Dismissed

Maa Bakery Kagaznagar v. The State of Telangana

Telangana HC8 Dec 2021WP/21283/2020

Case brief

AI extract

What is this about?

This case involved multiple writ petitions challenging the Telangana government's notification banning the sale of tobacco products. The High Court dismissed the petitions, holding that the notification is in the public interest given the health hazards of tobacco and aligns with Supreme Court directions.

What did the court decide?

Notification prohibiting sale of tobacco products affirmed; writ petitions dismissed with no order as to costs.

Maa Bakery Kagaznagar Vs The State of… — Pension and Retirement Benefits | Telangana HC (2021)

¶1

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)

¶2

WEDNESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND TWENTY ONE

¶3

PRESENT

¶4

THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA^SHARMA AND

¶5

THE HON'BLE SRI JUSTICE N. TUKARAMJI

¶6

WRIT PETITI ON NOS: 20850. 21159.21283.21746^{21777 . 21902. 21987 .22127.} 22174.22271.23313.23356 AND 23709^{0F 2020}

¶7

wP NO.20850 0F 2

¶8

Between:

¶9

Nidhir Mandal, s/o. Ratan Mandal^{Age . 45 years, Occ . Business H.No 1-1 13/1} ' Nazarut nagar, Kagaznagar,^{AdilabadDistrict}

¶10

...PETITIONER

¶11

AND

¶12

The State of Telangana, Rep^{by its PrincipalSecretary' Home Department,} Secretariat Buildings, Secretariat,^Hyderabad.

¶13

ifre Commissioner"oi Food Safety,^{Telangana Directorate of lnstitute of} Preventive Medicine Public^{Health Labsand Food HealthAdministration,} Naravanaouda. Hvderabad.

¶14

a The Direcior Gen6ral of^{Police,Telangana State, Police Head Quarters,} Lakdikapul, Hyderabad.

¶15

4 ine SJoerinteirdent of^{Police, Kumarambheem AsifabadDistrict,Asifabad'} 5 The Sub lnspector of Police,^{Sirpur (T) Police Station,Kaghaznagar,} Kumarambheem, Asifabad^District.

¶16

b ihe FooO Safety Officer,^{Asifabad, Kumarambheem, Asifabad} ''ll.itJb.oour

¶17

Petition under Article 226 of^{the constitutionof lndia praying that in the} circumstances stated in the^{affidavitfiled therewith,the High courtmay be pleased} to issue a writ of mandamus^{or any other appropriatewrit order or direction} declaring the Notification^{No.501/FSS1l2O2O,dated06/01/2020 issued by the} Respondent No.2 as^{being illegal,arbitraryu nconstitutional, ultra virusthe} cigarettes and other^{Tobacco products (Prohibition of Advertisementand} Regulation of Trade and^{commerce,Production, supply and Distribution) Act,2003,} in violation of^{principlesof natural justice and in violationof Article14, 19 and 21 o1} constitution of lndia and^{consequentlyto set-aside the same and direct the} respondents not to interfere^{and harass the smoothful, lawful business activitiesand} sale of tobacco^{products permissible underthe provisionsof coTPA 2003 by the} petitioner at Easgaon Police Station,^{Komaram Bheem District}

¶18

IA NO: 1 0F 2020

¶19

Petition under Section^{151 CPC prayingthat in the circumstancesstated in} theaffidavitfiledinsupportofthepetition,theHighcourtmaybepleasedtodirect theRespondentNo.StoreturnthematerialseizedinCrimeNo'85ol2020ol Easgaon Police^{Station,KomaramBheem District, not to interfere in any manner} with trade and business^{of productsthat fall withinsuspendednotificaiion}

¶20

¶21

No.501/FSS-1/2020, c aled^{0610112020by the petitioner and to persons to whom the} products are sold

¶22

Counset for the Petiti^rner: SRI POCHAIAH DORISHETTI

¶23

Counsel for Respond rnt Nos. 1 , 3, 4 & 5: GP FOR^HOME

¶24

Counsel for Respond rnt Nos. 2 & 6: GP FOR MEDICAL,^HEALTH& FAMILY WELFARE

¶25

WP NO: 21159 OF 20: 0

¶26

Between:

¶27

Sri. Girdharilal^l;wamy, S/o. Ram Nivas Swamy, Age. 25^{years,Occ. Business,} R/o. Berth, Posl Koyal, District Naguar, Rajasthan State.

¶28

...pETtTtoNER

¶29

AND

¶30

The State of Te angana, Rep by its Principal Secretary, Home Department, Secretariat Buil, ings, Secretariat, Hyderabad.

¶31

The Commissio rer of Food Safety, Telangana Directorate of lnstitute of Preventive Med cine Public Health Labs and Food Health Administration, Narayanaguda, Hyderabad.

¶32

The Director Gt neral of Police, Telangana State, Police Head Quarlers, Lakdikapul, Hy< erabad.

¶33

The Superinten lent of Police, Mancherial District.

¶34

The Sub lnspe< :or of Police, Jannaram P.S, Mancherial District.

¶35

The Food Safel l Officer, Mancherial, Mancherial District.

¶36

...RESPONOENTS

¶37

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 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 of^principles of natural^justice 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

¶38

lA NO: 1 OF 2020

¶39

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

¶40

Counsel for the Peti ioner: SRI POCHAIAH DORISHETTI

¶41

Counsel for Respon lent Nos. 1, 3,4 & 5: GP FOR HOME

¶42

¶43

Counsel for Respondent Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE

¶44

WP NO: 21283 OF 2020

¶45

Between:

¶46

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

¶47

...pETtTtoNER

¶48

AND

¶49

1 The State of Telangana, Rep. by Principal Secretary^{to the Government,Home} Department, Secretariat, Hyderabad

¶50

2 Th6 Commissioner of Food Safety, Telangana Directorate^{of lnstitute of} Preventive ltledicine, Public Health Labs and^{Food (Health)Administration,} Narayanguda, Hyderabad^- 500029

¶51

3 The Director General of Police, Telangana^{Telangana State Police Headquarters,} Lakdikapul, Hyderabad

¶52

The Commissloner of Police, Komaram Bheem^District

¶53

¶54

5 The Commissioner of Commercial Taxes,^{Gruhakalpa Bulildings Complex,} Nampally, Hyderabad Telangana State

¶55

tne bommidsioner of Central^{Excise, Unionof lndia,AyakarBhawan,}

¶56

6 HYderabad'

¶57

...RE'P.NDENT.

¶58

Petition under Article 226 of the constitution^{of lndia praying that in the} circumstances stated in the^{affidavitfiled therewith,the High Court may be pleased} to issue a writ of mandamus or^{any 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, Supply^{and Distribution)Act, 2003, in violationof principles} of natural^justice and^{in violationof Articles '14, 19 and 21 of the constitution of} lndia and consequently to^{set asidethe same and direct the respondents not to} interfere in any manner^{with the trade and business carriedout in the products that} fall within the said^{notification by the Petitioner,their personneland the} perso ns/entities to whom they supply those^products

¶59

lA NO: 1 oF 2020

¶60

Petition under Section^{151 CPC prayingthat in the circumstancesstated in} the affidavit filed in support^{of the petition, the High court may be pleased to direct} the respondents not to^{interferein any manner with the trade and businesscarried} out in the^products that^{fall within the impugned notification (i.e. notification} No.501/FSS-1/2020, dated^{06101t2o2oby the Pettioner, their personneland the} perso ns/e ntities to whom they supply those^products

¶61

Counsel for the Petitioner:^{SMT. C SUNITHA KUMARI}

¶62

Counsel for Respondent^{Nos'1, 3 & 4: GPFOR HOME}

¶63

Counsel for Respondent^{No. 2: GP FORMEDICAL, HEALTH &} FAMILY WELFARE

¶64

Counsel for Respondent^{No. 5: GP FORCOMMERCIAL TAXES}

¶65

¶66

Counsel for Respondr nt No. 6: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL

¶67

WP NO: 21746 OF 202 )

¶68

Between:

¶69

Pathan Agencie,, a^proprietary 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

¶70

...PErroNER

¶71

AND

¶72

The State of Tel rngana, Rep. by its Spl. Chief Secretary to the Government, Health, Medical lnd Family Welfare Department, Secretariat, Hyderabad.

¶73

The State of Tel rngana, Rep. by Principal Secretary to Government, Home department, Ser retariat, Hyderabad.

¶74

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.

¶75

4 The Director Ge reral of Police, Telangana, Telangana State Police Headquarters, L rkdikapul, Hyderabad.

¶76

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

¶77

7 Union of lndia, I lep. by its Ministry of Health and Family Welfare, Room No. 348 A Wing, Nirman Bhavan, New Delhi-1 1001 1 .

¶78

I The Commrssio rer of Central Excise, Government of lndia Ayakar Bhavan, Hyderabad.

¶79

I Food Safety anr Standard Authority of India, Rep. by its CEO, 3rd and 4th Floor, FDA Bhawan, F rtla Road, New Delhi-110002.

¶80

...RESpoNDENrs

¶81

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 natural^justice 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

¶82

lA NO: 1 OF 2020

¶83

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

¶84

Counsel for the Petit,oner: SRI SRINIVAS REDDY BALAKISTI

¶85

¶86

¶87

Counsel for Respondent^{Nos' 1, 3 & 9: GP FOR MEDICAL, HEALTH &} FAMILY WELFARE

¶88

Counsel for Respondent^{Nos. 2,4 & 5: GPFOR HOME}

¶89

Counsel for Respondent^{Nos. 6 & 8: GP FORCOMMERCIAL TAXES}

¶90

Counsel for Respondent^{No. 7: SRI N' RAJESHWAR RAO} ASSISTANT SOLICITOR^GENERAL

¶91

WP NO: 21777 0F 2020

¶92

Between:

¶93

Sri. Venishetti^Raghavendra @^{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

¶94

...pETl,oNER

¶95

AND

¶96

1 The State of^{Telangana, Rep by its PrincipalSecretary, Home Department'} Secretariat Buildings,^{Secretariat,Hyderabad} -.

