dismissed multiple writ petitions challenging a Notification banning the sale of Gutka and Pan Masala with tobacco. The High Court held the FSS Act 2006 overrides COTPA 2003, the 'food' definition is broad enough to cover tobacco products, and the ban was in the larger public interest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)
WEDNESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE
PRESENT
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRASHARMA AND
THE HON'BLE SRI JUSTICE N. TUKARAMJI
WRIT PETITI ON NOS: 20850. 21159.21283.2174621777 . 21902. 21987 .22127. 22174.22271.23313.23356 AND 237090F 2020
wP NO.20850 0F 2
Between:
Nidhir Mandal, s/o. Ratan MandalAge . 45 years, Occ . Business H.No 1-1 13/1 ' Nazarut nagar, Kagaznagar,AdilabadDistrict
...PETITIONER
AND
Petition under Article 226 ofthe constitutionof lndia praying that in the circumstances stated in theaffidavitfiled therewith,the High courtmay be pleased to issue a writ of mandamusor any other appropriatewrit order or direction declaring the NotificationNo.501/FSS1l2O2O,dated06/01/2020 issued by the Respondent No.2 asbeing illegal,arbitraryu nconstitutional, ultra virusthe cigarettes and otherTobacco products (Prohibition of Advertisementand Regulation of Trade andcommerce,Production, supply and Distribution) Act,2003, in violation ofprinciplesof natural justice and in violationof Article14, 19 and 21 o1 constitution of lndia andconsequentlyto set-aside the same and direct the respondents not to interfereand harass the smoothful, lawful business activitiesand sale of tobaccoproducts permissible underthe provisionsof coTPA 2003 by the petitioner at Easgaon Police Station,Komaram Bheem District
IA NO: 1 0F 2020
Petition under Section151 CPC prayingthat in the circumstancesstated in theaffidavitfiledinsupportofthepetition,theHighcourtmaybepleasedtodirect theRespondentNo.StoreturnthematerialseizedinCrimeNo'85ol2020ol Easgaon PoliceStation,KomaramBheem District, not to interfere in any manner with trade and businessof productsthat fall withinsuspendednotificaiion
2
No.501/FSS-1/2020, c aled0610112020by the petitioner and to persons to whom the products are sold
Counset for the Petitirner: SRI POCHAIAH DORISHETTI
Counsel for Respond rnt Nos. 1 , 3, 4 & 5: GP FORHOME
Counsel for Respond rnt Nos. 2 & 6: GP FOR MEDICAL,HEALTH& FAMILY WELFARE
WP NO: 21159 OF 20: 0
Between:
Sri. Girdharilall;wamy, S/o. Ram Nivas Swamy, Age. 25years,Occ. Business, R/o. Berth, Posl Koyal, District Naguar, Rajasthan State.
...pETtTtoNER
AND
...RESPONOENTS
Petition under Article 226 of the Constitution of lndiapraying that in the circumstances stated in the affidavit filed therewith, the High Court may bepleased to issue a writ of rrandamus or any other appropriate writ order or direction declaring the Notifir ation No.501/FSS1/2020, dated 06/01/202() issued by the Respondent No.2 as illegal, arbitrary u nco nstitutiona l, ultra virus the Cigarettes and other Toba products (Prohibition of Advertisement and Regulation of Trade and Commerce, Producti,n, Supply and Distribution) Act, 2003, in violation ofprinciples of naturaljustice anc in violation of Article 14, 19 and 21 of Constitution of lndia and consequently to se! Lside the same and direct the respondents not to interfere and harass the smoothl rl, lawful business activities and sale of tobacco products permissible under tt e provisions of COTPA 2003 by the petitioner at Jananram Mandal, Mancherial )istrict
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in r upport of the petition, the High Court may be pleased to direct the Respondent No 5 to return the material seized in Crime No.167 of 2020 dt. 1210912020 of Jann: ram Police Station, Mancherial District, not to interfere in any manner with trade e rd business of products that fall within suspended notification No.501/FSS-1/2020, dated 0610112020 by the petitioner and to persons to whom the products are sold
Counsel for the Peti ioner: SRI POCHAIAH DORISHETTI
Counsel for Respon lent Nos. 1, 3,4 & 5: GP FOR HOME
3
Counsel for Respondent Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
WP NO: 21283 OF 2020
Between:
Maa Bakery Kagaznagar, Represented by its Proprietor Pavan kumar Solanki Age 35 Years, OCC Business NO 1-2-184, Durga Nagar, Kaghaz Nagar, Komaram Bheem, Telangana
...pETtTtoNER
AND
...RE'P.NDENT.
Petition under Article 226 of the constitutionof lndia praying that in the circumstances stated in theaffidavitfiled therewith,the High Court may be pleased to issue a writ of mandamus orany other appropriatewrit, order or direction declaring the notification No.501/FSS-1 l2O2O,daled0610112020 issued by the 2nd Respondent as being illegal,arbitrary,u nconstitutio nal, ultra vires the Cigarettes and Other Tobacco Products(Prohibitionof Advertisementand Regulation of Tradeand commerce, Production, Supplyand Distribution)Act, 2003, in violationof principles of naturaljustice andin violationof Articles '14, 19 and 21 of the constitution of lndia and consequently toset asidethe same and direct the respondents not to interfere in any mannerwith the trade and business carriedout in the products that fall within the saidnotification by the Petitioner,their personneland the perso ns/entities to whom they supply thoseproducts
lA NO: 1 oF 2020
Petition under Section151 CPC prayingthat in the circumstancesstated in the affidavit filed in supportof the petition, the High court may be pleased to direct the respondents not tointerferein any manner with the trade and businesscarried out in theproducts thatfall within the impugned notification (i.e. notification No.501/FSS-1/2020, dated06101t2o2oby the Pettioner, their personneland the perso ns/e ntities to whom they supply thoseproducts
Counsel for the Petitioner:SMT. C SUNITHA KUMARI
Counsel for RespondentNos'1, 3 & 4: GPFOR HOME
Counsel for RespondentNo. 2: GP FORMEDICAL, HEALTH & FAMILY WELFARE
Counsel for RespondentNo. 5: GP FORCOMMERCIAL TAXES
I
Counsel for Respondr nt No. 6: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
WP NO: 21746 OF 202 )
Between:
Pathan Agencie,, aproprietary firm, H.No. 1-9-39, Opp. Church, Gopalapuram, Suryapet , Telar gana-508213 Rep. by its Proprietor, Nadeem Khan Pathan, S/o Pedajan Pathar Aged about 46 years, Occ. Business H.No.1-38, Duraj Palle, Nalgonda- 5oB2 3
...PErroNER
AND
at The Commissio er of Food Safety, Telangana, Directorate of lnstitute of Preventive Med :ine, Public Health Labs and Food (Health) Administration, Narayanaguda, iyderabad -500029.
4 The Director Ge reral of Police, Telangana, Telangana State Police Headquarters, L rkdikapul, Hyderabad.
5 The Superintenr ent of Police, Suryapet District, at Suryapet b The Commissio rer of Commercial Taxes, Telangana, C.T.Complex, Nampally, Hyderabad-500',01
...RESpoNDENrs
Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an approprir te writ, order or direction more particularly one in the nature WRIT OF MANDAIVJS, declaring the notification No.501 FSS- 1/2020, dated 0610112020 issued by the 3rd respondent as being illegal, arbitrary., u nconstitutiona l, ultra wires the cigare ttes and other tobacco products (prohibition of advertisement and regulation of Tr rde and Commerce, Production, Supply of Distribution) Act, 2003 in violation of p inciples of naturaljustice and in violation of articles 14, 19 and 21 of lhe constitution cf lndia and consequently to set aside the same and direct the respondents not to in erfere in any manner with the trade and business carried out in the products that fall within the said notification by the petitioners, their personnel and the persons/entit as to whom they supply those products
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in s lpport of the petition, the High Court may be pleased to direct the respondents not o interfere and not take coercive steps in any manner with the trade and business carried out in the products that fall within the impugned notification (i.e. notifi :ation No.501/Fss-1/2020, dated 06.0'1 .2020)by the petitioners, their personnel and tl e persons/entities to whom they supply those products pending disposal of the writ p, tition
Counsel for the Petit,oner: SRI SRINIVAS REDDY BALAKISTI
5
I
Counsel for RespondentNos' 1, 3 & 9: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for RespondentNos. 2,4 & 5: GPFOR HOME
Counsel for RespondentNos. 6 & 8: GP FORCOMMERCIAL TAXES
Counsel for RespondentNo. 7: SRI N' RAJESHWAR RAO ASSISTANT SOLICITORGENERAL
WP NO: 21777 0F 2020
Between:
Sri. VenishettiRaghavendra @Raghu,S/o Shankaraiah Age 35 years', Occ' Eijlii,r-ii-n7".H.-r.io.rz-zoolf cor,itamiNagar,Near Kodanda Rama Aalayam lvlancherial District
...pETl,oNER
AND
...RESpoNoENrs
Petition underArticle226 of the constitutionof lndia praying that in the circumstancesstatedintheaffidavitfiledtherewith,theHighCourtmaybepleased toissueawritofmandamusoranyotherappropriatewritorderordirection the declaringtheNotificationNo.50l/FSS1l2o2o,dated06/01/2020issuedby the RespondentNo.2asbeingillegal,arbitraryunconStitutional,ultravirus and Cigarettes andother Tobacco products (Prohibition of Advertisement RegulationofTradeandCommerce,Production'supplyandDistribution)Act'2003' inviolationofprinciplesofnaturaljusticeandinviolationofArticlel4,lgand2lol Constitution oflndia and consequentlyto set-aside the same and direct the respondentsnot to interfere and harassthe smoothful,lavvfulbusiness activitiesand saleoftobaccoproductspermissibleundertheprovisionsofcoTPA2003bythe petitioner at P.S.CCCNaspur, Mancherial District
IA NO:1 OF2020
Petition underSection 151 CPC prayingthat in the circumstancesstated in the affidavitfiled in support of the petition, the High courtmay be pleased to direct theRespondentNo.5toreturnthematerialseizedinCrimeNo.2S2ol2020ol P.S.CCCNaspur, Mancherial District, not to interferein any manner with trade and businessofproductsthatfallwithinsuspendednotificationNo.50l/FSS.112020, dated 06/01/2020by the petitionerand to persons to whom the products are sold Counselfor the Petitioner:SRIPOCHAIAHDORISHEfiI
Counsel forRespondent Nos. 1, 3,4 & 5: GP FOR HOME
6
Counsel for Respondr nt Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
WP NO: 21902 OF 202 |
Between:
Mahalaxmi Tr€ iers, Rep proprietor, Sambari Pavan Kumar, S/o.S.Shankaral, h, Age. 34by years,its R/o.H.No.1-53'11, Kishtapur, Jannaram, Mancherial, Adili bad, T.S. .IA/RIT PETITIONER
AND
,..RESPONDENTS
Petition under , ,rticle 226 of the Constitution of lndia praying that in the circumstances stated i r the affidavit filed therewith, the High Court may be pleased to issue a writ, order or direction more particularly one in the nature of writ of Mandamus declaring tl e notification No.501/FSS-|/2020 date. 06-01-2020 issued by the 2nd Respondent p ohibiting sale of tobacco products as being illegal, arbitrary and u nconstitutio na I rltra vires the Cigarettes and Other Tobacco Products (Prohibition of Advertir ement and Regulation of trade and commerce, Production, Supply and Distributior )Act2003, in violation ofprincipals of naturaljustice and in violation of Articles 14 'l'9 and 21 of the Constitution of lndia and consequenily to set aside the same anr direct the respondent not No. 5 and 6 to return the material seized vide FlR.No.87 )'f 2020 of PS Mamda. Nirmal District and not to interfere in any manner with trad ) and business carried out in the products that fall with notification No. 501/F )S-l/2020 date. 06-01-2020 by the petitioner and to the persons to whom the p cd ucts are sold.
lA NO: 1 OF 2020
Petition under s :ction 151 cPC praying that in the circumstances stated in the affidavit filed in sug port of the petition, the High court may be pleased to direct the Respondent Nos. i & 6 to return the case property of (80) Amber (tobacco) Gutka Bags, seized in ;onnection of FlR.No. 67of ZO2O, dated. 09-10-2020 of p.S. Mamda, Nirmal Distric, to the petitioner and not to interfere with the trade and business of the tobacr o products that fall within the suspended Nlotification No. 501/FSS-|/ 2020 date. r 6-01-2020 by the petitioner and to the persons to whom the products are sold, durir ; pendency of this W.p.
