S.J. Mukhopadhaya, J.@mdashBoth the writ petitions, having been preferred by the petitioners against common Notification dated 18th June,
2004, issued under Memo No. 11 Sva. F-2-48/2002-385 (ii)/Sva, whereby and whereunder, the respondent, Secretary, Health and Family
Welfare-cum-Director, Health Services, Jharkhand, Ranchi, in exercise of powers u/s 7(iv) of the Prevention of Food Adulteration Act, 1954, has
imposed ban on production, manufacture and sale of ''gutka'' or ''pan masala'' or ''gul'', containing tobacco or without tobacco from the date of
issuance of the Notification, have been heard together and are being disposed of by this common order.
2. The main plea, taken by the petitioners, is that the impugned Notification dated 18th June, 2004 is illegal, arbitrary, without jurisdiction and
violative of the provisions of Articles 14 and 19(i)(g) of the Constitution of India.
3. Counsel for the petitioners submitted that a similar Notification came up for consideration before the Supreme Court regarding its
constitutionality on the ground of Legislative competence. In the case of Godawat Pan Masala Products I.P. Ltd. and Another Vs. Union of India
(UOI) and Others, , the Supreme Court held that the State Government has no power to issue such Notification under the provisions of Prevention
of Food Adulteration Act, 1954 and thereby struck down the similar Notification.
4. Counsel for the State of Jharkhand and Union of India tried to distinguish the case of one of the petitioners, namely, M/s. Hazi Shah Hussain
Buksh Khan and Sons and another, [W.P. (C) No. 4206 of 2004). However, they could not distinguish the case of other petitioner, namely, M/s.
Tirupati Products [W.P. (C) No. 4093 of 2004].
W.P. (C) No. 4093 of 2004 :
Petitioner, in this case, carries the business of manufacturing ''gutka'', mainly in the town of Jamshedpur, District Singhbhum (East), within the
territory of the State of Jharkhand. It has obtained licence from the competent authority to sell the product ''gutka''. The main plea taken is that the
case of the petitioner is covered by the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd (supra) and, as such,
the impugned Notification dated 18th June, 2004, being without jurisdiction, petitioner can not be prohibited from manufacturing or selling ''gutka''
in absence of any prohibition, imposed by the Union of India.
W.P. (C) No. 4206 of 2004 :
(i) The case of these petitioner is that petitioner No. 1 is a partnership firm, having its registered office at Tharpakhna, Hazaribagh Road, Ranchi,
within the State of Jharkhand and is engaged in manufacture and trade of ''gul''. It is stated that although it is a tobacco product, it is not used for
chewing tobacco rather it is used for cleaning the teeth and it is nothing but a tooth powder, ''gul'' is used to be rubbed on the teeth for a few
minutes and is thrown out with the water. Gul was first prepared in or about 1932 by Shah Hussain Buksh Khan in Howrah and when he shifted to
Ranchi and settled here, started selling ''gal'' under the Trade Name ""gulab marka gul"". The Ranchi unit for manufacture and sale was set up in the
year, 1956.
(ii) Grievance of these petitioners is that because of the impugned Notification dated 18th June, 2004, they have to close their business, retrenching
the employees out of business and thereby hundreds of people, dependent on the trade, have been rendered jobless. These petitioners have also
taken plea that either the Secretary. Department of Health, Govt. of Jharkhand, or the State of Jharkhand has no jurisdiction to issue any
prohibitory order, stopping manufacture or sale of ''gul'', as it is without jurisdiction. These petitioners have also relied on the Supreme Court''s
decision, rendered in the case of Godawat Pan Masala Products I.P. Ltd., (supra).
(iii) Further case of the petitioners is that petitioner No. 1 is a registered firm and has obtained valid licence under the Central Excise Rules, 1944
to cure, produce, manufacture, carry on whole-sale trade/business/brocker or commission agent or otherwise deal in excisable goods, act as a use
excisable goods for special industrial purposes. It is stated that as the ''gul'' is not a chewing tobacco, therefore, the petitioners are not bound by
Rule 44 (zzz) of the Rules, framed under Prevention of Food Adulteration Act, 1954 but as one of the ingredients of the product ""gul"" is tobacco,
therefore, statutory warning is used in all the labels of the petitioners'' product, which reads as ""Tobacco product is injurious to health.
