action for banning publicity or
advertisement of such permitted items if their action falls within the
four corners of law. Indeed, there is the issue of public health hazard
but then when the government has not chosen to ban it, both
parameters of balance of convenience and irreparable loss tilt towards
the respondent/plaintiff. Here, reliance on decision in Colgate
Palmolive (India) Ltd. (supra) is misplaced since it was in relation to
action taken by the Monopolies and Restricted Trade Practices
Commission passing an order of restrain as regards the display of a
ring around the family as �Suraksha Chakra� in the Colgate Palmolive
hoardings, print advertisements and TV commercials, which directions
were passed in terms of Section 12A of the Monopolies and
Restrictive Trade Practices Act, 196917. Indeed, it was held that while
17 Section 12A. Power of the Commission to grant temporary injunctions.�(1) Where, during
an inquiry before the Commission, it is proved, whether by the complainant, Director General, any
trader or class of traders or any other person, by affidavit or otherwise, that any undertaking or any
person is carrying on, or is about to carry on, any monopolistic or any restrictive, or unfair, trade
practice and such monopolistic or restrictive, or unfair, trade practice is likely to affect
prejudicially the public interest or the interest of any trader, class of traders or traders generally or
of any consumer or consumers generally, the Commission may, for the purposes of staying or
preventing the undertaking or, as the case may be, such person from causing such prejudicial
effect, by order, grant a temporary injunction restraining such undertaking or person from carrying
on any monopolistic or restrictive, or unfair, trade practice until the conclusion of such inquiry or
until further orders.
(2) The provisions of Rules 2-A to 5 (both inclusive) of Order XXXIX of the First Schedule to the
Code of Civil Procedure, 1908 (5 of 1908), shall, as far as may be, apply to a temporary injunction
issued by the Commission under this section, as they apply to a temporary injunction issued by a
civil court, and any reference in any such rule to a suit shall be construed as a reference to any
inquiry before the Commission.
Explanation I.�For the purposes of this section, an inquiry shall be deemed to have commenced
upon the receipt by the Commission of any complaint, reference or, as the case may be, application
or upon its own knowledge or information reduced to writing by the Commission.
Explanation II.�For the removal of doubts, it is hereby declared that the power of the
Commission with respect to temporary injunction includes power to grant a temporary injunction
without giving notice to the opposite party
granting ad-interim injunction the Court inter alia has to consider
whether grant of refusal of injunction would adversely affect the
interest of general public, which can or cannot be compensated
otherwise. It was also underscored that in order to hold that the
practice, which is questioned in a case, would affect prejudicially
public interest must be based on some tangible evidence. In the instant
matter before this Court, that stage is yet to arrive.
29. In view of the foregoing discussion, both the above noted
appeals filed by the appellant/defendant are dismissed.
30. The pending applications also stand disposed of.
31. Nothing contained herein shall tantamount to an expression of
opinion on the merits of the case.
32. A copy of this judgment be sent to learned Trial Court for
information and records.
DHARMESH SHARMA, J.
JANUARY 24, 2024