G.S.SINGHVI,J. - (1.) IN this petition jointly filed by M/s. Kastoori Udyog, Bundi and three others, following prayers have been made by the petitioners: - - i) issue an appropriate writ, order or direction, quashing the impugned Notification dated the 30th April, 1992 issued by the Government of India published in the Gazette of India (Annexure -8), ii) issue an appropriate writ, order or direction, quashing the impugned Ordinance/order dated 11.5.1993 issued by the respondent No. 3 (Annexure -9), iii) issue an appropriate writ, order or direction directing the respondents not to interfere with the trade or business of the petitioners regarding manufacturing and selling of tooth paste/tooth powder containing tobacco namely Kastoori Manjan, Karishma Manjan Kapoori Dant Manjan and Super Dant Manjan respectively, iv) issue an appropriate writ, order or direction giving any other relief in favour of the petitioners, v) and the cost of the writ petition may also kindly be issued.
(2.) PETITIONERS have come forward with the plea that petitioner No. 1 is manufacturing Kastoori Manjan for last more than 20 years. This product is used as ayurved medicine for curing of several diseases relating to teeth. A licence has been granted in favour of petitioner No. 1 by the Director, Ayurved Department, Government of Rajasthan on 8.1.1981. Petitioner No. 2 is also manufacturing manjan named as Karishma Manjan. Petitioner No. 2 has also been given a licence under the Drugs and Cosmetics Act, 1940. Products manufactured by the petitioners No. 1 and 2 are being sold in not only the State of Rajasthan but outside of the State as well. Petitioner No. 3 is manufacturing Kapoori Dant Manjan and petitioner No. 4 is manufacturing Super Dant Manjan. They too have got licences issued by the competent authority. Manjans manufactured by the petitioners contain a small quantity of tobacco but according to the petitioners it is not harmful to the human body. Petitioners have referred to the notification dated 30.4.1992 issued by the Central Government by which it has prohibited the manufacture and sale of all ayurvedic drugs, like tooth paste/tooth powder containing tobacco. Reference has also been made to the notification dated 11.5.1993 issued by respondent No. 3 whereby he has prohibited manufacture of tooth paste/tooth powder containing tobacco and licences granted for manufacture of these goods, have been cancelled. Plea of the petitioners is that the impugned notification dated 30.4.1992 and order dated 11.5.1993 are contrary to the provisions of the Drugs and Cosmetics Act, 1940 as well as the provisions of Article 19(l)(f) of the Constitution of India. It has been pleaded that the impugned notification and the order constitute serious infringement of the fundamental right of the petitioners to carry on their trade and business and that the impugned notification and order are not covered by Article 19(6) of the Constitution of India. Further plea of the petitioners is that the licences issued in favour of the petitioners have been cancelled without hearing them and in this manner they have been condemned unheard. Yet another plea raised by the petitioners is that the impugned order/notification violates equality clause contained in the Constitution inasmuch as use of tobacco in other articles like pan masala, gutkha, cigarette, biri, which are, admittedly harmful to the public health, have not been prohibited. Further plea of the petitioners is that use of ayurved medicines cannot be prohibited by respondents. Reference has been made to the provisions of Rule 161(2) of the Drugs and Cosmetics Rules, 1945 and it has been pleaded that tooth paste/tooth powder do not fall within the ambit of the term 'poisonous substances' as specified in Schedule -E appended to the Rules. In reply filed by respondents No. 2 and 3, a preliminary objection to the entertain ability of the writ petition in the form of a joint petition, has been raised. It has then been pleaded that the Central Government has issued the impugned notification dated 30.4.1992 after discussing the matter with the World Health Organisation and various medical experts of the country, who have found [that] the use of tobacco in tooth paste/tooth powder involve risk to human beings. It has addictive qualities and; therefore, in order to safeguard the interest of the public at large, the Central Government has thought it proper to prohibit the manufacture, sale and use of all such ayurved drugs which contain tobacco. The respondents have pleaded that none of the fundamental rights of petitioners have been infringed by the impugned notification and the impugned order. They have referred to Section 33EED of the Act of 1940 in support of their assertion that the Central Government has power to prohibit manufacture, etc., of ayurved, siddha or unani drugs in public interest. Reference has also been made to the document Annexure -R.1 which is a letter written by the Drugs Controller (India), Directorate General of Health Services (Drugs Section), New Delhi to all the State Drug Controllers, for prohibition of the use of tobacco in the tooth paste and tooth powder manufactured in the name of ayurved medicines. It has also been pleaded that under the directions of the Central Government, the licensing authority has passed an order dated 23.1.1992 prohibiting issue/renewal of licence. Respondents have pleaded that since the impugned notification dated 30.4.1992 is a legislative instrument, the same cannot be questioned on the ground of alleged violation of principles of natural justice.
(3.) SHRI Jain, learned Counsel for the petitioners, has strenuosly argued that the impugned notification fetters the fundamental right of trade and business available to the petitioners under Article 19(1)(f) of the Constitution of India as well as Article 300A thereof. Shri Jain argued that mere use of tobacco in a minuscule quantity cannot be construed as hazardous to public health and, therefore, in the garb of invoking its power under Section 33EED of the Act of 1940, the Central Government could not have prohibited the manufacture, sale and distribution of tooth paste/tooth powder (ayurved medicines) containing tobacco. Shri Jain submitted that tobacco is not a poisonous substance as specified in Schedule -E read with Rule 161(2) of the Rules of 1945 and, therefore, there could be no justification for prohibition of the manufacture and sale. Shri Jain placed reliance on decision of the Supreme Court in The State of Madras v. V.G. Row and Ors., : 1952CriLJ966 , Oudh Sugar Mills Ltd. v. Union of India and Ors., : AIR1970SC1070 , Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors., : [1970]1SCR479 , and Bishambhar Dayal Chandra Mohan and Ors. v. State of Uttar Pradesh and Ors. : [1982]1SCR1137 . Shri Mohd. Rafiq and Shri B.L. Awasthi, learned Counsel for the respondents, on the other hand argued with equal vehemence that the impugned notification does not suffer from any legal or constitutional infirmity. They submitted that the Central Government has full authority to issue such notification in exercise of its power under Section 33EED of 1940 Act. They submitted that the impugned notification has been issued in the light of provisions contained in Article 47 of the Constitution of India and, therefore, even if it has some indirect impact on the right of an individual or some individuals to carry out their business, it cannot be castigated as arbitrary or unreasonable. Learned Counsel argued that the petitioners have not pleaded non -application of mind by the competent authority and, therefore, the Court is not required to go into the question of application of mind by the Central Government before issue of this Notification.;