Allowed

Siva Nagasai Cool Drinks and General Stores v. The State of A.P

Andhra Pradesh HC25 Apr 2024WP/23809/2022

Case brief

AI extract

What is this about?

Court allowed this writ petition, relying on a common order dated 24.03.2023. It held that the Commissioner of Food Safety lacks jurisdiction to ban tobacco products like Gutka/Pan Masala under the FSSA 2006. COTPA 2003 is a special Act governing such products, overriding the general FSSA 2006. The order directs respondents not to interfere with the petitioner's lawful business and releases seized

What did the court decide?

Writ petition allowed; Commissioner of Food Safety directed not to interfere with petitioner's business activities; seized products released forthwith; no coercive action under FSSA 2006.

Siva Nagasai Cool Drinks and… — Constitutional and Fundamental Rights | Andhra Pradesh HC (2024)

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—< IN THE

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high court of ANDHRA PRADESH AMAf (Special Original Jurisdiction) FRIDAY, THE TWENTY SIXTH DAY OF APRIL TWO THOUSAND AND TWENTY FOUR

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PRESENT

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JUSTICE VENKATESWARLU NIMMAGADDA SRI WRIT PETITION NO: 23809 OF 2022

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THE HON’BLE SRI

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Between: General Stores, Rep. by its Proprietor Prasada Siva Nagasai Cool Drinks and D.No.1, Opposite Rao Kollipara, Sio. Kutumba Rao, Aged about 56 years . Amaravathi Village and Mandal, Palnadu District (Formerly Vegetable Market Guntur District). ...PETITIONER AND

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Rep by its Principal Secretary, Medical

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1. The State of Andhra Pradesh, and Health Department. Secretariat, Velagapudi, Amaravati. of Food Safety, Government of A.P., Gollapudi,

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1. The Commissioner Vijayawada. ■ ncn

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1. Food Safety and Standard Authority of India, Represented by its CE , 3^^ and 4*^ floor, FDA Bhawan, Kotia Road, New Delhi.

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1. The State of A.P., Rep by its Principal Secretary,^{HomeDepartment,} Secretariat, Velagapudi, Amaravati.

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1. The Director General of Police,:^{Stateof AndhraPradeshatMangalagiri,} Guntur District.

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The Superintendent of police, Narasaraopet, Palnadu District. 7. The Deputy Superintendent of Police, Amaravathi, Palnadu District. 8. The Station House Officer, Amaravathi P.S, Guntur. 9. Special Enforcement Bureau. Narasa'ropet, Palnadu District. Officer, SEB, Amaravathi, Palnadu District.

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The Station House

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Union of India, Represented by its Ministry of Health and Fa^rily Welfare, Room No. 348 A wing, Nirman Bhavan , New Delhi. ...RESPONDENTS

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated i in the affidavit filed therewith, the High Court may be pleased to issue any writ or order or direction more particularly one in the nature of WRIT OF MANDAMUS declaring the notification No.318/FSSA/AP/2014-21, Dt. 06.12.2021 as illegal arbitrary without jurisdiction and i in violation of Article 19(1)(g) and 21 of the Constitution of India and consequently set-aside the notification and further direct the respondents and their subordinates not to interfere with the day to day business activities of production, distribution, transport and sale of the tobacco products like khaini gutka etc., of the petitioner firm doing lawful business strictly covered under COTPA(Cigarette other Tobacco Products Act) having the requisite licenses as well as payment of GST all taxes etc vide 37BVEPK9333G12E including registration of cases for the above said business activities of tobacco products in the interest of justice.

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lA NO: 1 OF ?n?9

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed i in support of the petition, the High Court may be pleased to direct the respondents not to interfere with production, sale, transport and distribution of tobacco products like Khaini gutka etc.. including the registration of cases under the said lawful tobacco product business activities by the petitioner firm vide GST No. 37BVEPK9333G1ZE throughout the State of Andhra Pradesh by suspending the notification vide Notification No.318/FSSA/AP/2014-21, nd Dt. 06.12.2021 issued by the 2 respondent pending the writ petition.

