Naya Bans Sarv Vyapar Association ... vs Union Of India & Ors.
2012 Latest Caselaw 6549 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Date of decision: 9th November, 2012
+                                   W.P.(C) No.7292/2011
       NAYA BANS SARV VYAPAR
       ASSOCIATION (REGD.)                            ..... Petitioner
                     Through: Ms. Anusuya Salwan with Mr. Vikas Sood,
                              Mr. Kunal Kohli & Ms. Renuka Arora,
                              Advs.
                                      Versus
       UNION OF INDIA & ORS.                            ..... Respondents

Through: Mr. Sunil Kumar & Mr. Ranjit Singh, Advs.

for R-1.

Mr. N. Waziri with Ms. Neha Kapoor Khanna, Advs. for R-2 GNCTD.

Mr. Madhurendra Sharma along with Mr. Rajiv Mishra and Mr. Rajiv Katian, Advs.

                               for the applicant / Impleader/ World Lung
                               Foundation
                                       AND
+                                   W.P.(C) No.4392/2012
       NAYA BANS SARV VYAPAR
       ASSOCIATION (REGD.)                            ..... Petitioner
                     Through: Ms. Anusuya Salwan with Mr. Vikas Sood,
                              Mr. Kunal Kohli & Ms. Renuka Arora,
                              Advs.
                                      Versus
       UNION OF INDIA & ORS.                           ..... Respondents
                     Through: Mr. Sunil Kumar & Mr. Ranjit Singh, Advs.
                              for R-1.
                              Mr. Madhurendra Sharma along with Mr.
                              Rajiv Mishra and Mr. Rajiv Katian, Advs.
                              for the applicant / Impleader/ World Lung
                              Foundation
                              Mr. N. Waziri with Ms. Neha Kapoor
                              Khanna, Advs. for R-2 GNCTD.

 CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J

1. The petitioner, an Association of wholesellers of tobacco and tobacco

products, having their shops / establishments at Naya Bans area at Fatehpuri,

Chandni Chowk, Delhi, has instituted these two petitions challenging the

provisions of the Cigarettes and Other Tobacco Products (Prohibition of

Advertisement & Regulation of Trade and Commerce, Production, Supply

and Distribution) Act, 2003 (COTPA) and of the Delhi Prohibition of

Smoking and Non-smokers Health Protection Act, 1996 (Prohibition Act)

respectively, to the extent they prohibit even wholesale of cigarette(s) or any

other tobacco products within a radius of 100 yards of any educational

institution, on the following grounds:

(i) that the said market at Naya Bans is the only wholesale market

of tobacco and tobacco products in Delhi and in existence since

the year 1925;

(ii) that the members of the petitioner Association have been

carrying on the wholesale business in tobacco for generations;

(iii) that the customers of the members of the petitioner Association

are the large and small retailers, distributors etc. from all over

India, who make bulk purchases and who in turn either sell the

products to the end-users themselves or through other retailers -

the end-users of the product never approach the said market as

small quantity or open / loose packets are not sold therein;

(iv) that the members of the petitioner Association are registered

with the Department of Sales Tax and have huge turnovers due

to large volumes and have also obtained the licences for

carrying on the said business;

(v) that though the purport of the legislations, as enumerated in the

Statement of Objects and Reasons is to ban sale / reduce /

control sale of cigarettes, tobacco and tobacco products to

children admitted in schools but the legislations have also

included within their ambit wholesellers when such wholesale

outlets are not intended to and do not retail or sell the said

products to consumers thereof - that prohibition of wholesale

business also within the vicinity of educational institutions is

contrary to the basic structure of the said legislations;

(vi) that the business activity of the members of the petitioner can

thus cause no harm to the children studying in the educational

institutions;

(vii) that the Acts aforesaid, in not differentiating between retail

sellers and the wholesellers of tobacco and tobacco products,

are arbitrary and in denial of right of livelihood of the members

of the petitioner Association;

(viii) that the intent behind the legislations aforesaid is to reduce

consumption of cigarette and tobacco products but even if the

establishments / shops of the members of the petitioner are

shifted to another location beyond the radius of 100 yards from

an educational institution, it would in no manner affect the

consumption of tobacco and tobacco products;

(ix) that there is no rationale in clubbing wholesellers and retailers

together for the purpose of prohibiting sale of tobacco and

tobacco products within a radius of 100 yards from an

educational institution;

(x) that the same unreasonably restricts the fundamental right to

trade, of the members of the petitioner Association, under

Article 19(1)(g) of the Constitution of India; and

(xi) that the legislations suffer from the vice of unintelligible

classification bearing no nexus with the objectives sought to be

achieved therefrom.

