The definition of cosmetic in Sec.3 (aaa) of the Drugs and Cosmetics Act, 1940, should be read in the context of the ordinary meaning of the word 'cosmetic' and not in its broader literal meaning.

Aftab Alam, J.

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 and 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:

"the petitioners manufacture gul which has as its ingredients tobacco and tendu leaves ashes. It is not in dispute that the gul is applied by rubbing against the teeth. According to the petitioners, by so applying the gul, the consumer enjoys the narcotic effect of tobacco. It is also not dispute before me that incidentally the gul so rubbed has the effect of cleansing the teeth and protecting them. Annexure-A which is a certificate issued to the petitioner in CWJC No.1257/87 (R) by the assistant Registrar of trade marks under the Trade and Merchandise Marks Act, 1958 discloses that the manufacturers themselves claimed that the application of gul protects the teeth. This fact is mentioned in the registered trade mark itself learned Counsel for the petitioners did not dispute that the application of gul also cleanses the teeth and protects it, but submitted that the primary purpose for which gul is used is not for cleansing teeth or for use as dentifrice, but primarily it is used by persons who wish to quench their thirst for tobacco. According to the petitioners gul is used as tobacco or tobacco product, and can never be said to be cosmetic. On the other hand it has been contended on behalf of the respondents that gul manufactured by the petitioners is a cosmetic as defined in section 3 (aaa) of the Act. The main argument urged on behalf of the petitioners was that since gul was used only by those addicted to tobacco, not primarily for the purpose of cleansing teeth but primarily for the purpose of quenching their thirst for tobacco, it cannot be considered to be a cosmetic even if it had incidentally the effect of cleansing teeth and protecting them. It was submitted that in ordinary parlance gul was considered to be tobacco or a tobacco product and not a cosmetic or a dentifrice or a tooth powder. It was, therefore, submitted that even for the purpose of the act, it must be understood as in common parlance and must not be understood in a manner not ordinarily understood by those using the said product. "