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Counsel for the Petitioner: SRI. RAJA REDDY KONETI

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Counsel for the Respondent Nos. 1 to 3: GP FOR MED HEALTH AND

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FAMILY WELFARE

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Counsel for the Respondent Nos. 4 to 10: GP FOR HOME Counsel for the Respondent No. 11:

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The Court made the following: ORDER

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APHC010387232022

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3329]

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FRIDAY ,THE TWENTY SIXTH DAY OF APRIL TWO THOUSAND AND TWENTY FOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

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WRIT PETITION NO: 23809/2022

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Between:

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Siva Nagasai Cool Drinks And General Stores

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...PETITIONER

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AND

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The State Of A P and Others Counsel for the Petitioner:

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...RESPONDENT(S)

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1.RAJA REDDY KONETI

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Counsel for the Respondent(S):

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1.GP FOR MED HEALTH AND FAMILY WELFARE

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2.GP FOR HOME

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The Court made the following: ORDER:-

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This writ petition is filed under Article 226 of the^Constitution of the India seeking the following reliefs:-

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"to issue a writ, order or direction more particularly^one in the nature of Writ of Mandamus declaring the notification NO.318/FSSA/AP/2014-20, dated 06.11.2021,issued by respondents as being illegal, arbitrary without jurisdiction and in violation of principles of natural justice and in violation of Articles 19(1)(g) and 21 of the Constitution^of India and consequently to set aside the same and direct^the respondents not to interfere with the day to day business activities of productions, distribution, transport^andsaleof the tobacco products like khaini, gutka etc., of the^petitioner

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fim doing lawful business strictly covered under COTPA

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When the matter i IS taken up for hearing, it is observed from the docket sheet that on 22.04.2024, there was no representation on behalf of the petitioner and the matter is posted to today under the caption 'For Dismissal’. But today also there is no representation on behalf of the petitioner.

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Learned Government Pleader for the respondents submits that the petitioner is challenging the notification dated 06.12.2021 issued by respondents herein and in similar Circumstances the Hon’ble Division Bench of this Court has passed a common order dated 24.03.2023 i in W.P.No.30185 of 2021 and batch, wherein it is held as follows;

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“34. In view of the above discussion, the legal position is abundantly clear that the COTPA, 2003 is a special Act specifically dealing with Tobacco and Tobacco products by including Pan Masala or any chewing material having Tobacco as one of its ingredients by whatever name called. The FSSA, 2006 being a general Act, provides that it is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture. storage, distribution, sale

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) )

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availability of safe and and import, to ensure human consumption and for wholesome food for incidental thereto. matters connected therewith or 2006 deals with food as defined under Thus, the FSSA Section 3(j) of the^{saidAct,whereasTobaccoand} covered under the COPTA, Tobacco products are 2003. Since^{GodawatPanMasalaProductsI.P.Ltd.} field. Pan Masala or Gutka (supra) still holds the containing Tobacco, cannot be considered to be "food and the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor has any jurisdiction to issue the impugned notification. it is declared that the 35. Ex Consequent!, Commissioner of Food Safety, Andhra Pradesh is neither authorized nor having any jurisdiction to issue the impugned notification, prohibiting the manufacture, and sale of distribution, transportation storage Tobacco and Gutka/Pan Masala which contains Nicotine as ingredients and Chewing Tobacco ina of Sections 3(m) and 3(p) products, within the meaning of the COTPA,"2003, in^{exerciseofpowersunder} Section 30(2)(a) of the FSSA, 2006. 36. As a further consequence, the respondents are with the lawful day-to-day directed not to interfere of the writ petitioners with regard to business activities Tobacco products. Tobacco products by the 37. The seizure of under the impugned notifications or under respondents the FSSA, 2006/ the^{FSSARegulations,2011,isalso} All the seized products are held to be bad in law. directed to be released forthwith. No further coercive

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action can also be taken under the provisions of the FSSA, 2006/ the FSSA Regulations, 2011 against the licensed businesses. 38. The writ petitions are allowed to the extent indicated above. No order as to costs. Pending miscellaneous applications, if any, shall stand closed." 4. In view of the same, for the reasons alike in the aforesaid common order, this Writ Petition is also allowed in terms of a common order dated 24.03.2023 passed by this Court in W.P.No.30185 of 2021 and batch. There shall be no order as to costs.

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Registry is directed to attach a copy of the common order dated 24.03.2023 passed by this Court in W.P.No.30185 of 2021 and batch to this order.

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As a sequel miscellaneous application, pending, if any, shall also stand closed.

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SDI- K. TATA RAO //TRUE COPY// deputy registrar SECTtCDN OFFICER 1. Principal Secretary, Medical and Health Department, Secretariat, Velagapudi, Amaravati. 2. The Commissioner of Food Safety, Government of A.P. Gollapudi, Vijayawada.

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To,

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CEO, Food Safety and Standard Authority of India 3'"' and 4‘^ floor, FDA

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Bhawan, Kotia Road, New Delhi.

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Principal Secretary, Home Department, Secretariat Velagapudi

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Amaravati.

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The Director General of Police State of Andhra Pradesh at Mangalagiri,

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Guntur District.

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The Superintendent of police, Narasaraopet, Palnadu^District.

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The Deputy Superintendent of Police, Amaravathi,^{PalnaduDistrict.}

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The Station House Officer, Amaravathi P.S, Guntur.

