The New Nation - Internet Edition

High Court Division

(Criminal Revisional Jurisdiction)

Sharifuddin Chaklader J

Sk Abdul Awal J

Judgment

August 15th, 2006

AHM Moazzem Hossain.

ttt..Accused-Petitioner

vs

State tOpposite Party

Smoking and Tobacco Consumption (Control) Act (XI of 2005)

Section 5

Mere publication of symbol of the company without drawing public attention cannot he said to be an advertisement so as to invite any penal action.

It appears that impugned advertisement is an advertisement without inviting anyone to purchase or consume tobacco. From this advertisement we find absence of commercial exploitation. The caption 'Success and Responsibility go together' without any other attracting words drawing attention of the public to consume tobacco cannot he said to be an advertisement within the meaning of section 5 of the Act. This caption may be made to the employees of the company or to the shareholders of the company or anyone in the affairs of the company for encouraging them to involve more in uplifting company's name and famettt.( 11)

Dr M Zahir, Advocate-For the Petitioner.

M Mansur Rahman, Assistant Attorney-General- For the State

Judgment

Sharifuddin Chaklader J: This Rule at the instance of the accused petitioner is directed for quashment of the proceedings of CR Case No. 2564 of 2005 filed under section 5(I)(Ga) of Smoking and Tobacco Consumption (Control) Act 2005 shortly, the Act 2005, pending in the Court of learned Metropolitan Magistrate, Dhaka.

2. Dr Mia Belayet Hossain, Assistant Director (Disease Control) Shastho Adhidoptor, Mohakhali. made the complaint against the accused petitioner and another, under the aforesaid section of the Act, 2005 alleging that the advertisement published on 21-8-2005 in Financial Express newspaper to the effect that British American Tobacco Bangladesh Company and their slogan "Success and Responsibility go together", according to the complainant, is detrimental to the health of the general public as it is against the said Act, 2005, as such, the accuseds mentioned in the petition of complaint, are liable to be punished under the said provision of the Act. 2005.

3. The complainant was examined un 3-9-2005 under section 200 of the Code of Criminal Procedure and thereafter, the accused petitioner appeared and was enlarged on bail. Accused petitioner moved an application under section 241A of the Code of Criminal Procedure for discharge from prosecution but the said prayer was refused by the learned Magistrate. Thereafter, the accused petitioner moved this Court and obtained this Rule. Although the accused petitioner had a remedy under section 439A of the Code of Criminal Procedure before the learned Sessions Judge against the order rejecting the application filed under section 241 A of the Code of Criminal Procedure, but Dr M Zahir, learned Advocate, appearing for the petitioner, submits, that the entire proceeding, having been barred under the provision of the Act, 2005(Act XI of 2005), the petitioner need not move the learned Session Judge.

4. Mr M Mansur Rahman, learned Assistant Attorney-General. on the other hand, frankly submits that the allegations made in the petition of complaint do not come within the ambit of sub-section (gha) of the Act, 2005 (Act XI of 2005) but infringe sub-section' (ga) of section 5 of the Act.

5. To consider the submissions of the learned Advocates, let us quote the relevant portion of the Act to find out whether the advertisement published attracts any penal action or not. Section 5 states as follows:

Ò 5| ZvgvKRvZ `ª‡e¨i weÁvcb wbwl×|-1 (1) †Kvb e¨w³-

(K) †Kvb †cÖvM„‡n ev miKvix I †emiKvix †iwWI Ges †Uwjwfkb P¨v‡bj ZvgvKRvZ `ªv‡e¨i weÁvcb cÖPvi, Av‡jvwPÎ cÖ`k©b ev kÖywZ‡MvPi Kwi‡e bv ev KivB‡e bv|

(L) ZvgvKRvZ `ª‡e¨i weÁvcb iwnqv‡Q Ggb †Kvb wdj¥ ev wfwWI †Uc ev Abiyc Ab¨ wKQy weµq Kwi‡e bv ev KivB‡e bv|

(M) evsjv‡`‡k cÖKvwkZ †Kvb eB, g¨vMvwRb, wjd‡jU, n¨vÛwej, wej‡evW©, Le‡ii KvMR ev Qvcv‡bv KvM‡R ZvgvKRvZ `ª‡e¨i weÁvcb gy`ªb ev cÖKvk Kwi‡e bv ev KivB‡e bv|

