Skip to content


Gopilal Agarwal Vs. State of Orissa and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1005 of 1971
Judge
Reported inAIR1973Ori15; 38(1972)CLT337
ActsDrugs and Cosmetics Act, 1940 - Sections 3, 16(1) and 18; Drugs and Cosmetics Rules, 1945 - Rule 150A
AppellantGopilal Agarwal
RespondentState of Orissa and anr.
Appellant AdvocateS. Acharya and ;N.N. Bhattacharya, Advs.
Respondent AdvocateAdv. General
Cases ReferredSomasundara Mudaliar v. State of Madras
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........of the issue whether dantaghasa gudakhu comes under the definition of a cosmetic as per the drugs & cosmetics act, 1940, have declared it as a cosmetic. it is therefore now decided that the provisions of the drugs & cosmetics act and rules thereunder should be applicable to the manufacture of dantayhasa gudakhu. you arc, therefore, requested to kindly advise your constituent members to make necessary applications for licences as required under the provisions of the drugs & cosmetics act and rules made thereunder. they may also be advised appropriately to abide by all the provisions of the above act, and rules applicable to cosmetic manufacturers. manufacturers are being addressed individually to apply for licences a press note in the daily newspapers of the state is also being.....
Judgment:

G.K. Misra, C.J.

1. The petitioner's case may be stated in short. The petitioner is a partner of Messrs. Golabrai Madumal, a partnership firm registered under the Indian Partnership Act, 1932, which owns a Gudakhu factory known as Bharat Mata Gudakhu Factory, having its place of business in Choudhury Bazar in the City of Cuttack, which manufactures and sells a particular kind of lobacco locally known as Gudakhu. The Gudakhu manufactured by the peti-tioner-firm is either chewed or rubbed against the teeth for its narcotic effect. It is a tobacco product containing tobacco powder, time, molasses and red ochre (Geru Mali). In the rejoinder the proportion of the various constitutents of Gudakhu is given as 1 kg of tobacco powder, 2 kg. of molasses, 150 grains of time and 50 grams of red ochre. A letter (Annexure 1) dated 31st of August, 1971, was addressed by the Drugs Controller and Director of Health and Family Planning Services, Orissa, to the President, Orissa Gudakhu Manufacturer's Association. Its contents are as follows:--

'Dear Sir,

J am to inform you that the Government after due examination of the issue whether Dantaghasa Gudakhu comes under the definition of a cosmetic as per the Drugs & Cosmetics Act, 1940, have declared it as a cosmetic. It is therefore now decided that the provisions of the Drugs & Cosmetics Act and Rules thereunder should be applicable to the manufacture of Dantayhasa Gudakhu.

You arc, therefore, requested to kindly advise your constituent members to make necessary applications for licences as required under the provisions of the Drugs & Cosmetics Act and rules made thereunder.

They may also be advised appropriately to abide by all the provisions of the above Act, and rules applicable to Cosmetic manufacturers. Manufacturers are being addressed individually to apply for licences A Press Note in the daily newspapers of the State is also being issued for information of all concerned.

Receipt of this letter may please ,be acknowledged.'

A Press Note (Annexure 2) was issued to the same effect. The Press Note runs thus:

'Manufacture for sale of 'Dantaghasa Gudakhu' which is a Cosmetic item for the purpose of the Drugs & Cosmetics Act, 1940 and rules thereunder is required to be covered under a licence issued for the purpose under the said Pules.

Manufacture of Cosmetics without a valid licence is an offence punishable with imprisonment for a term which may extend to one year or with fine, which may extend to five hundred rupees or with both.

All manufacturers, of Dantsgbasa Gudakhu in the State are advised to take out requisite Hermes within three months from the date of issue; of this Press Note, failing which action as provided under the law will be taken against them. For clarifications. If any, the Joint Drugs Controller, Orissa or any of the Drugs Inspectors of the State may he contacted.

