Henna paste cones, being products intended for beautification and applied to the human body, fall under the definition of cosmetics, requiring mandatory manufacturing licenses. Courts should not exercise inherent powers to quash proceedings based on disputed factual contentions at the cognizance stage, as such matters must be resolved during trial.

ORDER :

G.K. ILANTHIRAIYAN, J.

This petition has been filed to quash the proceedings in C.C.No.6575 of 2022 on the file of the learned X Metropolitan Magistrate, Egmore, Chennai, thereby taking cognizance for the offence punishable under Section 27-A(ii) of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as “the Act”) as against the petitioner.

2. The respondent lodged complaint as against ten accused persons for the contravention of Sections 18(c), 18(a)(ii) and 18(b) of the Act which is punishable under Section 27-A(ii) of the Act, alleging that the first accused had manufactured mehandi cones for sale without having requisite licence and sold the same to various dealers including M/s. Sri Shiv Fancy. Further the tenth accused had also purchased the mehandi cones from the first accused who was not having requisite cosmetic manufacturing licence. Further A10 had purchased the misbranded cosmetics i.e., mehandi cone from the manufacturer ie., first accused without any labels on it and without the particulars including batch number, manufacturing date, expiry date, name and address of the manufacturer, net content etc. Thus it is a contravention of Section 18(c) of the Act for having been manufacturing and selling the cosmetics without having a valid cosmetics manufacturing license, which is punishable under Section 27-A(ii) of the Act. Further the accused contravened the provision under Section 18(a)(ii) of the Act r/w Rule 148 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as “the Rules”) for having been manufacturing and selling the cosmetics without proper labelling which is punishable under Section 27-A(ii) of the Act. On the complaint, the trial Court had taken cognizence and issued summons to the accused persons.

3. The learned counsel appearing for the petitioner submitted that the petitioner is arrayed as first accused. He further submits that a mehandi cone is not a cosmetic and it doesn’t require any license for manufacturing and sale. Therefore, there is absolutely no contravention under Sections 18(c), 18(a)(ii) and 18(b) of the Act. The petitioner is being a member of mehandi Promoting Association of India, requested certain clarification and guidance for the manufacture and sale of mehandi/henna paste in cone and also requested to put on hold all the proceedings. Further henna paste is not covered under the classification for cosmetic raw materials under the Rules. It is being a marriage seasonal product only few merchants and manufacturers are involved in this business.

3.1. He further submitted that mehandi is a natural leaf, powdered and converted into paste with some additives and filled in cones and marketed as mehandi paste/ henna paste in cone and it is used as skin decorative widely accepted by the public. He also submitted that the henna powder is coming under Schedule S item No.28 of the Act and as such no license is required to manufacture or sell. In support of his contention, he relied upon the judgment of the Bombay High Court in Criminal Application No.3956 of 2015 dated 18.09.2016 in the case of Chutararam & anr Vs. State of Maharastra, which held that no license is required to manufacture mehandi cone or mehandi powder for sale or for distribution. It was further held that by referring the provisions of Rule 138 of the Rules, if the product mehandi is not categorized in Schedule M-II, there is no question of