Writ petition filed by a coffee shop owner seeking permission to serve flavoured hookahs. The court disposed of the petition by following a common order from an earlier batch of cases.
Petition disposed of following a common order of 15.11.2023; no ancillary relief granted in this specific order.
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.
[32e6 ]
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction)
MONDAY, THE EIGHTH DAY OF JANUARY TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION NO: 30041 OF 2016
Between:
Nagula Sravan, S/o Nagula Yadagiri, Aged 25 years, Occ Business, Rl/o. H.No.2-4-37 7 I 28, CIB Quarters, Kachiguda, Hyderabad, T.S.
,..PETITIONER
AND
...RESPONDENTS
Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ,lorder or direction and more particularly one in the natwe of writ of Mandamus declaring the aclion of the Respondents in interfering with the business of the petitioner under the name and style of Terrace Bay Coffee Shop at premises bearing Municipal No.6-3-1'l 11/23, Somajiguda, Hyderabad T.S. in serving of flavoured Hookahs without referenc€ to rule, law or regulations as illegal, arbitrary, unconslitutional and contrary to the provisions of Cigarettes and other Tobacco products COTP Act and consequently direct the Respondents to permit the Petitioner to continue his business of serving flavoured Hookahs in his business premises without any hindrance or restrictions except under law.
l.A. NO: 1 OF 2r)16(WPMP. N O: 37163 OF 2016)
Petition rrnder Section 151 CPC praying that in the circums{ances stated in the aff idavit liled in support of the petition, the High Court may be pleased to direct the Resp,)ndents herein not to interfere with the business of the Petitioner under the nam -. and style of Terrace Bay Coffee Shop at premises bearing Municipal No.6-l- 1111123, Somajiguda, Hyderabad, T.S.
Counsel for the Petitioner: SRI P.VAMSHEEDHAR REDDY
Counsel for the Respondent No.1 to 3: GP FOR HOME
Counsel for the Respondent No.4: SRI K.RAVINDER REDDY, SC FOR GHMC The Court made the follovving: ORDER
a
HON'BLE SRI JUSTICEC.V.BHASKAR REDDY
WRIT PETITION No.3OO4lof 2OL6
ORDER:
When the matter is taken up forhearing, learned counsel for the petitioner submitted thatthe issue raised in this writ petition is squarely covered by thecommonorder passed by this Court in W.P.No.8223 of 2Ol3 and batch dated15. 11.2023and therefore, the present writ petition may be disposedof in terms of the said order.
As a sequel, miscellaneous petitions pending, if any,shall
stand closed.
SD/- MOHD. SANAULLAHANSAR] ASSISTANTREGISTRAR //TRUE COPY/'
SECTIONOFFICER
To,
'7 lwo CUs to LjP ruK HUMtr. Htgn Loun Tor lne stale ot I elangana aI Hyderabad [OU'!
(Along with lhe copy of order dated 15.1 1 .2023, in w.P.No.a223 of 2o'13)
BSR
GJPW'
Itit, io6
HIGH COt'RT
DATED: Otll01l2O24
ORDER
WP.No.30041 of 2016
'i rtr; Si. <br>o
J
:
o 2 0 FrB 20A
o
I
* *
ZqTCH 60
DISPOSING OF THE WRIT PETITION,
WITHOUT COSTS
Ucqp.$4 w ;i-#\
THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
IIIRIT PETITION Nos.8223 I 2013, 3427 I 2OLs,4s74212022, 4650512o22 152 Lt27. 18()9 1935. 2729. 2735. 295,4. 3,.24. 3758 37A4 4150 4297 4304 433() 4562 4680 5084 5097 5147 5149 6510 6523 7189 7297 74a5 75o,4 7949 7963 8117. 8226. 4246 a26A 8498. 8509. 8564. 9558. tot22. LO24t 1o425 ro775 10814 11()()8 11213 11463 12360 12482 L4t29 t4134 15706 16172 16839 t79t7 18351 18829, 19005, 19051. L9742.222aA ,22292,22305,2373A, 23492 24696 25044 25836 26t72 27223 27761 anil 30952 of2O23
COMMON ORDER:
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.