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Special Enforcement Bureau, Narasaropet, Palnadu^District.

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The Station House Officer, SEB, Amaravathi, Palnadu^District.

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The Ministry of Health and Family Welfare, Union of India, Room No. 348 A wing, Nirman Bhavan, New Delhi.

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One CC to SRI RAJA REDDY KONETI Advocate [OPUC]

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Two CCs to GP FOR MEDICAL, HEALTH AND FAMILY WELFARE, High Court of Andhra Pradesh [OUT]

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Two CCs to GP FOR HOME, High Court of Andhra Pradesh [OUT

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Three CD Copies

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(Along with Copy of Common Order dated 24.03.2023 in^WP.No.30185 of 2021 and batch)

\ \

HIGH COURT

DATED:26/04/2024

ORDER

WP.No.23809 of 2022

X
2 8 DEC 202't 1
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ALLOWING OF THE WRIT PETITION WITHOUT COSTS

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IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE &

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HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU

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COMMON ORDFR

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Pt.24.03.2023

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(Prashant Kumar Mishra, CJ)

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In this batch of writ petitions, petitioners challenge the constitutional validity of the impugned notifications, i.e. notification NO.318/FSSAMP/2014-20, dated 08.01.2020, published on 10.01.2020, and notification No.318/FSSA/AP/2014-21 dated 06.12.2021, issued by the Commissioner of Food Safety, by invoking Section 30(2)(a) of the Food Safety and Standard Act, 2006 (for short. the FSSA, 2006") thereby prohibiting the manufacture, storage, distribution, transportation and sale of Gutka/Pan Masala which contains Tobacco and Nicotine as ingredients and chewing tobacco products etc., within the meaning of Sections 3(m) and 3(p) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, the COTPA, 2003"); as such, the writ petitions are heard together and disposed of by this common order.

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Ha&DVSS,J W.P.No.30185 of2021 & batch

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Challenge to the notification is mainly on the ground that the Central Government is levying and collecting excise^{dutyontheproduction} of Tobacco products under the Central Excise Act, 1944^{andthatTobacco} and Tobacco related products are regulated under the^COTPA,2003 in respect of prohibition of advertisement, prohibition^on sale on minors, prohibition on consumption in public places by making provisions for packing and labelling, as also statutory warning; therefore. Tobacco is not the State Government to issue the a food product so as to empower impugned notification.

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It is stated that Government of India by its office memorandum dated 13.02.2012 has clarified that anything containing Tobacco is covered under the COTPA, 2003 and a clarification to^{thiseffecthasbeen} issued on 22.02.2012 by the Ministry of Finance, Government^ofIndia. The FSSA, 2006 has also clarified that Zarda, Khaini etc., are pure Tobacco products and are not covered under the FSSA,^2006.

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Referring to the schedule of the COTPA, 2003, it is stated that Cigarettes, Cigars, Cheroots, Beedis, Tobacco, Pipe^Tobacco, Chewing Tobacco, Snuff, Pan Masala, Gutka etc, are all coming^{withinthemeaning} of Tobacco as per the COTPA, 2003.

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v. 5. The judgment in Godawat Pan Masala Products I.P. LTD. Union of India and others- (2004) 7 SCC 68, has been^referred, wherein the Hon’ble Supreme Court has held that the^{powerofbanningan}

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HCJ&DVSS,J W.P.No.30185 of2021 & batch

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article of food or an article used as ingredient of food on the ground that it is injurious to health, belongs appropriately to^{theCentralGovernment} and 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^{foodandsuchpower} can only arise as a result of wider policy decision^{andemanatesfrom} Parliamentary Legislation by exercise of powers by the Central Government by framing rules under Section 23 of the^COTPA,2003. The Supreme Court eventually declared the notification issued under the provisions of the Prevention of Food Adulteration Act,^{1954asultravires} the Act. Similarly, when criminal cases were registered^undervarious provisions of Indian Penal Code and FSSA, 2006 in view of ban on Tobacco products through a notification in the year^{2018,CriminalPetition} No.3731 of 2018 and batch came to be filed and vide order dated 27.08.2018, the FIRs., and charge-sheets were quashed^onthereason that Police has no power to register cases and the^said order was not appealed against and has, thus, attained finality. Similar quash petitions were also allowed vide Criminal Petition No.5421 of 2019 and batch by order dated 18.12.2019, holding that offences under^{theCOTPA,2003can} only be launched if the Police find that Sections 5,^{6,7and10arenot} complied with and against this judgment also. State^{hasnotcarriedthe} matter to Supreme Court. Similar is the case with Criminal Petition

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Ha&DVSS,J W.P.No.30185 of2021 & batch

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No.5103 of 2020 and batch decided on 05.03.2020. Reference is also made to the judgments rendered by various High Courts on the subject.

