Dismissed

Ali Reza Abdi v. the State of Maharashtra and Ors.

Bombay HC15 Jul 2019WP/2719/2019

Case brief

AI extract

What is this about?

The petitioner challenged the applicability of the COTPA Act to his allegedly tobacco-free hookah business seeking protection from coercive action. The Court held the petition was based on mere apprehension and directed verification of the product, dismissing the plea for a broader declaration without current infraction.

What did the court decide?

The petition was disposed of subject to the condition that coercive action can be taken only if the petitioner is found using substances prohibited under the COTPA Act.

Ali Reza Abdi Vs the State of Maharashtra and… — Pension and Retirement Benefits | Bombay HC (2019)

¶1

11-wp-2719-2019.doc

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

¶3

CRIMINAL WRIT PETITION NO.2719 OF 2019

¶4

Ali Reza Abdi ..Petitioner V/s. The State of Maharashtra & Ors. .. Respondents

¶5

Dr.Sujay Kantawala, Mr.Sajal Yadav, Mr.S.K. Saxena i/b Karan Vyas for the Petitioner.

¶6

Mr.S.U. Kamdar, Senior Advocate a/w Mr.Deepak Thakare, PP a/w Mr.S.R.Shinde, APP for the Respondent Nos.1 and 3-State.

¶7

Mr.Ganesh Gole a/w Mr.Kunal Waghmare for Respondent No.2MCGM.

¶8

CORAM : RANJIT MORE & SMT.BHARATI H. DANGRE, JJ.

¶9

DATE : 15^th JULY 2019

¶10

P.C.

¶11

Heard Mr.Kantawala, learned counsel for the petitioner,

¶12

Mr.Kamdar, learned Senior Counsel for respondent Nos.1 and 3 and

¶13

Mr.Gole, learned counsel for the respondent No.2-Corporation.

¶14

The petition is filed under Article 226 of the Constitution of India seeking following reliefs :-

¶15

“(a) That this Hon'ble Court may be pleased to examine the legislation and its non-application to

¶16

page 1 of 6

¶17

tobacco free products and issue necessary directions to the effect that no coercive action of any nature ought to be initiated if a hookah is served without tobacco;

¶18

(b) In the alternative, this Hon'ble Court may be pleased to; direct that Respondents cannot take any coercive steps against the Petitioner for serving herbal tobacco free hookah unless there are conclusive scientific findings that tobacco is present in the hookah served by the petitioner.

¶19

The petitioner is running a business of food and beverages since last 20 years and has commenced the concept of Sky-lounge and Sheesha Restaurants. It is the claim of the petitioner that he serves tobacco free hookahs in his restaurants and for that purpose he used product by brand name “Soex”.

¶20

It is specific case of the petitioner that the product

¶21

“Soex” does not contain tobacco or nicotine. In order to demonstrate so, he relies upon the following reports :-

¶22

(i) Report of the Director of Forensic Science, Gujarat State.

¶23

11-wp-2719-2019.doc

¶24

(ii) Report of Bombay Forensic (India's Forensic Laboratories)

¶25

(iii) Helik Advisory Limited (Private Analysts).

¶26

The petitioner also relied upon the decision of the learned Single Judge of the Gujarat High Court dated 26.12.2018 in Criminal Miscellaneous Application No.17856 of 2018.

¶27

It is true that all these reports referred above are in favour of the petitioner in as much as it certifies that the product “Soex” does not contain tobacco, nicotine, narcotic or any psychotropic substance. It is the case of the petitioner made out in ground-G at the Page-11 of the Petition, that he was categorically informed not to sell hookah as same is prohibited under the 2018 Amendment to the Cigarettes and Other Tobacco Products Act, 2003 (COTPA Act). The petitioner has therefore approached this Court under apprehension and sought the relief referred herein above.

¶28

The petition was placed for admission on 08.07.2019. After hearing the parties we directed Mr.Thakare, learned PP and Mr.Gole learned counsel for the Municipal Corporation to verify and test the product “Soex”. Mr.Kamdar, learned Senior Counsel for the

¶29

N.S. Kamble page 3 of 6

¶30

11-wp-2719-2019.doc

¶31

respondent Nos.1 and 3 and Mr.Gole, learned counsel for respondent No.2 submitted that they have already sent the said product “Soex” for verification to Bombay Forensic (India's Forensic Laboratories, Kalina), however, report is awaited.

¶32

Mr.Kamdar, submits that the petition is premature as much as the Petitioner is not prohibited at this stage from running a business of restaurant or serving hookah which according to Petitioner do not contain tobacco or nicotine. Mr.Kamdar, learned Senior Counsel makes categorical statement that State is duty bound to implement of the prohibition under the Amendment to “COTPA” Act and except what is prohibited under 2018 Amendment Act, nothing would be prohibited. Statement is accepted.

¶33

Mr.Gole, learned counsel for Respondent No.2Municipal Corporation place on record the communication dated 10.01.2018 issued by the Municipal Commissioner of the Bombay Municipal Corporation to the Additional Chief Secretary (HOME). This communication is of Municipal Commissioner's response to the Additional Chief Secretary in pursuant of the letter from Commissioner of Police regarding Hookha Parlours in Mumbai City. The Municipal Commissioner made his stand clear by stating that

¶34

N.S. Kamble page 4 of 6

¶35

11-wp-2719-2019.doc

¶36

hookha Parlours do not fall under the ambit of eating house and therefore do not fall within the provision of Section 394 of the Mumbai Municipal Corporation Act under notified trades for license. In short, the contention of the Municipal Commissioner is that under MMC Act no license is required for the hookha bar. However, the Police Officers are empowered to take legal action for the infringement of the conditions imposed under COTPA Act as well as taking action on the hookha Parlours where drugs/narcotics are provided and consumed which falls under the purview of Police Department.

¶37

In the light of the above it is clear that the petition is filed on a mere apprehension and as long as the petitioner complies with the provisions of COTPA and do not serve any prohibited substance in the hookha Parlour then no action can be taken against them. However, it is made clear that if it is found the petitioner is selling/using any substance prohibited under the COTPA Act then surely the action can be taken against him. We find that at this stage no declaration more than what is stated above is necessary.

¶38

Subject to above we dispose of the petition.

¶39

N.S. Kamble page 5 of 6

¶40

Needless to state that in case any infraction of the provisions of the COTPA Act as amended in the year 2018 Police Authorities are empowered to take action against the petitioner for using the prohibited substance.

¶41

(SMT.BHARATI H. DANGRE, J.) (RANJIT MORE, J.)

Ali Reza Abdi v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Ali Reza Abdi v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Asif Saleh Mohammed Khan @ Asif Khan Ali Mohammed Khan and Ors. Vs the State of Maharashtra

Jaysukhbhai Savjibhai Dubaria and Anr. Vs the State of Maharashtra and Anr.

Pravinkumar Mallappa Pujari and Anr. Vs the State of Maharashtra and Anr.

Harish Kishanchand Wadhwa Vs the State of Maharashtra and Ors.

Mr.Charu Sharma and Ors. Vs State of Maharashtra and Ors.

Ambalal Modalal Rawal Vs the State of Maharashtra and Ors.