JUDGMENT: ( Per T. V. Nalawade, J. )
. Rule. Rule made returnable forthwith. By consent, heard both the sides for final disposal.
2 The petition is filed for reliefs of declaration, direction and injunction and the object is to prevent the advertisement made on TV channels by which there is promotion of sale of articles like Hanuman Chalisa Yantra.
3 The learned APP represented the State Government and police station. Mr. Nagargoje, learned counsel represented the Government of Indian and the authority created by Government of India to have control over the TV channels. The original Petitioner wanted to withdraw the proceeding, but by order dated 6thJuly, 2018, this Court made it clear that the subject matter involves interest of public at large and the withdrawal cannot be allowed. Learned
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counsel Shri V. D. Sapkal (now learned senior counsel) was appointed as amicus curiae and he prosecuted the matter. Some amendments were made in the present proceeding by him.
4 It is contended in the petition that in March 2015, the Petitioner came across advertisements on TV channels and the advertisements were propagating that there were special, miraculous and supernatural properties / qualities in Hanuman Chalisa Yantra, which the advertiser was selling. The purpose of the advertisement was to promote the sale of said Yantra. It is contended that this was a false propaganda and the propaganda is made to exploit the persons, who are superstitious by nature and to exploit them.
5 It is contended in the petition that in the advertisement there was a propaganda that by using aforesaid Yantra, the businessmen who were making losses had started making huge profits, the persons who were not having employment had got employment, the persons who had lost hope to make career had made career in service, the students had improved their performance, sick persons had recovered from illness and the Yantra had brought happiness to the persons, who were grieved. It was also propagated that due to use of the Yantra, the persons who were not having any
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prospects of marriage had got married.
6 It is contended in the petition that there was a false propaganda that the Yantra was prepared by one Baba Mangalnath, who had achieved Siddhi (ability to do anything). It is contended that false propaganda was made that said Baba had blessings of Lord Hanuman. It is contended that false propaganda was made that bringing Yantra to home was like bringing Lord Hanuman himself to home and one, who was using it was feeling that Lord Hanuman was with him and Lord Hanuman was giving every kind of protection to him. It is contended that false propaganda was made that entire Hanuman Chalisa was written on Yantra in Germany and each letter written would last lifelong. It is contended that false representation was made that the Yantra (pendent) was having gold plating of 24 carat gold. It is contended that a chain was offered as a free and it was represented that the chain had also gold plating. It is contended that in the advertisement made on TV channels the price of Yantra was given as Rs.4,900/- and it was advertised that this was concessional rate. It is contended that the celebrities like Manoj Kumar (the then renowned film producer, writer, director, actor), Anuradha Paudwal (singer) and Anup Jalota (singer) were shown in the advertisement and their experiences were quoted that they had
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received benefits and they had experienced miracles by using the aforesaid Yantra. With the petition, transcript of the contents of the aforesaid advertisement is produced. A copy of the advertisement published in newspaper by the same seller is also produced. The contents of the advertisement are not disputed by the seller, Respondent No.11, who has contested the matter.
7 It is contended in the petition that to unearth falsity in aforesaid propaganda, the Petitioner had placed order for purchase of one such Yantra by contacting the office of Respondent No.11. It is contended that as per the demand of Respondent No.11, the Petitioner had paid amount of Rs.5,200/- and Yantra was also delivered to him. Alongwith the petition, a receipt in respect of Rs.5,200/- dated 11thMarch, 2015 issued by Respondent No.11 is produced and the receipt shows that the order number was 19300648. Alongwith the petition, a photocopy of box, in which the Yantra was delivered, is produced. Photocopy of list of rituals, which were to be performed before use of Yantra is also produced.
8 It is contended in the petition that the original Petitioner had made representations to Honourable Prime Minister, Honourable Chief Minister, to the authority created by Central Government to
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oversee such advertisements and also police. It is contended that as no steps were taken to prevent such advertisement, the Petitioner was constraint to file the proceeding. It is also contended that he got verified that the aforesaid articles had no gold plating. Copies of representations are produced alongwith the petition.
