Full Judgment Text
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PETITIONER:
GOODWILL PAINT AND CHEMICAL INDUSTRY
Vs.
RESPONDENT:
UNION OF INDIA AND ANR.
DATE OF JUDGMENT27/09/1991
BENCH:
RAMASWAMI, V. (J) II
BENCH:
RAMASWAMI, V. (J) II
KULDIP SINGH (J)
CITATION:
1991 AIR 2150 1991 SCR Supl. (1) 219
1992 SCC Supl. (1) 16 JT 1991 (4) 276
1991 SCALE (2)670
ACT:
Poisons Act, 1919--Sections 5, 2, Notification No. F.
10/44/72-fin. (G)-D/-7.8.1973 issued under the Delhi Poisons
Rules--Constitutional validity of.
Poisons Act, 1919--Sections 4, 2 read with Rule 13 of
Delhi Poisons Rules, 1926--"Poisons" construction--Judicial
notice of "thinner" being dangerous to life--Restriction on
trade on poisonous substances--Whether reasonable.
HEADNOTE:
The Lt. Governor of Delhi amended the Delhi Poisons
Rules, 1926 by the Notification No. F.10/44/72-fin. (G)
dated 7.8.1973 by including to the list of substances in-
cluded in the Rules as "Poisons", the substance commonly
known as "thinner" containing spirit and other soluble
material.
The petitioners in this petition under Article 32 of the
Constitution questioned the constitutional validity of
Section 5 of the Poisons Act, 1919 on the grounds that the
section gives an arbitrary power to the State Government to
include any substance as poison for the purpose of restric-
tion to be imposed on the possession for sale and sale of
the same; that the restriction imposed on possession for
sale and sale were not reasonable restrictions; that though
the Act was a Central enactment, it was possible of unjust
and unjustified discriminatory application as it was left to
each State Government to determine what substance they would
include as poison, and that the substance, ’thinner’, manu-
factured by the petitioners would not come within the amend-
ed Rules.
Dismissing the petition, this Court,
HELD: 1. The object of the enactment is to regulate the
possession for sale and the sale, whether wholesale or
retail of poisons and the importation of the same. In other
words, it is intended to control over the traffic in poi-
sons. [225 F]
220
2. The Poisons Act, 1919 enabled State Government to
declare any substance as poison for the purposes of the Act
by a notification under the Act or the rules made under the
Act. [221-G]
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3. It is not all poisonous substances that are brought
within the regulation under the Act. It is those substances
which the Government consider its possession for sale or
sale to be regulated in the interest of health and safety of
the society. This limitation is inherent in the scheme of
the Act itself. [223-C-D]
4. No comprehensive definition can be given to the word,
"poison". Under this term would fall anything calculated to
destroy life. Substances harmless in themselves might become
poison by the time or manner of their administration. Noth-
ing is a poison unless regard be had to its administration.
A substance may be a deadly poison or a valuable medicine
according to how and how much is taken. If the resultant
effect of administering into the system produces a violent,
morbid or fatal changes or which destroys living tissues,
the substance can be safely called poison. Any substance
which is used for purposes mentioned therein section 4 can
definitely be declared as poison. [223 D-F]
5. It has become a notorious fact that the substance
known as ’thinner’ as it is or mixing with some other sub-
stances are taken as intoxicating spirits endangering the
life. In many cases deaths have also occurred due to, drink-
ing such substance. If the Government thought in the circum-
stances that the possession or sale of the same is to be
regulated it could not be said that they have no power to
regulate. Section 2 also enables the Government to regulate
the possession for sale and the sale of the specified poi-
son. [223 G-H; 224 A]
6. The nature of trade in poison is such that nobody can
be considered to have an absolute right to carry on the
same. It is a business which can be termed even as inherent-
ly dangerous to health and safety of society in view of the
rampant misuse and sale to the poor, weak and helpless as an
intoxicant. A law in such circumstance can regulate the
trade. It is also not necessary that the same substance
should be declared as poison for the entire country. The
notification and its application to any area would depend on
the necessity to declare the substance as poison on the
particular facts and situation prevailing in that area and
the need to
221
regulate the possession and sale in that area. No question
of discrimination can arise in such circumstances. [224 G-H;
225 A]
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (C) No. 677 of 1988.
(Under Article 32 of the Constitution of India).
