S.S.CHAUHAN,J. - (1.) HEARD Sri Gopal S. Chaturvedi, Senior Advocate assisted by S/Sri Nandit Srivastava and Samit Gopal for the petitioners and Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate as well as learned Additional Chief Standing Counsel.
(2.) THE summoning order dated 28.4.1994 has been made the subject matter of challenge in this petition under Section 482 Cr.P.C. The facts in brief are that the petitioners, Hindustan lever Limited applied for licence for manufacturing toilet soaps in the name and style as "Breeze and Lux" under the Drugs and Cosmetics Act ( for short 'the Act'). The application was made to the competent authority for grant of licence for manufacturing the aforesaid toilet soaps and after completing the necessary formalities, the licence was granted to the petitioner's company for manufacturing of the aforesaid toilet soaps vide licence dated 28.2.1990. The licence was granted with the condition that the petitioner's company will subscribe to the ISI specifications for toilet soaps and while granting sanction, the percentage of Sodium Soap Anhydrous in respect of Lux Toilet Soap was prescribed between 55 to 75, whereas in respect of Breeze Toilet Soap it was prescribed between 50-75, but in both the specifications a rider was imposed that the manufacturing should conform to the ISI specifications for toilet soaps. After the grant of licence, manufacturing was started by the petitioners' company and on 12.4.1990 inspection was conducted by the Drug Inspector and after conducting the inspection, a notice was issued to the petitioners' company on 31.5.1993, to which petitioners' company replied by means of letter dated 28.6.1993. Thereafter, the petitioners' company gave another reply on 1.7.1993. The sample of the petitioners' company was forwarded to the public analyst, who after testing the sample, submitted his report dated 11.10.1993 in which it was found that Lux and Breeze toilet soaps were not conforming to the ISI specifications as Total Fatty Matter ( for short "TFM') in respect of Breeze toilet soap was found to be 33.77 as against 60% and matter insoluble in alcohol and chlorides were found to be 33.91% w/w and 2.54% w/w, which is more than ISI specifications and in the same manner in Lux toilet soap TFM was found 50.82% as against 60% and matter insoluble in alcohol and chlorides were found to be 28.58% w/w and 2.33% w/w, which is more than ISI specifications. After receiving the report of the public analyst, the Drug Inspector proceeded to lodge a complaint under Sections 17C and 18 (a) (ii) read with Section 27 of the Act in the court of Chief Judicial Magistrate, Unnao, upon which cognizance was taken by the Chief Judicial Magistrate by summoning the petitioners' company. One set of the petitioners have challenged the proceedings before this Court by means of present petition and an interim order was granted on 25.4.1996. Since then the matter has been lingering and could not be taken up, but ultimately anyhow the matter was heard by this Court with great effort and the arguments were advanced. The trial is held up since 1996 on account of the interim order of this Court.
(3.) COUNTER affidavit has been filed by the State denying the grounds set up in the petition and it has been stated that the firm had applied for grant of cosmetic (soap) manufacturing licence to the licensing authority stating therein that the toilet soap, which is to be manufactured shall be of ISI specification with a minimum TFM of 60%. Copy of the application for licence submitted by the petitioners' company vide its letter dated 3.1.1990 addressed to the Drug Controller, U.P., Swasthya Bhawan, Lucknow has also been annexed with the counter affidavit. The licence was granted by the licensing authority on the ISI specifications, which were specifically endorsed in the licence and it was supposed that the petitioners' company will manufacture the toilet soaps on the given standard and specification. However, the sample collected from the petitioners' company failed the test by the public analyst. Section 16 of the Act lays down the standard of quality under clause (b) of Section 16 and mentions that the cosmetic must comply with such standard as may be prescribed. The word "prescribed" has been defined under Section 3(i) of the Act. It is further stated that Section 3 (aaa) defines the word 'cosmetics' and the word 'soap' is not included prior to 1.2.1983, but by Act No.68 of 1982 the word stands included from 1.2.1983. It is, therefore, clear that the soap was included in the word 'cosmetics' w.e.f. 1.2.1983. The formula which was submitted by the petitioners' company at the time of grant of licence under which they were supposed to manufacture the soaps, was accepted by them and they agreed that they would comply with the ISI specifications and a specific endorsement was made in the licence to that effect. The percentage was also indicated for toilet soaps in Table-I of the Indian Standard Specification for Toilet Soap and the lowest grade-3 requirement of TFM is 60%. The samples tested were found to be much below the TFM prescription. It is also stated that the petitioners' company had also specifically displayed on their label of soaps that it contains TFM 50% and it is only incorrect to say that no standard was fixed and the standard, which was fixed in respect of toilet soaps came into effect from 27.10.1993 and by GSR dated 27.10.1993 toilet soap was included in Schedule-S, but it does not mean that the petitioners were free to manufacture soap of any quality they like, but they were required to manufacture the soaps according to the standard fixed in the licence. If the TFM content in the soap is found less and the soap is rubbed or applied on the human body, it will create various skin problems as well as required amount of protection to the human body will not be available. Submission of learned counsel for the petitioners is that the ISI prescription has been made applicable in respect of the manufacture of toilet soaps from 27.10.1993 and as such no such prescription could have been endorsed on the licence, which was granted to the petitioners' company. It is also submitted that the licence was obtained for manufacturing certain more items and it was not a fresh licence, which was obtained for manufacturing of soaps. Six items were already existing in the licence, which was earlier granted. He has relied upon Section 17C of the Act, which deals with the requirement of misbranded cosmetics. Reliance has also been placed on Rule 138(3) of the Drugs and Cosmetics Rules (for short 'the Rules') to emphasize that application by a licensee to manufacture additional items of cosmetics is to be accompanied by a fee of Rs.100 for each item subject to a maximum of Rs.3000/- for each application. It has also been contended that ISI prescription endorsed on the licence could not have been done by the licensing authority and such specification is not applicable in the case of the petitioners as the said ISI specification has been made applicable w.e.f. 27.10.1993 when notification was issued by the Central Government. It is further submitted that the power to prescribe standard for running cosmetics is exclusively within the domain of the Parliament and no authority has any power in this regard. Thus, the act of the Drug Controller amounts to legislation, which is not within his purview. The standard for cosmetics is prescribed under Rule 150A of the Rules, which lays down the prescription as may be prescribed in Schedule-S and Schedule-S lays down the prescriptions in regard to manufacture of toilet soaps. In support of his contention, he has placed reliance upon the following cases:- East India Commercial Co. Ltd., Calcutta and another vs. The Collector of Customs, Calcutta, AIR 1962 SC 1893 ; Becker Gray & Co.(1930) Ltd. and others v. Union of India and another, AIR 1971 SC 116 ; Gopilal Agarwal v. State of Orissa and another, AIR 1973 Orissa 15 ; S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, (2007) 4 SCC 70 ; State of NCT of Delhi through Prosecuting Officer, Insecticides, Government of NCT, Delhi v. Rajiv Khurana, (2010) 11 SCC 469 ; and Pepsico India Holdings Pvt. Ltd. V. Food Inspector and another, (2011) 1 SCC 176.;