Bombay High Court
Dadasaheb Kushabapu Pawar vs The State Of Maharashtra And Others on 21 December, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2023:BHC-AUG:27068-DB
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL PUBLIC INTEREST LITIGATION NO.2 OF 2021
Dadasaheb Kushabapu Pawar,
Age 41 yrs., Occ. Agri.,
R/o At Post Tambhere, Kolhar Road,
Pawar Vasti, Tambhere,
Tq. Rahuri, Dist. Ahmednagar.
... Appellant
... Versus ...
1 The State of Maharashtra
Through it's Principal Secretary,
Home Department,
Mantralaya, Mumbai - 32.
2 The Principal Secretary,
Food Civil Supplies and Consumer
Protection Department,
Mantralaya, Mumbai - 32.
3 The Director General of Police,
Police Mukhyalaya,
Mumbai.
4 The Special Inspector General of Police,
Nashik Range, Nashik.
5 The Superintendent of Police,
Ahmednagar, Dist. Ahmednagar.
6 The Commissioner,
Food Safety and Drugs Administration,
Survey No.341, Bandra - Kurla Complex,
Bandra (East), Mumbai - 400 051.
... Respondents
2 Cri.PIL_2_2021_Jd
...
Mr. A.S. Kale, Advocate h/f Talekar and Associates for petitioner
Mr. D.R. Kale, PP for respondents/State
...
CORAM : SMT. VIBHA KANKANWADI &
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 02nd NOVEMBER, 2023
PRONOUNCED ON : 21st DECEMBER, 2023
JUDGMENT :
( PER : SMT. VIBHA KANKANWADI, J.)
1 Present Public Interest Litigation has been filed under Rule 4(e)
of the Bombay High Court Public Interest Litigation Rules, 2010 together
with Articles 12, 14, 21 and 226 of the Constitution of India for following
prayers :
"A) To direct the respondents to constitute a Special Unit/Special
Task Force in every district to stop manufacture, storage, distribution,
transport or sale of tobacco and its allied products which is either
flavoured, scented or mixed with any of the additives, by issuing a
writ of mandamus, or any other appropriate writ, order or direction,
as the case may be;
B) To direct the respondents to strictly follow the guidelines of the
State Government in raiding/seizing and initiating criminal
prosecution for manufacture, storage, distribution, transport or sale of
3 Cri.PIL_2_2021_Jd
tobacco and allied banned products by issuing a writ of mandamus, or
any other appropriate writ, order or direction, as the case may be;
C) To direct the respondents to create helpline numbers in every
districts to complain about manufacture, storage, distribution,
transport or sale of tobacco which is either flavoured, scented or
mixed with any of the additives by issuing a writ of mandamus, or
any other appropriate writ, order or direction, as the case may be;
D) To direct the respondents to strictly follow the guidelines of the
State Government issued in GR dated 29.05.2020 prohibiting
consumption and spitting of tobacco, supari, pan masala, gutkha etc.
in public places to prevent the spread of epidemic diseases by issuing
a writ of mandamus, or any other appropriate writ, order or direction,
as the case may be;
E) To direct the respondents to initiate criminal as well as
departmental action against the police officers who are
raiding/seizing the tobacco and allied banned products contrary to
guidelines issued by the State Government by issuing a writ of
mandamus, or any other appropriate writ, order or direction, as the
case may be;
F) To direct the respondents to undertake strict action against
erring police officers and others involved in gifting and raising funds/
money for construction of police stations/outposts including
suspension, termination and initiation of criminal proceedings, by
issuing a writ of mandamus, or any other appropriate writ, order or
direction, as the case may be;
4 Cri.PIL_2_2021_Jd
G) To grant any other relief to which the petitioner is entitled to;
H) To direct the State Government to increase the lab testing
infrastructure and all the labs to have/obtain NABL accreditation to
facilitate precise testing by issuing writ of mandamus or any other
writ or directions as the case may be;
I) To direct the State Government to ensure that the existing food
testing laboratories are well equipped with the technical persons and
testing facilities and submit its report pending hearing and final
disposal of this petition."