Counsel for the Petitior rer: SRI MR, BOGGULA RAJU
Counsel for Responder t Nos. 1,3,4 & 5: Gp FOR HOME
7
Counsel for Respondent Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
WP NO: 219 B70F 2020
Between:
Hima Traders, Represented by its Proprietor Srinivasa Rao Yalagandula Age- 40 years,OCC Business RIO- Flat No.204, Keshava Heights, Nagubandi Rammurthi Nagar,Kodad, Suryapet, Telangna 508206
...pETt,oNER
AND
Petition under Article 226 of the Constitution oflndia praying that in the circumstances stated in the affidavit filed therewith,the High Court may be pleased to issue a writ of mandamus orany other appropriatewrit, order or direction declaring the notification No.501/FSS-112020, daled 06.01.2020 issued by the 2nd Respondent as being illegal, arbitrary,u nco nstitutiona l, ultra viresthe cigarettes and other Tobacco Products(Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supplyand Distribution)Act, 2003, in violation of principles of naturaljustice and in violation of Articles14, 19 and 21 of the constitution of lndia andconsequentlyto set aside the sameand direct the respondents not to interfere in anymanner with the trade and business carriedout in the products that fall within the saidnotification by the Petitioner,their personnel and thepersons/e ntities to whomthey supply those products
lA NO: 1 OF 20
Petition under Section 151 CPCprayingthat in the circumstancesstated in the affidavit filed in supportof the petition,the High Court may be pleased to direct the respondents not to interferein any manner with the trade and businesscarried out in theproducts that fallwithin the impugned notification (i.e. notification No.501/FSS-1/2020, dated 06.01.2020)by the Petitioner,theirpersonnel and the pe rso n s/e ntities to whom they supply thoseproducts
Counsel for the Petitioner:SMT.C SUNITHA KUMARI
Counsel for RespondentNos. 't, 3 & 4: GP FOR HOME
Counsel for RespondentNo. 2: GP FORMEDICAL, HEALTH & FAMILY WELFARE
Counsel for RespondentNo. 5: GP FORCOMMERCIAL TAXES
S
Counsel for Respondr ntNo. 6: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
WP NOi 22127 OF 2021-
Between:
AND
Petition under Article 226 of the Constitution oflndia praying that in the circumstances stated in the affidavit filed therewith, theHigh Court may be pleased topass an order/ord,rs, or issue anydirection/directionsor appropriatewrit more particularly in the r ature of WRIT OF MANDAMUS declaring the lmpugned Notification issued b the Respondent No.2 hereinvide NotificationNo.50'1/FSS- 1/2020, dated. 06-01 2020 imposingprohibition of sale ofcertain Tobaccoand Pan Masalaproducts unc -.r Section 30 of Food Safety and StandardsAct,2006and Food Safety and Sta rdards (Prohibition and Restriction on Sales) Regulation2011, as illegal, arbitrary a d violative of Article 14,21 , 19(g) and301 of Constitutron of lndia and against the mandatoryprovisions of COTPA2003vide Sectlon 3 (p) and further declare that tl e Respondent No.2 have no authority andjurisdictionto issue the said notification( ated. 06-0'l-2020 against the mandatoryprovisionsof COTPA 2003 and consequer tly direct the Respondents herein not to interfere andharass, the smoothful, laMr I business activities of manufacturing, storingand saleof tobacco products lik: ZARDA, KHAlNl, and other tobaccoproducts,permissible under theprovisions :f COTPA 2003 by the Petitioner No.1 in the name and style of Shaik Shadullah Ag rncies situated at H.No.1-4-1449, Opp. Manikanta Complex, Bodhan, Nizamabad. Telangana State and Petitioner No.2 in the name and style of H.K.G.N. Kirana Wr ekly Bazar, situated at Weekly Bazar, Bodhan, Nizamabad, Telangana State
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in s rpport of the petition, the High Court may bep eased to pass an
9
Order, directing the respondentsherein not to interfereandharassthe smoothful, lawful business activitiesand Sale of Tobacco products permissibleunder the provisions of coTPA 2003 by the PetitionerNo.1 in the name and style of shaik Shadullah Agencies situatedat H.No.1-4- 1449, Opp. Manikanta complex,Bodhan, Nizamabad, Telanganastate and Petitioner No.2 in the name and style of H.K.G.N. Kirana Weekly Bazar, situatedat weeklyBazar, Bodhan, Nizamabad,Telangana State in its firm, branchesand godownsat Nizamabad, including transportationto the shops, by suspendingthe lmpugned Notification issuedby the Respondent No.2 herein vide NotificationNo.501/FSS1 /2020, dated: 06-01-2020, pending disposal of main W.P. in the interestof Justice
Counsel for the Petitioners:SRI M. A. K. MUKHEED
Counsel for RespondentNos. 1,3 & 6: GP FOR HOME
Counsel for RespondentNo. 2: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for RespondentNo.4: GP FORCOMMERCIAL TAXES
Counsel for RespondentNo. 5: SRI N. RAJESHWAR RAO ASSISTANT SOLICITORGENERAL
WP NO: 22174 OF 2020
Between:
Sri Laxmi Enterprises,Rep by its Proprietor NarenderKumar Selot s/o Genda i;";;b;rt 55 'lear., bc".euiiness,FVo H.No.'15-8-332,Feelkhana' Hvderabad' r.,s.-d,i."inLri hooiesiat. D.No.1b_8_332,Feelkhana, Hyderabad Telangana State 5000'12
...pETt,oNER
AND
l0
notification dated.06/0 l/2020 against the mandatoryprovisions of COTPA 2003 and consequently direct he Respondents herein not to interfere and harass, the smoothful, lawful busr ress activities of manufacturing, storing and sale of tobacco products like ZARDA KHA|Nl, and other tobacco products, permissible under the provisions of COTPA 2003 by the Petitioner in the name and style of Sri Laxmi Enterprises situated tt D.No.15-8-332, Feelkhana, Hyderabad, Telangana State 500012
lA NO: 1 OF 2020
Petition under iection 151 CPC praying that in the circumstances stated in the affidavit filed in su )port of thepetition, the High Court may bepleased topass an Order, directing the r:spondents herein not to interfere and harass the smoothful, lawful business actir ties and Sale of Tobacco products permissible under the provisions of COTPA 2003 by the Petitioner in the name and style of Sri Laxmi Enterprises situated at D.No.'1 5-8-332, Feelkhana, Hyderabad, Telangana State 500012 in its firm, bri nches and godowns at Hyderabad District, b), suspending the lmpugned Notificatio r issued by the Respondent No.2 herein vide Notification No.501 / FSS1/2020 daled:0610112020, pending disposal of main W.P. in the interest of Justice
Counsel for the Petit oner: SRI M. A. K. MUKHEED
Counsel for Responr ent Nos. 1,3 & 6: GP FOR HOME
Counsel for Respont ent No. 2: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for Responr ent No. 4: GP FOR COMMERCIAL TAXES
Counsel for Responr ent No. 5: SRI N. RAJESHWAR RAO
ASSISTANT SOLICITOR GENE RAL
WP NO: 22271 OF 20 20
Between:
M/s. Laxmi T aders, H.No.1-1-90/1 , Kondamallepally Village and Mandal, Nalgonda Distr I rep. by its Proprietor Dundigalla Omprasad ...PETITIONER
AND
? The Commissk ner, of Food Safety Telangana Directorate of lnstitute of Preventive Mer icine Public Health Labs and Food Health Administration Narayanaguda Hyderabad 500029
t1
Petition under Article 226 oI lhe Constitution of lndiapraying thatin the circumstances stated in the affidavit filed therewith, the High Court may bepleased to issue a writ, order or direction, moreparticularly one in the nature of Writ of Mandamus declaring the notification No 501/FSS1/2020 dated0610112020issued by the 3rd respondent as being illegal arbitrary unconstitutional ultravires the cigarettes and other tobaccoproducts prohibition of advertisementand regulation of Trade and Commerce Production Supply of DistributionAct 2003in violation of principlesof naturaljustice and in violation of articles 14,19 and21 of the constitutionof lndia and consequently to set aside the same and directthe respondents not to interfere in any manner with the trade and businesscarried out in the productsthat fall within the said notification by thepetitioner its personnel and the perso ns/entities to whom thoseprod ucts
lA NO: 1 OF 2020
Petition under Section 151 CPCprayingthat in the circumstancesstated in the affidavit filed in support of thepetition, the High Court may be pleased to direct the respondents not to interfereand not take coercive steps in any mannerwith the trade and business carried outin the products that fall within the impugned notification i.e. notification No 501/FSS-1/2020, dated06101l202Oby the petitioner' theirpersonnel and thepersons/entities to whomthey supplythose products pending disposal of the writpetition
Counset for the Petitioner: SRI BALAMURALI Y
Counsel for RespondentNos. 1, 3 & 9: GP FORMEDICAL' HEALTH & FAMILY WELFARE
Counsel for Respondent Nos.2,4, 5 & 10: GP FOR HOME
Counsel for RespondentNos. 6 & 8: GP FORCOMMERCIAL TAXES
Counsel for RespondentNo. 7: SRI N. RAJESHWAR RAO ASSISTANT SOLICITORGENERAL
WP NO: 23313 OF 2020
Between:
Gangishetty Veer Kumar,,S/o Gangishetty Eshwaraiah,Aged about 39 yea1s. oiJ"ausin6.s H.No.3-34,Gokul Nagar, Patancheru, Sangareddy District5g2 319
"PETlrloNER
AND
J. ir,E-Commi'ssioner of F6oci Safetv,Telangana' Directorate of lnstitute of prelentive Medicine, Public Heal[h Labs 5nd Food (Health) Administration, Narayanaguda, Hyderabad-500029'
tl
...RE'P.NDENTS
Petition under Article 226 ol lhe Constitution of lndiapraying that in the circumstances stated n the affidavit filed therewith, the High Courtmay be pleased to issue an appropriatr writ, order or directionparticularly one in thenature WRIT OF MANDAMUS, declari rg the notification No.501 /FSS-1/2020, dated06.01.2020 issued by the 3rd res rondent as being illegal arbitrary, unconstitutional, ultra vires the cigarettes and rther tobaccoproducts (prohibition of advertisement and regulation of Trade ar d Commerce, Production, Supply of Distribution) Act, 2003 in violation of principles of naturaljustice and in violation of articles 14, 19 and 21 of the constitution of ln iia and consequently to set aside the same and direct the respondents not to inl:rfere in any manner with the trade and business carried outin the products that fall within the said notification by thepetitioners, theirpersonnel and the persons/entiti )s to whom they supply those products
lA NO: 1 OF 2020
Petition under iection 151 CPC praying that in the circumstances stated in the affidavit filed in s rpport of thepetition, the High Court may bepleased to direct the respondent No.S and 10 to return the tobacco material, vehicle and mobile phones seized in c:nnection with the crime No.234l2020, dated 10-12-2020, P-S.Zaheerabad towr and not to interfere and not take coercive steps in any manner with the trade and bl;iness carried out in the products that fall within the impugned notification (i.e.notifi,ation No.501 / FSS -1 12020, daled 06-01-2020) by the petitioners, their per;onnel and the persons/entities to whom they supply those products pending disl osal of the writ petition
(Crime No.24312020 ns been corrected as Crime No.23412020 as per court order dated 05/0'1/2021 vid; lA No.1/2021)
lA NO: 2 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the impugr ed notification (i.e. notification No.501/ FSS-'1/2020, dated 06-01-2020) pending disposal of the writ petition
Counsel forthe Petil oner: SRI ANUGU SANJEEVA REDDY
Counsel for Respon, lent Nos. 1, 3 & 9: GP FOR MEDICAL, HEALTH &
FAMILY WELFARE
13
Counsel for Respondent Nos.2,4, 5 & 10: GP FOR HOME
Counsel for Respondent Nos. 6 & 8: GP FOR COMMERCIAL TAXES
Counsel for Respondent No. 7: SRI N. RAJESHWAR RAO
ASSISTANT SOLIGITOR GENERAL
WP NO:23356 0F 2020
Between:
AND
Petition under Article 226 of lhe Constitution of lndiapraying that in the circumstances stated in the affidavit filed therewith, the High Court may bepleased topass an order or orders, direction or issue a writ moreparticularly onein the name of writ of Mandamus, Declaring the lmpugned Notification issued by theRespondent No.2 herein vide Notification No.501/FSS-112020. dated.06-01-2020 imposing prohibition of sale of certain tobacco and pan masala products under section 30 of Food Safety and Standards Act 2006 and Food Safety and Standards(Prohibition and Restriction on sales) Regulation 2011, is illegal, arbitrary,without jurisdiction and violative of Article 14. 19(g) 21 and 301 of Constitutionof lndia and against the mandatoryprovisions of COTPA 2003 and set asidethe saidNotification.and consequently direct the respondent No.6 hereinin registeringthe F.l.R.No. 31 '1 of 2O2O dated. 16-11-2020 and seized thepermissibletobacco and pan masala products worth Rs.30,000/- from the shop of the petitioner No.-1 herein i.e. A-1Pan Shop, Towli Chowki. Hyderabad, is illegal, and direct therespondent No.6 to return the said seized material in connection with saidF.l.R.No. 31'1 of 2020 to the petitioner No.1, and further direct the respondents that not to interfere with thetrade and business of theproducts that fall within theNotification No.50F/FSS-1/2020 dated. 6-1-2020 by thepetitioners and to thepersons to whomthe products are sold,
lA NO: 1 OF 2020
Petition under Section 151 CPCpraying that in thecircumstancesstated in the affidavit filed in support of thepetition, the High court may be pleased to direct
14
the respondents hereir not to interfere with smoothful, lawful business activities and sale of tobacco produ;ts permissible under the provisions of corpA 2003 by the petitioner No.1 A-1 PE'r shop. Tolichowki. Hyderabad by suspending the lmpugned Notification issued by the Respondent No.2 herein vide Notification No.501/FSS- | 12020, daled.06-01-2c 20, pending disposal of main w.p. in flre interest of Justice.
