Y.V. SESHACHALAM & CO., BY PARTNER Y.V. SESHACHALAM AND ANOTHER Vs. THE SECRETARY TO GOVERNMENT OF TAMIL NADU, DEPARTMENT OF HEALTH, MADRAS AND ANOTHER

JUDGEMENT

(1.) As the point involved in both these writ petitions is the same, they are dealt with together. The petitioners are manufacturers of kunkum for more than 30 years. All these years the petitioners were not asked to take out a licence for the manufacture and sale of kunkum on the ground that the kunkum manufactured by them would not come within the scope of the Drugo and Cosmetics Act, 1940 as amended in 1962. For the first time on 20th April, 1973, the Drugs Inspector issued notices to the petitioners to show cause why action should not be taken for alleged contravention of section 18(c) of the Act in not taking out a licence. This notice proceeded on the basis that kunkum manufactured by the petitioners is a cosmetic within the meaning of section 3(aaa) of the said Act and that as such a licence in Form No. 32 was necessary for the manufacture and sale of kunkum. The petitioners made representations to the effect that kunkum was largely used in temples and as a religious symbol and as a sign of good married status by Hindu woman and that the same can never be brought under the definition of "cosmetic" under section 3 (aaa) as defined in the Act. They also relied on the fact that the Commercial Tax Authorities have not treated kunkum as a cosmetic and are taxing the article only at multipoint, treating the same as not a cosmetic. These representations were, however, ignored by the Drugs Inspector and he has issued the impugned memos directing the petitioners to take a manufacturing licence within 10 days from the date of the receipt of the memo, and threatening to take action on their failure to take out licences as directed. The validity of those memos, has been challenged in these writ petitions mainly on the ground that kunkum manufactured by the petitioners cannot be brought under the definition of 'cosmetic' in section 3 (aaa) of the Drugs and Cosmetics Act, 1940 as amended by the Drugs (Amendment) Act, 1962.

(2.) The petitioners' case is that kunkum is normally used as a religious symbol and it has never been used as cosmetic that the kunkum made by them is not a beautifying agent and that according to the definition in the Act, only such substance or preparations which arc used mainly for beautifying the human body that can be taken in as a 'cosmetic'.

(3.) A cosmetic has been defined in section 3 (aaa) of the Act as follows :