Disposed

Awad Bin Hassan Zurmali, Hyderabad v. Prl. Secretary, Home Dept., Hyd and 3 Others

Telangana HC8 Jan 2024WP/21210/2016

Case brief

AI extract

What is this about?

Restaurant owners sought mandamus restraining police interference with serving flavoured hookah, relying on the COTP Act, 2003 and prior orders. The court held police have power to inspect and search premises under Section 12 COTP Act and imposed conditions including municipal licence for charcoal, police permission under the City Police Act, no service to minors, and display of health warnings, s

What did the court decide?

Writ petitions disposed of subject to conditions on running hookah centres; police directed not to interfere with compliant businesses.

Awad Bin Hassan Zurmali, Hyderabad Vs Prl… — Writ and Judicial Review | Telangana HC (2024)

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[^32e61

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

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MONDAY,THE EIGHTH DAY OF^JANUARY TWO THOUSAND AND TWENTY^FOUR

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PRESENT

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THE HONOURABLE SRI^{JUSTICEC.V.BHASKARREDDY}

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WRlT PETITION NO:^{212'10 OF 2016}

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Between:

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Awad Bin Hassan Zurmali,^{S/o Hassan Bin Ahmed Zurmali, Aged about27} years, Occ Business, Rl/o^{H.NO.18-11-6712/6/5,Barkas,Kehsovagiri,} Hyderabad.

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...PETITIONER

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AND

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

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2 The Commissioner of^{Police, Hyderabad City, At Basheerbabh, Hyderabad.} 3 The Station House Officer,^{Police Station Chandrayangutta, Hyderabad.} 4 Greater Hyderabad^{lVlunicipalCorporation, Rep by its Commissioner, Tank} Bund Road Hyderabad'

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...RES'.NDENTS

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Petition under Article^{226 of the constitutionof lndia praying that in the} circumstances stated in^{the affidavitfiled therewith,the High Court may be} pleased to issue a writ, order or direction^{and moreparticularly one in the nature} of writ of Mandamus declaring^{the action of the Respondents in interfering with} the business of the^{petitioner underthe name and styleof Dream shisha Lounge} snookers Bs Billiards at^{premisesNo.1B-11-671A124,Salala, Barkas,} chandrayangutta, Hyderabad,^{T.s. in servingof flavoured Hookahswithout} reference to rule, law or^{regulations as illegal, arbitrary,unconstitutionaland} contrary to the^{provisionsof cigarettes and other Tobacco productscoTPAct} and consequently direct^{the Respondentsto permitthe Petiiionerto continuehis} business of serving^{flavoured Hookahs in his business premiseswithoutany} hindrance or restrictions^{except under law}

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I.A. NO: 1 OF 2016(WPMP. NO: 26009 OF 2016)

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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 with the business of the Petitioner under the name and style of Dream Shisha Lounge Snookers &^{Billiards at} premises No.1B-1 1-671A124, Salala, Barkas, Chand rayangutta, Hyderabad, T.S. in serving flavoured Hookahs to their customers except in accordance with law, pending disposal of the above writ petition

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Counsel for the Petitioner: SRI P. VAMSHEEDHAR REDDY

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Counsel for the Respondent Nos. 1to3: AGP FOR HOME

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Counsel for the Respondent No.4: SRI N. ASHOK KUMAR, SC FOR GHMC

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The Court made the following: ORDER

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HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

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WRIT PETITION No.2121O of 2O16

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ORDER:

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When the matter is taken up for hearing, learned counsel for the petitioner submitted that the issue raised in this writ petition is squarely cove4ed by the common order passed by this Court in W.P.No.8223 of 2Ol3 and batch dated 15.11.2A23 ald therefore, the present writ petition may be disposed of in terms of the said order.

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Learned Assistant Government Pleader for Home appearing for respondent Nos.l to 3 has not disputed the said fact.

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In view of the above submissions, this Writ Petition is disposed of in terms of the common order dated 15.11.2023 passed by this Court in W.P.No.8223 of 2013 and batch. No costs.

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As a sequel, miscellaleous petitions pending, if arry, sha1l

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stand closed.

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SD/- C. PRAVEEN KUMAR ASSISTANT REGISTRAR

//TRUE COPYII

sEcTro OFFICER

To,

The Principal Secretary, Home Department, Secretariat, Hyderabad. 2. The Commissioner of Police, Hyderabad City, At Basheerbabh, Hyderabad-

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The Station House Officer, Police Station Chandrayangutta, Hyderabad. 4. Greater Hyderabad Municipal Corporation, Rep by its Commissioner, Tank Bund Road Hyderabad.

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Two CCs to GP FOR HOME ,High Court for the State of Telangana, at Hyderabad [OUT]

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One CC to SRl. P. VAMSHEEDHAR REDDY, Advocate IOPUC]

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One CC to SRl. N. ASHOK KUNIAR, SC FOR GHMC [OPUC]

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8- Two CD Copies

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(Along with a copy W.P.No . 8223 of 2O13\

PA'

HIGH COURT

DATED:0810112024

ORDER

WP.No.21210 of 2016

DISPOSING OF THE WRIT PETITION WITHOUT COSTS e^o

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THE SI4
3" 0EFiB2021 st'
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* Oi * -{
sr-ArcnEo

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THE HONOURABLE SRI JUSTICE C.V. BHASI(AR^REDDY

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WRIT PETITION Nos.8223l 2013, 3427 I 2Ot5,^{457 42} I^2022, 4650512022. ts2. tL27.1809. 1935. 2729,2735 2954³¹²⁴ 3758 3744 4150 4297 4304 4330 4562 468() 5()84 5097 5L47. 5149, 6510, 6523, 7L89-7297,⁷ 4a5,⁷ 5o4, 7949, 7963, aLL7, A226,4246,4264, 8498. 8509. 8564. 9558. LOt22, to24t LO425 1o775 10814 11008 11213 11463 L2360 124A2. t4L29, 14L34. 15706, 16172, 16839, 17917.18351. taa29 19()05 19()51 L9742 22284 22292 22305 23734 23A92,24696 250,44. 25836, 26L72, 27223,27761 anil 30952 of 2023

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COMMON ORDER:

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Since the issue involved in all these Writ Petitions is intrinsically interconnected, they are being taken up and heard together and disposed of by this common order.

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As the respondents have hled consolidated counter affidavit in Writ Petition No.465O5 of 2022, the said Writ Petition is taken up as a leading case.

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W.P.No.46505 of 2022 is filed under Article 226 of t}re

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Constitution of India, seeking the following relief:

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"to pass an order, directton or a^{Writ particuLarly} in^the nature^oJ Wit of Mandamus directtng the respondents herein to allou the petitioner herein to serue hookah in his establishment freelg as long as he follotus the 'Agdrettes and Other Tobacco Products (Prohibition of Aduertisement and Regulation of Trade Commerce Supplg and Dtstribution) Act, 2OO3 and rules and. that the petttioner be altoued to serue hookah in open areas <tnd smoking mnes and to issue necessqry directions to the effect that no^(nerctue action of ang nature ought to be inittated against^the petitioner or his establishment namelA "Resign Sky Bar" located in Madhapur."

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The case of the petitioner is that he is mnning the restaurant under the name and style 'Resign Sky Bar' since many years and also obtained trade license from the Greater Hyderabad Municipal Corporation, Hyderabad. It is further case of the petitioner that owners of certain restaurants had filed Writ Petition No.3202 of 2Ol4 and batch on the Iile of this Court, wherein this Court vide common order dated 27 .Ol.2Ol7 , allowed the petitioners therein to serve Hookah as long as they follow rules and regulations and also the conditions stipulated therein like having CCTV cameras and not serving to minors etc.,. It is further case of the petitioner that even though the restaurant owners are following the rules ald regulations as prescribed under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation cf Trade Commercq Supply and Distribution) Act, 2003'(for short "COTP Act, 20O3"), the task force police under the control of respondent No.2 are visiting the business place and foisting false cases with a malafide intention to force the owners of the business establishments to shut down the hooka-h sales and usage. It is further case of the petitioner that the owners of the restaurants again approached this Court and filed Writ Petition W.P.Nos.22O6O and 23213 of 2Ql7 and this Court vide common order dated 02.O8.2017 disposed of the said Writ Petitions and ordered that the restaurant owners are free to run their

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restaurants as per rules and regulations and that if^police takes any steps, the petitioners therein were^given liberty to^{approach the} Director General of Police/ Commissioner of Police and^lodge complaint regarding illegal interference of officers. It is further^case of the petitioner that even though restaurant^{owners are running} hookah Centres strictly inconformity with the directions^{issued by} this Court, the respondents-police are^raiding the^{hookah Centres} and registering false cases under Sections I88, 27O, 272 and 328 IPC. It is further case of petitioner that cases under^aforesaid Sections cannot be hled against the^{restaurant owners} if^theyserve hookah to their customers and that there^{is no genera-l ban on selling} tobacco and tobacco products. It is further case of^{the petitioners} that owners of the restaurants filed Criminal Petitions^vide Crl.P.No.5619 of 2O2O and batch^{on the file of} this^{Court seeking to} quash the proceedings in respective Crimes/Calendar Cases/ Sessions Cases registered for the offences under Sections 188, 269, 27O,272, 273, 328, 336 & 42O read w"ith 34, 149, 511 of^IPC; Sections 3(rri, 2O(2), 2t(11, 21(2lr, 22, 7(31 and⁷⁽⁵⁾ of the^{COTP Act,} 2003 and Sections 58 and 59(i) of the Food Safety and Standards Act, 20O6 (for short 'FSS Act'). This Court vide common order dated 10.06.2022, allowed the said Crimina-l Petitions, quashing the proceedings in the respective Crimes/ Calendar Cases/ Sessions

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Cases in terms of the common order, dated O5.O7.2O21 passed in Mohd. Jameel Ahmed. us. State of Telanganal. It is further case of the petitioners that since there is no prohibition under COTP Act, 2O03 to serve hookah, interference by the respondents-police amounts to violation of the rights guarantied under Article 19(1)(g) of the Constitution of India and also the provisions of COTP Act, 2003.

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A consolidated counter affidavit has been filed by the respondent Nos. 1 to 5 in W.P.No.465O5/2022, wherein inter aliait is stated that the petitioners are seeking to give a direction to permit running of "Hookah Parlour" and serving of Hookah in Restaurants beyond the areas designated by the statute. It is further stated that the detaiis of those Hookah Centres/ Hookah Parlours/Hookah Bars are conspicuously missing. The petitioners without mentioning that they are complying with various statutory provisions of COTP Act, 2OO3, have simply averred that they are serving hookah in their premises. It is further stated that no statute or regulation refers to Hookah Centres/Hookah Parlours/ Hookah bars. In the counter aflidavit, the respondents have referred various constitutional provisions relating to health and right to life. It is stated by the respondents that as per Articie 2 1 of the Constitution of India, it is the responsibility of the Government to direct its policy towards

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'^zoz2crtL!6qz

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securing tender age children and^give them opportunities to develop in a healthy manner. It is further stated that World Health Organization Framework Convention on Tobacco Control (WHO FCTC) and its guidelines^provide the foundation for countries to implement and manage tobacco control. The WHO has introduced MPOWER measures which correspond to one or more articles of the Framework Convention, to assist in reducing the demand for tobacco products at country-level. It is further stated that hookahs are smoked in a closed cabins or rooms and^persons who smoke, sit for hours together and inhale much more smoke than those who smoke cigarette for 3 to 4 minutes. It is further stated that Hookahs sometimes called \nrater pipes'and they are used to smoke specially made tobacco that is available in a variety of flavors, such^as apple, mint, cherry, chocolate, coconut, licorice, cappuccino, and watermelon. It is further stated that Hookah smoking is typically practiced in groups, with the same mouthpiece passed from^person to person. Water pipe smoking delivers the addictive drug nicotine and it is as toxic as cigarette smoke and due to the mode of smoking including frequency of puffing, depth of^inhalation, and^{length of the} smoking session, hookah smokers^{may absorbhigher concentration} of the toxins found in cigarette smoke. It is further stated that^a typical one hour long hookah smoking session involves inhaling 100-

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200 times the volume of smoke inhaled from a single cigarette. Hookah smokers are at risk for the same kinds of diseases that are caused by cigarette smoking, including oral cancer, lung cancer, stomach cancer, cancer of the esophagus, reduced lung function, and decreased fertility. Hookah smoking is NOT a safe alternative to smoking cigarettes. The charcoal used to heat tobacco in the hookah increases the hea-lth risks. Even after it has passed through water, the smoke produced by a hookah contains high level of toxic compounds, including carbon monoxide, heavy metals, and cancer causing chemicals and thus prayed to dismiss the writ petitions.