lA NO: 2 2020
Petition under sectior'1 s1 cpc praying that in the circumstances stated in the affidavit filed in suppo tof the petition, the High court may be pleased to direct the respondent N.0.6 here n to return the tobacco products worth Rs.30,000/- seized in connection with F.l.F,No. 311 of 2020 dated. 16-11-2020 of police station, Golconda, Hyderabad city, Hyderabad, to the petitioner No..1 herein. pending disposal of main WP ir the interest of Justice.
Counsel for the Petiti< ners: SRI S. CHANDRASEKHAR
Counsel for Responde nt Nos. 1, 3 & 6: Gp FOR HOME
Counsel for Responde nt No. 2: Gp FOR MED|CAL, HEALTH & FAMILY WELFARE
Counsel for Responde nt No. 4: cp FOR COMMERCIAL TAXES
Counsel for Responde 1t No. S: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
WP NO: 23709 OF 202r
Between:
M/s.Mr.MART. F eoistered- office at 1st Froor, Shangrira praza, Road No.2, .g?nj?faHiils, Hy, e,iabaO,hepiei"-r,"-o;'y itfFroprietor Smt.Bharathi M Rathod, Wo.Manikanta F athod,,aqeci augrr z+ ytJ[, o6..-er.in;;i ny".t.r.rt.i:r-+2, ssr rndustries, c handriki-Roao, curmitryiiinuraD, vaogiib-iiiri.i]" ''" '
AND ...PEITIONER
:.;;.r..
Petition under A ticre 226 of the constitution of rndia praying that in the circumstances stated in the affidavit fired therewith, the High court may be preased
I5
to pass an order/orders, or issue any direction / directions or appropriate writ more particularly in the nature of writ of Mandamus declaring the impugned Notification issued by the 3rd respondent vide Notification No.501/FSS-1/2020, dated 06.01.2020 imposing prohibition of sale of certain Tobacco and Pan Masala Products under Section 30 of Food Safety and Standards Act, 2006 and Food Safety and Standards (Prohibition and Restriction on Sales) Regulation 201 1, as illegal, arbitrary and violative of Article 14, 21 , 19 (g) and 301 of Constitution of lndia and against the mandatory provisions of COTPA 2003 vide Section 3 (p) and further declare that the 2nd respondent have no authority andjurisdiction to issue the said notification dated 06.01.2020 against the mandatory provisions of COTPA 2003 and consequently direct the respondents herein not to interfere and harass, the smoothful, lawful business activities of distributing, storing, sale and transportation of tobacco products like Pan Masaia products permissible under theprovisions of COTPA 2003 by the petitioner in the name and style of lril/s.Mr.Mart situated at 1st Floor, Shangrila Plaza, Road No.2, Banjara Hills, Hyderabad
lA NO: 1 OF 2020
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of thepetition, the High Court may bepleased to direct the respondents herein not to interfere and harass the smoothful, lawful business activities of distributing, storing, sale and transportation of tobaccoproducts like Pan Masala products etc., permissible under theprovisions of COTPA 2003 by the petitioner in the name and style of M/s.Mr.tVlart situated at 1st Floor, Shangrila Plaza, Road No.2, Banjara Hills, Hyderabad in her firm, branches andgodowns at Hyderabad supplied by the M/s.Mark & Co., Lakshmi lndustries Campus, Chailakere Bangalore Highway, Chitradurga District Karnataka State, by suspending the impugned notification issued by the 2nd respondent herein vide Notification No.501/FSS-1/2020, dated 06.01.2020,pending disposal of the Writ Petition Counsel for the Petitioner: SRI SOMAVARAPU SATYANARAYANA
Counsel for Respondent Nos.'1, 3 & 11: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for Respondent Nos. 2 & 4 to 7: GP FOR HOME
Counsel for Respondent Nos. 8 & 10: GP FOR COMMERCIAL TAXES
Counsel for Respondent No. 9: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
The Court made the following: COMMON ORDER
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t
THE HON'BLI THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND
TH HON'BLE SRI JUSTICE N. TUKARAMJI
WBIT PETII .oN Nos. 2ot!Q;! I !lp;!!!83., 2 L7 46. 2 L7 7 7, 2L902 2L9 87 22L27 22174 2227r 23313 23356 and 23709 of 2O2O
COMMON ORE ERi Per the Han'ble the Chief A$ace Sottsh Cllati& e Shernla)
Learnec counsel for the parties have informed this Court that t} e controversy involved in the present cases has already been adjudicated on account of al order passed by th s Court in W.P.No. 19928 of 2021 ancl batch, dated 30. i 1.1 1021.
The ope:ative portion of the aforesaid order reads as under:-
"(55) Th, Division Bench of the Bombay High Court has deal . with ail the issues, similar to the issues raised in the present writ petitions. In the considered opinion r f this Court, the question of interference by this Cou t in respect of Notification which is bound to save hu nan lives cannot be faulted with in any manner. The entire globe is facing COVID- 19 pandemi : and the death rate on account of gutka/pan masala : nd other tobacco products is more than the deaths u rich are taking place on account of pandemic. The pec c1e are suffering from cancer and other diseases and the restriction imposed is in larger public interest Lnd is a reasonable restriction and in no way offends lee right to carry on trade guaranteed under the Cons -itution.
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(56) In the light of the aforesaid, this Court doesnot Iind any reason to interfere with theimpugned Notification and resultantly, the writ petitionsare dismissed. Miscellaneous petitions, if anypending, shall stand dismissed. There shall be no order as to costs."
In the light of the aforesaid, thepresent writ petitions also stand dismissed. Thejudgment delivered in W.P.No.19928 of 2O2l and batch shallbe applicable mutatis rru-Ltandis in thepresent casesalso'
Let a copy of the orderpassed by thisCourt in W.P.No. L9928 of 2O2l and batch,dated 30.11.2021, be kept on record in the presentcases.
The miscellaneous applicationspending in these writ petitions, if any, shall standclosed. Thereshall be
no order as to costs.
SD/- B.SATYAVATHI ASSISTANT RE ISTRAR //TRUE COPY//
SECTION OFFICER
To,
14.Two CD Copies
'15. One Spare CoPY
MBC
At'l-L
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HIGH COURT
DATED: 0811212021
COMMON ORDER
WP NOS: i 0850, 21159, 21283, 21746, 21TTT, 2,lg}2, 21gg', , 22127, 22174, 22271, 23313, 23356 AND 23709 0F 2020
HE SIA'i
( q
') 2 S DEC?f;?l
I
, . .,.,
DISMISSING THE WRIT PETITIONS
WITHOUT COSTS
.^+
tl\
THE HON'BLE THE CHIEF'JU STICE SATISH CHANDRA SHARMA AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
| wP.Nos. 19928,2OO22,21277, 21314, 21344,2tSS2,21562,21525,2tS4S, |
|---|
| 21s47,215s5,21569,21831,21a86,2 1899,219 14,2193s, 22297,223 10, |
| 22322, 22325, 22330, 22333, 22349, 22369,22376,223A8,22390,22392, |
| 22416. 22423, 22425, 22432, 22447,224aO,224a2, 2249a, 22507, 22560, |
| 22569,22s73,22s86,2263s,22708, 22728, 22732, 22762, 22764, 2278s, |
| 22408, 22a46,22a'O,22A6a,22a95, 22a97, 22a9a, 22930,2294 1,22969, |
| 22983,23OOO,23035,23058,23069,23128,23132,23182,23186,23209, |
| 23257, 23284,2s2a6,23292,23321,23350, 233s8, 23476, 23490,23s2A, |
| 23599, 23629, 23633,238O2,24OAA,24273,242A5,24467, 24475,24591, |
| 24698,24927, 24929, 25049, 25073, 25074,25Oa3,25714,25124,25131, |
| 25203, 25206, 25267,25272,25305,25472,25558,25702,25713,2s74O, |
| 25a98, 25905, 25933,259A4,26196,2636A,26467,26570,2667a, 2673A, |
| 26972, 27044, 27138, 27279, 27364, 27406, 27459,2A1OOdad.28Zo4of 2021 |
COMMON ORDERa Per the Hon'ble the ChieJ Justice Satish Chandla Sharma)
(1) Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court.
(2) Facts of the Writ Petition No.19928 of 2O2l are narrated hereunder.
The petitioner before this Court, which is a proprietorship firm engaged in the business of wholesale distribution and retailing of chewing/chewable tobacco products and cigarettes, has filed this present writ petition being aggrieved by the Notification No.505/FSSll202l, dated 06.01.2021 issued by the respondent No.3/Commissioner of Food Safety, Telangana in exercise of powers conferred under Section 30 of the Food Safety and Standards Act, 2006 (hereinafter called 'FSS Act
)
2006). The cetitionerhas challengedthe impugned Notification o r theground that itis illega-I, arbitrary, unconstitutiotol, ultrauires the Cigarettes and Other Tobacco Pro, lucts(Prohibition ofAdvertisementand Regulation of Trade andCommerce, Production, Supply and Distribu'ion) Act,2O03 (hereinafterca-lled,'COTPA 2003) and is in violationof principles of natural justice and is also i:L violationof Articles14 and 19(t)(g) of the Constitution, rf India.
(3) The lea: ned counsel for thepetitioner stated before this Court hat thepetitioner's businessisbroadly concerned wi -h pure tobacco andscented tobacco,which are markete< under the brandnannes Phoolchap (pure tobacco) and VI Tobacco(scented tobacco).