P.N. Duda, N. Safaya, P.K. Choudhary and Ms. Rekha
Pandey for the Petitioners.
Kapil Sibal, Additional Solicitor General, Ms. A. Subha-
shini and K. Swamy for the Respondents.
The Judgment of the Court was delivered by
V. RAMASWAMI, J. In this petition under Article 32 of
the Constitution, the petitioners have questioned the con-
stitutional validity of Section 5 of the Poisons Act, 1919
(12 of 1919) (hereinafter called ’the Act’). The grounds on
which the vires of the provisions is attacked are that the
section gives an unguided, unchanelised and arbitrary power
to the State Government to include any substance as poison
for the purpose of restriction to be imposed on the posses-
sion for sale and sale of the same. It was further contended
that the restriction imposed on possession for sale and sale
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were not reasonable restrictions. The petitioner’s have also
taken the plea that though the Act is a Central enactment it
is possible of unjust and unjustified discriminatory appli-
cation as it is left to each State Government to determine
what substance they would include as poison and regulated
and the decision in one State to include the substance as
poison is not automatically made applicable to the other
States.
The object of the enactment is to regulate the posses-
sion for sale and the sale, whether wholesale or retail of
poisons and the importation of the same. In other words, it
is intended to control over the traffic in poisons. Though
the original enactment, the Poisons Act, 1904 was restrict-
ed, it was applicable to white arsenic, the Poisons Act,
1919 expanded its provisions and enabled State Government to
declare any substance as poison for the purposes of the Act
by a notification under the Act or the rules made under the
Act.
In exercise of this power by the Notification No. F.
10/44/72-fin. (G) dated 7.8.1973 the Lt. Governor of Delhi
amended the Delhi Poisons Rules, 1926 (hereinafter called
the Rules) by including to the list of substances included
in the Rules as "Poisons" "the substance commonly known
222
as ’thinner’ containing spirit and other soluble material
such as shellac in which the percentage of such soluble
material does not exceed 30%" as poison and consequential
amendment of rules 12 and 13 of the Rules. It was the con-
tention of the petitioners before the authorities that their
"unit is manufacturing only those thinners which contain
only liquid substance, like as ecotone, ethyl acetate SDS
etc. and not all solubles." According to them, therefore,
the substance manufactured by them would not come within the
amended Rules. Though in the beginning the petitioners were
contending that in substance manufactured by them did not
come within Rule 2(x)(2) and there were some correspondence
in this regard, when the competent authority held that the
substance manufactured by the petitioners would come within
the definition of ’thinner’ as contained in Rule 2(x)(2) of
the Rules, the petitioners did not question the finding on
any material. Before us also they had not placed any materi-
al to show that the finding was wrong or that the substance
would not come within Rule 2(x)(2). In fact the learned
counsel argued the petition on the basis that the petition-
ers are a manufacturer of ’thinner’ within Rule 2(x)(2)
which has been declared as poison for purposes of the Act.
Originally the Act contained a schedule in which the
list of substances declared as poisons were listed. Later
when Delhi Poisons Rules, 1926 were made in exercise of the
powers under the Act those list of substances were included
in the list enumerated in Rule 2 thereof. Rule 2 was amended
as already stated including ’thinner’ of the description
mentioned therein as poison. Section 5 of the Act the con-
stitutional validity of which is questioned reads as fol-
lows:-
"5. Presumption as to specified poisons:
Any substance specified as a poison in a rule
made or notification issued under this Act
shall be deemed to be a poison for the purpose
of this Act."
It was a law in force in the territory of India before
the commencement of the Constitution and as such continued
in force.. The Act is intended to regulate the importation,
possession and sale of poisons. Some substances were includ-
ed in the Rules made in 1926 as poisons and that is not in
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dispute.
Section 5 of the Act deals with presumption and states
that any substance specified as a poison in a Rule or noti-
fication issued under the Act shall be deemed to be a ’po-
ison’ for purposes of the Act. Rules of 1926 were made in
exercise of the rule making power under Section 3 of the
Act.
223
That Section enables the State Government to make Rules
generally to carry out the purposes and objects of the Act.
Rules were amended in 1973 and duly notified as required by
the Act. Section 2(3) of the Poisons Act, 1/1904 defined
poison as:
"Any substance which were applied to the body
internally or externally, or in any way intro-
duced into the system, is capable, without
acting mechanically, but by its own inherent
qualities,. or destroying life?
