Muhasin Babu Tpm vs State Of Kerala
2021 Latest Caselaw 13186 Ker

                                -1-

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                &
            THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
                     TH
    THURSDAY, THE 24    DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                       WP(C) NO. 12586 OF 2021
APPELLANT/S:

                MUHASIN BABU TPM,
                S/O. SAIDALIKUTTY, AGED 39 YRS,
                THONGIL PUTHIYA MALIYEKKAL, PAKARA,
                TANALOOR, TIRUR TALUK, MALAPPURAM DISTRICT.

                BY ADV SRI. C.M. MOHAMMED IQUABAL
                ANJALI G. KRISHNAN
                P. ABDUL NISHAD
                RAIHANATH T.H.

RESPONDENT/S:

       1        STATE OF KERALA
                REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT,
                GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.

       2        THE SECRETARY TO GOVERNMENT,
                HEALTH AND FAMILY WELFARE DEPARTMENT,
                GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

       3        THE SECRETARY TO GOVERNMENT,
                REVENUE DEPARTMENT,
                GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
                THIRUVANANTHAPURAM - 695 001.

                SRI. N MANOJ KUMAR, STATE ATTORNEY

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 12586 of 2021          -2-




                                                                    C. R.

                            JUDGMENT

Shaji P. Chaly, J.

This is a public interest writ petition filed by a person claiming

to be a social worker and a resident of Malappuram District.

According to the petitioner, he is an anti-tobacco activist and several

of his articles in that regard were published in the prominent

Malayalam dailies.

2. The subject issues raised arise under the provisions of the

Cigarettes and Other Tobacco Products (Prohibition of Advertisement

and Regulation of Trade and Commerce, Production, Supply and

Distribution) Act, 2003 (COTPA), hereinafter called Act 2003.

According to the petitioner even though the petitioner and other

interested colleagues have conducted protests against use of tobacco

and sought for correction in the matter of sale of the tobacco products

in terms of the provisions of Act 2003, the authorities have not cared

to take any action and therefore the petitioner has no other remedy

than to approach this Court. The paramount issue projected is that, as

per the provisions of the Act 2003, even the individual cigarettes

should contain the statutory warning as stipulated under the Act in

question so as to serve the purpose of statutory warning. In the said

backdrop petitioner has raised the following contentions.

3. That, as per the statistics of the tobacco free union, over one

million people die from tobacco related diseases in India every year.

The work of the Tobacco Free Union and their statistics brought wide

discussion and thinking in all the countries. The Union of India has

also framed some stringent rules to restrict and reduce the use of

tobacco in India including the Act 2003. Even though tobacco is not

banned, several restrictions were made to reduce the use of tobacco

among the people of India.

4. That the Act, 2003, is the major enactment in our country in

this regard. One of the main objectives of the above Act is to 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. There are substantial tobacco free

ground policy tool kits in the above Act. The Central Government has

enacted the Act 2003 pursuant to the resolution passed by 39th and 43rd

World Health Assemblies and based on Constitutional mandate

contained in Article 47 of the Constitution of India regarding

improvement of public health. Moreover, it is enacted to effectively

curb the menace of cigarette and other tobacco smoking among

people, which has a detrimental and deleterious effect on the life and

liberty of the people of the country. After enactment of the COTPA in

2003, several amendments were made to the Act so as to impose

stringent conditions in production, supply, distribution and exhibition

of tobacco and tobacco products.

5. Petitioner has further submitted that it is an admitted fact that

cigarette smoking is injurious to health and it causes significant

problem to the smoker as well as to the other people. The smoker

directly gets injured from cigarette smoking as the first hand smoker

by way of cardiovascular diseases, respiratory diseases, tuberculosis,

cancer and some other diseases. But at the same time, it affects the

secondhand smoker also. Secondhand smoke exposure is a significant

problem in India both indoor and outdoor. A study has shown that

70% to 80% of the male smokers regularly smoke at home. Three in

every 10 adults working indoors are exposed to secondhand smoke. In

home, secondhand smoke exposure remain high, especially among

children. Apart from the secondhand smoke, there is third hand

smoke, which is the fraction of tobacco smoke that persist in indoor

environment after smoking. This remains even after most of the

airborne components of the smoke have cleared. Children are at

increased risk when exposed to third hand smoke toxicants due to

their exploratory behavior and metabolic activity. There is increased

risk of cancer in children due to third hand smoke.

