JUDGMENT S.J. Mukhopadhaya, J. 1. Both the writ petitions, having been preferred by the petitioners against common Notification dated 18th June, 2004, issued under Memo No. 11 Sva. F-2-48/2002-385 (ii)/Sva, whereby and whereunder, the respondent, Secretary, Health and Family Welfare-cum-Director, Health Services, Jharkhand, Ranchi, in exercise of powers under Section 7(iv) of the Prevention of Food Adulteration Act, 1954, has imposed ban on production, manufacture and sale of gutka or pan masala or gul, containing tobacco or without tobacco from the date of issuance of the Notification, have been heard together and are being disposed of by this common order. 2. The main plea, taken by the petitioners, is that the impugned Notification dated 18th June, 2004 is illegal, arbitrary, without jurisdiction and violative of the provisions of Articles 14 and 19(i)(g) of the Constitution of India. 3. Counsel for the petitioners submitted that a similar Notification came up for consideration before the Supreme Court regarding its constitutionality on the ground of Legislative competence. In the case of Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., reported in JT 2004 (6) 179, the Supreme Court held that the State Government has no power to issue such Notification under the provisions of Prevention of Food Adulteration Act, 1954 and thereby struck down the similar Notification. 4. Counsel for the State of Jharkhand and Union of India tried to distinguish the case of one of the petitioners, namely, M/s. Hazi Shah Hussain Buksh Khan and Sons and another, [W.P. (C) No. 4206 of 2004). However, they could not distinguish the case of other petitioner, namely, M/s. Tirupati Products [W.P. (C) No. 4093 of 2004]. W.P. (C) No. 4093 of 2004 : Petitioner, in this case, carries the business of manufacturing gutka, mainly in the town of Jamshedpur, District Singhbhum (East), within the territory of the State of Jharkhand. It has obtained licence from the competent authority to sell the product gutka. The main plea taken is that the case of the petitioner is covered by the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd (supra) and, as such, the impugned Notification dated 18th June, 2004, being without jurisdiction, petitioner can not be prohibited from manufacturing or selling gutka in absence of any prohibition, imposed by the Union of India. W.P. (C) No. 4206 of 2004 : (i) The case of these petitioner is that petitioner No. 1 is a partnership firm, having its registered office at Tharpakhna, Hazaribagh Road, Ranchi, within the State of Jharkhand and is engaged in manufacture and trade of gul. It is stated that although it is a tobacco product, it is not used for chewing tobacco rather it is used for cleaning the teeth and it is nothing but a tooth powder, gul is used to be rubbed on the teeth for a few minutes and is thrown out with the water. Gul was first prepared in or about 1932 by Shah Hussain Buksh Khan in Howrah and when he shifted to Ranchi and settled here, started selling gal under the Trade Name "gulab marka gul". The Ranchi unit for manufacture and sale was set up in the year, 1956. (ii) Grievance of these petitioners is that because of the impugned Notification dated 18th June, 2004, they have to close their business, retrenching the employees out of business and thereby hundreds of people, dependent on the trade, have been rendered jobless. These petitioners have also taken plea that either the Secretary. Department of Health, Govt. of Jharkhand, or the State of Jharkhand has no jurisdiction to issue any prohibitory order, stopping manufacture or sale of gul, as it is without jurisdiction. These petitioners have also relied on the Supreme Courts decision, rendered in the case of Godawat Pan Masala Products I.P. Ltd., (supra). (iii) Further case of the petitioners is that petitioner No. 1 is a registered firm and has obtained valid licence under the Central Excise Rules, 1944 to cure, produce, manufacture, carry on whole-sale trade/business/brocker or commission agent or otherwise deal in excisable goods, act as a use excisable goods for special industrial purposes. (iii) Further case of the petitioners is that petitioner No. 1 is a registered firm and has obtained valid licence under the Central Excise Rules, 1944 to cure, produce, manufacture, carry on whole-sale trade/business/brocker or commission agent or otherwise deal in excisable goods, act as a use excisable goods for special industrial purposes. It is stated that as the gul is not a chewing tobacco, therefore, the petitioners are not bound by Rule 44 (zzz) of the Rules, framed under Prevention of Food Adulteration Act, 1954 but as one of the ingredients of the product "gul" is tobacco, therefore, statutory warning is used in all the labels of the petitioners product, which reads as "Tobacco product is injurious to health." OTHER RELEVANT FACTS & JUDGMENTS : (a) For similar reason, almost a similar Notification dated 23rd July, 2002 was issued by the Commissioner, Food and Drugs Administration and Food (Health) Authority for the State of Maharashtra. By the said Notification, the manufacture, sale, storage and distribution of the pan masala and gutka (Pan Masala, containing tobacco) were banned for a period of five years with effect from Ist August, 2002. One Godawat Pan Masala Products I.P. Ltd. and another, challenged the validity of the said Notification vide Writ Petition No. 2024 of 2002 before the High Court of Judicature at Bombay. A Division Bench of the High Court by its judgment dated 18/19th September, 2002 dismissed the writ petition, upholding the validity of the Notification. Being aggrieved, the writ petitioners i.e. Godawat Pan Masala Products I.P. Ltd. and another challenged the said judgment before the Supreme Court. Similar other writ petitions were also preferred against the said Notification, which were dismissed. Thereafter, different appeals were also preferred before the Supreme Court against the orders of dismissal. They were heard together by the Supreme Court, which by its judgment, rendered in the case of Godawat Pan Masala Products I.P. Ltd. (supra) held as follows : "75. As a result of the discussions, we are of the view that : 1. Section 7(iv) of the Act, is not an independent source of power for the State authority; 2. The source of power of the State Food (Health) Authority is located only in the valid rules made in exercise of the power under Section 24 of the Act, by the State Government, to the extent permitted thereunder; 3. Section 7(iv) of the Act, is not an independent source of power for the State authority; 2. The source of power of the State Food (Health) Authority is located only in the valid rules made in exercise of the power under Section 24 of the Act, by the State Government, to the extent permitted thereunder; 3. The power of the Food (Health) Authority under the Rules is not of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts; 4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the Rules made under Section 23 of the Act, particularly, Sub-section (1A)(f); 5. The State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing Rules under Section 23 of the Act; 6. The provisions of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act, is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003; 7. The impugned notifications are ultra vires the Act, and, hence, bad in law; 8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution." (b) Government of Tamil Nadu also issued Notification No. 780, published in Tamil Nadu Government Gazette (Extraordinary), dated 19th November, 2001. The impugned notifications are ultra vires the Act, and, hence, bad in law; 8. The impugned notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution." (b) Government of Tamil Nadu also issued Notification No. 780, published in Tamil Nadu Government Gazette (Extraordinary), dated 19th November, 2001. By the said Notification, in exercise of the powers under Clause (iv) of Section 7 of the Prevention of Food Adulteration Act, 1954 prohibition was imposed either to manufacture for sale or storage, sell or distribute (i) chewing tobacco (ii) Pan Masala and (iii) gutka. It was challenged by M/s. Kothari Product Ltd. before the High Court of Judicature at Madras in W.A. No. 139 of 2002. The said case was heard along with other similar cases. The Madras High Court, following the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd., (supra), by its judgment dated 23rd August, 2004 Kothari Product Ltd. v. The Director, Public Health and Preventive Medicine and Ors. struck down Notification No. 780, published in the Tamil Nadu Government Gazette (Extraordinary), dated 19th November, 2001, being unconstitutional and beyond the legislative competence of the State. W.P. (C) No. 4O93 of 2004 : So far as the case of petitioner M/s. Tirupati Product is concerned, which relates to the product of gutka, it is covered by the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd, (supra). The State of Jharkhand, having no legislative competence and thereby, the impugned Notification dated 18th June, 2004, being unconstitutional, we have no option but to set aside the said Notification, so far it relates to gutka. However, this order will not preclude the competent Government/authority to take action in the light of the said judgment of Godawat Pan Masala Products I.P. Ltd. (supra). W.P. (C) No. 4206 of 2004 : (I) So far product gul as manufactured and sold by M/s. Hazi Shah Hussain Buksh Khan & Sons is concerned, as per the petitioners, it is a tobacco product but not used for chewing tobacco. It is used for cleaning the teeth and is nothing but a "tooth powder." Gul is rubbed on the teeth for certain minutes and thereafter, it is