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Download the complete petition in PDF format Before the Honourable High Court of Punjab & Haryana at Chandigarh C.W. PETITION NO. 3131 OF 2005
Hemant Goswami,
(Chairperson) ………………….Petitioner Versus
………….Respondents
SYNOPSIS Gallant violations of the “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003,” which among other things prohibits advertisement of tobacco products and promotion of tobacco products or the trade mark or brand name under section 5. Tobacco companies, Organisations, individuals and prominent people who on no account are ignorant of the law and their responsibilities keep on promoting the trade mark and/or brand name of tobacco products. No action or cognizance taken by the Government/responsible enforcement agencies for such violation. The recent incident being the reinstitution of “Red & White” bravery awards by Godfrey Phillips India Limited promoting the trade mark/brand name of the tobacco cigarette brand “Red & White.” Request for intervention of the Honourable High Court to take notice of the violation and direct strict penal action for each instance of violation so as to offset the commercial gains of the tobacco companies and other organisations helping in promotion and advertisement of tobacco products; to penalise people participating, assisting and helping in organising such forbidden promotion of tobacco product’s brand name/ trade mark with great disregard to the law, public health & morality. PETITION May it please your Lordship, The above mentioned petitioner most respectfully & humbly request for the intervention of your high office in the INTEREST OF THE PUBLIC. It is herby submitted:- 1) That “Burning Brain Society (BBS)” is a voluntary N.G.O. registered under the “Societies Registration Act 1860” and working for the social welfare of the public, especially the young people. The area of work of the society includes working for informing the public about the health hazards of smoking, for which BBS keeps on conducting awareness programmes, public sensitizing activities & workshops on the ill effects & consequences of tobacco, etc. 2) That the Union of India enacted “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003” (hereinafter referred as the Act for the sake of brevity) prohibiting any form of advertisement of cigarettes or promotion of tobacco products or the trade mark or brand name under section 5 of the Act. The Act came into force from the 1st day of May, 2004. 3) That Section 5 (3) of the Act specifically reads ; (Quoted in italics) Sec. 5-(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. 4) That the Act provides for specific punishment under Section 22 for the violation of section 5. 5) That the intention of the Act is clear so as to plug all the loop holes, including that of surrogate publicity even in the form of any other activity and/or event under the guise of sponsorship, gift, prize or scholarship. Section 5(3)b makes the intention of the Act clear with regard to surrogate promotion and covers even the slightest intention/plan to promote even the trade mark or brand name of any tobacco product which may result in promotion of an actual tobacco product by similar name. 6) That despite such a specific law, various tobacco companies continue to promote their products through such surrogate means which are specifically prohibited under Section 5 of the said Act. 7) That the Government/Authorised officers/Enforcement Agencies have failed to take notice of the offences committed by various tobacco companies and individuals. CAUSE OF ACTION: 8) That Godfrey Phillips India Ltd., the manufacturer and marketer of the “Red & White” brand of cigarette, continue to promote the brand name and trade mark of their cigarette brand “Red & White” by institution of a prize in the name of their cigarette brand “Red & White.” The prize previously called “Red & White Bravery Award” and now renamed as “Godfrey Phillips Red & White Bravery Award” is in direct violation of Section 5 of the said Act. 9) That the recent instances of such violations are mentioned hereunder; a) Between and during the month of July 2004 and February 2005, the company Godfrey Phillips issued press statements/press releases and paid advertisement/insertions in many national and regional newspapers and electronic media regarding the reinstitution and continuation of “Red & White Bravery Award.” The prize ceremony was widely publicized and even a website by the name of “Redandwhitebravery.com” was instituted and made operational. b) That on January 17, 2005, Godfrey Phillips India Limited organised a prize distribution function at the Government controlled hotel of “Chandigarh Industrial and Tourism Corporation Organisation Ltd.” Hotel Mountview. Prizes were given under the name of “Red & White Bravery Awards” and were widely publicized through the media and otherwise. c) That despite knowing the fact that such surrogate promotion of brand name/ trade mark of tobacco products is banned many Government officials and other people assisted the tobacco company “Godfrey Phillips India Limited” in promoting the trade name of their cigarette brand “Red & White” under the guise of giving prizes. d) The media reports of “Red & White” prize ceremony shows that many people for unknown considerations became a part of the activity and thereby helping “Godfrey Phillips India Limited” in promotion of their trade mark and brand name “Red & White.” By helping in arranging the function, by the way of doing publicity in varied forms, by their being a part of the arrangement, planning, selection of the prize winners and by then actually