9 No notice of the present proceeding was issued against the celebrities appearing in the advertisement, who had participated in the aforesaid advertisement in view of the nature of reliefs claimed. During the arguments, following reliefs were pressed:
(i) Declaration that the advertisement is illegal in view of the provisions of the Maharashtra Prevention and
Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 (hereinafter referred to as "Black Magic Act") and the provisions of the Cable Television Networks (Regulation) Act, 1995 (hereinafter referred to as "Television Networks Act");
(ii) Directions against the Central Government and the State Government to create a Monitoring Cell at all India level and at State level to prevent the telecast of such
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advertisement;
(iii) Direction to stop such advertisement;
(iv) Direction to the State Government to create separate cell for proper implementation of the Black Magic Act and to see that the offences are registered against the persons making such advertisement; and
(v) Direction to refund the amount paid by the Petitioner to Respondent No.11 and for giving compensation to him.
10 In the reply filed by Respondent No.11, it is contended that the Black Magic Act is not applicable in the present matter. It is contended that the Television Networks Act is also not applicable in the present matter. It is contended that the Petitioner ought to have exhausted statutory remedies as provided under Sections 4 and 6 of the Black Magic Act and also the remedies provided under the Consumer Protection Act.
11 It is the contention of Respondent No.11 that conduct of the Petitioner that immediately after collecting the Yantra from Respondent No.11 representations were made by the Petitioner to the
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Central Government and the State Government, shows that his intention was to file the present proceeding and there was no deceit as such of the Petitioner. A copy of Tunch report in respect of one Yantra is produced by Respondent No.11 and it is contended that the Yantra sold to Petitioner had gold plating. It is contended that the rituals mentioned in the pamphlet are normal Hindu practices and they cannot be called as a part of magic. It is contended that it is not the case of the Petitioner that he is not satisfied with the product and so on that ground also the petition is not tenable. It is contended that other persons have made similar advertisements and programs on TV channels, but no action is taken against them. A copy of one such program started on TV channel in the name of Lord Hanuman is produced. Respondent No.11 has produced a copy of conversation of the Petitioner with the office of Respondent No.11 to show that the pendant, Yantra was delivered at Mumbai. It is contended that though the order was placed by the Petitioner from Aurangabad, as the Yantra was delivered in Mumbai, this Court has no jurisdiction.
12 During hearing of the present proceeding, it transpired that Writ Petition No.2860 of 2014 was filed in Nagpur Bench of Bombay High Court for similar reliefs. By order dated 4thDecember, 2020, this Court had directed the office to collect a copy of petition,
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copy of say filed by the Central Government and copies of orders passed by the Court in that matter. The report of the Registrar (Judicial) of this Court shows that most of the record is destroyed by the Nagpur office. Only the cause title and copies of orders made in that matter at Nagpur Bench and dated 24thJune, 2014, 9thJuly, 2014 and 22ndAugust, 2014 are produced. Apparently, Writ Petition No.2860 of 2014 was filed for similar reliefs. The order dated 22nd August, 2014 is relevant for the present matter and it is as under:
"Shri Kavimandan, the learned counsel for the petitioner, states that the petitioner is desirous of filing a fresh petition if the Central Government fails to frame the necessary regulation/circular prohibiting the religious advertisement which violates the advertisement Code of the Cable Television Network (Regulation) Act, 1995. The learned counsel for the petitioner states that the petitioner is desirous of withdrawing the instant petition. A pursis in that regard is tendered in the court today. The same is accepted on record.
Shri Deo, the learned ASGI disputes the statement in this pursis.
We grant permission simplicitor to withdraw the petition.
The writ petition stands disposed of as withdrawn."
13 A copy of order made by the Honourable Apex Court in
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the case reported as 2017 LawSuit (SC) 338, (Common Cause (A Regd Society Vs. Union of India & ors) is produced in the present proceeding. This order shows that the proceeding was in respect of Programme Code mentioned in Rule 6 of the Cable Television Networks Rules made under the Television Networks Act. To ascertain as to whether there is any inconsistency in aforesaid Central Act and the State Act, this Court is quoting some Rules and some provisions of both the Acts. Rule 6(1)(j) of the Cable Television Networks Rules made under the Television Networks Act shows that no programme should be carried in the cable service, which encourages superstition or blind belief. In view of the nature of grievance of the Petitioner in that matter, the Apex Court advised the Union Government to formalize the Complaint Redressal Mechanism, which can be done under Section 22 of the Television Networks Act.