¶97

c ih"'C"r.iiS"nJioi^{fooO Safety, felangana Directorate of lnstitute of} prJrJ"ii"! r,,4"oicine iuoiic Heatth Labs and Food Health^{Administration,}

¶98

3 |fr:'il?:?.o"1tS ;l'J,Xi^{3133 i,.", rer ansa na State, PoIi ce H eadQ ua rte rs,} Lakdikapul, HYderabad. in" -s,ioerihteindent of Police,^{MancherialDistrict}

¶99

4( iii; 5;51;;;;.iJ,^{oipotlce,bcc Naspur P's,MancherialDistrict'}

¶100

o The Food Sifety^{Officer, Mancherial District}

¶101

...RESpoNoENrs

¶102

Petition under^{Article226 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 and^{other Tobacco products (Prohibition of Advertisement} RegulationofTradeandCommerce,Production'supplyandDistribution)Act'2003' inviolationofprinciplesofnaturaljusticeandinviolationofArticlel4,lgand2lol Constitution of^{lndia and consequentlyto set-aside the same and direct the} respondents^{not to interfere and harassthe smoothful,lavvfulbusiness activitiesand} saleoftobaccoproductspermissibleundertheprovisionsofcoTPA2003bythe petitioner at P.S.CCC^{Naspur, Mancherial District}

¶103

IA NO:1 OF²⁰²⁰

¶104

Petition under^{Section 151 CPC prayingthat in the circumstancesstated in} the affidavit^{filed in support of the petition, the High courtmay be pleased to direct} theRespondentNo.5toreturnthematerialseizedinCrimeNo.2S2ol2020ol P.S.CCC^{Naspur, Mancherial District, not to interferein any manner with trade and} businessofproductsthatfallwithinsuspendednotificationNo.50l/FSS.112020, dated 06/01/2020^{by the petitionerand to persons to whom the products are sold} Counsel^{for the Petitioner:SRIPOCHAIAHDORISHEfiI}

¶105

Counsel for^{Respondent Nos. 1, 3,4 & 5: GP FOR HOME}

¶106

¶107

Counsel for Respondr nt Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE

¶108

WP NO: 21902 OF 202 |

¶109

Between:

¶110

Mahalaxmi Tr€ iers, Rep proprietor, Sambari Pavan Kumar, S/o.S.Shankaral, h, Age. 34^by years,^its R/o.H.No.1-53'11, Kishtapur, Jannaram, Mancherial, Adili bad, T.S. .IA/RIT PETITIONER

¶111

AND

¶112

1 The State of Teli ngana, Rep. by its Principal Secretary to the Government, Home Departme rt, Secretariat, Hyderabad.

¶113

2 The Commissior ;r of Food Safety, Telangana Directorate of lnstitute of Preventive Medir ine, Public Health Labs. and Food (Health) Administration, Narayanaguda, I yderabad-500029.

¶114

3 The Director Ger eral Police, State of Telangan, Lakdikapul, Hyderabad. 4q The Superindent cf Police, Nirmal District, T.S. The Station Hour e Officer, Mamda PS, Nirmal District, TS.

¶115

6 The Food Safety Cfficer, Adilabad District T.S.

¶116

,..RESPONDENTS

¶117

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 )Act^{2003, in violation} of^principals of natural^justice 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.

¶118

lA NO: 1 OF 2020

¶119

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.

¶120

Counsel for the Petitior rer: SRI MR, BOGGULA RAJU

¶121

Counsel for Responder t Nos. 1,3,4 & 5: Gp FOR HOME

¶122

¶123

Counsel for Respondent Nos. 2 & 6: GP FOR MEDICAL, HEALTH & FAMILY WELFARE

¶124

WP NO: 219 B70F 2020

¶125

Between:

¶126

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

¶127

...pETt,oNER

¶128

AND

¶129

The State of Telangana, Rep. by Principal Secretary to the Government,^Home Department, Secretariat, Hyderabad.

¶130

Th6 Commissioner of Food Safety, Telangana Directorate of lnstitute of Preventive Medicine, Public Health Labs and Food^(Health) Administration, Narayanguda, Hyderabad - 500029

¶131

2 The Direator General of Police, Telangana Telangana^{State Police Headquarters,} Lakdikapul, Hyderabad

¶132

4 The Superintendent of Police, Suryapet District,

¶133

5 The Cohmissioner of Commercial Taxes, Gruhakalpa^{Bulildings Complex,} Nampally, Hyderabad Telangana State

¶134

6 The Commidsioner of Central Excise, Union of^{lndia,Ayakar Bhawan,#H,"JER?$}

¶135

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 a writ of mandamus or^{any 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, Supply^{and Distribution)Act, 2003, in violation of} principles of natural^justice and in violation of Articles^{14, 19 and 21 of the} constitution of lndia and^{consequentlyto set aside the sameand direct the} respondents not to interfere in any^{manner with the trade and business carriedout} in the products that fall within the said^{notification by the Petitioner,their personnel} and the^persons/e ntities to whom^{they supply those products}

¶136

lA NO: 1 OF 20

¶137

Petition under Section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed in support^{of the petition,the High Court may be pleased to direct} the respondents not to interfere^{in any manner with the trade and businesscarried} out in the^products that fall^{within 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 those^products

¶138

Counsel for the Petitioner:^{SMT.C SUNITHA KUMARI}

¶139

Counsel for Respondent^{Nos. 't, 3 & 4: GP FOR HOME}

¶140

Counsel for Respondent^{No. 2: GP FORMEDICAL, HEALTH &} FAMILY WELFARE

¶141

Counsel for Respondent^{No. 5: GP FORCOMMERCIAL TAXES}

¶142

¶143

Counsel for Respondr nt^{No. 6: SRI N. RAJESHWAR RAO} ASSISTANT SOLICITOR GENERAL

¶144

WP NOi 22127 OF 2021-

¶145

Between:

¶146

Shaik Shadullat Aqencies, Rep by its Proprietor, Shaik Shadullah^{Sio Shaik} Bashu Miya, I ged about 42 years, Occ. Business, R/o H.No.1-4-1255' Goushala, Bodh ln, Raithubazar, Nizamabad District,^{Telangana State Business} Address at. H.l lo.1-4-1449, Opp. Manikanta Complex,^{Bodhan, Nizamabad,} Telangana Stat€

¶147

H.K.G.N. Kirana Weekly Bazar, Rep by Mirza Akhter Baig Sro^{Mirza SarwarBaig} Rl/o H.No.1-2-1 238, Goushala, Bodhan, Raithubazar,^{Nizamabad District,} Telangana Stat r Business Address at. Weekly Bazar, Bodhan, Nizamabad, Telangana Stat(

¶148

,.,PETITIONERS

¶149

AND

¶150

The State of Tel tngana, Rep by the Principal Secretary,^{Home Department,} Secretariat, Hyd :rabad.

¶151

The Commissio er of Food Safety, Directorate^{of lnstitute of Preventive Medicine} Public Health L: bs and Food Health Administration Narayanaguda,^Hyderabad.

¶152

The Director Ge reral of Police, Telangana^State

¶153

The Commissio rer of Commercial Taxes, Gruhakalpa^{Building Complex,} Nampally, Hyde abad, Telangana State

¶154

The Commissio rer of Central Excise, Union of^{lndia AayakarBhavan,} Basheerbagh, F^yderabad.

¶155

The Superinten, ent of Police, Nizamabad, Telangana State.

¶156

...REspoNDENTS

¶157

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^pass an order/ord^,rs, or issue any^{direction/directionsor appropriatewrit more} particularly in the r ature of WRIT OF MANDAMUS declaring the lmpugned Notification issued b the Respondent No.2 herein^{vide NotificationNo.50'1/FSS-} 1/2020, dated. 06-01 2020 imposing^prohibition of sale of^{certain Tobaccoand Pan} Masala^products unc -.r Section 30 of Food Safety and Standards^Act,2006and Food Safety and Sta rdards (Prohibition and Restriction on Sales) Regulation^2011, as illegal, arbitrary a d violative of Article 14,²¹ , 19^(g) and^{301 of Constitutron of} lndia and against the mandatory^provisions of COTPA^{2003vide Sectlon 3 (p) and} further declare that tl e Respondent No.2 have no authority and^{jurisdictionto issue} the said notification⁽ ated. 06-0'l^-2020 against the mandatory^{provisionsof COTPA} 2003 and consequer tly direct the Respondents herein not to interfere and^harass, the smoothful, laMr I business activities of manufacturing, storing^{and saleof} tobacco products lik: ZARDA, KHAlNl, and other tobacco^{products,permissible} under the^provisions :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

¶158

lA NO: 1 OF 2020

¶159

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 be^p eased to pass an

¶160

¶161

Order, directing the respondents^{herein not to interfereandharassthe smoothful,} lawful business activities^{and Sale of Tobacco products permissibleunder the} provisions of coTPA 2003 by the Petitioner^{No.1 in the name and style of shaik} Shadullah Agencies 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 Weekly Bazar, situated^{at weeklyBazar, Bodhan, Nizamabad,Telangana} State in its firm, branches^{and godownsat Nizamabad, including transportationto} the shops, by suspending^{the lmpugned Notification issuedby the Respondent No.2} herein vide Notification^{No.501/FSS1 /2020, dated: 06-01-2020, pending disposal of} main W.P. in the interest^{of Justice}

¶162

Counsel for the Petitioners:^{SRI M. A. K. MUKHEED}

¶163

Counsel for Respondent^{Nos. 1,3 & 6: GP FOR HOME}

¶164

Counsel for Respondent^{No. 2: GP FOR MEDICAL, HEALTH &} FAMILY WELFARE

¶165

Counsel for Respondent^{No.4: GP FORCOMMERCIAL TAXES}

¶166

Counsel for Respondent^{No. 5: SRI N. RAJESHWAR RAO} ASSISTANT SOLICITOR^GENERAL

¶167

WP NO: 22174 OF 2020

¶168

Between:

¶169

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 hooiesi^{at. D.No.1b_8_332,Feelkhana, Hyderabad Telangana} State 5000'12

¶170

...pETt,oNER

¶171

AND

¶172

1 The State of Telangana,^{Rep by the Principal Secretary, Home Oepartment'} Secretariat, Hyderabad.

¶173

2 ii" Con,r'i..ioner,^{of Food Safety Directorate of lnstitute of Preventive tVledicine} pu6fic Heaftfi1iUs'anO fooJtiei'lth Adrinitttrtion^{Narayanaguda, Hyderabad}

¶174

? tne Director General^{of Police,TelanganaState} 4 ii.," c"r,i.,-i..io"e.. of Commeicial^{Taies Gruhakalpa Building Complex'} Nampally, Hyderabad,^{TelanqanaState}

¶175

E ih" boriinidtloner^{of Centrai Excise, Unionof lndia AayakarBhavan'} Basheerbaqh,^HYderabad

¶176

b i[" SG"tiii""d'ent^{of Police, Hyderabad, Telangana State} ...RESpoNDENrs Petition under Article^{226 of the constitution of lndia praying that in the}

¶177

circumstances^{statedin the affidavit filed therewith,the High court may be pleased} to pass an order/orders,^{or issue any direction/d irections or appropriatewrit more} particularlyinthenatureofWRlToFMANDAMUSdeclar|ngthelmpugned Notification issued^{by the Respondent No.2 hereinvideNotification No'501/FSS-} 1t2o2o,dated.06/01/2020imposingprohibitionofsaleofcertainTobaccoandPan

¶178

MasalaproductsunderSection30ofFoodSafetyandStandardsAct,2006and FoodSafetyandStandards(Prohibition&RestrictiononSales)Regulation2011'aS illegal, arbitrary^{and violativeof Article 14,21,19 (g) and 301 of Constitution of lndia} andagainstthemandatoryprovisionsofCoTPA2003videSection3(p)andfurther declare that^{the Respondent No.2have no authority and jurisdictionto issuethe said}

¶179

¶180

notification dated.06/0 l/2020 against the mandatory^provisions 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

¶181

lA NO: 1 OF 2020

¶182

Petition under iection 151 CPC praying that in the circumstances stated in the affidavit filed in su )port of the^petition, the High Court may be^pleased to^pass 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

¶183

Counsel for the Petit oner: SRI M. A. K. MUKHEED

¶184

Counsel for Responr ent Nos. 1,3 & 6: GP FOR HOME

¶185

Counsel for Respont ent No. 2: GP FOR MEDICAL, HEALTH & FAMILY WELFARE

¶186

Counsel for Responr ent No. 4: GP FOR COMMERCIAL TAXES

¶187

Counsel for Responr ent No. 5: SRI N. RAJESHWAR RAO

¶188

ASSISTANT SOLICITOR GENE RAL

¶189

WP NO: 22271 OF 20 20

¶190

Between:

¶191

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

¶192

AND

¶193

The State of Tt langana, Rep by its Spl. Chief Secretary to the Government Health trtledical and Family Welfare Department Secretariat Hyderabad

¶194

The State of Tr langana, Rep by Principal Secretary to Government Home Department Se :retariat Hyderabad

¶195

? The Commissk ner, of Food Safety Telangana Directorate of lnstitute of Preventive Mer icine Public Health Labs and Food Health Administration Narayanaguda Hyderabad 500029

¶196

4 The Director G rneral of Police, Telangana Telangana State Police Headquarters Lakdikapul Hyr erabad

¶197

The Superinter Cent of Police, Nalgonda District at Nalgonda

¶198

6 The Commissir ner of Commercial Taxes, Telangana C.T.Complex Nampally Hyderabad500 )01

¶199

7 Union of lndia, Rep by its Ministry of Health and Family Welfare Room No 348 A Wing Nirman E ravan New DelhillO011

¶200

8 The Commissir ner of Central Excise, Government of India Ayakar Bhavan Hyderabad

¶201

¶202

Food Safety and Standard Authority of lndia, Rep by its C.E.O. 3rd and 4th^Floor FDA Bhawan Kotla Road New Delhi^'1 10002 10.The Station House Officer, Kondamallepally Police Station, u'noL?pjB,l;Bl"r"

¶203

Petition under Article 226 oI lhe Constitution of lndia^praying that^{in the} circumstances stated in 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 the notification No 501/FSS1/2020 dated^{0610112020issued by} the 3rd respondent as being illegal arbitrary unconstitutional ultra^{vires the cigarettes} and other tobacco^{products prohibition} of advertisement^{and regulation of Trade and} Commerce Production Supply of Distribution^{Act 2003in violation of principlesof} natural^justice and in violation of articles 14,¹⁹ and^{21 of the constitutionof lndia} and consequently to set aside the same and direct^{the respondents not to interfere in} any manner with the trade and business^{carried out in the productsthat fall within} the said notification by the^{petitioner its personnel and the perso ns/entities to whom} those^prod ucts

¶204

lA NO: 1 OF 2020

¶205

Petition under Section 151 CPC^{prayingthat in the circumstancesstated in} the affidavit filed in support of the^{petition, the High Court may be pleased to direct} the respondents not to interfere^{and not take coercive steps in any mannerwith the} trade and business carried out^{in the products that fall within the impugned} notification i.e. notification No 501/FSS-1/^{2020, dated06101l202Oby the petitioner'} their^personnel and the^{persons/entities to whomthey supplythose products pending} disposal of the writ^petition

¶206

Counset for the Petitioner: SRI BALA^{MURALI Y}

¶207

Counsel for Respondent^{Nos. 1, 3 & 9: GP FORMEDICAL' HEALTH &} FAMILY WELFARE

¶208

Counsel for Respondent Nos.^{2,4, 5 & 10: GP FOR HOME}

¶209

Counsel for Respondent^{Nos. 6 & 8: GP FORCOMMERCIAL TAXES}

¶210

Counsel for Respondent^{No. 7: SRI N. RAJESHWAR RAO} ASSISTANT SOLICITOR^GENERAL

¶211

WP NO: 23313 OF 2020

¶212

Between:

¶213

Gangishetty Veer Kumar,,^{S/o Gangishetty Eshwaraiah,Aged about 39 yea1s.} oiJ"ausin6.s H.No.3-34,^{Gokul Nagar, Patancheru, Sangareddy District5g2} 319

¶214

"^PETlrloNER

¶215

AND

¶216

The State of Telangana,,^{Rep. by its Spl. Chief Secretary to the Government,} Health, tr/edical Af\iD Family^{Welfare Department, Secretariat'Hyderabad}

¶217

ihe Stit" of Telangana, Rdp.^{by Principbl Secretary to Government,Home} deoartment. Secretariat, Hvderabad.

¶218

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'

¶219

¶220

The Director Ger eral of Police, Telangana, Telangana State^Police Headquarters, L, kdikapul, Hyderabad.

¶221

The Superinteni rnt of Police,, Sangareddy^{District, at Sangareddy}

¶222

The Cohmissior er of Commercial Taxes,, Telangana,^{C.T.Compiex,Nampally,} Hyderabad-500( 31^.

¶223

Uhionoflndia,, llep.byitsMinistryofHealthandFamilyWelfare,RoomNo.34B A Wing, Nirman Jhavan, New Delhi-11001^1.

¶224

B. The Commissiot er of Central Excise,, Government^{of lndia, AyakarBhavan,} Hyderabad.

¶225

F6od Safety anc Standard Authority of lndia, Rep. by its CEO,^{3rd and 4th} Floor,FDA lihaw rn, Kotla Road, New Delhi-l 10002.

¶226

10.The Station Hou;e Officer, P.S. Zaheerahad Town, At Zaheerahad, Sangareddy District

¶227

...RE'P.NDENTS

¶228

Petition under Article 226 ol lhe Constitution of lndia^praying that in the circumstances stated n the affidavit filed therewith, the High Court^{may be pleased} to issue an appropriat^r writ, order or direction^particularly one in the^{nature WRIT OF} MANDAMUS, declari rg the notification No.501 /FSS-1/2020, dated^06.01.2020 issued by the 3rd res rondent as being illegal arbitrary, unconstitutio^{nal, ultra vires} the cigarettes and rther tobacco^products (prohibition of advertisement and regulation of Trade ar d Commerce, Production, Supply of Distribution) Act, 2003 in violation of principles of natural^justice 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 the^petitioners, their^personnel and the persons/entiti )s to whom they supply those products

¶229

lA NO: 1 OF 2020

¶230

Petition under iection 151 CPC praying that in the circumstances stated in the affidavit filed in s rpport of the^petition, the High Court may be^pleased 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

¶231

(Crime No.24312020 ns been corrected as Crime No.23412020 as per court order dated 05/0'1/2021 vid; lA No.1/2021)

¶232

lA NO: 2 OF 2020

¶233

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

¶234

Counsel forthe Petil oner: SRI ANUGU SANJEEVA REDDY

¶235

Counsel for Respon, lent Nos. 1, 3 & 9: GP FOR MEDICAL, HEALTH &

¶236

FAMILY WELFARE

¶237

¶238

Counsel for Respondent Nos.2,4, 5 & 10: GP FOR HOME

¶239

Counsel for Respondent Nos. 6 & 8: GP FOR COMMERCIAL TAXES

¶240

Counsel for Respondent No. 7: SRI N. RAJESHWAR RAO

¶241

ASSISTANT SOLIGITOR GENERAL

¶242

WP NO:23356 0F 2020

¶243

Between:

¶244

SYED MOUZAM, s/o late Syed Azarn, aged about 48 years. occ. Business, Proprietor of A-1 Pan shop, R/o H.No.20-5-510, Shakkar Gunj, Shalibanda, Charminar, Hyderabad.

¶245

QURESHI SYED ASGHAR, S/o late Syed Hussain, aged about 55 years. occ. Salesman of S.L. Enterprises. Rl/o. H.No .9-4-6116, Mehraj Colony, Towli chowki, Hyderabad.

¶246

...PETITIONERS

¶247

AND

¶248

The State of Telangana, rep by the Principle Secretary, home Department, Secretariat, Hyderabad.

¶249

The Commissioner of Food Safety, Directorate of lnstitute of Preventive Medicine. Public Health, Labs and Food (Health) Administration. Narayanaguda, Hyderabad, State of Telangana, Hyderabad.

¶250

3 The Director General of Police, Telangana State, Hyderabad.

¶251

4 The Commissioner of Commercial Taxes, Gruhakalpa building complex, Nampally,Hyderabad,Telangana State.

¶252

5 The Commissioner of Central Excise, Union of lndia. Aayakar Bhavan. Basheerbagh. Hyderabad.

¶253

The Station House officer cum lnspector of Police, Golconda, ,rd.l[?Or?%ro.*r"

¶254

¶255

Petition under Article 226 of lhe Constitution of lndia^praying that in the circumstances stated in the affidavit filed therewith, the High Court may be^pleased to^pass an order or orders, direction or issue a writ more^particularly one^{in the name} of writ of Mandamus, Declaring the lmpugned Notification issued by the^Respondent 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 Constitution^{of lndia and against the} mandatory^provisions of COTPA 2003 and set aside^{the saidNotification.and} consequently direct the respondent No.6 herein^{in registeringthe F.l.R.No. 31 '1 of} 2O2O dated. 16-11-2020 and seized the^{permissibletobacco and pan masala} products worth Rs.30,000/- from the shop of the petitioner No.-1 herein i.e. A-1^Pan Shop, Towli Chowki. Hyderabad, is illegal, and direct the^{respondent No.6 to return} the said seized material in connection with said^{F.l.R.No. 31'1 of 2020 to the} petitioner No.1, and further direct the respondents that not to interfere with the^trade and business of the^products that fall within the^{Notification No.50F/FSS-1/2020} dated. 6-1-2020 by the^petitioners and to the^{persons to whomthe products are sold,}

¶256

lA NO: 1 OF 2020

¶257

Petition under Section 151 CPC^praying that in the^{circumstancesstated in} the affidavit filed in support of the^{petition, the High court may be pleased to direct}

¶258

¶259

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.

¶260

lA NO: 2 2020

¶261

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.

¶262

Counsel for the Petiti< ners: SRI S. CHANDRASEKHAR

¶263

Counsel for Responde nt Nos. 1, 3 & 6: Gp FOR HOME

¶264

Counsel for Responde nt No. 2: Gp FOR MED|CAL, HEALTH & FAMILY WELFARE

¶265

Counsel for Responde nt No. 4: cp FOR COMMERCIAL TAXES

¶266

Counsel for Responde 1t No. S: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL

¶267

WP NO: 23709 OF 202r

¶268

Between:

¶269

M/s.Mr.MART. F eoistered- office at 1st Froor, Shangrira praza, Road No.2, .g?nj?fa^{Hiils, 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]^{" ''" '}

¶270

AND ...PEITIONER

¶271

The State of rera roana,-Rep. by spr. chief Secretary to the Government, Hearth, . YS-dXI^qC^{ram f werrare'il6{fi";i,5e-ciJi",iat, nvJeranrl.'""'" "} z. tne urare ot Ieta roana, Epq. nV principal Secretary io ihe Government, Home lepqrtment,^Secr -.iariai,^rf vleijbaO'-'-

¶272

The Commissionr r of .Food-Safety, Telangana, Director of lnstitute of preventive Med icine,^pubtic tea tth Labs and Food 0ieafniAoriiinird;il;;, Na;;i;.d;", Hyderabad - 500( 29.

¶273

The Director Gen :rar of porice, Terangana state, Terangana state porice Head -^{Quarters,Lakdlke tul, Hyderabad.} 5. The Commissionr r of pirlice, Hyderabad, Basheerbaoh. Hvderabart 6. The Commissiont r of potice, nacnaionaa C;ffi;;#nL;;i;]ilJullora 7. The Commissionr r of police, CyberabaO bJmmissionerate, Hyd;;t;;" 8. The Commissiont r of Commeriiat raxei, %iJngjn;,4 j.'C;,;p;tliilampalv, Hyderabad - S00( Oj.

¶274

S Vlig.n of .lndia, Rt c. by Ministry_of Health and Famity Welfare, Room r\vvrrr^u''j'ru,No.34B ^A-Wing,NirmanEravin,Newbetni-tioori.

¶275

'1 0. The commissiont r of centrar Excise, covlinment of rndia, Ayakar Bhavan, Hyderabad.

¶276

'1 1. Food s-afety-and r tandards Authority of -oelrri rndia, Rep. by its cEo, 3nd and 4th Ftoor, FDA Bhava r, Kota Road. ruei, - i I o'60 ;:^{"' "-""}

¶277

:.;;.r..

¶278

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

¶279

¶280

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 and^jurisdiction 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 the^provisions 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

¶281

lA NO: 1 OF 2020

¶282

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 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 Masala products etc., permissible under the^provisions 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 and^godowns 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

¶283

Counsel for Respondent Nos.^'1, 3 & 11: GP FOR MEDICAL, HEALTH & FAMILY WELFARE

¶284

Counsel for Respondent Nos. 2 & 4 to 7: GP FOR HOME

¶285

Counsel for Respondent Nos. 8 & 10: GP FOR COMMERCIAL TAXES

¶286

Counsel for Respondent No. 9: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL

¶287

The Court made the following: COMMON ORDER

¶288

¶289

¶290

THE HON'BLI THE CHIEF JUSTICE SATISH CHANDRA SHARMA AND

¶291

TH HON'BLE SRI JUSTICE N. TUKARAMJI

¶292

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

¶293

COMMON ORE ERi Per the Han'ble the Chief A$ace Sottsh Cllati& e Shernla)

¶294

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.

¶295

The ope:ative portion of the aforesaid order reads as under:-

¶296

"(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.

¶297

¶298

¶299

(56) In the light of the aforesaid, this Court does^not Iind 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."

¶300

In the light of the aforesaid, the^{present writ} petitions also stand dismissed. The^judgment delivered in W.P.No.19928 of 2O2l and batch shall^{be applicable} mutatis rru-Ltandis in the^{present casesalso'}

¶301

Let a copy of the order^passed by this^{Court in} W.P.No. L9928 of 2O2l and batch,^{dated 30.11.2021, be} kept on record in the present^cases.

¶302

The miscellaneous applications^{pending in these} writ petitions, if any, shall stand^{closed. Thereshall be}

¶303

no order as to costs.

¶304

SD/- B.SATYAVATHI ASSISTANT RE ISTRAR //TRUE COPY//

¶305

SECTION OFFICER

¶306

To,

¶307

'1 . One CC to Sri Pochaiah Dorishetti Advocate IOPUCI 2. Two CCsto GP ForHome,^{HighCourtfortheStateofTelangana.} IOUI - s. rwo ccs to GP For^{N/edical, Health& Familywelfare, Highcourtfor the state} of Telangana. [OUT]

¶308

One CC-to Smi. C. Sunitha^{Kumari, Advocate (OPUC)} s. one cc to sri^{Namavarapu RajeswaraRao, Assistant Solicitor Ge,neral(oPUC)} O. fwo CCs to GP For CominerciSl^{Taxes, High Court for the State of Telangana.} IOUT]

¶309

bne CC to Sri Srinivas^{Reddy Balakisti, Advocate (OPUC)} B, One CC to Sri^M. A.^{K. Mukheed,Advocate(OPUC)} 9. One CC to Sri Ir/R. Boggula^{Raju,Advocate (OPUC)} 10 One CC to Sri Y. Bala^{lVlurali, Advocate(OPUC)} 11 One CC to Sri Angu Sanjeeva^{Reddy,Advocale-(OftJC)} 1' One CC to Sri S. enandia^{Sekhar' Advocate (OPUC)} '13 One CC to Sri Somavarapu^{Satyanarayana,Advocate,(OPUC)-} - tar."g^{wiih i copy of oiderdited 3d.1'1.202'lin w.P.No.19928of 2021 and} batch)

14.Two CD Copies

'15. One Spare CoPY

MBC

At'l-L

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

¶319

HE SIA'i
( q
') 2 S DEC?f;?l
I
, . .,.,

¶320

DISMISSING THE WRIT PETITIONS

¶321

WITHOUT COSTS

¶322

.^+
tl\

¶323

THE HON'BLE THE CHIEF'JU STICE SATISH CHANDRA SHARMA AND

¶324

THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY

¶325

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

¶326

COMMON ORDERa Per the Hon'ble the ChieJ Justice Satish Chandla Sharma)

¶327

(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.

¶328

(2) Facts of the Writ Petition No.19928 of 2O2l are narrated hereunder.

¶329

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

¶330

)

¶331

2006). The cetitioner^{has challengedthe impugned} Notification o r the^{ground that itis illega-I, arbitrary,} unconstitutiotol, ultra^{uires the Cigarettes and Other} Tobacco Pro, lucts^{(Prohibition ofAdvertisementand} Regulation of Trade and^{Commerce, Production, Supply} and Distribu'ion) Act,^{2O03 (hereinafterca-lled,'COTPA} 2003) and is in violation^{of principles of natural justice} and is also i:L violation^{of Articles14 and 19(t)(g) of the} Constitution^{, rf} India.

¶332

(3) The lea: ned counsel for the^{petitioner stated before} this Court hat the^{petitioner's businessisbroadly} concerned wi -h pure tobacco and^{scented tobacco,which} are markete< under the brand^{nannes Phoolchap (pure} tobacco) and VI Tobacco^{(scented tobacco).}

¶333

(4) In the^,rther connected matters,^{the petitionersare} carrying on he business either^{of wholesale distribution} or sale of pa r masala mixed with tobacco^{and other allied} products. Tl e petitioners' contention is that^{the COTPA} 2003 is a :entral legislation dealing exclusively^with tobacco ind rstry, traceable to Entry 52, List I of^the Seventh Scl .edule of the Constitution of^{India and it} provides a⁽ omprehensive legislation r,t'hich governs the law on tobar co products and is occupying the field. It has

¶334

¶335

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.

¶336

(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 tobacco^{products and} tax is levied under the Centrai Goods and Services^Tax Act, 2017. Meaning thereby, the statute^{does not prohibit} trade and business in tobacco products at all.

¶337

(6) The petitioners further contended that the^PSS Act 2006 is an Act that regulates^{food standards and the}

¶338

¶339

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.

¶340

(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

¶341

¶342

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.

¶343

(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

¶344

¶345

mentioned in the impugned^{Notilication are exclusively} regulated by t re COTPA 2003, they^{are not all coveredby} the FSS 6q1 )rtO6 and therefore, the impugned^Notification is ultra uires t. re FSS Act 2006 and the^COTPA2003.

¶346

(9) The pe titioners further contended that the respondent l,^{r.3/Commissioner} of Food^{Safet5r,Telangana} 1S jurisdictic na1ly incompetent to issue a.ny. such Notification ir exercise of powers conferred under^Section 30(2) of the I SS Act 2006 as the products mentionedⁱⁿ the Notificatir n are not covered by the^FSS Act 2006^and they are cov :red under the Schedule appencled to^the COTPA 2003 It has been lurther contended that^the impugned Nc tification deprives the petitioners and other connected p( rsons of their valuable rights^guaranteed under Article t9(1)(g) of the Constitution of India.

¶347

(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

¶348

¶349

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 for^a period of one year, the Notifications expired by afflux of time.

¶350

(11) The petitioners have raised various^{groundsbefore} this Court for setting aside the impugned^{Notification.}

¶351

(12) It has been contended by the learned counsel for the petitioners that the COTPA 2003 is a comprehensive^code and a special law dealing with all aspects^{of the tobacco} products and tobacco industry, whereas the^{FSS Act 2006} deals with the broad area of^{food safety and standards.} The FSS Act 20O6 even though^{enactedsubsequent to the}

¶352

¶353

COTPA 2003⁽ oes not either expressly or impliedly^{seek to} override the C fTPA 2003. Therefore, the application of^the well settled pr.nciple that special law prevails over^general 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.

¶354

(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) .

¶355

(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

¶356

¶357

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 Food^Safety Regulations, 2O1l does not cover chewing^tobacco.The said Regulation makes a dichotomy^{between 'tobacco' on}

¶358

¶359

one hand anc 'food products' on the other hand,^which were implies that :hewing/chewable tobacco^products 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.

¶360

(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

¶361

¶362

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.

¶363

(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

¶364

¶365

under Artic e 2t of the^{Constitution of India'The} petitioners f rrther contended^{that a completeban on} trade and br siness^{adversely affects the livelihood of the} petitioners a:.d other connected^persons.

¶366

(17) The pettioners further^{contendedthat the impugned} Notification v as issued^{without asking for the views of the} persons engeged in the trade^{or business of the tobacco} products an< | it is mandatory^{to grant opportunityof} hearing to tl Le affected^{stakeholders before passing an} administrativ : order.^{Therefore,the issuance of the} impugned Nc tification^{violates the principlesof natural} justice. The petitioners further contended^{that Section 31} of the FSS Act 2006^{mandatesevery food business} operator to o:tain a^{license, such a requirement. is not} mad.e applica:le for the^{personscarryingon business in} the products^{:overed under the COTPA 2003' In fact, the} same was clarified^{by the respondent No'6/FoodSafety} and Standarr I Authority^{of India by its letter dated} 10.i0.2012 tc^{a query raised by a personengaged in the} trade of such^{productsin Delhi' Similar clarificationhas} also been^is sued^{by the Food Safety Authority of} Uttarakhand. the^{petitioners further contendedthat while} the Food^S rfety^Regulations ,^{2Ol1 provide safety} standards wit:r^{respect to every type of food extending}

¶367

¶368

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'.

¶369

(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

¶370

¶371

further cont,,nded that the^{non-obstante clause under} Section 89^r,f the FSS^{Act 2006 does not enable the} authorities rnder the said^{statute tooverride the} provisions of the COTPA 2003, since^{it is settled 1aw that} even a non-c bstante clause^{in a subsequent general law} cannot overri le a^prior special^{law. The petitioners further} contended th rt the^{prohibition that can be imposedunder} Section 30(2 (a) of the^{FSS Act 2006 can be for a} maximum pe'iod of one^{year. This itself reflects that the} power therei. r was given to be^{exercised under some} emergent ex raordinary^{circumstancesand not ina} routine man oer. However,^{the respondentNo'3/the} Commissione of Food^{Safety, Telangana by repeatedly} issuing those Notifications^{year after year and ensuring} that a produ, t is banned in^{perpetually,is nothingbut} abusing the^p cwer conferred^{on it and it also amounts to} colourable ext rcise^of Power.

¶372

(19) The peti ioners have^{further contended that various} writ petitions have^{been decidedby different High Courts} and the matt:r is^{pending before the Honble Supreme} Court and as the Hon'ble^{Supreme Courtis seizecl of the} issue, the^{pre;entpetitions be decided after Judgmentis} delivered by tl^{e Hon'ble Supreme Court' However,the fact} remains that .n respect^{of the impugned Notif,tcation, no}

¶373

¶374

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.

¶375

(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

¶376

I t956 scR 3q3 '^{tgsg scn329} r 1962 Supp (3) SCR I o lreoz; I scR zze t (tqz:) 2 scc 2t8

¶377

"^(r976) 2 scc 99

¶378

'(rggo)^{e scc} t:o 81reaz; r scc:za '(rgag)^{I scc:+s} ro 11990; 1 scc 12

¶379

¶380

U.P.11, State rf Andhra^{Pradeshv. McDowell& Co.,12, SIEL} Limited v. Unj rn of^{India13,ITC Limited v. Agricultural Produce} Market Comr itteera,^{S.Samuel, M.D., HarrisonsMalayalamv'} Union of Indie^15, Gulati^{& Co., v. Commissionerof SalesTax16,} and Dharampr I^{SatyapalLimited v. State of AssamlT'}

¶381

(2 1) The res )ondent^{No.3/Commissionerof FoodSafety,} Telangana he s filed^{a detailed counter affidavit and it has} been stated that^{the petitionersare engaged inthe} wholesale bu;iness^{of the products like chewing tobacco'} The products contain^{pure tobacco,flavouredtobacco and} scented toba:co. It^{has been stated that the chewing} tobacco^prod lcts^{flavoured with some spices suchas} cardamom, rr enthol,^{clove etc., includesscented tobacco'} This also inc. udes^{edible perfumes and therefore,as per} the FSS Act .1006,^{the spices and other edible perfumes} added to the :hewing^{tobacco comes under the definition} of 'food'.It ha; been^{statedthat the law of the land is very} clear and the^{FSS Act 2006 read with Regulations framed} thereunder^{p: ovides that no food' product shall contain} tobacco and^{nicotine as ingredient' The stand of the} respondent^{Nt .3 is that the petitioner whileobtaining GST}

¶382

'r^{( tggo)t sccto9} ''^{(t990)3 scc lo9} 'r^{(r9gs)z sccz6}

¶383

'o^{(zooz)9 scc232} ''^{(zoo+)t scczso} to eotq A scc z\a

¶384

''^{(2018) 2 GauhatiLauRePons168}

¶385

¶386

¶387

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.

¶388

(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

¶389

¶390

Areca-Nut or Betel Quid^{or Supari.The Report includes} the harmful affect^{on humanbody. As per the Report} submitted t y NIHFW,^{the term 'smokelesstobacco'} includes la'ge variety^{ofcommercially ornon-} commercially available^{products and mixtures that} contain tobar co as^{the principal constituent and are used} either orally through^{the mouth) or nasally (through the} nose) withou combustion'^{As per the Report, threeforms} of smokeless tobacco,^{which are commonlyused in India} are as under:^'

¶391

(1) Tobac, o alone (with^{aromaand flavourings)} -^{e g'} Cream' or dry snuff,^{Gudakhu,Gul, Mishri, Red} tooth tr ower.

¶392

(2) Betel pid ttith tobacco^{(includes areca nut, slaked} lime, c itechu and tobacco^{with spices)} -^{e.g. Gutkha'}

¶393

(3) Tobac, o with other components^(lime, sodium bicarbr nate, ash) e.g. Khaini, Zarda, Maras, Naswa .

¶394

(23) The resl rondent No.3^{has furtherstated that as per} the NIHFW I [ealth^{Report,there are as many as 3095} chemical con^{ponents in smokeless tobaccoproductsand} out of them, 28^{are proven carcinogen' The major and} most abundt nt^{group of carcinogens is the tobacco -} specific N-nil:osamines^{(TSNA) and no safe level of this} chemical has been ascribed^{so far. The other carcinogens} reportedly^pr )sent in^{smokeless tobacco include volatile} N-nitrosamin^{)s, certain volatile aldehydes, poly-nuclear}

¶395

¶396

¶397

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

¶398

¶399

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.

¶400

(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

¶401

¶402

¶403

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.

¶404

(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

¶405

rs 1to8o; t scc t6z

¶406

¶407

No.3 has fur her^{brought to the notice of this Court that} the Hon'ble Supreme^{Court in the case of GodawatPan} Masala Produc^{:s I.P., Limlted v. Union of Indiale has held that} gutka, pan n.asala^{and supari are food articies' Further'} the Allahaba I High^{Court in the case of ManoharLal v'} State of U.P.,^{(lriminal Revision No.318 of 1982\ and in the} case of Kheda^{n Lal and Sonsv. Stateof U'P',2orelying on the} decision of^t :re^{HonbleSupreme Court in the case of} R.Krishnamurr hy^{(supra), has held that'cheuingtobacco'is} an article of f^rod.

¶408

(26) The res )ondent^{No.3 has furtherstated that the} Food Safety I egulations ,^{2}ltwas notified on 01'08'2011} in exercise of^{powersconferredunder Section 92 read with} Section 26 o'.^{tine FSS Act 2006 and Regulation 2'3'4 of} the Food^{Sa ety Regulations,2}llprohibit the use of} tobacco and^{nicotine in all food products' It has been} further statec that^{the FSS Act 2O06 also defines the word} 'ingredient'wd'foodadditiue'andtobaccoiscertainlyan additive, whi:h^{is commonly sold under various brand} nalnes.

¶409

(271 Tine res rondent^{No.3 has brought to the notice of} this Court^{that theHon'ble Supreme Courtln}

¶410

te lzooa; z scc 6E 20 1980 crilJ 1346

¶411

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).

¶412

(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

¶413

¶414

(Transfer Care Civil No.1 of^{2010,dated23'09'2016l} directing the Authorities^{to ensure total ban and its} compliance o r manufacturing^{and sale of gutka and pan} masala with tobacco and/or^{nicotine.The respondents} have further stated,^{that in the light of the Order passed} by the Ho: rble Supreme^{Court, theletter dated} 05.12.2016 i/as issued by^{the Ministry ofHealth} requesting al, the State^{Governments/Union Territories to} pass necessa y orders to ensure^{that the Order passed by} the Honble S rpreme Court^{has been compliedwith.}

¶415

(29) The res rondent No.3 has^{furtherstated that the} COTPA 2003 is an Act enacted^{to discouragethe use of} tobacco with ;;reat emphasis on^{protectionof childrenand} young people from being addicted to the^{use of tobacco} and prohibits smoking in^{public places, sale of tobacco} products to minors and within 100^{yards ofany} educational ir stitution,^{direct and indirect advertisement,} promotion ar d sponsorship of^{tobaccoproducts and} mandates dis'rlay of^{pictorial health warnings on tobacco} product packe ges. The respondent^{No.3 has furtherstated} that the petit: tners'^{arguments on the subject that there} is a conflict t etween^{the COTPA 2003 and the FSS Act} 2006 is misc tnstrued^{and they occupy different fields} altogether. Th: respondent^{No.3 has placedreliance upon}

¶416

¶417

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).

¶418

(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

¶419

t' aln 1984 sc l t3o "^{(tggs)I scc 5t+}

¶420

r1 1995 Supp (t) SCC 187 "^{atRtqgq sczoqa} tt aln 2ooo sc l5:5

¶421

¶422

in consonant e with the statutory^{provisionsgoverningthe} field under t ee FSS^{Act 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: State^{Government has rightlyimposed} reasonable r:strictions in^{the matter of manufacture,} distribution, ltorage, transport^{and sale of gutka or pan} masala, wh ch contains^{tobacco and nicotine as} ingredients^r nd chewing^{tobaccoproducts like chap} tobacco, kha ni, kharra,^{scented/flavoured tobacco'The} respondent } o.3 has^{further stated that the petitioners} have not beer able to^{makeout any case beforethis Court} and the restr ction imposed^{by the State is a reasonable} restriction an I does not^{warrantany interference.}

¶423

(3 1) The resrondent No.6/Food^{Safety and Standards} Authority of tndia has^{also filed adetailedcounter} affidavit and. i: has^{been statedthat the FSS Act 2006 was} enacted. by tl^Le Parliament^{for laying down scientifically} based standads^{for articles of food and to regulatetheir} manufacture, storage,^{distribution,sale and import and to} ensure availa^{rility of safe and wholesome food for human} consumption.^{It has been furtherstated that Section 92 of} the FSS Act 2006^{empowersthe authority to make} regulations^v ith the^{previous approvalof the Central}

¶424

¶425

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.

