TaxTMI 
TaxTMI 
2023 (4) TMI 67
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....ent No. 1/ GNCTD. Mr. Rahul Mehra, Senior Advocate alongwith Mr. Gautam Narayan, ASC with Mr. Chaitanya Gosain and Ms. Asmita Singh, Advocates for GNCTD. Mr. Aditya Singla and Ms. A. Sahitya Veena, Advocates for FSSAI. Mr. Ripu Daman Bhardwaj, CGSC for respondent No. 2/ UOI. Ms. Manisha Agarwal Narain, CGSC with Mr. Aditya Singh Deshwal and Ms. Rakshita Goyal, Advocates for UOI Mr. Kamal deep and Mr.Sarvan Kumar, Advocates for UOI. Mr. Vivek Goyal, Advocate for UOI. JUDGMENT GAURANG KANTH, J. 1. The present writ petitions under Article 226 of the Constitution of India raise a common question of law, arising in similar circumstances; hence, they are dealt with and disposed of by a common judgment. 2. The present batch of petitions challenge the legality and validity and seek quashing of the Notification bearing No. F.1(3)DOI/ 2012/10503-10521 dated 25.03.2015 and subsequent Notifications dated 13.04.2016, 13.04.2017, 13.04.2018, 13.04.2019, 15.07.2020 and 06.08.2021 ("impugned Notifications") issued by the Commissioner of Food Safety, Government of National Capital Territory of Delhi ("NCT of Delhi") in view of Regulation 2.3.4 of the Food Safety and Standards (Pro....
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....er, the same was omitted by Notification No. G.S.R. 431(E) dated 19.06.2009. 9. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001 was tabled in the Parliament with the intention to enact a comprehensive law on tobacco in public interest and in order to protect public health. The COTPA was enacted to give effect to the principles enshrined in Article 47 of the Constitution of India that the "State shall endeavour to bring about prohibition of the consumption, except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health". Accordingly, COTPA repealed the Cigarettes Act. It received the assent of the President on 18.05.2003 and was published in the Gazette of India on 19.05.2003. 10. The origin of Statement of Objects and Reasons of the COTPA is from the Resolution passed by the 39th and 43rdAssembly of the World Health Organisation ("WHO") wherein the Member States were urged to ensure that non-smokers receive protection from involuntary exposure to tobacco smoke. Further, the WHO inter alia urged to promote abstention from the use of toba....
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....lity of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto". 15. The repealing of eight laws governing the food sector under Second Schedule to Section 97 of the FSSA was termed as one of the key features of the Bill. The said laws included: 1. The Prevention of Food Adulteration Act, 1954. 2. The Fruit Products Order, 1955. 3. The Meat Food Products Order, 1973. 4. The Vegetable Oil Products (Control) Order, 1947. 5. The Edible Oils Packaging (Regulation) Order, 1998. 6. The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967. 7. The Milk and Milk Products Order, 1992. 8. Any other order issued under the Essential Commodities Act, 1955 relating to food. 16. Further, the FSSA set up the Food Safety and Standards Authority of India ("FSSAI") to ascertain the standards and regulate the manufacturing, import, processing, distribution and sale of food. The FSSA incorporated salient features of the Prevention of Food Adulteration Act, 1954 ("PFA") and other international laws including Codex Alimentarius Commission. 17. Section 2 ....
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.... The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder. (2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:- (a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette; (b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food; (c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety; (d) ensure an efficient and uniform implementation of the standards and other requirem....
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....ral Government, State Government and Food Authority. As per Section 91, Central Government is empowered to make rules under the FSSA with regard to the areas as mentioned therein. As per Section 94, the State Government is empowered to make rules with respect to the areas which are mentioned therein. As per Section 92, the Food Authority is empowered to make regulations with respect to the specific areas as mentioned therein. As per Section 93, all the rules and regulations made under the FSSA needs to be placed before both houses of the Parliament for at least 30 days. 24. Therefore, from the evaluation of the FSSA, it is evident that the intention of the legislature was to include everything capable of human consumption within the ambit of the FSSA. This is a complete Code relating to the food laws in India. The safety of the public was of paramount consideration and hence responsibilities were fixed at various levels to ensure proper implementation of these safety measures. The FSSA established the FSSAI for effective implementation of the said enactment. There are scientific Panels and scientific Committees under the FSSAI to fix the standards for food based on scientific me....
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....ces done under good faith and adjudication mechanism for these offences. Sections 30 and 31 talk about the power of the Central Government to make rules and also to make additions in the schedule. Section 32 has excluded the products which are to be exported from the ambit of the COTPA. Section 33 deals with repeal and savings. 31. From the overall assessment of the COTPA, it is discernible that this enactment is a comprehensive piece of legislation on all tobacco products as mentioned in the Schedule therein. The COTPA clearly prohibits three activities which are mentioned in Sections 4 to 6, i.e., smoking in any public place, advertisement of cigarettes and other tobacco products and sale of cigarettes or any other tobacco products: (a) to any person who is under eighteen years of age; and (b) in an area within a radius of one hundred yards of any educational institution. In addition to the aforesaid prohibitions, the COTPA intend to regulate the trade and commerce in cigarettes and other tobacco products including production, supply and distribution thereof. 32. From the analysis of the various provisions of COTPA, it is quite evident that the legislature never intended to....
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....ws: "Entry 52 of List I: Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. Entry 24 of List II: Industries subject to the provisions of [entries 7 and 52] of List I. Entry 7 of List I: Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war." 36. Upon a declaration being made under Entry 52 of List I, the Union can only acquire what is available under Entry 24 of List II. However, Entry 24 of List II is a general entry in relation to industries whereas there may be specific entries relating to other entries. To elaborate, industries engaged in production and manufacture of intoxicating liquors is under Entry 8 of List II and hence, beyond the scope of Entry 52 of List I. Learned senior counsel argued that as per the rules of interpretation, „special excludes the general‟, the industries engaged in specific activities would not be construed to fall within Entry 24 of List II but within their respective Entries. 37. Hence, the declaration by Parliament in terms of Entry 52 of List I would not transfer industries sp....
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.... 17, at p. 306) "food" is a nutritive material taken into the body for the purpose of growth, repair or maintenance. 40. Furthering the definition of food, he submitted that, as has also been held in Collector of Central Excise, Bombay & Anr. v. Parle Exports (P) Ltd. reported as (1989) 1 SCC 345, food is any substance that is taken in the body which serves, through organic action, to build-up normal structure or supply the waste of tissue and includes confectionary. Thus, a product that could neither be nutritive nor restitutive nor promotive would not constitute as „food‟ because it is consumed. More so, when the said product is perceived as detrimental to health. Most importantly, it has been observed that tobacco is not foodstuff in ITC Limited (supra). 41. Learned senior counsel, while concluding his arguments, submitted that the declaration under Section 2 of FSSA purporting to take over the "food industry" cannot cover tobacco within its ambit as the same was already covered under the "tobacco industry" when the COTPA was enacted in 2003. Second, "Once COTPA occupies the entire domain- cradle to grave- for tobacco; can FSSA encroach upon an "Occupied Fie....