6. Petitioner has also submitted that Section 4 of the Act, 2003,

prohibits smoking in public places. Section 5 of the Act prohibits

advertisement of cigarettes and other tobacco products. Section 6 of

the Act prohibits sale of cigarette or other tobacco products to a person

below the age of 18 years and in particular area. As per this section, no

person shall sell, offer for sale or permit sale of cigarettes or any other

tobacco products to any person who is under 18 years of age and in an

area within a radius of 100 yards of any educational institutions.

7. It is the further submission of the petitioner that apart from

the above prohibitions, Act, 2003, restricts trade and commerce in and

production, supply and distribution of cigarette and other tobacco

products by virtue of Section 7 of the Act. Accordingly, no person

shall directly or indirectly, produce, supply or distribute cigarettes or

any other tobacco products unless every package of cigarettes or any

other tobacco products produced, supplied or distributed by him bears

thereon, or on its label such specified warning including a pictorial

warning as may be prescribed. Without the aforesaid warning nobody

could carry on trade or commerce in cigarettes or any other tobacco

products. Section 8 of the Act, stipulates that the specified warning on

a package of cigarette or any other tobacco products shall be legible

and prominent, conspicuous as to size and color and in such style or

type of lettering as to be boldly and clearly presented in distinct

contrast to any other type, lettering or graphic material used on

package or its label and shall be printed, painted or inscribed on the

package in a colour which contrasts conspicuously with the

background of the package or its labels. It also specifies that the

warning should be printed, painted or inscribed on a package of

cigarettes or any other tobacco products.

8. The basic contention of the petitioner is that the above

stringent conditions are prescribed by the legislator only with the

intention to reduce use of tobacco in our country. The tobacco

manufactures are also following the prescribed rule in the cigarette

packets. Even though the cigarette packets contain the warning

stipulated in the Act, 2003, the individual cigarette sticks do not

contain such a warning.

9. Petitioner further stated strenuously that the intention of the

legislature was to impose such a condition on sale of individual

cigarettes to clearly make aware the severity and seriousness of the

injury of use of tobacco to the people who are consuming the same. It

is true that when a customer purchases a pack of cigarettes, he will get

the warning message, since the message and picture is printed on the

cigarette packet. But when a customer purchases a single stick of

cigarette, he will not get the warning message since there is no

warning message printed or inscribed on the single stick of cigarette.

Therefore, the sale of loose cigarettes is against the provisions in the

Cigarettes in the Act, 2003, since there is no warning message in the

single cigarette.

10. It is also contended that sale of loose cigarettes will increase

the consumption of tobacco as per the study conducted by the Global

Adult Tobacco Survey, India, 2009-10. The study found that 57% of

cigarette smokers in India brought loose cigarettes. The authors of this

study also note that the proportion of buying loose cigarettes

decreased with increased level of education and was last among

Government employees. This study associated loose cigarette buying

with decreased intensity of smoking. By increasing taxes on cigarettes

by the government, the bulk buying of cigarettes has decreased but at

the same time the buying of single cigarettes has been increased.

11. On a reading of the submissions made by the petitioner it is

clear that according to him sale of loose cigarettes is against the

provisions of Section 7 of Act 2003 and it is further submitted that

Section 7 stipulates that cigarettes or any other tobacco products could

not be produced, supplied or distributed without bearing the specified

warning on the product; even though the packet of cigarette contain a

warning in terms of the provisions of Act 2003, an individual cigarette

does not contain such warning in spite of the fact that it is a tobacco

product and therefore sale of loose cigarettes is illegal.