¶426

(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

¶427

¶428

latter Act. T1 Le respondent No.6 has^{also placedreliance} upon the def nition clause,^{which defines 'food.'and' it has} been argued vehemently that^{pan masalawith tobacco} and tobacco :ertainly fall under the^{definition of 'food' as} they are i rtended for human^{consumption' The} respondent^rlo.6 has also^{placed reliance upon the} Judgments o' the Hon'ble Supreme^{Court in the case of} P.K.Tejani v. fl.R.Dangszo, R.Krishnamurthy^{(supra), Krishan} Gopal Sharma v. Government of^{NCT of Delhi27, Godawat Pan} Masala Produc is I.P. Limited^{(supra), Laxmikant v. Union of} rndia28 and tl e Judgment of the High^{Court of Keralain} W.P.No.12352 f 2o]-2 and other connected^matters.

¶429

(33) The resl ondent No.6 has also brought to^{the notice} of this Cour: that Minutes of the^{Expert Committee} constituted b' the Ministry of Health and^{Family Welfare} which has r ecommendbd^a complete ban^{on gutka} containing tol acco/tobacco^{products/tobacco. It has been} stated that la^ge number of^{peopleare dying out of cancer} and the acti^rn taken by^{the State Governmentis in} consonance vith the^{directions issued by the Hon'ble} Supreme Cou t from time^{to time. Therefore,a prayer has} been made fot dismissal^{of the writ petitions.}

¶430

'o^{(1974) I scct6?} :'lroeoy e scc sn '?6^{1te9r;a scc t:s}

¶431

¶432

(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.

¶433

(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:-

¶434

"GoVERNMENT oF TELANGANA

¶435

Office of the Commissioner of Food Safety, Directorate Institute of Preventive Medicine, Public Health Labs, Food (Health) Administration, Telangana State, Narayanaguda, Hyderabad - 500 029.

¶436

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.

¶437

Ref: 1. Food Safety and Standards Act,2006. 2. Regulations 2.3.4 of FSS (Prohibition and Restriction on Sales) Regulations 20 1 I .

¶438

1. G.O.Ms.No.01 of Health, Medical & Family Welfare (C2) Dept., dated 04.01.2016.

¶439

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.

¶440

¶441

Whe'eas section^{3(1)[) of FSS Act 2006defines that} "Food" me rns^{any substance,whetherprocessed,partially} processed or unprocessed,^{which is intended for human} consumpti ;n and^{includes primary food, to the extent} defined in :lause^{3 (ZK) geneticallymodified or engineered} food or f( od containing^{such 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^, any^{animal feed, live animals unless theyare} prepared )r^{processedfor placing on the marketfor} human cc tsumption,^{plants prior to harvesting,drugs} and mec icinal^{products,cosmetics,narcoticor} psychotrotr ic substances.

¶442

The lon'ble Supreme^{Court of India in Godawat Pan} Masala v. Uol^{(2004)7 SCC 68, while dealing case on} prohibitior on sale of Gutka^{in the Stateson 02 08 2004} vide Civil rppeal^{No.4674of 2OO4(SLP (C) No 24449 of} 2OO2l helc that^{Gutka or panmasalahavingtobacco or} nicotine at : food^{items. Gutka/Panmasala whichcontain} tobacco an I nicotine^{as ingredients and Chewing Tobacco} products ike Chap^{Tobacco, Pure Tobacco, Khaini'} Kharra, Sr ented^{Tobacco/Flavoured Tobaccopackedin} pouches/s Lchets / containers^{etc., or by whatever name it} is called ir herently^{falls within the definition of "lbod"as} defined un ler^{Section 3(1)fi) oftheFSSAct, 2006'}

¶443

Scier tific Reports/^{opinionsof ICMR(lndian Council} of Medical^{Research)and NIHFW (National Instituteof} Health an, .^{Family Welfare)demonstrate the extremely} harmful el^{'ects of consumptionof Gutka/ Panmasala/} Chewing T^{rbacco such as Cancers (Oral) pre-malignant} lesions/cot ditions) -^{OesophagealCancer,Stomach} Cancer,^Pz ncreatic^{Cancer, Throat (pharynx and larynx)} cancer, rei^{ra1 cancer,Non cancerous-deteriorationof} Oral-denta health,^{Hypertension&Cardiovascular}

¶444

¶445

diseases, Consumption of such products is injurious to health.

¶446

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.

¶447

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.

¶448

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.

¶449

Accordingly the following notification will be published in the Extraordinary issue of the Telangana State Gazette.

¶450

NOTIFICATION

¶451

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

¶452

¶453

entire Sta .e of^{Telanganafor a periodof one year with} effect frorr 10fr January,^2021."

¶454

(36) The p( titioners have^{challenged the impugned} Notification on the^{ground that it isillegal,} unconstitutic nal^{and ultra uires the COTPA 2003 and is} also in viole tion of^{natural justice and fair play' The} undisputed l rcts^{of the case reveal that the Notification} imposes prot ibition^{of manufacture,storage,distribution,} transportatio I and^{sale of gutka/panmasala which} contains tobe cco and^{nicotine as ingredientsand chewing} tobacco prod tcts^{like chap tobacco,pure tobacco,khaini,} kharra, scenl:d tobacco/flavoured^{tobaccoor by whatever} name locally it is^{called, packed in sachets/pouches/} packages in the entire State^{of Telangana'Meaning} thereby, th: sachets/pouches^{containingscented} tobacco/toba:co and,lor^{pan masala, whichcontain} tobacco and nicotine^{are the subject matter of the} Notification.

¶455

(37) It is an rnd'isputed^{fact that the tobacco is the main} cause of can:er^{and the statistics pertaining to tobacco} related morta^{ity and cancer are detailed as under:-}

¶456

'Global

¶457

Acc rrding to the^{World Health Organisation} (WHO), tob tcco kills more^{than 8 millionpeople each year'} More than ' million^{of those deaths are the resultof direct}

¶458

¶459

¶460

tobacco use while around 1.2 million are the result of nonsmokers being exposed to second-hand smoke.

¶461

Natlonal

¶462

According to the National Health Mission under the Ministry of Health and Family Welfare, Government of India, mortality due to tobacco in India is established at upwards of 13.5 lakhs (Report on Global Adult Tobacco Survey GAT 2, 2016-171. If the current trend continues and effective steps are not taken to control tobacco consumption, it is estimated that by the year 2020, tobacco use will account for l3o/o of ai1 deaths in India every year.

¶463

According to Cancer Statistics, 2020: Report for National Cancer Registry Programmes, India, based on population-based cancer registries (PBCR) data, almost one-third of the cancers were known to be associated with the use of tobacco in India. India State-level Disease Burden Initiative cancer collaborators estimated that tobacco use was the highest contributing risk factor for cancer in India.

¶464

Available estimates in India show that smokingattributable annual deaths were about 930,000, while the smokeless tobacco (SLT) attributable annual deaths were about 35O,00O, together accounting for about 12,8O,OOO deaths per year or approximately 3500 deaths every day. (According to Jha P, Jacob B, Gajalakshmi V et a1, A Nationaily Representative Case-Control Study of Smoking and Death in India. New England Journal of Medicine, 2008; 358 and Sinha DN, Palipudi KM, Gupta PC, et al. Smokeless tobacco use: a meta-analysis of risk and attributable mortality estimates for India. Indian J Cancer. 2Ol4;57 Suppl 1: 573-771.

¶465

As per the WHO Global Report (2Ol2l on "Morta-lity attributable to tobacco', 7o/o of all deaths (for ages 30 and over) in India are attributable to tobacco.

¶466

¶467

TelanEana

¶468

Thr age adjusted mortality^{rate (AAMR)of}

¶469

Hyderabac District -^{reported for 2074-16} -^{is 4.8 per} 1O0,OO m. iles and 2.O^{per 100,000females.Also, the} relative pr, portion of cancer^{sites associated with the use} of Tobacco in Hyderabad^{ts 42.2o/oin maies and 13.5% in} females. (l ccording to ICMR-NCDIR,^{Report on Sites of} Cancer As sociated with^{Tobaccouse in India-Findings} from the National Cancer^{Registry Programme, 2021,} Bengaluru India)

¶470

As rer ICMR-NCDIR,^{Prolile of Cancer and Related}

¶471

factors - lelangana^(2021}, the^{prevaienceof current} tobacco us : (smoking andlor^{smokeless)in adults over 15} years of ag (for 2016) is as follows:

¶472

Total - 17 8o/o Males - 25.9%o^Females -^9.8o/i'

¶473

National Far .tlv Health Survev -^{5 (2O19'2O21)}

¶474

The recent survey conducted by^{NFHS-Sreveals} that the t( bacco usage^{among males across India was} 38%, in ru ra1 areas accounting^{fot 42.7o/o of usersThe} urban user I of tobacco among^{men and women accounted} for 28.8o/o t nd 5.4o/o respectively.^{The usageof tobaccois} resulting ir various kinds of cancers^{like breastcancers,} cervical car cers and cancers^{of other organs'}

¶475

(38) The rele'ant statutory^{provisionsunder the FSS Act} 2006, which^rLre necessary^{for proper adjudication of the} present writ p )titions, are reproduced^{as under:-}

¶476

"3 () " ertraneous^{mottef means any matter} contained i t an^{article of food which may be carriedfrom} the raw ma erials,^{packagingmaterialsor process systems} used for its manufacture^{or which is added to it, but such} matter does not render such^{article of food unsafe;}

¶477

3 (j) "food' means^{any substance,whether} processed, :artially processed or^{unprocessed, which is}

¶478

¶479

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.

¶480

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.

¶481

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;

¶482

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;

¶483

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;

¶484

¶485

3 (z l) "manufacture/ means a^{person engaged in} the businr ss of manufacturing any^{article of food for sale} and inc1u, es any^{personwho obtainssuch articlefrom} another p, rson and^{packs and labels it for sale or only} labels it fo such purposes;

¶486

3 (21 ) "primary food" means an^{articleof food, being} a produc, of agriculture or horticulture^{oran imal} husbandrl and dairying or^{aquaculture in its natural} form, resr lting from the^{growing, raising,cultivation,} picking, hz rvesting, collection or catching in^{the handsof} a person o her than a farmer^{or fisherman;}

¶487

16 (1 Duties and functions ofFood^{Authortty.' (1) It shall} be the duf of the Food Authority^{to regulate and monitor} the manufi cture, processing, distribution,^{sale and import} of food so z s to ensure safe and^{wholesome lood.}

¶488

18(1)l ll General prlnclples to be followed^{ln administration} of Act.- Tht Central Government,^{the State Governments,} the Food l uthority and other^{agencies, as the case may} be, while ir rplementing the^{provisions of this Act shall be} guided by t re following principles, namely.-

¶489

(1) (a endeavour to achieve an appropriate^{level of} protection , f human life and health and the^protectionof consumers' interests,^{includingfair practicesin all kinds} of food trat e with reference to^{food safety standardsand} practices;

¶490

I esponslblllttes of^{thefood buglneeeoperator'-} (1) Every f rod business^{operatorsha1l ensure that the} articles of fr od satisfy^{the requirements of this Act and the} rules and egulations^{made thereunderat al1 stages of} production, processing, import,^{distribution and sale} within the t usinesses^{under his control.}

¶491

(2) N< food business operator^{shall himselfor by an} person on t is behalf manufacture,^{store, sell or distribute} any article^r 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.