2 The petitioner contends that he has filed several writ petitions in
the nature of Public Interest Litigation, as the subjects on which he had filed
the petitions were concerning the interest of the public at large. He is neither
a politician nor belongs to any political party, but with an intention that the
menace of tobacco should be eliminated as it is hazardous to the health of
the public, especially the addiction to chewing of gutkha and pan masala
causes Acute Hyper magnesia, cardiac arrest, oral sub mucous fibrosis, oral
cancer, Leukoplakia, Esophageal cancer, stomach cancer, metabolic
abnormalities, reproductive health, gastro intestinal and respiratory diseases,
he has filed the present petition. It has been submitted that the State has
enacted the Food Safety and Standards Act, 2006 for prevention of
deterioration of citizens heath. The Central as well as the State Government
5 Cri.PIL_2_2021_Jd
and the Food Safety Commissioner are required to follow the principles under
Chapter III of Food Safety and Standards Act, 2006 (hereinafter referred to as
"FSS Act". The FSS Act Regulation 2.3.4 regulates food product not to
contain any substance which may be injuries to health. Tobacco and nicotine
shall not be used as an ingredient in any food product. Chewing tobacco is
listed as food at item No.40 in the table under sub regulation 2.3.1 i.e.
restriction on the use of insecticides under Regulation 2.3. Hon'ble Supreme
Court as well as this Court in catena of judgments have held that chewing
tobacco is food within the meaning of Section 3(j) of FSS Act. Taking into
consideration hazardous effects of gutkha and pan masala, the Food Safety
Commissioner, Maharashtra State prohibited manufacture, storage,
distribution, transport or sale of tobacco and its allied products by issuing
circular/order dated 15.07.2020 for a period of one year. Despite there being
prohibitory orders the manufacture, storage, distribution, transport or sale of
tobacco and its allied products are taking place. Despite there being specific
directions to initiate criminal proceedings jointly by police and food safety
officers, the police officers are independently without the aid of food safety
officers initiating criminal actions against the persons who are engaged in
manufacture, storage, distribution, transport or sale of tobacco and its allied
products in the State. The petitioner alleges that these actions are only
6 Cri.PIL_2_2021_Jd
initiated to extort money from the accused persons and not to prevent actual
activities. Only for the name sake some First Information Reports are
registered by the police contrary to law. In fact, the Government ought to
have established special units in every district to prevent manufacture,
storage, distribution, transport or sale of tobacco and its allied products. In
the pandemic situation, the situation has worsened. In the outbreak of
COVID-19 pandemic the State Government issued Resolution dated
29.05.2020 prohibiting consumption and spitting of tobacco, supari, pan
masala, gutkha etc. in public places to prevent the spread of epidemic
diseases. However, such circulars are not implemented and, therefore,
necessary directions are required to be given. By way of amendment it has
been contended that in Swami Achyutanand Tirth and others vs. Union of
India [(2016) 9 SCC 699] it was directed that the State Food Safety
Authorities should ensure that there should be adequate lab testing
infrastructure and all the labs should obtain NABL accreditation to facilitate
precise testing. As on 31.03.2019 the Food Authority had network of 269
laboratories comprising of 251 laboratories for primary testing, of which 175
laboratories are recognized and notified under Section 43(1) of FSS Act and
18 laboratories for appellate (referral) testing are recognized and notified
under Section 43(2) of the FSS Act. These numbers will have to be increased
7 Cri.PIL_2_2021_Jd
so that the testing is done within reasonable time and the reports are
received. The World Health Organization has also taken a serious note of
such habit and the impact of such habits on the youths. Sizable numbers of
persons are suffering from oral cancer due to chewing of tobacco and allied
products. With these facts the above said prayers have been made.
