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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