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....f the COTPA, the scope of the control that the Parliament has taken over the tobacco industry would have to be evaluated based on the provisions of the COTPA itself. Hence, all the activity pertaining to tobacco products under Entry 33 of List III, were brought within the ambit of the COTPA. When COTPA was enacted under Entry 52 of List I read with Entry 33 of List III, the Parliament took under its control the tobacco industry and denuded the States qua the Scheduled products. 46. That while enacting the COTPA, the Union acknowledged and admitted certain tobacco products under Section 3(p) of the COTPA over which it was going to exercise control. Learned senior counsel argued that as far as the "extent" or "scope" of the control taken over is concerned, the COTPA is a comprehensive, self-contained, seamless legislation regulating the whole field of tobacco and allied products. Sections 4, 5 and 6 provide for prohibition; Section 7 lays down restrictions; Sections 8, 9 and 10 regulates packaging of tobacco products. Thus, it is apparent that the COTPA does not envisage product prohibition. 47. In any view, the fact that COTPA occupies the entire field relating to tobacco prod....
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.... of the existing laws on the same subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. Further, he submitted that, when the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle of expressio unius est exclusio alterius. 51. He submitted that the continuance of an existing legislation in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and „repeal‟ is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, „repeal‟ will not be inferred. 52. Learned senior counsel, while concluding his arguments qua the present aspect submitted that, the non-obstante clause of Section 89 o....
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....A, being a special Act and of later origin, overrides the provisions of the PFA with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule of the COTPA. 56. Hence, when a comprehensive legislation clearly defines the subject matter of the law, the extent of the regulation, offences and penalties, the adjudicatory process to be followed and delegation of rulemaking power, the later general law will not repeal the earlier law. Fifth, ""Food" as defined under the FSSA does not include tobacco within its ambit or scope." 57. Learned senior counsel for the Petitioners submitted that the Parliament enacted the FSSA in terms of Entry 52 of List I of Schedule VII of the Constitution of India. Section 2 of FSSA carries a declaration mandated under Entry 52 of List I of Schedule VII. He further submitted that what flows downwards from the Constitution is actually the footprint that is available to the legislature; of that footprint, what the legislature chooses to cover is in terms of the Act. The legislature may cover the entire footprint or part of the footprint but they cannot go beyond that, as it would be beyond their compe....
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....acco means any form of tobacco, whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant. The Hon'ble Supreme Court held that the definition is exhaustive and tobacco seeds, which are not mentioned in the inclusive part, do not fall within the purview of the definition. Thus, so far as tobacco products are concerned, they have been defined under Section 3(p) of the COTPA, and merely because the definition of food is very expansive in the FSSA, doesn‟t mean the competence will flow. Therefore, the fundamental definition of "food" cannot be expanded to include chewing tobacco. Sixth, that "the scope, intent and purpose of the FSSA is to establish and regulate the standards for Food. The power to regulate the standards for Food. The power to regulate does not include in its ambit the power to prohibit. In any case, the power to prohibit does not vest in the Food Commissioner at all. The distribution of powers amongst the: (i) Union; (ii) State; and (iii) the Statutory authorities- Food Safety Authority and Food Commissioner; clearly indicates that the Food Commissioner cannot take the decision to prohibit and that too permanently". 61....
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....f the Act within the State is the responsibility of the State Government; and (c) FSSAI, which was to be established by the Central Government, has been mandated to oversee the implementation of the various provisions of the Act. 64. He further emphasized on the fact that in the entire scheme of the Act, neither the Central Government nor the State Government nor the Food Authority has been conferred with any power to prohibit or ban any "food article". There is no pari materia clause to Section 23(1A)(f) of the PFA. Section 22 where the embargo is absolute, the Legislature in its wisdom has conferred that power to the Central Government and the Food Authority has no powers to make any Regulations relating thereto. The power to prohibit would fall with the essential Legislative Policy domain and hence, it is not possible to delegate such power. 65. The Foods Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 ("Regulations, 2011") were initially issued in exercise of powers under Section 92(2)(l) read with Section 26 of the FSSA. Section 92(2)(l) does not in any manner, even remotely, refer to any power to prohibit. However, with effect from 08.02.2....
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....he assistance and guidance; to shift from a merely regulatory regime to selfcompliance regime. Before any Regulations are made or notified by the Food Authority under the FSSA, a detailed procedure has to be mandatorily followed as prescribed under the Act. 69. The FSSA establishes the entire infrastructure for: (i) the identification of areas that require a regulatory framework; (ii) the identification of risks; (iii) the specialist bodies (Scientific Panels, Scientific Committees and the Central Advisory Committee) that consider and analyze the risk; (iv) interact with all stake holders in the value chain; (v) then recommend the best response; and (vi) assist the Food Authority in the framing of Regulations. 70. Further, it was submitted that Section 18 of the FSSA lays down the general principles that have to be mandatorily followed in administration of the Act. No prevention can be exercised until alternative policies are evaluated; interested parties are consulted qua consideration of risk assessment; interested parties are consulted qua factors relevant for protection of health; selecting appropriate prevention/control options, if needed. Thus, it is apparent that for a....
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....s repealed by Section 97 of the FSSA. A closer inspection would reveal that Section 7 of the PFA was bifurcated into Section 26 and Section 30 of the FSSA. The Legislative intent was expressly clarified in terms of Section 26(2)(iv) of the FSSA, wherein it is categorically reflective that the power to prohibit, being an element of essential Legislative policy, vested only with the (i) Central Government; or (ii) the State Government; or (iii) the Food Authority, with the prior approval of the Central Government. Thus, the power to prohibit did not vest in the Food Commissioner at all. The regime had moved from implementation and monitoring to selfregulation. Further, under Section 30(2)(a) of the FSSA, while conferring a power to prohibit upon the Food Commissioner, the said power was specifically limited and subjected to three dimensions: (i) product - being an article of food; (ii) geographical area - being the whole state or any area or part thereof; and (iii) time - upto a maximum period of one year. The overarching pre-requisite for any exercise of power under this Section would be that it is "in the interest of public health". Thus, the temporary nature of the power was clear....
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....ibit it. 78. It is a well settled principle of interpretation that the intent of the Parliament can be ascertained from certain external aids - most of all from the Constituent Assembly Debates. Further, once the Court is able to decipher the intent, full effect must be given to that intent. The fact that the matter captured the attention of the Constituent Assembly and after due consideration a decision was taken - irrespective of whether the decision was in favour of or against the motion - would demand that the decision so taken be given the persuasive value due to it. 79. Learned senior counsel further argued that, pertinently, in 2003, the COTPA was enacted where the Parliament did not impose any ban on tobacco. The COTPA was enacted pursuant to Article 47 to "provide regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products". 80. By placing reliance on Narinder S. Chadha v. State of Maharashtra reported as (2014) 15 SCC 689, it was further submitted that it must not be forgotten that „equity follows the law‟. Hence, in the garb of public health, an illegal act shall not be promoted. Further, ref....
