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Laxmikant v. U O I

Supreme Court of India · 11 April 1997

Court
Supreme Court of India
Decided
11 April 1997
Case no.
C.A. No. 3000 of 1997
Bench
K. Ramaswamy, D.P. Wadhwa
Length
3 pages
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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.

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