'S. 5(1) COTPA Won't Apply To Persons Not Engaged In Tobacco Business' : Supreme Court Dismisses Plea For Action Over Film Poster Showing Actor Smoking

The Supreme Court on Tuesday dismissed a petition seeking criminal action against Tamil actor Dhanush and the producers and distributors of the 2014 movie 'Vela Illa Pattadhari" under Section 5 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003(COTPA) for allegedly publishing posters of the film showing the lead actor smoking a cigarette. 

The Supreme Court declined to interfere with the judgment of the Madras High Court which quashed the complaint filed by one S. Cyril Alexander, State Convenor, Tamil Nadu People's Forum for Tobacco Control (TNPFTC) under the COTPA.

“After all perusing from the copies of the advertisement, we find that the High Court is right in holding that Sub-section 1 of Section 5 of COTPA will not be applicable in the case.”, a bench comprising Justices Abhay S Oka and Ujjal Bhuyan observed.

Briefly put, it was alleged by the complainant that the violation was done by the producer of the movie, the owner and actor of the movie and the proprietors of various theatres where the movie was sought to be released. Complaint was filed against actor Dhanush,  Wunderbar Film Pvt Ltd and Aishwarya Rajinikanth (producers), certain theatre owners.

The allegation was that as the advertisement had directly or indirectly suggested or promoted the use or consumption of cigarettes and as the actor in the movie was displayed to be smoking cigarettes, it would unnecessarily attract those in the adolescent age, lead to cultivating such a habit and ultimately go against the interest of the younger generation. Accordingly, it was alleged that the accused persons committed an offence under Section 5 of the COTPA, which is punishable under Section 22 of the COTPA.

Deciding on an issue whether the allegations made in the complaint will constitute an offence under Section 5 of the COTPA, the High Court answered as follows:

“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 cigarette. This act, per se, cannot be brought within the purview of Section 5 of the COTPA since the display was not done by persons engaged in the production, supply or distribution of cigarettes or any other tobacco products and the person, who was 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 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 are engaged in movie business and are 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”, the High Court further noted.

Thus, finding the view taken by the High Court is correct, the Supreme Court declined to interfere with the impugned judgment of the High Court.

Accordingly, the Special Leave Petition (Crl.) was dismissed.

Case Name: S. CYRIL ALEXANDER vs. STATE REPRESENTED BY DR. V.K. PALANI

Diary No.- 49498 - 2023

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