IMPORTANT POINT
Notification imposing total prohibition on use of tobacco in preparation of Tooth powder and toothpaste is well justified in Public Interest Covered by Article 19(6) of Constitution.

ORDER

Leave granted. We have heard counsel on both sides.

2. This appeal, by special leave, arises from the judgment passed by the Madhya Pradesh High Court at Jabalpur Bench, on November 23, 1995.

3. The appellant is a manufacturer of tooth paste, using tobacco as one of the ingredients therein. The Government exercising the power under Section 33-DDE of the Drugs and Cosmetics Act, 1940 (for short, the "Act") issued notification as under :

"MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health)

NOTIFICATION

New Delhi, the 30th April, 1992.

GSR-443(E).-Whereas, the Central Government is satisfied on the basis of evidence and other material before it that the use of tobacco in tooth-pastes/tooth-powders is likely to involve risk to human beings and that 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 1949, the Central Government hereby prohibit the manufacture and sale of all Ayurvedic Drugs licensed as tooth-pastes/tooth-powders containing tobacco.

(No. X. 11014/3/91-DM-S & PFA)

H.S. Lamba, Jt. Secy."

Calling that notification in question, the appellant filed a writ petition in the High Court. The High Court has upheld the notification and dismissed the same. Thus this appeal, by special leave.

4. When the matter came up before this Court for admission on 30.7.1996, this Court noted as under :

"The petitioner has impugned the notification of the Govt. of India, Ministry of Health and Family Welfare dated 30.4.92 prohibiting the use of tobacco in the manufacture and sale of all Ayurvedic drugs including tooth powder and tooth paste containing tobacco. The High Court on elaborate consideration upheld the bar prohibiting the use of tobacco. Shri R.F. Nariman, learned counsel for the petitioner, contends that what was prohibited was use of 50% and more of tobacco in the preparation of the Ayurvedic drugs including tooth paste and tooth powder containing tobacco. The petitioner is using only 4% tobacco. The petitioner is using only 4% tobacco. If there is evidence or reports to indicate that even 4% tobacco also would cause hazardous effects including cancerous to close the manufacturing of tooth paste and tooth powder. Issue notice on this limited question."

5. On that basis, notice was issued. Counter affidavit has been filed by the respondents stating that the view that there should be total ban of use of tobacco in the preparation of tooth paste was taken by the Government in consultation with the Expert Committee constituted in that behalf and that, therefore, the notification is valid in law. Shri R.F. Nariman, learned senior counsel appearing for the appellant, contended that in view of the divergent views expressed by the members of the Board, total ban is not correct proposition; the permitted use of 4% would not be injurious to the health of the user of tooth paste and that, therefore, the view taken is not factually correct in law. We find no force in the contention.

6. It is an admitted position that the Expert Body of Ayurvedic, Siddha and Unani Drugs Technical Advisory Board was constituted under Section 33-EED of the Act. The Board has gone into the question and opined as under :

"The Board has in depth discussed the side effects of Nicotine compared to its advantages as a drug in tooth powder and tooth paste. Since there are many safe antiseptics available, the Board unanimously decided that there is no rationality in using tobacco in the tooth powder/pastes and approved the action taken by the Government, in public interest in prohibiting tobacco in Ayurvedic Drugs."

7. It is true that various authorities have expressed their views in this behalf. But on consideration of various views the Committee ultimately decided thus :

"Considering the various view points, the Committee decided that manufacturers should be told that use of tooth pastes or powders containing tobacco is fraught with the risk of cancer