S M DUTTA Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) HEARD Sri Gopal S. Chaturvedi, Senior Advocate assisted by S/Sri Nandit Srivastava and Samit Gopal for the petitioners and Sri Rajendra Kumar Dwivedi, learned Additional Government Advocate as well as learned Additional Chief Standing Counsel.

(2.) THE summoning order dated 28.4.1994 has been made the subject matter of challenge in this petition under Section 482 Cr.P.C.

(3.) COUNTER affidavit has been filed by the State denying the grounds set up in the petition and it has been stated that the firm had applied for grant of cosmetic (soap) manufacturing licence to the licensing authority stating therein that the toilet soap, which is to be manufactured shall be of ISI specification with a minimum TFM of 60%. Copy of the application for licence submitted by the petitioners' company vide its letter dated 3.1.1990 addressed to the Drug Controller, U.P., Swasthya Bhawan, Lucknow has also been annexed with the counter affidavit. The licence was granted by the licensing authority on the ISI specifications, which were specifically endorsed in the licence and it was supposed that the petitioners' company will manufacture the toilet soaps on the given standard and specification. However, the sample collected from the petitioners' company failed the test by the public analyst. Section 16 of the Act lays down the standard of quality under clause (b) of Section 16 and mentions that the cosmetic must comply with such standard as may be prescribed. The word "prescribed" has been defined under Section 3(i) of the Act. It is further stated that Section 3 (aaa) defines the word 'cosmetics' and the word 'soap' is not included prior to 1.2.1983, but by Act No.68 of 1982 the word stands included from 1.2.1983. It is, therefore, clear that the soap was included in the word 'cosmetics' w.e.f. 1.2.1983. The formula which was submitted by the petitioners' company at the time of grant of licence under which they were supposed to manufacture the soaps, was accepted by them and they agreed that they would comply with the ISI specifications and a specific endorsement was made in the licence to that effect. The percentage was also indicated for toilet soaps in Table-I of the Indian Standard Specification for Toilet Soap and the lowest grade-3 requirement of TFM is 60%. The samples tested were found to be much below the TFM prescription. It is also stated that the petitioners' company had also specifically displayed on their label of soaps that it contains TFM 50% and it is only incorrect to say that no standard was fixed and the standard, which was fixed in respect of toilet soaps came into effect from 27.10.1993 and by GSR dated 27.10.1993 toilet soap was included in Schedule-S, but it does not mean that the petitioners were free to manufacture soap of any quality they like, but they were required to manufacture the soaps according to the standard fixed in the licence. If the TFM content in the soap is found less and the soap is rubbed or applied on the human body, it will create various skin problems as well as required amount of protection to the human body will not be available.