OTHER RELEVANT FACTS & JUDGMENTS :
(a) For similar reason, almost a similar Notification dated 23rd July, 2002 was issued by the Commissioner, Food and Drugs Administration and
Food (Health) Authority for the State of Maharashtra. By the said Notification, the manufacture, sale, storage and distribution of the ''pan masala''
and ''gutka'' (Pan Masala, containing tobacco) were banned for a period of five years with effect from Ist August, 2002. One Godawat Pan
Masala Products I.P. Ltd. and another, challenged the validity of the said Notification vide Writ Petition No. 2024 of 2002 before the High Court
of Judicature at Bombay. A Division Bench of the High Court by its judgment dated 18/19th September, 2002 dismissed the writ petition,
upholding the validity of the Notification. Being aggrieved, the writ petitioners i.e. Godawat Pan Masala Products I.P. Ltd. and another challenged
the said judgment before the Supreme Court. Similar other writ petitions were also preferred against the said Notification, which were dismissed.
Thereafter, different appeals were also preferred before the Supreme Court against the orders of dismissal. They were heard together by the
Supreme Court, which by its judgment, rendered in the case of Godawat Pan Masala Products I.P. Ltd. (supra) held as follows :
75. As a result of the discussions, we are of the view that :
1. Section 7(iv) of the Act, is not an independent source of power for the State authority;
2. The source of power of the State Food (Health) Authority is located only in the valid rules made in exercise of the power u/s 24 of the Act, by
the State Government, to the extent permitted thereunder;
3. The power of the Food (Health) Authority under the Rules is not of transitory nature and intended to deal with local emergencies and can last
only for short period while such emergency lasts;
4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately
to the Central Government to be exercised in accordance with the Rules made u/s 23 of the Act, particularly, Sub-section (1A)(f);
5. The State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as
an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamentary
legislation or, at least, by exercise of the powers by the Central Government by framing Rules u/s 23 of the Act;
6. The provisions of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration
Act, 1954. The former Act, is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a
general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of
Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to
the Act 34 of 2003;
7. The impugned notifications are ultra vires the Act, and, hence, bad in law;
8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and
19 of the Constitution.
(b) Government of Tamil Nadu also issued Notification No. 780, published in Tamil Nadu Government Gazette (Extraordinary), dated 19th
November, 2001. By the said Notification, in exercise of the powers under Clause (iv) of Section 7 of the Prevention of Food Adulteration Act,
1954 prohibition was imposed either to manufacture for sale or storage, sell or distribute (i) chewing tobacco (ii) Pan Masala and (iii) gutka. It was
challenged by M/s. Kothari Product Ltd. before the High Court of Judicature at Madras in W.A. No. 139 of 2002. The said case was heard along
with other similar cases. The Madras High Court, following the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P.
Ltd., (supra), by its judgment dated 23rd August, 2004 Kothari Product Ltd. v. The Director, Public Health and Preventive Medicine and Ors.
struck down Notification No. 780, published in the Tamil Nadu Government Gazette (Extraordinary), dated 19th November, 2001, being
unconstitutional and beyond the legislative competence of the State.
W.P. (C) No. 4O93 of 2004 :
So far as the case of petitioner M/s. Tirupati Product is concerned, which relates to the product of ''gutka'', it is covered by the decision of the
Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd, (supra). The State of Jharkhand, having no legislative competence and
thereby, the impugned Notification dated 18th June, 2004, being unconstitutional, we have no option but to set aside the said Notification, so far it
relates to gutka. However, this order will not preclude the competent Government/authority to take action in the light of the said judgment of
Godawat Pan Masala Products I.P. Ltd. (supra).
W.P. (C) No. 4206 of 2004 :
(I) So far product ''gul'' as manufactured and sold by M/s. Hazi Shah Hussain Buksh Khan & Sons is concerned, as per the petitioners, it is a
tobacco product but not used for chewing tobacco. It is used for cleaning the teeth and is nothing but a ""tooth powder."" ''Gul'' is rubbed on the
teeth for certain minutes and thereafter, it is thrown out.
