Challenges to the notification restricting trade in gutka, pan masala and tobacco products were dismissed. The court applied its earlier batch judgment upholding the notification mutatis mutandis and closed pending miscellaneous applications, without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
.l l.l T
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)
FRIDAY, THE THIRD DAY OF DECEIVBER
TWO THOUSAND AND TWENTY ONE
PRESENT
THE HON'BLE THE CHIEF JUSTICE SATISH CHANORA SHARMA ,AND
THE HON'BLE SRI JUSTICE B.VIJAYSEN REDDY
wRt T PETITION NOS: 2339, 2I 7 AND 5444 0F 2021
wP NO.2339 0F 2021:
Between:
M/s. Ratanlal Heeralal Bhati, a proprietorship firm, represented by its proprietor Bankatlal Bhati, s/o Hiralal Bhati, Age. 45 years, Occu. Business AdOrtiss. 1S-Z373, Begum Bazar, Hyderabad - 500012, Telangana.
...pETtTloNER
AND
.,.RESPONDENTS
Petition under Article 226 of the Constitution of lndia praying that in the circumslances stated in the affidavit filed therewith, the High court may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction declaring the notification No. 50S/FS S-112021 , dated 06101l2OZ1 issued by Respondent No.3 as being illegal, arbitrary, u nco nstitutional, ultra vices the 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 ol the constitution of lndia and consequenfly to set aside the same and direct the respondents not to interfere in any manner wlth the trade and business carried out in the products that fall within the said notification by the petitioner, its personnel and the persons/entities to whom it supplies those products and also not to harass them in any manner
lA NO: 1 OF 2021
Petition under Section 1sl cpc praying that in the circumstances stated rn the affidavit filed in support of the petition, the High court may be pleased to suspend the notification No. 505/FSS-1i2021, dated 06101t2o21 issued by
Respondent No. 3, an I consequently direct all the respondents not to interfere in any manner with the cond rct of trade and business carried out in the products that fa, within the said notifica ion by the petitioner, their personner and the pe rsons/entities to whom thepetitione suppries those products and arso not to harass them in any manner, pending dispc;al of the above writ petition Counsel for the petitic ner: SRI SRIRAM POLALI
Counsel for Responde tt Nos. 1, 3 & 6: Gp FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for Responde rt Nos. 2 & 4: Gp FOR HOME
Counsel for Responder t No. 5: Shl N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
WP NO: 2957 OF 21
Between:
M/s.Sri Venkates rwara General_ _Agencies, Rep. by Kotagirl Ganaadhar ;i?bi;r##{nft nA?:fl#?si[::,: ::ar::.l;:i,:; r:,*11#l
AND
.PETITIONER
&:"J: I XI:y t',i:* [:1 t #tzg1i " "
4 reransana' reransana state Porice Headquarters, ij!,1:L"ir:fi.ii3!:jJ ,1""
Petition under Artic t 226 of the Constitution of lndra praying ...RESPONDENTSthat in the circumstances stated in thr affidavit fired therewith, the High court may be preased to issue writ of mandamur or any appropriate writ, order direction declaring the Notification No. 505/FSs-1r 202'1 , dated 06101l2o21 , issued by the 3rd Respondent as being illegal, arbitrary, unconstitutional, ultra vices the cigarettes and other Tobacco Products (Prohibi ing of Advertisements and Regulation of rrade and commerce, Production, Sul cly and Distribution) Act, 2003, in violation of principles of natural justice and in violi tion of Article.,l3, 19, and 21 of the constitution of lndia and consequently to set asio l the same and direct the respondents not to interfere in manner with the trade and br siness carried out in the products lA NO: 1 OF 202 1
Petition under sectior 151 cpc praying that in the circumstances stated in the affidavit filed in support ( f the peti on, the High court may be pleased to direct
t'(
the Respondents notto interfere in any mannerwith the trade and business carried out in theproductsthat fall withinthe impugned notification (i.e., Notification No,505/FSS-1/2021,dated o6to1l2o21)by the Petitioner, its personnel and the pe rso ns/entities to whom it supplies thoseproducts
lA NO: 2 OF 2021
Petition under Section151 CPC praying that in the circumstances statedin the affidavit filed in support ofthe petition, the Highcourt may be pleased to suspend the Notification No.505/FSS-112021 ,daled0610112021, issued by the 3rd Respondentpending disposal of themainWritPetition
lA NO: 3 OF 20?1
Petition under Section 151 CPCpraying that in the circumstances stated in the affidavit filed in support ofthe petition,the High courtmay be pleased to restore the present Writ Petition andlist it for hearing at the earliest
Counsel for the Petitioner:SRI B. SHANKER
Counsel for Respondent Nos.1, 3 & 9: GP FOR MEDICAL' HEALTH & FAMILY WELFARE
Counsel for Respondent Nos. 2,4& 5: GP FOR HOME
Counsel for Respondent Nos. 6& 8: GP FOR COMMERCIALTAXES
Counsel for Respondent No.7: SRIN. RAJESHWARRAO ASSISTANT SOLICITOR GENERAL
WP NO: 5444 OF 2021
Between:
Sri VenkateshwaraTraders,A Proprietary Concern, 2-1-110, PrakashamGuni, Karim Nagar, KarimNagar District, Rep. by its Proprietrix, t,, ,,'0u..'rt'ilL'=
AND
Petition under Article 226 of the Constitution of lndiapraying thatin the circumstances stated in the affidavit filed therewith, the High Courtmay be pleased to issue Writ, Order or Direction moreparticularly one in thenature of Writ of
Mandamus declaring tl e Notification No. 505/FSS-112021 daled 06-01-2021issued by the 3rd respondentr s illegal, arbitrary, unconstitutional, ultravires, the Cigarettes and other Tobacco Prc iucts Prohibiting of Advertisements and Regulation of Trade and Commerce Produ, tion, Supply and Distributlon Act, 2003 and nviolationof principles of natural j rstice and in violat on of Articles 13, 19 and 21 of the Constitution and conse luently direct the respondents not tointerfere in any manner with the trade and busir ess carried out in theproducts fall within the said notification by the petltioner by sett'rg aside the said notification
lA NO: 1 OF 2021
Petition under Sr ction 151 CPCpraying that in the circumstances stated in the affidavit filed in stpport of thepetition, the High Court may bepleased to suspend the notificaticr No. 50S/FSS-112021 dated 06-01-2021 issued by the Respondent No.3 pendirg disposal of Writ Petition
Counsel for the Petitior er: SRI VENKATA RAGHU MANNEPALLI
Counsel for Responder t Nos. 1;3 & 9: GP FOR MEDICAL, HEALTH & FAMILY WELFARE
Counsel for Responder:Nos. 2,4 & 5: GP FOR HOME
Counsel for Responden r Nos. 6 & 8: GP FOR COMMERCIAL TAXES
Counsel for Responden No.7: SRI N. RAJESHWAR RAO ASSISTANT SOLICITOR GENERAL
The Court made the foll, wing: COMMON ORDER
C
II \
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SIIARMA AND
TIIE HON'BLE SRI JUSTICE B. REDDY
WRIT PETITION Nos.2 339,2957 and 5444 of 2O2L
COMMON JUDGMENTi lPer the Hon'ble the Chtef Justice Sansh Chandra Sharma)
Learned counsel lor the parties have informed this Court that the conlroversy involved in the present cases has already been adjudicated on account of an order passed by this Court in W.P.No. 19928 of 2O2l and batch, dated 30.1 t.2O2t.
The operative portion of the aforesaid order reads as under:-
"(55) The Division Bench of the Bombay High Cou has dealt with all the issues, similar to the issues raised in the present writ petitions. In the considered opinion of this Court, the question of interference by this Court in respect of Notihcation which is bound to save human lives cannot be faulted with in any manner. The entire globe is facing COVID-19 pandemic and ttre death rate on account of gutka/pan masala and other tobacco products is more than the deaths which are taking place on account of pandemic. The 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 right to carry on trade guaranteed under the Constitution.
(56) In the light of thc aforesaid, this Court does not find any reason to intertere u.ith the impugned Notification and resultantl), rhe u,rit peritions are dismissed. Miscellaneous petitions, if anY penciing. shall stand dismissed. There shall be no order as to costs.'
