Jithendar SinghProprietor v. The State Of Tamil NaduRepresented By itsSenior Drugs Inspector

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 obtaining any license for manufacturing the same for sell or for distribution.3.2.He also relied upon the judgment of the Hon’ble Karnatka High Court in Criminal Petition No.5257 of 2019 dated 22.09.2020 in the case of M/s. Singh Mehandi Industries & anr Vs. State of Karnataka, which held that the henna powder has been taken from outside as a raw material and the same has been used for the purpose of manufacturing the mehandi cone by using the said material in a prescribed quantity of other mixture.

Therefore, for Page 4 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 2023the purpose of manufacturing mehandi cone, no license is required and there is material to come to a conclusion that henna powder is also manufactured at the manufacturing unit of the accused. It was further held that as per Sections 138, 139 & 142 along with Schedule M II, no license is required to manufacture mehandi cone or mehandi powder for sale or distribution. As per Rule 150A of the Rules, standard for cosmetics is prescribed in Schedule S and in Schedule S item No.28 is henna powder. It is stated in Schedule S that cosmetics as listed in the schedule in finished form shall conform to the Bureau of Indian Standards (BIS) specification laid down from time to time by the Bureau of Indian Standards. Insofar as the henna powder is concerned, specification for Indian standard is mentioned as IS:11142. Even on plain reading of the contents of the complaint, it doesn’t specifically say that the petitioner is a manufacturer of henna power. Therefore, Schedule S cannot be attracted as against the petitioner.

Category B of Schedule M-II is about creams, lotions, emulsions, pastes, cleaning milks, shampoos, pomade, brilliantine, shaving creams and hair oil etc. It includes the formulations in paste form and the mehandi cone contains the henna powder in paste form by mixing the powder with other ingredients. Therefore, it comes under Category B of Schedule M-II. Therefore, the respondent rightly initiated prosecution 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. Hence, he prayed for dismissal of the quash petition. Page 6 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 20235.Heard the learned counsel appearing on either side and perused the materials placed before this Court. 6. The only point arising in this case for consideration is that whether the manufacturing, stocking and distribution of mehandi cone require any licence under Section 18(c) of the Act?7.The petitioner is arrayed as A1 in the complaint lodged by the respondent under Section 200 of Cr.P.C., 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.

Having been satisfied with the allegation made in the complaint as against the accused persons, the Trial Court had taken cognizance and issued summons. Though “henna paste” is not covered under the classification of cosmetic raw materials under the Rules, the term “cosmetics” under the Act is defined under Section 3(aaa) of the Act as follows :-

3. Definitions.—In this Act, unless there is anything repugnant in the subject or context,………….(aaa) ― cosmetic means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to, the human body or any part thereof for cleansing, Page 7 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 2023beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic

8. Further Rule 150A of the Rules states that the Standards for cosmetics shall be such as may be prescribed in Schedule S. It shall conform to the Indian standards specifications laid down from time to time by the Bureau of Indian Standards.

Henna powder is the main ingredient to manufacture a mehandi cone. The mehandi cone contains the henna power in paste form by mixing the powder with purified water, clove oil and eucalyptus oil. It is applied to human body parts like hand, arm, leg etc., for beautification purposes. Therefore, it falls under the definition of “cosmetics” as per the Act. Further the henna power is very much present in Schedule S in serial number 28 of the Act. 9. Rule 139A of the Rules governs the licence to manufacture cosmetics for sale or for distribution wherein manufacturers shall apply for grant or renewal of a licence in Form 31 and upon satisfaction and inspection, the licence shall be granted in Form 32. Schedule M-II of the Act deals with the requirements of competent technical staff, manufacturing plant, testing Page 8 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 2023equipment and requirements of plant and equipment for the manufacturing of cosmetics.

Category B of Schedule M-II of the Act lists down creams, lotions, emulsions, pastes, cleansing milks, shampoos, pomade, brilliantine, shaving creams and hair oils etc. Therefore, it includes the formulations that are in paste form. Mehandi cone contains henna powder in paste form wherein the powder is mixed with other ingredients. Therefore, it comes under the Category B of Schedule M-II.10.That apart, as per Rule 150A of the Rules and Schedule-S of the Act, obtaining of license is made mandatory. As per serial number 28 of the Schedule S, the mehandi cone is nothing but a cosmetic product and the license is mandatory for its production, sale and distribution. It is relevant to extract the Rule 150 A of the Drugs and Cosmetics Rules, as follows :-"150-A. Standards for cosmetics:- Subject to the provisions of these rules, the standards for cosmetics shall be such as may be prescribed in Schedule-S.SCHEDULE S [See Rule 150-A] Standards for Cosmetics:- Standards for cosmetics in finished form:- The following cosmetics in finished form shall conform to the Indian Standard specifications laid down from time to time by the Bureau of Indian Standards (BIS).1.