(II) The Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., (supra) has held that
cigarettes and other tobacco products are regulated by Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of
Trade and Commerce, Production, Supply and Distribution) Act, 2003. With regard to a similar matter, concerning tobacco products, the
Supreme Court held that Section 7(iv) of the Prevention of Food Adulteration Act, 1954 is directly in conflict with the provisions of Cigarettes and
other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
The former Act, is special Act, intended to deal with the tobacco and tobacco products particularly while the later i.e. Prevention of Food
Adulteration Act, 1954 is a general enactment. Thus, Act 34 of 2003, being special Act and of later origin, over-rides the provisions of Section
7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products, which
are listed in the Schedule to Act 34 of 2003.
(III) As noticed above, ''Gul'' being a tobacco product, which is a tooth powder, containing tobacco, the case of petitioners M/s. Hazi Shah
Hussain Buksh Khan and Sons and another, [W.P.(C) No. 4206 of 2004] is also covered by the decision of the Supreme Court in the case of
Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., (supra) and, as such, the impugned Notification dated 18th June,
issued by the State of Jharkhand, can not be upheld, being without jurisdiction. The State Government, as such, can not prohibit the petitioners
from manufacturing or selling ''Gul'' in exercise of power u/s 7(iv) of the Prevention of Food Adulteration Act, 1954. However, the competent
Government/authority can impose prohibition in the light of the said judgment in case of Godawat Pan Masala Products I.P. Ltd. (supra).
(IV) The 2nd respondent, Secretary, Department of Health & Family Welfare, Govt. of Jharkhand, Ranchi, has opposed the case on some other
ground. According to the 2nd respondent, the Ministry of Health and Family Welfare, Department of Health, Govt. of India, New Delhi has
already issued a Notification dated 30th April, 1992, prohibiting the manufacture and sell of all tooth paste/tooth powder, containing tobacco, and
in view of the decision taken by the Central Government, the State of Jharkhand has also prohibited the sale, purchase and storage of ''gul'', which
is a tooth powder, containing tobacco, and the same is within the competence and power of the State Government as per List-2 & 3 of Schedule
7 of the Constitution of India. It is stated that the writ petitioners were illegally manufacturing and selling the ''gul'', which is a tobacco product,
though there is a ban imposed by the Central Government. Reliance was placed in the case of Laxmikant Vs. Union of India (UOI) and Others,
(V) The Union of India was allowed time to State :
(i) Whether the Central Government has issued any Notification of prohibition, relating to ''pan masala'', ''gutka'', ''gul'',
(ii) Whether Notification No. GSR-443 (E) dated 30th April, 1992, issued from the Ministry of Health & Family Welfare, Department of Health,
Govt. of India, New Delhi, has been superseded or is still in existence and
(iii) Whether the aforesaid Notification dated 30th April, 1992 is still applicable in the matter of Manufacture and sale of ''gul'' or not.
(VI) The petitioners were also given liberty to file rejoinder to it.
(VII) The Union of India, in its affidavit, while opposed the prayer, made in the writ petition, has given the following replies to (sic), made by this
Court.
4. In reply to the three queries raised by this Hon''ble High Court in this matter in its order dated 6.10.2004, this respondent submits as under :
(i) The Central Government in the Ministry of Health and Family Welfare has not issued any notification of prohibition relating to ""Pan Masala,
Gutka, Panmasala or gul"" under the provisions of the Prevention of Food Adulteration Act, 1954.
(ii) The Gazette Notification No. GSR 443(E) dated 30th April 1992 as well as the notification in GSR 444(E) dated 30th April, 1992, issued by
the Ministry of Health & Family Welfare under the Drugs and Cosmetics Act, 1940, are still in vogue.
(iii) The Drugs and Cosmetics Act, 1940 regulates the import, manufacture, distribution and sale of drugs and cosmetics. The term ''cosmetic'' is
defined u/s 3(aaa) of the said Act, and is reproduced below ;
Cosmetics"" means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into or otherwise applied to the human body
or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a
component of cosmetic.
(VIII) Copy of the Notification bearing No. GSR 443 (e) dated 30th April, 2002 has been enclosed by the petitioners, which reads as follows :
MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health)
NOTIFICATION
G.S.R. 444(E)--Whereas the Central Government is satisfied on the basis of evidence and other material available before it that the use of tobacco
in tooth pastes/tooth powders is likely to involve risk to human beings and that it is necessary and expedient in the public interest so to do :
Now, therefore in exercise of powers conferred u/s 26-A of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central Government hereby
prohibit the manufacture and sale of all cosmetics licensed as Tooth Pastes/Tooth Powders containing tobacco.