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....n is clearly hit by Article 14 of the Constitution. 83. Learned senior counsel submitted that Section 3(1)(j) of the FSSA strikes at "intended for human consumption". What food does in tracts, inhaling does in lungs. If taken for the sake of understanding, the distinction between ingestion and inhaling, is a distinction without a difference, is a difference without a distinction. The said difference/distinction has no connection with the object sought to be achieved by the impugned Notifications. Further, the purported ban on smokeless tobacco alone out of various other forms of tobacco products [e.g. cigarettes, cigars, cheroots, bidis, cigarette tobacco, pipe tobacco and hookah tobacco, all listed in Schedule to the COTPA read with Section 3(p) of the COTPA] is clearly discriminatory and hence violative of Article 14 of the Constitution since it creates an artificial class of products (viz. smokeless tobacco) which are subjected to the disability and prejudice. 84. That the impugned Notifications are discriminatory, ultra vires and unconstitutional as being hit by Article 14 in as much as within the class of tobacco products, it creates an artificial sub-class/distinction p....
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.... Government Authorities as to why the word "tobacco" should not be used in its plenary sense found in COTPA. It is not discernible why the term "tobacco" has been limited to "smokeless tobacco". This is especially so when tobacco in either form i.e., smoking or smokeless, would be consumed by the person intaking it. If the reading of Regulation 2.3.4 is taken as "smokeless" tobacco, it is ultra vires and arbitrary. 89. Fifthly, the larger constitutional issue is that the burden of proof rests on the Respondents to justify the aforesaid artificial intra-tobacco class purported to be created by the Respondents. In other words, the Respondents have to sufficiently discharge the burden of proof, that the creation of an artificial sub-class within tobacco products, being the subclass of consumable/eatable tobacco products like smokeless tobacco, while excluding other tobacco products listed above, bears a clear or reasonable nexus to the objects sought to be achieved by the impugned Notifications i.e., public interest. Unless this burden of proof in terms of the aforesaid demonstrable nexus is established, the impugned Notifications must fail on the test of Article 14 of the Constitu....
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....utive order under Article 14 viz. the test of valid classification also fails and the impugned Notifications are directly hit by Article 14 as not creating a valid classification within the seamless class of diverse tobacco products. The principle of reasonable classification is the part of the original Article 14. 94. Lastly, the established and hallowed principles of antidiscrimination under Article 14, failure to create a valid classification as violative of Article 14 and absence of nexus to the object sought to be achieved as violating Article 14 has been repeatedly emphasized and underlined in a catena of judicial precedents. The said legal proposition was also dealt in the landmark judgment of R.C. Cooper v. Union of India reported as (1970) 1 SCC 248. 95. Learned senior counsel, while concluding his arguments, referred to the Counter Affidavit filed on behalf the Respondents and submitted that the Counter is pregnant with silence, and the Respondents have not been able to explain why smoking tobacco is left out of the purview of the ban/prohibition when the object sought to be achieved is public health. He submitted that hard cases shall not make a bad law. 96. In ....
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....ill be made available within eight weeks. 2) The Plastics (Manufacture, Usage and Waste Management) Rules, 2009 be finalized, notified and enforced within a period of eight weeks from today. 3) The direction contained in the impugned order of the High Court for imposition of fine shall remain stayed. 4) Respondent Nos.3 to 15 and other manufacturers of gutkha, tobacco, pan masala are restrained from using plastic material in the sachets of gutkha, tobacco and pan masala. This direction shall come into force with effect from 1stMarch, 2011..." 100. He further navigated this Court to the report submitted by the National Institute of Health and Family Welfare, Munirka, New Delhi in the view of the judgment in Ankur Gutka (supra) and submitted that Pan Masala in one sachet and flavored and scented tobacco in another sachet, when mixed together makes it very palatable for consumers. He further emphasized that consuming raw tobacco otherwise is very bitter and is not palatable to most of the consumers. So, in order to enhance its taste and increase sales, this mixture which is well known as Gutka is sold in the market circumventing the orders of the Hon'ble ....
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.... Other substances, particularly spices, including cardamom, saffron, cloves, aniseed, turmeric, mustard or sweeteners, are added to betel quid according to local preferences. (Annexure 4 (a)) Pan masala is very similar to a betel quid except that all its ingredients are in dehydrated and granular/powdered form. Gutkha is a mixture of Pan masala and chewing form of tobacco." 101. Learned senior counsel drew the attention of this Court to Page 5 of the said report, where the review of evidence of harmful effects of tobacco, has been recorded. He submitted that on the basis of various data and studies conducted, it is evident that 21% adults used only smokeless tobacco and only 9% use smoking tobacco, and 5% use smoking as well as smokeless tobacco. He further emphasized that the study suggests that it is almost impossible to quit smokeless tobacco. Relevant part of the report referred by the learned senior counsel is reproduced hereunder: "II. REVIEW OF EVIDENCE ON HARMFUL EFFECTS The two key ingredients of smokeless tobacco and betel-quid products are tobacco and arecanut, and the chemical composition and effects of these two ingredients are qu....
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....urther argued that consuming smokeless tobacco or chewing tobacco have number of harmful effects and it further causes various diseases like oral pre-malignant lesions/conditions, oral cancer, oesophageal cancer, stomach cancer, pancreatic cancer, throat (pharynx and larynx) cancer and many more. He further pointed out that consuming smokeless tobacco have non-cancerous conditions as well like oro-dental health, nervous system diseases, metabolic abnormalities, reproductive health, other diseases (gastro-intestinal and respiratory). Placing reliance on the above-mentioned report, he stated that direct medical costs incurred in treating smokeless tobacco associated cancers and diseases come to USD 285 million, while indirect morbidity costs (including costs of caregivers and work loss due to illness) amounted to USD 104 million. In conclusion he stated that, the total economic cost of tobacco use was reported as USD 1.7 billion which was many times more than the annual government expenditure on tobacco control and about 16% more than the total tax revenue generated from tobacco. 103. It was submitted by the learned senior counsel for the Respondents that an assertion has been mad....
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....rnment and submitted that the Hon'ble Supreme Court has not granted any stay on Regulation 2.3.4 of the FSSA and hence the concerned authorities are duty bound to enforce the said Regulations. 108. He further argued by referring to the Notification dated 05.12.2016 issued by the Secretary, Ministry of Health & Family Welfare, Government of India and submitted that once again the Central Government, in view of the order dated 23.09.2016 of the Hon'ble Supreme Court in Central Arecanut Marketing (supra), reiterated the ban on the manufacture, storage, distribution or sale of Gutka and Pan Masala (containing tobacco or nicotine) and any other products marketed separately having tobacco or nicotine in the final product by whatever name called, whether packaged or un-packaged and/or sold as one product, or though packaged as separate products, sold or distributed in such a manner so as to easily facilitate mixing by the consumer. Relevant part of the order dated 05.12.2016 is reproduced hereunder: "In this context, the Hon'ble Supreme Court in Central Areca-nut Marketing Corporation & Others Vs Union of India & Ors (Transfer Case (C) 1 of 2010) on 23rd October, 2016, passed ....
