Food safety law cannot be used to prohibit scheduled tobacco products, and repeated tobacco bans exceeded statutory power.

Tobacco and chewing tobacco were treated as outside the definition of "food" under the Food Safety and Standards Act, 2006, because the Act is directed to food safety and cannot be used to regulate scheduled tobacco products under the special tobacco statute. Section 30(2)(a) was described as a temporary emergency power, limited in duration and required to operate with Section 18 safeguards and fair hearing principles; repeated annual prohibitory notifications were therefore beyond power. The notifications also created an arbitrary distinction between smokeless and smoking tobacco, failing Article 14's requirement of rational classification.

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Issues: (i) Whether tobacco and chewing tobacco fall within the definition of "food" under the Food Safety and Standards Act, 2006 and whether the State Commissioner could invoke the Act and Regulation 2.3.4 to prohibit their manufacture, storage, distribution and sale; (ii) whether the power under Section 30(2)(a) of the Food Safety and Standards Act, 2006 is a temporary emergency power requiring compliance with Section 18 and principles of natural justice, and whether repeated annual notifications exceed that power; (iii) whether the impugned notifications create an impermissible and discriminatory classification between smokeless tobacco and smoking tobacco in violation of Article 14 of the Constitution of India.

Issue (i): Whether tobacco and chewing tobacco fall within the definition of "food" under the Food Safety and Standards Act, 2006 and whether the State Commissioner could invoke the Act and Regulation 2.3.4 to prohibit their manufacture, storage, distribution and sale.

Analysis: The statutory scheme of the Food Safety and Standards Act, 2006 is directed to food safety, standards and regulation of food businesses, whereas the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 is a special enactment governing the tobacco industry. The Court held that tobacco cannot be treated as "food" within the meaning of the Food Safety and Standards Act, 2006 because no science-based standards for safe and wholesome tobacco can be laid down for human consumption. Regulation 2.3.4 regulates the use of tobacco and nicotine as ingredients in food products and cannot be read as a source of power to prohibit scheduled tobacco products under the tobacco statute. The Court also held that the Food Safety and Standards Act, 2006 does not impliedly repeal the tobacco statute and that the special law prevails in the tobacco field.

Conclusion: The answer is in the negative. Tobacco is not "food" under the Food Safety and Standards Act, 2006, and the impugned notifications could not validly be sustained under that Act against scheduled tobacco products.

Issue (ii): Whether the power under Section 30(2)(a) of the Food Safety and Standards Act, 2006 is a temporary emergency power requiring compliance with Section 18 and principles of natural justice, and whether repeated annual notifications exceed that power.

Analysis: The Court held that Section 30(2)(a) confers only a transitory power to prohibit an article of food in emergent circumstances and for a period not exceeding one year. That power has to be read with Section 18, which requires risk assessment, risk analysis, risk management and evaluation of alternatives, and the affected parties must ordinarily be heard before a prohibitory order is made or continued. Repeating substantially identical prohibitory notifications year after year, without demonstrable emergent circumstances and without the mandatory procedural safeguards, was held to convert a temporary regulatory power into a continuing legislative prohibition, which the Commissioner was not authorised to do.

Conclusion: The impugned notifications were issued in excess of the power under Section 30(2)(a) of the Food Safety and Standards Act, 2006 and were invalid for non-compliance with Section 18 and the requirements of fair procedure.

Issue (iii): Whether the impugned notifications create an impermissible and discriminatory classification between smokeless tobacco and smoking tobacco in violation of Article 14 of the Constitution of India.

Analysis: The Court found that the notifications singled out smokeless tobacco while leaving other forms of tobacco outside the prohibition, even though the public-health rationale relied upon was common to all tobacco products. The distinction between smokeless and smoking tobacco was held to be artificial, lacking a rational nexus with the object sought to be achieved, and therefore not a valid classification. Since the burden to justify the classification was not discharged, the challenged notifications failed the test of non-arbitrariness and reasonable classification under Article 14.

Conclusion: The classification was held to be unconstitutional and violative of Article 14 of the Constitution of India.

Final Conclusion: The impugned notifications were quashed and set aside, and the writ petitions were allowed with no order as to costs.

Ratio Decidendi: A power to regulate food safety under the Food Safety and Standards Act, 2006 does not authorise the prohibition of scheduled tobacco products, and a temporary prohibitory power must be exercised only within its statutory limits, subject to mandatory procedural safeguards and constitutional equality requirements.

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