14 There is more record produced like letter dated 20th March, 2020 sent by the Deputy Secretary of Government of India in Ministry of Information and Broadcasting. The letter shows that suggestions were solicited on the draft "Cable Television Networks (Regulation) Amendment Bill, 2020". This Court is not quoting the proposed amendment. The Television Networks Act in the present form shows that in Section 2(a) authorised officer for the purpose of
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implementation of this Act is created and he can be District Magistrate or Sub-Divisional Magistrate or Commissioner of Police. He can be also other officer notified in Government Gazette by the Central Government or the State Government for particular local limits. Section 5 of this Act shows that the programme to be transmitted or re-transmitted should be in conformity with the prescribed programme code. In Section 6 of this Act, the transmission or re-transmission of advertisement, which is not in conformity with the prescribed advertisement code is prohibited. The punishment for contravention is provided in Section 16 of the Act. Section 11 of the Act gives power to the authority to seize equipment used for operating cable television networks, if there is contravention of the provisions of Sections 5, 6 etc. Section 21 of this Act shows that the provisions of this Act shall be in addition to, and not in derogation of the provisions of other various Acts. The names of those Acts are mentioned and those Acts include Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and the Consumer Protection Act, 1986. These Acts are mentioned specifically by this Court in view of the nature of defence taken by Respondent No.11.
15 Rule 6 of the Rules framed under the Television Networks Act is already quoted. It gives list of items under the head of
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"Programme Code". In Rule 7, list of items, which are prohibited in respect of advertisement is given under the head of "Advertising Code". The Rule shows that the advertisement the object of which is wholly religious in nature is also prohibited under Rule 6(3). Rule 7(5) runs as under:
"7 Advertising Code. —
(1) ….
(5) No advertisement shall contain references which are likely to lead the public to infer that the product advertised or any of its ingredients has some special or miraculous or super-natural property or quality, which is difficult of being proved."
Rule 7(10) runs as under:
"7 Advertising Code. —
(1) ….
(10) All advertisements should be clearly distinguishable from the programme and should not in any manner interfere with the programme, viz., use of lower part of screen to carry captions, static or moving alongside the programme."
16 The provisions of the Black Magic Act are being quoted hereinafter. At this stage, only it is necessary to mention that there is no inconsistency at all in the aforesaid Central Act and Black Magic
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Act. Both the provisions show that the provisions of both the Acts can be used in any particular case. Let us see the provisions of the Black Magic Act. This Court is doing this exercise as this Court wants to see that there is coordination between the authority created by the Central Government and the authority created by the State Government under the State Act.
17 The object of the Black Magic Act is as under:
"An Act to bring social awakening and awareness in the society and to create a healthy and safe social environment with a view to protect the common people in the society against the evil and sinister practices thriving on ignorance, and to combat and eradicate human sacrifice and other inhuman, evil, sinister and aghori practices propagated in the name of so called supernatural or magical powers or evil spirits commonly known as black magic by conmen with sinister motive of exploiting the common people in the society and thereby destroying the very social fibre of the society; and for matters connected therewith or incidental thereto."
The relevant definitions from the Black Magic Act are as under:
"2. (1) In this Act, unless the context requires otherwise,-
(a) ….
(b) "human sacrifice and other inhuman, evil and aghori
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practices and black magic" means the commission of any act, mentioned or described in the Schedule appended to this Act, by any person by himself or caused to be committed through or by instigating any other person;
(c) ….
(d) "propagate" means issuance or publication of advertisement, literature, article or book relating to or about human sacrifice and other inhuman, evil and aghori practices and black magic and includes any form of direct or indirect help, abatement, participation or cooperation with regard to human sacrifice and other inhuman, evil and aghori practices and black magic;"
Section 2(2) of the Black Magic Act runs as under:
"2. (1) …..
(2) Words and expressions used but not defined herein, shall have respective meanings as assigned to them in the Drugs and Magic Remedies (Objectionable Advertisement) Act, 1954 and the Code."
Entry No.2 in the Schedule given to Black Magic Act runs as under:
"(2) Display of so-called miracles by a person and thereby earning money; and to deceive, defraud and terrorize people by propagation and circulation of so- called miracles."
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Entry at item 11(a) is also relevant and it is as under:
"(11) (a) To create an impression that special supernatural powers are present in himself, incarnation of another person or holy spirit or that the devotee was his wife, husband or paramour in the past birth, thereby indulging into sexual activity with such person;"
The aforesaid entries show that when there is a claim that supernatural powers are present in the claimant like he has achieved Siddhi, that claim is also covered by these items.