In the lighr of rhe aforesaid, the present writ petitions also stand dismissed. The judgment delivered in W.p.No. 199 2g of 2O2l and batch shall be applicable mutatis mutand.is in the present cases also.
\
Let a cop r of the order passed by this Court in W.p.No.1992g of 2021 and L 1tch, dated 30.1I.202t, be kept on record in the present cases.
The mis:ellaneous applications pending in these ufrit petitions, if an3, shall stand closed. There shall be no order as to costs.
SD/- K.VENKAIAH
ASSISTANT REGISTRAR
//TRUE COPY//
SECTION OFFICER
To,
1 One CC to Sri Srit tm Polali Advocate [OPUC] 2 Two CCs to GP F )r lvledical, Health &Family Welfare, High Court for the State of Telangana. [OL l'l 3 Two CCs to GP F:i Home, High Courtfor the State of Telangana. [OUT] 4 One CC to Sri Nar ravarapuRa-jeswara Rao,Assistant Solicitor General (OPUC) 5 One CC to Sri B. I hanker, Advocate(OPUC) 6 One CC to Sri Ver kat RaghuMannepalli, Advocate (OPUC) 7 Two CCs to GP Fr r Commercial Taxes,High Court for the State of Telangana. lourl
ialon-qwith a cop /of O.rderdated 30.11.2021in W.P.No.19928 of 2021and batch)
tsy
)
HIGH COURT
DATED: 0311212021
e
i:,
,! I DEo ?-0?-1
I *
:t
COMMON ORDER
WP NOs.2339, 2957AND 5444 OF 2021
DISMISSINGTHE WRIT PETITIONS
WITHOUT COSTS
f,-V-<br>t.r V
THE HON'BLE THE CHIPF JUSTICE SATISH
DRA RMA
AND
THE HON'BLE SRI JUSTI CE A.RAJAS HEKER REDDY
| wP,Nos.7992E,20022,21277,21314,27944,2LSSZ,2rc62,2t529,2tS4S, 21547,21555,21569,21A31,21886,27a99,21914,21939,22297,2231O, |
|---|
| 22322, 22325, 22s30, 22333, 22349, 22369,22376,22388,22390, 22392, |
| 22416. 22423, 22425, 22432, 22447,224aO,22482, 22498,225O7,22560, |
| 22569,22s73,22s86, 2263s, 22708, 22728, 22732, 22762, 22764, 227a5, |
| 22808, 22846,2285O,22868, 22A9s,22a97,22898, 2293O,22941, 22969, |
| 22943,23OOO,23036,23O5A,23069,2312a,23132,2s182,23186, 23209, |
| 23257, 232a4, 232a6, 23292,23321,23350,233s8,23476,2s4go,2ss28, |
23s99,23629,23633,23802,24O8A,24273, 242as, 24467,24475,24s97, |
| 24698, 24927, 24929,2sO49,25073,2sO74,25OA3,25114, 25724,25737, |
| 2s2O3,25206, 25267, 2s272,253Os,2s472, 2sssa,25702, 2s773,2s74O, |
| 2s898, 259Os, 2s933, 2s9A4,26196,26368,26467,26570,26618,26738, |
| 26972, 27044, 27138,27279,27364,27406, 27459,281Oo and2BZO4o! 2021 |
COMMON ORDER: (Per lhe Hon'ble tlle Chtef Justice Satish Chandra Shonna)
(1) Regard being had to the similitude in the controversy involved in the present cases, the writ petitions \vere analogously heard and by a common order, they are being disposed of by this Court.
(21 Facts of the Writ Petition No.19928 of 2O2l ote narrated hereunder.
The petitioner before this Court, which is a proprietorship firm engaged in the business of wholesale distribution and retailing of chewing/chewable tobacco products and cigarettes, has filed this present writ petition being aggrieved by the Notification No.505/FSSl/2021 , dated 06.01.2021 issued by the respondent No.3/Commissioner of Food Safety, Telangana inexercise of powers conferred under Section 30 of theFood Safety and Standards Act, 2006 (hereina-fter called 'FSSAct
2
2006'1. The petitioner has challenged theimpugned Notification on the ground that it is illegal, arbitraqr, unconstituti tnal, ultra uires tt:re Cigarettes and Other Tobacco Pr rducts(Prohibition of Advertisement and Regulation < f Trade and Commerce, Production, Supply and Distribr tion) Act, 2003 (hereinafter called, 'COTPA 2OO3) and i ; in violation of principies of naturaljustice and is also n violation of Articles 14 and 19(1)(g) of the Constitution of India.
(3) The lea'ned counsel for the petitioner stated before this Court that the petitioner's business is broadly concerned w th pure tobacco and scented tobacco, which are markete, I under the brand narnes Phoolchap (pure tobacco) and VI Tobacco (scented tobacco).
(4) In the , 'ther connected matters, the petitioners are carrying on'he business either of wholesale distribution or sale of par. masa-la mixed with tobacco and other a,llied products. Th : petitioners' contention is that rhe COTPA 2003 is a r entra,l legislation dea,ling exclusively with tobacco indtstry, traceable to Entry 52, List I of the Seventh Sch :dule of the Constitution of India and it provides a c,,mprehensive legislation which governs the law on tobac< o products and is occupying the field. It has
been stated that the COTPA 2003 deals with tobacco products and therefore, the products mentioned in the impugned Notification issued under FSS Act 2006 are covered in the list of products specified in the Schedule of COTPA 2003.
(5) The petitioners further contended that the legislative policy in respect of tobacco products as evident from the provisions of COTPA 2003 is not to impose a complete ban on tobacco products and it certainly regulates and imposes restrictions on the trade and business with respect to advertising the products, smoking in public places and pictorial warnings on the ill-effects of consuming tobacco on packaging material of those products etc. It has been further contended that the legislative policy is to permit trade and business in tobacco products subject to reasonable restrictions. It has been further contended that the countr5z's taxing statutes aJso permit trade and business in tobacco products and tax is levied under the Central Goods and Services Tax Act, 2077. Meaning thereby, the statute does not prohibit trade and business in tobacco products at all.
(6) The petitioners further contended that the FSS Act 2006 is an Act that regulates food standards and the
l
production, listribution and consumptionof food. It is a general law that covers all aspectspertaining to food safet;r, trace able to Entry18 of List III of the Seventh Schedule of the Constitutionof India and the FSS Act 2006 does r ot define 'tobaccoproducts' nor it provides any power I rr prohibition inthe trade and business of such produc s. It hasbeen furthercontendedthat COTPA 2OO3 being, r special lawpertaining to subject matterof 'tobacco pro lucts' and 'tobaccoindustry' that overrides the FSS Act 2006 which is ageneral law pertainingto 'food produ :ts and food safety' andtherefore,the provisions c t the FSS Act 2006 cannotimpinge or encroach up )n €my subjectmatter,that is exclusively governed by t he COTPA 2003.
(71 The p:titioners furthercontended thatthe Regulations tnade underthe FSS Act 2006 cannot travel beyond the I eld coveredby the FSS Act 2006 and they cannot encrc achupon the areas covered by the COTPA 2003. It has beenfurther contendedthat in exercise of powers confe'red under Section92 of the FSS Act 2006, the Food Sa'etyand StandardsAuthority of India has issued Regul rtionstitled 'the Food Safetyand Standards (Prohibition e nd Restrictions onSales)Regulations,2011 (hereinafter t alled,'Food SafetyRegulations,2011')' The
-i
Regulation 2.3.4 of the said Regulations provides that tobacco and nicotine shall not be used as ingredients in any food stuffs and that the tobacco per se is not treated as food and therefore, the FSS Act 2006 nor the Food Safety Regulations, 2OLl framed thereunder empowers the Authorities to impose a ban in respect of trade and business of tobacco.
(8) The petitioners further contended that the impugned Notification is ultra uires 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 trood Additives) Regulations, 201"1, '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 specilically covered under the special law COTPA 2OO3, the provisions of the FSS Act 2006 and Rules/Regulations made thereunder govern pan masala. Insofar as the pan masala in combination u.ith 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 tobaccoproducts
6
mentioned ; r the impugned Notificationare exclusively regulated b1 the COTPA 2003, they are not allcoveredby the FSS Act 2006 and therefore, theimpugned Notification is ultra uires lhe FSS Act 2O06 and theCOTPA 2003.
