HAJI A RAHIM KHAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) Whether 'Gul' (a powdry concoction, primarily of tobacco, consumed by rubbing against teeth) is covered by the definition of Cosmetic as contained in the Drugs and Cosmetics Act, 1940? A learned Single Judge of this Court, answering this question in the affirmative, dismissed C.W.J.C. Nos. 1257 and 1327 of 1987 (R) filed at the instance of the appellants in each of the two appeals by judgment and order dated March 23, 1989.

(2.) The sole appellant in L.P.A. No. 48 of 1989 (R) [arising from C.W.J.C. No. 1257/87 (R)] is engaged in the manufacture and sale of gul under the trade name 'Gulab Marka Gul'. Similarly the sole appellant in L.P.A. No. 47/89 (R) [arising from C.W.J.C. No. 1327/87 (R)] manufactures and sells gul under the trade name, 'A.R. Chand Tara Marka Gul'. By notices issued by the State Drug Controller, Bihar, Patna on 28-7-1987 each of the two appellants was intimated that the manufacture of gul/gudaku/Dant Manjan (dentifrice) were required to obtain a cosmetic licence under the provisions of the Drugs & Cosmetics Act, 1940 ('the Act' hereinafter) and the Rules framed thereunder. The notices further asked them to make application for licence failing which legal action would be taken against them for being engaged in the manufacture of gul without licence. Both the appellants came to this Court in the aforesaid two writ petitions challenging the notices dated 28-7-1987 issued by the Drug Controller on the plea that gul was not cosmetic. A learned Single Judge of this Court, however, found and held that gul was covered by the definition of cosmetic as provided in the Act and accordingly dismissed the writ petitions by judgment and order dated March 23, 1989. These two appeals are directed against this judgment.

(3.) The nature and composition of gul, the purpose of its use and the mode of its application have been described in the judgment and order coming under appeal in the following words: