The High Court disposed of the writ petition by relying on a common order dated 15.11.2023 passed in a batch of connected petitions regarding hookah service regulations before the same court.
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.
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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: 41761 OF 2016
Between:
M/s. Xtacy Gaming, (Gaming and Food Court) D.No.2-2-3, ll Floor, Unit-4, Shreshta Orign, Shivam Road, Vidyanagar, Rep.by its Prop. Karthik Thuprani S/o Venkateswarlu, Hindu, aged 26 years,20-432, Occ Business, Piller No.6, Road No.21, West Venkatakapuram, Alwal, Secunderabad.
...PETITIONER
AND
...RESPONDENTS
Petition under Article 226 of lhe Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the 2nd and 3rd respondents in restraining, preventing and stopping the petitioner from serving flavoured Hookahs at his Food Court as illegal and arbitrary and consequently direct the respondents to refrain from interfering with the business activity of the petitioner of serving flavoured Hookah in his shop.
l.A. NO: 1 OF 2016(WPMP. NO: 51497 OF 2016)
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 refrain lo interfering with the business of the petitioner in serving flavoured Hookahs to his customers except in accordance with law pending disposal of the main Writ Petition-
Counsel for the Petitioner: SRI GANDURI NAGESWARA RAO
Counsel forthe Respondent No.1 to 3: AGP FOR HOME
Counsel for the Respondent No.4: SRI K.RAVINDER REDDY, SC FOR GHMC The Court made the following: ORDER
HON'BLE SRI JUSTICE C.V.BHASKAR REDDY
WRIT PETITION No.41761 of 2016
ORDER:
When the matter is tal<en up for hearing, learned counsel for the petitioner submitted that the issue raised in this writ petition is squarely covered by the common order passed by this Court in W.P.No.8223 of 2013 and batch dated 15.Ll.2023 and therefore, the present rvrit petition may be disposed of in terms of the said order.
As a sequel, miscellaneous petitions pending, if any, shall
stald closed.
To,
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(Along with the copy of order dated 15.1 1.2023, in W.P.No.8223 of 2013)
BSR
GJ
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restauralts as per rules and regulations and that if police takes any steps, the petitioners therein were given liberty to approach the Director General of Poiice/ Commissioner of Police and lodge complaint regarding illegal interference of officers. [t 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 l8a, 27O, 272 and 328 IPC. It is further case of petitioner that cases under aforesaid Sections cannot be frled against the restaurant o'"r,ners 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 lhe 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 with 34, 149, 5ll of IPC; Sections 3(m), 20(2), 2l(Ll,2t(2],, 22, 7(31 and 7(s) of the COTP Act, 20O3 and Sections 58 and 59(i) of the Food Safety and Standards Act, 2006 (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
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Cases in terms of the common order, dated O5.O7.2Q21 passed in Mohd Jameel Ahmed as. State of Telanganar. It is further case of the petitioners that since there is no prohibition under COTP Act, 20O3 to serve hookah, interference by the respondents-police amounts to violation of the rights guaranteed under Article 19(1)(g) of the Constitution of India and also the provisions of COTP Act, 2003.
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securing tender age children and give them opportunities to develop in a healthy manner. It is further stated that <sup>Iorld 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 demald 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 ald inhale much more smoke than those who smoke cigarette for 3 to 4 minutes. It is further stated that Hookahs sometimes called fuater pipes' and they are used to smoke specially made tobacco that is available in a variet5r of flavors, such as apple, mint, cherry, chocolate, coconut, licorice, cappuccino, and watermelon. It is further stated that Hookah smoking is typicalty 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 puffmg, 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 t5pical one hour long hookah smoking session involves inhaling 100-
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2O0 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, ald decreased fertility. Hookah smoking is NOT a safe alternative to smoking cigarettes. The charcoal used to heat tobacco in the hookah increases the health 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, ald catrcer causing chemica-ls and thus prayed to dismiss the writ petitions.
7 . 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 any materia,l to show that the. business is in violation ofthe guidelines prescribed by the Apex Court in Nqrinder S. Cltodha a. Municipal Corporation of Greater Mumbaiz and the COTP Act, 20O3, amounts to
'?(2014)l5 scc689
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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 shall not resort to cause inconvenience or any tnarassment to the customer/person present there or to the owner of the restaurant, when the business is lawful ald legal, there cannot be any prohibition. It is further submitted that the petitioner is holding all the required licenses such as GST, Salcs 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 activit5r as long as he follows the guidelines issued by the Honble Supreme Court in Narinder S Chodha 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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not only included cigarettes like Cigarettes (Regulations of Production, Supply and Distribution) Act, 1975 but aiso brought all other forms of tobacco products (both smoking and smokeless); Prohibition of smoking in public places; Imposing nationwide public smoking ban and specilied particular places as non-smoking zones; Ban on tobacco advertising and sponsorship; Ban on sale to minors and in an area within radius of 10O 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 shail be rotated every 12 months; that the law also prohibited more than two ianguages from being used on the pack to ensure that specified warning is legible and prominent. It is further submitted that with effect from 2"d October, 2012, tl:,e Government began screening two anti-tobacco advertisements in movie theatres and television. Nicotine and Tar contents of a-11 tobacco products must be ciearly displayed on the packs. Producers of tobacco products must ensure that these harmful contents are within the maximum permissible Iimits 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 thirt5r 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 defined in rule 2(e). As p9r 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, 2008. It is further submitted that as per Rule a $l@1, smoking in public places is completely banned and for a person visiting a Restaurant or a Hotel satis$ing 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 Restaurart is free to smoke in the desigrrated smoking area. The Restaurant or the Hotel will not provide any smoking apparatus or anything that aids smoking. It is turther submitted that Rule 3 (1)(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 necessary corollar5r that would follow is that, there cannot be active participation of the persons incharge of managing a restaurant of 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 pubiic area of a restaurant carnot be stretched to mean that it can be provided in the smoking area. 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 declarition that they are running "Hookah Centres". The iearned Special Govemment Pleader relied upon Section -.52 I of GHMC Act, which specifically states that no person gha1l without licence keeg, in or upon any premises, for sale or for.other than domestic use, any article specihed in Part III of Schedule P. It is further submitted that Charcoal, which is used to faci$tate the smoking of the Hookah is an Article mentioned in Part III of S,chedule P. The use of charcoal for the purpose of Hookah smoking is very dangerous aqd can pose a risk of lire accidents apart from creating a nuisance to the perso4s who may visit the Restaurant or HoJel. It is further submitted that .the licences of the petitioners do not disclose that they have frled 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
in these writpetitions are not specificallyadvertedand this Court has not taken ipto consideration thatHookah isalso a Tobacco product and the provisions of COTP Act, 2O03 apply. It is further . submitted that prayer sought in these writ petitions is in the nature of restraining the authorities from inspecting theprelnises where Hookah centres are being run and in fact asper theprovisions of Hyder,abad City Police Act, 1345 Fasli, the police haspower to inspect any public place for the offenges committed under the said Act, i.e, e;<posing of body in indecent manner, possession of suspected articles, indecent acts in streets etc., committing nuisalce in or near pubiic 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 viofation is being found under Section 12 of COTP Act. Since the orders. passed in the earlier writ petitions, does not give blanket protectipn or recognizes the independent existence of "Hookah Centres", fhe judgments relied upon by t"l.e petitioners are not helpful to the case of the petitioners and therefore, the learned Special Government Pleader prayed for dismissal of the writ petitions.
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provisions of COTP Act, 2003, which are as follows:
"3. Delinitions.-In this Act, untess the contert o*tentise irequires,-
(a) "aduertisement" includes ang uisible representation bg uag of nottce, ctrcular, label, Lurapper or other document and alsit includes ang announcement made Qrallg or bg ang means of prod.ucing or transmttting light, sound, smoke or\as;
(b) "cigarette" includes,- \
(i) anA rolL of tobacco .,)p"a in paper or in ang other substance not containing tobacco,
(ii) ang roll of toba.co utrapped in any substance containing tobacco, uhicl4 bg reason of its appearanoq the tApe of tobacco used in the filter, or itsipackaging and labelling is likely to be offered to, or purchased by, collsumers as cigarette, but does not include beedi, cheroot and cigar;
(c) "di.stibution" includes dbtribution by wag of samples, uhether free or othenuise;
(d) "export'', with its grammatical uaiations and cognate expressions, means taking dtt of India to a place outstde India;
(e) 'foreign language" means a language uhtch is neither an Indian language nor the Erqlish language;
(l) "import", tl)ith its grammatical uaiations and cognate expressions, means binging into India from a ptace outside India;
(g)"Indian language" means a language specified in the Eighrh Schedule to the Con-stitution, and includes ang ditlect of, such language;
(h) "label" means ang uitten, marked, stamped, printed or graphic matter, affixed to, or appeo.ing upon, any package;
(i) "package" includes a urapper, box, carton, ttn or other container;
(j) "prescibed" means prescibed bg ntles made under this Act;
(k) "production", ltith its grammaticol vaiations and cogna e expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigqrette tobacco, pipe tobacco, hookah tobacco, cheuing tobacco, pan masala or any cheuing material hauing tobacco as one of its ingredi.ents (bA uhateuer name called) or snuff and shall include-
(i) packing, labelling or re-labelling, of contatners;
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(it) re-packing from bulk packages to retail packages; and
(iii) the adoption of ang other method to render the tobacco product markctable;
fi"public place"means ang place to uhich the publichaueaccess, uhether as of ight or not, and includes auditorium" haspitalbuiwings, railuag uJaitingroom, amusement centres,restaurants,public olFces, court buildings, educational insritutions, libraies, public conuegances and the likc tuhich are uisited bggeneral public but does notinclude anV open space;
(m) "sale", tDitll its grammatical uaiations and cognate exPresslons, means anA transfer of propertA ingood.s bg oneperson to anoth.er, uhether for cash or on credtt, or bg uaA of exchange, and uhether uholesale or re.tail, and includes an agreement for sale, an<l offer for sale and exposttre for sale;
(n) "smoking'', means smoktng of tobacco in any form uhether in the form of cigarette, ctgar, beedis or othenDise uith the aid of apipe, wrapper or ang other instntments;
(o) "specifed tuarning" means such warnings again-st the use of cigaretles or other tobacco
products to be pinted, painted or inscibed on packages of cigarettes or other tobacco products in
such form and manner as mag be prescibed bg rules made under this Act;
(p) "tobacrn products" means the products q)ecified in the Schedule.
houided tlnt in a hotel fnuing thirty rooms or a. restaurant hauing seating capacitg of thirtA persons or more and in the airports. a separate provision for smoking area or space may be made.
(2) No person", for any direct or indirect peanniary beneft, shall-
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(a) displag, cause to displag, or pennit or autlarbe to d.bplag ang aduerlisement of ctgarettes or anA other tobacco product; or
(b) setl or cause to sell, or permtt or auth,oise to sell a film or uideo tape containtng aduertisement of cigarettes orqng other tobacco product; or
(c) distribute, cause to distibute, or perlnit or authoise to distibute to the publtc any leaflet, hand-bill or doqtment uhich is or uhich contains an aduertisement of cigarettes or ang other tobacco product; or
(d) erect, exhibtt, fu or retqin upon or ouer anA land, building, walt, hoarding, frame, post or strucfifie or upon or in any uehicle or shall displag in ang ntanner L.ohatsoeuer in ang plaee ang aduertisement oJ cigarettes or ang other tobac(p product:
Prouided that this sub-section shall not applg in relotton to-
(a) an aduerttsement of cigaretles or anA other tobac.o product in or on a package conlaintng cigqrettes or ang other tobacco product;
(b) aduertisement of cigarettes or anA other tobacco product tLhich is displayed at the entrance or inside a utarehouse or a shop tLthere cigarettes and ang other tobacco product.s are oJfered for dbtribution or sale -
(3) No person, sho.ll, under a contract or otheruise promote or agree to promote the use or consumption of
(a) cigarettes or anV other toba"cco product; or
(b) ang trade mark or brqnd name of cigarettes or ang oth.er tobacco product in exchonge forq sponsorship, qifr., prae or schalarship giuen or agreed to be giuen bg another person.