(4) In the,rther connected matters,the petitionersare carrying on he business eitherof wholesale distribution or sale of pa r masala mixed with tobaccoand other allied products. Tl e petitioners' contention is thatthe COTPA 2003 is a :entral legislation dealing exclusivelywith tobacco ind rstry, traceable to Entry 52, List I ofthe Seventh Scl .edule of the Constitution ofIndia and it provides a( omprehensive legislation r,t'hich governs the law on tobar co products and is occupying the field. It has
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been stated that the COTPA 2OO3 deals w-ith tobacco products and therefore, ttre products mentioned in the I impugned Notilication issued under FSS Act 2006 ere covered in the list of products specified in the Schedule of COTPA 2003.
(5) The petitioners further contended that the legislative policy in respect of tobacco products as evident from the provisions of COTPA 2003 is not to impose a complete ban on tobacco products and it certainly regulates and imposes restrictions on the trade and business with respect to advertising the products, smoking in public places and pictorial warnings on the ill-effects of consuming tobacco on packaging material of those products etc. It has been further contended that the legislative policy is to permit trade and business in tobacco products subject to reasonable restrictions. It has been further contended that the country's taxing statutes also permit trade and business in tobaccoproducts and tax is levied under the Centrai Goods and ServicesTax Act, 2017. Meaning thereby, the statutedoes not prohibit trade and business in tobacco products at all.
(6) The petitioners further contended that thePSS Act 2006 is an Act that regulatesfood standards and the
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production, d. stribution and consumption of food. It is a general law t hat covers all aspects pertaining to food safety, tracea lle to Entry 18 of List III of the Seventh Schedule of t re Constitution of India and the FSS Act 2006 does nc t deline 'tobacco products, nor it provides any power fo prohibition in the trade and business of such products. It has been further contended that COTPA 2003 being a special law pertaining to subject matter of 'tobacco prod rcts' and 'tobacco industry, that overrides the FSS Act 1006 which is a general law pertaining to 'food produc.s and food safet5r, and therefore, the provisions of the FSS Act 2006 cannot impinge or encroach upc n any subject matter, that is exclusively governed by tl e COTPA 2003.
(7) The pe:itioners further contended that the Regulations n ade under the FSS Act 2006 cannot travel beyond the fir ld covered by the FSS Act 2006 and they cannot encro€ ch upon the areas covered by the COTPA 2003. It has teen further contended that in exercise of powers confered under Section 92 of the FSS Act 2006, the Food San ty and Standards Authority of India has issued Regula.ions titled the Food Safety and Standards (Prohibition ar.d Restrictions on Sales) Regulations, 2011 (hereinafter cr lled,'Food Safety Regulations, 2011,). The
5
Regulation 2.3.4 of the said Regulations provides that tobacco and nicotine sha_ll not be used as ingredients in any food stuffs and that the tobacco per se is not treated as food and therefore, the FSS Act 2006 nor the Food Safety Regulations, 2OLl framed thereunder empowers the Authorities to impose a ban in respect of trade and business of tobacco.
(8) The petitioners further contended that the impugned Notification is ultra ulres the FSS Act 2006 and is also contrary to COTPA 2003. It has been further contended that under the Food Safety and Standards (Food products Standards and Food Additives) Regulations, 2Oll,,pan masala' is defined under Regulation 2.11.5 as the food generally taken as such or in conjunction with pan'. It lists out the substances that pan masala should be free from. The treatment of pure pan masala as food under the Regulations only implies that except to the extent specifically covered under the special law COTPA 2003, the provisions of the FSS Act 2O06 and Rules/Regulations made thereunder govern pan masala. Insofar as ttre pan masa-la in combination with tobacco finds place in the Schedule of COTPA 2003 and the said product is outside the reach of the provisions of the FSS Act 2006. It has been further contended that the tobacco products
6
mentioned in the impugnedNotilication are exclusively regulated by t re COTPA 2003, theyare not all coveredby the FSS 6q1 )rtO6 and therefore, the impugnedNotification is ultra uires t. re FSS Act 2006 and theCOTPA2003.
(9) The pe titioners further contended that the respondent l,r.3/Commissioner of FoodSafet5r,Telangana 1S jurisdictic na1ly incompetent to issue a.ny. such Notification ir exercise of powers conferred underSection 30(2) of the I SS Act 2006 as the products mentionedin the Notificatir n are not covered by theFSS Act 2006and they are cov :red under the Schedule appencled tothe COTPA 2003 It has been lurther contended thatthe impugned Nc tification deprives the petitioners and other connected p( rsons of their valuable rightsguaranteed under Article t9(1)(g) of the Constitution of India.
(10) The pet tioners further contended that earlier also, such Notifice Lions were issued by the State Government and this Cot rt has quashed the criminal proceeclings by passing a der ailed Judgment in Criminal Petition No.373 1 of 2018 and catch, vide Judgment dated 27.Oa.2O18 and therefore, no criminal proceedings can be initiated against the petitione: s and against other persons who are involved in the trade of pan masala/tobacco. Reference has also
7
been made to other Judgments delivered by the High Court of Andhra Pradesh in Criminal Petition No.542 1 of 2019 and batch decided on 18.12.2019. The petitioners stated that apprehending criminal action on the basis of the Notification which is void ab initio, the petitioners approached this Court by filing a writ petition under Article 226 of the Constitution of India seeking protection of the fundamenta-l rights guaranteed under Articles 14, 19(1)(9) and 2l of the Constitution of India. It has been further contended that in earlier years, similar Notifications were issued by the State Government and the interim orders have been granted in all matters. However, as the validity of the Notifications was only fora period of one year, the Notifications expired by afflux of time.
(11) The petitioners have raised variousgroundsbefore this Court for setting aside the impugnedNotification.
(12) It has been contended by the learned counsel for the petitioners that the COTPA 2003 is a comprehensivecode and a special law dealing with all aspectsof the tobacco products and tobacco industry, whereas theFSS Act 2006 deals with the broad area offood safety and standards. The FSS Act 20O6 even thoughenactedsubsequent to the
8
COTPA 2003( oes not either expressly or impliedlyseek to override the C fTPA 2003. Therefore, the application ofthe well settled pr.nciple that special law prevails overgeneral 1aw, even if t he general law is subsequent, the COTPA 2003 will pre' ail over the FSS Act 2006 when it comes to regulation of'obacco products. Thus, the power conferred under Sectior 3O(2) of the FSS Act 2006 does not extend to prohibit I he tobacco products, which is the sole prerogative of the COTPA 2O03.
(i3) It has been further contended that the Rules, Regulations e nd Notifications should not only conform to the parent st r.tute but also shall not be contrary to any other statute since subordinate legislation cannot violate a plenary legisl rtion. The impugned Notification in banning trade or br siness in tobacco products, imposes a prohibition vhich is beyond the limited extent of prohibition ir rposed under Section 6 of the COTITA 2003 (i.e., sale to tr ersons under 18 years of age and in arr area within 100 yr rds of an educational institution) .
(14) It has b:en further contended that rf anv prohibition on the trade or business of tobacco products is to be imposed in a ldition to what is covered under Section 6 of the COTPA 2003, the sarne can be done onl1' by an
9
amendment to the COTPA 2003. However, by issuing the impugned Notification, the respondent No.3/the Commissioner of Food Sa-fety has added a new head of prohibition which is otherwise absent in the COTPA 2003, which has been done under the garb of exercising power under Section 30 of the FSS Act 2006. It is nothing but doing an act indirectly which is not permissible directly and Regulation 2.3.4 of the Food Safety Regulations,2Oll does not empower the respondent No.3/Commissioner of Food Safety to ban the products covered under the COTPA 2OO3. It has been further contended that the FSS Act 2006 cannot encroach upon the field covered by the COTPA 2003 and therefore, the Regulations made under the FSS Act 2006 cannot do the sarne, hence the prohibition under Regulation 2.3.4 cen extend to any food which is consumed, except the products specifically covered under the COTPA 2003. It has been further argued that the exercise of power under Section 30 of the FSS Act 2006 and the Regulation 2.3.4 of the Food Safety Regulations, 2Ol1 amounts to colourable exercise of power, which is impermissible. It has been further contended that Regulation 2.3.4 of the FoodSafety Regulations, 2O1l does not cover chewingtobacco.The said Regulation makes a dichotomybetween 'tobacco' on
l0
one hand anc 'food products' on the other hand,which were implies that :hewing/chewable tobaccoproducts never intendr d to be covered under the Food Safety Regulations, i.Ol).. Thus, by no stretch of imaginatj.on, the impugned No.ification covers chewing/chewable tobacco products. The issuance of the impugned Notification is a complete non application of mind and the same violates the Article 14 of the Constitution of India.
(15) The pet tioners further contended that since the impugned No ification is ultra uires t}:^e FSS Act 2006 and the COTPA 2OO3, the restriction imposed on the petitioners' r.ghts to carry on trade and business in chewing/che'rable tobacco products has no lega1 basis. Meaning the :eby, the prohibition imposed is r,vithout backing of lr.w as mandated under Article i9(6) of the Constitution of India. Thus, the prohibition imposed by virtue of the impugned Notification is in violation of the petitioners' I undamental right to carry out trade and business un ler Article 19(1)(9) of the Constitution of India. The pt titioners further contended that Section 6 of the COTPA :1003 imposes a complete ban in respect of extremely vu nerable or important subjects (i.e., to protect individuals r nder the age of 18 years and students and protect indiv duals from the harm of passive smoking), it
1l
imposes less onerous restrictions on the rest of the subjects limited to the manner in which tobacco products are advertised. The very fact that the respondent No.S/Union of India enacted the COTpA 2003 where prohibition is not imposed but restrictions are imposed on various facets of the trade in tobacco implies that there are less intrusive measures than complete prohibition. Unmindful of this well thought out legislative scheme and intent, the respondent No.3/the Commissioner of Food Safety has imposed a wholesale ban on trade/business in tobacco products. This does not stand the test of proportionality and as such, it is not a reasonable restriction \Mithin the meaning of Article 19(6) of the Constitution of India.
(16) The petitioners further contended that by virtue of the impugned Notification, the petitioners and other connected persons face an imminent threat of criminal proceedings being initiated by the Authorities concerned and are being arrested as is obvious from the various cases foisted in the earlier years against them and other persons under the garb of implementation of similar Notifications. Even the entities and persons to whom the petitioners supply its products also face a threat. This is a direct infringement on the right to liberty guaranteed
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under Artic e 2t of theConstitution of India'The petitioners f rrther contendedthat a completeban on trade and br sinessadversely affects the livelihood of the petitioners a:.d other connectedpersons.
(17) The pettioners furthercontendedthat the impugned Notification v as issuedwithout asking for the views of the persons engeged in the tradeor business of the tobacco products an< | it is mandatoryto grant opportunityof hearing to tl Le affectedstakeholders before passing an administrativ : order.Therefore,the issuance of the impugned Nc tificationviolates the principlesof natural justice. The petitioners further contendedthat Section 31 of the FSS Act 2006mandatesevery food business operator to o:tain alicense, such a requirement. is not mad.e applica:le for thepersonscarryingon business in the products:overed under the COTPA 2003' In fact, the same was clarifiedby the respondent No'6/FoodSafety and Standarr I Authorityof India by its letter dated 10.i0.2012 tca query raised by a personengaged in the trade of suchproductsin Delhi' Similar clarificationhas also beenis suedby the Food Safety Authority of Uttarakhand. thepetitioners further contendedthat while the FoodS rfetyRegulations ,2Ol1 provide safety standards wit:rrespect to every type of food extending
13
even to pan masala, they are absolutely silent in respect of chewing/chewable tobacco products in which the petitioners are engaged in. No standards for labelling or packaging chewing tobacco products are set out. Thus, it 1S crystal clear that those products were never contemplated within the meaning of 'food'under the FSS Act 2006. Thus, the Regulation making Authority under the FSS Act 2006 itself does not treat the above products as falling within the meaning of 'food'.