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.... India, 2016-2017 and submitted that the prevalence of chewing tobacco in its various forms is almost twice more than smoking tobacco. It is mainly because of two reasons. Firstly, it is palatable in nature. Secondly, it is cheap and caters to almost all segments of the society especially in the lower strata. He further submitted that the number of users of smokeless tobacco in rural areas is higher than that in urban areas, partly because of the higher prevalence of smokeless tobacco use in rural areas and partly because of the larger rural population. The survey records that the prevalence of smokeless tobacco use is 21.4% which is more than twice that of smoking tobacco at 10.7%. Therefore, the estimated number of current adult smokeless tobacco users in India was recorded as 199.4 million i.e., twice that of the current tobacco smokers at 99.5 million. Further, learned senior counsel asserted that according to GATS Survey 2009-10, the total number of smokeless tobacco users in India was 163.7 million as mentioned above, this number had increased to 199.4 million in 2016-17. Relevant part of the report is reproduced hereunder: "4.3.1 Prevalence of use of smokeless- ....
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....5; 24 percent started when in the age-group 15- 17 years; 20 percent at age-group 18-19 years and the remaining 44 percent started after they had crossed the age of 20. More than one third (36%) of daily users of smokeless tobacco aged 20-34 started daily use of smokeless tobacco before the age of 18, i.e., when they were minor. The mean age of Initiation of use of smokeless tobacco is 18.8 years, almost the same as for initiation of smoking. Male daily users of smokeless tobacco started tobacco use at a younger age compared to their female counterparts... ... 4.3.8 Prevalence of former daily use of smokeless tobacco and quit ratio ...In comparison to the quit ratio for smoking (16.8%), the quit ratio for smokeless tobacco use is very low: 5.8 percent of daily smokeless tobacco users successfully stopped the use of smokeless tobacco." 112. Learned senior counsel referred to an article titled „Banning smokeless tobacco in India: Policy Analysis‟ by Aroral M, Madhu R., published in the Indian Journal of Cancer in 2012 and submitted that multiple legislations have failed to effectively control or regulate smokeless tobacco in India and regiona....
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.... other miscellaneous diseases and conditions like diabetes and insulin resistance, conditions of the nasal cavity, reproductive outcomes, addiction etc. 115. Learned senior counsel further referred to Chapter 5 titled as „The Economics of Smokeless Tobacco‟ of the above-mentioned report and submitted that smokeless tobacco is different from the cigarette market in several aspects. Relevant part of Chapter 5 relied upon is reproduced hereunder: "Smokeless Tobacco and Cigarette Markets The ST market is different from the cigarette market in several key aspects. First, the cigarette market offers, in most cases, a relatively homogenized and consistent product within and between countries. A pack of Marlboro cigarettes purchased in Cameroon is similar to a pack of Marlboro cigarettes purchased in Canada or Cambodia. On the other hand, ST purchased in Sweden is very different in terms of ingredients and types of products from ST purchased in India or Sudan. Second, although cigarettes are a legal product in every nation of the world (except Bhutan), the sale of ST has been effectively banned in nearly 40 countries, most of which are in ....
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....ted limestone or seashells), and other minor ingredients such as catechu (for astringency), cardamom, and clove, according to the taste of the user. Some of these components are agricultural products (e.g., betel leaf, areca nut), and others are simple ingredients that could be cottage industry products (e.g., slaked lime). They are combined by Vendors and users and made into fresh betel quids for immediate consumption. Historically, betel quid has been incorrectly believed to have beneficial medicinal properties. The user who incorporates tobacco into it may not consider tobacco a harmful addition. Smokeless tobacco products of different kinds with different names are often incorporated into betel quid, although some are also-used separately. The most common type of tobacco incorporated into betel quid is plain tobacco flakes (also called sada pata); sometimes flavored tobacco flakes such as zarda or khaini may be added. Snuff-type products, which tend to be applied to gums or teeth rather than chewed, are not used with betel quid. Although areca nut itself is mildly addictive, a betel quid user may not understand the much higher addictive potential of tobacco in the quid....
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....d men (16% higher risk). 119. He further submitted that smokeless tobacco products are made palatable by adding areca nut, sweeteners and scents. They are further made attractive to consumers by colorful packaging, and this packaging is convenient as well. Subsequently, he dealt with the issue of distribution and sales of smokeless tobacco in the South-East region and submitted that India is one of the world's largest exporters of tobacco, exporting approximately 50% of its total tobacco production to other countries, according to the Directorate of Tobacco Development of the Government of India. Relevant part of the report is reproduced hereunder: "India is one of the world's largest exporters of tobacco, exporting approximately 50% of its total tobacco production to other countries, according to the Directorate of Tobacco Development of the Government of India. From 2000-2001 to 2009-2010, legal exports of chewing tobacco from India increased nearly 450%, from 1,953 tons to 8,725 tons. The value of exported chewing tobacco products in 2009-2010 was around US$63.6 million. In addition to legal exports, some amount of ST is smuggled to other countries in South-E....
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....cinal products, cosmetics, narcotic or psychotropic substances: Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality." Section 3(1)(zw) of FSSA, 2006 defines "Substance" as: "substance includes any natural or artificial substance or other matter, whether it is in a solid state or in liquid form or in the form of gas or vapour" Section 3(1)(y) of FSSA, 2006 defines "ingredient" as: "ingredient means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form" Section 3(1)(k) of FSSA, 2006 defines "Food Additive" as: "food additive means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be r....
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....ne in any food product is not defeated by the sale of pan masala and chewing tobacco in separate sachets as noted by the Hon'ble Supreme Court. He further submitted that the question of whether chewing tobacco is per se food or not is irrelevant in as much as the impugned Notifications seek to ban the mixing of chewing tobacco with pan masala before consumption. To enforce the spirit of Regulation 2.3.4 and to prevent its circumvention, the impugned Notifications analysed in this context are only in furtherance of Regulation 2.3.4 and the orders of the Hon'ble Supreme Court and various letters of the Government of India and the FSSAI. He therefore submitted that since the impugned Notifications seek to ban chewing tobacco which is flavored or scented in as much as it is mixed with Pan Masala which is sold separately to be consumed as Gutka, which has been banned under Regulation 2.3.4, it is not seeking to create any prohibition which is independent or exclusive of Regulation 2.3.4 and is merely seeking to enforce the mandate of the Regulation in its letter and spirit and is thus justified. 126. Learned senior counsel submitted that Courts in various judgments have interpreted "....
