PETITIONER:
LAXMIKANT
Vs.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 11/04/1997
BENCH:
K. RAMASWAMY, D.P. WADHWA
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted. We have heard counsel on both sides.
This appeal, by special leave, arises from the judgment passed by the Madhya Pradesh High Court at Jabalpur Bench, on November 23, 1995.
The appellant is a manufacturer of tooth paste, using tobacco as one of the ingredients therein. The Government exercising the power under section 33-DDE of the Drugs and cosmetics Act, 1940 ( for short, the "Act") issued notification as under :
"MINISTRY OF HEALTH AND FAMILY
WELFARE (DEPARTMENT OF HEALTH)
NOTIFICATION
New Delhi, the 30th April, 1992.
GSR-443(E), Whereas, the
Central Government is satisfied on
the basis of evidence and other
material before it that the use of
tobacco in tooth-pastes/tooth-
powders is likely to involve risk
to human beings and that is
necessary and expedient in the
public interest so to do;
Now , therefore, in exercise
of powers conferred by section
33(EED) of the Drugs and cosmetics
Act, 1940 (23 of 1949, the Central
Government hereby prohibit the
manufacture and sale of all
Ayurvedic Drugs license as tooth-
pastes/tooth-powders containing
tobacco.
(No.X.11014/3/91-DM-S & PFA) H.S.
Lamba, Jt. secy."
Calling that notification in question, the appellant filed a writ petition in the High court. The High court has upheld the notification and dismissed the same. Thus this appeal, by special leave.
When the matter came up before this court for admission on 30.7.1996, this court noted as under:
"The petitioner has impugned the
notification of the Govt. of India,
Ministry of Health and Family
welfare dated 30.4.92 prohibiting
the use of tobacco in the
manufacture and sales of all
Ayurvedic drugs including tooth
powder and tooth paste containing
tobacco. The High Court on
elaborate consideration upheld the
bar prohibiting the use of tobacco.
Shri R.F. Nariman, learned counsel
for the petitioner, contends that
was prohibited was use of 50% and
more of tobacco in the preparation
of the Ayurvedic drugs including
tooth power containing tobacco. If
petitioner is using only 4%
tobacco. If there is evidence or
reports to indicate that even 4%
tobacco also would not mind to
close the manufacturing of tooth
paste and tooth powder. Issue
notice on this limited question."
On that basis, notice was issued. Counter affidavit has been filed by the respondents stating that the view that there should be total ban of use of tobacco in the preparation of tooth paste was taken by the Government in consultation with the Export committee constituted in that behalf and that, therefore, the notification is valid in law, Shri R.F. Nariman, learned senior counsel appearing for the appellant, contended that in view of the divergent views expressed by the members of the Board, total ban is not correct proposition; the permitted use of 4% would not be injurious to the health of the user of tooth paste and that, therefore, the view taken is not factually correct in law. We find no force in the contention.
It is an admitted position that the Expert Body of Ayurvedic, Siddha and Unani Drugs Technical Advisory Board was constituted under section 33-EED of the Act. The Board has gone into the question and opined under :
"The Board has in depth discussed
the side effects of Nicotine
compared to its advantage as a drug
in tooth powder and tooth paste.
Since there are many safe
antiseptics available, the Board
unanimously decided that there is
no rationality in using tobacco in
the tooth powder/pastes and
approved, the action taken by the
Government, in public interest in
prohibiting tobacco in Ayurvedic
Drugs."
It is true that various authorities have expressed their views in this behalf. But on consideration of various views the committee ultimately decided thus:
"Considering the various view
points, the committee decided that
manufacturers should be told that
use of tooth pastes or powers
containing tobacco is fraught with
the risk of cancer and dissuaded
from marketing such products. In
the case of Orissa, the Chairman
agreed to a communication being
sent by the D.G.H.S. to the
Director of medical Education and
Training to discourage the use of
Gudakhu in Orissa, copies of this
letter would be endorsed to the
Director of Medical and Health
service in other states and also to
the Members of the committee."
Similar view was also expressed at an International Seminar held on 27th and 28th July, 1991 at All India Institute of Medical sciences, New Delhi and the Conference also made similar recommendations which read thus:
"The conference recognised
tobacco as major public health
hazard and also noted that on
further research was needed to
start tobacco control activities,
as sufficient scientific evidence
is already available about the ill-
effects on health due to use of
tobacco besides its being
addictive."
Therefore, the International conference held in collaboration with the world Health organisation was of the opinion that the ban on use of tobacco in tooth paste and tooth powder should totally be imposed since it is 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 tooth powder and tooth paste 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.
The appeal is accordingly dismissed. No costs.