(18) The petitioners further contended that interpreting Section 30(2)(a) of the FSS Act 2006, the power to issue a Notification such as the impugned Notification would lead to a paradoxical situation where the respondent No.3/the Commissioner of Food Safety can issue a Notilication in one a-rea of the State and not in another, with respect to tobacco products, which is otherwise permitted. Similarly, the Commissioner of Food Safety of one State may issue a Notification banning tobacco products while that of another State may not and this situation exists in case of chewing/chewable tobacco products. The State of Telangana has issued the impugned Notification extending the ban to chewing tobacco and pure tobacco products, whereas the State of Karnataka and several other States have not issued similar Notifications. The petitioners
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further cont,,nded that thenon-obstante clause under Section 89r,f the FSSAct 2006 does not enable the authorities rnder the saidstatute tooverride the provisions of the COTPA 2003, sinceit is settled 1aw that even a non-c bstante clausein a subsequent general law cannot overri le aprior speciallaw. The petitioners further contended th rt theprohibition that can be imposedunder Section 30(2 (a) of theFSS Act 2006 can be for a maximum pe'iod of oneyear. This itself reflects that the power therei. r was given to beexercised under some emergent ex raordinarycircumstancesand not ina routine man oer. However,the respondentNo'3/the Commissione of FoodSafety, Telangana by repeatedly issuing those Notificationsyear after year and ensuring that a produ, t is banned inperpetually,is nothingbut abusing thep cwer conferredon it and it also amounts to colourable ext rciseof Power.
(19) The peti ioners havefurther contended that various writ petitions havebeen decidedby different High Courts and the matt:r ispending before the Honble Supreme Court and as the Hon'bleSupreme Courtis seizecl of the issue, thepre;entpetitions be decided after Judgmentis delivered by tle Hon'ble Supreme Court' However,the fact remains that .n respectof the impugned Notif,tcation, no
15
writ petition is pending before the Honble Supreme Court and no order has been brought to the notice of this Court restraining this Court to decide the issue. On the contra,ry, there is an order passed by the Honble Supreme Court in S.L.P.Nos.4879 and 5743 of 2027, dated ll.O5.2o2l , directing this Court to decide the matters at an early date.
(20) The learned counsel for the petitioners have placed reliance upon the following Judgments in respect of the contentions canvassed on behalf of the petitioners in the present petition as well as other connected matters. Ch.Tika Ramji v. State of U.P.l, State of Madras v. Gannon Dunkerley2, Calcutta Gas Company Limited v. State of West Bengala, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akolaa, Kannan Devan Hills Produce Company Limited v. State of Keralas, Shah Ashu Jaiwant v. State of Maharashtra6, Ishwari Khetan Sugar Mills (Private) Limited v. State of U.p.7, D.C.Wadhwa v. State of Bihars, Collector of Central Excise, Bombay-I v. M/s.Parle Exportse, India Cement Limited v. State of Tamil Nadulo, Synthetics & Chemicals Limlted v, State of
I t956 scR 3q3 'tgsg scn329 r 1962 Supp (3) SCR I o lreoz; I scR zze t (tqz:) 2 scc 2t8
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'(rggo)e scc t:o 81reaz; r scc:za '(rgag)I scc:+s ro 11990; 1 scc 12
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U.P.11, State rf AndhraPradeshv. McDowell& Co.,12, SIEL Limited v. Unj rn ofIndia13,ITC Limited v. Agricultural Produce Market Comr itteera,S.Samuel, M.D., HarrisonsMalayalamv' Union of Indie15, Gulati& Co., v. Commissionerof SalesTax16, and Dharampr ISatyapalLimited v. State of AssamlT'
(2 1) The res )ondentNo.3/Commissionerof FoodSafety, Telangana he s fileda detailed counter affidavit and it has been stated thatthe petitionersare engaged inthe wholesale bu;inessof the products like chewing tobacco' The products containpure tobacco,flavouredtobacco and scented toba:co. Ithas been stated that the chewing tobaccoprod lctsflavoured with some spices suchas cardamom, rr enthol,clove etc., includesscented tobacco' This also inc. udesedible perfumes and therefore,as per the FSS Act .1006,the spices and other edible perfumes added to the :hewingtobacco comes under the definition of 'food'.It ha; beenstatedthat the law of the land is very clear and theFSS Act 2006 read with Regulations framed thereunderp: ovides that no food' product shall contain tobacco andnicotine as ingredient' The stand of the respondentNt .3 is that the petitioner whileobtaining GST
'r( tggo)t sccto9 ''(t990)3 scc lo9 'r(r9gs)z sccz6
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I
number and GST certificate has stated that he is doing business to sell unmanufactured tobacco, refuse tobacco, not stem or strippe, flue cured Virginia tobacco, but the petitioner is selling chewing tobacco products flavoured with some spices, such as cardamom, menthol, clove etc., scented tobacco comprising edible perfumes. In the other writ petitions, the petitioners are dealing with gutka or pan masala, which certainly contain tobacco.
(22) lt has been further stated that the Honble Supreme Court in the case of Ankur Gutka v. Indian Asthma Care Society (SLP No.16308 of 2OO7, vide order dated 07.12.2O1O) has directed the learned Solicitor General of India to instruct concerned Ministries to approach National Institute of Public Hea_tth to undertake a comprehensive analysis and study of contents of gutka, tobacco, pan masala and similar articles manufactured in the country and harmful affects on human health. The Ministry of Health and Family Welfare, in the light of the 1n directions issued by the Honble Supreme Court, consuitation with the Nationa-l Institute of Hea-tth and Family Welfare (NIHFW) constituted a Committee of Technical Experts and submitted a Report on the contents of gutka, tobacco, pan masala and other similar articles manufactured in the country as well as in respect of
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Areca-Nut or Betel Quidor Supari.The Report includes the harmful affecton humanbody. As per the Report submitted t y NIHFW,the term 'smokelesstobacco' includes la'ge varietyofcommercially ornon- commercially availableproducts and mixtures that contain tobar co asthe principal constituent and are used either orally throughthe mouth) or nasally (through the nose) withou combustion'As per the Report, threeforms of smokeless tobacco,which are commonlyused in India are as under:'
(23) The resl rondent No.3has furtherstated that as per the NIHFW I [ealthReport,there are as many as 3095 chemical conponents in smokeless tobaccoproductsand out of them, 28are proven carcinogen' The major and most abundt ntgroup of carcinogens is the tobacco - specific N-nil:osamines(TSNA) and no safe level of this chemical has been ascribedso far. The other carcinogens reportedlypr )sent insmokeless tobacco include volatile N-nitrosamin)s, certain volatile aldehydes, poly-nuclear
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aromatic hydrocarbons, certain lactones, urethane, metals and radioactive polonium. The Report also reveals that high level of Nitrosamines is present in the branded Indian smokeless tobacco products. The Laboratory Reports also establish that the smokeless tobacco available in India contains substantive quantities of two potent carcinogens (nitrosamines and benzo-a-pyrene) and heavy metals. The presence of high levels of heavy metals (Lead, Cadmium, Chromium, Arsenic and Nickel) is also reported. The Report establishes that the tobacco and other tobacco related products cause oral, esophageal, stomach, pancreatic, throat and renal cancers. It also causes periodontal diseases, hypertension and cardiovascular diseases, nervous system diseases, metabolic abnormalities. It also affects reproductive organs in men and women and is also responsible for preterm and low birth babies. The Expert Committee in its Report dated 23.O9.1997 recommended prohibition of consumption of pan masala/gutka/chewing tobacco as the ingredient in any food items as they are injurious to public health and the Central Committee of Food Standards in its Meeting dated 26th and 27th of November, 1997 unanimously resolved to ban use of chewing tobacco in pan masala/gutka. It has been further stated that
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Global Auc it Tobacco Survey of India is the Global Standard fo' systematic monitoring of audit tobacco use (smoking ar d smokeless) in the country and th.e survey conducted n the year 2016-17 by the Internationa_l Institute for Population Sciences (IIPS), Mumbai reveais that almost 27 crores of adults in India used tobacco in some form o' the other. Among them, 20 crores use only smokeless to )acco products.
(24l, lt has t een brought to the notice of this Court that tobacco is a prominent risk factor for 6 to 8 leading causes of death and almost 40% of the Non Communicab e Diseases (NCD) including ca_ncers, cardiovascula- diseases and lung disorders are directly attributable t r tobacco use. The number of deaths every year in Indie which is attributable to tobacco use is almost 14 lalhs and 50% of cancers in males and 2Oo/o cancers in fer rales can be directly attributed to tobacco use (ICMR lltudy). According to the World Health Organization (WHO) Global Report on "Tobacco Attributable M rrtalit5r, 2012",7o/o of. a7l deaths (for ages 30 and over) in It.dia are attributable to tobacco use. It has been further t rought to the notice of this Court that a study titled 'Economic Burden of Tobacco Related Diseases in Inc ia" (2}l4l commissioned by the Ministry of
2l
a
Health and Family Welfare, the total econornic costs attributable to tobacco use from all diseases in India in the year 2011 for persons aged 35 to 69 years amounted to Rs.1,O4,5OOl- crores. The estimated cost was 1.l6ok of the GDP and was l2c'/o more than the combined state and central government expenditures on health in 2Ol1-12.
(25) The respondent No.3 further stated that the FSS Act 2006 is enacted with the objective to consolidate the laws relating to food and for laying down standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availabitity of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. The respondent No.3 has dealt with the salient provisions of the FSS Act 2006 and the definition of the word '/ood'is defined under Section 3fi) of the FSS Act 2006. It has been further stated that the Gutkas including tobacco and tobacco certainly fall within the definition of 'food'as it is intended for human consumption. It has been further stated that the Honble Supreme Court in the case of State of Tamil Nadu v. R.Krishnamurthyrs 5." held that a product be classified as 'food' in case it is used for human consumption or in preparing human food. The respondent
rs 1to8o; t scc t6z
22
No.3 has fur herbrought to the notice of this Court that the Hon'ble SupremeCourt in the case of GodawatPan Masala Produc:s I.P., Limlted v. Union of Indiale has held that gutka, pan n.asalaand supari are food articies' Further' the Allahaba I HighCourt in the case of ManoharLal v' State of U.P.,(lriminal Revision No.318 of 1982\ and in the case of Khedan Lal and Sonsv. Stateof U'P',2orelying on the decision oft :reHonbleSupreme Court in the case of R.Krishnamurr hy(supra), has held that'cheuingtobacco'is an article of frod.
(26) The res )ondentNo.3 has furtherstated that the Food Safety I egulations ,2}ltwas notified on 01'08'2011 in exercise ofpowersconferredunder Section 92 read with Section 26 o'.tine FSS Act 2006 and Regulation 2'3'4 of the FoodSa ety Regulations,2}llprohibit the use of tobacco andnicotine in all food products' It has been further statec thatthe FSS Act 2O06 also defines the word 'ingredient'wd'foodadditiue'andtobaccoiscertainlyan additive, whi:his commonly sold under various brand nalnes.
(271 Tine res rondentNo.3 has brought to the notice of this Courtthat theHon'ble Supreme Courtln
te lzooa; z scc 6E 20 1980 crilJ 1346
S.L.P.No.16308 of 2OO7, vide order dated 03.04.2013 directed the Secretaries, Health Department of all States/Union Territories to file affidavits of totai compliance of the ban imposed on manufacturing and sale of gutka and pan masala with tobacco and/or nicotine. It has been further stated that in the light of the aforesaid order passed by the Honble Supreme Court, all the State Governments/Union Territories have issued necessary orders/Notifications under Regulation 2.3.4 or under Section 30 of the FSS Act 2006 banning the sale of gutka and pan masala (containing tobacco or nicotine).