18 In Section 3 of the Black Magic Act, the things, which are prohibited, are quoted. Section 3 runs as under:
"3. (1) No person shall either himself or through any other person commit, promote, propagate or practice or cause to promote, propagate or practice human sacrifice and otherinhuman, evil and aghori practices and black magic mentioned or described in the Schedule appended to this Act.
(2) From the date of coming into force of this Act, commission of any act of human sacrifice and other inhuman, evil and aghori practices and black magic and any advertisement, practice, propagation or promotion of human sacrifice and other inhuman, evil and aghori practices and black magic, in violation of the provisions of this Act, by any person by himself or through any other
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person shall constitute an offence under the provisions of this Act, and the person guilty of such offence shall, on conviction, be punished with imprisonment for a term which shall not be less than six months but which may extend to seven years and with fine which shall not be less than five thousand rupees but which may extend to fifty thousand rupees.
(3) Whoever abets the commission of, or attempts the commission of any act or offence punishable under sub-section (2) shall be deemed to have committed that offence and shall, on conviction, be punished with the same punishment for such offences in sub-section (2).
(4) The offence punishable under sub-section (2) shall be cognizable and non-bailable."
19 If the aforesaid definitions from the Black Magic Act are read with the object of the Act, particular items given in the Schedule and Section 3 of the Act, it is easy to infer that extracting money from the people by selling articles like Hanuman Chalisa Yantra, which is like a pendant, is covered by Section 3 of the Black Magic Act. The qualities or properties of this Yantra mentioned in the advertisement, which are already quoted, show that claim was made that the qualities are special, miraculous and supernatural. This Court has no hesitation to hold that it is not possible for the seller like Respondent No.11 to prove that such Yantra has really the properties or qualities of which
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advertisement is made. This Court has no hesitation to observe that the advertisement aims at propaganda that such Yantra has such qualities and such propaganda is being made to exploit the persons, who feel that they are in trouble and they need some kind of help which may be of supernatural nature. The claim of the seller like after achieving Siddhi, special power, the "Baba" has created Yantra leads to inference that the seller claims that the Baba has power of "black"
magic. Entry No.2 of the Schedule of the Black Magic Act, quoted already, shows that display of so-called miracles for earning money is covered by the Act. It is already mentioned that in the advertisement the experiences of many celebrities and other persons were published and that amounts to display of such miracles.
20 The definition of propagation, quoted already, shows that advertisement of present nature is covered by the definition. Section 3 of the Black Magic Act prohibits not only commission of act of black magic, evil practices etc., but also propagation, promotion of such practices and magic. Section 3(2) of this Act shows that abetment of such propaganda is also an offence. Thus, TV channels, which telecast such advertisement also become liable under Section 3 of the Black Magic Act.
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21 Section 3(4) of the Black Magic Act shows that the offence punishable under Section 3(2) is cognizable and non-bailable. Section 4 of the Act shows that the Courts of Judicial Magistrate First Class / Chief Judicial Magistrate can try such offence.
22 Section 5 of the Black Magic Act shows that the police officers of and above the rank of inspector of police are appointed as Vigilance Officers for enforcement of the Act. The powers of Vigilance Officers are described in Section 5(2) of the Act and that runs as under:
"5. (1) ….
(2) It shall be the duty of the Vigilance Officer, -
(i) to detect and prevent the contravention or violation of the provisions of this Act and the rules made thereunder, in the area of his jurisdiction and report such cases to the nearest police station within the area of his jurisdiction; and upon filing of complaint to the police station by any victim or any member of his family, to ensure due and speedy action thereon and to give necessary advice, guidance and help to the concerned police station;
(ii) to collect evidence for the effective prosecution of persons contravening the provisions of this Act; and to report the same to the police station of the area in which such contravention has been or is being committed;
(iii) to discharge such other functions as
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may be assigned to him, from time to time, by the State Government, by general or special order issued in this behalf."
23 This Court has no hesitation to hold that the power to prevent commission of offence mentioned above includes the power to prevent the telecast of advertisement of aforesaid nature. Section 6 of the Act gives power to Vigilance Officer to seize relevant material. Section 9 of the Act shows that the provisions of the Black Magic Act are in addition to, and not in derogation of any other law enforced. Thus, the provisions of the aforesaid Central Act and the Black Magic Act can go hand in hand and the Central Act needs to come for the help of the State Act for enforcing the State Act.
24 In Section 12 of the Black Magic Act, the things, which are excluded by the Act are mentioned. The present Act of false advertisement to make money by exploiting superstitious and religious feelings is not covered by Section 12 of the Act.
