IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY EIGHTH DAY OF MARCH TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION NO : 2027 of 2007 Between: Paper Clipping of "Andhra Jyothi" Telugu Daily News Paper dated 30- 12-2006 under the Caption "WHITENER MATHOLU CHERIGI POTHUNNA CHINNARULU" forwarded by High Court Legal Services Committee, Hyderabad. ..... PETITIONER AND 1 The Government of A.P Rep by its Prl Secretary, Women Development and Child Welfare and Disable Welfare Department, Secretariat, Hyderabad. 2 The Director, Woment Development and Child Welfare, Hyderabad. 3 The A.P. State Social Welfare Advisory Board, Hyderabad, Rep by its Chairperson 4. Kores (India) Ltd., Worli, Mumbai. 5. Sony Polymers Pvt.Ltd.,Nagpur. 6. Camlin Ltd., Camlin House, JB Nagar, Andheri, Mumbai. 7. Munix (India) Pvt. Ltd., Kangaro village Manech, Sanehwal,Ludhina. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an Order, direction, or a Writ, more particularly one in the nature of Writ of Mandamus to call for the records and remarks from the Respondents herein in and connected to (i) becoming addicted to "whitener" an ink-eraser by the children of old city of Hyderabad, causing severe health problems; (ii) under taking counseling and rehabilitating by the child line, a concern of Confederation of voluntarily Association (COVA), Hyderabad to the said addicted children; (iii) seeking financial help by the Confederation of voluntarily Association (COVA), Hyderabad in order to provide medical expenses to the addicted children being treated at Jeevandhara Rehabilitation Centre, Tirumalghary, Secunderabad as the parents of the addicted children are very poor; (iv) action of the Government in eradicating this malady; and this Hon'ble Court may be pleased to pass appropriate orders directing the concerned authorities to probe into the matter and to take immediate suitable action in eradicating this said malady and for rehabilitation and to pass such other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner:PETITION Counsel for the Respondent No.: GP FOR WOMEN DEV. & CHILD WELFARE Sri T. Jagadish, Amices curiae. The Court made the following : AGR & PSR, JJ. W.P.No. 2027 of 2007 Order: (Per P. Swaroop Reddy, J.) This writ petition is taken up on the basis of a News Paper publication in “Andhra Jyothi" Telugu Daily saying that children of Old City of Hyderabad are getting addicted to “Whitener” an ink-eraser, which is freely available in stationery shops; that the addicted children are prone to severe health problems and the poor parents of these children are unable to meet the expenditure for rehabilitation of their wards on account of their poverty etc. 2) An instance of a boy named - Saber Pasha is referred saying that he is habituated to eraser liquid – “Whitener” from the time he was admitted in a Madarsa; he used to steal money from the pocket of his father, Jahangeer Pasha; by informing at his residence that he was going to Madarsa, he used to purchase Whitener and consume it as an intoxicant; Saber Pasha is presently in a Rehabilitation Center struggling for life; his parents requested for extending helping hand to save the boy. The news item further says that Whitener is available in any shop, as it is used for erasing written material; it is being consumed as an intoxicant by the children; this habit is spreading from one child to another and the children are becoming slaves of it. Its maximum retail price is Rs.22.00 and it is sold at Rs.15.00 to Rs.20.00 per unit. As the price is low, it is easily within the reach of children. Most of the children, who are below the age of ten years are becoming slaves of it and are being subjected to ill health. Some voluntary Organization is trying to help the children addicted. 3. After registering the writ petition, notices were issued to the Government of Andhra Pradesh represented by its Principal Secretary, Women, Child Welfare and Disable Welfare Department Hyderabad. 4. Subsequently the following four manufacturers - i) Kores (India) Limited, Worli, Mumbai; ii) Sony Polymers Pvt. Ltd., Nagpur; iii) Camlin India Ltd., Camlin House, Mumbai; and iv) Muniz (India) Pvt. Ltd., Ludhiana. were also added as respondents in the writ petition. 5. In the counter filed on behalf of respondent Nos. 1 to 3, it is stated that in the case of “Saber Pasha”, who was addicted to Whitener, counseling is being given to him by COVA – a Non Governmental Organization; as his condition was not good, he was advised to go to Gandhi Hospital for medical relief and he was also admitted in Jeevandhara Rehabilitation Center, Trimulghery, Secunderabad, where rehabilitation is being given to the children addicted to such problems. It is also stated that the Director General of Police was addressed to initiate measures to avoid indiscriminate selling of “Whitener” to children below the age of eighteen years, the department is proposing to impose ban on the sale of Whitener to children who are below eighteen years. 6. Fourth respondent – Kores (India) Ltd., filed a counter stating that they are manufacturing “Whitener” under the brand name “Eraz-Ex” through M/s. Soni Polymers Pvt. Ltd., Nagpur, a diluter, which is neither medical nor cosmetic product. It is a stationery product. It does not fall under the Drugs and Cosmetics Act, 1940 and the Rules framed there under. There are four other alternative eraser fluids, which are water based; but they are slow; are not used widely and are not popular. Other manufacturers are also manufacturing erasers. There is mis-use of solvent-based correction fluids; that in case the product has to be banned on the ground of misuse, several products cannot survive. 