(28) The respondent No.3 has further stated that in order, to circumvent the ban on the sale of gutka, the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premises, so that consumers can buy the part masa.la and flavoured chewing tobacco and mix them both and consume the same. It has been further stated that instead of earlier 'ready to consume mixes', chewing tobacco companies are selling gutka in twin packs to be mixed as one. Reference has also been drawn towards the order passed by'the Honble Supreme Court in the case of Central Areca-nut Marketing Corporation v. Union of India
21
(Transfer Care Civil No.1 of2010,dated23'09'2016l directing the Authoritiesto ensure total ban and its compliance o r manufacturingand sale of gutka and pan masala with tobacco and/ornicotine.The respondents have further stated,that in the light of the Order passed by the Ho: rble SupremeCourt, theletter dated 05.12.2016 i/as issued bythe Ministry ofHealth requesting al, the StateGovernments/Union Territories to pass necessa y orders to ensurethat the Order passed by the Honble S rpreme Courthas been compliedwith.
(29) The res rondent No.3 hasfurtherstated that the COTPA 2003 is an Act enactedto discouragethe use of tobacco with ;;reat emphasis onprotectionof childrenand young people from being addicted to theuse of tobacco and prohibits smoking inpublic places, sale of tobacco products to minors and within 100yards ofany educational ir stitution,direct and indirect advertisement, promotion ar d sponsorship oftobaccoproducts and mandates dis'rlay ofpictorial health warnings on tobacco product packe ges. The respondentNo.3 has furtherstated that the petit: tners'arguments on the subject that there is a conflict t etweenthe COTPA 2003 and the FSS Act 2006 is misc tnstruedand they occupy different fields altogether. Th: respondentNo.3 has placedreliance upon
25
the judgments of the Hon'ble Supreme Court in Ajay Kumar Banerjee v. Umed Singh2r, Khoday Dlstllleries Limited v. State of Karnataka22, P.N.Krishnalal v. State of Kerala23, S.Prakash v. K.M.Kurianza, Allahabad Bank v. Canara Bank2s, and Kerala Bar Hotels Association v. State of Kerala (Civil Appeal No.4157 of 2015, dated 29.t2.2O15), Centre for public Interest Litigation v. Union of India (W.p. (C) No.681 of 20O4, dated 22.10.2013), State of Maharastra v. Sayyed Subhan (Criminal No.1195 of 2018, dated 20.09.2018), the High Court of Jharkhand at Ranchi in the case of Fariyaad Foundation v. Government of Jharkhand (W.P. (PIL) No.954 of 2019), the High Court of Madhya Pradesh, Indore Bench in the case of Amarchand Upadhyay v. Union of India (W.P.No.10998 of 2012), the High Court of Patna in the case of Lal Babu Yadav v. the State of Bihar (WP (Civil) No.10297 of.2072, dated 10.07.2012) and the High Court of Bombay in the case of M/s.Dhariwal Industries Limited v. the State of Maharashtra (W.P.No.163 I of 2Ol2 and other connected matters).
(30) The respondent No.3 in the light of the various Judgments of the Honble Supreme Court and some High Courts referred above has stated that the Notification issued by the State Government has been issued strictly
t' aln 1984 sc l t3o "(tggs)I scc 5t+
r1 1995 Supp (t) SCC 187 "atRtqgq sczoqa tt aln 2ooo sc l5:5
26
in consonant e with the statutoryprovisionsgoverningthe field under t ee FSSAct 2006 and the gutka containing tobacco and.obacco are great thereat to the public health' It is having €grave negativeimpact on public healthand therefore, th: StateGovernment has rightlyimposed reasonable r:strictions inthe matter of manufacture, distribution, ltorage, transportand sale of gutka or pan masala, wh ch containstobacco and nicotine as ingredientsr nd chewingtobaccoproducts like chap tobacco, kha ni, kharra,scented/flavoured tobacco'The respondent } o.3 hasfurther stated that the petitioners have not beer able tomakeout any case beforethis Court and the restr ction imposedby the State is a reasonable restriction an I does notwarrantany interference.
(3 1) The resrondent No.6/FoodSafety and Standards Authority of tndia hasalso filed adetailedcounter affidavit and. i: hasbeen statedthat the FSS Act 2006 was enacted. by tlLe Parliamentfor laying down scientifically based standadsfor articles of food and to regulatetheir manufacture, storage,distribution,sale and import and to ensure availarility of safe and wholesome food for human consumption.It has been furtherstated that Section 92 of the FSS Act 2006empowersthe authority to make regulationsv ith theprevious approvalof the Central
27
Government and a_fter previous publication to carqr out u the objects of the FSS Act 2006 and in exercise of powers conferred, the Authority notified the Food Safety Regulations , 2017. The Regutations provide for prohibition and restrictions on sale of certain products. It has been further stated that as per the Food Safety Regulations, 2011, the product should not contain any substance which is injurious to health and tobacco and nicotine shall not be used as an ingredient in any food product and therefore, as reasonable restrictions have been imposed in the interest of public at large, the question of interference by this Court in respect of the impugned Notification d.oes not arise. It has been further stated that the Food Safety Regulations, 2oll have been issued in accordance with law in exercise of powers conferred under Section 92 read, with Section 16 of the FSS Act 2006 and the Regulations provide for no anti-caking agent Shall be used in any food except where anti-caking agent is specifically permitted. As per the Food Safety Regulations, 2oll use of anticaking agent in pan masala is not permitted.
(32) The respondent No.6 has also stated that as per the mandate of Section 89 of the FSS Act 2006, the Act has the overriding effect on all legislations including the COTPA 2003 and the former takes precedence over the
28
latter Act. T1 Le respondent No.6 hasalso placedreliance upon the def nition clause,which defines 'food.'and' it has been argued vehemently thatpan masalawith tobacco and tobacco :ertainly fall under thedefinition of 'food' as they are i rtended for humanconsumption' The respondentrlo.6 has alsoplaced reliance upon the Judgments o' the Hon'ble SupremeCourt in the case of P.K.Tejani v. fl.R.Dangszo, R.Krishnamurthy(supra), Krishan Gopal Sharma v. Government ofNCT of Delhi27, Godawat Pan Masala Produc is I.P. Limited(supra), Laxmikant v. Union of rndia28 and tl e Judgment of the HighCourt of Keralain W.P.No.12352 f 2o]-2 and other connectedmatters.
(33) The resl ondent No.6 has also brought tothe notice of this Cour: that Minutes of theExpert Committee constituted b' the Ministry of Health andFamily Welfare which has r ecommendbda complete banon gutka containing tol acco/tobaccoproducts/tobacco. It has been stated that lage number ofpeopleare dying out of cancer and the actirn taken bythe State Governmentis in consonance vith thedirections issued by the Hon'ble Supreme Cou t from timeto time. Therefore,a prayer has been made fot dismissalof the writ petitions.
'o(1974) I scct6? :'lroeoy e scc sn '?61te9r;a scc t:s
29
(34) Heard the learned counsel for the partie s and perused the record. The writ petitions are being disposed of at admission stage with the consent of the parties.
(35) The petitioners before this Court are aggrieved by Notification No.505/FSS-L/2O2t, dated 06.Ot.2O2t issued by the respondent No.3/Commissioner of Food Safety, Telangana in exercise of powers conferred under Section 30 of the FSS Act 2006. The Notification dated 06.01.2021 is reproduced as under:-
"GoVERNMENT oF TELANGANA
Office of the Commissioner of Food Safety, Directorate Institute of Preventive Medicine, Public Health Labs, Food (Health) Administration, Telangana State, Narayanaguda, Hyderabad - 500 029.
Food Safety and Standards Act, 2006 - Imposition of prohibition u/s 30(2) of the said Act on manufacture, storage, distribution, transportation and sale of Gutka/Pan masala which contains tobacco and nicotine as ingredients and Chewing Tobacco products like chop tobacco, pure tobacco, Khaini, Kharra, Scented tobacco/ Flavoured tobacco or by whatever name locally it is ca11ed packed in sachets/ pouches/ package in the entire State of Telangana - Orders - Issued.
The Government of India has enacted Food Safety and Standards Act 20O6 (FSS Act) to regulate and monitor the manufacturing, processing, packing, storage, transport, distribution, sale of any food or food ingredient, so as to ensure availability of safe and wholesome food for human consumption.
30
Whe'eas section3(1)[) of FSS Act 2006defines that "Food" me rnsany substance,whetherprocessed,partially processed or unprocessed,which is intended for human consumpti ;n andincludes primary food, to the extent defined in :lause3 (ZK) geneticallymodified or engineered food or f( od containingsuch ingredients, infantfood, packaged lrinking water,alcoholic drink,cherl'inggum, and any s ubstance,including water usedinto the food during its nanufacture,preparation or treatmentbut does not includ, anyanimal feed, live animals unless theyare prepared )rprocessedfor placing on the marketfor human cc tsumption,plants prior to harvesting,drugs and mec icinalproducts,cosmetics,narcoticor psychotrotr ic substances.
The lon'ble SupremeCourt of India in Godawat Pan Masala v. Uol(2004)7 SCC 68, while dealing case on prohibitior on sale of Gutkain the Stateson 02 08 2004 vide Civil rppealNo.4674of 2OO4(SLP (C) No 24449 of 2OO2l helc thatGutka or panmasalahavingtobacco or nicotine at : fooditems. Gutka/Panmasala whichcontain tobacco an I nicotineas ingredients and Chewing Tobacco products ike ChapTobacco, Pure Tobacco, Khaini' Kharra, Sr entedTobacco/Flavoured Tobaccopackedin pouches/s Lchets / containersetc., or by whatever name it is called ir herentlyfalls within the definition of "lbod"as defined un lerSection 3(1)fi) oftheFSSAct, 2006'
Scier tific Reports/opinionsof ICMR(lndian Council of MedicalResearch)and NIHFW (National Instituteof Health an, .Family Welfare)demonstrate the extremely harmful el'ects of consumptionof Gutka/ Panmasala/ Chewing Trbacco such as Cancers (Oral) pre-malignant lesions/cot ditions) -OesophagealCancer,Stomach Cancer,Pz ncreaticCancer, Throat (pharynx and larynx) cancer, reira1 cancer,Non cancerous-deteriorationof Oral-denta health,Hypertension&Cardiovascular
31
diseases, Consumption of such products is injurious to health.
As per section 18(1)(a) of the FSS Act 20e6, it is the Government's endeavour to achieve an appropriate level of protection of human life and health.
Whereas regulation 2.3.4 of FSS (Prohibition and restriction on sales) Regulations 201 1 made under the FSS Act 2006 mandates that tobacco and nicotine shall not be used as ingredients in any food products.
Whereas the Commissioner of Food Safety has the power coupled with duty to prohibit in the interest of pubiic heaith, the manufacture, storage, transportation, distribution, sale of any articles of food, either in whole of the state or any area or part thereof for such period, not exceeding one year as per clause (a) of sub-section (2) of Section 30 of FSS Act,2006.
Accordingly the following notification will be published in the Extraordinary issue of the Telangana State Gazette.
NOTIFICATION
Notification No.505/FSS-1 l2O2l : In exercise of the powers conferred under clause (a) of Sub-section (2) of Section 30 of Food Safety and Standards Act, 2006 read with 2.3.4 of Food Safety and Standards (Prohibition and Restriction on Sales) Regulation 2011 and in the interest of public health, the Commissioner of Food Safety, Telangana State hereby prohibits the manufacture, storage, distribution, transportation and sale of Guitka/Pan masala which contains tobacco and nicotine, as ingredients and chewing Tobacco products like chap Tobacco, Pure tobacco, Khaini, Kharra, Scented tobacco/flavoured tobacco packed in pouches/sachets/ containers etc., or by whatever name it is called in the
32
entire Sta .e ofTelanganafor a periodof one year with effect frorr 10fr January,2021."
(36) The p( titioners havechallenged the impugned Notification on theground that it isillegal, unconstitutic naland ultra uires the COTPA 2003 and is also in viole tion ofnatural justice and fair play' The undisputed l rctsof the case reveal that the Notification imposes prot ibitionof manufacture,storage,distribution, transportatio I andsale of gutka/panmasala which contains tobe cco andnicotine as ingredientsand chewing tobacco prod tctslike chap tobacco,pure tobacco,khaini, kharra, scenl:d tobacco/flavouredtobaccoor by whatever name locally it iscalled, packed in sachets/pouches/ packages in the entire Stateof Telangana'Meaning thereby, th: sachets/pouchescontainingscented tobacco/toba:co and,lorpan masala, whichcontain tobacco and nicotineare the subject matter of the Notification.