presenting the prizes in the name of cigarette brand “Red & White,” these people acted in league with the tobacco company to promote the tobacco trademark and brand name. e) That among those reported (in the newspaper “Times of Chandigarh,” dated January 18, 2005, Page 5) to have participated in the activities and helped the tobacco company “Godfrey Phillips India Ltd.” in successful execution of the activity are: i) General (Retd.) S. F. Roudrigues; the Governor of Punjab and Administrator of Chandigarh. [Reportedly: Physically presented the Red & White awards] ii) Harbhagwan Singh; Advocate General of Punjab [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] iii) Air Commodore S. S. Tilloo; Air Officer Commanding 12 Wing [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] iv) A. A. Siddiqui, Director General Of Police, Punjab [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] v) Major General A. K. Sakhuja [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] vi) Dharam Vir; Principal Secretary – Home of Haryana [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] vii) K. C. Sharma; Financial Commissioner, Commerce & Revenue – Haryana [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] viii) S. C. Chaudhary – IAS Secretary – Haryana [Reportedly: Judge for the Red & White awards and helped Godfrey Phillips India Limited in planning and selection] 10) That on July 28, 2004, the very day when the plan for such an activity [prizes in the name of “Red & White”] was first reported in the newspaper, “The Tribune” dated July 28, 2004, the petitioner organisation “Burning Brain Society” made a written complaint in person through a delegation of five people to the office of the Inspector General of Chandigarh Police. 11) The complaint remained un-answered for a long period and then on our persistent follow-up, a letter dated October 13, 2004 (Ref. No. S/595/23010/UT/E-6) was received from the office of the I.G. Police, Chandigarh expressing his inability to take any action and suggested the petitioning organisation to move criminal complaint. (Copy of the letter annexed as P-4). 12) That by not acting on specific information regarding the proposed violation of the Act by Godfrey Phillips India Limited, and then abetting the subsequent breach of law. Some senior officials of Chandigarh Police appear to have committed an offence of wilful omission to take action for preventing an offence and for upholding the law of the land. 13) That Godfrey Phillips India Limited and its officials and all the people/organisations who helped, assisted, planned and/or participated in the said activity have committed an offence punishable under Section 22 of the Act. 14) That we feel it apt to point out here that all cigarette advertisements are directed towards young people, mostly between the age group of 10-25 years. It is often reported that the mean age of taking up smoking is 15 years and by the time one reaches 18 years of age he/she becomes addictive smoker (In most of the cases) with specific brand preferences. It is also a well known fact that near around 80% of smokers starts before the age of 18 years. When responsible individuals & organisations indulge in supporting surrogate advertising of cigarettes (even when it is specifically banned under the law) they play not only with the health & lives of people but also harm the future generation. The target of tobacco companies (as found in studies conducted world over) is to influence the minds of innocent souls in the form of our youngsters who are not a yet capable of making informed choice. The intention of such activities is sheer greed to get new cigarette/tobacco users. Every youngsters who gets hooked to the tobacco trap by getting attracted to such sly subliminal publicity, not only causes a big opportunity cost loss but also results in loss of healthy manpower and irreparable damage to the nation. The additional burden because of increasing tobacco use on our already over taxed and under financed public health system is also going to cause long term repercussions. The Supreme Court had also taken note of the great loss caused to the nation because of smoking vide its order dated November 2, 2001in the matter of Murli S. Deora Versus Union of India and others (WRIT PETITION (CIVIL) No. 316 OF 1999). 15) That under the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975 and under “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003” (To be notified sections 7, 8, 9, 10) it is compulsory to carry a warning statement on all packs and promotion materials under the statutory law so as to make the buyer aware of the dangers and consequences of tobacco. When tobacco companies promote their brand name/trade mark through surrogate means they are able to circumvent this provision and thereby highlight only the glamour and pleasures associated with the trade mark/brand name and dishonestly conceal the dangers of the associated tobacco product. These surrogate advertisements are able to create brand/ trade mark awareness, create a positive pleasant and glamorous image of the product name/trade mark/brand name and this strategy of tobacco companies is known to influences and promotes the use of the associated tobacco product. Promoting a tobacco brand name while circumventing the provisions relating to the statutory warning amounts to a clear legal offence under the law. 16) That in the present circumstances the petitioner has done all what was possible as any public spirited organisation should do by way of direct complaint and by creating enough public awareness on the issue. Since none of the enforcement agencies acted on specific complaint or on its own, so as an aggrieved member of the civilised society we are now left with no other remedy but to approach this Honourable court which enjoys full control over the territory of the State of Punjab, Haryana & U. T. of Chandigarh to look into the matter and intervene by giving suitable direction & instructions to the States/Enforcement Officers and agencies. 