(N) RbM‡Yi wbKU Ggb †Kvb wjd‡jU, n¨vÛwej ev `wjj weZib ev mieivn Kwi‡e bv hvn‡Z ZvgKRvZ `ª‡e¨i e¨v‡Ûi bvg, is †jv‡Mv, †UªWgvK©, wPý, cÖZxK ev weÁvcb iwnqv‡Q|Ó

6. Before entering into the merit of the case, let us see what is an advertisement.

7. English word 'Advertisement' comes from old French 'Avertir' and Latin 'Advertere', meaning to direct one's attention to or describe (i) goods for sale or service offered, etc., in different medias, including placing a placard to encourage people to buy or use them (ii) to make known publicly or generally or (iii) to ask for or seek something or someone, by putting a notice in a newspaper, shop window, etc. It may be extended to a public notice, announcement, picture, etc. on different news media, including a short film.

8. As per Encyclopedia Britannica, Volume- I page 173 advertising is a form of paid public announcement intended to promote the sale of a commodity or service, to advance an idea or to bring about some other effect desired by the advertiser. It is essentially a form of communication and the term is broad enough to include a wide range or types from a small two-line entry in a newspaper or magazine to a spread of several full pages or from a small sign in a shop window to a huge bill board with changing designs in coloured lights. To a manufacturer, advertising is usually part of the firm's marketing programme and to the retailer, it is a part of his display store promotions, etc. and to the consumer it is a major source of information regarding products and services.

9. In the Words and Phrases. Permanent Edition of West Publishing Company, advertisement is defined as a notice published in handbills or a newspaper. It is the act or practice of bringing anything in one's wants or one's business. into public notice as by paid announcement in periodicals or by handbills, placards, etc. as to secure customers by advertising. It is also mentioned that advertisement is not used to apply anything and everything set up along the highway which may be designated as an "advertisement" but rather the bills and posters giving notice of or any advertising public entertainment. With regard to purpose of advertisement, it is mentioned in the same dictionary that in the absence of any commercial exploitation, mere mention of a name is not an advertisement purpose. Advertising is merely identification and description, apprising of quality and place and it has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase.

10. The advertisement is thus given for (i) turning of the mind to anything, i.e. attention. observation, heed (etc.) (ii) action of calling the attention of others, i.e. admonition, warning, precept. instruction, (iii) action of information or notifying i.e. notification, a notice, (iv) a (written) statement calling attention to anything i.e. notification, a notice and (v) a public notice or announcement usually in writing or print, by placards. or in a journal, paid announcement in a newspaper or other print.

11. It appears that impugned advertisement is an advertisement without inviting anyone to purchase or consume tobacco. From this advertisement we find absence of commercial exploitation. The caption 'Success and Responsibility go together' without any other attracting words drawing attention of the public to consume tobacco, cannot be said to be an advertisement within the meaning of section 5 of the Act. This caption may be made to the employees of the company or to the share holders of the company or anyone in the affairs of the company for encouraging them to involve more in uplifting company's name and fame. Mere publication of symbol of the company without drawing public attention cannot be said to be an advertisement so as to invite any penal action.

12. This advertisement by using the word "Success and Responsibility go together" is nothing but notifying its partners as to the Company's success. This notice, as we see, is not for drawing public attention.

13. We examined the advertisement, Annexure-A I and we are of the opinion that it does not say anything which can come or infringe any of the provisions of Act XI of 2005. This Act was promulgated as preventive measure so that anyone after knowing fully well of the effect of consuming tobacco. does not consume the same. We find substance in this Rule.

14. In the result, this Rule is made absolute.

15. Since we have found the impugned advertisement with absence of any commercial exploitation, is not punishable under the Act, we are of the view that the instant proceeding also cannot stand against co-accused, Golam Mainuddin, Deputy Managing Director, British American Tobacco Company.

The entire proceeding of CR case No. 2564 of 2005 pending in the Court of learned Metropolitan Magistrate, Dhaka is quashed.