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Respondent-State has filed counter-affidavit defending the impugned notification stating that the FSSA, 2006 is a statute relating to food enacted after repealing multiple Food Laws with the object of fixing scientific based food standards and to regulate, monitor the manufacturing, import, processing, distribution and sale of food to ensure availability of safe and wholesome food to the public. The respondentstate has issued impugned notification by invoking Section 30 (2) of the FSSA, 2006 because Chewing Tobacco comes under the purview of "food" as Tobacco is kept in the mouth and chewed and it gets mixed with saliva into the body. The definition of "food" under Section 3 (j) of the FSSA, 2006, cannot be given a restricted meaning, as it encompasses any kind of food which is intended to be consumed. Therefore, Gutka and Pan Masala which contain Tobacco and Nicotine, come under the definition of "food" as per Section 3 (j) of the FSSA, 2006 read with Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 (for short, "the FSSA Regulations, 2011"). It is stated that quashing of criminal cases by the High Court, has no bearing on the validity of the notification, for which the source of power is different. In respect of the judgment of the Hon'ble Supreme Court in Godawat Pan Masala Products IP. Ltd. i/. Union of India and others, it is stated that the

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HCJ& DV5S,J W.P.No.30185 of2021 & batch

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said judgment was rendered prior to the FSSA, 2006 and the FSSA Regulations, 2011.

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It is further stated in the counter-affidavit that the FSSA, 2006 has an overriding provision contemplated under Section 89; thus, it prevails over the COTPA, 2003, as the same is a latter Act than that of the COTPA, 2003. It is specifically pleaded that the COTPA, 2003 is an Act enacted to prohibit the advertisement and regulation of trade, supply and distribution of Cigarettes and other Tobacco products, but it does not guarantee the safety of those products when consumed along with food for which the FSSAS, 2006 will take precedence. The FSSA, 2006 does not operate or interfere with Smoking Tobacco products like Cigarettes, Cigars, Beedies, Hukka etc., but deals with smokeless chewing or consuming^Tobacco conjointly with food, It is further stated in the counter-affidavit that excluding those substances mentioned in the definition of "food" under Section 3 (j) of the FSSA, 2006, statute did not mention Tobacco and Tobacco products to be excluded from the purview of the definition of food". It allowed alcoholic drinks in the definition of "Food",^which is injurious to health; therefore, it is sufficient to presume that Tobacco products which are also injurious to health when mixed with food articles, would definitely come under the operational activity of the FSSA, 2006 and the FSSA Regulations, 2011 made thereunder. It is further stated that there is no conflict between the COTPA, 2003 and the FSSA, 2006. Both operate differently and the FSSA, 2006 prevails over the COTPA,

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6 HCJ&DVSS,J W.P.No.30185 of2021 & batch

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2003 to the extent of Smokeless Tobacco that is used in the preparation of Gutka and Pan Masala which obviously becomes food product when it is mixed with other items and used for chewing. The counter-affidav^itwould further refer to Article 47 of the Constitution of India, which casts a duty on the State to raise the level of nutrition and the standard of living and to improve public health, to state that the directive^{principlesofstatepolicy} also support the action and exercise of statutory power under Section 30(2)(a) of the FSSA, 2006 read with the FSSA Regulations,^2011.

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Respondents would refer to the Division Bench judgment^dated 31.11.2021 rendered by the Fligh Court for the State^ofTelangana in Mohammed Yanin Nayeem Mohammed v. State of Maharashtra,^wherein similar challenge has been rejected. Based on the above, it is stated that the impugned notification is well within the powers^{oftheCommissionerof} Food Safety under Section 30(2)(a) of the FSSA, 2006 read with Regulation 2.3.4 of the FSSA Regulations, 2011, and^{prayedtodismissthe} writ petitions.

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and 9. Mr. K. Raja Reddy, Mr. S.M. Subhan, Mr. D. Kasi Rao Mr. R. Leela Sai Sampath representing Mr. R. Siva Sai^{Swarup,learned} counsel for the petitioners, would urge that there is no such power conferred on the Commissioner of Food Safety under Section 30(2)(a) of the FSSA, 2006 for issuing the impugned notification^asTobacco is not "food" covered under the FSSA, 2006, but it is an item^{coveredunderthe}

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Iia& DV55,J W.P.No.30185 of2021 & batch