2. The cause of action for the petitions accrued to the petitioners when in

enforcement of the aforesaid Acts, notices were issued to the members of the

petitioner Association to stop carrying on their business aforesaid from their

establishments within the prohibited radius of educational institutions.

3. Notices of the petitions were issued and vide interim order dated

05.10.2011 in W.P.(C) No.7292/2011 (challenging the provisions of

COTPA), action threatened against the members of the petitioner

Association was restrained and the said order has continued in operation till

date.

4. Counter affidavit has been filed by the Ministry of Health & Family

Welfare, Government of India as well as by the Delhi Police in W.P.(C)

No.7292/2011 and to which rejoinder has been filed. Applications for

impleadment / intervention in both the writ petitions have been filed by

World Lung Foundation (South Asia) opposing the petitions and pleadings

in which applications have also been completed. Though no formal order

allowing impleadment / intervention was made but the counsel for the

applicant has also been heard in opposition to the petitions.

5. The counsel for the petitioner has during the hearing made the same

arguments as already noted above and has further offered an undertaking on

behalf of members of the petitioner Association to limit their business hours

to beyond school hours. It is further contended that the Prohibition Act

takes within its ambit even storage of tobacco and tobacco products within

the said radius. Reference is made to Paras No.57 and 63 of Godawat Pan

Masala Products I.P. Ltd. Vs. Union of India (2004) 7 SCC 68 to urge the

need to read down the prohibition provided for in the said Acts as not

including prohibition on wholesale and reliance is placed on Anuj Garg Vs.

Hotel Association of India (2008) 3 SCC 1 to contend that the operation of

the law has to be limited to subserve the purpose which it intends to achieve

and not beyond that.

6. The counsel for the Delhi Government has contended that challenge to

a legislation can be either on the ground of lack of legislative competence or

on the ground of violation of fundamental rights and neither of which

grounds is pleaded or urged. Reliance in this regard is placed on Public

Services Tribunal Bar Association Vs. State of U.P. AIR 2003 SC 1115.

Attention is also invited to the Preamble of the legislations in question.

7. The counsel for the applicant World Lung Foundation (South Asia)

has argued that there is no distinction between a wholeseller and a retailer

and that there is no right to deal in noxious substances and the same is

always subject to conditions which may be imposed while granting the

privilege to deal therein. Reliance is placed on State of Punjab Vs. Devans

Modern Breweries Ltd. (2004) 11 SCC 26. A copy of the extracts of the

report on Tobacco Control in India published by the Ministry of Health and

Family Welfare, Government of India is also handed over to show that the

most susceptible time for initiation of tobacco use in India is during

adolescence and early adulthood i.e. in the age group of 15-24 years and

majority of users start using tobacco before the age of 18 years, some even

start as young as 10 years; that such early age of initiation points to an

urgent need to plan effective interventions for this vulnerable age group and

that one of the major goals of any tobacco control effort is to prevent people

from starting or experimenting with tobacco and the target group should be

the youth who are primarily non-users and are vulnerable as the industry

especially targets them.

8. Though the counsel for the applicant has also controverted that the

wholesellers are not retailing tobacco and tobacco products but we are called

upon to adjudicate the legal question and if it were to be held that the

prohibition does not apply to wholesellers, the dispute whether a particular

establishment is wholeselling or retailing is a question of fact to be decided

on case to case basis.

9. Though there is some controversy, with the counsel for the petitioner

stating that there is only one school within the prohibited radius of the said

market and the counsel for the applicant stating that there are three schools

but in our view the same is irrelevant for the present purposes. Similarly the

contention of the counsel for the applicant that there were only five

wholesale establishments earlier in the market and which under the garb of

interim order have increased to nineteen, also need not be dealt upon.

10. The counsel for the UOI in his written submissions has urged that the

presence of a wholesale shop near educational institution will not only

increase the propensity and susceptibility of minors to tobacco products but

also in large quantities; that if a distinction were to be made out between

wholesellers and retailers, it would lead to a spate of litigation on whether a

particular shop is carrying on wholesale or retail sale of tobacco or tobacco

products; that the laws aforesaid have been enacted pursuant to the

resolution passed in the 39th and 43rd World Health Assembly to inter alia

ensure effective protection to non-smokers from involuntary exposure to

tobacco smoke and to protect children and young people from being

addicted to the use of tobacco which is injurious to health; and lastly that,

these are beneficial legislations enacted in the interest of public at large.