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Heard both sides and pemsed the record

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The learned counsel for the petitioner submitted that the respondents-police are frequently interfering with the petitioner's business activity of serving hookah in the designated smoking area in the restaurant and preventing the petitioner from doing trade. It is further submitted that the action of the respondents in asking the petitioner to stop offering hookah in the absence of arry material to show that the business is in violation of the guidelines prescribed by the Apex Court in Narinder S. Chadhq u. Municipal Corporation of Greater Mumbai2 and the COTP Act, 2O03, amounts to

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'^{1zot+; ts scceeo}

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infringement of fundamental rights and the same is illegal and improper. Learned counsel submits that continuous interference of the respondents is causing irreparable damage and harassment to the petitioner and to the reputation of business. Learned counsel further submitted that in catena of cases, this Court has clearly in unambiguous terms stated that police under the guise of implementing the regulation sha1l not resort to cause inconvenience or any harassment to the customer/person^present there or to the owner of the restaurant, when the business is lawful and legal, there cannot be aly prohibition. It is further submitted that the^petitioner is holding a,ll the required licenses such as GST, Sales Tax, Food, Trade, Labour etc., and aiso^paid advance tax. It is further submitted that the respondents are not having^power to interfere with the petitioner's business activity as long as he follows the guidelines issued by the Honble Supreme Court in Narinder S Cftadha's case (supra) and also the provisions of COTP Act and the regulations made thereunder. Thus the learned counsel^prayed this Court^to allow the writ petitions as prayed for.

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On the other hand, the learned Special Government Pleader for Home appearing for the respondents opposed the writ^petition and relied upon the provisions of Sections^4, 5, 6,⁷ , 8, 9, 10,^{1 1, 13, 15,} 17 and 18 of COTP Act, 20O3. He argued that COTP Act, 2OO3 has

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not only included cigarettes iike Cigarettes (Regulations of Production, Supply and Distribution) Act, 1975 but also brought all other forms of tobacco products (both smoking and smokeless); Prohibition of smoking in public places; Imposing nationwide public smoking bal and specified particular places as non-smoking zones; Ban on tobacco advertising and sponsorship; Ban on sale to minors and in an area within radius of 1O0 yards of any educational institution; Displaying of pictorial health-warning labels; That the specified health warnings must occupy at least 4Oo/o of the principal display area on the front panel of the pockets, and shall be rotated every 12 months; that the law also prohibited more than two languages from being used on the pack to ensure that specihed warning is iegible and prominent. It is further submitted that with effect from 2"d Octotrer, 2012, t}:,.e Government began screening two anti-tobacco advertisements in movie theatres and television. Nicotine and Tar contents of all tobacco products must be clearly displayed on the packs. Producers of tobacco products must ensure that these harmful contents are within the maximum permissible limits as prescribed by the rules. The learned Special Government Pleader further submitted that Rule 4 of the Prohibition of Smoking in Public Places Rules, 2008 (for short "Rules, 2008") mandates that the owner, proprietor, manager, supervisor or in-charge of the affairs

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of a hotel having thirty or more rooms or restaurant having^seating capacity of thirty persons or more ald the manager of the airport may provide for a smoking area or space as defrned in rule 2(e). As per RuIe 4(3), no service shall be allowed in any smoking area or space provided for smoking. Therefore, no ash trays, lighters, matches or other things to facilitate smoking are^{to be provided} in a public place as per Rule 3(c) of the Rules, 2008. It is further submitted that as per Rule a $l@1, smoking in public^places is completely banned and for a^person visiting a Restaurant or a Hotel satisfying the statutory requirement, the Hotel or Restaurant may designate a separate area or space as^per the definition of smoking area in Rute 2(e) and such a person visiting the hotel or a Restaurant is free to smoke in the designated smoking area. The Restaurant or the Hotel will not provide any smoking apparatus or anything that aids smoking. It is further submitted that Rule 3^{(t)(c) specihcally} places a bar on the owner, proprietor, manager, supervisor or incharge of the affairs of public^place to ensure that no^ashtrays, matches, lighters or other things designed to facilitate smoking are provided in the public place, therefore the necessary corollary that would follow is that, there cannot be active^{participation} of the persons incharge of managing a restaurant or a hotel to^provide smoking aids. As such smoking of hookah cannot be aided by the

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restaurant or a hotel merely since it has a smoking room attached to it. It is further submitted that what cannot be permitted in the public area of a restaurant cannot be stretched to mealr that it can be provided in the smoking a-rea. It is further submitted that the Trade licences obtained by the petitioners from the Greater Hyderabad Municipal Corporation, does not disclose that they have been issued after a declaration that they are running "Hookah Centres". The learned Special Government Pleader relied upon Section 52 1 of GHMC Act, which specifically states that no person shall without licence keep, in or upon any premises, for sale or for other than domestic use, any article specified in Part III of Schedule P. It is further submitted that Charcoal, which is used to faciiitate the smoking of the Hookah is an Article mentioned in Part III of Schedule P. The use of charcoal for the purpose of Hookah smoking is very dangerous and can pose a risk of fire accidents apart from creating a nuisance to the persons who may visit the Restaurant or Hotel. It is further submitted that the licences of the petitioners do not disclose that they have filed declaration that they intended to use Trade Licences to permit Hookah smoking. There is no occasion for the Municipal authorities to consider this aspect. The learned Special Government Pleader further submitted that even though earlier batch of cases have been disposed of by this Court, the issues raised

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in these writ petitions are not specifically^adverted and this^Court has not taken into consideration that^Hookah is^also a^Tobacco product and the provisions of COTP Act, 20O3 apply. It is further submitted that prayer sought in^these writ^petitionsis in^{the nature} of restraining the authorities from inspecting the^{premises where} Hookah centres are being run and in^{fact as per} the^provisionsof Hyderabad City Police Act, 1345 Fasli, the^police has^{power to} inspect any public place for the offences^{committedunder the said} Act, i.e, exposing of body in indecent manner,^{possession of} suspected articles, indecent acts in^{streets etc., committing nuisarce} in or near public place. It is further submitted that^sincethe obsewations made in the earlier batch^{of cases does not specifically} restrain or declare the^powers exercised by the^{police officersas} illegal, the police officers are entitled to supervise^{and inspect,seize} and sea,l the petitioners establishments^{if any violation is beingfound} under Section 12 of COTP Act. Since the orders^passed in^{the earlier} writ petitions, does not^qive blanket^protection or^{recognizes the} independent existence of "Hookah Centres", the^{judgmentsrelied} upon by the petitioners are not helpful to^{the caseof the petitioners} and therefore, the learned Special Government^{Pleaderprayed for} dismissal of the writ petitions.

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It is apt and appropriate to extract some of the relevant

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provisions of COTP Act, 2003, which are as follows:

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"3.^{Definitions.-Inthis} Act, unless the contert oth.erutise requires,-

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(a) "aduertisement" includes ang uisible representation by utag of notice, circular, label, Lurapper or other document qnd also includes ang announcement made orallg or by ang means of producing or transmitting [ight, sound, smoke or gas;

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fu )^{" cig arette" include s,} -

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(i) ang roll of tobacco urapped in paper or in any other substance not containing tobacco,

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(ii) ang roll of tobacco wrapped in anA substance containing tobaca, tuhiclt" bg reason oJ tts appearance, the tgpe of tobacco used in the filter, or its packagtng ond labelling is tikelg to be offered to, or purchased by, consumers as cigarette, but does not include beedt, cheroot and. cigar;

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(d) "export", tuith its grammaticctl uaiqtions and cognate expressions, means taking out of India to a place out-side India;

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(e) 'foretgn Language" means o language uhich is neither an Indian language nor the Engtish language;

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A^{"import", with its grammatical uariations} and cognate^expresstons, means binging into India from a ploce outside India;

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(g) "Indian language" means a language specified in the Etghth Schedule to the Constitutton, and includes ang dialect of such language;

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(h) "label" means ang uitten, marked, stqmped, pinted or graphic matter, affxed to, or appearing upon, ang package;

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(i) "package" inctudes a urapper, box, carton, tin or other container;

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(j) "prescribed" means prescribed by rules made under this Act;

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(k)^"production" , uith its grammatical uaiations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, cheLuing tobacco, pan masala or ang chewing mateial ha.uing tobacco as one of its ingredients (by whatever name calted) or snuff and shntl include-

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(i) packing, labelling or re-labelling, ol contqiners;

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(ii) re-packing from butk packages to^retail packages; and

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(iii) the adoption of any other method to render the tobacco product marketable;

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Q^{"pubtic ploce"meansany place to uhich the publichaue access,} wheth.er as of ight or not, and includes auditoium, hospital^buildings, railutay uaiting room, amusement centres, restaurants, public olfices, court buildings, educational instittttions, libraies,^{public conuegances} and the like u.thich are uisited bg^{generalptrblic} but^{does not include} ang open sPace;

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(m) "sate", with tts grammatical uaiations and cognate expressions, means anA transkr of propertA in^good.s bg one person to another, uhetller for cash or on credit, or bg utag of^exchange, and uhether wholesale or retail, and includes on agreement for sale, and^offer for sale and exposure for sale;

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(n) "smoking", means smoking of tobacco in any lorm uhether in the form of cigarette, cigar, beedis or otheruise urith the aid of a^ptpe, urapper or anA other in-struments;

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(o) "specified uarning" means such uarnings against the use of cigarettes or other tobacco

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products to be printed, painted or inscibed on packages of ctgarettes or other tobacco products in

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such form and manner as mag be prescibed bg rules^made under this Act;

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(p) "tobacco products" means the products specified in the Schedule.

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Prohibition of smoking in a public place.-No person shall smoke in ang public place:

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Prouided that in a hotel hauing thirtg rooms or a restaurant hauing seating capacitg of thirtA persons or more and in tfe airpofts, a separate prouision Jor smoking area or space mag be made.

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Prohibition of advertlserncnt of cigarettes and other tobacco products.-(1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobocco products shnll aduertise and no person hauing control ouer a medium shall cause to be aduertised cigarettes or ang other tobacco products through that medium and no person slrall take part in any aduertisement u.)hich directlg or indirectlg suggesfs or promotes the use or consumption of cigarettes or anA other tobaca products.

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(2) No pe$on, for ang direct or indirect pecuniary benefit, shall-

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(a) dtsplag, cause to displag, or pennit or quthorise to displag ang aduertisement of cigarettes or anA other tobclca product; or

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(b) selt or cause to sell, or pennit or authorlse to sell a flm or uideo tape containing aduertisement oJ cigarettes or ang other tobacco product; or

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(c) distribute, cause to distribute, or permit or duthoise to distribute to the public ang leaflet, hond-bill or document which is or uhich contains an aduertisement of cigareltes or^qnA other tobacco product; or

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(d) erect, exhibit, fix or retain upoft or ouer ang land, building, ual| hoardtng, frame, post or structure or upon or in ang vehicle or shall displag in^qng manner uhatsoeuer in ang place anV aduertisement of cigarettes or any other tobacco ptod

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Prouid.ed. that this sub-section s hall not appty in relation to-l

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(a) an aduertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or anA oth.er tobacco product

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(b) aduertisement of cigarettes or ang oth.er tobacco product tLhich is displaged at the entrance or inside a Luarehouse or a shop tuhere cigarettes and ang other tobacco products ore offered for distribution or sale.

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(3) No person, shall, under a contract or othentise promote or agree to promote the use or consumption of

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

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(b) any trode mark or brand name of cigarettes or any other tobacco product in exchange for o sponsorship, gifi, prize or scholarship giuen or agreed to be giuen bg another person.

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Prohibition on scle of clgarette or other tobacco products to a person belout the age o.f eighteen yeors and. in particular area.-No person shall sell, offer for sale, or permit sale of, cigarette or any other toba(ro product

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(a) to ang person uho is under etghteen Aears of age, and.

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(b) in an areq within o radius of one futndred gords of any educationaL instttution.

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Restrictions on trade and comnprce in, and production, supplg and. distribution o.f cigarettes and other toba.cco products.-(1) No person shall, directlg or indirectlg, produce, supplA or distribute cbarettes or anA other lobacco producrs unless euery package of cigq.rettes or ang other tobacco products produced, supplted or distibuted by him bears thereon, or on its label such specif.ed uarning including a pictoial warning as mag be prescibed.

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(2) No person shall carry on trade or comrterce in cigarettes or ang other tobacco products unless euery package of cigarettes or any other tobacco products sold, supplied or distibuted bg him bears thereon, or on its label, the specified utarning.

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(3) No person shatl import cigarettes or anA other tobacco products for distibutton or sltpplg for a ualuable consideration or Jor sale in India unless euery package of cigarettes or ang other^{tobacco products so} imported by him bears thereon, or on its label, the specified waming.

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(4) The specified warning shall appear on not less than one of the largest panels of the package in uhich cigarettes or any other tobacco products haue been packed for distibution, sale or supplg for a^ua[uable consideration

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(5) No person shall, directtg or indirectlg, produce, supplg or distibute cigarettes or ang other tobacco producfs unless euery^package of cigarettes or anA other tobacco products produced, supplied or distibuted bg htm indicates thereon, or on its label, the^nicotine and tar contents on each cigarette or as the case mdA be on other^tobacco products along uith the maximum permissible limits thereof:

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Prouided that the nicotine and tar contents shall not exceed^the moximum pennissible quantitA thereof as mag be prescibed bg n^es made under this Act.

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Testing lq.bora.tory Jor nicotine and tar coatenk.-For^purposes of testing the nicotine and tar contents in ctgarettes and ang^other tobocco products the Central Gouernment shall bg notification in the Official Gazette grant recognition to such testing laboratory as that Gouernment mdA deem necessary.

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Pouer of entry and seorclt--(l) Ang police officer, not belout^the rank of a sub-inspector or anA officer of State Food or^Dntg Admintstration or any other officer, holding the eqtiualent rank^{being not} belotu the rank of SubJnspector of^Police, authoise side^bA the^Central Gouernment or bg the State Gouernment may, if he^ho's ang^redsonto suspect that ang prouision oJ this Act^hasbeen, or is^{being, contrauened,} enter and search in the manner^prescibed., at ang^{reasonable ttme, ang} factory,^{building,bustness premisesor anA otherplace,-}

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(a) uhere ang trade or commerce in cigarettes or anA other tobdcco products is carried on or cigarettes or anA other tobacco products are produced, supplied or distibuted; or

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(b) uhere ang adueftisement of the cigarettes or any other tobacco products has been or is being made.

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(2) The proutsions of the Code of Ciminal Procedure, 1973 (2 of 1974), shall apply to euery search and seizure made under^{this Act.}

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Pouer to seize.1l) If any police officer, not belou the rank of a subinspector or ang officer of Stqte Food or Drug Admtnistration or any other officer, holding the equiualent rank being not belolu the rank of SubInspector of Police,^quthoised bA the Centrat Gouernment or bA the State Gouernment, has any reason to belieue that,-

¶142

(a) in respect of ang package oI cigarettes or ang other tobacco products, or

¶143

(b) in respect of ang aduerttsement of cigarettes or dng other tobacco products,

¶144

the prouisions of this Act haue been, or are being, contrauened, he maV seAe such package or aduertisement material in the manner prescribed.

¶145

(2) No package of cigarettes or any other tobacco products or aduerti.senlent material seized under clause (a) of sub-section ( 1 ) sl.all be retained by the olfcer LDho seized the package or aduertisement mateial for^{a peiod exceedingninety days} from^{the dateof the seizure unless} the approua.l of the Dtstrict Judge, withrn the local limtts of uhnse jurisdiction such seizure was made, has been obtained for such retentton.

¶146

Colrfiscation oJ package.-AnA pqckage oJ cigarettes or anA other tobacco products or ang aduertisement mdterial of cigarettes or any other tobacco products, in respecl of u,thich ang prouision of this Act has been or is being contrauened, shqll be ltable lo be confiscoted:

¶147

Proutded. thaL tahere it is establishecl to the satisfaction of the courl adjudging the conf.scation that the person in uthose possession, pouer or control ang such package of cigarettes or any other tobacco products is found is not responsible for the contrauention of the prouisions oJ this Act, the Court maA, instead of making an order for the confiscation of such package, make such other order authorised. by this Act against th.e person gutlty of the breach of the prouisions of this Act as it maA think fit.

¶148

Confiscotiora not to interlere uith other punishncnts.-No confiscation me.de, costs ordered to be paid under this Act sha'll preuent the inJliction of ang punishment to uhich the person affected therebg is liable under the prouisions of this Act or under anV other lanu.

¶149

Punishment for Jailure to give specified warning dnd nicotine and ta,r co'trtents.-(1) Any person utho produces or manulactures cigarettes or tobdcco products, uthtch do not contain, either on the packa"ge or on their label, the specirted uaming and the nicotine and tar contents, shall in the cose of first conuiction be punishable with impisonment for a tenn uthich mag extend to ttDo gears, or Luith f"ne tDhich mag extend to fue thousand rupees, or LDith both, and for the second or subsequent conuiction, uith impisonment for a term uthich maA ertend to frue gears^qnd tuith fine uhich mag ertend to ten thousand rupecs.

