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Indian Beauty & Hygiene Association & Others v/s The Union of India & Another


Company & Directors' Information:- A. S. INDIA LIMITED [Active] CIN = U70100MP2009PLC022300

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- HYGIENE (INDIA) PRIVATE LIMITED [Active] CIN = U24119DL1998PTC092596

Company & Directors' Information:- UNION COMPANY LTD. [Active] CIN = U36900WB1927PLC005621

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- THE INDIAN CORPORATION PRIVATE LIMITED [Active] CIN = U65993TN1946PTC000988

Company & Directors' Information:- HYGIENEINDIA PRIVATE LIMITED [Active] CIN = U37200TN2019PTC128552

Company & Directors' Information:- UNION COMPANY PRIVATE LIMITED [Dissolved] CIN = U99999KA1942PTC000292

    Cri. R.P. 619 of 2002 & Cri. M.A. Nos. 772 to 773 of 2002

    Decided On, 09 September 2014

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE V.M. KANDE & THE HONOURABLE MR. JUSTICE P.D. KODE

    For the Appearing Parties: ---------



Judgment Text

P.D. Kode, J.

1. Heard Shri Chinoy, learned Senior Counsel appearing on behalf of the Petitioners, learned counsel for the Union of India and the learned AGP for the State of Maharashtra.

2. The Petitioners are aggrieved by the Notification which has been issued by the Government of India dated 16th June, 2014 in exercise of powers confirmed by sub-section (1) read with clause (j) sub-section (2) of Section 52 of the Legal Metrology Act, 2009’) (1 of 2010) and by virtue of the said Notification, have introduced the sub-rule (8) of Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011, which reads as under:

'(8) Every package containing soap, shampoos, tooth pastes and other cosmetics and toiletries shall bear at the top of its principal display panel a red or as the case may be, brown dot for products of non-vegetarian origin and a green dot products of vegetarian origin.'

It is submitted by the learned Senior Counsel for the Petitioners that in a Public Interest Litigation, which has been filed in Delhi High Court, a direction was sought, directing the Union of India to amend the provisions of the rules in respect of the Drugs and Cosmetics Act and thereby make it necessary for the manufacturers to mention on the products whether it contains ingredients of vegetarian or non-vegetarian origin. This order was challenged by the Petitioners in the Apex Court and the Apex Court, inter alia, set aside the judgment and order passed by the Delhi High Court and has observed that as long as the Union of India does not amend the rules which art framed under the Drugs and Cosmetics Act, the said direction could not be given by the Delhi High Court. It is, therefore, submitted that as of today, the judgment and order passed by the Delhi High Court has been set aside and it is no longer obligatory on the part of the Petitioners to mention that such a product contains vegetarian and non-vegetarian ingredients. It is submitted that the Union of India by amending Rule 6 of the Legal Metrology (Packaged Commodities) Rules, 2011 and adding sub-rule (8) sought the same amendment, requiring the Petitioners to mention on every package whether the package containing vegetarian origin or non-vegetarian origin.

3. Shri Chinoy, learned Senior Counsel has submitted that the Apex Court having set aside the direction given by the Delhi High Court in the case of Indian Soaps and Toiletries Makers Association v. Ozair Husain and Others ((2013) 3 Supreme Court Cases 641), it is not now open for the Union of India to amend the rules under the Legal Metrology Act, which Act essentially was passed to establish and enforce standards of weights and measures, regulate the trade and commerce in weights, measures and other goods which are sold or distributed by weight, measures or numbers and for matters connected therewith or incidental thereto and, as such, the amendment is not within the purview of the powers vested to Union of India under the Legal Metrology Act and the said power is solely vested under the Drugs and Cosmetics Act.

4. The learned counsel appearing on behalf of the Union of India seeks some time to take instructions.

5. Ms. Shastri, learned AGP for the State submits that since the first rule has been amended, the State Authority will have to enforce the said rule. Our attention is invited to Section 18 of the said Act. It is submitted that by the said amendment in the rules, it is obligatory on the part of the manufacturers to make such declaration and particulars which have been prescribed. It is submitted that, therefore, it is incumbent on the Petitioners to make such a declaration.

6. We have perused the judgment of the Apex Court in the case of Indian Soaps and Toiletries Makers Association (supra). The Apex Court in paragraph 26 in terms held that declarations of labels of cosmetics or drugs cannot be amended without fruitful consultation with the Drugs Technical Advisory Board. The said paragraph reads as under:

'26. The Drugs and Cosmetics Act, 1940 or the Rules framed thereunder do not mandate mentioning or displaying symbol of ingredients of non-vegetarian or vegetarian origin. The manufacturer or other are not required to mention ‘vegetarian’ or ‘non-vegetarian’ on the label of drugs or cosmetics. The Central Government is vested with the power under the Drugs and Cosmetics Rules, 1945 to amend the ‘label of the drugs and cosmetics’ in consultation with the Drugs Technical Advisory Board. Without fruitful consultation with the Drugs Technical Advisory Board, no amendment can be made or suggested to change the label of the drugs and cosmetics.

Similarly, the Apex Court also has observed that the Drugs Technical Advisory Board had considered this issue and had rejected such suggestion in its 48th meeting held on 8.7.1999.

'41. The learned counsel for the respondent writ petitioner relied on the decision of this Court in Union of India v, Assn, For Democratic Reforms and submitted that the field has remained unoccupied this Court can issue such direction under Article 32 of the Constitution of India, but such submission cannot be accepted as it cannot be said that field has remained unoccupied as under the Drugs and Cosmetics Rules it is the Central Government which in consultation with the Drugs Technical Advisory Board is empowered to decide whether any amendment is to be made in the relevant Rules showing the ingredients of vegetarian or non-vegetarian origin or to provide: a symbol: the issue in question was deliberated by the Central Government when such matter was referred to the Drugs Technical Advisory Board which in its 48th Meeting on 8.7.1999 rejected such suggestion.'

7. In our view, since the issue is squarely covered by the judgment of the Apex Court in the said case, it is not open for the Union of India, prima facie, to have amended the Legal Metro

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logy Rules and directed the Petitioners to make declaration in terms not admitted by the Apex Court. In our view, the Union of India could not have amended the rules in such manner which has been prohibited by the Apex Court. In our view, prima facie, case is made out by the Petitioners for grant of ad-interim relief. We, therefore, direct the Respondents not to take any coercive action against the Petitioners for non declaration of the said products as vegetarian or non-vegetarian origin until further orders. Since rule has been challenged, issue notice to the Additional Solicitor General for the Union of India, returnable after two weeks. Humdust permitted.
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