Reference is made to:

(a) Judgment/order dated 3rd June, 2011 of the High Court of

Jammu & Kashmir in OWP (PIL) No.406/2010 titled J&K

Voluntary Health & Dev. Association Vs. State.

(b) World Lung Foundation South Asia Vs. Ministry of Health &

Family Welfare MANU/DE/2692/2012.

(c) Judgment dated 29th March, 2011 of the Karnataka High Court

in W.P.(C) No.17958/2009 titled Cancer Patients Aid

Association Vs. State of Karnataka.

(d) Judgment dated 26th March, 2012 of the Kerala High Court in

W.P.(C) No.38513/2010 titled Kerala Voluntary Health

Services Vs. Union of India.

and it is contended that the directions sought in the instant petitions are

contrary thereto.

11. Though the High Court of Allahabad in Varshney General Sales v.

State of U.P. MANU/UP/0148/1994 has held that tobacco could not be

placed at par with liquor, as hazardous to health, and to trade wherein

there could be said to be no fundamental right and which aspect remained

undealt in the appeal therefrom reported as Godfrey Phillips India Ltd. v.

State of U.P. (2005) 2 SCC 515 but over the time the hazards of tobacco

seem to have overtaken the hazards of liquor, leading to the legislation

such as COTPA. The Supreme Court in Khoday Distilleries Ltd. v. State

of Karnataka (1995) 1 SCC 574 observed that what may not be

considered harmful today, may be considered so tomorrow and what

articles and goods should be allowed to be produced, possessed, sold and

consumed, is to be left to the judgment of the legislative and executive

wisdom. Similarly, in Madras City Wine Merchants' Assn. v. State of

T.N. (1994) 5 SCC 509 and in Ramesh Chandra Kachardas Porwal v.

State of Maharashtra (1981) 2 SCC 722 it was held that nothing can be

expected to remain static in this changing world of ours and a market

which is suitable and conveniently located today may be found to be

unsuitable and inconvenient tomorrow on account of the development,

congestion or for a variety of other reasons. The Parliament, in the year

2003, while enacting COTPA, in the Statement of Objects and Reasons

thereof noted that tobacco is responsible for an estimated eight lakh

deaths annually in the country, that the treatment of tobacco related

diseases and loss of productivity caused therefrom was costing the

country almost `13,500 crores annually, offsetting completely the

revenue and employment generated by tobacco industry and described the

objective of COTPA as to prevent the sale of tobacco products to minors

and to protect them from becoming victims of misleading advertisements,

all to achieve a healthier lifestyle and protection of right to life enshrined

in the Constitution. Undoubtedly, the Supreme Court in Godawat Pan

Masala Products I.P. Ltd. (supra) maintained that the

legislature/government having chosen not to ban the sale of tobacco

products except to minors, trade in tobacco could not be classified as res

extra commercium i.e. a business in crime, but the principles laid down in

Cooverjee B. Bharucha v. Excise Commr., Ajmer AIR 1954 SC 220 and

P.N. Krishna Lal v. Govt. of Kerala 1995 Supp (2) SCC 187, that there is

no fundamental right to trade in dangerous and noxious substances,

would nevertheless apply to tobacco which has now been universally

accepted as a major public health hazard.

12. It is in the said light that we proceed to adjudge the challenge. The

only challenge, as aforesaid, by the petitioner is on the ground of the wholesellers

and the retailers of tobacco and tobacco products not falling in the same

class and clubbing thereof in the ban on sale of tobacco and tobacco products to

students of educational institutions being arbitrary and irrational.

13. However, the provisions under challenge cannot be read in

isolation and have to necessarily take their colour from the legislations of

which they are a part. The said legislations are not intended merely

against sale of tobacco and tobacco products to students in the vicinity of

their educational institutions but also take within their ambit restrictions

on places where one can smoke and advertisement or other ways of

promoting smoking or sale of cigarettes to minors etc. We are thus unable

to accept the narrow and constricted aim and intent which the petitioner

would impute to the provisions under challenge. The prohibition on sale

of cigarette or tobacco products in close vicinity of educational

institutions is found to have the larger objective of reducing the exposure

of the students of the said educational institutions to cigarette or tobacco

products. The question which thus arises is whether in the said light

wholesellers and retailers can be said to be differently placed or the

provisions under challenge being unreasonable and arbitrary.

14. Article 14 is not a voodoo which visits with invalidation every

executive or legislative fusion of things or categories where there are no

pronounced inequalities. Mathematical equality is not the touchstone of

Constitutionality (Krishna Iyer, J. in State of Kerala v. Kumari T.P.