Illegible
B.S. Lamba, H. Secy.
(IX) Learned counsel for the petitioners relied on a Division Bench decision of Patna High Court, as was rendered in the case of one M/s. A.
Rahim Khan and others, as also the present petitioner No. 1, M/s. H.S. Hussain Buksh and sons, reported in 1997 (1) PLJR 891 (Haji A. Rahim
Khan and Ors. v. State of Bihar and Ors.).
(X) The present petitioner No. 1, namely, M/s. Hazi Shah Hussain Buksh Khan & Sons, which manufactures ''gul'' and one M/s. Haji A. Rahim
Khan were noticed by the State Drugs Controller, Bihar, Patna, on 28th July, 1987 and thereby, they were intimated that the manufacturer of
gul/gudka/dant manjan (dentifrice) were required to obtain a Cosmetic Licence under the provisions of the Drugs & Cosmetics Act, 1940
(hereinafter to be referred as the ''Act, 1940'') and the Rules, framed thereunder. By notices, the authority further asked them to make application
for licence, failing which legal action would be taken against them for being engaged in manufacture of ''gal"" without licence. Petitioners of the
present case and M/s. Hazi A. Rahim Khan challenged the notices dated 28th July, 1987 before the Patna High Court. A learned Single Judge of
Patna High Court held that ''gul'' was covered by definition of Cosmetics, as provided under the Act, 1940 and, accordingly, dismissed the writ
petition. Against the said judgment, two Letters Patent Appeals were preferred, one by the present petitioner No. 1, namely, M/s. Haji Shah
Hussain Buksh Khan and Sons and another by M/s. Haji A. Rahim Khan. A Division Bench of Ranchi Bench of Patna High Court by its decision,
rendered on 17th December, 1996 in the case of Haji Rahim Khan v. State of Bihar and Ors., (supra) held that ''gut is another form for
consumption of tobacco, a toxic and addictive substance and gravely injurious to human health describing ''gul'' as cosmetics would be strongly
opposed to public policy and held that ''gul'' is not a cosmetic. The Court observed that it should be left for what it is undesirable and unhealthy
concoction of tobacco rather than give it a fancy name of cosmetic and add to its advertisement potential. Thus, the Court held that the ''gul'' is not
cosmetics with the meaning of Section 3(aaa) of the Drugs and Cosmetics Act, and thereby set aside the judgment and order under appeal.
(XI) We may notice here that the said Notification No. GSR 444(E) dated 30.4.1992 was not brought to the notice of the Patna High Court.
Moreover, while justifying similar notification [GSR 443(E) dated 30.4.1992], issued under the Drugs and Cosmetics Act, the Supreme Court held
in paragraph 10 of the judgment of Laxmikant, (supra) as follows :
Therefore, the International Conference held in collaboration with the World Health Organisation was of the opinion that the ban on use of
tobacco in toothpaste and toothpowder should totally be imposed since it as prone to cancer. Under these circumstances, the view taken by the
Government of India imposing total prohibition on the use of tobacco in the preparation of toothpowder and toothpaste is well justified in the public
interest covered by Article 19(6) of the Constitution, though it offends the right to carry on trade guaranteed under Article 19(1) of the
Constitution. The imposition of total ban is in the public interest.
(XII) In the present case, the Notification bearing GSR No. 443 (E) dated 30th April, 1992, issued by the Central Government, has not been
challenged. It is unfortunate that this notification was not enforced. It is for the State Government and the Central Government to enforce
Notification bearing G.S.R. No. 443 (E) dated 30th April, 1992, if not yet given effect to.
5. So far as Legislative competence with regard to Notification No. 385 (2) dated 18th June, 2004, issued by 2nd respondent i.e. Secretary,
Health and Family Welfare Department, Jharkhand, Ranchi, is concerned, the question having been answered in negative against the State
Government, it being without jurisdiction, is hereby set aside, so far ''gutka'' and ''gul'' are concerned.
6. Both the writ petitions are, accordingly, allowed with the observations aforesaid. However, in the facts and circumstances, there shall be no
order as to costs.
R.K. Merathia, J.
7. I agree.