12. It is also pointed out that the Government of India is a

signatory to the framework convention of tobacco control of the World

Health Organization (WHO) and as per the stipulation of the

convention, the Union of India has enacted the Act 2003 and imposed

restrictions of statutory warning on tobacco products. The regulatory

provision is incorporated in the Act 2003 to contain the specified

warning with an intention to effectively curb the menace of cigarette

smoking and use of other tobacco products which are detrimental to

the life and liberty of the people.

13. It is also pointed out that under Article 47 of the Constitution

of India, the State has a duty to take steps in the matter of improving

public health by bringing prohibition of consumption of intoxicating

items which are injurious to health. Therefore to achieve the aims of

Article 47 of the Constitution of India, the State has enacted the Act

2003 and unless and until the provisions of the Act are implemented

scrupulously and strictly, the purpose would not be achieved and it

would also seriously interfere with the aims and intentions of the

World Health Organization in accordance with the framework

convention of tobacco control of the World Health Organization.

14. In the above canvass the following reliefs are sought for:-

"a) Issue a Writ declaring that sale of loose cigarette is against the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution)

Act, 2003, since it is without exhibiting the mandatory statutory warning on the tobacco products.

(b) Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents to ban sale of loose cigarettes without statutory warning.

(c) Issue a Writ of Mandamus or any other appropriate writ, order or direction directing the 2nd respondent to consider and pass appropriate orders on Ext. P9 representation within a time stipulated by this Hon'ble Court."

15. In fact the paramount contention advanced by learned

counsel for the petitioner is based on Section 7 (2) of the Act 2003.

Before proceeding to consider the issues raised, let us understand the

reasons and objects of introducing the Act 2003.

16. It is an Act to prohibit the advertisement and provide for the

regulation of trade and commerce, production, supply and distribution

of cigarettes and other tobacco products and for matters connected

therewith or incidental thereto. It is clear from the objects and reasons

that it is on the basis of resolution passed by the 39 th World Health

Assembly in its 14th Plenary Meeting held on the 15 th May, 1986, in

order to ensure that effective protection is provided to non smokers of

involuntary exposure to tobacco smoke and to protect children and

end people from being addicted to the use of tobacco, the Act was

brought for. Taking into account the said aspect and also the

obligations contained under Article 47 of the Constitution of India,

the Act 2003 was introduced and the provisions of the Act has come

into force on various dates in the year 2007.

17. Cigarette is defined under 3(b) thereunder which includes:-

"i) any roll of tobacco wrapped in paper or in any other substance not containing tobacco,

ii) any roll of tobacco wrapped in any substance containing tobacco, which, by reason of its appearance, the type of tobacco used in the filter, or its packaging and labeling is likely to be offered to, or purchased by, consumers as cigarette, but does not include beedi, cheroot and cigar."

In this context, it is also relevant to refer to the definition of

package contained under Section 3(i) of Act 2003 which reads as

follows:-

"(i) "package" includes a wrapper, box, carton, tin or other container."

18. The Act has various facets including prohibition of smoking

in a public place, prohibition of advertisement of cigarette and other

tobacco products, prohibition of sale of cigarette and other tobacco

products to a person below the age of 18 years and in particular area.

The most important provision that comes into play so far as in the

matter of consideration of the writ petition on hand is Section 7 which

reads thus:-

"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 or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label [such specified warning including a pictorial warning as may be prescribed.]

(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning.

(3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.

(4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution,

sale or supply for a valuable consideration.

(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof:

Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act."

19. Learned counsel for the petitioner basically relied upon

Section 7(2) and contended that it is clear from the said provision that

it is not only every package of cigarettes but the individual cigarettes

shall also contain the specified warning that cigarette smoking is

injurious to health. Learned counsel has also referred to Sections 8 to

10 of Act 2003.

20. The prime contention advanced by the petitioner as is

discussed above is absolutely relying upon Section 7 (2), by

interpreting that the provision dealing with packages of cigarettes or

any other tobacco product sold, supplied or distributed, includes not

only the package of cigarettes but an individual cigarette also.