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....oach was adopted by the Courts in the context of the definition of food under the PFA. The question before the Hon'ble Court was whether supari is "food" within the meaning of the definition under Section 2(v) of the PFA. The Hon'ble Court, in Para 14 of the judgment, held that the definition was wide enough to include all articles that are eaten by men for nourishment or taste and it takes in subsidiaries. In this context, it was held that supari, which was eaten with relish by men for taste, was food. In consonance with the law laid down in Virkumar Gulabchand Shah (supra), the Court held that the meaning of common words, presumably food, should be understood in a commonsense way. The Hon'ble Court further rejected the challenge to the ban on cyclamates and held that it would defer to legislative wisdom when the question pertained to the lives of millions of Indians who are, by-andlarge, less aware and health conscious than people in other parts of the world. 128. Learned counsel referred to the Judgment of the Hon'ble Supreme Court in State of Tamil Nadu v. R. Krishnamurthy, reported as (1980) 1 SCC 167. The issue before the Hon'ble Court was whether "gingerly oil" allegedly ....
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....on 25 under the PFA. He further submitted that in the context of the decision in Godawat Pan Masala (supra), it is pertinent to reiterate that Gutka is nothing but a mixture of betel quid in dehydrated form with chewing tobacco, i.e., chewing tobacco along with betel nut, slaked lime, catechu and number of spices. The endeavour of the Respondents, by way of the impugned Notifications, is to prevent the sale of chewing tobacco, which is either flavoured or scented in order to ensure that it is not available in pre-mixed form for mixing with pan masala sold separately in order to defeat the ban imposed under Regulation 2.3.4. Learned counsel submitted that the impugned Notifications fall squarely within the ambit of the law laid down in Godawat Pan Masala (supra) as it seeks to ban the sale of flavoured or scented tobacco, which can readily be mixed with Pan Masala as noted by the Hon'ble Supreme Court in orders dated 03.04.2013 and 23.09.2016 respectively. 130. Learned counsel placed reliance on the judgment of the Division Bench of the Allahabad High Court in Khedan Lal (supra), wherein the issue before the Court was precisely whether chewing tobacco, which was sold placing in p....
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.... of "food" as interpreted by the High Court of Bombay. 133. Learned senior counsel Mr. Rahul Mehra appearing on behalf of the Respondents, while asserting that Gutka and Pan Masala are "food" within the meaning of the FSSA relied on J. Anbazhagan v. The Union of India reported as 2018 SCC OnLine Mad 1231 and submitted that the definition of "food" which includes any substance whether processed, partially processed or unprocessed, which is intended for human consumption, and even includes chewing gum, is clearly wide enough to include Gutka and other forms of chewable tobacco intended for human consumption. Further, the definition of "food" in Section 3(1)(j) of the FSSA is expansive than the definition of "food" in Section 2(v) of the PFA. He contended that the COTPA is in addition to and not in derogation of other laws relating to food products. There is no nonobstante clause in the COTPA which excluded the operation of other Acts. In the larger interest of the most vulnerable sections of the society, judicial notice of circumvention of the ban shall be taken. 134. From the decision in Shri Kamdhenu Traders v. State of Telangana and Ors. reported as MANU/TL/1327/2021 of the ....
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....d which held that tobacco and tobacco products do not fall within the definition of "food" under Section 3(1)(j) of the FSSA. The restrictive meaning was not permissible in light of the wider and expansive definition. 139. It was emphasized that the COTPA is restricted to ensuring the sale, storage, distribution of cigarettes and other tobacco products. It does not deal with effects of smoking and consumption of tobacco on the health of the citizens. Conversely, the FSSA is a more comprehensive Act, dealing with issues of safety and standards of food. 140. Learned senior counsel submitted that for an Act to be termed as „general‟ or „special‟, the objects and reasons for the enactment, the aspects covered by it, the import of the Act(s) and other facts shall be taken into consideration. Referring to a decision dated 02.08.2012 in All Kerala Tobacco Dealers' Association v. State of Kerala in W.P.(C) No.12352/2012, he submitted that, both the enactments i.e., the COTPA and the FSSA will have to be treated as special enactments since the former deals with tobacco and the latter deals with food and other items including the ones specified under the former ....
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....e within the scope of the legislation and merely because certain categories which are left out would not render the legislation discriminatory and violative of Article 14 of the Constitution. The entire data placed before the Court is far more injurious to health as compared to smoking tobacco; the quit ratio is lesser as compared to smoking tobacco. 145. Quoting from Municipal Corporation of the City of Ahmedabad v. Jan Mohammed & Anr. reported as (1986) 3 SCC 20, learned senior counsel contended that if the law requires that an act which is inherently dangerous, noxious and injurious to the public interest, shall be done under a permit of an executive authority, it is not unreasonable and no person may claim a permit to do that act as of right. Hence, imposition of restriction on the exercise of a fundamental right may be in the form of control or prohibition. 146. The tests of reasonableness have to be viewed qua the issues faced by the Legislature. While judging the validity of such laws, the Courts must approach the problem from the point of view of furthering the social interest which was the purpose of the legislation. Learned counsel reiterated his submissions through....
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....under the PFA relating to the issue of banning of tobacco product is Godawat Pan Masala (supra). Before analysing the judgment in the matter of Godawat Pan Masala (supra), it is important to examine the definition of „food‟ under the PFA. Section 2(v) of the PFA defines „food‟ as: "2(v) "food" means any article used as food or drink for human consumption other than drugs and water and includes- (a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act;" 154. The Hon'ble Supreme Court in the matter of Pyarali K. Tejani (supra) was dealing with the issue of whether supari is "food" within the meaning of the definition under Section 2(v) of the PFA and held as follows: "14. We now proceed to consider the bold bid made by the appellant to convince the Court that supari is not an article of food and, as such, the admixture of an....
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....s generally or commonly used for human consumption. The Hon'ble Apex Court held as follows: "7. According to the definition of "food" which we have extracted above, for the purposes of the Act, any article used as food or drink for human consumption and any article which ordinarily enters into or is used in the composition or preparation of human food is "food". It is not necessary that it is intended for human consumption or for preparation of human food. It is also irrelevant that it is described or exhibited as intended for some other use. It is enough if the article is generally or commonly used for human consumption or in the preparation of human food. It is notorious that there are, unfortunately, in our vast country, large segments of population, who, living as they do, far beneath ordinary subsistence level, are ready to consume that which may otherwise be thought as not fit for human consumption. In order to keep body and soul together, they are often tempted to buy and use as food, articles which are adulterated and even unfit for human consumption but which are sold at inviting prices, under the pretence or without pretence that they are intended to be used for ....
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.... water and includes- (a) any article which ordinarily enters into, or is used in the composition or preparation of, human food, (b) any flavouring matter or condiments, and (c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act." 65.In his submission, the expression "food" as defined in the Lexicon could only be "a substance taken into the body to maintain life and growth". No one in his right mind would consider that pan masala or gutka would be consumed for maintenance and development of health of human being. In P.K Tejani Vs M.R Dange, this Court held that the word "food" is a very general terms and applies to all that is eaten by men for nourishment and takes in also subsidiaries. Since pan masala, gutka or supari are eaten for taste and nourishment, they are all food within the meaning of Section 2(v) of the Act. 66.The learned counsel relied on a judgment of a division bench of this Court in C.A. No. 12746-12747 of 1996 (decided on 6th November 2003). In our view, this judgment is of no ai....