(9) The l retitioners further contended that the respondent . {o.3/Commissioner of Food Safety, Telangana 1S jurisdict onally incompetent to issue any such Notification n exercise of powers conferred under Section 3O(2) of the FSS Act 2006 as the products mentioned in the Notificat on are not covered by the FSS Act 2006 and they are co'ered under the Schedule appended to the COTPA 200 i. It has been further contencled that the impugned N >tification deprives the petitioners ald other connected f ersons of their va-luable rights guaranteed under Articlt t9(t)(g) of the Constitution of India.
(10) The pe itioners further contended that earlier also, such Notificr Ltions were issued by the State Government and this Cor rrt has quashed the criminal proceedings by passing a de.ailed Judgment in Criminal Petition No.3731 of 2018 and batch, vide Judgment dated 27.O8.2O1a 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
1
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 lg.t2.2olg. 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 2'1, 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 Notilications was only for a period of one year, the Notifications expired by afflux of time.
(11) The petitioners have raised various grounds before this Court for setting aside the impugned Notification.
(i2) 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 PSS Act 2006 even though enacted subsequent to the
8
COTPA 200:i does not eitherexpressly or impliedlyseek to override the COTPA 2003. Therefore,the application of the well settled >rinciple that speciallaw prevails over general law, even iI the generallaw issubsequent, the COTPA 2OO3 will pr:vail over theFSS Act 2006 when it comes to regulation o tobaccoproducts.Thus, the power conferred under Sectic n 30(2) of theFSS Act 2006 does not extend to prohibit the tobaccoproducts,which isthe sole prerogative c t the COTPA 2003.
(13) It has been further contended that theRules, Regulations md Notifications shouldnot only conformto the parent s:atute but also shallnot be contrary to any other statute since subordinate legislationcannot violate a plenary legis ation. The impugned Notificationin banning trade or b'tsiness in tobaccoproducts, imposesa prohibition which is beyond thelimited extent of prohibition ir nposed under Section6 of the COTPA2003 (i.e., sale to I ersons under18 years of age and in an area within 100yr rds of aneducational institution).
(14) It has b:en furthercontendedthat if any prohibition on the trade orbusiness of tobacco productsis to be imposed in a ldition towhat is coveredunder Section6 of the COTPA )003, thesarne can be done only by an
9
amendment to the COTPA 2003. However, by issuing the impugned Notilication, the respondent No.3/the Commissioner of Food Safety 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 2003. 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 can 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, 2OLl does not cover chewing tobacco. The said Regulation makes a dichotomy between 'tobacco'on
l0
one hand a Id 'foodproducts' on the other hand, which implies tha chewing/chewabletobacco productswere never inten, ted to be coveredunder the Food Safety Regulations , 2011. Thus, byno stretch ol imagination, the impugned Nttification coverschewing/chewabletobacco products. Tt e issuance of the impugnedNotificationis a complete no r-application ofmind and the same violates the Article 1. of the Constitutionof India.
(15) The pe'itioners further contended thatsincethe impugned Nr tification is ultrauires the FSS Act 2006 and the COTPA 2OO3, the restrictionimposed onthe petitioners' ; ights to carry on trade and businessin chewing/che vable tobaccoproducts has no legal basis. Meaning the reby, the prohibition imposed iswithout backing of li w as mandated under Article19(6) of the Constitution of India. Thus, theprohibition imposed by virtue of the impugned Notificationis in violation of the petitioners' f rndamental right to carry outtradeand business un, ler Article19(1)(9) of the Constitutionof India. Thepe itioners furthercontended that Section6 of the COTPA 2 003 imposes a completeban in respect of extremely vul rerable or importantsubjects (i'e., to protect individuals u rder the age of 18 years and studentsand protect indivi iuals from the harm ofpassive smoking),it
ll
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 thal 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 within the meaning of Article i9(6) of the Constitution of India.
(16) The petitioners lurther contended that by virtue of the impugned Notilication, 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
t2
under Arti, 1e 2l of the Constitution of India.The petitioners urther contended that a complete ban on trade and b rsiness adverseiy affects the iivelihood of the petitioners e nd other connected persons
(17) The pe itioners further contended that the impugned Notification vas issued without asking for the views of the persons eng rged in the trade or business of the tobacco products ar d it is mandatory to grant opportunity of hearing to'he affected stakeholders before passing an administrati'e order. Therefore, the issuance of the impugned N rtification violates the principles of natural justice. The retitioners further contended that Section 31 of the FSS Act 2006 mandates every food business operator to rbtain a license, such a requirement is not made applicr ble for the persons carrying on business in the products covered under the COTPA 2003. In [act, the sarne was cl rrified by the respondent No.6/Food Safety and Standa d Authority of India by its letter dated 10.10.20i2 t> a query raised by apersonengagedin the trade of suct products in Delhi. Similar clarificationhas also been i;sued by the Food Safety Authority of Uttarakhand The petitioners further contended that whiie the Food l,afety Regulations, 2Ol1 provide safety standards w: :h respect to every type of food extending
o
13
even to parl 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 itsell does not treat the above products as falling within the meaning of 'food'.
(18) The petitioners further contended that interpreting Section 30(2)(a) of the FSS Act 2006, the power to issue a Notification such as the impugned Notification would lead to a paradoxica-L situation where the respondent No.3/the Commissioner of Food Safety can issue a Notification in one area of the State and not in another, with respect to tobacco products, which is otherwise permitted. Similarly, the Commissioner of Food Safetv of one State mav 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 tJ:e ban to chewing tobacco and pure tobacco products, whereas the State of Karnataka and several other States have not issued similar Notifications. The petitioners
l.+
further con ended that thenon-obstante clause under Section 89 of the FSSAct 2006 does not enable the authorities under the saidstatute tooverride the provisions o the COTPA 2003, since itis settled law that even a non- lbstante clause ina subsequent general law cannot overr de aprior speciallaw. The petitionersfurther contended tl at theprohibition thatcan be imposedunder Section 3O(1 t)(a) of the FSS Act2006 can be for a maximum pr riod of one year. This itselfreflectsthat the power there n was given to be exercised undersome emergent e> traordinary circumstances andnot ina routine mar rner. However, the respondentNo.3/the Commissiont r of Food Safety, Telangana by repeatedly issuing thos, Notificationsyear afteryear andensuring that aprodu ct is banned inperpetually,is nothing but abusing the'rower conferred on it and ita-lso amounts to colourable ex :rcise ofpower.
(19) The pettioners have further contendedthat various writ petitions have been decidedby different High Courts and the mat er ispending before the HonbleSupreme Court and as the Hon'ble SupremeCourtis seized of the issue, the prr sent petitions be decidedafter Judgmentis delivered by t te Hon'i:rle SupremeCourt. However,the fact remains that in respect of theimpugned Notification,no
l5
writ petition is pending before the Hon'ble Supreme Court and no order has been brought to the notice of this Court restraining this Court to decide the issue. On the contrary, there is an order passed by the Honble Supreme Court in S.L.P.Nos.4879 and 5743 of 2O2l , dated 11.05.2021 , directing this Court to decide the matters at an early date.
(20) The learned counsel for the petitioners have placed reliance upon the following Judgments in respect of the contentions canvassed on behalf of the petitioners in the present petition as well as other connected matters. Ch.Tika Ramji v. State of U.P.r, State of Madras v. Gannon Dunkerley2, Calcutta Gas Company Limited v. State of West Bengals, Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akolaa, Kannan Devan Hills Produce Company Limited v. State of Keralas, Shah Ashu Jaiwant v. State of Maharashtrao, Ishwari Khetan Sugar Mills (Private) Limited v. State of U.p,7, D.C.Wadhwa v. State of Bihar8, Collector of Central Excise, Bombay-I v. M/s.Parle Exportss, India Cement Limited v. State of Tamil Nadulo, Synthetics & Chemicals Limited v. State of
r tssr scR:93 'lq5gscR329 r 1962 Supp (3) SCR I
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u irezey z scc ss '(r9ao)+ scc no 61tesr; t scc lzs 'lreae; r scc:as
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l6
U.P.11, State of AndhraPradeshv. McDowell& Co.,12, SIEL Limited v. Ur ion of Indial3,ITC Limited v. Agricultural Produce Market Comr ritteela,S.Samuel, M.D., Harrisons Malayalam v. Union of Indi r15, Gulati &Co., v. Commissionerof SalesTax16, arrd Dharaml al SatyapalLimited v. State of Assaml7.
(2 1) The rer pondent No.3/Commissioner ofFoodSafety, Telangana h rs filed a detailedcounter affidavit and it has been stated that thepetitioners are engaged inthe wholesa-le br siness of theproducts like chewing tobacco. The productr, containpure tobacco,flavouredtobacco and scented tobr Lcco. It hasbeen stated that the chewing tobacco pro, lucts flavoured withsome spices such as ca-rdamom, I lenthol, clove etc., includesscentedtobacco. This also inr ludes edibleperfumesand therefore,as per the FSS Act 2006, the spicesand other edible perfumes added to the chewing tobaccocomes under the definition of 'food'.It hr ts been statedthat the law of the land is very clear and thtFSS Act 2006 read with Regulations framed thereunder l rovidesthat no food product shall contain tobacco and nicotineas ingredient.The stand of the respondent tr c.3 isthat the petitioner whileobtaining GST
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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.
(22lr It has been lurther stated that the Hon'ble Supreme Court in the case of Ankur Gutka v. Indian Asthma Care Society (SLP No.16308 of 2OO7, vide order dated 07.l2.2olol has directed the learned Solicitor General of India to instruct concerned Ministries to approach National Institute of Public Health 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 Hon'b1e Supreme Court, consultation with the National Institute of Hea,lth and Family Welfare (NIHFW) constituted a Committee of Technica-l 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 respectof
t8
Areca-Nut c: Betel Quid or Supari. The Reportincludes the harmfu. affect on human body.As per the Report submitted )y NIHFW, the term'smokelesstobacco' includes 1, Lrge variety of commercially or noncommercia-ll z available products and mixtures that contain tob€ cco as the principal constituent and are used either orally (through the mouth) or nasaily (through the nose) withol t combustion. As per the Report, three forms of smokelesr. tobacco, which are commonly used in India are as under :-
(23) The rer pondent No.3 has further stated that as per the NIHFW Health Report, there are as many as 3095 chemical cor:rponents in smokeless tobacco products and out of them 28 ate proven carcinogen. The major and most abunc ant group ol carcinogens is the tobacco specific N-n trosamines (TSNA) and no safe levei of this chemica,l ha r been ascribed so far. The other carcinogens reportedly p'esent in smokeless tobacco include volatile N-nitrosamir es, certain volatile aldehydes, poly-nuclear
19
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 meta-ls. 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 reiated 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 23.09.L997 recommended prohibition of AS consumption of pan masala/gutka/chewing tobacco 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
70
Global Aud it Tobacco Survey of India is theGloba-l Standard fo : systematic monitoring of audit tobaccouse (smoking ar d smokeless) in the country and the survey conducted n the year 2016-17 by the International Institute for Population Sciences (llPS), Mumbaireveals that almost 27 crores of adults in India usecl tobacco in some form < r the other. Among them, 2O crores use only smokeless tr bacco products.
(24]r It has reen brought to the notice of this Court that tobacco is r prominent risk factor for 6 to 8 leading causes of death and almost 4oo/o of the Non Communica rle Diseases (NCD) including cancers, cardiovascul rr diseases and lung disorders are directlv attributable to tobacco use. The number of deaths every year in Ind a which is attributable to tobacco use is almost 14 L khs and 507o of cancers in males and 2Ook cancers in I :males can be directly attributed to tobacco use (ICMR Study). According to the World Health Organizatior (WHO) Global Report on "Tobacco Attributable Morta,lity, 2012", 7ok of ill deaths (for ages 30 and over) in India are attributable to tobacco use. It has been further brought to the notice of this Court that a study titled "Economic Burden of Tobacco Related Diseases in I rdia" (2014) commissioned by the Ministry of
2l
Health and Family Welfare, the total economic costs attributable to tobacco use from all diseases in India in the year 2011 for persons aged 35 to 69 years amounted to Rs.1,04,500/- crores. The estimated cost was 1.16ok of the GDP and was l2ok more than the combined state arrd central government expenditures on health in 2Oll-12.
(25) The respondent No.3 further stated that the FSS Act 2006 is enacted with the objective to consolidate the laws relating to food and for laying down standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption ald lor matters connected therewith or incidental thereto. The respondent No.3 has dealt u,ith the salient provisions of the FSS Act 2006 and the definition of the word '.Bod'is defined under Section 3(1) ol the FSS Act 2006.ll 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 Hontrie Supreme Court in the case of state of Tamil Nadu v, R.Krishnamurthyls has held that aproduct be classified as 'food' in case it is used forhuman consumption or in preparing human food. The respondent
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No.3 has fu'ther brought to the noticeof this Courtthat the Hon'ble Supreme Court in the caseof GodawatPan Masala Produ:ts LP., Limited v. Unionof Indiale has held that gutka, pan nasala and supari are food articles. Further, the Allahab rd High Court in the case ofManoharLal v. State of U.P., (Criminal Revision No.3i8 of79821 and inthe case of Khec an Lal and Sons v. State of U.P.,2o relying on the decision of the Hon'ble Supreme Court in the case of R.Krishnamu thy (supra), has held that'chewing tobacco'is an article of food.
(26) The re spondent No.3 has further stated that the Food Safety Regulations,2011was notified on 01.08.2011 in exercise c . powers conferred under Section 92 r'ead with Section 26 "f the FSS Act 2006 and Regulation 2.3.4 of the Food S Lfety Regulations, 2oll prohibit the use of tobacco anc nicotine in al1 food products. It has been further state 1 that the FSS Act 2006 also defines the word 'ingredient' e nd 'food additiue' and tobacco is certainly an additive, wt ich is commonly sold under various brand names.
(27) Tl:e rer pondent No.3 has brought to the notice of this Court that the Hon'ble Supreme Court in
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23
S.L.P.No.16308 of 2OO7, vide order dated 03.04.2Ot3 directed the Se cre tarie s, Health De partment of all States/Union Territories to file affidavits of total 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 necessa{/ orders/Notifications under Regulation 2.3.4 or under Section 30 of the FSS Act 2006 banning the sale of gutka and pan masa-la (containing tobacco or nicotine).
(28) The respondent No.3 has further stated that in order to circumvent the ban on the sale of gutka, the manufacturers a-re selling pan masala (without tobacco) with flavoured che'ul,ing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premises, so that consumers can buy the pan masala 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 ofIndia
24
(Transfer C rse Civil No.1 of 2010, dated23.09.2O16) directing th: Authorities to ensure total banand its compliance rn manufacturing and sale ofgutka and pan masala witl tobacco and/or nicotine. The respondents have further stated that in the iight of the Orderpassed by the Hr n'ble Supreme Court, the letterdated 05.12.2016 was issued by the Ministry of Health requesting a.l the State Governments/Union Territories to pass necessr ry orders to ensure that the Order passed by the Honble ilupreme Court has been complied with.
(29) The re ipondent No.3 has further stated that the COTPA 2001 is al Act enacted to discourage the use of tobacco with great emphasis on protection of children and young peopl : from being addicted to the use of tobacco and prohibit s smoking in public piaces, sale of tobacco products tc minors and within 100 yards ol any educational nstitution, direct and indirect advertisement, promotion e nd sponsorship of tobacco products ald mandates di;play of pictorial health warnings on tobacco product pacl ages. The respondent No.3 has further stated that the peti -ioners' arguments on the subject that there is a conflict between the COTPA 2003 and the FSS Act 2006 is mis:onstrued and they occupy different fields altogether. T re respondent No.3 has pla<:ed reliance upon
25
thejudgments of the Honble Supreme Court in ajay Kumar BanerJee v. Umed Singhzr, Khoday Distilleries Limited v. State of Karnataka22, P.N.Krishnalal v. State of Kerala23, S.Prakash v. K,M.Kurianz+, Allahabad Bank v. Canara Bank2s, and Kerala Bar Hotels Association v, State of Kerala (Civil Appeal No.4157 of 2015, dated 29.12.2015), 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 F ariyaad 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 2OL2), the High Court of Patna in the case of Lal Babu Yadav v. the State of Bihar (WP (Civil) No. 10297 of 201,2, dated 10.07.2OL21 and the High Court of Bombay in the case of M/s.Dhariwal Industries Limited v. the State of Maharashtra (W.P.No.1631 of 2Ol2 and other connected matters) .
(30) The respondent No.3 in the light of the various Judgments of the Honble Supreme Court and some High Courts referred above has stated that the Notification issued by the State Government has been issued strictly
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in consonar ce with the statutory provisionsgoverning the field under the FSS Act 2006 and the gutkzL containing tobacco and tobacco are great thereat to the publlc health. It is having a grave negative impact on public health and therefore, t re State Government has rightly imposed reasonable restrictions in the matter of manufacture, distribution storage, transport and sale of gutka or pan masala, w rich contains tobacco and nicotine as ingredients and chewing tobacco products like chap tobacco, kh rini, kharra, scented/flavotrred tobacco. The respondent )'1o.3 has further stated that the petitioners have not bet n able to make out any case before this Court and the res riction imposed by the State is a reasonable restriction a rd does not warrant any interference.
(3 1) The re;pondent No.6/Food Safety and Standards Authority o India has also filed a detailed counter affidavit and it has been stated that the FSS Act 2:006 was enacted by .he Parliament for laying down scientifically based stand rds for articles of food and to regulate their manufactur( , storage, distribution, sale and import and to ensure avail' Lbility of safe and wholesome food for human consumptior. It has been further stated that Section 92 of the FSS A( t 2006 empowers the authority to make regulations vith the previous approval of the Central
27
Government and after previous publication to carrJr out the objects of the FSS Act 2006 and in exercise of powers conferred, the Authority notified the Food Safety Regulations, 2Ol 7. The Regulations 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 does not arise. It has been further stated that the Food Safety Regulations, 2Ol7 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, 2Ol7 use of anticaking agent in pan masala is not permitted.
(32) The respondent No.6 has aiso stated that as per the mandate of Section 89 of the FSS Act 2006, the Act has the overriding effect on a-11 legislations including the COTPA 2003 and the former takesprecedenceover the
ls
latter Act.'l he respondent No.6 has alsoplacedreliance upon the de inition clause, which defines 'food'and ithas been arguer, vehemently thatpan masala withtobacco and tobaccc certainly fall under the definition of 'food'as they are intended for human consumption.The respondent No.6 has also placed reliance upon the Judgments rf the Hon'ble Supreme Court in the case of P,K.Tejani v, M.R.Dange26, R.Krishnamurthy(supra) ,Krishan Gopal Sharm r v. Government of NCT of Delhi27, Goclawat Pan Masala Prodr cts I.P. Limited (supra), Laxmikant v. Union of India28 and he Judgment of the High Court of Kera-ia in W,P.No.1235i, of 2OL2 and other connected matters.
(33) The re ,pondent No.6 has also brought to the notice of this Cor rt that Minutes of the Expert Committee constituted ry the Ministry of Health and Family Welfare which has recommended a complete ban on gutka containing t lbacco/tobacco products/tobacco. It has been stated that I uge number of people are dying out of cancer and the ac -ion taken by the State Government is in consonance with the directions issued by the Honble Supreme Cc rrt from time to time. Therefore, a prayer has been made i lr dismissal of the writ petitions.
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(34) Heard the learned counsel for the parties and perused the record. The writ petitions are being disposed of at admission stage with the consent of the parties.
(35) The petitioners before this Court are aggrieved by Notification No.5O5/FSS-7/2021, dated 06.O7.2021 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.O1.2021 is reproduced as under:-
"GoVERNMENT or TELAI{GANA
Office of the Commissioner of Food Safety, Directorate Institute of Preventive Medicine, Public Health Labs, Food (Health) Administration, Telangana State, Narayanaguda, Hyderabad - 500 029.
Food Safety and Standards Act, 2006 - Imposition of prohibition u/s 30(2) of the said Act on manufacture, storage, distribution, transportation and sale of Gutka/Pan masala which contains tobacco and nicotine as ingredients and Chewing Tobacco products like chop tobacco, pure tobacco, Khaini, Kharra, Scented tobacco/ Flavoured tobacco or by whatever name locally it is called packed in sachets/ pouches/ package in the entire State of Telangana - Orders - Issued.
The(iovernment of India has enacted Food Safety and Standards Act 2006 (FSS Act) to regulate and monitor the manufacturing, processing, packing, storage, transport, distribution, sale of any food or food ingredient, so as to ensure availability of safe and wholesome food for human consumption.
30
Wh :reas section 3(1)(i) of FSSAct 2006 definesthat "Food'm, ans anysubstance,whetherprocessed,partially processe( or unprocessed, which is intended forhuman consump ion and includes primaryfood, tothe extent defined ir clause 3(ZK)geneticallymodified or engineered food or rod containing such ingredients, infantfood, packaged drinking water, alcoholic drink, chewinggum, and any substance, includingwater used intothe food during its manufacture, preparation or treatmentbut does not inclu, e any animal feed, live animals unlesslhey are prepared or processed for placing on the market for human c )nsumption, plants prior to han,esting,drugs and mr licinal products, cosmetics, narcotic or psychotrc :ic substances.
The Hon'ble Supreme Court of India in GodawatPan Masala v Uol (2004) 7 SCC 68, while dealing case on prohibitio r on sale of Gutka in the States on 02.08.20O4 vide Civil Appeal No.4674 of 2OO4 (SLP (C) No.24449 of 2OO2l hd I that Gutka or panmasala having tobacco or nicotine r re food items. Gutka/Panmasala which contain tobacco a rd nicotine as ingredients and Chewing Tobacco products like Chap Tobacco, Pure Tobacco, Khaini, Kharra, i cented Tobacco/ Flavoured Tobacco packed in pouches/ ,achets / containers etc., or by whatever name it is called irherentll, falls r,r,ithin the definition of "food" as dehned u: der Section 3(l)fi) of the FSS Act, 2006.
Scit ntific Reports/ opinions of ICMR (lndian Council of Medicz I Research) and NIHFW (National Institute of Health ar d Family Welfare) demonstrate the extremell, harmful t ffects of consumption of Gutka/ Pernmasala/ Chewing'obacco such as Cancers (Oral) pre-malignant lesions/cr nditions) - Oesophageal Cancer, Stornach Cancer, F rncreatic Cancer, Throat (pharynx and larynx) cancer, rr nal cancer, Non cancerous - deterioration of Oral-dentr I health, Hypertension & Cardiovascular
3l
diseases, Consumption of such products is injurious to health
As per section 18(1)(a) of rhe FSS Act 2006, it is the Government's endeavour to achieve an appropriate level of protection of human life and health.
Whereas regulation 2.3.4 of FSS (Prohibition and restriction on sales) Regulations 201 1 made under the FSS Act 2006 mandates that tobacco and nicotine shall not be used as ingredients in any food products.
Whereas the Commissioner of Food Safety has the power coupled with duty to prohibit in the interest of public health, 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 oneyear as per clause (a) ol sub-section (2) ol Section 30 of FSS Act, 20O6.
Accordingly the following notification will be published in the Extraordinary issue of the Telangana State Gazette.
NOTIFICATION
Notification No.5O5/FSS-1l2O2l : 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 prohiblts the manufacture, storage, distribution, transportation and sale of Guitka/Pan masala which contains tobacco and nicotine, as ingredients and cheu,ing Tobacco products like chap Tobacco, Pure tobacco, Khaini, Kharra,Scented tobacco / flavoured tobaccopacked inpouches /sachets / containers etc., or by whatever name it iscalled inthe
32
entire St rte of Telangana for aperiod ofone year with effect fro: :r 10e January , 2O2l ."
(36) The tr etitioners have challenged the impugned Notification on the ground that it is illegai, unconstitut cnal and ultra uires the COTPA 2003 and is also in vio. ation of naturaljustice ar-rd fair play. The undisputed facts of the case reveal that the Notilication imposes prc eibition of manufacture, storage, distribution, transportati ln and sale of gutka/pan masala which contains tot acco and nicotine as ingredients and chewing tobacco pror lucts like chap tobacco, pure tobacco, khaini, kharra, scer ted tobacco/flavoured tobacco or by whatever name locall r it is called, packed 1n sachets/pouches/ packages ir the entire State of Telangana. Meaning thereby, t re sachets/pouches containing scented tobacco/tob rcco and/or pan masala, which contain tobacco an, I nicotine are the subject matter of the Notihcation.
(37) It is an undisputed fact that the tobacco is the main cause of ca rcer and the statistics pertaining to tobacco related mort ility and cancer are detailed as under:-
"Global
Ac :ording to the World Health Organisation (WHO), to )acco kills more than 8 million people each year. More thar 7 million of those deaths are the result of direct
33
tobacco use while around 1.2 million are the result of nonsmokers being exposed to second-hand smoke.
Natlonal
- 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 2O2O,
tobacco use will account for 13% of all deaths in India every year.
1+
Telangana
-Tl e age adjusted mortality rate(AAMR) of Hyderab: I District - reported for 2074- 16 - is 4.8per 100,00 r rales and 2.0 per 100,000 females. Also, the relative p 'oportion of cancer sites associated with the use of Tobac< : in Hyderabad is 42.2o/o in males and13.501, in females. According to ICMR-NCDIR, Report on Sites of Cancer I ssociated with Tobacco use in lndia-Findings from the National Cancer Registry Programme, 202 1, Bengalur r, India)
-A: per ICMR-NCDIR, Profile of Cancer and Related factors - Telangana (2O2I, the prevalence of current tobacco t se (smoking and/or smokeless) in adults over 15 years of a ge (for 2016) is as follows: Total - l 7 .8o/o Males - 25.9%o Females - 9.8o/o"
Ue!!o_aC!_E milv Health Survey - 5 {2O19-2O21)
(38) The rel )vant statutory provisions under the FSS Act 2006, r.r'hich are necessa-ry for proper adjudication of the present writ retitions, are reproduced as under:-
'3 (i) " extraneous mattef means any matter contained in an article of food which may be carried from the raw rr eterials, packaging materials or process systems used for i s manufacture or which is added to it, but such matter do s not render such article of food unsafe:
3 i) " food' means any substance, whether processed partially processed or unprocessed, which is
35
intended for human consumption and includes primary food, to the extent defined in clause 3 (ZK) genetically modilied or engincered food or food containing such ingredients, infant lood, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.
3 (k\ "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 inthe manufacture, processing, preparation, treatment, packing, packaging, transport or holding ol such food results, or may be reasonably expected to result (directlyor indirectly), in it or its bll-products becoming a component of or otherwise affecting the characteristics of suchfood but does not include "contaminants" or substancesadded to food for maintaining or improving nutritionalqualities;
3 (y) 'ingredient" means any substance,inciudinga food additive used in the manufacture orpreparation of food and present in the Finalproduct, possibly ina modified form;
3 (zc) "manufacture" means aprocess oradoption or any treatment for conversion ofingredientsinto an article ol food, which includes anysub-process,incidentalor ancillary to the manufacture of an articleof food;
36
3 ( ld) "manufacturer" means a person engaged in the busir ess of manufacturing any article of food for sale and inch des anyperson who obtains such article from anothenerson and packs and labels it for sale or only labels it i rr such purposes;
3 (: k) "primary food" means an article of food, being a produ:e of agriculture or horticulture or animal husband: y and dairying or aquaculture in its natural form, rer ulting from the growing, raising, cultivation, picking, 1 .arvesting, collection or catching in the hands of a person rther than a farmer or fisherman;
16 ll Dutles and functlons ofFood Authority.- (1) It shall be the dt ty of the Food Authority to regulate and monitor the manr facture, processing, distribution, sale and import of food sc as to ensure safe and wholesome food.
18( )(a)Generalprinciplesto be followed in admiristratlon of Act.- T re Central Government, the State Governn-rents, the Food Authority and other agencies, as the case may be, while implementing the provisions of this Act shall be guided b1 the following principles, namely. -
(1) a) endeavour to achieve an appropriate level of protectiol of human life and health and the protection of consume: s' interests, including fair practices in all kinds of food tr rde with reference to food safetv standards and practices
26, Respoasibilities of the food business opetator.(1) Every food business operator shal1 ensure that the articles o. food satisfy the requirements of this Act and the rules an< regulations made thereunder at all stages of productic r, processing, import, distribution and sale within th, businesses under his control.
(2) 'lofood business operator shall himself or by an person or his behalf manufacture, store, sell or clistribute an1, articl ' of food - (i) , hich is unsafe;
(ii) to (v) xxxxx
(2) The Commissioner of Foocl Safety shall perform all or any of the following functions, namely:-
| (a) | prohibitintheinterest ofpublichealth,the |
|---|---|
| manufacture,storage,distribution orsale of | |
| anyarticle offood,eitherinthewhole of the | |
| Stateoranyareaorpartthereofforsuch | |
| period,notexceedingoneyear,asmaybe | |
| specifiedintheordernotiliedinthisbehalf | |
| inthe OfficialGazette; | |
| (b) | carryoutsurveyoftheindustrialunits |
| engagedinthemanufacture orprocessingof | |
| foodintheStatetolindoutcomplianceby | |
| suchunitsofthestandardsnotilied bythe | |
| FoodAuthorityforvarious articlesof food; | |
| (c) | conduct ororganisetrainingprogrammesfor |
| thepersonnelof theofficeofthe | |
| Commissioner ofPood Safetyand,onawider | |
| scale,lordifferentsegmentsof foodchainfor | |
| generatingawarenessonfood safety; |
|
| (d) | ensure an efficient anduniform |
| implementationofthestandardsandother | |
| requirements asspecifiedandalso ensurea | |
| highstandardofobjectivity,accountability, | |
| practicability,transparency and credibility; | |
| (e) | sanction prosecutionforoffencespunishable |
| withimprisonment underthisAct; |
|
| (0 | such otherfunctionsas theState |
| Governmentmay,inconsultationwiththe | |
| FoodAuthority,prescribe. |
JE
(3) lhe Commissioner of food Safell' may, byOrder, delegate, subject to such conditionsand restrictions as may be r pecified in the Order, such ofhis powersand functions under this Act(except thepower toappoint Designatt d Officer, Food Safety Officer andFood Anaiyst) as he m. Ly deem necessary or expedient to anyofficer subordinr te to him.
Pro rided that such repeal shall not affect-
(2) If thr re is any other law for the time being in force in any State corresponding to this Act, the same shall upon the comr lencement of this Act, stand repealed and in such cas:, the provisions of section 6 of the General Clauses . !ct, 1897 (10 of 1897) shall apply as if such provision, of the State law had been repealed.
(3) Notw thstanding the repeal of the aforesaid enactment and Orc -'rs, the licenses issued under any such
39
enactment or Order, which are in force on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued under the provisions of this Act or the rules or regulations made thereunder.
(4) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act or Orders after the expiry of a period of three years from the date of the commencement of this Act."
(39) The aforesaid statutory provisions make it very clea-r that'food'as defined under Section 3(1) 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 (ZKl 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 whetherprocessed,
:10
partialty pr( cessed or unprocessed, which is intended for human co rsumption, certainly includes smokeless tobacco pro lucts like gutka, pan masala, kharra, khaini or any other similar product like chewing tobacco/flar, rured tobacco within the definition of 'food' under the Fl iS Act 2006.
(40) The F on'ble Supreme Court in the case of R.Krishnamur thy (supra) has held that all that is required to classify e product as 'food' is that it has to be used commonly fr r human consumption or in preparation of human food Not only this, the Honble Supreme Court in the case of iodawat Pan Masala Products (supra) has held that gutka, lan masa-la and supari as food articies. The Allahabad H. gh Court in the case of Manohar Lal v. State of u.P., (Crimin; il Revision No.318 of 19821 and in the case of Khedan Lal an c sons (supra) has held that'chewing tobacco' is an article < f food.
(4 1) The For d Safety Regulations, 2011 was notified on 01.08.2011 i r exercise ol powers conferred under Section 92 read r,r.it r Section 26 of the FSS Act 2006 and Regulation '.',.3.4 of the said Regulations expressly prohibits use of tobacco and nicotine in ail food products and the same is reproduced as under.
'1i
"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 food products."
(a2) Not only this, the FSS Act 20O6 defined 'ingredient' and 'food additiue' and therefore, gutka/pan masala which contains tobacco and other kinds of tobacco products like chap tobacco, pure tobacco, khaini, kharra, scented tobacco or flavoured tobacco do fall within the definition of 'food',
(a3) The Honble Supreme Court in S.L.P. No.16308 of 2007, dated 03.04.2013 has passed the following order.