(37) It is an rnd'isputedfact that the tobacco is the main cause of can:erand the statistics pertaining to tobacco related mortaity and cancer are detailed as under:-
'Global
Acc rrding to theWorld Health Organisation (WHO), tob tcco kills morethan 8 millionpeople each year' More than ' millionof those deaths are the resultof direct
33
9
tobacco use while around 1.2 million are the result of nonsmokers being exposed to second-hand smoke.
Natlonal
34
TelanEana
Total - 17 8o/o Males - 25.9%oFemales -9.8o/i'
National Far .tlv Health Survev -5 (2O19'2O21)
(38) The rele'ant statutoryprovisionsunder the FSS Act 2006, whichrLre necessaryfor proper adjudication of the present writ p )titions, are reproducedas under:-
"3 () " ertraneousmottef means any matter contained i t anarticle of food which may be carriedfrom the raw ma erials,packagingmaterialsor process systems used for its manufactureor which is added to it, but such matter does not render sucharticle of food unsafe;
3 (j) "food' meansany substance,whether processed, :artially processed orunprocessed, which is
35
intended for human consumption and includes primary food, to the extent defined in clause 3 (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 into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.
3 (kl "food additiud' means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional additional of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably ixpected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include "contaminants" or substances added to food for maintaining or improving nutritional qualities;
3 (y) "ingredient" means any substance, including a food additive used in the manufacture or preparation of food and present in the Final product, possibly in a modilied form;
3 (zc) "manufacture" means a process or adoption or any treatment for conversion of ingredients into an article of food, which includes any sub-process, incidental or ancillary to the manufacture of an article of food;
36
3 (z l) "manufacture/ means aperson engaged in the businr ss of manufacturing anyarticle of food for sale and inc1u, es anypersonwho obtainssuch articlefrom another p, rson andpacks and labels it for sale or only labels it fo such purposes;
3 (21 ) "primary food" means anarticleof food, being a produc, of agriculture or horticultureoran imal husbandrl and dairying oraquaculture in its natural form, resr lting from thegrowing, raising,cultivation, picking, hz rvesting, collection or catching inthe handsof a person o her than a farmeror fisherman;
16 (1 Duties and functions ofFoodAuthortty.' (1) It shall be the duf of the Food Authorityto regulate and monitor the manufi cture, processing, distribution,sale and import of food so z s to ensure safe andwholesome lood.
18(1)l ll General prlnclples to be followedln administration of Act.- Tht Central Government,the State Governments, the Food l uthority and otheragencies, as the case may be, while ir rplementing theprovisions of this Act shall be guided by t re following principles, namely.-
(1) (a endeavour to achieve an appropriatelevel of protection , f human life and health and theprotectionof consumers' interests,includingfair practicesin all kinds of food trat e with reference tofood safety standardsand practices;
(2) N< food business operatorshall himselfor by an person on t is behalf manufacture,store, sell or distribute any articler f food -
(i) wh ch is unsafe;
3-l
(ii) to (v) xxxxx
3O. Commissloner of Food Safety of the State.- (1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safetSr and standards and other requirements laid down under this Act and the rules and regulations made thereunder.
(2) The Commissioner of Pood Safety shall perform all or any of the following functions, namely:-
38
(3) t he Commissioner of food Safety may, by Order, delegate,,ubject to suchconditionsand restrictions as may be s. 'ecified in theOrder,such of his powersand functions under this Act(except the power to appoint Designater Oflicer, Food Safety Officerand Food Analyst) as he ma' deem necessary orexpedientto any olficer subordina e to him.
9?. F epeal aad eevlags.-(1) With effectfrom such date as the Cen :ral Governmentmayappoint in this behalf, the enactment and orders specilied inthe Second Schedule shall stanc repealed:
Prov Ced that such repeal shallnot affect-
(2) If ther< is any other iawfor the timebeingin forcein any State,r orrespondingto this Act, the same shall upon the comme lcement of thisAct, standrepealedandin such case, theprovisionsof section 6 of the General Ciauses Ac ., 1897( 10 of 1897)shall apply as if such provisions( [the State law hadbeen repealed.
(3) Notwitl standing the repealof the aforesaid enactment and Order t, the licensesissued under any such
39
I
enactme nt or Orde r, which are in force on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued under the provisions of this Act or the rules or regulations made thereunder.
(4) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act or Orders after the expiry of a period of three years from the date of the commencement of this Act."
(39) The aforesaid statutory provisions make it very clear that'food'as defined under Section 3fi) of FSS Act 2006, 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 3 (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 into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. Keeping in view the aforesaid definition of 'food', which is a very wide and exhaustive definition and includes any substance whether processed,
40
partia-Uy pro( essed or unprocessed, whichis intended for human cor sumption, certainlyincludessmokeless tobacco prod ucts likegutka, pan masala, kharra, khaini or any rther similarproduct likechewing tobacco/flavr ured tobaccowithin the definitioo of 'food' under the FS I Act 2006.
(a0) The H,,n61. Supreme Court inthecase of R.Krishnamurt hy (supra) hasheld that all that is required to classify a product as 'food' isthat it has to be used commonly fo human consumptionor in preparation of human food. \ot only this, theHon'bleSupremeCourt in the case of G odarat PanMasala Products(supra)has held that gutka, p m masala and supari asfood articles. The Allahabad Hil h Court in the case ofManohar Lal v. State of u.r., (Crimina Revision No.318 of19821 and in the case of Khedan Lal ant Sons (supra) has heldthat'chewingtobacco' is an article o food.
(a1) The Foo t Safety Regulations,2ollwas notifiedon 01.08.2011 ir: exercise ofpowers conferred underSection 92 read witl Section26 of the FSS Act 20O6 and Regulation 2 3.4 of the saidRegulations expressly prohibits use :f tobacco and nicotinein all food products and the sarne s reproducedas under.
4t
"2.3.4 Product not to contain any substance which may be injurious to health: Tobacco and nicotine shall not be used as ingredients in any lood products."
(42) Not only this, the FSS Act 2006 defined,ingred.ient, and 'food additiue' and therefore, gutka/pan masala which contains tobacco and other kinds of tobacco products like chap tobacco, pure tobacco, khaini, kharra, scented tobacco or flavoured tobacco do fall within the definition of 'food'.
(a3) The Honble Supreme Court in S.L.p. No.1630g of 2OO7, dated 03.04.2013 has passed the following order.
"Ms. Indira Jaisingh, learned Additional Solicitor General invited the Court's attention to notifications issued by the Government of 23 States and the Administrators of 5 Union Territories lor imposing complete ban on Gutkha and Pan Masala with tobacco and/or nicotine and then stated that notwithstanding the ban, the manufacturers have devised a subterfuge for selling Gutkha and Pan Masala in separate pouches and in this manner the ban is being flouted.
Ms. Indira Jaisingh also piaced before the Court xerox copy of D.P.No.P. 160121L2/ll-part I dated 27.08.2012 sent by the Special Secretary, Ministry of Health and Family Weifare, Government of India to the Chief Secretaries of all the States except the States of Madhya Pradesh, Kerala, Bihar, Rajasthan, Maharashtra, Har5zana, Chattisgarh and Jharkhand and submitted that the Court may call upon the remaining States and Union Territories to issue necessary notifications.
42
In r iew of thestatement made by the learned Additional SolicitorGeneral, we order issue of notice to the Chief Secr :tariesof the States and the Administratorsof the UniorTerritorieswhich have so far not issued notificatiol in termsof 2006 Act to apprisethis Court with the reaso IS as towhy they have not takenaction pursuant1 I letter dated27 .O8.2012.
We e lso direct theSecretaries, Health Department of all the 2€ Statesand 5 Union Territories to fi1e their affrdavits withinfour weeks on the issue oftotal complianc, ofthe ban imposed on manufacturing and sale of Gutkha rndPan Masala with tobaccoand/or nicotine'
Put.rp on O3.05.2O13.
The ?egistry isdirected to send copies of this order to the Cl iefSecretaries and the Secretaries,Health Departmer t asalso theAdministratorsofUnion Territories Secretariesof the Central and State Pollution Control Bc ard.Copies be also sent to the Commissioners of 9 Mur-' .cipalCorporationsnamed hereinabove The copies of ;rder besent by fax withinfour days lrom today."
(4a) The afo'esaidorder makes itvery clear that the Secretaries, HealthDepartment of allStates/Union Territoriesw( re directed to reportcompliance of complete ban inrespe ltof manufacturingand sale of gutka and pan masala v ith tobaccoand/ornicotine'
(45) Various Statesand Union Territories haveissued necessary or,[ers/notificationsunder Regulation 2'3'4 of the Food Saft tyRegulations ,2OlL read with Section 30 of
+J
the FSS Act 2006 banning sa-le of gutka and pan masala (containing tobacco or nicotine). It is unfortunate that in spite of issuance of such notifications, in order to circumvent the ban of sale of gutka, the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets and they are sold together by the same vendor in the same premises so that the consumer can buy pan masala and the flavoured chewing tobacco, mix them and consume them. They are being sold in twin packs to be mixed as one.
(46) Learned counsel for the petitioners has argued before this Court that there is a conflict between the COTPA 2003 and the FSS Act 2006 and no impugned Notification could have been issued under the FSS Act 2006. The arguments canvassed by the learned counsel for the petitioners are misplaced. The COTPA 2003 has been enacted with an aim and object 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 with an aim to discourage the use or consumption of tobacco. The object for the FSS Act 2006 is to ensure safe and wholesome food for the people. The primary concern and purpose of the FSS Act 2006 is that promotion of public
41
health and l rotectionof the right to life of the citizens of the country andthe purpose, aim and the object of the Food Safety Regulations,2011 is to ensure safetv/health of citizens of lhiscountry by prohibiting any article of food which are iq uriousto the health of general public' It is an undisputed lactthat tobacco productswhich are subject matter of t. reimpugned Notification are injuriousto general healt r of the Public.
(47) Learnec counsel forthe petitioners have argued before this C turtthat there is a conflictbetu'een the FSS Act 2006 a-r C COTPA2003. Section 89 of the FSS Act 2006 makes tvery clear that it has overridingeffect of all the legislatio rs includingthe COTPA2003'The FSS Act 2006 has b, en enactedlater to the COTPA2003and therefore, th,: FSS Act2006 will prevail over the COTPA 2003. The lav laidon the aforesaidissue is no longer res integra. The Hon'bleSupremeCourt in AllahabadBank (supra), Anay KumarBanerjee(supra)and s'Prakash (supra) has held as t nder:-
"a.1 /here two Central Acts appear to be seemingly in conflict with eachother, the endeavour of Court should be to harn onizethe two Acts seemingly in conflict'
b. <sup>Ihere there is adirect conflict(repugnancy) between tyo specialActs, both being special laws,the foilowing r rles shallaPPIY:
(i) Tl e later Act willprevailover the earlier Act'
45
(ii) If there is a provision in one of the Acts giving overriding effect then that Act will prevail. (iii) A later Act, even if it is a general Act, can prevail over an earlier special Act, in the case of a repugnancy if there is no express provision to the contrary in the earlier special Act."