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....idity of the order passed by the Controller, Food and Drugs Administration and Food (Health) Authority, Chhattisgarh in purported exercise of the powers conferred under Section 7(iv) of PFA and had banned the sale of tobacco blended Gutka by whichever name it is known in the State of Chhattisgarh, for a period of five years. The Hon'ble High Court, relied on the judgment of the Hon'ble Supreme Court in Godawat Pan Masala (supra), held that "it is not possible to accept that the article itself has been treated as res extra commercium. The legislative policy, if any, seems to be to the contrary. In any event, whether an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of Legislature and not by a mere notification issued by an executive authority." 160. This Court in the matter of Ram Babu Rastogi & Ors. v. State, reported as 2011 SCC OnLine Del 5552, while dealing with a petition under Section 482 of the Code of Criminal Procedure, 1973 challenging an order, wherein the petitioners were summoned by the learned Metropolitan Magistrate in the complaint filed by the Food Inspector of the department of PFA, alleging vio....
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....Lalit. That all provisions of a statute have to be read harmoniously and any interpretation as to be ex visceribus actus, is a trite doctrine of construction of statutes. Undoubtedly, if Section 7(iv) is read in isolation, it gives the impression that this is an independent source of power, not subject to any limitation other than the guideline "in the interest of public health". But, when the scheme of the Prevention of Food Adulteration Act is analysed in the light of its preamble and the Statement of Objects and Reasons, it becomes clear that there is no independent source of power under Section 7(iv). Had it been so, there was no need for the rule making power of the State Government under Section 24(2)(a) to define the powers and duties of the Food (Health) Authority or local authority and Local (Health) Authority under the Act. The interplay of sections 23(1A)(f) and 24(2)(a) read with the existing rules in the different states, even after the amendment of Section 7(iv) by the Act 49 of 1964, leads us to conclude that the contention of the states in this regard cannot be accepted." 164. The Hon'ble Supreme Court further held that whether any article is to be prohibited as ....
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....gh difficult, it is necessary that the line must sometimes be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases'. It has also been said: 'Rule-making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class' while, 'adjudication, on the other hand, applies to specific individuals or situations'. But, this is only a broad distinction, not necessarily always true. Adm....
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....l class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. This Court emphasised that in the third type of cases the satisfaction of the delegate must necessarily be based on objective considerations and, irrespective of whether the exercise of such power is judicial or quasijudicial function, still it has to be treated to be one which requires objective consideration of relevant factual data pressed into service by one side, which could be rebutted by the other side, who would be adversely affected if such exercise of power is undertaken by the delegate. 76. In our view, even if the impugned notification falls into the last of the above category of cases, whatever the material the Food (Health) Authority had, before taking a decision on articles in question, ought to have been presented to the appellants who are likely to be affected by the ban order. The principle of natural justice requires that they should have been given an opportunity of meeting such facts." 167. While declaring the Notifications issued by the State food (Heath) author....
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....of safe and wholesome food for human consumption. After the enactment of the FSSA, there were many occasions when the State Health Authorities tried to impose ban on tobacco and tobacco products and there are some important judicial pronouncements to cover the field. 169. In this regard, it is pertinent to mention that the Indian Asthma Care Society approached the Hon'ble Rajasthan High Court seeking a direction to ban on the sale of Gutka and prohibit the use of plastic sachet packaging for Gutka. The order passed by the Hon'ble Rajasthan High Court was challenged before the Hon'ble Supreme Court in the matter of Ankur Gutka (supra). The Hon'ble Supreme Court vide its interim order dated 07.12.2010, directed the learned Solicitor General to instruct the concerned ministries to approach National Institute of Public Health to undertake a comprehensive analysis and study the contents of Gutka, Pan Masala and similar articles manufactured in the country and harmful effects of consumption of such articles. Relevant part of the order is reproduced hereunder: "...Interim order dated 7.9.2007 and other similar orders passed by this Court are vacated and the following direction....
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....rned Additional Solicitor General, we order issue of notice to the Chief Secretaries of the States and the Administrators of the Union Territories which have so far not issued notification in terms of 2006 Act to apprise this Court with the reasons as to why they have not taken any action pursuant to letter dated 27.08.2012. We also direct the Secretaries, Health Department of all 23 States and 5 Union Territories to file their affidavits within four weeks on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine." 171. It is also pertinent to mention that the Hon'ble Apex Court in Central Arecanut Marketing Corp (supra), vide its order dated 23.09.2016, directed the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of Gutka and Pan Masala with tobacco and/or nicotine. Relevant part of the order dated 23.09.2016 of the Hon'ble Apex Court is reproduced hereunder: "Learned Amicus Curiae has also invited out attention to paragraph 21 of t....
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.... for some time and thereafter thrown out. Similarly, Gutka containing tobacco may be chewed for some time and then thrown out. Even if it does not enter into the digestive system, it would be covered by the definition of "food". Further, the Hon'ble Court observed that even while holding the COTPA to be a special Act, the Hon'ble Supreme Court did not accept the contention of the petitioners that the PFA had no role to play in the matter of regulation of manufacture and sale of Gutka and Pan Masala. In fact, the Hon'ble Supreme Court held that tobacco and tobacco products will come under the ambit of "food" for the purpose of the FSSA. (b) Section 30(2)(a) of the FSSA conferring power to ban Gutka or Pan Masala under the PFA was vested in the Central Government under Section 23(1A)(f) of PFA and not in the State Government under Section 7(iv) thereof. The Hon'ble Supreme Court thus did not accept the petitioners' contention in Godawat Pan Masala (supra) that the COTPA was the only legislation occupying the field of tobacco and tobacco products and that the PFA had nothing to do with any tobacco product. Furthermore, the Hon'ble Court held that the power conferred on th....
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....on would be adopted in laying down standards of food, the Commissioner, while exercising powers under Section 30 of the FSSA, must be in possession of objective materials that the food, sought to be prohibited, does not conform to the standards as prescribed by the Regulations. (b) Section 30(2)(a) of the FSSA has to be understood in the light of Section 34. As a result, a prohibition order can be issued by the Commissioner of Food Safety only when a report is laid down by the Designated Officer that the health risk condition exists with respect to any food business. (c) A prohibition order cannot, therefore, be made a permanent order and/or be made to run for years together defeating thereby the legislative will, which warrants the executive to exercise its power under Section 30 of the FSSA in emergent circumstances. (d) Before passing of the order, there must be emergent circumstances based on objective materials that in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof, be prohibited. (e) The tenure of the prohibitory order has to ....