"Ms. Indira Jaisingh, learned Additional Solicitor General invited the Court's attention to notifications issued by the Government of 23 States and the Administrators of 5 Union Territories for imposing complete ban on Gutkha and Pan Masala with tobacco and/or nicotine and then stated that notwithstanding the ban, the manufacturers have devised a subterfuge for selling Gutkha and Pan Masala in separate pouches and in this manner the ban is being flouted.
Ms. Indira Jaisingh also placed before the Court xerox copy of D.P.No.P. 16012/12/ll-Part I dated 27 .O8.2O12 sent by the Special Secretary, Ministry of Health and Family Welfare, Government of India to the Chief Secretaries of all the States except the Statesof Madhya Pradesh, Kerala, Bihar, Rajasthan, Maharashtra, Haryana, Chattisgarh and Jharkhand and submitted that the Court may call upon the remaining States and Union Territories to issue necessary notifications.
12
In view of the statement made by the learned Additiona I Solicitor General, we order issue of notice to the Chief Ser retaries of the States and the Administrators of the Unic o Territories which have so far not issued notificati< n in terms of 2006 Act to apprise this Court with the reas,ns as to why they have not taken action pursuant to letter dated 27.O8.2O72.
We also direct the Secretaries, Health Department of all the 2I States and 5 Union Territories to file their affidavits r.r,ithin four weeks on the issue of total complian, e of the ban imposed on manufacturing and sale of Gutkhz and Pan Masala with tobacco and/or nicotine.
Put up on 03.05.2013.
The Registry is directed to send copies of this order to the( hief Secretaries and the Secretaries, Health Departme rt as also the Administrators of Union Territorier, Secretaries of the Central and State Pollution Control B rard. Copies be also sent to the Commissioners of 9 Mu ricipal Corporations named hereinabove. The copies of order be sent by fax within four days from today.'
(aa) The afr resaid order makes it very clear that the Secretaries, Health Department of all States/Union Territories w:re directed to report compiiance ol complete ban in respr ct of ma:rufacturing and sale of gutka and pan masala, rith tobacco and/or nicotine.
(45) Various States and Union Territories have issued necessary or lers/notifications under Regulation 2.3.4 of the Food Saf ,ty Regulations, 2}ll read with Section 30 of
4l
the FSS Act 2006 banning sale 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 sa-le of gutka, the manufacturers are selling pan masa-la (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 masa-la and the flavoured chewing tobacco, mix them and consume them. They are being sold in twin packs to be mixed as one.
(46) Learned counsel for the petitioners has argued before this Court that there is a conflict between the COTPA 2003 and the FSS Act 2006 and no impugned Notification could have been issued under the FSS Act 2006.The arguments canvassed by the learned counsel forthe petitioners are misplaced. The COTPA 2003 has been enacted with an aim and object toprohibitthe advertisement of, and toprovide for theregulationof trade and commerce in, and production, supplyand distribution of, cigarettes and othertobacco productswith an aim to discourage the use or consumptionof tobacco. The object for the FSS Act 2006 isto ensure safe and wholesome food for thepeople. The primary concernand purpose of the FSS Act 2006 is thatpromotion of public
44
health and rrotection of the right to life of the citizens of the country and the purpose, aim and the object of the Food Safety Regulations, 20ll is to ensure safety/health of citizens o this country by prohibiting any article of food which are irjurious to the health of general public. It is an undisputed fact that tobacco products which are subject matter of he impugned Notification are injurious to general heal .h of the public.
(471 Learne I counsel for the petitioners have argued before this( )ourt that there is a conflict between the FSS Act 2O06 a Ld COTPA 2O03. Section 89 of the FSS Act 2006 makes it very clear that it has overriding effect of all the legislati, ns including the COTPA 2003. The FSS Act 2006 has t een enacted later to the COTPA 2003 and therefore, tf e FSS Act 2006 r,r,ill prevaii over the COTPA 2003. The k w laid on the aforesaid issue is no longer res integra. The Hon'ble Supreme Court rn Allahabad Bank (supra), Ana; Kumar Banerjee (supra) and S.prakash (supra) has held as'tnder:-
"a. Vhere two Central Acts appear to be seemingly in conflicl with each other, the endeavour of Court should be to harr ronize the two Acts seemingly in conflict.
b.'Vhere there is a direct conflict (repugnancy) between r wo special Acts, both being special laws, the following r ules shall apply:
(i) T re later Act will prevail over the earlier Act.
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(ii) If there is a provision in one of the Acts giving overriding effect then that Act u,ill 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."
(48) The Hon'ble Supreme Court in the case of
R.Krishnamurthy (supra) has held as under:-
"7. According to the delinition 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 ordinary 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 selfdestruction of these poor, ignorant and illiterate persons that the definition of "food" is couched in such terms as not to take into account whether an article is intended for human consumption or not. In order to be "food" for the purposes of the Act, an article need not be 'fit" for human consumption; it need not be described or exhibited as intended for human consumption; it may even be
46
otherwis€ described or exhibited; it need notevenbe necessari y intended for human consumption; it is enough if it is generally or commonly uscd for human consump ion or in the preparation of human food.Where an artick is generally or commonly not used for human consump ion or in the preparation of human food but for some ott er purpose, notwithstanding that it maybe capable r f being used, on rare occasions, for human consumpl Lon or in the preparation of human food, it may be said, c epending on the facts and circumstances of the case, tha it is not "food". In such a case thequestion whether i is intended for human consumption or in the preparati< n of human food may become material. But where th< article is one which is generally or commonly used for luman consumption or in the preparation of human fo rd, there can be no question but that the article is "food". iingerly oil, mixed or not with groundnut oi1 or some oth:r oil, whether described or exhibited as an article of . :od for human consumption or as an article for external r se only is "food" within the meaning of the definition ;ontained in Section 2(u) of the Act."
(49) I(eeping in view the aforesaid definition, the articles mentioned i r the impugned Notification are certainly included witl in the definition of 'food'and this Court does not find an / reason to interfere with the impugned Notification.
(50) Learned counsel for the petitioners has placed heavy relia-nce upo 1 the Judgment delivered in the case of Godawat Pan Masala Products (supra). However, the said Judgment we s delivered prior to enactment of the FSS Act
2006 arrd the Regulations made thereunder. The definition ol 'food' under theprevention of Food Adulteration Act, L954 and the FSS Act 2006 are reproduced as under:-
"Definition of 'food' under the Prevention of Food Adulteration Act, 1954:
2(vl " food" means any article used as food or drink for human consumption other than drugs and water and includes-
Definition of 'food' under the FSS Act 2O06:-
"3 [) any substance, whether processed, partiall], processed or unprocessed, v,hich is intended for human consumption and includes primary food, to the extent defined in clause 3 (ZK) genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances;
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as
413
food for t 1e purposes of this Act havingregardsto its use, nature, s rbstance or quality."
(s1) The de linition of 'food' under the FSS Act 2006 is a very wide md exhaustive definition and as per the definition u rder the FSS Act 2006, any substance,which is intended for human consumption is included in the definition o' 'food'. Not only this, even in the case of Godawat Paa Masala Products (supra), the Hon'bleSupreme Court has 1 eld that pan masala or gutka to be covered under the c:finition of 'food'. However, only on a limited issue ofju risdiction, it was held that the power of prohibition S only vested rvith the Central Government and not wit r the State Foocl and Health Authorities. The definition o' 'food' has witnessed a sea change and keeping in 'iew Section 89 of the FSS Act 2006, as the FSS Act 20 )6 is having overriding effect over the other statutes, th: respondent No.3/ Commissioner of Food Safety, Tela-r gana was well within his competence to issue the impugnr d Notification banning the food items which are subject matter of the Notification. The Hon'ble Supreme Cc urt in the case of Laxmikant (supra). held as under:-
"1 ). Therefore, the lnternational Conference held in collabo'ation with the World Health Organisation was of the opini< n that the ban on use ol tobacco in toothpaste and tootl powder should totall1,, be imposed since it is
19
prone to cancer. Under these circumstances, the view taken by the Government of India imposing total prohibition on the use of tobacco in the preparation of toothpowder and toothpaste is well justilied 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) ol the Constitution. The imposition of total ban is in the public interest."