Roshana (1979) 1 SCC 572). In Jalan Trading Co. Pvt. Ltd. v. Mill

Mazdoor Sabha AIR 1967 SC 691 it was held that invalidity of legislation is

not established by merely finding faults with the scheme adopted by the

Legislature to achieve the purpose it has in view and such scheme is not

liable to be struck down as discriminatory unless there is simultaneously

absence of a rational relation to the object intended to be achieved by the

law.

15. The presence of wholesellers of tobacco and tobacco products within

the prohibited radius would definitely expose the students of educational

institutions to the sight and also probably the aroma of tobacco. It has been

famously said that attraction to tobacco is largely because of its aroma and

addiction follows. The lure of the aroma of tobacco is such that even the

female gender, traditionally not known as consumers of tobacco, in our

country, have not been spared. It is such lure which leads to the adolescents,

in their bravado, to tobacco and tobacco products. Sensory cues

accompanying cigarette smoking contribute significantly to enticement

associated therewith.

16. The presence, even of a wholesale shop of tobacco / tobacco products

next door to an educational institution will certainly have the propensity of

reminding the students thereof, day in and day out, of the availability of

tobacco and will also bring, literally to their door, traders in tobacco. The

bringing in and bringing out of tobacco and tobacco products from said

shops / establishments in the sight of the students, will also expose them to

the easy accessibility thereto and may also plant a seed in their adolescent

minds as to the consumption thereof. Even if it were to be held that the said

shops / establishments will not display on their façade any advertisements of

the products they are dealing in, but would certainly display their names and

description of their trade and a child learning to read would learn to read the

spelling of cigarette, tobacco etc. We for this reason also do not find any

merit in the plea raised.

17. We have enquired from the counsel for the petitioner whether there is

any definition of wholesale and whether there is any condition in the

licences issued to the members of the petitioner Association as to the

minimum quantity of each transaction. We are told that there is none.

Wholesale, in the context of cigarettes can thus also be interpreted as sale of

a carton containing 20 packets of cigarettes instead of only a packet of

cigarette or loose cigarettes. Experience of life shows that the consumers of

tobacco as of any other product of daily use, often in their zeal to acquire at

a lesser cost, visit the wholesale markets. The consumer of a packet or more

of cigarettes in a day is unlikely to acquire / purchase cigarettes in individual

packets and more likely to acquire carton if not cartons of cigarettes in one

go. Once it is found that there is nothing which demarcates a wholeseller,

the argument of the petitioner dissipates in thin air, if not smoke!

18. Patanjali Sastri, C.J. in State of Madras v. V.G. Row AIR 1952 SC

196 had observed that in applying the test of reasonableness, the nature of

the right alleged to have been infringed, the underlying purpose of the

restrictions imposed, the extent and urgency of the evil sought to be

remedied thereby, the disproportion of the imposition, the prevailing

conditions at the time, should all enter into the judicial verdict. The

reasonableness of a restriction depends upon the values of life in a society

and the magnitude of the evil and the urgency of the reform may require

drastic remedies. Similarly in Jyoti Pershad v. Union Territory of Delhi

AIR 1961 SC 1602 it was held that in adjudging the validity of the

restriction the Court has necessarily to approach the question from the point

of view of the social interest which the State action intends to promote and

the State should not be hampered by the Court in dealing with evils.

19. Article 47 of the Constitution of India in Part IV titled "Directive

Principles of State Policy" makes it the primary duty of the State to raise

the level of nutrition and the standard of living of its people and the

improvement of public health and in particular to endeavor to bring about

prohibition of the consumption of intoxicating drinks and drugs which are

injurious to health. Article 37 requires the State to, in governance of the

country and in making laws abide by the principles contained in the same

Part. The Supreme Court in U.P. SEB v. Hari Shankar Jain (1978) 4

SCC 16 held that the said command of the Constitution must be ever

present in the minds of Judges when interpreting statutes.

