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 & 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.
3. 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.
4. 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., , Oudh Sugar Mills Ltd. v. Union of India and Ors., , Harakchand Ratanchand Banthia and Ors. v. Union of India and Ors., , and Bishambhar Dayal
Chandra Mohan and Ors. v. State of Uttar Pradesh and Ors. . 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.
5. We have given our thoughtful consideration to the rival submissions.
6. The impugned notification issued by the Central Government, reads thus:–
GSR 443(E)–Whereas the Central Government is satisfied on the basis of evidence and other material available before it that the use of tobacco in tooth paste/tooth powders is likely to involve risk to human beings and that it is necessary and expedient in the public interest so to do. Now, therefore, in exercise of powers conferred by Section 33(EED) of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central Government hereby prohibit the manufacture and sale of all Ayurvedic Drugs licensed as tooth pastes/tooth powders containing tobacco.
7. In pursuance of the above quoted notification respondent No. 3 has issued Annexure-9 dated 11.5.1993 describing it to be an Ordinance. In our view, the use of the word “adhyadesh” in Annexure-9 is thoroughly mis-placed because it is an admitted position of the parties that respondent No. 3 does not have power to issue Ordinance under any law. We shall, therefore, construe Annexure-9 as an order issued by the competent authority in pursuance of the notification dated 30.4.1992.
8. In order to determine the constitutional validity of impugned notification, we may reproduce Section 33EED of 1940 Act:-
33-EED. Power of Central Government to prohibit manufacture, etc., of Ayurvedic, Siddha or Unani drugs in public interest.– Without prejudice to any other provision contained in this Chapter, if Central Government is satisfied on the basis of any evidence or other material available before it that the use of any Ayurvedic, Siddha or Unani drug is likely to involve any risk to human beings or animals or that any such drug does not have the therapeutic value claimed or purported to be claimed for it and that in the public interest it is necessary or expedient so to do then, that Government may, by notification in the Official Gazette, prohibit the manufacture, sale or distribution or such drug.
We may also quote Article 47 of the Constitution of India:–
47. The State shall regard the raising of a level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
9. A conspectus of the above quoted provisions shows that the Central Government has been empowered to prohibit the manufacture, sale or distribution of ayurved, siddha or unani drugs, if it is satisfied on the basis of any evidence or other material available before it that the use of such drug is likely to involve any risk to human beings. It can thus be said that Legislature has deliberately conferred
a wide discretion on the Central Government to issue a notification prohibiting manufacture of drug which is likely to involve any risk to human beings. The expression “likely to involve any risk to human
beings…” is by itself indicative of the wide amplitude of the power conferred on the Central
Government. To our mind, it is not necessary for examination of the power under Section 33EED that the ayurvedic drug may cause injury to human beings or animals, etc. Only a likelihood of risk being involved to human beings is sufficient to entitle the Central Government to exercise this power to prohibit the manufacture of the ayurvedic drug.
10. What the Central Government has done in the present case is to rely on the material available before it for coming to a conclusion that ayurved dant manjan containing tobacco to the tune of 25%, is likely to involve risk to human beings and particularly to the children. Having felt satisfied to this, the Central Government has thought it proper to exercise its jurisdiction under Section 33EED of 1940 Act. The petitioners have not questioned the bona fides of the satisfaction arrived at by the Central Government. Therefore, we are of the opinion that no act without authority of law has been done by the Central Government by issuing the notification.
11. We are also of the view that the impugned notification does not in any manner impose unreasonable restriction on the right of the petitioners to carry on trade and business. The impugned notification does not in any manner violate Article 300A of the Constitution of India or any other provision of the Constitution. May be that the petitioners are adversely affected by the impugned notification. However, that by itself is not sufficient to vitiate the impugned notification. The Court has to take note of the recent trend of decisions of the Apex Court wherein it has been held that the legislative instrument or a policy decision of the State cannot be invalidated only on the ground that it violates fundamental right of an individual in case such legislative instrument has been issued or policy decision taken for the purpose of achieving the goals set out in Part IV of the Constitution of India. In State of Rajasthan v. Arvind Kumar Gochhar, D.B. Civil Special Appeal No. 200/93 decided on 6.4.1994, we have dealt with this issue at length and held that an action of the State intended to achieve the object set out by Part IV of the Constitution, cannot be nullified only on the ground of violation of rights of an individual, which are guaranteed by Part III of the Constitution of India. For the detailed reasons which have been set out in Arvind Kumar Gochhar’s case, we do not consider it necessary to re-discuss the same point at length.
12. Coming to the question of violation of principles of natural justice, we wish to say only this much that when a notification has been issued by a Government in exercise of this legislative power, it cannot be questioned on the ground of violation of the principles of natural justice. In our considered opinion, there is no merit in the argument of the
learned Counsel for petitioner that the impugned notification should be struck down on the ground of breach of natural justice.
13. Similarly, Shri Jain’s argument that the impugned notification has resulted in violation of fundamental right of the petitioners guaranteed under equality clause, is misconceived. What the respondents have done by issue of the impugned notification and the impugned order is to achieve one of the objectives set out in Article 47 of the Constitution. It is an action taken in the interest of public at large and particularly the children of tender age whose life is likely to be put to risk on account of use of dant manjans manufactured with tobacco as one of the ingredients. There could not have been a better step taken by the Central Government than to prohibit manufacture of such items which are injurious to the future generation of the country. Shri Jain may be right that the Central Government should have taken steps to prohibit manufacture of pan masala, gutkha, cigarettes, etc., but mere failure of Central Government to take positive steps to prohibit use of similar goods which are injurious to public health, cannot be a ground for striking down an action taken by the Government which is in public interest. We are of the considered view that the Court cannot enforce a negative equality. Rather, the Court will have to recognise that steps taken for achieving positive equality should ordinarily be upheld.
14. We, therefore, find no merit in the writ petition which is hereby dismissed. However, taking note of the submission of Shri Jain regarding use of tobacco in pan masala, gutkha, etc., we direct the Central Government to appoint a committee of experts regarding the use of tobacco in pan masala, gutkha, etc., and its effect on public health. The Central Government should take steps for prohibition of the manufacture of these items in case the committee recommends that such things are injurious to public health. Such a decision must be taken by the Central Government within six months of the receipt of certified copy of this order.