thrown out. It is used for cleaning the teeth and is nothing but a "tooth powder." Gul is rubbed on the teeth for certain minutes and thereafter, it is thrown out. (II) The Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., (supra) has held that cigarettes and other tobacco products are regulated by Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. With regard to a similar matter, concerning tobacco products, the Supreme Court held that Section 7(iv) of the Prevention of Food Adulteration Act, 1954 is directly in conflict with the provisions of Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The former Act, is special Act, intended to deal with the tobacco and tobacco products particularly while the later i.e. Prevention of Food Adulteration Act, 1954 is a general enactment. Thus, Act 34 of 2003, being special Act and of later origin, over-rides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products, which are listed in the Schedule to Act 34 of 2003. (III) As noticed above, Gul being a tobacco product, which is a tooth powder, containing tobacco, the case of petitioners M/s. Hazi Shah Hussain Buksh Khan and Sons and another, [W.P.(C) No. 4206 of 2004] is also covered by the decision of the Supreme Court in the case of Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors., (supra) and, as such, the impugned Notification dated 18th June, issued by the State of Jharkhand, can not be upheld, being without jurisdiction. The State Government, as such, can not prohibit the petitioners from manufacturing or selling Gul in exercise of power under Section 7(iv) of the Prevention of Food Adulteration Act, 1954. However, the competent Government/authority can impose prohibition in the light of the said judgment in case of Godawat Pan Masala Products I.P. Ltd. (supra). (IV) The 2nd respondent, Secretary, Department of Health & Family Welfare, Govt. of Jharkhand, Ranchi, has opposed the case on some other ground. According to the 2nd respondent, the Ministry of Health and Family Welfare, Department of Health, Govt. (IV) The 2nd respondent, Secretary, Department of Health & Family Welfare, Govt. of Jharkhand, Ranchi, has opposed the case on some other ground. According to the 2nd respondent, the Ministry of Health and Family Welfare, Department of Health, Govt. of India, New Delhi has already issued a Notification dated 30th April, 1992, prohibiting the manufacture and sell of all tooth paste/tooth powder, containing tobacco, and in view of the decision taken by the Central Government, the State of Jharkhand has also prohibited the sale, purchase and storage of gul, which is a tooth powder, containing tobacco, and the same is within the competence and power of the State Government as per List-2 & 3 of Schedule 7 of the Constitution of India. It is stated that the writ petitioners were illegally manufacturing and selling the gul, which is a tobacco product, though there is a ban imposed by the Central Government. Reliance was placed in the case of Laxmikant v. Union of India and Ors., reported in (1997) 4 SCC 739 . (V) The Union of India was allowed time to State : (i) Whether the Central Government has issued any Notification of prohibition, relating to pan masala, gutka, gul, (ii) Whether Notification No. GSR-443 (E) dated 30th April, 1992, issued from the Ministry of Health & Family Welfare, Department of Health, Govt. of India, New Delhi, has been superseded or is still in existence and (iii) Whether the aforesaid Notification dated 30th April, 1992 is still applicable in the matter of Manufacture and sale of gul or not. (VI) The petitioners were also given liberty to file rejoinder to it. (VII) The Union of India, in its affidavit, while opposed the prayer, made in the writ petition, has given the following replies to (sic), made by this Court. "4. In reply to the three queries raised by this Honble High Court in this matter in its order dated 6.10.2004, this respondent submits as under : (i) The Central Government in the Ministry of Health and Family Welfare has not issued any notification of prohibition relating to "Pan Masala, Gutka, Panmasala or gul" under the provisions of the Prevention of Food Adulteration Act, 1954. (ii) The Gazette Notification No. GSR 443(E) dated 30th April 1992 as well as the notification in GSR 444(E) dated 30th April, 1992, issued by the Ministry of Health & Family Welfare under the Drugs and Cosmetics Act, 1940, are still in vogue. (iii) The Drugs and Cosmetics Act, 1940 regulates the import, manufacture, distribution and sale of drugs and cosmetics. The term cosmetic is defined under Section 3(aaa) of the said Act, and is reproduced below ; "Cosmetics" 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, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic. (VIII) Copy of the Notification bearing No. GSR 443 (e) dated 30th April, 2002 has been enclosed by the