(52) In the aforesaid case, total ban on use of tobacco in toothpaste and toothpowder was upheld by the Hon'ble Supreme Court even though offended the right to carry on trade guaranteed under Article 19(1) of the Constitution of India as the imposition of ban was on public interest.
(53) The matter relating to imposition of restrictions on sale of pan masala containing tobacco and other tobacco products was considered by the Bombay High Court in the case of M/s.Dhariwal Industries Limited (supra). A prayer was also made to declare Regulation 2.3.4 and Regulation 3.1.7 of the Food Safety Reguiations,2OlT as ultra uires and a prayer was also made lor granting an interim relief. Various grounds were raised before the Division Bench of the Bombay High Court for grant of stay and the Bombay High Court in paragraph 61 has held as under:-
"61. After taking into consideration theprovisions of Prevention of Food Adulteration Act, 1954 and the Rules thereunder, Food Safety and Standard Act, 2006,the Regulations made thereunder, the Cigarettes Act,2003, thejudgment of the Supreme Court in Ghodawat caseand
_s0
the mate 'ial on record, and after considering the rival submissi, ns and the decisions cited at the Bar, we are of the view hat this is not a fit case for granting any of the interim rr liefs prayed for by the petitioners. Hence, prayer for inter m stay against the implementation of the impugner statutory order dated 19th July 2021 issued by the Fooo Safety Commissioner, Maharashtra State in public ir terest in exercise of the power conferred by Section ! C(2)(a) of the Pood Safety and Standards Act, 2006 is rr jected."
(5a) No int:rim relief was granted 111 resllect of the Regulations. Challenges were made throughout India and various orde's have been passed by the State of Telangana by which a )rayer for grant of interim relief ,'as rejected. The Bombal High Court in its recent Judgment in the case of Mol ammad Yamin Naeem Mohammad v. State of Maharashtra2' , in similar circumstances, has exhaustively dealt with l:gislative competence of the State and the restrictions i nposed by the State Government. Par:agraphs 40 to 45 of tl Le said Judgment are reproduced as under:-
"40. I lot has been said about COPTA, holding the field as a1 ainst the FSSA. In this regard, it is material to note, thal COPTA was enacted on 181512003, in which Section 3 (p) defines "tobacco products" to mean the products r pecified in the schedule. The schedule at Serial No. 8, s1 ecifies Pan Masala or any cheu,ing material having to )acco as one ol its ingredients (by r,,,hatever named ca Ied) and at Serial No.8 specifies Gutkha. To understan I basic diflerence between the provisions of COPTA ar d FSSA, it is necessary to consider what is
'?e2o2l scc onlineI om26
5i
contemplated by Sections 5, 6 and 7 of COTPA, which for ready reference are reproduced as under:-
(1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.
(2) No person, lor any direct or indirect pecuniary benefit, shall-
Provided that this sub-section shall not apply 1n relation to-
(a) an advertisement of cigarettes or anyother tobacco product in or on a Package
5l
containing cigarettes or any other tobacco product;
6, Proh bltlon on sale of clgarette or other tobacco products to a perso r below the age of eighteen years and ln partlcular area.-No p:rson shall se1l, offer for sale, or permit sale of, cigarette,,r any other tobacco product- (a) to any person who is u: rder eighteen years of age, and (b) in an area within a , adius of one hundred yards of any educational institutior .
(2) No person shall carry on trade or commerce in cigarett:s or any other tobacco products unless every packagt of cigarettes or anv other tobacco ltroclucts sold, st pplied or distributed by him bears thereon, or on its le bel, the specified warning.
(3) No person shall import cigarettes or any other tobacco products for distribution or supplv for a
) -'i
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.
(4) The specified warning shal1 appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration.
(5) No person sha1i, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package ol cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof:
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.
4 1 . It would thus be apparent that Section 5 deals 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, unless 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 10 provides size of letters andligures 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 optionto pay cost in Iieu of confiscation; Section 17 provides for adjudication; Section 18 provides for an opportunity based uponthe
54
principles of naturaljustice; Section 18provides foran appeal. T re other provisions provide forpunishment and forfeiture. What is material to be noted is that COPTA has not been given any overriding effect upon any other law, holding tl e field or which may be enacted. The regulatory mechanis n in COPTA is restricted to ensuring that the sa1e, storr .ge, distribution, of cigarettes and other tobacco products is not without the warning label and is to persons a rove the restricted age and to discourage the use of tobacc< . COPIA does not deal with the long term effects of smoki rg and consumption of tobacco and other products rn the health of citizens.
"25. t is true the Apex Court in Godatuat Pan Masala's case held that mere traces of magnesium
-55
carbonate formed during consumption of product along with lime cannot be banned, but in the instant case anticaking agent 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 discloses that there is usage of anticaking agent viz., magnesium carbonate in the food article in question namely gutka. That apart Supreme Court in the very same decision held that theprovisions of PFA Rules framed and directions issued thereunder cannot be said as not applicable merely because licence is contemplated for manufacturi ofgutka under the Ciqarettes and other Tobacco Products(Prohibition of Trade and Commerce, Production, Supplv and Distribution) Act. 2003. The PFA Act rvas legislated for theprevention of adulteration of food whereas Ciqarettes and other Tobacco Products(Prohibition of Trade and Commerce, Production. Supplv and Distribution) Act, 2OO3 is intended toprohibit advertisins and to reeulatethe trade and as such there is no conflict betweenthe lesislative o biects between the two enactments."
(emphasis supplied)
'89. Overridlng effect of thls Act over all othe:food related laws.- Thep rovisions of this Act shall have effect no twithstandins anvthing inconsistent therewith contained in anv other law for the time beine in forceor in any instrument having effect by virtue ol anylaw other than this Act."
(emphasis supplied)
56
effect on al1 other food related 1aws. Once it is held that tobacco i nd other products, fall within the definition of food as :numerated in Section 3 [) of the FSSA, the overridin ;effectof Section 89 ofthe FSSA, wouldmake the FSS \ hold the field instead of COPTA. Joshg K.V. u. St te of Kerala, Rep. bg the Secretary to the Departme nt of Health and Welfore, Gouentment Secretariat, Thintuan, '.nthopuram I(2O13) I KLJ 428), Omkar Aqency, through ls Propietor u. the Food Safety and Standards Authoity of Indio [20i6 SCC Online Pat9231] and Sanjag Anjay Stt res u. the Union of India, I2Ol7 SCC Online Cal i63231, r 'hich take a contrary view, according to us, do not 1ay dr wn the correct law.
(55) The Di rision Bench of the Bombay High Court has dealt with al I the issues, similar to the issues raised in the present writ petitions. In the considered opinion of this Court, the question of interference by this Court in respect of N,,tification which is bound to save hurnan lives cannot be fe ulted with in any manner. The entire globe is facing COVI )-19 pandemic and the death rate on account of gutka/pa r masa-la and other tobacco products is more than the dr aths which are taking place on account of pandemic. T ee people are suffering from cancer and other diseases arr I the restriction imposed is in larger public interest anc is a reasonable restriction and in no way offends the'ight to carry on trade guaranteed under the Constitution
51
(56) In the light of the aforesaid, this Court does not find any reason to interfere with the impugned Notification and resultantly, the writ petitions are dismissed. Miscellaneous petitions, if any pending, shall stand dismissed. There shall be no order as to costs.
SATISH CHANDRA SHARMA, CJ
A.RAJASHEKER REDDY, J
30.tt.2021 P1n Note: LR copy be marked. (By Order) Pln
1 issue framed by the court
Should the notification restricting trade in gutka, pan masala and tobacco products be set aside despite the earlier judgment deciding the same controversy?
Colour shows how this judgement treated each authority
W.P.No. 19928 of 2O2l and batch, dated 30.1 t.2O2t.Applied¶84
M/s. Ratanlal Heeralal Bhati
M/s.Sri Venkates rwara General_ _Agencies
Sri Venkateshwara Traders
The State of Telangana, Health, Medical and Family Welfare Department
The State of Telangana, Home Department
The Commissioner of Food Saf'ety, Telangana
SATISH CHANORA SHARMA
B.VIJAYSEN REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