Constitution of India, seeking the following relief:
'lo pass an order, direction or a Wit particularlg in the nature oJ Wril of Mandamus directing the respondents herein to allou the petitioner herein to serue hookah in his establishment freelu as long os he fotlotus the 'Cigarettes and Other Tobacco Products (I+ohibition of Aduertisement and Regulation of Trade Commerce Supply and Distibution) Act, 2003 qnd rules and that the petitioner be allowed to serue hookoh in open areas and smoking zones and to issue necessary directions to the eIJect that no coerciue aclion of anA nature ought to be initiated against the petitioner or his establishment namelA "Resign Skg Bar" located in Madhapur."
2
3
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 inconformit5z with the directions issued by this Court, the respondents-police are raiding the hookah Centres and registering false cases under Sections laa, 27O, 272 arrd 328 IPC. It is further case of petitioner that cases under aforesaid Sections cannot be filed against the restaurant owners if they serve hookah to their customers and that there is no general 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 & 420 read. with 34, 149, 511 of IPC; Sections 3(ml, 20(21, 2t(l), 21(2],, 22, 7(31 and 7(5) of the COTP Act, 2003 and Sections 58 and 59(i) of the Food Safety and Standards Act,20O6 (for short 'FSS ActJ. This Court vide common order dated 10.06.2022, allowed the said Criminal Petitions, quashing the proceedings in the respective Crimes/Calendar Cases/Sessions
4
Cases in terrrs of the common order,datedO5.O7.2O21passed in Mohd. Jameel Ahmed us. State ofTelanganar. It is further case of the petitioners that since there is noprohibition underCOTP Act, 2003 to serve hookah, interference by therespondents-police amounts to violation of the rightsguaranteedunder Article l9(1)(g)of the Constitution of India and also theprovisions of COTPAct, 2OO3
'2oz2 cr;L) t lz
5
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 arrd inhale much more smoke than those who smoke cigarette for 3 to 4 minutes. It is further stated that Hookahs sometimes called lpater 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 puffrng, depth of inhalation, and length of the smoking session, hookah smokers may absorb higher concentration of the toxins found in cigarette smoke. It is further stated that a typical one hour long hookah smoking session involves inhaling 10O-
6
2OO trmes the volume of smoke inhaled from asinglecigarette. Hookah smoi<ers are at risk for the same kindsof diseases thatare caused by cigarette smoking, including oral cancer, lungcancer, stomach cancer, cancer of the esophagus, reduced lungfunction, and decreased fertitity. Hookah smoking is NOT a safe altemativeto smoking cigarettes. The charcoal used to heat tobacco inthe hookah increases the health risks. Even after it haspassed throughwater, the smoke produced by a hookah contains high level of toxic compounds, including carbon monoxide, heavy metals,and cancer causing cherrricals ald thus prayed to dismiss the writ petitions.
of Greater Mumbai2 and the COTP Act, 2O03, amounts to
t (2otq) t5 scc o8,r
7
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 shall 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 any prohibition. It is further submitted that the petitioner is holding all the required licenses such as GST, Sales Tax, Food, Trade, Labour etc., and also 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 Hon'ble Supreme Court in Narind.er S Chadha'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.
8
not only i-rcluded cigarettes like Cigarettes(Regulationsof Production, liupply and Distribution) Act,1975 but also broughtall other forms of tobacco products(both smokingand smokeless); Prohibition of smoking in publicplaces; Imposingnationwide public smoking ban and specifiedparticularplaces as non-smoking zones; Ban on tobar:co advertising and sponsorship;Ban on sale to minors and in an :rrea within radius of 1O0yards of anyeducational institution; I)isplaying of pictorial health-warninglabels;That the specified health warnings must occupy at least4O''/o of the principal display area on the front panel of thepockets, and shallbe rotated every 12 months; that the law also prohibited more thantwo languages fr,rm being used on the pack to ensure that specihed warning is le gible and prominent. It is further submitted that with effect from 2;,d October, 2012, th.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 tobaccoproducts must ensure that these h ermful contents are within the maximumpermissible limits as prescribed by the rules. The learned Special Government Pleader further submitted that Rule 4 of the Prohibition of Smoking in Public Pla<:es Rules,2008 (for short"Rules,2008") mandates that the owner, proprietor, manager, supervisor or in-charge of the affairs
9
of a hotel having thirty or more rooms or restaurant having seating capacity of thirty persons or more and the manager of the airport may provide for a smoking area or space as defined in rule 2(e). As per Rule 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, 2OOA. It is further submitted that as per Rule a (a)(a), 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 Rule 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) specifically 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 necessar5r 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
10
restaurant or a hotel merely since ithas a smoking room attached to it. It is further submitted that what cannot bepermitted in the public area of a reritaurant cannot be stretched tomean that itcan be provided in t.re smoking area. lt is further submitted that theTrade licences obtained by the petitioners from the GreaterHyderabad Municipal Corporation, does not disclose that they havebeen issued after a declaration that they are running"Hookah Centres".The learned Spec ial Government Pleader relied upon Section 521of GHMC Act, rvhich 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 subuLitted that Charcoal, which is used to facilitate the smoking of the Hookah is an Article mentioned in Part III of Schedule P. The use o: charcoal for the purpose of Hookah smoking is very dangerous and can pose a risk offire accidents apart from creating a nuisance to t.re persons who may visit the Restaurant or Hotel. It is further submitted that the licences of the petitioners do not disclose that they hase filed declaration that they intended to use Trade Licences to f ermit Hookah smoking. There is no occasion for the Municipal authorities to consider this aspect. The learned Special Government Pieader further submitted that even though earlier batch of caseri have been disposed of by this Court, the issues raised
11
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, 2003 apply. It is further submitted that prayer sought in these writ petitions is in the nature of restraining the authorities from inspecting the premises where Hookah centres are being run and in fact as per the provisions of Hyderabad Cit5r Police Act, 1345 Fasli, the police has power to inspect any public place for the offences committed under the said Act, i.e, exposing of body in indecent manner, possession of suspected articles, indecent acts in streets etc., committing nuisance in or near public place. It is further submitted that since the observations made in the earlier batch of cases does not specifically restrain or declare the powers exercised by the police officers as illegal, the police officers are entitled to supervise and inspect, seize and seal the petitioners establishments if any violation is being found under Section 12 of COTP Act. Since the orders passed in the earlier writ petitions, does not give blanket protection or recognizes the independent existence of "Hookah Centres", thejudgments relied upon by the petitioners are not helpful to the case of the petitioners and therefore, the learned Special Government Pleader prayed for dismissal of the writ petitions.
12
provisions of COTP Act, 2003, which are as follows:
-3. Detinittons.-In lhis Act, unless the conlexl othenDise requires,-
(a) "aduerlisemenl" includes any uistble representation by way of notice, circular, Ltbel, urapper or other document and also includes any announcetlent mad.e orallg or by ang means of producingor transmitting light, sounC, smoke or gas;
(b) "cigarette" inctudes,-
(i) ang r(ll oJ tobacco urapped in paper or in ang other subslance not containing tobacco,
(ii) ang roll of tobacco urapped in ang substance contalning tobacco, uhich, by reason of its appearance, the tApe of bbacco used in the filter, or its packaging and labelling is tikelg to be olfered to, or purchased by, consumers as cigarette, but does not include beedi, cherool and cigar;
(c) "distribrrtion" includes distrlbution b!! uaA of samples, uhether free or othenuise;
(d) "exporl", wilh its grammotical uaiations and cognale expressions, means taking out of India to a place outside Indio;
(e) 'foreigr'. language" means a language uhich is neilher an Indian language t'.or the English language;
A"import' ,with its grammatical uaiations andcognate expressions, means birtging into India from a place outside lndia;
(g) "Indian langaage" means a language specified in the Eighth Schedule to the Con:ititution, and includes anA dialecl of such language;
(h) "label" means anu uitten, marked, stamped, pinted or graphic malter, alf xed to, or appeoing upon, any pockage;
(i) "packag,t" includes a u.trapper, box, carton, tin or other conlainer;
(j) "presciled" means prescibed by rules made under Lh[s Act;
(k) "prodtrction", uith its grammatical uaiations and cognate expressions, tncludes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah lobacco, chewing tobacco, pan mqsala or zng chewing material hauing tobacco as one of is ingredients (bA LuhateLer name called) or snuff and shall tnclude
(i) packing, tabelling or re-labelling, of containcrs;
13
(ii) re-packing Jrom btlk packages to retail packages; and
(iii) the adoption of ang olher method to render the tobacco product marketable;
ft)"public place"means anA place to which the publichaueaccess, uhelher as of ight or not, and. includes auditoium, hospital buildings, railu.tag uaiting room, amusement centres, restaurants, public oJJices, court buildings, educalional institutions, libraies, pttblic conuegances and the tike which are uisited bg general public but does not include anA open space;
(m) "sale", t ith its grammatical uariations and cognate expressions, means anA transfer oJ propertA in goods bg one person to another, uhether for cash or on credit, or by utag of exchange, and uhelher utholesale or retail, and includes an agreement for sale, and offer for sale and exposure for sale;
(n) "smoking", means smoking oJ tobacco in ang Jorm uhether in the fonn of cigarette, cigar, beedis or otherauise with the aid of a pipe, wrapper or anA other instruments;
(o) "specifi.ed uarning" means such uarnings agoinst lhe use of cigarettes or other tobacco
products to be pinted, painted or tnscribed on packages of cigorettes or other tobacco products in
such form and manner as mag be prescibed bg rules made under this Act;
(p) "tobacco products" meons the products specified in the Schedule
Prouided that in a hotel hauing thirty rooms or a restaurant hauing seating capacitg of thirtA persons or more and in the airports, a separate prouision for smoking area or space mag be made.
(2) No person, for any direct or indirect pecvniary benertt, sholl-
14
(a) di:;play, cause to displag, or perntit or autlloise to disptaA anA aduerTisenrcnt of cigarettes or ang olher lobacco product; or
(b) se'l or cause to sell, or permit or authoise to sell a Jilm or uideo tape conlaining aduertisement of cigarettes or onv other tobacco product; or
(c) dtstribute, cause to distibute, or pennit or authoise lo dislribute to the public ang leafiet, hand-bilt or document ulhich is or which contains an aduertisement of cigarettes or ang other tobacco product; or
(d) er<,ct, exhibit, ftx or retain upon or ouer any land, building, wall, hoarding, frame, post or stn-tcture or upon or in ang uehicle or shall display in any manner uhatsoeuer in ang place anA aduerTisement of cigarettes )r anq other tobacco product:
Prouided tt1.oj this sub-section sholl not apply in relation to-
(a) an adu'zrtisement of cigaretles or ang olher tobacco product in or on a package atntaining cigarettes or ang olher tobacco product;
(b) aduerttsement of ctgqrettes or anA other tobacco product tuhich is displaged at the entrance or inside a tuarehouse or a shop tDhere cigaretles and any other tobacco products are olfered for distibutton or sale.
(3) No per.;on, shall, under a contracl or othenltise promote or agree to promote the use or consumption oJ-
(a) cigarenes or ong other tobacco product; or
(b) anA t,ade mark or brand name of cigarettes or anA other tobacco produci in exchange for a sponsorship, gtft, prize or scholarship giuen or agreec' to be giuen bA another person.
(a) to an! person u.tho is under eighteen gears of age, and
(b) in an zrea uithin a radius of one hundred gards of ang educational institutio)'t.
15
(2) No person shall carry on lrade or commerce in cigarettes or any olher tobacco products unless euery package of cigarettes or anA other tobacco products sold, supplied or distibuted bg him bears thereon, or on ils tabel, the specified uarning.
(3) No person shall import cigarettes or an!! other tobacco products lor distibution or supply for a ualuable consideration or for sale in lnditt unless euery package of cigarettes or ang other tobacco products so imported by him bears thereon, or on its label, the specified u.nming.
(4) The specified uaming shall appear on not less than one of the largest panels of the package in uhich cigarettes or anA other tobacco products haue been packed for distibution, sale or supply for a ualuable constd.eration.
(5) No person shall, directly or indirectlg, produce, supply or distibute cigarettes or anA other tobacco prod.ucts unless euery package of cigareltes or anA other tobacco products produced, supplied or distibuted bg him indicates thereon, or on its label, the nicotine and tar conlents on each cigaretle or as the case maA be on other tobacco products along uith the maximum permissible limits thereof;
Prouided that the nicotine and tar contents shall not exceed. the maximum permissible quantitg thereof as mag be prescibed by rules mqde under this Act.
(a) uhere anA trade or commerce in cigarettes or anA other tobacco products is caried on or cigarettes or any other tobacco products are produced., supplied or distibuted; or
(b) uhere any aduertisement of the cigarettes or anA other tobacco products has been or is being made.
(2) The prouisions of the Code of Ciminal Procedure, 1973 (2 of 1974), shall applA to euerg search and seizure made under this Act.
r6
(a) in r<spect of any packoge of cigarettes or ang other tobacco products or
(b) in re:pect of ang aduertisement of cigaretles orqng other tobacco products
the prouisions of this Acl haue been, or are being, contrauened, hemag seize such package or aduerlisement mateial inthe mannerprescibed.
(2) No p,tckage of cigarelles or anA other lobacco products or adDertisen,.ent mateial seized under clause(a) of sub-section(1) shallbe retained b 1 the olfcer uho seized the package or aduerlisement matertal fora peicd exceeding ninetA dags Jromthe dateof the seizure unless the appro nl of lhe Distict Judge, uithin the local limits of ttthose juisdictior. such seizure utas made, has been obtained for such retention.
Provided that, tuhere it is estoblished to the satisfaction of the court adjudging the confscation that the person in u)hose possession, power or control inA such package of cigarettes or anA other tobacco products is found is not responsible tor the contrauention of the prouisions of this Act, the C)urt mag, instead of making an order for the confiscation of such packttge, make such other order authoised bA this Act against the person gui'tA of the breach of the prouisions oJ this Act as it may thtnk fit.
2O. Punishment for tailure to giue specilied uaning and nicotine and. tar co^tents.-(1) Any person uho produces or manufactures cigarettes or tobocco products, tuhich do not contain, either on the package ot on their label, the speciJied uaning and the nicotine and tar contents, shall in the case of rtrst conuiction be punishable u-ith imprisonm ?nt for o term uhich mag extend lo two Aears, or uith fine tuhich may extend to fue thousand rupees, or tDith both, and for the second or subsequenl conuiction, u.tith imprisonment for a tenn uhich mqA extet .d to fiue years and uith fne uhich maA extend to ten thousond rupees.
77
(2) Any person uho sells or distributes cigarettes or tobacco products tDhich do not contain etther on the package or on their label, the specijled uaming and the nicotine and tar contents shall in the case of fi.rst conviction be punishable uith impisonment for a term, uhich mag extend to one gear, or uith rt.ne uhich moy extend to one thousand rupees, or L.uith both, and, for the second or subsequenl conuiction, uith impisonment for a term uhich mag extend to tt o gears and uith fi.ne which mag ertend to three thousand ntpees.
(2) An offence under this sectton sholl be compoundable and shall be tied. summailg in accordance uith the procedure provided for summary tiats in the Code of Ciminal Procedure, 1973 (2 of 197e.
"16. Insofar as the interkrence of the police are concented, it is pertinent to note that the prouisions of Section )2 ol the COTp Act confer pouers to the police not belou.t the rank of Sub Inspector of Police or ang officer of the State Food or Drug Administration or ang other offcer, holding the equiualent rank being not belou the rank of Sub Inspector of Police authorized bA the Centrul Gouernment or bA the State Gouemment,
18
ma7, if h( has any reason tosuspect tllo't any proutsion of thisAclho.s been or is being contrauened,enter andsearchin the mannerprescibed at anA re('sonable time at factory, building,businessor anA other Place.
19
others u. Municipal Corporation of Greater Mumbai (supra), held
as under:
"The facts in W.P.No.32O2 of 2O14 and batch are same and similar to the Iactsasserled in the instant uitpetition. Further, as ightlgpointedout bg the respondents there can't and ought not to be a blanket direction against the respondents for such direction uirtuollg preuents the Police Jromeuenknouingor inuestigating what is actually happening in the name of Jlauoured hookahs. The decision of Hon'ble Supreme Court is distinguishable to the fact situation of this case, for a Circular utas challenged in the reporTed case and the legalitA of the Circular uas considered and decided. Whereos in the case on hand the prager and the cause of action are on alleged interkrence bg Police against flauouredhookahs seruingand no witten orderor proceedingis placed on record lo examine the legalitll of such order or proceeding. Therefore, hauing regard to the uieu taken in the common order dated 27-01- 2O1Z in W.P.No.32O2 of 2014 and botch, I am satrsfed that the instant uit petition can be dismissed bg adopting the same reasons."
follows:
" 17) The tu-to judgments rekrred to oboue dealt tt-tith situation where the interference of the police in ,he business of the petittoners in seruing flauouredhookahwas in chollenge Situation on hand nolu is totallA different and still uerse in uietu of the notification dated 23.05.2017 uthich prohibtted seruice in smoking area or space prouided for smoking. Admittedlg, hookah is a product tuhich contains tobacco and u.then any product contains tobacco, the some has to be puffed in a non-smoking zone. In uieu of the circular issuecl by the Gouernment, seruice of hookah euen in the no-smoking zone utould be impermissible.
20
21
Sub-Inspector of Police or any officer of authorized by the Central Government or State Governrnent 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 produced, supplied or distributed or whether any advertisement of the cigarettes or any other tobacco products are being made. While alfecting a search and seizure, Section 12 of the Act clearly says, that the provisions of the Cr.P.C. have to be followed.
"47. Drtty of the State to raise the leuel oJ nutrltlo^ and the standard of living and to irnproae publlc health.- The State shall regard the raising of the leuel of nutition and the standard oJ liuing of its people and the improuemenl oJ publtc health as among its pimary duties and, in parlicvlar, lhe State shall endeauour to bing about prohibition of the consumption except for medicinal purposes of intoicating dinks and of drugs tuhich are injuious to health.
22
77 . This lonstitutional Provision specifically dealswith improvement of public health a primary duty of the State.The Court should enforce this duty against a defaultinglocal authority. Any article u hich is hazardous or injurious topublic healthis a potential danger to the fundamenta.l right to life guaranteed to the citizens unde.: Article 27 read with Article 47 and aparamountdut5l is cast on th: States and its authorities to achieve anappropriate Ievel of protestion to human life and health. Further,restrictions imposed by lew for supply and serving of tobaccoproducts including serving hookrrh cannot be said to be violative of Article 19(l)(g). Having regard to the principles contained in Article 47 of the Constitution, the State or its authorities are having right to regulate the sale of ,obacco product which includes running of hookah centres. Whil,: granting license to run the restaurants, the State or its authoritie:; must resort to strict scrutiny of the applications. For the purpose cf grant of licence, the law as contained in the rules, did not contain rrny provision for relaxing any condition. ln Vincent Panikurlango,ra u. Union of Indiao the Hon'ble Supreme Court observed that "maintenance and improvement of public health have to rank high zrs these are indispensable to the very physical existence of the community and on the betterment of these depends, the
'alRl98usC 990: (r987) 2 scC r65
a.)
building of the society of which the Constitution makers envisaged. Attending to public health is of high priority.