Drugs Controller & Director of Health & Family Planning Service, Orisa.'

The petitioner's case is that Dantaghasa Gudakhu does not come within the definition of 'cosmetic'. He accordingly prays that Annexures 1 and 2 may be quashed and an injunction may be issued against opposite parties restraining them from enforcing the provisions of the Drugs and Cosmetics Act, 1940, as amended from time to time, (hereinafter to be referred to as the Act).

In the counter-affidavit filed by the opposite parties it was asserted that Dantaghasa Gudakhu is a processed product containing tobacco powder, lime, molasses and brick powder flavoured with some essence and it comes within the ambit of cosmetics.

2. A number of points had been taken in the writ application; but in course of hearing Mr. Acharya advanced two contentions:

(i) Dantaghasa Gudakhu Manufactured by the petitioner does not come within the ambit of the definition 'cosmetic' in Section 3(aaa) of the Act.

(ii) Even if Dantaghasa Gudakhu is held to be a cosmetic, still the Act is not enforceable as the opposite parties have not fixed its standard quality by prescribing rules as enjoined upon In Section 16(1)(b) and as such the petitioner cannot be called upon to take a licence for the manufacture of Gudakhu.

3. Though in the counter-affidavit the opposite parties had taken a stand that brick powder is one of the constituents of Gudakhu, they accepted the averment in the rejoinder as one of the constituents is Geru Mati and not brick powder.

4. The first question for consideration is whether Dantaghasa Gudakhu {hereinafter referred to as Gudakhu) is a cosmetic Which has been defined in Section 3(aaa) of the Act as follows:

' 'Cosmetic' means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic, but docs not include soap.'

It is not disputed that Gudakhu is an article intended to be rubbed against human teeth. It is contended that it is not used for cleansing teeth but is used for its narcotic effect. The undisputed fact that it has narcotic effect does not detract from its being Used for cleansing teeth. It is further contended that the word 'cleansing' shall be construed-ejusdem generis with the words succeeding such as beautifying, promoting attractiveness or altering the appearance.

Different expressions have been used to convey different meanings. Gudakhu is used for cleansing teeth and the word 'cleansing' need not carry the same meaning as the succeeding expressions. It may not whiten the teeth to the same extent as tooth paste and tooth powder do but all the same it cleanses the teeth. All the elements of the definition are thus fulfilled. The language used by the Legislature is the true depository of the legislative intent. The plain meaning cannot be whittled down by taking into consideration the meaning of 'cosmetic', as used in common parlance. If there had been no statutory definition the position might have been otherwise.

A number of decisions have been brought to our notice to show that under the Sales Tax Acts of different States tooth paste and tooth powder have been treated as toilets and not as cosmetics. Those decisions do not render any help in construing the meaning of 'cosmetic' in Section 3(aaa) of the Act where a statutory definition has been furnished. In those Sales Tax Acts there is no statutory definition and the Courts had to depend upon the meaning of the expression as used in common parlance or dictionary and came to varying conclusions. The decisions cited are 19 STC 480 = (AIR 1968 All 3), Plastic Products Ltd. v. Commr. of Sales Tax, U. P. Lucknow; (1968) 22 STC 169 (Bom), Commr. of Sales Tax v. Vicco Laboratories; (1969) 24 STC 106 (Guj), Prakash Trading Co. v. State of Gujarat; (1970) 26 STC 74 (All), Commr., Sales Tax v. Pradeep Products Kanpur; (1971) 28 STC 5 (Guj), B. Shah & Co., Surat v. State of Gujarat; and 28 STC 614 = (1972 Tax LR 1706) (Andh Pra), J. V. Seshaiah & Sons v. State Of Andhra Pradesh. It is not necessary to refer to any of these decisions as the position with regard to the Sales Tax Act is concluded by AIR 1971 SC 65, Sarin Chemical Laboratory v. Commr., of Sales Tax, U. P. In that case the question was whether the tooth powder is a toilet. Neither the expression 'cosmetic' nor 'toilet requisite' had been defined in those Sales Tax Acts. Their Lordships said that the names of articles, the sales and purchases of which are liable to be taxed given in a statute, unless defined in the statute, must be construed not in a technical sense but as understood in common parlance. In common parlance tooth powder is considered as a toilet. That meaning also accords with the dictionary meaning. They concurred with the view expressed in (1963) 14 STC 943 (Mad), Somasundara Mudaliar v. State of Madras, (1968) 22 STC 169 (Bom) and 19 STC 480 = (AIR 1968 All 3). This Supreme Court decision is not of much help so far as the present case is concerned except indicating the guiding principle that where a statutory definition has been given the elements of the definition must be kept in view to see whether the impugned article comes within the definition.

