BHARAT MANUFACTURING COMPANY Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, petitioner has prayed for quashing the notification dated 20 -7 -2000, contained in Annexure -2, issued by the Health Medical Education and Family Welfare Department, Government of Bihar, prescribing the content of alcohol and packing size of the Ayurvedic Medicinal preparation out of self -generated alcohol.

(2.) IN short, the case of the petitioner is that it is an unit of Somras Ayurvedic Bhawan Pvt. Ltd. and is engaged in the manufacture of Ayurvedic medicinal preparations by self -generated alcohol for which has got a licence from the Respondent State Government. It has been contended by the learned Counsel appearing for the petitioner that Section 33N of the Drugs and Cosmetics Act, 1940, herein after referred to as 'the Act', empowers the Central Government to make rules for the purpose of giving effect to the provisions of law as contained in Chapter -I of the Act, which prescribes the method of establishment of the laboratories and the methods of test or analysis to be employed in determining whether any Ayurvedic, Siddha or Unani Drug is labelled with the true list of the ingredients which it purported to contain, and the same are enumerated in Sub -clause (a) to (h) of Sub -section (2) of Section 33N of the Act. In exercise of the powers vested in the Central Government under Section 33N of the Act, the Central Government have framed Rule 161 in the Drugs and Cosmetics Rules, 1945 which provides for labelling, packing and limit of alcohol in Ayurvedic (including Siddha) or Unani drugs. It has been submitted that Sub -clauses (ix)(a) and (ix)(b) of Sub -rule (3) of Rule 161 of the Rules were inserted vide notification No. GSR 904 (E) dated 2 -12 -1992, which provide for the size of packing and content of alcohol in Ayurvedic medicinal preparations, with high content of alcohol as base as also preparations containing self -generated alcohol. According to the learned Counsel for the petitioner by an amendment in Section 33N of the Act the power of the State Government to make rule were only in respect of grant or renewal of a licence, inspection, test or analysis of any Ayurvedic medicinal preparations or any other matter for which the fees may be prescribed and under the specific provision of Section 33N of the Act the State Government have not been conferred with any jurisdiction either to prescribe the packing size or the content of alcohol in Ayurvedic medicinal preparations, hence, the impugned notification dated 20 -7 -2000 issued by the State Government, contained in Annexure -2, is without jurisdiction and illegal.

(3.) DESPITE sufficient opportunities granted to learned Standing Counsel No. I, appearing for the Respondent State of Bihar and its officials to seek instruction and file counter -affidavit, no counter -affidavit was filed.