¶150

(2) Any person ula sells or distibutes cigarettes or^{toboccoproducts} ulhich do not contain etther on^{thepackageor on their lqbel, the specified} uartling ond the nicotine and tar contents shall^{in the case of} first conuiction be punishable uith imprisonment for a^{term,ulhich may} extend to one Aear, or tuith fi.ne uthich^{may extend to onethousand} ntpees, or uith both, and, for the^{second or subsequent conuiction, uith} imprisonment for a term uhich mag extend to^ttLogears and^with fine uhich mag extend to three thousand^rupees.

¶151

Punishment fior smoking in certain^{places.-(l)Whoeuer} contr(luenes the prouisions of^section4 sLwll^{be punishable with} fine uhich mag e\lend to tu.to hundred^rupees.

¶152

(2) An offence under this section shall be compoundable and shall^be tied summailg in accordance with^{the procedure prouided.} for^summary tials in the Code of Ciminal^{Procedure, 1973 (2 of 1974).}

¶153

On earlier occasions, identica-l^issues to^{the caseson hand,} came up for consideration before this^Court in^{W.P.No.32O2of 2Ol4} and batch, W.P.No.i4093 of 2011,^{W.P.NI.4942of 2012,and} W.P.Nos.22O6O of 2017 alrd 23213 of^2Ol7

¶154

In Writ Petition No.3202 of 2Ol4^{and batch, this Court dealt} with a similar situation where the^{police were interferingwith the} business activities of the^petitioners therein,^{in servingflavoured} hookah in their coffee shops.^{Dealing with the said aspect and also} taking into consideration^{variousprovisionsof the COTPAct, the} petitioners cases were rejected, holding as under:

¶155

"16. Insofar as the interference of the^police are^{concented,it is}

¶156

pertinent to note that the prouisions of^{Sectton12 of the COTPAct confer} pouers to the police not belou the rank of Sub^{Inspector of Police or ang} officer of the State Food or Dtug Administration^{or anq other officer,} holding the equiualent rank being^not belou the^{rank of Sub Inspector of} Police authorized by the Central^{Gouenlmentor bA the State Gouentment,}

¶157

¶158

mag, if he has ang reason to suspect that any prouision of this Act has been or is being contrauened, enter and search in the manner prescibed at any reasonable time at facbry, buitding, business or any other place.

¶159

In the light of this prouision and Section 149 Cr.P.C., the contention of the learned Counsel for the petitioners thqt the o.cts of the Police amount to infingement of fundamental rights and that the police are not tlre competent authoitg, but it is onlg the G.H.M.C that is competent to interkre uith the business of the petitioners, utho are seruing Hooutas futtothape ony force. ThereJore,lffiis of the uieu) th.at under Sectaon 12 of the Act and Section 149 Cr.P.C-, the police including the other authoities as authorized bg both Central and. State Gouemments haue ample powers to inspect the business premises of the petttioners. In this regard, the learned Counsel for the petitioners has failed^{to placeanA such autLnit!!, under u.thich,the G.H.M.Cis onlg} competent to inspect the business of the petitioners in serutng Hookah.

¶160

In uiew of tLLe foregotng discussion, this Coutl is of the uteLu thqt the action of the respondents-po[ice is in accordance uith latu and ang interference bg this Couri u)ith the pouers of the police in this regard by exerctsing the pouters under Section 226 of the Coftstitution of India, is not uarranted.

¶161

Further, the Director General of Police, Telangana State, is directed to take^qppropri.ate action qgainst the offi.cers Jor their inqction in respect of the restaurants being used as hookcth centres and also to take action against the high-handed acts of the offrcers, who interfered LDith the restaurants, which are being run uithout there being ang uiolations . "

¶162

In W.P.No.14093 of 2Oll, a learned Single Judge of this Court referring to the order passed in W.P.No.32O2 of 2014 and the judgment of the Hon1:le Apex Court in Nqrind.er S.Chqdhq and

¶163

¶164

others a. Municipal Corporation of Greater Mumbai (supra), held

¶165

as under

¶166

'The facts in W.P.No.32O2 of 2O14 and batch are same and similar to the facts^{assertedin the instant urtt petition. Further, as righttApointedout} bA the respondents there can't and ought not to^be a blanket^direction against the respondents for such dtrection^{uirtuatlgpreuents the Police} from^{euen knou.ing or inuestigatinguhat is actuallyhappening in the} name of Jlauoured hookahs. The decision of Hon'ble^Supreme Court^is distinguishabte to the fact situation oJ this^case, for a Circular uas challenged in the reported case and the legalitg of the Circular was ansidered and decided. Whereas in the case on hand^{the praAer} and the cause of action are on alleged interference bg Police against Jlauoured^{hookahs seruingand no Luitten order or proceeding is placed} on record to examine the legolita of^{such orderor proceeding.Therefore,} hauing regard to the uiela taken tn^{the commonorder} dated^27-01- 2017 in W.P.No.32O2 oJ 2O14 and batch, I am satisfed that the instant uit petttion can be dismissed by adopting the same reasons."

¶167

In W.P.Nos.22O6O of 2O\7 and 23213 of 2077, a^learned Singie Judge of this Court vide order dated 02.08.2017,^observedas

¶168

follows:

¶169

"17) The tuto^judgments referred to aboue dealt uith situation u.there tlle interkrence of the police in the^business of^{the petitioners} in^serutng flauoured^{hookah u.tas in challenge. Situationon hqndnou is totally} different and still uerse in uieto of the notificatton dated 23.O5.2O17 ulhich prohibited seruice in smoktng area or spdce^prouided for^smoking. AdmittedlA, hookah i.s a product u.thich contains tobacco and uhen^ang product contoins tobacco, the same has to be puffed in a non-smoking zone. In uieu.t of the circular issued bg the Gouernment, seruice of^hookah euen in the no-smoking zone tuoutd be^{impermissible.}

¶170

¶171

It is to be noted here that the aboue said prouision taill applg tf the hotel/ restaurant ho.s 30 rooms and the coffee shop has seating cq.pacitA of 30 persons or more, uhich does not mean that hookah can be freely^{suppliedin a restaurant uhere se^ting copclcitgis less than 3O or} a hotel uhere there are less number of rooms."

¶172

As per Section 4 of the Act, if the restaurant has seating capacity of 30 persons or more, a separate provision for smoking area has to be provided. The word Hookah has not been defined in the COTP Act. Section 3 (k) of the COTP Act defrnes "production". A reading of the said provision would show that the word "production" includes making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chev/ing material having tobacco as one of its ingredients (by whatever name called) or snuff. Therefore, it implies that all the tobacco products which are taken with the aid of pipe, wrapper or any other instruments would fall within the dehnition of Section 3(n) of the COTP Act. If the restaurant or coffee shop falling within the ambit of Section 4 of the COTP Act, has to provide a separate smoking zone. The Government of India has issued a notification in the month of May, 2017, wh,ich clearly indicate that no service shall be allowed in a smoking area or in the space provided for smoking. Therefore, the restaurant owners shali not involve themselves in the act of service to their customers, in the prohibited area. Section 12 of the Act confers powers to the police officer not below the rank of

¶173

¶174

Sub-Inspector of Police or any oflicer of authorized by the Central Government or State Government to search the premises at any reasonable time, if he suspects that the^provisions of the Act are contravened namely cigarettes or any other tobacco products are 6iroduced,^{supplied or distributedor whether any advertisement of} the cigarettes or any other tobacco products are being made. While affecting a search and seizure, Section 12 of t}re Act clearly says, that the provisions of the Cr.P.C. have to be followed.

¶175

Having regard to the above, and taking into consideration, consistent view taken by this Court in the aforesaid Writ Petitions, this Court do not find any illegality in police officers, entering into the premises ald searching the same, so as to find out whether the owners of the restaurants have contravened or violated aly of the provisions of the COTP Act and Rules made thereunder.

¶176

f6. It is useful to refer and extract Article 47 of the Constitution of India, which reads as follows

¶177

"47. Iruty of the Stdte to raise the leuet oJ nutrition a'{.d the standqrd of liuing and to improae public health.- The State shqll regard the raising oJ the leuel of nutrition and the standard of tiuing of its people and the improuement oJ pubtic heqlth as among its primary duttes and, in parttcular, the State shall endeauour to bing about prohibition of the consumption except for medicinal purposes of intoicating dinks and of drugs which are injurtous to health.

¶178

¶179

This Constitutional Provision specifrcally deals with improvement of public health a primary duty of the State. The Court should enforce this duty against a defaulting local authority. Any article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed to the citizens under Article 2l read with Article 47 and a paramount dut5r is cast on the States and its authorities to achieve an appropriate Ievel of protection to humal life and health. Further, restrictions imposed by law for supply and serving of tobacco products including serving hookah cannot be said to be violative of Article t9(t)(g). Having regard to the principles contained in Article 47 of t}:e Constitution, the State or its authorities are having right to regulate the sale of tobacco product which includes running of hookah centres. While gralting license to run the restaurants, the State or its authorities must resort to strict scrutiny of the applications. For the purpose of grant of licence, the law as contained in the rules, did not contain any provision for relaxing any condition. In Vincent Panikurlangara u. Union oJ Indias the Hon'ble Supreme Court observed that "maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends, the

¶180

'^{ArR r987 sC 990: (1987) 2 SCC165}

¶181

¶182

building of the society of^{which the Constitutionmakers envisaged} Attending to public health is of high^priority.

¶183

Section 4 of the COTP Act defines^{prohibitionof smoking in a} public place. It states that no^person shall smoke in any^public place. Provided that in a hotel having thirty rooms or a^restaurant having seating capacit5z of thirty^{persons or more and in the airports,} a separate provision for smoking area or^{space may be made.} Admittedly, the petitioners in all these^{caseshave obtained licence to} run the hotels / restaurants . Section 6 of the COTP^{Act prohibits sale} of cigarette or other tobacco^products to a^{person below the age of} eighteen years and in an area within a radius of one^{hundred yards} of any educational institution. A conjoint reading of Section 6 read with Section 4 of COTP Act clearly indicate smoking of tobacco in any form is prohibited in public^places like Hotels, Restaurants and Airports. Rule 4(3) of the Rules, 2OO8, a smoking area^{or space} shall be used only for the purpose of smoking and no other service(s) sha-ll be allowed. A careful reading of the above^provisions, would indicate that the Hotels and Restaurants where normally food is supplied, are prohibited from smoking of any tobacco product, unless a separate area is made to allow smoking. Therefore, the contention of the petitioners that the licence obtained by them to run the

¶184

¶185

Hotels / Restaurants also allows them to have smoking of hookah and run hookah centres is not tenable.

¶186

The petitioners having obtained licence to run hotels/ restaurants have to comply the conditions imposed by the Municipal Corporation, whereas Section 4 of the COTP Act, prohibits smoking in a public place. Ttrerefore, the conditiorrrirrrposed by the Municipal Corporation for granting trade licence to run Hotels/ Restaurants are var5ring from the conditions that are incorporated under the provisions of COTP Act. The licence obtained for running Restaurants which have the seating capacity of thirty persons or more does not confer any right to the petitioners to convert the same as a place of smoking area or to run hookah centre.

¶187

Admittedly, in the present cases on hand, the petitioners have bbtained licences to run Hotels/ Restaurants/Bars and without speci$ring any area as smoking zone as per the provisions of COTP Act and Rules made thereunder, as such they are not having right to contend that they are entitled to run the hotels/restaurants as Hookah centres.