7. No counter is filed on behalf of the fifth respondent, as the fourth respondent is getting its product manufactured through the fifth respondent. 8. Sixth respondent filed its counter, the relevant averments are: they are manufacturing Whitener under the brand name – COVER-IT and selling it all over India; it is a stationery product and not a medical or cosmetic product; it would not fall under the Drugs and Cosmetics Act, 1940; it is not regulated by any statutory authority; it is a solvent based correction fluid, which is combined with petroleum; they are selling the product in two bottles of 15 ml each, one containing correction fluid and the other containing diluter with a note of Warning “Do not inhale or expose to direct flame”. These products are harmful and can prove fatal if misused. As the product is neither medical nor cosmetic it is not covered by the Drugs and Cosmetics Act, 1940 and the Rules framed there under and is a purely consumer product. It is being marketed with a caution of warning. There are many petroleum products, which, if inhaled or consumed are injurious to health. It is a worldwide problem. Even by misusing of products like Adhesives or paints etc., also people can get intoxicated. The company is taking all precautionary measures to prevent misuse of the product. The market share of “Cover-it” is only 2% to 2.5% in the State of Andhra Pradesh and is negligible. The company is willing to implement any preventive measures in marketing the product. 9. The seventh respondent, another manufacture also filed a similar counter. 10. The Government of India furnished information through a letter. 11. The counters and information furnished by the Government of India reveal that Whitener is definitely a health hazard; but misuse of the same has become universal phenomenon. 12. Initially, we thought that there is a necessity of imposing restriction on the sale of Whitener; but as it is not covered under the provisions of the Drugs and Cosmetics Act, 1940, or Narcotic Drugs and Psychotropic Substances Act, we felt that there was no possibility of imposing any statutory restriction on the product. We felt that it is desirable to impose some restrictions on the sale of the product, so that it may not be within the reach of youngsters that may misuse and we thought of directing clubbing of the product with some other product for sale, which might be one of the methods of making it not within the reach of children. The matter was considered by the manufacturers – respondent Nos. 4 to 7 herein. 13. It is represented by the learned counsel appearing on behalf of respondent Nos. 4 to 7 that there are several problems in clubbing the product with another product – first one being the restrictions imposed by the Monopolies and Restrictive Trade Practices Act (MRTP); second being some manufacturers are manufacturing “whitener” and no other item and some others are manufacturing only paper, apart from this product. Apart from this, the learned counsel also brought to our notice that one of the products used in “Whitener” – “Thinner” is freely available in hardware shops, even in liters. 14. In view of the above circumstances, we are of the view that there is no possibility of selling the product by clubbing the same with another product. As contended by the learned counsel appearing for respondent Nos. 4 to 7, when the main product used in the manufacture of “Whitener”, “Thinner” is freely available in hardware shops, even in liters, there is possibility of children buying this product “Thinner” and misusing the same. 15. As contended by the learned counsel appearing for respondent Nos. 4 to 7, there are several products that are hazardous to health – from petrol to Nail Polish, which are being commonly used and it is not at all possible to prohibit the production or use of the products that are hazardous to health, if not properly used. 16. We thought of suggesting to the appropriate authorities to issue instructions to the concerned to not to sell the products to the persons below eighteen years of age. Even that would be difficult, as it is only a stationery product. Therefore, we direct that the manufacturers shall sell it by affixing a prominent label in Red letters indicating “danger”, on the container, so that it can have some impact on the easy availability and misuse of the product. 17. The writ petition is disposed of accordingly. No costs. 18. Before parting with the case, we appreciate the assistance rendered by Sri T.Jagadish, Amices curiae. _____________________ A. GOPAL REDDY, J. March 28, 2008. *BVS _______________________ P. SWAROOP REDDY, J. IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD Dated the 28th day of March, 2008. PRESENT; THE HON’BLE SRI JUSTICE A. GOPAL REDDY AND THE HON’BLE SRI JUSTICE P. SWAROOP REDDY W.P.No. 2027 of 2007 Between: Paper clipping of “Andhra Jyothi” Telugu Daily news paper dated: 30.12.2006 under the caption “Whitner Mathulo Cherigi Pothunna Chinnaraulu” forwarded by A.P. High Court Legal Services Committee, Hyderabad. ..Petitioner and 1.