AI Drafter 
TaxTMI 
TaxTMI 
2012 (12) TMI 1251
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....on that the sale of panmasala is prohibited in the State of Kerala. Though they had represented that the ban of panmasala does not apply to chewing tobacco, the goods are not permitted to be brought to State of Kerala. It is their contention that though the Government had passed Ext.P9 order banning the manufacture, storage, sale or distribution of gutkha and panmasala containing tobacco or nicotine as ingredients in pursuance of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011 (hereinafter referred to as the Regulations of 2011), the said prohibition does not apply to chewing tobacco and therefore it is not open for the respondents to prohibit the import of chewing tobacco to State of Kerala from any other State in the Country. Ext.P9 is extracted hereunder: OFFICE OF THE COMMISSIONER OF FOOD SAFETY, KERALA, THIRUVANANTHAPURAM No. A/1327/2012/CFS Dated, Thiruvananthapuram, 22.5.2012. ORDER WHEREAS, regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 made by the Food Safety and Standards Authority of India in exercis....
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....ning tobacco or 'nicotine cannot be used as a reason for not permitting tobacco products for being stored and they seek for a declaration for permission to sell the said products within the State of Kerala and further for a declaration that the products are not banned in the State of Kerala. 4. W.P.C. No. 21854 of 2011 is filed by a wholesale dealer of tobacco products under the brand name Hans Khaini, Madhu Khaini, Chaini Khaini and Cool Khaini. He has also taken identical contentions as that of other petitioners and challenges the action of the official respondents in not permitting the import of tobacco products to the State of Kerala or sale of the same on the basis of the Government Order banning gutkha and panmasala containing tobacco and nicotine as ingredients. 5. The second respondent has filed a counter affidavit in W.P.C. No. 13580 of 2012. A voluntary organization has filed I. A. No. 8558 of 2012 for impleading as additional fifth respondent which is already allowed. Second respondent has filed a counter affidavit in W.P.C. No. 16496 of 2012 and adopted the same contention as in W.P.C. No. 21854 of 2012 by filing a memo. 6. Common contention urged by the se....
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....ess the context otherwise requires,- (p) "tobacco products" means the products specified in the Schedule. (iii) Section 6 prohibits sale of tobacco products to any person who is under 18 years of age and an area within a radius of 100 yards of any educational institution. Section 6 reads as under. 6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area.- No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product- (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. (iv) Section 7 imposes restriction on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products which reads as under: 7. Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products.- (1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes ....
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....any trade or commerce in cigarettes or any other tobacco products is carried on or cigarettes or any other tobacco products are produced, supplied or distributed; or (b) where any advertisement of the cigarettes or any other tobacco products has been or is being made. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every search and seizure made under this Act. (vi) Section 22 imposes the punishment for contravening any provisions under Sections of the Act which reads as under: 22. Punishment for advertisement of cigarettes and tobacco products.-Whoever contravenes the provision of Section 5 shall, on conviction, be punishable (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. (vii) Section 24 further imposes a punishment for sale of such products contravening Section 6 of the Act which reads as under: ....
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...., 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: 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; 13. Senior Counsel Sri. Joseph Kodianthara referred to the provisions in the Central Excise notification to contend that "chewing tobacco" is considered as a separate item and therefore it cannot be equated with Panmasala or Gutkha which are again treated as distinct items as per Central Excise Notification. The argument is that going by any law on the point chewing tobacco is classified as a distinct item and cannot be equated with Panmasala which is another distinct item or Gutkha which is another distinct item. Therefore according to the learned counsel unless Tobacco or ....
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....ll answer back that supari is food. The lexicographic learning, pharmacopic erudition, the ancient ' medical literature and extracts of encyclopedias pressed before us with great industry are worthy of a more substantial submission. Indeed, learned Counsel treated us to an extensive study to make out that supari was not a food but a drug. He explained the botany of betal nut, drew our attention to Dr. Nandkarni's Indian Materia Medica, invited us to great Susruta's reference to this aromatic stimulant, in a valiant endeavour to persuade us to hold that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which affects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly a....
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....is only if it contains tobacco or nicotine. The question here is whether tobacco by itself with some additives like lime or other flavouring substances can be prevented from being brought to State of Kerala or can be seized by the official respondents under the guise of the aforesaid ban. 22. Regulation 2.3.4 under which the aforesaid ban has been created reads as under: 2.3.4: Product not to contain any substance which may be injurious to health: tobacco and nicotine shall not be used as ingredients in any food products. 23. Therefore primarily chewing tobacco should be a food product. If it is not a food product, apparently regulation 2.3.4 does not apply. The controversy therefore is only regarding the question as to whether the products manufactured and sold by the petitioners is a food product. 24. Going by the definition, it only indicates that any substance whether processed, partially processed or unprocessed which is intended for human consumption is meant as food. Tobacco as it is cannot be treated as food and the respondents do not have such a case also. According to the respondents, the additives of lime or other substance in the tobacco makes it a foo....