¶188

The Hon'ble Supreme Court in Narinder S. Chadha a. Municipal Corporation of Greater Mumbai (supra), while dealing

¶189

¶190

with the Condition 35(C) of the Circular issued by the^Bombay Municipal Corporation, observed as follows:

¶191

"14- It tuill be seen that Condition 35(C)^{of the impugned circular} essentially reproduces Rule⁴⁽³⁾ of the said Rules and then^{adds the} utords'or^qnA apparatus d.esigned to facilitate^{smokirug". Theeffect} of the added utords is thqt a Hookah cannot^{be prouidedby the hotel,} reslaurant or airport being an apparatus designed to facilitate smoking."

¶192

We find it d{rtcult to accept this contention^because, if^careJullg read, Rule 3 deals uith the prohibition of smoking in^{public places,} tt.thich is rekrable to Section 4^(main Part) tahereas^Rule4 is rekrable to the prouiso to Section 4. Rule 3 uould onlg applg uhere^there is a total prohibition of smoking tn all public places as is^ctear from^Rule 3(1)(a) uhich makes it incumbent on the ouner,^{proprietor, etc. of a} publtc place to ensure that no person smokes in that^place. It ts in that context thqt ashtraVs, matches, ltghters and other thtngs designed^to factlttate^{smoktng are not to be prouided in publtcplacesuhere} smoking is prohibited altogether.^"

¶193

As per Section 3(1) of the COTP Act,^{"publicplace" means any} place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting^room, amusement centres, restaurants, public offices, court^buildings, educational institutions, Iibraries,^{public conveyances zrnd the like} which are visited by general public but does not^{include anyopen} space. As per Section 3(g) of the Hyderabad City^Police Act,¹³⁴⁸ Fasli (for short "City Police Act"), "public place of^{amusement"means} every place or house or tent or enclosure or^booth or any^other

¶194

¶195

building whether permanent or temporary where singing, music, dancing or any diversion or game and anything giving amusement or the means of carrying on the same is provided and to which the public are admitted either on payment of money or with the intention that money may be collected from them on admission and shall include the race-course, circus, theatre, music ald dancing hall, billiard room, Srnnasium or any other place allotted for such purposes. As per Section 3(h) of the City Police Act, 'public place of entertainment" means any enclosed or epen place to which the public have access and where aly kind of articles of food and drink are supplied for consumption by any person or for the proht of any person owning or having any interest in or managing such place and shali include a refreshment room, tea house, liquor house, boarding house, lodging house, hotel, tavern or sendhi, wine, ganja, toddy, bhung or opium shops. As per Section 3fi) of the City Police Act, "public place" also includes the place within the premises or enclosure of aly public building or monuments and all places to which the public have access for drawing water, washing or bathing or for the purpose of recreation.

¶196

It is pertinent to state that "public place" as defined under Section 3(1) of COTP Act, includes amusement centres, and the same is delined in "public place of amusement" under Sections 3(g) of City

¶197

¶198

Police Act. As per Chapter III of the City Police Act, the Commissioner of Police is having power to issue rules and regulations for preservation of order. Further, as per Section 32 of the City Police Act, for enforcement of orders under Sections 22, 23 and 24 of the City Police Act, the police officer may arrest any person without warrant. As per Section 84 of the City Police Act, police is having power to speci$z conditions etc., for obtaining licences and permits. Since the City Police Act, confers power over the amusement Centres/restaurants, which are defined as "public place" under the COTP Act and as per Rule 4 of the Prohibition of Smoking in Public Places Rules, 2008 permission is required specifying smoking area. In view of the powers being conferred on the Commissioner of Police, under the City Police Act, the^police are having power to supervise the business establishmenis of the^petitioners and seize the hookah centres if there is any violation of the^provisions of the COTP Act. Therefore, to establish hookah centres, permission from the concerned authority has to be obtained under the^provisions of City Police Act. The petitioners shall follow rules and regulations issued by the Commissioner of Police from time to time for preservation of the public order.

¶199

¶200

In view of the above discussion, this Court is of the opinion that imposing of certain conditions to run the Hookah Centres would meet the ends of justice.

¶201

i) As Charcoal is being used for serving hookah in the Hookah Centres, the petitioners shall obtain licence from the Municipal Corporation as specified under Section 521(t)(b) of Greater Hyderabad Municipal Corporation Act, 1955.

¶202

ii) Since the Hyderabad City Police Act, 1348 Fasli confers power over the amusement Centres/restaurants which are defined as "public place" under the COTP Act and as per Rule 4 of the Prohibition of Smoking in Public Places Rules, 2OO8 permission is required specifying smoking area. Therefore, to establish hookah centres, the petitioners sha1l obtain necessary permission from the concerned authority under the provisions of the City Police Act.

¶203

iii) The Hookah Centres are prohibited from serving any tobacco product to the persons below the age of eighteen years. Pictorial health-warning labels at the entrance must be displayed.

¶204

iv) The respondents-police are at liberty to supervise and inspect the Hookah Centres, for any violation of rules and regulations, guidelines or circulars issued under the provisions of the Hyderabad City Police Act, 1348 Fasli.

¶205

v) If there is any violation of the provisions of the COTP Act and the Rules made thereunder, the respondents-poiice are at

¶206

¶207

liberty to take appropriate action as per the provisions of the COTP Act.

¶208

Subject to fulfilling the above conditions and also the provisions of COTP Act, the respondents-police are directed not to interfere with the business activity of the petitioners for running Hookah Centres. If the police are found to act in a highhanded manner, the owners of the Hookah Centres are at libert5r to bring the same to the notice of the Director General of Police/Commissioner of Police, as directed by this Court in Writ Petition No.32O2 of 2074 and batch, in which event the said authority shall forthwith take necessary steps in that regard.

¶209

Accordingly, all these Writ Petitions are disposed of.

¶210

Miscellaneous Petitions, if any,^pending in these writ petitions shall stald closed. No order as to costs.

¶211

C.V. BHASKAR REDDY, J

¶212

Date: 15.17.2023 SCS

Awad Bin Hassan Zurmali, Hyderabad v. Prl. Secretary, Home Dept., Hyd and 3 Others

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Awad Bin Hassan Zurmali, Hyderabad v. Prl. Secretary, Home Dept., Hyd and 3 Others

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