The Madras high court on Monday quashed the criminal proceedings against popular film star Dhanush and Aishwarya Rajinikanth that was pending before a magistrate court in the city, for allegedly showing banners of the Tamil film Velaiyilla Pattadhari, carrying a picture of Dhanush prominently smoking a cigarette.
Justice N Anand Venkatesh allowed the petitions filed by Dhanush, Aiswarya and 3 others. Originally, on a private complaint filed by one S Cyril Alexander, the proceedings were initiated against Dhanush and Aishwarya.
In his order, the judge said in the instant case, the only allegation that has been made in the complaint is that the advertisement banners of the movie were found to carry the picture of the lead actor prominently smoking a cigarette.
This act, per se, cannot be brought within the purview of Section 5 of the Cigarettes and other Tobacco products (prohibition of Advertisement and Regulation of Trade and Commerce, production, supply and distribution) Act (COPTA) since the display was not done by persons engaged in the production, supply or distribution of cigarettes or any other tobacco products, the judge said.
The person who is depicted as smoking cigarette was not under any contract with the entity or the person engaged in production, supply or distribution of cigarettes or any other tobacco products nor he was promoting their product, the judge added.
The judge said a penal statute has to be strictly construed since the consequence of an action taken under the statute will touch upon the life or personal liberty guaranteed under Article 21 of the Constitution of India.
"Hence, this court cannot be swayed by emotions and popular beliefs and the court has to necessarily construe the provisions strictly and see if the facts of the case make out an offence. If the facts do not constitute an offence, the court cannot try to expand the scope of the provision by considering the adverse impact that a tobacco or tobacco product can have on the society and particularly the younger generation," the judge added.
The judge said the complainant seemed to have been under the impression that since the producers and the distributors of the movie were engaged in erecting the banners/posters with the lead actor shown to have been smoking, the same would constitute an offence under Section 5 of the COTPA.
The producers and the distributors in the present case were engaged in movie business and were not engaged in the business of cigarettes or other tobacco products. This vital distinction between what has been stated in the provision and what comes out of the allegations made in the complaint makes all the difference.
"In the light of the above discussions, the continuation of the criminal proceedings as against the accused persons will amount to an abuse of process of court, and hence, it requires interference of this court," the judge added and quashed the proceedings.
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