Vs. Union of India & Ors  INSC 434 (11 April 1997)
RAMASWAMY, D.P. WADHWA
O R D
E R Leave granted. We have heard counsel on both sides.
appeal, by special leave, arises from the judgment passed by the Madhya Pradesh
High Court at Jabalpur Bench, on November 23, 1995.
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 :
OF HEALTH AND FAMILY WELFARE (DEPARTMENT OF HEALTH) NOTIFICATION New Delhi, the 30th April, 1992.
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;
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.
& 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
the matter came up before this court for admission on 30.7.1996, this court noted
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.
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.
find no force in the contention.
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 :
Board has in depth discussed the side effects of Nicotine compared to its
advantage as a drug in tooth powder and tooth paste.
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:
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:
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
appeal is accordingly dismissed. No costs.
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