TaxTMI 
TaxTMI 
2019 (2) TMI 2147
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....o, the samples of the contraband were taken and one of them was sent for analysis. The food analyst appointed under the provisions of the Food Safety and Standards Act, 2006, found the sample to be a banned food product containing Nicotine falling under Regulation 2.12.1(1) of the Food Safety and Standards (Food Product Standards and Food Additives) Regulations, 2011. 3. A copy of the report of the said food analyst was furnished to the writ petitioner herein vide communication dated 07.12.2018 by the third respondent herein / designated officer. The Designated Officer called upon the writ petitioner to apply within 30 days if the petitioner wants the sample to be tested in the referral lab. The report of the food analyst dated 03.12.2018 is under challenge in this writ petition. 4. The learned counsel appearing for the writ petitioner submitted that the issue on hand is no longer res-integra and that, it is covered by a catena of the decisions rendered by the Madras High Court. The short argument advanced by the learned counsel appearing for the writ petitioner that chewing tobacco will not fall under the purview of the Food Safety and Standards Act, 2006. The petitioner has....
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....cordance with the provisions of the CTP Act and the Rules framed thereunder. (iii) The Respondents have no right take any action against Tobacco or Tobacco products by virtue of Government Order dated 22.05.2012 (Ext.P9 in W.P.C.No.13580 of 2012)." 8.Thus, it is clear that the petitioners, who are manufacturing Gutkha and Pan Masala cannot be proceeded under the FSSAI. Tobacco is covered under the COTA (Cigarettes and other Tobacco Products Act, 2003) 9.In the light of the above, this Court is constrained to quash the proceedings. Accordingly, the proceedings initiated against the petitioners in C.C.No.9 of 2014 on the file of the Judicial Magistrate Court, Ambasamudram, is hereby quashed and the Criminal Original Petition is allowed. Consequently, the connected miscellaneous petition is closed. However, it is made clear that the Order will not stand in the way the Appropriate Authority to take action under COTA (Cigarettes and other Tobacco Products Act, 2003)" This Order was followed in 2017 (4) CTC 149 (Jayavilas Tobacco Traders LLP, Vs. The Designated Officer). 7. Both these decisions came up for consideration before the Hon'ble First Bench in ....
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....ed food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any J. Anbazhagan vs 3 The Joint Director Indian Kanoon - http://indiankanoon.org/doc/95196559/24 substance, including water, used into the food during its manufacture, preparation or treatment. What is excluded is 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. 75. Significantly, in Godawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, reported in (2004) 7 SCC 68, the Supreme Court observed: ...... Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003. 76. The Prevention of Food Adulteration Act, 1954 has been repealed and replaced by the Food Safety Act. The definition of food in Section 3(j) of the Food Safet....
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....oon - http://indiankanoon.org/doc/95196559/ 25 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" which is in the widest possible terms. The definition of "food" under section 2(v) of the PFA Act was narrower than the definition of food under Food Safety Act, still the Supreme Court in Ghodawat case held that pan masala and gutka were "food" within the meaning of PFA Act. The very fact that the petitioners themselves had obtained licences under the PFA Act and have also obtained licences under the Food Safety Act, 2006 is sufficient to estop them from raising the contention that gutka and pan masala do not fall within the definition of "food" under the Food Safety Act, 2006." 81. We agree with the view of the learned Single Bench of the Bombay High Court that gutkha and pan masala are food within the meaning of the Food Safety Act. Gutkha also being a tobacco product might be governed by the provisions of the COTA. COTA deals with regulation of cigarettes or other tobacco products. The Food Safety Act is ....
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....entrusting the investigation of the crime in question to C.B.I. But then, the petitioner before the Hon'ble Supreme Court namely, E. Siva Kumar who was named as an accused in the F.I.R, was on deputation as Food Safety Officer in the Food Safety and Drug Administration Department, Ministry of Health. The very first paragraph refers to the "illegal manufacture and sale of Gutkha and Pan Masala containing tobacco and Nicotine". The dismissal of the SLP was not by a non speaking order. It refers to the facts of the case and is a speaking order. Therefore this Court can proceed on the premise that the decision of the Hon'ble First Bench in Anbalagan case has been approved by the Hon'ble Supreme Court in E. Sivakumar case. In fact, the editorial note made in the web edition of SCC online also says so. Still there may be some controversy as to whether, the Hon'ble Supreme Court has given its seal of approval to the finding of the Hon'ble First Bench with regard to tobacco being a food product falling under Food Safety and Standards Act, 2006. But then, there cannot be any dispute about the fact that as on date, as far as the State of Tamil Nadu is concerned, the posit....
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....order dated 23.09.2016 in Transfer Case (Civil) No.1 of 2010, which reads as follows:- "Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety and Standards Act, 2006." 13. The Commissioner of the Food Safety has issued a notification dated 23.05.2018 published in the Tamil Nadu Government Gazette No.184, dated 23.05.2018. It reads as follows: "Now therefore, in exercise of the powers conferred by clause (a) of sub-section (2) of Section 30 of the Food Safety and Standards Act, 2006 (Central Act 34 of 2006), the Commissioner of Food Safety of the State of Tamil Nadu, in the interest of public health, hereby prohibits the manufacture, storage, transport, distribution or sale of all food products chewable or otherwise which is either flavoured or scented or mixed with any of the said additives, and whether going by the name or form of gutkha, panmasala, flavoured or scented food products o....