¶496

(2) The Commissioner of Pood Safety shall perform all or any of the following functions, namely:-

¶497

(a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specil-red in the order notified in this behalf in the Official Gazette;

¶498

(b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food;

¶499

(c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety;

¶500

(d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility;

¶501

(e) sanction prosecution for offences punishable with imprisonment under this Act;

¶502

(0 such other functions as the State Government may, in consultation with the Food Authority, prescribe.

¶503

¶504

(3) t he Commissioner of food Safety may, by Order, delegate,^,ubject to such^{conditionsand restrictions as} may be s. 'ecified in the^{Order,such of his powersand} functions under this Act^{(except the power to appoint} Designater Oflicer, Food Safety Officer^{and Food Analyst)} as he ma' deem necessary or^{expedientto any olficer} subordina e to him.

¶505

9?. F epeal aad eevlags.-^{(1) With} effect^{from such date} as the Cen :ral Government^{mayappoint in this behalf, the} enactment and orders specilied in^{the Second Schedule} shall stanc repealed:

¶506

Prov Ced that such repeal shall^{not affect-}

¶507

(i) the previous operations of the^enactrnent and orders under repeal or^{anythingdull/} done or suffered thereunder;^or

¶508

(ii) any right, privilege, obligation or^liability acquired, accrued or incurred^{under any of} the enactment or Orders under^{repeal; or}

¶509

(iii) any penalty, forfeiture or punishment incurred in respect of any^offences committed against the enactment^and Orders under rePeal; or

¶510

(iv) any investigation or remedy in^{respect of any} such penatty, forfeiture or^{punishmentand} any such investigation,^{legal proceedings or} remedy may be instituted,^{continued or} enforced and any^{such penalty, forfeitureor} punishment may be imposed,^{as if this Act} had not been Passed:

¶511

(2) If ther< is any other iaw^{for the timebeingin forcein} any State,^r orresponding^{to this Act, the same shall upon} the comme lcement of this^{Act, standrepealedandin} such case, the^{provisionsof section 6 of the General} Ciauses Ac ., 1897^{( 10 of 1897)shall apply as if such} provisions⁽ [the State law had^{been repealed.}

¶512

(3) Notwitl standing the repeal^{of the aforesaid enactment} and Order t, the licenses^{issued under any such}

¶513

¶514

¶515

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.

¶516

(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."

¶517

(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,

¶518

¶519

partia-Uy pro( essed or unprocessed, which^{is intended for} human cor sumption, certainly^{includessmokeless} tobacco prod ucts like^{gutka, pan masala, kharra, khaini} or any rther similar^{product likechewing} tobacco/flavr ured tobacco^{within the definitioo of 'food'} under the FS I Act 2006.

¶520

(a0) The H,,n61. Supreme Court in^{thecase of} R.Krishnamurt hy (supra) has^{held that all that is required} to classify a product as 'food' is^{that it has to be used} commonly fo human consumption^{or in preparation of} human food. \ot only this, the^{Hon'bleSupremeCourt in} the case of G odarat Pan^{Masala Products(supra)has held} that gutka, p m masala and supari as^{food articles. The} Allahabad Hil h Court in the case of^{Manohar Lal v. State of} u.r., (Crimina Revision No.318 of^{19821 and in the case of} Khedan Lal ant Sons (supra) has held^{that'chewingtobacco'} is an article o food.

¶521

(a1) The Foo t Safety Regulations,2oll^{was notifiedon} 01.08.2011 ir: exercise of^{powers conferred underSection} 92 read witl Section^{26 of the FSS Act 20O6 and} Regulation 2 3.4 of the said^{Regulations expressly} prohibits use :f tobacco and nicotine^{in all food products} and the sarne s reproduced^{as under.}

¶522

¶523

"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."

¶524

(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'.

¶525

(a3) The Honble Supreme Court in S.L.p. No.1630g of 2OO7, dated 03.04.2013 has passed the following order.

¶526

"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.

¶527

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.

¶528

¶529

In r iew of the^{statement made by the learned} Additional Solicitor^{General, we order issue of notice to the} Chief Secr :taries^{of the States and the Administratorsof} the Unior^{Territorieswhich have so far not issued} notificatiol in terms^{of 2006 Act to apprisethis Court with} the reaso IS as to^{why they have not takenaction} pursuant¹ I letter dated^{27 .O8.2012.}

¶530

We e lso direct the^{Secretaries, Health Department of} all the 2€ States^{and 5 Union Territories to fi1e their} affrdavits within^{four weeks on the issue oftotal} complianc, of^{the ban imposed on manufacturing and sale} of Gutkha rnd^{Pan Masala with tobaccoand/or nicotine'}

¶531

Put.rp on O3.05.2O13.

¶532

The ?egistry is^{directed to send copies of this order} to the Cl ief^{Secretaries and the Secretaries,Health} Departmer t as^{also theAdministratorsofUnion} Territories Secretaries^{of the Central and State Pollution} Control Bc ard.^{Copies be also sent to the Commissioners} of 9 Mur-' .cipal^{Corporationsnamed hereinabove The} copies of ;rder be^{sent by fax withinfour days lrom} today."

¶533

(4a) The afo'esaid^{order makes itvery clear that the} Secretaries, Health^{Department of allStates/Union} Territories^{w( re directed to reportcompliance of complete} ban in^respe lt^{of manufacturingand sale of gutka and} pan masala v ith tobacco^{and/ornicotine'}

¶534

(45) Various States^{and Union Territories haveissued} necessary or,[ers/notifications^{under Regulation 2'3'4 of} the Food Saft ty^Regulations ,^{2OlL read with Section 30 of}

¶535

¶536

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.

¶537

(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

¶538

¶539

health and l rotection^{of the right to life of the citizens of} the country and^{the purpose, aim and the object of the} Food Safety Regulations,^{2011 is to ensure safetv/health} of citizens of lhis^{country by prohibiting any article of food} which are iq urious^{to the health of general public' It is an} undisputed lact^{that tobacco productswhich are subject} matter of t. re^{impugned Notification are injuriousto} general healt r of the Public.

¶540

(47) Learnec counsel for^{the petitioners have argued} before this C turt^{that there is a conflictbetu'een the FSS} Act 2006 a-r C COTPA^{2003. Section 89 of the FSS Act} 2006 makes t^{very clear that it has overridingeffect of all} the legislatio rs including^{the COTPA2003'The FSS Act} 2006 has b, en enacted^{later to the COTPA2003and} therefore, th,^: FSS Act^{2006 will prevail over the COTPA} 2003. The la^v laid^{on the aforesaidissue is no longer res} integra. The Hon'ble^{SupremeCourt in AllahabadBank} (supra), Anay Kumar^{Banerjee(supra)and s'Prakash (supra)} has held as t nder:-

¶541

"a.^{1 /here two Central Acts appear to be seemingly} in conflict with each^{other, the endeavour of Court should} be to harn onize^{the two Acts seemingly in conflict'}

¶542

b. <sup>Ihere there is a^{direct conflict(repugnancy)} between t^yo special^{Acts, both being special laws,the} foilowing r rles shall^aPPIY:

¶543

(i) Tl e later Act will^{prevailover the earlier Act'}

¶544

¶545

(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."

¶546

(a8) The Honble Supreme Court in the case of

¶547

R.Krishnamurthy (supra) has held as under:_

¶548

"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

¶549

¶550

otherwise^{lescribedor exhibited; itneed not evenbe} necessarily^{intended for human consumption;it is enough} if it is 3enera1ly^{orcommonly used forhuman} consumptir^{n or in the prepa'rationof humanfoodWhere} an article^{s generally or commonlynot used for human} consumpti' 'n^{or in the preparation of humanfood but for} some othe^{:purpose, notwithstandingthat itmay be} capable^{ol beingused, on rare occasions'for human} consumpti^{rn or in the preparation of human food' it may} be said,^{d.t pendingon the facts and circumstances of the} case, that^{it is not "food'' In such a case the question} whether^{it is intendedfor human consumptionor in the} preparatio^{L of human food may become material' But} where the^{article is one which is generally or commonly} used for^{I .uman consumptionor in the preparationof} human^{fo< d, there can be no question but that the article} is "food".^{( iingerlyoii, mixed or not with groundnutoil or} some othr^{roil, whetherdescribed or exhibited as an} articleofflodforhumanconsumptionoraSanarticlefor external^{r se only is "food"within the meaningo[ the} definition^{,ontained in Section 2(u) of the Act"}

¶551

(49) KeePin5^{in view the aforesaid definition' the articles} mentioned^{i rthe impugned Notificationare} certainlY includedwit]Linthedefinitionof,food,andthisCourtdoes not find^{ar y reason to interfere with the impugned} Notification.

¶552

(s0) Learner.^{counselfor the petitionershas PlacedheavY} reliance^{uPln the Judgmentdelivered in the case of} Godawat^{Pan Masala Products(supra)'However' the said} Judgment^{u a's delivered prior to enactment of theFSS Act}

¶553

¶554

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:-

¶555

"Definition of 'food' under the Prevention of Food Adulteration Act, 1954:

¶556

2(vl "food' means any article used as food or drink for human consumption other than drugs and water and includes-

¶557

(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

¶558

(b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.

¶559

Definition of 'food' under the FSS Act 200,6:-

¶560

"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;

¶561

Provided that the Central Government may declare, by notification in the Oflicial Gazette, any other article as

¶562

¶563

food for thr purposes of^{this Act having regards to its use,} nature, sul stance or^qualitY."