3 After the issuance of notice the first affidavit-in-reply is filed by
Uday Shankar Vanjari, the Joint Commissioner (Food), Food and Drugs
Administration, Aurangabad on behalf of respondent No.6. It has been
contended that the various provisions of FSS Act are being implemented with
utmost sincerity and actions are taken in case of violation of any provisions of
the Act. Proper surveillance and inspections, collection of samples and
seizures etc. are periodically made. Since the year 2012 the Food Safety
Commissioner, Maharashtra has prohibited the manufacture, storage,
distribution, transport (in and through Maharashtra State) or sale of tobacco
and areca nut (betel nut) which is either flavoured, scented or mixed with
any of the said additives or whether going by the name or form of gutkha,
pan masala, flavoured/scented tobacco, flavoured/scented supari,
manufactured chewing tobacco with additives, kharra or otherwise by
whatsoever name called, whether packed or unpacked and/or sold as one
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product or though packed as separate products, sold or distributed in such a
manner so as to easily facilitate mixing by the consumer for its consumption
in the whole State of Maharashtra. Every year the notification is renewed.
The dates have been given as to how much seizure has been effected in 6496
First Information Reports registered in the Police Stations and 386 criminal
cases filed in Courts of law throughout the State. Special squad has been also
deployed. Taking the help of decision in State of Maharashtra vs. Sayyed
Hassan Sayyed Subhan and others in Criminal Appeal No.1195 of 2018
(arising out of Special Leave Petition (Criminal) No.4475 of 2016) decided
on 20.09.2018 by Hon'ble Supreme Court it is said that the Police
Department can initiate action under Indian Penal Code at their own level.
The toll numbers are also given as well as E-mail ID to lodge complaints.
Documents have been annexed along with the affidavit-in-reply. The second
affidavit-in-reply is on behalf of respondent Nos.1 and 3 which is filed by
Aparna Sudhakar Gitay, the Deputy Commissioner of Police, Aurangabad. It
has been stated that along with FSS Act since such ingredients would be
attracting, Section 328 of the Indian Penal Code which is cognizable and non
bailable, those are invoked and the police can take cognizance and effect
seizure. Even the Home Department has issued Government Resolution
dated 17.09.2021 as regards applicability of Section 328 of the Indian Penal
9 Cri.PIL_2_2021_Jd
Code and other instructions have been issued.
4 Again Uday Shankar Vanjari, the Joint Commissioner (Food),
Food and Drugs Administration, Aurangabad by the further affidavit
clarifying the typographical mistakes and further explained that even general
public can register their complaint Online and during the period 07.02.2022
to 03.03.2022 in all 73 complaints were received either on Landline or by E-
mail or Online.
5 Again the Deputy Commissioner of Police, Aurangabad Ms.
Aparna Sudhakar Gitay has filed affidavit in compliance with order passed by
this Court on 28.07.2022. Again the same facts are reiterated, but it is said
that 30 check posts are in operation in entire State. Personnel are deployed
at said 30 check posts for checking vehicles at the entry point for any
violation of law related to such contraband. Again the data has been given
and it is submitted that in all 2413 cases were registered in the State of
Maharashtra in 2012 and 1657 cases were registered till June, 2023.
Contraband worth Rs.165 crores approximately has been seized. The
destruction of the contraband is undertaken by the Police Department as well
as Food and Drugs Administration.
10 Cri.PIL_2_2021_Jd
6 Thereafter, on behalf of respondent No.6 Sanjay Bhagwantrao
Naragude, the Joint Commissioner, Food and Drugs Administration, Nashik
Division, Nashik has filed affidavit in view of order passed by this Court on
26.07.2023. It was with a direction to file affidavit on the point that how
many laboratories are sanctioned, how many are functioning, which are able
to test the contraband articles. It has been contended that there are 17
laboratories which are functional and out of those three are exclusively
controlled and owned by Food and Drugs Department, which are located in
Mumbai, Nagpur and Aurangabad respectively. Remaining 14 laboratories
are under the Public Heath Department and those are testing the food
samples and analyzing the food, that is, sent to them. In three laboratories
owned and run by the Food Department there are nine Analysts and three
supporting staff and three Food Analysts are functioning. It is also submitted
that there are no exclusive check posts which are handled by Food and Drugs
Department but the check posts are under the Police Department or Road
Transport Authorities, who intercepts the vehicles and take search operation.