20. Furtherance of public good is written over the face of both the statutes

(provisions whereof are under challenge) from beginning to end as their

animating motive. Cardozo, J. in Williams v. Mayor and City Council Of

Baltimore 289 U.S. 36 (1933) held that it is not the function of a Court to

determine whether the public policy that finds expression in legislation of

this order is well or ill conceived and within the field where men of reason

may reasonably differ, the legislature must have its way. Time with its tides

brings new conditions, which must be cared for by new laws even if they

affect the members of a class and only in cases of plain abuse will the Courts

interfere. For whatsoever reason, the world till today is not ready for a

complete ban on tobacco and tobacco products. However it cannot be

forgotten that the small steps forward which have been taken, have proved to

be a huge success. No more can the loiterers in public places smoke and

have to go to a safe haven to their inconvenience for a smoke and which is

perceived as a stigma and brings a smoker to the limelight and much to his

chagrin. The same undoubtedly has the potential of reducing the intake. We

are proud to say that the society today has identified and accepted the evils

of tobacco consumption and this Court would refuse to become a clog in the

remedies being taken at all levels to attempt to save hitherto unaffected from

the clutches of the evil.

21. The Supreme Court in R.K. Garg v. Union of India (1981) 4 SCC 675

observed that while considering the Constitutional validity of a statute said

to be violative of Article 14, laws relating to economic activities should be

viewed with greater latitude than laws touching civil rights such as freedom

of speech, religion etc. The observation of Holmes J., that the legislature

should be allowed some play in the joints, because it has to deal with

complex problems which do not admit of solution through any doctrinaire or

strait-jacket formula was quoted with approval. We may respectfully add

that what was held qua economic matters equally applies to socially

beneficial legislations as the laws under challenge in these petitions are. The

primacy of public over private interests vis-à-vis wholesellers and retailers,

though in a different context was upheld in Mohd. Murtaza v. State of

Assam (2011) 12 SCC 413. It was further held that though the right to do

business is a fundamental right guaranteed under Article 19(1)(g) of the

Constitution but the right is subject to reasonable restrictions under Article

19(6).

22. The Court of appeal of U.K. in Regina (Sinclair Collis Ltd.) Vs.

Secretary of State for Health (2012) Q.B. 394 was concerned with the ban

imposed by the Protection from Tobacco (Sales from Vending Machines)

(England) Regulations, 2010 framed under the Health Act, 2009 on sale of

tobacco from automatic vending machines. The Court observed that

children are particularly vulnerable to addiction of smoking and are often

unable to comprehend the dangers they are creating for themselves and that

the society owes them some obligation to ensure that so far as possible they

are protected. It was also noticed that inspite of ban on, tobacco advertising,

inclusion of pictorial warnings on tobacco packs to raise awareness of risks

of smoking and increasing tax to make tobacco products unaffordable,

young people are continuing to take up smoking for a number of reasons

including the way tobacco products are promoted. The Court further held

that in testing the validity of a community law, the principle of

proportionality i.e. of pitting the lawfulness of the prohibition of economic

activity against the appropriateness and necessity of such measures to

achieve the objective pursued by the legislation in question and whether

there is any less effective means of achieving the objective required by the

community law, is to be applied. The Court concluded that the prohibition

on sale of tobacco from automatic vending machines had the potential of

making cigarettes less and less available to under age purchasers. It was

further concluded that if cigarettes are less visible and less available,

underage purchases will fall. It was yet further observed that children are

attracted to cigarette by the fact that they can see them in machines and

elsewhere and they will be less attracted if they can no longer see them

sitting there. It was held that fewer children and indeed adults will have

access to tobacco if one source of supply i.e. automatic vending machines is

removed.

23. We are entirely in agreement with the reasoning aforesaid and find

the same to be applicable on all fours to the prohibition in the present

case also. Sale of cigarettes and other tobacco products, whether in

wholesale or in retail, near the educational institution has the potential of

attracting the students thereof and will definitely reduce the access to

tobacco. The benefits from the said prohibition far outweigh the harm or

loss to the handful of wholesellers.

24. In the facts aforesaid, we find equal treatment of retailers and

wholesellers to be having a rational relation to the object of the two

legislations and for that matter, other legislations on the subject i.e. to as

far as possible prevent exposure of the vulnerable group to tobacco and

tobacco products. Moreover, even if there were to be any merit in the

contentions of the petitioner with the possibility of students of

educational institutions being unaffected by the presence of wholesellers

of tobacco and tobacco products within the prohibited radius, we,

applying the precautionary principle would rather err on the side of the

society at large than on the side of a handful of members of the petitioner.

When a general evil is sought to be suppressed, some martyrs may have

to suffer, for the legislature cannot easily make meticulous exceptions

and has to proceed on broad categorizations.

25. We therefore dismiss these petitions with costs of `20,000/- each

payable to the Union of India and Government of NCT of Delhi

respectively and to be utilized in appropriate anti-tobacco initiatives.

RAJIV SAHAI ENDLAW, J

CHIEF JUSTICE NOVEMBER 09, 2012 „gsr‟