First Information Report (FIR) filed against a pharmacist for posting the advertisement on social media and WhatsApp claimed that the condom advertisement which featured a couple performing the traditional Gujarati dance form “Garba,” did not constitute obscenity.
Single-judge Justice Satyendra Kumar Singh arrived at the decision after reviewing the post in question, which stated – Pre Loveratri Weekend Offer – Condoms (pack of 3) or a Pregnancy Test Kit at INR 0 – featuring a couple playing Garba.
“Admittedly, the applicant is a pharmacy professional at Indore. Since there is nothing on record except the said post which indicates his such intention therefore, considering the fact that he himself belongs to the Hindu community, and so also the fact that he posted it from his own mobile number without concealing his identity, it appears that his intention was just to promote the product of his company and not to hurt the religious feelings and sentiments of any community,” the Court held in the order.
“Upon perusal of the alleged post, it is apparent that the contents of the same are not obscene hence, ingredients of Section 67 of the Information Technology Act are also not fulfilled. In view of the above, allowing the prosecution to continue the case would amount to abuse of the process of Court, therefore, it is necessary to quash the proceedings,” the Court opined.
A petition by a man named Mahendra Tripathi, who sought to have the FIR filed against him under the provisions of the Information Technology Act as well as Sections 505 (public mischief) and 295A (hurting religious sentiments) of the Indian Penal Code (IPC), was brought before the single judge.
During the Navratri festival in October 2018, Tripathi posted an advertisement offering free condoms and pregnancy test kits to couples. He posted the ad on Facebook and WhatsApp groups using an image of a couple dancing the Garba.
The complainant in this case stated that the ad offended his religious feelings because he is a Hindu.
Tripathi argued in defence that he himself a Hindu and he had no desire to incite animosity between religious groups or offend religious sentiments. As various condom companies themselves came up with promotional offers during the Garba season, he claimed that he had only posted the ad in good faith in an effort to attract customers.