When this Act 1/1904 was repealed and re-enacted as
Poison Act 12 of 1919 the definition was omitted and speci-
fied substances were included in the schedule with a power
vested in the State Government to amend the same by Rules
including other substances to the list of poisons. It is not
all poisonous substances that are brought within the regula-
tion under the Act. It is those substances which the Govern-
ment consider its possession for sale or sale to be regulat-
ed in the interest of health and safety of the society. This
limitation is inherent in the scheme of the Act itself.
Of course no comprehensive definition can be given to
the word poison. Under this term would fall anything calcu-
lated to destroy life. Substances harmless in themselves
might become poison by the time or manner of their adminis-
tration. Nothing is a poison unless regard be had to its
administration. A substance may be a deadly poison or a
valuable medicine according to how and how much is taken. If
the resultant effect of administering into the system pro-
duces a violent, morbid or fatal changes or which destroys
living tissues, the substance can be safely called poison.
Section 4 of the Act impliedly sets out certain guidelines
when the State can notify a substance as poison. It states
that the State Government may by rule regulate the posses-
sion of any specified poison in any local area in which the
use of such poison for the purpose of committing murder or
mischief by poisoning cattle appears to it to be of such
frequent occurrence as to render restriction on the posses-
sion thereof desirable. Any substance which is used for
purposes mentioned therein can definitely be declared as
poison. That is what the Government have done in this case.
It has become a notorious fact, which we can even take
judicial notice of, that the substance known as ’thinner’ as
it is or mixing with some other substances are taken as
intoxicating spirits endangering the life. In many cases
deaths have also occurred due to drinking such substance. If
the Government thought in the circumstances that the posses-
sion or sale of the same is to be regulated it could not be
said that they have no power to regulate. Section 2
224
also enables the Government by Rule to regulate the posses-
sion for sale and the sale of the specified poison. It is in
exercise of this power Rule 13 was amended by substituting
the old Rule by the following Rule:
"13 (1) All poisons kept for sale by any
licence holder under these rules (except those
kept by a chemist, druggist or compounder for
the purchase of dispensing or compounding in
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compliance with the prescription of medical or
veterinary practitioner) shall be kept in a
box, almirah, room or building (according to
the quantity maintained), which shall be
secured by lock and key and in which no sub-
stance shall be placed other than poisons,
possessed in accordance with a licence granted
under the Act, and each poison shall .be kept
within such box, almirah, room or building in
a separate closed receptacle of glass, metal
or earthenware. Every such box, almirah, room
or building and every receptacle shall be
marked with the word ’poison’ in red charac-
ters both English and vernacular and in the
case of receptacles containing separate
’poison’ with the name of such ’poison’.
Provided that above rule shall not apply to
’poison’ mentioned in Clause (x) of Rule 2.
(ii) All ’poisons’ mentioned in clause (x) of
rule 2 shall be kept in a room or building
(according to quantity maintained) which shall
be secured by lock and key in a separate
receptacle of glass, metal and earthenware
etc. Every such room building and every such
receptacle shall be marked with the word
’poison’ in red character both English and
vernacular, with the name of the ’poison’."
We are not impressed with the argument that any require-
ment in this Rule is unreasonable or offends the petition-
ers’ right to carry on any trade or business. The nature of
trade in poison is such that nobody can be considered to
have an absolute right to carry on the same. It is a busi-
ness which can be termed even as inherently dangerous to
health and safety of society in view of the rampant misuse
and sale to the poor, weak and helpless as an intoxicant. A
law in such circumstance can regulate the trade. This posi-
tion is well settled and it would be pedantic to cite all
the authorities of this Court on this point. It is also not
necessary that the same substance should be declared as
poison for the entire country. The notification and its
application to any area would depend on the necessity
225
to declare the substance as poison on the particular facts
and situation prevailing in that area and the need to regu-
late the possession and sale in that area. No question of
discrimination can arise in such circumstances.
We are of opinion that the provisions of neither Section
2 nor 5 nor the impugned notification are hit by any consti-
tutional limitation. The writ petition accordingly fails and
it is dismissed. Rule nisi is discharged. No order as to
costs.
V.P.R. Petition
dismissed
226