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COTPA, 2003, which would take precedence over the FSSA, 2006, because the COTPA, 2003 is a special Act, whereas the FSSA, 2006 is a general Act. Referring to the judgment rendered by the Hon'ble Supreme Courtⁱⁿ Godawat Pan Masala Products I.P. Ltd. (supra) and other judgments rendered by the High Court of Patna in Omkar Agency v. The Food Safety and Standards Authority of India and anr. -^2016SCC Online Pat, the High Court of Calcutta in Sanjay Anjay^Stores v. Union of India and ors. - 2017 SCC Online Cai 16323^andthatof the High Court of Madras in Designated Officer, the^FoodSafety& Drugs Control Dept. v. Jayaviias Tobacco Traders LLP (order dated 20.01.2023 in W.A.No.2093 of 2018), it is argued that^the law is well settled now that Tobacco is not a food product; therefore, the powers under the FSSA, 2006 cannot be exercised for issuance^{ofnotificationto} prohibit manufacture, storage, distribution and sale^{ofGutka,PanMasala,} which contain Tobacco and Nicotine as ingredients and Chewing Tobacco like Chap Tobacco, Pure Tobacco, Khaini, Kharra, Scented Tobacco/Flavoured Tobacco packed in pouches/sachets/containers etc. Reference is also made to judgments of the Hon'ble Supreme Courtⁱⁿ Commercial Tax Officer, Rajasthan v. Binani Cements^Limitedand another - (2014) 8 SCC 319, Reserve Bank of India v.^Peerless General Finance and Investment Co. Ltd. and others - (1987) 1 SCC 424 and a judgment rendered by a single Judge of the Delhi High Court in Sugandhi Snuff King Pvt. Ltd. and another v.

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8 Ha&DVSS,J W.P.No.30185 of2021 & batch

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Commissioner (Food Safety) Government of NCT of Delhi,^wherein similar notification issued by the Delhi Government has been struck down. Reference is also made to the judgment of the HonODle Supreme Court in M/s. Khedan Lai and Sons v. State of U.P. and another -1980 Cri U1346 = 1980 see Online AH526.

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Per contra, learned Advocate General would submit that the COTPA, 2003 was enacted in 2003, whereas the FSSA, 2006, was enacted in 2006, therefore, the FSSA, 2006 is a latter Act and would prevail over the provisions of the COTPA, 2003. It is contended that under the FSSA Regulations, 2011, it is provided under clause 2.3.4 that product should not contain any substance which may be injurious to health and that Tobacco and Nicotine shall not be used as ingredients in any food products. Similarly, Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (for short, "the FPSFA Regulations, 2011") define Pan Masala, treating it as "food" generally^{takenassuchor} in conjunction with pan. Therefore, according to him, Pan Masala is also food" and it should not contain Tobacco and Nicotine. He would, thus, defend the impugned notification on the ground that, Pan Masala being a food product, the impugned notification is intra vires. He would refer to Section 89 of the FSSA, 2006, which has overriding^effect and relied on the judgment of the Hon'ble Supreme Court in Pharmacy^Councilof India v. Dr. S.K. Toshniwa! Educational Trusts Vidarbha Institute of Pharmacy and others - (2021) 10 SCC 657, judgment^ofthe

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Ha&DVSS,J W.P.NO.301SS of2021 & batch

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Bombay High Court in Dhariwa! Industries Ltd. & another v. State of Maharashtra and others - 2012 SCC Online Bom 1370 and judgment of the High Court for the State of Telangana in Sri Kamadhenu Traders v. State of Teiangana - 2021 SCC Online TS 3592. He would also refer to judgment of the learned single Judge of this Court in Dasa Shekar v. State of A.P. - 2021 SCC Online AP 2907, that of another learned single Judge in Uppara Veerendra v. State of Andhra Pradesh - 2021 SCC Online AP 4005 as also on a judgment dated 27.08.2018 of yet another single Judge in Crl.P.Nos.3731 of 2018 and batch {Chidurala Syamsunder if. State of Telangana and another) 11. Learned counsel for the parties invited the decision of this Court on the issue of validity of the impugned notification although the said notification has lapsed by efflux of time during pendency^ofthesewrit petitions. Learned counsel for the petitioners requested the Court to record a finding on the broader issue as to whether or not the Commissioner of Food Safety, Andhra Pradesh, has the authority and jurisdiction to issue the impugned notification prohibiting the sale of tobacco products within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003.

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RELEVANT PROVISIONS:

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To consider the rival submissions, it would be necessary^to refer the relevant provisions of the FSSA, 2003, the regulations framed thereunder and the COTPA, 2003.