Skin powderPage 9 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 20232. Skin powder for infants3. Tooth powder4. Tooth paste5. Skin creams6. Hair oils7. Shampoo Soap based8. Shampoo synthetic-detergent based9. Hair Creams10.Oxidation hair dyes, liquid11.Cologne12.Nail polish (Nail enamel)13.Aftershave lotion14.Pomades and Brilliantines15.Depliatories chemicals16.Shaving creams17.Cosmetic pencils18.Lipstick19.Toilet soap20.Liquid toilet soap21.Baby toilet soap22.Shaving soap23.Transparent toilet soap24.Lipsalve25.Powder hair dye26.Bindi (liquid)27.Kum Kum powderPage 10 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 202328.Henna powder29.Bathing bars30.Sindoor31.Liquid foundation make-up32.Cold wax-hair remover33.Face pack34.Kajal35.Oxidation hair dyes36.Cream bleach. Schedule M-II [See Rule 139] Requirements of factor premises for manufacture of cosmetics:-.....................B. Creams, lotions, emulsions, pastes, cleansing milks, shampoos, pomade, brilliantine, shaving creams and hair oils, etc.

"Therefore, the manufacturing details such as batch number, manufacturing licence number, use before etc., on the label are very much required. 11. In the case on hand, admittedly the petitioner has no license to manufacture the mehandi cone. Thus it is in violation of provision under Section 18(c) of the Act which is punishable under Section 27-A(ii) of the Act. Since the petitioner had manufactured the mehandi cone and stocked the same for sale and sold it without appropriate labelling, he had thereby acted in contravention to the provisions under Sections 18(a)(ii) and 18(b) of the Act which punishable under Section 27-A(ii) of the Act. Page 11 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 202312.It is relevant to rely upon the judgment of the Hon'ble Supreme Court of India passed in Crl.A.No.579 of 2019 dated 02.04.2019 in the case of Devendra Prasad Singh Vs. State of Bihar & Anr., as follows:-"12.

So far as the second ground is concerned, we are of the view that the High Court while hearing the application under Section 482 of the Cr.P.C. had no jurisdiction to appreciate the statement of the witnesses and record a finding that there were inconsistencies in their statements and, therefore, there was no prima facie case made out against respondent No.2. In our view, this could be done only in the trial while deciding the issues on the merits or/and by the Appellate Court while deciding the appeal arising out of the final order passed by the Trial Court but not in Section 482 Cr.P.C. proceedings. 13. In view of the foregoing discussion, we allow the appeal, set aside the impugned order and restore the aforementioned complaint case to its original file for being proceeded with on merits in accordance with law.” 13. Recently, the Hon'ble Supreme Court of India dealing in respect of the very same issue in Crl.A.No.1572 of 2019 dated 17.10.2019 in the case of Central Bureau of Invstigation Vs.

Arvind Khanna, wherein, it has been held as follows:

19. After perusing the impugned order and on hearing the Page 12 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 2023submissions made by the learned senior counsels on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 of Cr.P.C., the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellantC.B.I., and the defence put-forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 Cr.P.C.20.In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance by the Competent Court, is completely incorrect and uncalled for.

14.

Further the Hon'ble Supreme Court of India also held in the judgment dated 02.12.2019 in Crl.A.No.1817 of 2019 in the case of M.Jayanthi Vs. K.R.Meenakshi & anr, as follows: "9. It is too late in the day to seek reference to any authority for the proposition that while invoking the power under Section 482 Cr.P.C for quashing a complaint or a charge, the Court should not embark upon an enquiry into the validity of the evidence available. All that the Court should see is as to whether there are allegations in the complaint which form the basis for the ingredients that constitute certain offences complained of. The Court may also be entitled to see (i) whether the preconditions requisite for taking cognizance have been complied with Page 13 of 16 https://www.mhc.tn.gov.in/judis Crl.O.P.No.9439 of 2023or not; and (ii) whether the allegations contained in the complaint, even if accepted in entirety, would not constitute the offence alleged. ...........…13.