17) That exemption may kindly be granted for filing certified copies and translations of annexure P1 to P14 and that the compact disc (CD ROM) with the soft electronic copy of this petition and the supporting documents be treated as a part of annexture. 18) In the aforesaid circumstances there is no other remedy available to the petitioner so this petition may be treated as a writ petition under Article 226 of the Constitution of India. Thereby in the interest of Public Health and Justice, it is, most humbly prayed that Your Lordship may graciously treat this to be a public interest matter and be pleased to order: RELIEF SOUGHT I. Godfrey Phillips India Limited to discontinue the prize in the name of the cigarette brand “Red & White” or any other tobacco product or in the name of any word/phrase or name mentioned on the pack of any of its tobacco product or any deceptively similar word/phrase. II. Appropriate action be taken against all the organisations/companies and individuals who participated in any way in the prize ceremony of “Red & White Bravery Awards.” For this the promoters, event managers, media space providers and designers, hotel officials providing facilities and space, the judges of the award, the Government officials and other people helping in the selection and planning, the chief guest awarding the prizes and the enforcement officials omitting to perform their duties are all equally liable as without their assistance this prize ceremony in the name of a tobacco product would not have been possible and would not have generated so much of promotion of the brand name/trade mark. Suitable enforcement agencies be directed to collect the details of all such people from Godfrey Phillips India Limited, press clippings, video footage, etc. Godfrey Phillips India Limited too be directed to provide a list of the name of agencies/organisations and individuals who assisted them. III. Suitable directions be issued to the State and Central Government to investigate and take action against participating Government Officials for using the name of the Government Offices (so as to give it an appearance of Government endorsed activity) and misuse of official position by helping Godfrey Phillips India Limited in the planning and execution of the prize ceremony. IV. Recover the fine from Godfrey Phillips India Limited and the media organisations which carried the paid advertisement of Godfrey Phillips India Limited for the promotion of “Red & White” prizes; to the tune of circulation of the newspaper, treating the first copy as offence number one and subsequent copies with the higher rate of penalty treating it to be subsequent offences for each advertisement published. V. State Govt be directed to take immediate note of such other instances of offences committed by way of surrogate advertisements where any other non-tobacco product carrying the same trade mark/brand name or deceptively similar is used and promoted. VI. The Governments and appropriate agencies be directed to list down such instances of offences committed by way of publication of surrogate advertisements carrying the brand name/trade mark of tobacco products in the electronic and print mass media since the inception of the said act. This may further be directed to be checked from the records of the “Registrar General of Newspapers (India)” and the office of the respective periodicals (newspapers and magazines) committing offence under the Act. Accordingly the fine be recovered from such mass media organisations, supporting organisations, individuals and the tobacco companies in proportion to the circulation, treating the first copy as offence number one and subsequent copies with the higher rate of penalty treating it to be subsequent offences. VII. Direct the States of Punjab, Haryana and UT of Chandigarh to fully implement, execute & enforce the compliance to the provisions of the said Act. INTRIM RELIEF SOUGHT VIII. Restrain Godfrey Phillips India Limited from awarding the “Red & White” prizes or any other prize in the name of the cigarette brand “Red & White” or any other tobacco product or in the name of any word/phrase or name mentioned on the pack of any of its tobacco product during the pendancy of this petition. IX. Direct Godfrey Phillips India Limited to stop any promotion or mention of “Red & White” bravery prizes in any way during the pendancy of the petition. X. Direct all tobacco companies to not use the trade mark/ brand name used on any tobacco product on any other product, whether such product be non-tobacco, edible or non-edible. For this purpose the Registrar of Trade Marks too be given suitable directions. XI. Direct States of Punjab, Haryana and UT of Chandigarh to fully implement, execute & enforce the compliance to the provisions of the said Act and the report of such execution and enforcement of the Act be provided to the Hon’ble court in a specific time span. Such further orders be passed by this honourable court as it deems fit in the present circumstances and which strengthens the letter and spirit of the act and its implementation. And for this act of kindness Your Lordships’ petitioner, as in duty bound, shall ever pray. Submitted for humble consideration by Hemant Goswami |
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