In this case a statutory definition has! been given and the word 'Gudakhu' satisfies! all the elements of the definition and as such comes within the meaning of 'cosmetic'. We accordingly reject the first contention.

5. The second contention is that as the standard quality of Gudakhu has not been prescribed the petitioner cannot be called upon to take a licence for manufacture of Gudakhu without a licence. Chanter IV deals with manufacture, sale and distribution of drugs and cosmetics. Section 18 occurs in Chapter IV. Section 18(c), so far as relevant, runs thus:

'18. From such date as may be fixed by the State Government by notification in the official Gazette in this behalf, no person shall himself or by any other person on his behalf .....

(c) manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under, and in accordance with the conditions of, a licence issued for such purpose under this Chapter.'

Thus, the petitioner is bound to take a licence to manufacture Gudakhu. Taking of a licence has nothing to do with fixation of standards of quality.

6. In Section 16(1)(b) standards of quality of cosmetic have been dealt with. It says that for the purposes of Chapter IV the expression 'standard quality' means '(b) in relation to a cosmetic, that the cosmetic complies with such standard as may be prescribed.' Standard quality is prescribed under Rule 150-A. It lays down that subject to the provisions of the Drugs and Cosmetics Rules, 1945 the standards for cosmetics shall be such as may be prescribed in Schedule S.

In Schedule S the only cosmetic for which standard quality has been prescribed as 'eau-de-Cologne'. The standard as prescribed for it is extracted hereunder:

'1. Alcoholic Fragrance solutions, such as 'Eau-de-Cologne' (by whatever name called) which are intended for sale, shall be solutions in alcohol of perfumed oils and made according to the formulae of individual manufacturer.

The alcohol used in the manufacture of such solutions shall contain one per cent of Diethyl Phthalate as denaturant and the contents of Deithyl Phthalate in each millilitre of the solution shall be shown on the lable.

The lable of the container of any such Alcoholic Fragrance solution and the outer covering, if any, in which the container is packed, shall be at the following words, which shall be either printed or written in indelible ink in a conspicuous manner, namely:-- 'Harmful if taken internally'.'

Till now no standard quality has been prescribed for Gudakhu. Consequently those provisions of the Act and the rules which impose penalty for infringement of standard quality cannot be enforced against the petitioner till the same is prescribed. Non-fixation of standard quality of Gudakhu has however nothing to do with the taking of licence.

7. We would sum up our conclusions thus:

(i) Gudakhu is a cosmetic within the meaning of Section 3(aaa) of the Act.

(ii). The petitioner cannot manufacture for sale or sell Gudakhu without taking a licence as required under the Act and the rules.

(iii) The provisions of the Act and the rules prescribing penalty for infringement of standard quality of Gudakhu cannot be enforced against the petitioner until the standard quality is prescribed.

8. On the aforesaid analysis, subject to our observations that the provisions of the Act and the rules regarding infringement of standard quality cannot be enforced against the petitioner until such quality is prescribed, the writ application has no merit It is accordingly dismissed; but in the circumstances, without costs.

B.K. Ray, J.

9. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //