Hookah parlours don't need licensing under Section 394 as they're not eating houses, police can still enforce COTPA provisions

The Bombay HC ruled that hookah parlours do not require licensing under Section 394 of the Mumbai Municipal Corporation Act as they are not classified as eating houses. The Municipal Commissioner clarified that no MMC Act license is needed for hookah bars. However, police retain authority to enforce COTPA Act provisions and take action against establishments serving drugs or narcotics. The petitioner, who supplies tobacco-free hookahs containing no tobacco or nicotine, was informed that no action can be taken provided they comply with COTPA provisions and avoid serving prohibited substances. The court emphasized that violations of COTPA or serving banned substances would result in legal action. The petition was disposed of without requiring further declarations.

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ISSUES:

Whether the legislation under the Cigarettes and Other Tobacco Products Act, 2003 (COTPA), as amended in 2018, applies to tobacco-free hookah products.Whether coercive action can be initiated against a person serving hookah without tobacco or nicotine without conclusive scientific evidence of the presence of tobacco.The scope of licensing requirements under the Mumbai Municipal Corporation Act for hookah parlours.The authority of police and municipal bodies to take action under COTPA and related laws in respect of hookah parlours.

RULINGS / HOLDINGS:

The Court held that the petition was filed on a mere apprehension and that "as long as the petitioner complies with the provisions of COTPA and do not serve any prohibited substance in the hookha Parlour then no action can be taken against them."The Court ruled that "if it is found the petitioner is selling/using any substance prohibited under the COTPA Act then surely the action can be taken against him."The Court accepted the submission that "except what is prohibited under 2018 Amendment Act, nothing would be prohibited," confirming the limited scope of prohibition under the amended COTPA.The Court noted that under the Mumbai Municipal Corporation Act, hookah parlours "do not fall under the ambit of eating house and therefore do not fall within the provision of Section 394 of the Mumbai Municipal Corporation Act under notified trades for license," and thus no license is required under MMC Act for hookah bars.The Court clarified that police authorities are empowered to take action for any infraction of the provisions of the COTPA Act as amended in 2018, including where prohibited substances are used in hookah parlours.

RATIONALE:

The Court applied the statutory framework of the Cigarettes and Other Tobacco Products Act, 2003, as amended in 2018, focusing on its specific prohibitions related to tobacco products.The Court relied on scientific reports certifying the absence of tobacco, nicotine, narcotic, or psychotropic substances in the product used, and accepted the principle that coercive action requires conclusive scientific findings of prohibited substances.The Court recognized the distinction between licensing under the Mumbai Municipal Corporation Act and enforcement of COTPA by police authorities, clarifying jurisdictional limits.The Court refrained from granting any declaration beyond affirming compliance with COTPA and the legal consequences of non-compliance, emphasizing the preventive and enforcement role of police under the amended Act.

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