21. We have heard learned counsel for the petitioner Sri. C. M.

Mohammed Iquabal and the learned State Attorney Sri. N. Manoj

Kumar.

22. Learned counsel for the petitioner addressed arguments on

the basis of the deliberations made above. Learned State Attorney has

contented that the contention advanced by the learned counsel for the

petitioner relying upon Section 7(2) of Act 2003 cannot be sustained

since what is intended under sub section (2) of Section 7 is that the

statutory warning shall contain only in every package of cigarette or

any other tobacco products, however any other tobacco product does

not take in loose cigarettes as is primarily contended by the counsel

for the petitioner. To put the submission of the learned State Attorney

otherwise, the phraseology "package of cigarettes", and "other

tobacco products" employed in the said provision is to cater different

concepts and satisfy another requirement of the Act 2003 and

therefore the same cannot be read together to gather a meaning of an

individual or loose cigarette. It was also contended that sub section (2)

of Section 7 deals with packages of cigarettes as a separate class and

other tobacco products as a separate class. Therefore, what is intended

by the statute is a statutory warning specified as per the provisions of

the Act in the package of cigarettes and it was never intended that the

statutory warning should be engrossed in the individual cigarettes.

23. Learned State Attorney has invited our attention to the

judgment of the Allahabad High Court in Gramin Mahila Vikas

Parishad v. State of U.P. and Others in Public Interest Litigation

(PIL) No. 45433 of 2012 dated 08.07.2013 to contend that even

though such a contention was raised it was negatived. Learned State

Attorney has also invited our attention to the judgment rendered by

the Uttarakhand High Court in Dharmendra Kansal v. Union of

India and Others [2015 KHC 1140] and invited or attention

specifically to paragraph 19 and contended that the findings rendered

therein is not in terms of Section 7 of Act 2003.

24. We have considered the rival submissions made across the

Bar and evaluated the pleadings put forth by the petitioner.

25. Section 7 of the Act according to us is very clear in regard to

the restrictions on trade and commerce, production, supply and

distribution of cigarettes and other tobacco products. In our view, the

contention put forth by the learned counsel for the petitioner relying

upon sub section (2) of Section 7 that any other tobacco products

contained in the said provision includes sale of loose cigarettes or a

single cigarette cannot be sustained for the reason that the first limb of

the said provision deals with package of cigarettes and the second

limb of the said provision deals with other tobacco products other than

cigarettes. Therefore the attempt made by the learned counsel for the

petitioner to classify individual cigarettes from the package of

cigarettes relying upon sub section (2) of Section 7 is not a correct

interpretation of law since a clear meaning is discernible from sub

section (2) of Section 7 that the package of cigarettes is distinct and

different from other tobacco products, which can only be meant and

understood as other tobacco products other than package of cigarettes.

We do not think that such an interpretation made by learned counsel

for the petitioner establishes that each and every cigarette should bear

the warning in contemplation of the provisions of the Act 2003.

26. Further it is important and relevant to note from Section 8 of

Act 2003 that it is clearly specified the manner in which the warning

on a package of cigarettes or any other tobacco products shall be

made. The provisions of Section 8 also makes it clear that there is a

clear segregation made under the provisions of Act recognizing the

package of cigarettes as a separate product and other tobacco products

as different products, other than the package of cigarettes. If there was

any such intention to incorporate warnings in loose cigarettes, it

would have been clearly said by employing apt and appropriate words

in the provision, by the Parliament.

27. In fact the Division Bench of the Allahabad High Court in

Gramin Mahila Vikas Parishad (supra) has specifically addressed the

issue and it was held that as per the provisions of the Act and the

Rules, requirement of publishing the warning is only over the package

not on the loose cigarettes. In that context reference was made to the

Cigarettes and other Tobacco Products (Packaging and Labeling)

Rules, 2008, (hereinafter called Rules 2008) which not only defines

package and principal display area in Rule 2(b) and 2(c) but also

provides in Rule 3(a) that every package of cigarette or any other

tobacco product shall contain the health warning.