petitioners, which reads as follows : MINISTRY OF HEALTH AND FAMILY WELFARE (Department of Health) NOTIFICATION G.S.R. 444(E)--Whereas the Central Government is satisfied on the basis of evidence and other material available before it that the use of tobacco in tooth pastes/tooth powders is likely to involve risk to human beings and that it is necessary and expedient in the public interest so to do : Now, therefore in exercise of powers conferred under Section 26-A of the Drugs and Cosmetics Act, 1940 (23 of 1940), the Central Government hereby prohibit the manufacture and sale of all cosmetics licensed as Tooth Pastes/Tooth Powders containing tobacco. Illegible B.S. Lamba, H. Secy." (IX) Learned counsel for the petitioners relied on a Division Bench decision of Patna High Court, as was rendered in the case of one M/s. A. Rahim Khan and others, as also the present petitioner No. 1, M/s. H.S. Hussain Buksh and sons, reported in 1997 (1) PLJR 891 (Haji A. Rahim Khan and Ors. v. State of Bihar and Ors.). (X) The present petitioner No. 1, namely, M/s. Hazi Shah Hussain Buksh Khan & Sons, which manufactures gul and one M/s. Haji A. Rahim Khan were noticed by the State Drugs Controller, Bihar, Patna, on 28th July, 1987 and thereby, they were intimated that the manufacturer of gul/gudka/dant manjan (dentifrice) were required to obtain a Cosmetic Licence under the provisions of the Drugs & Cosmetics Act, 1940 (hereinafter to be referred as the Act, 1940) and the Rules, framed thereunder. By notices, the authority further asked them to make application for licence, failing which legal action would be taken against them for being engaged in manufacture of gal" without licence. Petitioners of the present case and M/s. Hazi A. Rahim Khan challenged the notices dated 28th July, 1987 before the Patna High Court. A learned Single Judge of Patna High Court held that gul was covered by definition of Cosmetics, as provided under the Act, 1940 and, accordingly, dismissed the writ petition. Against the said judgment, two Letters Patent Appeals were preferred, one by the present petitioner No. 1, namely, M/s. Haji Shah Hussain Buksh Khan and Sons and another by M/s. Haji A. Rahim Khan. A Division Bench of Ranchi Bench of Patna High Court by its decision, rendered on 17th December, 1996 in the case of Haji Rahim Khan v. State of Bihar and Ors., (supra) held that gut is another form for consumption of tobacco, a toxic and addictive substance and gravely injurious to human health describing gul as cosmetics would be strongly opposed to public policy and held that gul is not a cosmetic. The Court observed that it should be left for what it is undesirable and unhealthy concoction of tobacco rather than give it a fancy name of cosmetic and add to its advertisement potential. Thus, the Court held that the gul is not cosmetics with the meaning of Section 3(aaa) of the Drugs and Cosmetics Act, and thereby set aside the judgment and order under appeal. (XI) We may notice here that the said Notification No. GSR 444(E) dated 30.4.1992 was not brought to the notice of the Patna High Court. Moreover, while justifying similar notification [GSR 443(E) dated 30.4.1992], issued under the Drugs and Cosmetics Act, the Supreme Court held in paragraph 10 of the judgment of Laxmikant, (supra) as follows : "Therefore, the International Conference held in collaboration with the World Health Organisation was of the opinion that the ban on use of tobacco in toothpaste and toothpowder should totally be imposed since it as prone to cancer. Under these circumstances, the view taken by the Government of India imposing total prohibition on the use of tobacco in the preparation of toothpowder and toothpaste is well justified in the public interest covered by Article 19(6) of the Constitution, though it offends the right to carry on trade guaranteed under Article 19(1) of the Constitution. The imposition of total ban is in the public interest." (XII) In the present case, the Notification bearing GSR No. 443 (E) dated 30th April, 1992, issued by the Central Government, has not been challenged. It is unfortunate that this notification was not enforced. It is for the State Government and the Central Government to enforce Notification bearing G.S.R. No. 443 (E) dated 30th April, 1992, if not yet given effect to. 5. So far as Legislative competence with regard to Notification No. 385 (2) dated 18th June, 2004, issued by 2nd respondent i.e. Secretary, Health and Family Welfare Department, Jharkhand, Ranchi, is concerned, the question having been answered in negative against the State Government, it being without jurisdiction, is hereby set aside, so far gutka and gul are concerned. 6. Both the writ petitions are, accordingly, allowed with the observations aforesaid. However, in the facts and circumstances, there shall be no order as to costs. R.K. Merathia, J. 7. I agree.