(a) to ang person uho is under eighteen Aears of age, and
(b) in an area uithin a radius of one futndred gards of ang educational institution.
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(2) No person shall carry on trade or commerce in cigarettes or ang other tobacco products unless euery package of cigarettes or anA olher tobacco products sold, supplied or distibuted by him bears thereon, or on tts label, the specifed uaming.
(3) No person shalt import cigarettes or anA other tobacco products for distributton or suppty for a ualuable consideration or for sale in Ind.ia unless euery package of cigaretles or anA other tobacco products so imported bg him bears thereon, or on its label, the specifed warning.
ft)Thespecifed uamingshallappeqr on notlessthanone of the lqrgest panels of the package in uhich cigaretles or any other tobacco products fLaue been packed for distribution, sale or supply for a ualuable consideratiotL
(5) No person shall, directlg or indirectlg, produce, supplg or distibute cigarettes or ang other tobacco products unless euery package of cigarettes or ang other tobacco products produced, supplied or distibuted bg him indicates thereon, or on its label, the nicotine and tar contents on each cAaretle or as the case mag be on other tobacco products along with the maximum pertnissible li.mits thereof:
Provided that the nicotine and tar contents shall not exceed. the moximum permissible ElantitV thereof as may be prescibed bg rwles made under this Act.
77, Testing labo"atory lor nicotlne a d tar contents.-For purposes of testing the nicotine and tar contents in cigarettes and ang other tobac@ products the Central Gouemment shalt bg notifcation in the Offcial Gazette grant recognition to such testing laboratot! as that Gouernment mdg deem necessary.
(a) uthere ang trade or commerce in cigarettes or anA other tobacco ptoduds is carried on or cigarettes ot any other tobacco products are produged, supplied or distibuted; or
(b) uhere ang aduertisement of the cigarettes or ang other tobacco prducts h<ts been or is being made.
(2) The prouisions of the Code of Ciminal Procedure, 1973 (2 of 1974), shall apply to euery search and seizure mad-e under this Act.
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(a) in respect of ang package of cigarettes or ang other tobacco products, or
(b) in respect of anV qdueltisement of cigarettes or any other tobacco products,
the proutsions of this Act haue been, or are being, contrauened, he mag seize such package or aduertisement mateial in the manner prescribed.
(2) No packoge of cigarettes or ong other tnbac@ products or qduertisement material seized under clause (ci) of sab-sectbn (1) slnll be retained bA the olficer utho seized the package or aduertisement material fora period exceedingninetgdags fromthe date of the seiztreunless the approuql oJ the Distict Judge, uithin the local limits of uhose juisdiction such seiztre was made, has been obtained for such retention.
Prouided that, uhere it i-s established to the satisfaction of the court adjudgtng the anfiscation th{tt the person tn u.those possession, power or control ang such package of cigarettes or ang other tobacco products is found is not responsible for the contrauention of the prouisions of this Act, the Court mag, instead of making an order for the confi.scation of such package, make such other order authoised bg this Act against the person guiltg of the breach of the prorisions af this Act as it maV think frt.
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(2) Ang person ula sells or distibutes cigarettes or tobacco products u)hich do not contain either on the pockage or on their label, the specifed usaming and the nimtine and tar contents shalt in the case of fi.rst conuiction be punishable with impisonment for a term, uthich may extend to one gear, or with fne uhich mag extend to one lhousand rupees, or wtth bot!1. and, for the second or subsequent conuiction, uith impisonment for a tem uhich mag extend to two years and uith f.ne u,thich mag ertend to three thousand rupees.
(2) An offence under this section shall be compoundabte and shall be trted summaily in accordance with the procedure prouided for summary tials in the Code of Ciminal Procedwre, 1973 (2 of 1974).
'16.. Insofar as tlLe interference of the polie are concemed., it is pertinent to note that the pmuisions of Section 12 of the COI'P Act confer potters to the police not belou the rank of Sub Inspector of Police or any olficer of the State Food or Drug Administration or any <tther olfi.cer, holding the equiualent rank being not belou the rank of Sub Inspector of Police authorized by the Central Couemment or bg the State Gouemment,
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moA, if he has any reason to suspect th{tt anA prouision of this Act h,.s been or ts betng contrauened, enter and search in the manner prescibed at ang reo-sonable time at factory, butlding, bustness or ang other place.
L2. In W.P.No.14093 of 2011, a learned Single Judge of this Court referring to the order passed in W.P.No.32O2 of 2014 and the judgment of the Hon'ble Apex Court in Narinder S.Chadha and
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others a. Municipdl Corporation of Greater Mumbai(supra), held
as under
"The facts in W.P.N1.3202 of 2014 and batch are same and similar to the Jactsasserted in the instant uit petition. Further,as ightlgpointed out bg the respondents there can't and ought not to be a blanket directton against the respondents for such dtrectton uiTuallg preueftts the Police fromeuen knouing or inuesttgatinguhat is acfilallyhappeningin the name of Jlauoured hookahs. The decbion of Hon'ble Suprente Court is distinguishable to the fact situation of this case, for a Circular uas challenged in the reported case and the legalitg of the Circular Loas considered and decided. Whereas in tle case on hand thepraAer and the cu)se of action are on alleged interference bg Police against flavowredhookahs serutngandno uittenorderor proceedingis pkrced on record to examine the legalitg of such order or proceeding. Therefore, hauing regard to the uieu taken in the camnan order dated 27-01- 2017 in W.P.No.32O2 of 2014 and batch, I am sattsfied that the instant uit petition can be dismissed bg adopting the same reasons."
follows:
"17) The tuto judgments refened to aboue d.ealt uith sttuation tuhere the interlerence of the police in the busfness of the petitioners in seruing flauouredhookah utastn cttallenge.Situationon hand nou' is totally different and still uerse in uieut of the notification dated 23.05.2017 uthich prohibited seruice in smoking aree. or space prouided for smoktng. AdmittedlV, laokah is a product u.thich contains tobacco and when any product contains tobqcco, the same has to be puJfed in a non-smoking zone. In uietu of the circular issued by the Gouernment, seruice of hookah euen in the no-smoking zone would. be impermissible.
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Sub-lnspector of Police or. any offrcer of authorized by the Central Government or State Government to search thepremises at any reasonable time, if he suspects that theprovisions of the Act are contravened namely cigarettes or any other tobaccoproducts 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 ofthe Act clearly says, that the provisions of the Cr.P.C. have to be followed.
"47. Dutg of the Statc to rdlse tlv letel of '?utrit on(,;nd the stand.ord of liui'zg dnd to Tnlltrot,€ public hco'lth.- TfLe State sho'll regard the raising of tle leuel of nutritton and. the standard of liutng of its people and the improieinent of public ltealth as anwng its prinary duties and, in particwlar, the.state shall endeawur to bring about prohibition of the consumptton except for medicinal pulposes of intoicating dir.ks and of drugs which are injurious to health.
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17 . This Constitutional Provision specifically deals with improvement of public health a primar5r duty of the State. The Court should enforce this duty against a defaulting local authorit5r. Any article which is hazardous or injuri'ous to public health is a potential danger to the fundamental right to life guaralteed to the citizens under Article 2l read with Article 47 and a paramount duty is cast on the States and its authorities to achieve arr appropriate level of protection to human 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 ig(i)(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 inc.ludes running.i of hookah centres. While granting license to run the restaurants, tiie State or its authorities must resort to strict scrutiny of the applications. For the purpose of gralt of licence, the law as contained in the rules, did not contain any provision for relaxing any condition. br Vincent Panikurlangara a. Union of Indias the Honble 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
'ArRl9E7sc990:(1987)2SCC165
building of the society of which the Constitution makers envisaged. Attending to public health is of high priority.
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Hotels/Restaurants also allows them to have smoking of hookah and run hookah centres is not tenabie.
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with tJle Condition 35(C) of the Circular issued by the Bombay
Municipal Corporation, observed as follows:
"14- It uill be seen that Condition 35(C) of the impugned circular essentiallg reproduces Rute a(3) of the said Rules and then add.s the u.tords 'or anA apparatus designed. to facilitate smoking". The effed of the added uords is that a Hookah cannot be prouided bg the hotel, restaurant or airport being an apparatus designed to facilitate smoking."
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building whether permanent or temporary where singing, music, dancing or aly diversion or game and anlthing giving amusement or the means of carrying on the same is provided and to which the public are admitted either on paJrment of money or.with the intention that money may be collected from theni on admission and shall include the race-course, circus, theatre, music and dancing hall, billiard room, S/rnnasium 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 open place to which the public have access and where aly kind of arlicles of food and drink are supplied for consumption by any person or for the profit of any person owning or having any interest in or managing such place and sha-Il include a refreshment room, tea house, liquor house, boarding house, lodging house, hotel, tavem or sendhi, wine, ganja, toddy, bhung or opium shops. As pel Section 3fi) of the City Poiice Act, "public place" also includes the plaie within the premises or enclosure of any 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.
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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 a,nd 24 of tlle City Police Act, the police oflicer may arrest anyperson without warrant. As per Section 84 of the City Police Act, police is having power to speci$ 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 speci$ing 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 tJle petitioners and seize. the hookah centres if there is ary violation of the provisions of the COTP Act. Therefore, to establish hookal 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 ttre public order.
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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. BIIASKAR REDDY, J
Date:15.11.2023 scs
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THE HONOURhBLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION Nos.8223 12013. 3427 120L5.4574212022. 46505 2022 L52 127 1809 1935 2729 2735 2954 3124 3758. 3784. 4150 -4297 4304. 4330. 4562. 46aO so84- 5097. 5147 sl49 6510 523 7149 7297 7445 7 o4 7949 7963 8Lt7 a226 8 8268 8498 8509 856 95s8 roL22 LO24L 10425 1 75 10814 11008 tt2L 1.L463 12360 r2482 L4t29 14 34 15706 L6172 168 ).7917 8351 taa29 19005 1 51 19742 22244 222 22sO5 23734 23a92. 24695, 25o,44. 2sa36, 2617 2, 27123, 277 6t alcjl 30952 of 2o23
COMMON ORDEE:
Since the issue involved in all these Writ Petitions is intrinsica-lly interconnected, they are being taken up and heard together and disposed of by this common order.
"topass an order, direction or a Wit pqrticularlg in the nature of Wil of Mandamus directing the respondents herein to allotl.) the petitioner heretn to serue hookah in his establishment freelg as long as he follotls the "Cigarettes and Otfler Tobacco Products (Prohibition of Aduertisement and Regulation of Tlade Commerce Supplg and Distibution) Act, 2OO3 and rules and that the petitioner be allowed to serue hookah in open areas and smoking. zones and to issue necessary directtons to the effect that no aerciue action of any nafi)re ought to be initiated against the petitioner or his establishment namely "Resign Slcy Bar" located in Madhapur."
HIGH COURT
DATED: 0810112024
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ORDER
HE STA 14:
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WP.No.41761 of 2016
DISPOSING OF THE WRIT PETITION,
WITHOUT COSTS
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M/s. Xtacy Gaming, Rep.by its Prop. Karthik Thuprani
The State of Telangana
The Commissioner of Police, Hyderabad
The Circle Inspector of Police, Nallakunta
The 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