28. Therefore taking into account the facts and circumstances

and the law involved we have no hesitation to hold that the Act and

the Rules does not intend the incorporation of warning in loose and

individual cigarettes. Be that as it may, according to us, the attempt of

the petitioner is to persuade this Court to legislate on the point by

adding the phraseology "every cigarette'' in section 7(2) of Act 2003

and issue a direction to the Government to incorporate the statutory

warning in individual cigarettes. It is well settled in law that the courts

cannot legislate law, which is the absolute domain of the parliament

and State legislatures, and the Executive, and when called upon this

Court to interpret Section 7(2) in a specific manner, collaterally the

petitioner seeking a relief of directing the Government to make

necessary legislation or the Court to make necessary legislation to

satisfy the interpretation given by the petitioner to Section 7 (2) of Act

2003.

29. So far as the Division Bench judgment of the Uttarakhand

High Court in Dharmendra Kansal (supra), we are of the considered

opinion that interpretation was given to sub section (2) of Section 7 by

incorporating the words "every of cigarette". In our view the

Honourable Division Bench of the Uttarakhand High Court had

arrived at the finding that each and every cigarette should contain the

warning, by employing phraseology into the existing provision of

Section 7(2) of Act 2003, which we are unable to agree with and

therefore we respectfully disagree with the said judgment, especially

in view of the decision taken by us that the legislation is a matter to be

looked into by the Legislature and the Executive and not by the Court.

Needless to say we do not think the petitioner has not made out

any case justifying our interference exercising the power of judicial

review conferred under Article 226 of the constitution of India, there

being no arbitrariness, illegality, or other legal infirmities on the part

of the statutory authorities in permitting the manufacturers and sellers

of cigarettes without the statutory warning in individual cigarettes.

Upshot of the above discussion is that writ petition fails.

Accordingly it is dismissed.

Sd/-

S. MANIKUMAR CHIEF JUSTICE

Sd/-

SHAJI P. CHALY JUDGE Eb

///TRUE COPY///

P. A. TO JUDGE

APPENDIX OF WP(C) 12586/2021

PETITIONER ANNEXURE Exhibit P1 THE TRUE COPY OF THE PHOTOGRAPHS OF THE PROTEST CONTESTED BY THE PETITIONER AND OTHERS ON 31.05.2021.

  Exhibit P2         THE TRUE COPY OF THE ARTICLE OF THE
                     PETITIONER PUBLISHED IN SUPRABHATHAM
                     DAILY WITH ITS ENGLISH TRANSLATION
                     DATED 31.05.2021.
  Exhibit P3         THE TRUE COPY OF THE ARTICLE OF THE
                     PETITIONER PUBLISHED IN CHANDRIKA DAILY
                     WITH ITS ENGLISH TRANSLATION DATED
                     31.05.2021.
  Exhibit P4         THE TRUE COPY OF EXECUTIVE SUMMARY OF
                     WHO REPORT ON THE GLOBAL TOBACCO
                     EPIDEMIC, 2019.
  Exhibit P5         THE TRUE COPY OF THE ADVERTISEMENT IN
                     CIGARETTE PACKET.
  Exhibit P6         THE TRUE COPY OF THE PHOTOGRAPH IN
                     CIGARETTE STICKS.
  Exhibit P7         THE TRUE COPY OF THE NEWS ITEM
                     PUBLISHED IN THE TIMES OF INDIA DATED
                     27.09.2020.
  Exhibit P8         THE TRUE COPY OF THE NEWS ITEM
                     PUBLISHED IN THE INDIAN EXPRESS ON
                     06.10.2020.
  Exhibit P9         THE TRUE COPY OF THE REPRESENTATION
                     SUBMITTED BY THE PETITIONER TO THE 2ND
                     RESPONDENT DATED 31.05.2021.