HAMDARD DAWAKHANA (WAKF) LAL KUAN, DELHI AND ANOTHER versus UNION OF INDIA AND OTHERS

Citation: [1960] 2 S.C.R. 671 · Decided: 18-12-1959 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Case Partly allowed

Cited by 30 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

-
S.C.R. 
SUPREME COURT REPORTS 
671 
HAMDARD DAWAKHANA (WAKF) LAL KUAN, 
DELHI AND ANOTHER 
v. 
UNION OF INDIA AND OTHERS 
(B. P. SINHA, C.J., JAFER IMAM, J. L. KAPUR, 
., 
K. N. WANCHOO and K. C. DAS GUPTA, JJ.) 
Advertisement, Control 
of-Advertis~ment, when relates to 
freedom of speech-Statute prohibiting advertisements of drugs f 01 
f' 
certain diseases-Constitutionality of-Whether curtails freedom of 
speech-Conferment of power on executive to add to diseases falling 
within mischief of statute-If amouttis to delegation of legislative 
power-Statute empowering executive to seize off ending articles, 
without providing safeguards-Whether imposes reasonable restric-
tions-Constitution of India, Arts. r9(r)(a), I9(I)(g), r9(r)(j) and 
I9( 6). 
The Drugs and Magic Remedies (Objectionable Advertise-
ments) Act, I954 (2I of r954), ss. 2(a), 3(d), 8 and r4(c). 
When an enactment is chall.enged on the ground of violation 
of fundamental rights it is necessary to ascertain its true nature 
and character, i.e., its subject matter, the area in which it is 
intended to operate, its purport and intent. In order to do so it 
is legitimate to take into consideration all the factors such as the 
history of the legislation, the purpose the~of, the surrounding 
circumstances and conditions, the mischief intended to be suppres-
sed, the remedy proposed by the legislature and the true reason 
for the remedy. Initially, there is a presumption in favour of 
the constitutionality of an enactment. 
Bengal Immunity Company Ltd. v. The State of Bihar, [1955] 
2 S.C.R. 603, R. M. D. Chamarbaughwala v. The Union of India, 
[1957] S.C.R 930, Mahant Moti Das & Others v. S. P. Sahi, A.LR. 
1959 S.C. 942, Charanjit Lal Chowdhuri v. The Union of India & 
Others, [1950] S.C.R. 869 and The State of Bombay v. F. N. Bulsara, 
[1951] S.C.R. 682, referred to. 
On examining the history of the legislation, the surrounding 
circumstances and the scheme of the Act it was clear that the 
object of the Drugs and Magic Remedies (Objectionable Adver-
tisem'ent) Act, 1954, was the prevention of self-medication and 
self-treatment by prohibiting instruments which may be nsed to 
advocate the same or which tended to spread the evil. Its 
object was not merely the stopping of advertisements offending 
against morality and decency. 
Advertisement is no doubt a form of speech, but its true 
character is reflected by the object for the promotion of which it 
is employed. It is only when an advertisement is concerned 
with the expression or propagation of ideas that it can be said to 
relate to freedom of speech. But it cannot be said that the right 
I959 
December rs. 
672 
SUPREME COURT REPORTS [1960(2)] 
r959 
to publish and distribute commercial advertisements advertising 
an individual's personal business is a part of the freedom of 
Hamda'd 
speech guaranteed by the Constitution. The provisions of the 
Dawakhana (Wakf) Act which prohibited advertisements commending the efficacy, 
Lal Kuan 
value and importance in the treatment of particular diseases of 
v. 
certain drugs and medicines did not fall under Art. 19(1)(a) of the 
UiJion °1 India 
Constitution. 
The scope and object of the Act its true nature 
and character was not interference with the right of freedom of 
speech but it dealt with trade and business. 
Lewis]. Valentine v. F. ]. Chrcstensen, 86 Law. Ed. 1262; 
R. M. D. Chamarbaughwala v. The Union of India, [1957] S.C.R. 
930, State of Bombay v. R. M. D. Chamarbaughwala, [1957] S.C.R. 
874; john W. Rast v. Van Deman 0- Lewis Company, 60 Law. 
Ed. 679, Alice Lee Grosjean "./. The American Press Co., So Law. 
Ed. 660, Express Newspapers (P) Ltd. v. The Union of India, 
[1959] S.C.R. 12 and ]. M. Near v. State of Minnesota, 75 Law. 
Ed. 1357, referred to. 
The definition of "advertisement" which included labels on 
cartons and bottles and instructions inside cartons was not too 
wide in view of the object of the Act. lf the definition was not 
so broad and inclusive it would defeat the very purpose for which 
the Act was brought into existence. The use of the word 
"suggest" in s. 3 did not suppmt the contention that the rest-
raint placed by that section was disproportionate. The provisions 
of s. 14(c) and r. 6 which allowed the prohibited advertisements 
to be sent confidentially by post to a registered medical practi-
tioner, to a wholesale or retail chemist, to a hospital or a 
laboratory only when the words "for the use only of registered 
med

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