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Section 3(j) of the FSSA, 2006 defines the term "food" in the

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following manner:

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"30) 'food' means any substance, whether processed, partially processed or unprocessed, which is intended for human^consumption and includes primary food, to the extent defined in^clause(ZK) genetically modified or engineered food or food containing^such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used^intothefood during its manufacture, preparation or treatment but^{doesnotinclude} any animal food, live animals unless they are prepared^{or processed} for placing on the market for human consumption, plants^priorto harvesting, drugs and medicinal products, cosmetics, narcotic or phychotropic substances: Provided that the Central^{Governmentmay} declare, by notification in the Official Gazette, any^{otherarticleas} food for the purpose of this Act having regard to its^use,nature, substance or quality;"

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Sections 26(1) and (2) of the FSSA, 2006 make provision^forthe responsibilities of the food business operator, providing^asfollows:

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"5. 26. Responsibilities of the food business operator._(l)^Every good business operator shall ensure that the articles^offoodsafety the requirements of this Act and the rules and regulations^made thereunder at all stages of production, processing, import, distribution and sale within the businesses under his^control.

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Ha & DVSSP 11 W.P.No.30185 of2021 & batch

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(2) No food business operator shall himself or by any^personon

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his behalf manufacture, store, sell or distribute any^{articleof food-}

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(i) Which is unsafe; or

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(ii) Which is misbranded or substandard or contains^extraneous matter; or

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(Hi) For which a licence is required, except in accordance^withthe conditions of the licence; or

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(iv) Which is for the time being prohibited by the^{FoodAuthorityor} the Central Government or the State Government in the^interestof public health; or

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(v) In contravention of any other provision of this^{Actorof anyrule} or regulation made thereunder."

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Section 92 of the FSSA, 2006 empowers the Food^Authority to make regulations by notification consistent with the^{Act,tocarryoutthe} provisions of the Act.

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In exercise of its power, the Food Authority has^{enactedtheFSSA} Regulations, 2011, wherein clause 2.3 makes the provision for Prohibition and Restriction on sale of certain products. Clause 2.3.4 which is relevant for the present purpose makes the^{followingprovision;}

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"2.3.4: Product not to contain any substance which^{maybeinjurious} to health: Tobacco and nicotine shall not be used as^{ingredientsin} any food products."

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The Food Authority has made other regulations, viz. the FPSFA Regulations, 2011. Clause 2.11,5 needs reference, which^isreproduced thus;

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Ha&DVSS,J W.P.No.30185 of2021 & batch

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2.11.5 Pan Masala means the food generally taken as such or in conjunction with Pan, it may contain;—

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Beteinut, Hme, coconut, catechu, saffron, cardamom, dry fruits. muiethi, sabnermusa, other aromatic herbs and spices, sugar. glycerine, glucose, permitted natural colours, menthol and non prohibited flavours. It shall be free from added coaitar colouring matter and any other ingredient injurious to health. It shall also conform to the following standards namely:— Total ash: Not more than 8.0 per cent by weight (on dry basis) Ash insoluble in dilute HO acid: Not more than 0.5 per cent by weight (on dry basis)"

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The COTPA, 2003 defines Tobacco products to mean the products specified in the schedule. The schedule appended to the regulations enlists certain Tobacco products one of which is Pan Masala or any chewing material having Tobacco as one of its ingredients (by whatever name called). Entry No.9 of the schedule enlists Gutka and Entry No.6 enlists chewing Tobacco as Tobacco products.

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DISCUSSION:

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Based on the above provisions of law, we are required to consider as to whether Pan Masala and Gutka containing tobacco are "food" within the meaning of the FSSA, 2006 and whether the said Act would apply to such products or whether the COTPA, 2003 would apply for regulating manufacture for sale, storage, sale or distribution of such products.

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Ha&DVSS,J W.r.No.SOlSS of2021 & batch

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The preamble to the FSSA, 2006 provides that it is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. 21. On the other hand, the preamble of the COTPA, 2003 provides that the same is an Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.

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The issue as to the validity of the notifications issued by the Food (Health) Authority under Section 7(iv) of the Prevention of the Food Adulteration Act, 1954, by which the manufacture, sale, storage and distribution of Pan Masala and Gutka (Pan Masala containing Tobacco) were banned for different periods. was considered by the Hon'ble Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra).

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Considering the submissions vis-a-vis the validity of the notification by contrasting the same with the provisions of the COTPA, 2003 referable to Entry 52 List I and Entry 18 List III to Schedule VII of the Constitution of India, occupying the entire field in relation to Tobacco

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and considering the law on the issue, the HonlDle Supreme^Courtrefused to accede to the State's contention that Pan Masala^{orGutkaisfood,to} hold thus in paragraphs 60, 63 and 67:

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"60. We are unable to accept the contention of the^States.Inour view, the scheme of the Act suggests that a decision^{tobananarticle} injurious to health, when used as food or as an ingredient in the manufacture of any article of food, can only be the^{resultof broader} policy. Hence, this larger power appears to have been^{locatedonlyin} the Central Government under Section 23(1-A)(f) and^{notintheState} Food (Health) Authority. As we have already pointed^out,thepower of the State Food (Health) Authority is only transitory^innatureand designed to deal with local emergencies. In our considered^view,the impugned notification is certainly an administrative^actandnota legislative act. Inasmuch as by an executive act the^{manufacturefor} sale, storage, sale or distribution of the article^{concernedhasbeen} banned so as to interfere with the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the^{Constitutionof} . India, the impugned notification is illegal and unconstitutional

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"63. There is a plethora of legislation dealing with tobacco products, gutka and pan masaia and the fact that licences have been issued to the appellants to manufacture the articles^{concerned,does} not lead to the conclusion that the trade or business^{inthearticles} concerned, is an activity which is "criminal in propensity,^immoral, obnoxious, injurious to the health of general public"^{orthatthebanis} a result of "public expediency and public morality."