24
Hotels/ Restarlrants also allows them to have smoking of hookah and run hookah c3ntres is not tenable.
25
with the Condition 35(C) of the Circular issued by the Bombay
Municipal Corporation, observed as follows:
"14. lt urill be seen that Condition 35(C) of the impugned circular essentiallg reproduces Rule ap) of the said. Rules and then ad.d.s the utords "or anA apparatus designed to facilitate smoking". The elfect of the added uords is that a HoDkah cannot be prouided by the hotel, restaurant or airport being an apparatus designed to facilitate smoking."
26
building whether permanent or temporary where singing, music, dancing or ar.y diversion or game and anything giving amusement or the means o.' carrying on the same is provided and to which the public are ad:nitted either on payment of money or with the intention that money :nay be collected from them on admission and shall include the lace-course, circus, theatre, music and dancing hall, billiard room, S,rmnasium or any other place allotted for such purposes. As per Section 3(h) of the City Police Act, "public place of, entertainmen l' means any enclosed or open place to which the public have access and where any kind of articles of food and drink are supplied lor consumption by any person or for the profit of any person ownin g or having any interest in or managing such place and shall 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 3(1) of the City Police Act, "public place " also includes the place within the premises or enclosure of any public building or monuments and all places to which the pu olic have access for drawing water, washing or bathing or for the pur f,ose of recreation.
27
Police Act. As per Chapter III of the Citlr 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 Citlr Police Act, police is having power to specify conditions etc., for obtaining licences and permits. Since the Cigr Police Act, confers power over the amusement Centres/restaurants, which are defrned 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 speciffing 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 establishments 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 sha1l fol1ow rules and regulations issued by the Commissioner of Police from time to time for preservation of the public order.
2a
29
liberty to take appropriate action as per the provisions of the COTP Act.
Miscellaneous Petitions, if any, pending in these writ petitions shall stand closed. No order as to costs.
C.V. BHASKAR REDDY, J
Date: 15. 1 I.2023 scs
3 issues framed by the court
Whether the High Court can be directed to permit the petitioner to continue serving flavoured hookahs in his business premises under the Tobacco Cess Act.
Whether police interference with the petitioner's hookah business violates provisions of the Cigarettes and Other Tobacco Products Act, 2003.
Whether the common order passed in earlier writ petitions barring blanket prohibition applies to the present petition.
Colour shows how this judgement treated each authority
W.P.No.8223 of 2013Followed¶26
Narinder S. Chadha v. Municipal Corporation of Greater MumbaiReferred¶76
Narinder S. Chadha v. Municipal Corporation of Greater Mumbai (2014) 2 SCC 510 · Who else cites this
Mohd. Jameel Ahmed v. State of TelanganaReferred¶65
Mohd. Jameel Ahmed v. State of Telangana (2021)
W.P.No.3202 of 2014 and batchFollowed¶161
W.P.No.14093 of 2011Followed¶169
W.P.Nos.2206O of 2017 and 23213 of 2017Followed¶173
Vincent Panikunnar v. Union of IndiaReferred¶184
Vincent Panikunnar v. Union of India
W.P.No.46505 of 2022Referred¶58
4 provisions across 3 enactments
Nagula Sravan
The State of Telangana
Commissioner of Police, Hyderabad City
Station House Officer, Police Station Punjagutta
Greater Hyderabad Municipal Corporation
C.V. Bhaskar Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
