S.J.MUKHOPADHAYA, J. - (1.) BOTH 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 under Section 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. 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 Anr. v. Union of India and Ors., reported in JT 2004 (6) 179, 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.
(3.) 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 &;