(a8) The Honble Supreme Court in the case of
R.Krishnamurthy (supra) has held as under:_
"7. According to the definition of.,food, which we have extracted above, for the purposes of the Act, any article used as food or drink for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food is,,food,,. It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as intended for some other use. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food. It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordina-qr subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for purposes other than human consumption. It is to prevent the exploitation and self_ destruction of these poor, ignorant and illiterate persons that the definition of 'food" is couched in such terns as not to take into account whether an article is intended for human consumption or not. In order to be,,food,, for the purposes of the Act, an article need not be "fit" for human consumption; it need not be described or exhibited as intended for human consumption; it may even be
46
otherwiselescribedor exhibited; itneed not evenbe necessarilyintended for human consumption;it is enough if it is 3enera1lyorcommonly used forhuman consumptirn or in the prepa'rationof humanfoodWhere an articles generally or commonlynot used for human consumpti' 'nor in the preparation of humanfood but for some othe:purpose, notwithstandingthat itmay be capableol beingused, on rare occasions'for human consumptirn or in the preparation of human food' it may be said,d.t pendingon the facts and circumstances of the case, thatit is not "food'' In such a case the question whetherit is intendedfor human consumptionor in the preparatioL of human food may become material' But where thearticle is one which is generally or commonly used forI .uman consumptionor in the preparationof humanfo< d, there can be no question but that the article is "food".( iingerlyoii, mixed or not with groundnutoil or some othrroil, whetherdescribed or exhibited as an articleofflodforhumanconsumptionoraSanarticlefor externalr se only is "food"within the meaningo[ the definition,ontained in Section 2(u) of the Act"
(49) KeePin5in view the aforesaid definition' the articles mentionedi rthe impugned Notificationare certainlY includedwit]Linthedefinitionof,food,andthisCourtdoes not findar y reason to interfere with the impugned Notification.
(s0) Learner.counselfor the petitionershas PlacedheavY relianceuPln the Judgmentdelivered in the case of GodawatPan Masala Products(supra)'However' the said Judgmentu a's delivered prior to enactment of theFSS Act
47
2006 and the Regulations made thereunder. The definition of 'food' under the Prevention of Food Adulteration Act, 1954 and the FSS Act 2006 are reproduced as under:-
"Definition of 'food' under the Prevention of Food Adulteration Act, 1954:
2(vl "food' means any article used as food or drink for human consumption other than drugs and water and includes-
Definition of 'food' under the FSS Act 200,6:-
"3 (i) any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food, to the extent defined in clause 3 (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 into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances;
Provided that the Central Government may declare, by notification in the Oflicial Gazette, any other article as
4E
food for thr purposes ofthis Act having regards to its use, nature, sul stance orqualitY."
(51) The defi rition of 'food':underthe FSS Act 20O6 is a very wide ar rd exhaustivedefinitionand as per the definition un( er the FSSAct 2006, any substance, which is intended f rr humanconsumption is includedin the definition of 'food'.Not only this, even in the case of Godawat Pan lt asalaProducts (supra), the Hon'ble Supreme Court has he d thatpan masala or gutka to be covered under the de, Lnition of 'food'.However,only on a limited issue ofjuri;diction, itwas held that the power of prohibition is only vested with the CentralGovernment and not with the State Foodand Health Authorities.The d.efinition of 'food' haswitnessedasea changeand keeping in vit w Section 89 ofthe FSS Act 2006, as the FSS Act 200( is having overridingeffect over the other statutes, the respondent No.3/Commissionerof Food Safety, Telang ina was wellwithin his competence to issue the impugned Notification banningthe food itemswhich are subject Tratter of theNotification.The Honble Supreme Cou t in thecase of Laxmikant (supra), held as under:-
"10. Iherefore, the InternationalConferetrce held in collabora ion with the World HealthOrganisation was of the opinion that the ban on use oftobaccoin toothpaste and toothprwder should totallybe imposed since itis
49
prone to cancer. Under these circumstances, the viev/ 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."
(52) In the aforesaid case, total ban on use of tobacco in toothpaste and toothpowder was upheld by the Honble Supreme Court even though offended the right to carry on trade guaranteed under Article 19(1) of the Constitution of India as the imposition of ban was on public interest.
(53) The matter relating to imposition of restrictions on sale of pan masala containing tobacco and other tobacco products was considered by the Bombay High Court in the case of M/s.Dhariwal Industries Limited (supra). A prayer was also made to declare Regulation 2.3.4 and Regulation 3.1.7 of the Food Safety Regulations, 2O1t as ultra uires and a prayer was also made for granting an interim relief. Various grounds were raised before the Division Bench of the Bombay High Court for grant of stay and the Bombay High Court in paragraph 61 has held as under:-
'61. After taking into considerationthe provisions of Prevention of Food Adulteration Act, 1954 and the Rules thereunder, Food Szifety and Standard Act, 2006, the Regulations made thereunder, the Cigarettes Act, 2O03, thejudgment of the Supreme Court in Ghodawat case and
50
the mater: elon record, and after considering the rival submissiot s andthe decisions cited at the Bar' we are of the view tlat this is not a lit casefor granting any of the interim relefs prayedfor by the petitioners Hence' prayer for interil 1stay against the implementationofthe impugnedstatutory order dated 19thJu1y2021 issued by the FoodSafety Commissioner,Maharashtra State in public int rrest inexercise of the power conferredby Section 3t(2)(a) of the Food Safetyand Standards Act' 2006 is re.:cted."
(5a) No intt rimrelief was granted inrespect of the Regulations.Challenges were made throughout India and various ordel shave been passed by the State ofTelangana by which a Irayerfor grant of interimrelief was rejected' The BombalHigh Court in its recent Judgment in the case ofMob rmmad Yamin Na€em Mohammadv'State of Maharashtra2!, insimilar circumstances,has exhaustively dealt withI :gislativecompetenceof the State and the restrictions i nposedby the State Government'Paragraphs 40 to 45 of tlLe saidJudgmentare reproduced as under:-
"40. I lothas been said about COPIA, holdingthe field as a1 ainstthe FSSA.In this regard, it is material to note, thar COPIAwas enacted on 1815 l2OO3, in which Section 3(p) defines "tobaccoproducts'to mean the products rpecified inthe schedule'The scheduleat Serial No. 8, s1,ecifiesPan Masala or any chewingmaterial having tc aaccoas one of its ingredients (by whatever named ct lled)and at Serial No' 8 specifies Gutkha To understat d basicdifference between the provisionsof COPTA a rd FSSA,it is necessary to consider whatis
2e 2o2l scc online lom 26
5l
contemplated by Sections 5, 6 and 7 of COTPA, which for ready reference are reproduced as under:-
(1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.
(2) No person, for any direct or indirect pecuniary benefit, shall-
Provided that this sub-section shall not apply ln relation to-
containing cigarettes or anyother tobacco product;
(3) No l erson, shall, under a contractor otherwise promote o agree to promote theuse or consumptionof--
(2\ No person shall carry on trade or commerce in cigarett:s or any other tobacco products unlessevery packagt of cigarettes or any other tobaccoproducts sold, st pplied or distributed by him bears thereon,or on its lE be1, the specified warning.
(3) No person sha11 import cigarettes or any other tobacco products for distribution or supplv for a
53
valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.
(a) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration.
(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its iabel, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereol
Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act.
54
principles( fnatural justice; Section 18 providesfor an appeal.Th< other provisions providefor punishmentand forfeiture.'hat is materialto be noted is that COPTAhas not beeng: ,en any overridingeffectupon any other lau" holdingthelieldorwhichmaybeenacted'Theregulatory mechanisrrin COPTA is restrictedto ensuringthat the sale, storaSe, distribution, of cigarettesand other tobacco products ir not withoutthe warning label and is to persons abrve the restrictedage and to discourage the use of tobacco'COITA does not deal with the longterm effects of smokin ;and consumptionof tobaccoand other products or thehealth of citizens'
"25. ll istrue the ApexCourt in GodautatPan Masala':case held that mere traces of magnesium
55
carbonate formed during consumptionof product along with lime cannot be banned, but in the instantcase anticaking agerfi viz., magnesium carbonate isnot found during consumption but the analyticalreport discloses that magnesium carbonate is containedin the very sample which, in our considered opinion maybe either externally added orpresent in the raw materials' Whatsoever the case may be, the reportdisclosesthat there is usage of anticakingagentviz., magnesium carbonate in the food article inquestion namely gutka. That apart Supreme Court in theverysame decision held that thep visions of PFA Rules framed and directions issued th ereundercannotbesaid as not applicable mere1v because licence iscontemplated for manufacture of eutka under the Cisarettesan dother Tobacco Products ProhiL,ition of Trade and Commerce Production. Supplv and Distribution) Act.2003.The PFA Act was le islatedfor thepreventi on of adulteration of food whereas Ci arettesand other Tobacco Products(ProhibitionofTrade and Commerce. 0 Productio n. Suoolv andDistribution) Act. 203is intended to orohibit advertisinsand to resute the trade and as such there isnoconflictbetweenthe leeislative ob iects betweenthe two enactments."
(emphasis supplied)
'89. Overrirllngeffect of thls Act over all otherfood related laws.- The Provisions of thisAct shall have effect notwithstandins anvthin inconsistent therewith contained in anv other law forthe timebeineln rce or in any instrument havingeffectby virtue of anylaw other than this Act."
(emphasis supplied)
56
effect on L1l other food related laws. Once it isheld that tobacco a rd other products, fall within thedefinition of food as e :rumerated in Section 3 [) of theFSSA,the overriding effect of Section 89 of the FSSA,would make the FSSI hold the field instead of COPTA. .toshA K.V. u. Stc le of Kerala, Rep. bg the Secretary to the Departmet .t of Health and Welfare, Gouernment Secretaiat, Thiruuona thapuram [(2013) 1 KI"J 428), Omkar Agency, through it; Propietor u. the Food Safety and Standards Authoitg , f India [2016 SCC Online Pat 9231] and Sanjag Anjag Sto es u. tlp Union of India, I2Ol7 SCC Online Cal 163231, w rich take a contrary view, according to us, do not lay do'rn the correct law.
(55) The Dir ision Bench of the Bombay High Court has dealt with all the issues, similar to the issues raised in the present writ petitions. In the considered opinion of this Court, the luestion of interference by this Court in respect of No .ification which is bound to save human lives cannot be far rlted with in any manner. The entire globe is facing COVIE -19 pandemic and the death rate on account of gutka/pal masala and other tobacco products is more than the det ths which are taking place on account of pandemic. Tl e people are suffering from cancer and other diseases and the restriction imposed is in larger public interest and is a reasonable restriction and in no way offends the r. ght to carry on trade guaranteed under the Constitution.
57
(56) In the light of the aforesaid, this Court does not find any reason to interfere with the impugned Notification and resultantly, the writ petitions are dismissed. Miscellaneous petitions, if any pending, shall stand dismissed. There shall be no order as to costs.
SATISH CHANDRA SHARJUA, CJ
A.RAJASHEKER REDDY, J
30.rt.202r Pln
Note: LR copy be marked. (By Order) P1n
3 issues framed by the court
Whether the State Commissioner of Food Safety had jurisdiction to issue a notification banning the sale of gutka and pan masala containing tobacco and nicotine under the Food Safety and Standards Act,
Whether the FSS Act, 2006 overrides the COTPA 2003 and Regulation 2.3.4 empowers the Authority to prohibit tobacco-containing products as food articles.
Whether the notification violated the petitioner's fundamental rights under Articles 14, 19, and 21 of the Constitution of India.
Colour shows how this judgement treated each authority
State of Tamil Nadu v. R. KrishnamurthyFollowed¶54
2004 SCC 680, 2004 12 SCC (Cri) 20 · Who else cites this
Godawat Pan Masala Products I.P. Ltd. v. Union of IndiaFollowed¶54
C.C. Rajpurohit v. S.B.C. RajpurohitReferred¶54
Central Areca-nut Marketing Corporation v. Union of IndiaReferred¶54
Rajiv Laxman Pachopure v. The State of KarnatakaFollowed¶54
Laxmikant v. Union of IndiaFollowed¶54
Ajay Kumar Banerjee v. Umed SinghReferred¶54
Khoday Distilleries Limited v. State of KarnatakaReferred¶54
Dhariwal Industries Limited v. State of MaharashtraFollowed¶59
R.Krishnamurthy (supra)Followed¶54
M/s.M.Mart. Filemaster v. State of TelanganaReferred
5 provisions across 3 enactments
Girdharilal Ramy
The State of Telangana
The Commissioner of Food Safety, Telangana
Satish Chandra Sharma
A. Rajasheker Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