¶155

"67. We are, therefore, unable to agree with the contention^{that pan} masaia or gutka does not amount to "food" within the^{meaningof the} definition in Section 2(v) of the Act. However, we^donotrestour decision solely on this issue."

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The conclusion in the case has been summarized thus in

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paragraph 77:

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As a result of the discussions, we are of the view^that:

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Section 7(iv) of the Act is not an independent source^{of powerfor} 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^{thepowerunder} Section 24 of the Act by the State Government, to the extent permitted thereunder.

¶162

The power of the Food (Health) Authority under the^Rulesisonly of transitory nature and intended to deal with local^{emergenciesand} can last only for a short period while such emergency lasts.

¶163

The power of banning an article of food or an article^usedas ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to^{beexercisedin} accordance with the Rules made under Section 23 of^the Act, particularly, sub-section (1-A)(f).

¶164

The State Food (Health) Authority has no power to^prohibitthe manufacture for sale, storage, sale or distribution^{ofanyarticle,} whether used as an article or adjunct thereto or not^usedasfood. Such a power can only arise as a result of wider policy^decisionand emanate from parliamentary legislation or, at least,^{byexerciseof the} powers by the Central Government by framing rules under^Section23 of the Act.

¶165

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

¶166

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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,^Act34 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 Act 34 of2003.

¶169

The impugned notiifcations are ultra vires the Act and, hence, bad in law.

¶170

The impugned notiifcations are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution."

¶171

In ITC LTD. v. Agricultural Produce Market Committee and others - (2002) 9 SCC 232, in the context of levy of tax, the Hon'ble Supreme Court held that Tobacco is not a foodstuff.

¶172

It is also to be noticed that the FSSA, 2006 is a regulatory^statute empowering the authority to regulate the manufacture, storage, distribution, sale and import of food products for human consumption, Such power does not authorize the authorities to prohibit the manufacture, etc. of Tobacco or Tobacco products, because the trade in Tobacco is not impermissible in India.

¶173

It is settled by the Hon'ble Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra) that Tobacco or Tobacco products are not res extra commercium. Therefore, if consumption of Tobacco or Tobacco products containing Tobacco or Nicotine was considered to be so

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inherently dangerous for human health, the Parliament^{couldhavebanned} altogether the trade and commerce in Tobacco and Tobacco products even in the face of Article 19(l)(g) of the Constitution of India. However, the Parliament did not do so, but, instead, chose to regulate rather than prohibit trade and commerce in Tobacco and Tobacco products by promulgating the COTPA, 2003. As a corollary, on the strength of delegated legislation in the form of regulations framed under the FSSA, 2006, the authorities under the FSSA, 2006, cannot impose a ban in trade and commerce in Tobacco and Tobacco products.

¶177

If the ban on Tobacco and Tobacco products has not been imposed directly by the Parliament by enacting a Legislation on the field, the authorities under the FSSA Act, 2006, cannot do so indirectly, which has not been intended to be done by the Parliament directly. If there is no ban on Tobacco or Tobacco products, such power cannot^{bereadintothe} FSSA, 2006 or the regulations framed thereunder, by treating the same as food" under Section 3(j) of the FSSA, 2006.

¶178

The respondents have tried to convince this Court by referring to the FSSA Regulations, 2011 and the FPSFA Regulations, 2011, by submitting that food products should not contain any^{substancewhich} may be injurious to health and Tobacco and Nicotine^{shallnotbeusedas} ingredients in any food products generally taken as such or in conjunction with pan. Clause 2.11.5 of the FPSFA Regulations, 2011 provides that Pan

¶179

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Masala may contain betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits, mulethi, sabnermusa, other aromatic herbs and spices, sugar, glycerine, glucose, permitted natural colours, menthol and non prohibited flavours; it should be free from added coaltar colouring matter and any other ingredient injurious to health. However, it is not legally permissible to accept the submission of the respondents for the^{reasonthateven} if Pan Masala is taken to be "food" under the FPSFA Regulations,²⁰¹¹ though not defined as such under Section 30) of the FSSA, 2006, the same would remain "food" till it does not contain Tobacco and Nicotine and the moment Tobacco and Tobacco products are mixed with pan masala, the same would become "food", which would be covered by COTPA, 2003, as defined under the schedule of the COTPA, 2003. Therefore, the moment Pan Masala or Gutka is included^{inthescheduleof} the COTPA, 2003, the law laid down in Godawat Pan Masala Products I.P. Ltd. (supra) would operate the field and the provisions^oftheFSSA Regulations, 2011, framed under the FSSA, 2006, would be in direct conflict with the provisions of the COTPA, 2003.