¶564

(51) The defi rition of 'food':under^{the FSS Act 20O6 is a} very wide ar rd exhaustive^{definitionand as per the} definition un( er the FSS^{Act 2006, any substance, which} is intended f rr human^{consumption is includedin the} definition of 'food'.^{Not only this, even in the case of} Godawat Pan lt asala^{Products (supra), the Hon'ble Supreme} Court has he d that^{pan masala or gutka to be covered} under the de, Lnition of 'food'.^{However,only on a limited} issue of^{juri;diction,} it^{was held that the power of} prohibition is only vested with the Central^Government and not with the State Food^{and Health Authorities.The} d.efinition of 'food' has^{witnessedasea changeand} keeping in vit w Section 89 of^{the FSS Act 2006, as the} FSS Act 200( is having overriding^{effect over the other} statutes, the respondent No.3/^{Commissionerof Food} Safety, Telang ina was well^{within his competence to issue} the impugned Notification banning^{the food itemswhich} are subject Tratter of the^{Notification.The Honble} Supreme Cou t in the^{case of Laxmikant (supra), held as} under:-

¶565

"10. Iherefore, the International^{Conferetrce held} in collabora ion with the World Health^{Organisation was of} the opinion that the ban on use of^{tobaccoin toothpaste} and toothp^rwder should totally^{be imposed since itis}

¶566

¶567

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."

¶568

(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.

¶569

(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:-

¶570

'61. After taking into consideration^{the 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, the^judgment of the Supreme Court in Ghodawat case and

¶571

¶572

the mater: el^{on record, and after considering the rival} submissiot s and^{the decisions cited at the Bar' we are of} the view tl^{at this is not a lit casefor granting any of the} interim rel^{efs prayedfor by the petitioners Hence' prayer} for interil 1^{stay against the implementationofthe} impugned^{statutory order dated 19thJu1y2021 issued by} the Food^{Safety Commissioner,Maharashtra State in} public int rrest in^{exercise of the power conferredby} Section 3t^{(2)(a) of the Food Safetyand Standards Act'} 2006 is re.^:cted."

¶573

(5a) No intt rim^{relief was granted inrespect of the} Regulations.^{Challenges were made throughout India and} various ordel s^{have been passed by the State ofTelangana} by which a I^{rayerfor grant of interimrelief was rejected'} The Bombal^{High Court in its recent Judgment in the} case of^{Mob rmmad Yamin Na€em Mohammadv'State of} Maharashtra2!, in^{similar circumstances,has exhaustively} dealt with^{I :gislativecompetenceof the State and the} restrictions i nposed^{by the State Government'Paragraphs} 40 to 45 of tl^Le said^{Judgmentare reproduced as under:-}

¶574

"40. I lot^{has been said about COPIA, holdingthe} field as a1 ainst^{the FSSA.In this regard, it is material to} note, thar COPIA^{was enacted on 1815 l2OO3, in which} Section 3^{(p) defines "tobaccoproducts'to mean the} products rpecified in^{the schedule'The scheduleat Serial} No. 8, s1^{,ecifiesPan Masala or any chewingmaterial} having tc aacco^{as one of its ingredients (by whatever} named ct lled)^{and at Serial No' 8 specifies Gutkha To} understat d basic^{difference between the provisionsof} COPTA a rd FSSA,^{it is necessary to consider whatis}

¶575

2e 2o2l scc online lom 26

¶576

¶577

contemplated by Sections 5, 6 and 7 of COTPA, which for ready reference are reproduced as under:-

¶578

Prohlbltion of advertlseEeat of clgarettes and other tobacco products.-

¶579

(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.

¶580

(2) No person, for any direct or indirect pecuniary benefit, shall-

¶581

(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or

¶582

(b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or

¶583

(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or

¶584

(d) erect, exhibit, fix or retain upon or over any Iand, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:

¶585

Provided that this sub-section shall not apply ln relation to-

¶586

(a) an advertisement of cigarettes or any other tobacco product in or on a package

¶587

¶588

containing cigarettes or any^{other tobacco} product;

¶589

(b) advertisement of cigarettes or^{any other} tobacco product which is^{displayed at the} entrance or inside a^{warehouseor a shop} where cigarettes and any other^tobacco products are offered for distribution^{or sale.}

¶590

(3) No l erson, shall, under a contract^{or otherwise} promote o agree to promote the^{use or consumptionof--}

¶591

(a) cigarettes or any other tobacco^product;or

¶592

(b) any trade mark or brand name^{of cigarettes} or any other tobacco^{productin exchangefor} a sponsorship, gift,^prize ot^scholarship given or agreed to be given by^another person.

¶593

Prohi ritlor on sale of clgarette or^othertobacco Products to a per8o, below the age of elghteen^{years and ln} Particular area.-No pr rson shall sell, offer^{for sale,or permitsaleof,} cigarette c i' any other tobacco^{product-(a1 to an1' person} who is ur der eighteen^years of age, and^{(b) itl an area} within a r rdius of one hundred^{yards of any educational} institution

¶594

Rest, ictlon3 on trade and commerce^{ln, and production'} supply and tlstrlbutlon of clgarettes^{and otbertobaccoproducts.'} (1) No person shall, directly or indirectly,^produce, supply or distribute cigarettes or any other^tobacco product i unless every package of cigarettes^{or any} other tobacco products produced, supplied^or distribr::ed by him bears thereon, or on its^label [such specifie I warning including a^{pictorial warning as may} be pres, ribed.

¶595

(2\ No person shall carry on trade or commerce in cigarett:s or any other tobacco products unless^every packagt of cigarettes or any other tobacco^products sold, st pplied or distributed by him bears thereon,^or on its lE be1, the specified warning.

¶596

(3) No person sha11 import cigarettes or any other tobacco products for distribution or supplv for a

¶597

¶598

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.

¶599

(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.

¶600

(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

¶601

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.

¶602

It would thus be apparent that Section 5 deais with prohibition of advertisement of cigarettes and other tobacco products; Section 6 deals with prohibition on sale to person below the age of 18 years and in particular area; Section 7 deals with restrictions on trade and commerce in, production, supply and distribution of cigarettes and other products, uniess every package bears the specified warning; Section 8 provides the manner in which specified warning shall be made; Section 9 provides the language of the warning; Section 1O provides size of letters and figures of the warning; Section 11 provides the testing laboratory for nicotine and tar contents; Section 13 provides for the power to seize, whereas Section 14 provides for confiscation; Section 15 speaks of an option to pay cost in lieu of confiscation; Section 17 provides for adjudication; Section 18 provides for an opportunity based upon the

¶603

¶604

principles⁽ f^{natural justice; Section 18 providesfor an} appeal.^{Th< other provisions providefor punishmentand} forfeiture.^{'hat is materialto be noted is that COPTAhas} not been^{g: ,en any overridingeffectupon any other lau"} holdingthelieldorwhichmaybeenacted'Theregulatory mechanisrr^{in COPTA is restrictedto ensuringthat the} sale, storaS^{e, distribution, of cigarettesand other tobacco} products i^{r not withoutthe warning label and is to} persons ab^{rve the restrictedage and to discourage the use} of tobacco'^{COITA does not deal with the longterm effects} of smokin ;^{and consumptionof tobaccoand other} products o^r the^{health of citizens'}

¶605

As tgainst^{this, the FSSA is a more comprehensive} Act, dealin ;^{with the largerissueof Safety and Standards} of Food in^{the country and in view of Regulation2 3'4'} prohibitin5 use^{of tobacco and nicotine as ingredients in} any food^{:roducts in the Food Safetyand Standards} (Prohibitio t^{and Restrictions On Sales) Regulations' 2011;} by includir^{g Pan Masala in Regulation 2'11'5'Anti-caking} agents in^{Regulation3' 1'7 inthe Food Safetyand} Standards^{(FoodProducts Standardsand Food Additives)} Regulatior s,^{2011, has included tobaccoand tobacco} products, inciuding^{Gutkha and Pan Masalawithin the} definition :f food as^{enumeratedin Section3 U) of the} FSSA.

¶606

In^{'act, in Raju LoxmanPachopurev' The State of} Kamatak< , l(2)l2l^{2 FAC 3781 itself'relied uponby} Mr. Bhan;de,^{Iearned Senior Counsel for the petitioners'} the Cour ,,^{while consideringthe provisions ofthe} Preventior^{of Food Adulteration Act' 1954' the harbinger} of the FSf^{A, in juxtaposition with those of COPTA'placing} reliance upon^{thejudgmentin GodawatPan} Masala(s rpra)^{noticedthe difference between the two} enactmen^{.s, as under:}

¶607

"25. ll is^{true the ApexCourt in GodautatPan} Masala':^{case held that mere traces of magnesium}

¶608

¶609

carbonate formed during consumption^{of product along} with lime cannot be banned, but in the instant^case anticaking agerfi viz., magnesium carbonate is^not found during consumption but the analytical^report discloses that magnesium carbonate is contained^{in the} very sample which, in our considered opinion may^be either externally added or^{present in the raw materials'} Whatsoever the case may be, the report^{disclosesthat} there is usage of anticaking^{agentviz., magnesium} carbonate in the food article in^{question namely gutka.} That apart Supreme Court in the^{verysame decision} held that the^p visions of PFA Rules framed and directions issued th ereunder^{cannotbesaid as not} applicable mere1v because lice^nce is^{contemplated for} manufacture of eutka under the Cisarettes^an d^other Tobacco Products ProhiL,ition of Trade a^nd Commerce Production. Supplv and Distribution) Act.^2003.The PFA Act was le islated^for the^preventi on of adulteration of food whereas Ci arettes^{and other} Tobacco Products^{(ProhibitionofTrade and Commerce.} 0 Productio n. Suoolv and^{Distribution) Act. 203is} intended to orohibit ad^{vertisinsand to resute the} trade and as such there is^{noconflictbetweenthe} leeislative ob iects between^{the two enactments."}

¶610

(emphasis supplied)

¶611

Section 89 of the FSSA^{being materialis} reproduced as under:

¶612

'89. Overrirllng^{effect of thls Act over all otherfood related} laws.- The Provisions of this^{Act shall have effect} notwithstandins anvthin inconsistent therewith contained in anv other law for^{the timebeineln} rce or in any instrument having^{effectby virtue of anylaw} other than this Act."

¶613

(emphasis supplied)

¶614

It is thus material to^{note that Section 89 of the} FSSA, gives the^{provisionsof the FSSA, an overriding}

¶615

¶616

effect on L1l other food related laws. Once it is^{held that} tobacco a rd other products, fall within the^{definition of} food as e :rumerated in Section 3 [) of the^FSSA,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.

¶617

(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.

¶618

¶619

(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.

¶620

SATISH CHANDRA SHARJUA, CJ

¶621

A.RAJASHEKER REDDY, J

¶622

30.rt.202r Pln

¶623

Note: LR copy be marked. (By Order) P1n

Maa Bakery Kagaznagar v. The State of Telangana

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Maa Bakery Kagaznagar v. The State of Telangana

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