25 The persons like Respondent No.11 change the names of the companies, change the name of God to show that it is different Yantra and they change the name of Baba to continue the business, if
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some Court prevents them from doing business in the name of one God or one Baba. Considering this possibility, in this matter it has become necessary to cover the activities of such persons like selling such articles and making propaganda for sale of such articles by taking the name of any God or Baba.
26 Article 51A(h) of the Constitution of India provides as under:
"51A. Fundamental duties.- It shall be the duty of every citizen of India -
(a) … …….
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;"
The aforesaid fundamental duty viz. to develop the scientific temper, humanism and the spirit of inquiry and reform needs to be read into the Black Magic Act. The objectives quoted in the Black Magic Act can be achieved mainly by means of education. The reformist like Mahatma Phule, Dr. Babasaheb Ambedkar and others, who worked to remove evil practices and spread awareness against superstition in the society were born in this soil. It can be said that atleast basic education is available to everybody in this State. Though these things
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are there, the scientific temper and the spirit of inquiry and reform are not yet developed. Even many educated and highly educated persons get attracted to the things like mantra-tantra, black magic. Due to this superstitious approach of rich and poor, the educated and uneducated persons they are being exploited by so-called Babas by selling articles by giving them names like Yantra, Ganda etc. Due to such situation, even in the State like Maharashtra, which claims to be a progressive State and State of reformist, the Black Magic Act was required to be enacted.
27 In view of the aforesaid discussion, this Court holds that the acts of Respondent No.11 mentioned in the petition and similar acts already discussed by this Court amount to cheating also and so at any costs such things need to be prevented. This Court holds that the relief of declaration and injunction needs to be given in the present proceeding, but this relief will be mainly for enforcing the Black Magic Act.
28 To have coordination between the State Government agency and the Central Government agency, some directions need to be given so that prevention of the prohibited act becomes effective. This Court has considered the present matter in public interest and so
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the directions will be exhaustive in nature. As the Petitioner wanted to withdraw the proceeding, there is no question of giving direction to refund his money or give him compensation. In the result, the following order is passed:
O R D E R
I. The petition is allowed.
II. It is hereby declared that the propagation for sale by advertisement of any article by giving it name as Yantra or otherwise, by attaching the name of any God to such article including the name of Lord Hanuman or any Baba with representation that these articles have special, miraculous and supernatural properties / qualities and making representation that these articles will help human being to become happy, to make progress in business, to make progress in profession, to make advancement in career, to make improvement in performance in education, to get recovery from any disease etc., is illegal and such propagation, advertisement falls under Section 3 of the Maharashtra Prevention and Eradication of
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Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013.
III. It is hereby declared that the telecast of advertisement, which propagates the things mentioned in clause (II) of the operative part of this judgment is illegal.
IV. Direction is hereby given to the State and to Vigilance Officers appointed under the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013, to register crimes by giving reports against the persons, who are making such advertisement and who are selling such articles.
V. Direction is hereby given to the State Government and the Central Government to create Cells in Mumbai to see that no such advertisements are telecast on TV channels by separate advertisement or in the name of programmes in the State of Maharashtra. The State Government is hereby directed to see that the telecast of such advertisement on TV channels is stopped
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immediately in coordination with the authority created by the Central Government under the Cable Television Networks (Regulation) Act, 1995. If such authority is not in place, the Central Government needs to appoint such authority within one month from today and if such authority is not appointed within this period, the State Government is entitled to use the provisions of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013 for stopping the telecast of such advertisement.
VI. It is hereby declared that the TV channel, which is telecasting such advertisement, is also liable under the provisions of the Maharashtra Prevention and Eradication of Human Sacrifice and other Inhuman, Evil and Aghori Practices and Black Magic Act, 2013.
VII. The State Government and the Central Government to inform this Court within 30 days from the date of this judgment about the steps taken to implement this judgment.
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VIII. The fees of the learned senior counsel Shri V. D. Sapkal is quantified as Rs.25,000/- and it is to be paid through the High Court Legal Services Sub- Committee, Aurangabad.
IX. Rule is made absolute in those terms.
[ M. G. SEWLIKAR, J. ] [ T. V. NALAWADE, J. ]
. After pronouncement of this judgment, Shri V. D. Sapkal, learned senior counsel waives his fees.
[ M. G. SEWLIKAR, J. ] [ T. V. NALAWADE, J. ]
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