¶182

It is significant to mention that the Hon'ble Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra) has already^heldthat COTPA, 2003 is a special Act intended to deal with^{TobaccoandTobacco} products, while Prevention of Food Adulteration Act, 1954, is a general Act. In the same analogy, the FSSA, 2006 being a general Act, would yield to the provisions of the COTPA, 2003, which is a special Act. It is

¶183

19 Ha & Dvssp W.P.No.30185 of2021 & batch

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settled law that when a general Act is specifically passed, it is logical to presume that Parliament has not repealed or modified the former special Act, unless anything to the contrary appears from the subsequent general Act. For this proposition, we may profitably refer to the judgment of the Hon'ble Supreme Court in U.P. State Electricity Board v. Hari Shanker Jain and others- (1978) 4 SCC16.

¶186

Some of the High Courts have taken a similar view of the matter, while setting aside similar notifications. A Division Bench of the Patna High Court in Omkar Agency (supra) has quashed similar notification issued in exercise of powers under Section 30(a) of the FSSA , 2006. Similar view has been taken by a Division Bench of Madhya Pradesh High Court in Amarchand Upadhyay & another V. Union of India and others (order dated 08.09.2017 in .WP.No.10998 of 2012). The Gauhati High Court has also taken a similar view to declare that the Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda, Gutka, Panmasala etc. containing Tobacco and/or Nicotine) Act, 2013, as unconstitution al. 32. The Calcutta High Court has quashed similar notification, that is being dealt with in the present petitions, in the matter of Sanjay Anjay (supra).

¶187

In a recent decision rendered by a learned single Judge^ofthe Delhi High Court in Sugandhi Snuff King Pvt. Ltd., (supra), similar

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notification issued by the Commissioner of Food Safety, has been quashed. 34. In view of the above discussion, the legal position is abundantly clear that the COTPA, 2003 is a special Act specifically^dealing with Tobacco and Tobacco products by including Pan Masala^oranychewing material having Tobacco as one of its ingredients by^whatever name called. The FSSA, 2006 being a general Act, provides^that it is an Act to consolidate the laws relating to food and to establish^{theFoodSafetyand} Standards Authority of India for laying down science^{basedstandardsfor} articles of food and to regulate their manufacture,^{storage,distribution,} sale and import, to ensure availability of safe and^{wholesomefoodfor} human consumption and for matters connected therewith or incidental thereto. Thus, the FSSA, 2006 deals with food as defined^underSection 3Q) of the said Act, whereas Tobacco and Tobacco products are covered under the COPTA, 2003. Since Godawat Pan Masala Products^I.P. Ltd. (supra) still holds the field. Pan Masala or Gutka^{containingTobacco,} cannot be considered to be "food" and the Commissioner of^FoodSafety, Andhra Pradesh is neither authorized nor has any jurisdiction^toissuethe impugned notification.

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of Food 35. Ex Consequent/, it is declared that the Commissioner Safety, Andhra Pradesh is neither authorized nor having^{anyjurisdictionto} storage. issue the impugned notification, prohibiting the manufacture,

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distribution, transportation and sale of Gutka/Pan^{Masalawhichcontains} Tobacco and Nicotine as ingredients and Chewing Tobacco products, within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, in exercise of powers under Section 30(2)(a) of the FSSA,^2006.

¶195

As a further consequence, the respondents are directed not to interfere with the lawful day-to-day business activities of the writ petitioners with regard to Tobacco products.

¶196

The seizure of Tobacco products by the respondents^underthe impugned notifications or under the FSSA, 2006/ the FSSA Regulations, 2011, is also held to be bad in law. All the seized products are directed to be released forthwith. No further coercive action can also be taken under the provisions of the FSSA, 2006/ the FSSA Regulations, 2011 against the licensed businesses.

¶197

The writ petitions are allowed to the extent indicated^above. No order as to costs. Pending miscellaneous applications, if any, shall stand closed.

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Sd/-

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Sd/-

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PRASHANT KUMAR MISHRA, C3

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D.V.S.S. SOMAYAJULU, J

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MRR

Siva Nagasai Cool Drinks and General Stores v. The State of A.P

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Siva Nagasai Cool Drinks and General Stores v. The State of A.P

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