S.Suganraj Vs The Assistant Commissioner of Police (Kelmabakkam Range)

PRAYER : Criminal Original Petitions filed under section 528 of BNSS to direct the respondents not to harass the petitioner and their staff in relation to the running of Herbal Hookah Services (without any content or trace of Tobacco and Nicotine) in the Restaurant premises namely “LV-1 Cafe” at No.185/2 Rajiv Gandhi Salai OMR, Egaattur, Kancheepuram 603 103.

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For Petitioner(s): Mr.S.Shanmitha

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For Respondent(s): Mr.R.Vinothraja, Govt. Advocate (crl.side)

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ORDER

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This Criminal Original Petition has been filed to direct the respondents

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not to harass the petitioner and their staff in relation to the running of Herbals Hookah Services (without any content or trace of Tobacco and Nicotine) in the Restaurant premises namely “LV-1 Cafe” at No.185/2 Rajiv Gandhi Salai OMR, Egaattur, Kancheepuram 603 103.

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2 . The petitioner is running a restaurant under the name and style of

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Mist Cafe and Restaurant and “LV-1 Cafe' after obtaining required licenses. It is

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further stated that a separate earmarked smoking area has been provided for

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https://www.mhc.tn.gov.in/judis

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CRL OP No.24407 of 2025

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serving herbal flavour hookah without any content or trace of Tobacco or

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Nicotine. According to the petitioner, the respondents have been frequently interfering with the petitioners' business and have also directing to close the

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restaurant contending that the petitioner is selling tobacco products. Hence, the present petition has been filed.

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3 . The learned counsel appearing for the petitioner submitted that the

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petitioner has filed an Affidavit of Undertaking stating that no tobacco or

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nicotine products are used within the premises.

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4 . The learned Additional Public Prosecutor appearing for the

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respondents contended that the respondent Police have not caused any disturbance to the petitioner's business. However, since the respondents have

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liberty to conduct surprise inspections, when search was conducted in the petitioner's premises, during which, several tobacco products were seized including Royal Smoking Brand (Tobacco), AL Ayaan Brand (Tobacco), Royal

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Smoking Sheesa Molasses Black Colour and etc.. It is further contended that

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https://www.mhc.tn.gov.in/judis

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CRL OP No.24407 of 2025

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the petitioner is habitually indulging in such illegal activities.

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6 . In view of the above, though the learned counsel appearing for the

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petitioner submitted that the petitioner is not using any tobacco or nicotine

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products in the earmarked smoking area for serving herbal flavor hookah, the

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fact remains that several cases have been registered against the petitioner.

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Whether the so-called herbal products, as claimed by the petitioner, contain nicotine or not, can only be determined by experts and not by this Court. This

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Court cannot proceed merely on the basis of oral submissions.

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7 . It is the consistent stand of the respondents that they are not

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disturbing the petitioners in running their restaurant. If the petitioners are of the

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view that his products do not contain any tobacco or nicotine, it is for the

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petitioner to satisfy the competent Authorities particularly Food Safety and Standards Authority of India (FSSAI).

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8 . In this regard, by way of amendment brought by the State

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https://www.mhc.tn.gov.in/judis

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CRL OP No.24407 of 2025

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Government under L.A.Bill No.57 of 2022, Section 4A was introduced, which

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prohibits hookah bars. Therefore, whether the petitioner's hookah contains

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tobacco or not is an issue that has to be determined by the competent authority.

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9 . On considering the provisions of the Cigarettes and Other Tobacco

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Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and Food S afety and Standards Act, if the product used in the hookah is tobacco containing nicotine, it will fall under the COTPA Act. Otherwise also the inhalation of a smoke derived from any product other than tobacco containing nicotine, it will fall within the definition of food under Section 2(za) of the Food Safety and Standards Act. Therefore, if at all the petitioner herein want to run an enclosed zone for herbal hookah, first of all, they have to satisfy that their trade is not in a public place which includes restaurant and does not fall under the prohibition of Cigarettes and Other Tobacco Products Act.

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