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....co or tobacco products are not food as defined under Section 3(j) of the FSSA and it is not food product as specified in Regulation 2.3.4. Tobacco and tobacco products are to be manufactured and sold strictly in accordance with the provisions of COTPA and the rules framed thereunder. 177. The Division Bench of the Guwahati High Court in the matter of Dharam Pal Satyapal Ltd and Anr. v. State of Assam, reported as (2018) 2 Gauhati Law Reports 168 was dealing with the constitutional validity of the Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda, Gutka, Pan Masala etc., containing Tobacco and/or Nicotine) Act 2013. The Hon'ble High Court, while quashing the aforementioned legislation, held that COTPA is a comprehensive piece of legislation on all tobacco products including cigarettes, chewing tobacco, pan masala, gutka, etc. In other words, this Act covers both smoking tobacco and chewing tobacco. The Hon'ble Court held that not only the Assam Legislative Assembly lacked legislative competence to have enacted the Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and C....
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.... "(39) If it is assumed that tobacco is food within the meaning of FSSA then there must be a science based standard for tobacco to regulate manufacture, storage, distribution, sale and import of tobacco products to ensure availability of safe and wholesome tobacco for human consumption. Unless such standards can be laid down, tobacco cannot be termed as food. Obviously such standards cannot be laid down. Consumption of tobacco and tobacco products are universally acknowledged as injurious to human health and that is why COTPA has been promulgated to regulate trade and commerce in tobacco and tobacco products. Such products cannot, in my opinion, be considered as food by any stretch of imagination...... (40) .............Hence, in my opinion, in spite of the expansive definition of 'food' in Section 3(j) of FSSA, tobacco and tobacco products cannot be said to be within the purview of the said Act. (41) Even if for the sake of argument I were to hold that the said products come within the definition of food as provided in the FSSA, I would still hold that the Commissioner of Food Safety has no jurisdiction to issue notifications like the one under challeng....
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....a moment suggesting that consumption of tobacco or tobacco products is not injurious to public health. However, I am of the firm opinion that the Commissioner of Food Safety or any other authority does not have the power or jurisdiction under the FSS Regulations or the FSSA to prohibit the trade and commerce in the said products. Restriction may be imposed on the trade and commerce of the said products only to the extent permitted under the COTPA." 179. The Hon'ble Division Bench of Madras High Court in the matter of J.Anbazhagan Member of Legislative Assembly (supra), which was pertinently a public interest litigation, and was directed against the illegal manufacture and sale of chewable forms of tobacco like gutkha and pan masala, which are believed to cause life threatening and/or fatal ailments such as cancer, inter alia, in the State of Tamil Nadu. The Division Bench of Madras High Court disagreed with the decision of the learned Single Judge of the High Court in Jayavilas tobacco Traders LLP v. The Designated Officer and Ors., reported as 2017 SCC OnLine Mad 2458 and the decision of the Madurai Bench of the High Court of Madras in Crl.O.P.(MD) No. 5505 of 2015 [Manufacture....
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....at a conjoint reading of Section 3(1)(j) of the FSSA, Regulation 2.3.4 and Notification No. 1418/2013/S8/FSSA, dated 23.05.2018 in light of the decision of the Hon'ble Court in the case of J.Anbazhagan (supra) leads one to the irresistible inference that chewing/chewable tobacco is a banned substance and that, it falls under the purview of the FSSA. 182. The learned Single Judge of the Hon'ble High Court of Andhra Pradesh in the matter of Dasa Shekar v. State of Andhra Pradesh in W.P.No.7336 of 2021 dated 21.09.2021 was dealing with a batch of petitions wherein the petitioners were aggrieved by the action of the police authorities and in some cases the authorities under the FSSA, seizing tobacco products, either at the stage of transportation or at the stage of storage or sale of these products. The Hon'ble Single Bench of the High Court referred the matter to the Division Bench of the Andhra Pradesh High Court and observed as under: "34. In view of the above judgements of the Hon‗ble Supreme Court in Pyarali K. Tejani v. Mahadeo Ramchandra Dange and Godawat Pan Masala Products I.P. Limited & Anr., v. Union of India & Ors.,the tobacco products, viz., Chewing T....
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..... One of the main grounds on which the impugned Notifications have been challenged by the Petitioners is them being arbitrary and ultra vires the FSSA as Respondent No.1 is not empowered under the provisions of the FSSA, or the rules and regulations made thereunder to impose such a prohibition on manufacture, storage, distribution or sale of chewing tobacco since the same is a scheduled product under the COTPA and cannot in any manner be construed as "food" within the ambit of the FSSA. The Respondents, on the contrary, have argued that Respondent No.1 was well within his rights to issue the impugned Notifications under Regulation 2.3.4, who has been mandated with power under Section 30(2)(a) of the FSSA to prohibit the manufacture, storage, distribution and sale of any article of food, such as chewing tobacco, in the interest of public health and welfare. 187. Before addressing the aforementioned contentions of the parties, it is important to analyse some of the provisions of the FSSA and rules and regulations made thereunder. Section 30 of FSSA deals with the functions of the Commissioner of Food Safety and Section 30(2)(a) provides as follows: "The Commissioner of Fo....
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....od business except under a license as per the provisions of the FSSA. However, as per the FSSA, the persons dealing with tobacco and tobacco products are not required to obtain any license(s) under the FSSA. 193. On the bare perusal of Regulation 2.3.4, it is apparent that the intention is not to prohibit but restrict the use of tobacco or nicotine as ingredients in any food product. In the considered view of this Court, the language of Regulation 2.3.4 does not suggest regulating manufacture, distribution, storage or sale of tobacco or nicotine but amounts to regulating standards of food within the purview of the FSSA. Therefore, what has to be regulated under Regulation 2.3.4 is food without tobacco and not tobacco itself which is a scheduled item under the COTPA, which has to accordingly be regulated under the provisions of COTPA. 194. Referring to Section 30(3) of the FSSA, learned senior counsel submitted that the power to prohibit impinges on Article 19(1)(g) of the Constitution as the Parliament has not delegated the power to ban/prohibit to either the Central Government, State Government or the Food Authority. Moreover, the power to prohibit would lie with the essenti....
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.... 26 and Entry 27 of List II is subject to Entry 33 of List III, which enables the Parliament to legislate with respect to the aforesaid matters in relation to the tobacco industry amongst others. When the COTPA was enacted under Entry 52 of List I read with Entry 33 of List III, the Parliament took under its control the tobacco industry thereby denuding the States to legislate qua the scheduled tobacco products covered under COTPA. Therefore, once the Parliament has exercised power under Entry 52 of List I in order to take the entire tobacco industry under its control, the State Legislatures are not competent to enact laws on the said subject. 199. The COTPA is a comprehensive, self-contained, seamless legislation dealing with the sale and distribution of scheduled tobacco products and therefore, occupies the entire field relating to tobacco products. FSSA, on the other hand, is a general legislation. Admittedly, the impugned Notifications have been issued by Respondent No.1 as an executive action under the garb of Regulation 2.3.4 in exercise of power conferred by Section 30(2)(a) of the FSSA. Therefore, the FSSA cannot override COTPA which is a Central Act enacted solely for t....