Further, affidavit of the same authority explained that procedure and
destruction of prohibited articles is not given in the Act and, therefore, it is
controlled by the Commissioner of Food Safety by issuing circular dated
15.12.2012. The date has been given to show as to how much raids have
11 Cri.PIL_2_2021_Jd
been conducted and how much articles with its price came to be seized and
how much is destroyed as per the law. The Food and Drugs Administration,
Maharashtra State has submitted a proposal of Public Private Partnership on
17.01.2023, which is the model for strengthening three laboratories owned
and run by the State Government. The State has signed an agreement with
Brihanmumbai Municipal Corporation Laboratory, Dadar for analysis of food
samples from Food and Drugs Administration, Maharashtra State. Food,
Safety and Standards Authority of India, New Delhi has allocated funds for
upgradation and strengthening of laboratories owned by Public Health
Department.
7 Heard learned Advocate Mr. A.S. Kale holding for Talekar and
Associates for the petitioner and learned PP Mr. D.R. Kale for
respondents/State.
8 In order to cut short, it can be stated that both sides have
assisted the Court in considering the point involved, what are the steps taken
up till now and how the public health is important. At this stage itself taking
into consideration the prayer clause we would like to say that the petitioner
has not produced any such evidence on record which would show that the
Police Department is taking actions against the persons who are engaged in
12 Cri.PIL_2_2021_Jd
manufacture, storage, distribution, transport or sale of tobacco and its allied
products only to extort money from the accused persons. It has not been
brought on record by way of any complaint data or any such document which
would show that there are allegations by such accused persons against the
police that there was an attempt to extort money from them. If at all there is
any such attempt, then they have a remedy within the four corners of law for
which no directions can be issued in a public interest litigation. Rather it
would be a private interest of the particular accused as no generalized
statement can be made. Therefore, no relief can be given as prayed in prayer
clause 'E' and 'F'. Hon'ble Supreme Court in Sayyed Hassan Sayyed Subhan
(supra) has come to the conclusion that the police have the authority to take
cognizance when the offence under Section 188, 272, 273 and 328 of the
Indian Penal Code are made out.
9 Now, turning towards the other prayer, certainly, Article 47 of the
Constitution of India casts a duty on the State though it is the article
providing for directive principles; yet, can take such actions or measures for
prevention of deterioration of health of the citizens. When we speak about
the other rights to every citizen, then good environment conditions and
measures for the improvement of the overall health of the every citizen can
13 Cri.PIL_2_2021_Jd
be said to be included in the articles which are already governing as
fundamental rights. Of course, it is with the other restrictions also and the
liberties and sometimes the development may be economic of the State as
well as individuals by way of providing employment may prevail over the
other. Any fundamental right is not unfettered but it comes with necessary
restrictions as well as corresponding duties. Under the said rights the State
would be entitled to issue necessary prohibitory orders for the upkeep of the
health of the general public. It is well known that the tobacco and the allied
products create harmful effects on the human. It invites various diseases if
consumed, in any of the other form. Here, in this petition, there is no
question of challenge to any Government Resolution, but this is a case
wherein issue has been raised how to implement those Government
Resolutions in a better manner. The respondents have no objection for the
better implementation of the various provisions of the Act and the circulars.
It was, therefore, impressed upon the respondents that this is not an
adversarial litigation.
10 Though prohibitory orders have been issued by issuing various
circulars by the Food Safety Commissioner; yet, certainly, it can be said that it
has not eliminated the manufacture, storage, distribution, transport or sale of
14 Cri.PIL_2_2021_Jd
tobacco and its allied products from the State of Maharashtra. In other
words, though there is circular; yet, violation of the said circulars/prohibitory
orders is seen from time to time. We do not find to take the help of the data
that has been produced, but certainly, taking into consideration the vast area
of the State, the offences which are reported appear to be meagre. The
petitioner has prayed for establishment of Special Task Force or Special
Squad/Unit for carrying out the activities/prohibitions as stated in the
prohibitory orders. It appears that seven region wise special squads have
been created, which is emerging by way of affidavit-in-reply, but it appears
that those are not functional. Certainly, when such special squad/unit has
been established region wise, then respondent No.1 should see that it is
functional and carries the activities as per the various orders and circulars
issued by Food and Drugs Administration, Maharashtra State. We would
leave it to the State - respondent No.1 as to what should be the composition
of the special squad. It is not necessary to direct that the State Government
authorities should follow the guidelines in respect of raid and seizure. We
presume that it is undertaken unless its violation is demonstrated. The third
prayer is in respect of creating helpline number in every district. The
helpline toll free number is already there, which appears to have been made
operational under the orders of this Court. It would depend upon the public
15 Cri.PIL_2_2021_Jd
to utilize the said number. We need not give any further directions as only
five complaints have been received on the said number. If public is not
utilizing it, then we cannot force it. The only thing we can advise is that all
the respondents to make that number public and periodically bring it to the
attention of the public at large that such toll free number exists for them to
make a complaint, if they want. Further prayer is in respect of directions to
the State Government to increase the lab testing infrastructure and all the
labs to have/obtain NABL accreditation to facilitate precise testing. Certainly,
it is the duty of the State Government to provide proper infrastructure to an
authority which has been created under an enactment. The purpose with
which the Food Safety and Standards Act came into force is to be achieved,
then definitely, it is for the State Government to provide proper infrastructure
in the form of laboratories, that too equipped with modern technology, so
that the testing is done within reasonable time and the reports are given,
otherwise it is our experience that the seized articles are sent for analysis and
due to the pendency those are not tested for months together and then the
purpose and the evidence may get lost or it may not connect the accused with
the crime. Further, taking into consideration the fact that the transport of
such contraband is to be prohibited, then the check points will have to be
increased and there should be better coordination between the Police
16 Cri.PIL_2_2021_Jd
Department, Regional Transport Office and the Food Authorities.
11 We may also note that some observations were given by this
Court in Vaman Raghunath Fallary and Sons and others vs. State of Goa and
another [2003 SCC OnLine Bom 465]. Those are required to be borne in
mind. Further, in the Three Judge Bench of the Hon'ble Supreme Court in
Union of India and others vs. Unicorn Industries [(2019) 10 SCC 575] takes
note of the fact that the public interest is the superior quality which can
override individual equality, wherein it has been held that - The withdrawal
of the exemption to the pan masala with tobacco and pan masala sans
tobacco is in the larger public interest. The State could not be compelled to
continue the exemption, though it was satisfied that it was not in the public
interest to do so. We hope and trust that the respondents would keep in
mind the said decisions.
12 For the reasons above stated, the petition deserves to be partly
allowed. Hence, following order.
ORDER
1 The Criminal Public Interest Litigation stands partly allowed.
17 Cri.PIL_2_2021_Jd
2 The Criminal Public Interest Litigation stands dismissed in
respect of prayer clause (B), (D), (E) and (F).
3 Following directions are issued to the respondents.
i) Respondent No.1 is directed to make the Special
Unit/Special Squad for the seven regions functional and the
constitution of the squad to be decided by the State
Government, which will implement the various provisions of
Food Safety and Standards Act and the circulars/orders issued
therein.
ii) All the respondents to make the helpline toll free number
public and bring it to the notice of the public periodically, so that
they can lodge report/complaint on the said toll free number.
iii) State Government may consider increasing of the number
of laboratories exclusively controlled and owned by the Food
and Drugs Department and further pursue the model for
strengthening those three laboratories as well as upcoming
laboratories of the State Government in view of the proposal of
Public Private Partnership by Food and Drugs Administration,
18 Cri.PIL_2_2021_Jd
Maharashtra on 17.01.2023.
iv) The State Government to provide appropriate
infrastructure including the manpower, especially the
technicians and the modern machines to the existing food
testing laboratories.
v) It would be appropriate to give period of six months to the
State Government to take steps in respect of establishment of
laboratories and the infrastructure.
4 The amount of Rs.25,000/- (Rupees Twenty Five Thousand only)
deposited by the petitioner in view of order dated 18.01.2021 be credited to
the High Court Legal Services Sub Committee, Aurangabad.
( ABHAY S. WAGHWASE, J. ) ( SMT. VIBHA KANKANWADI, J. )
agd
Signed by: Amol G. Donge
Designation: PA To Honourable Judge
Date: 22/12/2023 11:02:43