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....at the substance banned by the impugned notification is treated as res extra commercium. In the first place, the gamut of legislation enacted in this country which deals with tobacco does not suggest that Parliament has ever treated it as an article res extra commercium, nor has Parliament attempted to ban its use absolutely. The Industries (Development and Regulations) Act, 1951 merely imposed licensing regulation on tobacco products under item 38(1) of the First Schedule. The Central Sales Tax Act, 1956 in Section 14(ix) prescribes the rates for Central Sales Tax. Additional Duties of Excise (Goods of Special Importance) Act, 1957 prescribes the additional duty leviable on tobacco products. The Tobacco Board Act, 1975 established a Tobacco Board for development of tobacco industries in the country. Even the latest Act, i.e. the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, does not ban the sale of tobacco products listed in the Schedule except to minors. Further, we find that in the tariff schedule of the Central Sales Tax Act, there are several entries which deal with toba....
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....elating to food and for laying down sciencebased standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure safe and wholesome food for human consumption and incidental matters. Whereas the COTPA is a comprehensive legislation which deals with advertisement, trade, sale and distribution of tobacco and tobacco products. The Union Government assumed control to legislate with regard to both the food industry and the tobacco industry, therefore, it is certain that at the time of enactment of the FSSA, the Legislature was not only aware and conscious of the existence of the COTPA, which was enacted in 2003 but made various rules under the COTPA and carried out multiple amendments in provisions and rules framed thereunder even after the enactment of the FSSA in 2006. 206. Accordingly, it can be observed that the COTPA, being a „special law‟, occupies the field for tobacco and tobacco products and would prevail over the FSSA which is a „general law‟. 207. Another issue which arises for consideration before this Court is whether the enactment of the FSSA impliedly repeals the COTPA. The answer to this que....
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....any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances." 213. It has been argued on behalf of the Respondents that Section 2(v) of the PFA had a narrower definition of food as compared to Section 3(1)(j) of the FSSA. These are beneficial legislations and therefore while interpreting the provisions thereof, liberal interpretation is to be adopted so that maximum benefits can be extended to the public at large. The Respondents have relied on various judgments to substantiate their said contention. 214. The Petitioners, on the contrary, have argued that chewing tobacco is a sched....
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....interpreted as "food" within the meaning of FSSA, then intent/objective with which Regulation 2.3.4 is framed (i.e., to regulate standards of food under the FSSA) would be rendered redundant. Moreover, such an interpretation would be in complete contravention of the provisions of the FSSA, which is a comprehensive legislation dealing with the food industry. 219. It is further worthwhile to note that Regulation 2.3.4 prohibits use of tobacco and nicotine as ingredients in food products thereby regulating the standards for "food" and not standards or trade in "tobacco". Hence, the said Regulation cannot be said to be in conflict with any of the provisions of the COTPA. The said Regulation merely lays down general principle for food safety and cannot in any manner be read to construe that "tobacco" is "food" within the meaning of the FSSA. 220. After considering the arguments advanced and the judgments relied by the parties,"food" as defined in the FSSA does not include tobacco within its ambit or scope and therefore, tobacco cannot be termed as "food" within the meaning of the FSSA. 221. In terms of Section 30(2)(a) of the FSSA, the power to prohibit conferred upon the Commi....
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....nagement has been made in the present case. Further, there has been no reference to emergent circumstances which led to issuance/passing of the impugned Notifications. In fact, no opportunity of being heard has been provided to the stakeholders who would be adversely affected by such prohibitory order i.e., issuance of the impugned Notifications. 226. In this regard, it has been discussed in the case of Omkar Agency (supra): "26. The question, now, is : whether before making an order under Section 30, the Commissioner is required to comply with the principles of natural justice? 27. In Olga Tellis v. Bombay Municipal Corporation, reported in (1985) 3 SCC 545, a Constitution Bench of Supreme Court had the occasion to deal with the provisions of Section 314 of the Bombay Municipal Corporation Act, 1888. It was held by the Supreme Court that Section 314 confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the procedure, accompanying the performance of a public act, must be fair and reasonable. The Cour....
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....e the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence." 29. Relying on the aforesaid observations made in the case of Olga Tellis (supra),the Supreme Court, in the case of C.B. Gautam v. Union of India, reported in (1993) 1SCC 78, has held that it must, however, be borne in mind that courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard befo....
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....e of the fact as to whether the exercise of such power involves a judicial or quasi-judicial function, it has to be nonetheless treated a function, which requires objective consideration of relevant factual data pressed into service by one side, which could be rebutted by the other side, who would be adversely affected if such exercise of power is undertaken by the delegate. 33. In view of the above reasoning, the following facts emerge with respect to the issuance of prohibition orders under Section 30(a) of the Food Act:- a. Before passing of the order, there must be emergent circumstances based on objective materials that in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof, be prohibited; b. The tenure of the prohibitory order has to be temporay in nature and must not exceed 1 (one) year in its entirety; now, any extension of the prohibitory order would amount to virtually and effectively making a legislation by executive fiat; c. The principle of audi alteram partem applies in exercise of powers under Section 30(a) and the aggriev....
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....h the object sought to be achieved by the impugned Notifications. In fact, the said discrimination which is being promoted by the impugned Notifications encourages smoking tobacco over smokeless tobacco, thereby being not only clearly discriminatory but in violation of Article 14 of the Constitution. 230. Further, the impugned Notifications have purportedly being issued in the garb of Regulation 2.3.4 which bars the usage of tobacco and nicotine in any food article. However, admittedly, tobacco and nicotine are not only found in smokeless tobacco but also in smoking tobacco, which has conveniently been excluded from the rigours of the impugned Notifications. Therefore, there is no justification for the classification between smokeless and smoking tobacco sought to be created by the impugned Notifications issued by the Respondents. Moreover, the prohibition imposed by virtue of the impugned Notifications by discriminating between smokeless and smoking tobacco does not fall under reasonable restrictions on exercise of fundamental rights under Article 19(6) of the Constitution. 231. It has further been argued on behalf of the Petitioners that the burden of proof rests upon the R....
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....or nicotine". The essence of Regulation 2.3.4 is to prohibit use of tobacco and nicotine as ingredients in any food products and not prohibit the manufacture and sale of tobacco and/or nicotine per se. In view thereof, the present case is distinguishable as it relates to chewing tobacco in itself and not with Gutka and Pan Masala with tobacco and/or nicotine. 235. It is further significant to take note of the fact that it has been vehemently argued on behalf of the Respondents, while placing reliance on various reports including the one provided by National Institute of Health and Family Welfare, that the use of tobacco has various harmful effects on public health. Reliance has also been placed by the Respondents on various studies, data and statistics in this regard to substantiate their contentions. Attention of this Court has also been drawn on numerous harmful effects and various diseases caused by the use of smokeless tobacco, such as oral and various other types of cancers, heart disease and stroke, besides many more. 236. This Court is conscious of the harmful effects and various diseases caused by the use of tobacco, both smokeless and smoking. In addition to the ill-....