Madras High Court
L.Jerome Santhosh vs The Commissioner Of Police on 23 October, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.OP.No.21020 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.10.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Original Petition No.21020 of 2024
L.Jerome Santhosh ... Petitioner
Vs.
1. The Commissioner of Police,
O/o. The Commissioner of Police,
Vepery, Chennai 600 007.
2. The Assistant Commissioner of Police (Vepery Range)
Chennai 600 007.
3. The Inspector of Police,
G-1 Police Station Vepery,
Chennai 600 007. ... Respondents
Prayer: Criminal Original Petition is filed under Section 528 of Bhartiya
Nagarik Suraksha Sanhita, praying to direct the respondent not to harass
the petitioner based upon the representation.
For Petitioner : Mr.R.C.Paul Kanagaraj
For Respondent : Mr.K.M.D.Muhilan
Government Advocate (Crl. Side)
**********
https://www.mhc.tn.gov.in/judis
1/8
Crl.OP.No.21020 of 2024
ORDER
The petitioner herein who have the trade license for running a
Restaurant under the name and style of “Coin Café Restaurant” at
No.45/20, Mookathal Street, Purasawalkam, Chennai, is before this Court
for direction to the respondent Police not to harass the petitioner and
permit him to run the restaurant with a herbal hookah enclosure.
2. According to the petitioner, in his restaurant he has earmarked a
smoking zone in which herbal hookah is provided. Having obtained
permission from the Food Safety and Standards Authority, to run the
restaurant, which is valid till 15.06.2025, the respondent Police cannot
prohibit him from providing herbal hookah smoking facility in his
restaurant. However, in spite of giving an under taking that he will not
provide any tobacco hookah, the respondents are threatening the
petitioner and closed down the shop.
3. The third respondent Police has filed the counter wherein it is
stated that under the Cigarettes and Other Tobacco Products (Prohibition
of Advertisement and Regulation of Trade and Commerce, Production,
https://www.mhc.tn.gov.in/judis
Supply and Distribution) Act, 2003 (hereinafter referred to as ‘the
COTPA Act’), there is a prohibition of Hookah Bar and no persons can
run any hookah bar or serve hookah to the customers in any place
including a eating house. The petitioner herein was primarily running a
hookah bar and therefore, he was instructed to close the shop as per the
Government Order dated 18.10.2023. The petitioner filed writ Petition
before the High Court challenging the said G.O. and the said Writ
Petition in WP No.5853 of 2024 is pending. While so, there is no
question of harassing the petitioner since he has already closed down the
shop and awaiting for the outcome of the writ petition he has filed before
this High Court.
4. The learned counsel appearing for the petitioner states that there
is no ban or prohibition to run herbal hookah bar and what is prohibited
in the above mentioned G.O. is only hookah bar using tobacco and the
said G.O. was issued under the COTPA Act, which primarily deals with
tobacco and tobacco products.
5. Relying upon the judgment of the Hon’ble Supreme Court in
Narinder S. Chandha and others v. Municipal Corporation of Greater
https://www.mhc.tn.gov.in/judis
Mumbai and others, reported in (2014) 15 SCC 689, the learned counsel
appearing for the petitioner submitted that the power of the Police is only
to regulate smoking and not to prohibit smoking. While smoking hookah
with herbal products is not prohibited under any of the law of the land,
citing provision and Government Order issued under the COTPA Act, the
Police do not prohibit the petitioner having the separate enclosure for
smoking herbal hookah.
6. From the rival submissions, it is clear that the petitioner has the
restaurant licensed from the Authority and claims running herbal hookah
bar is legal. Due to Police interference, he is not running the restaurant at
present.
7. From the counter it appears that the petitioner was using the
premises for running a hookah bar and whether he was using tobacco or
any herbal other than tobacco is not available from the counter. In any
event the amendment to Section 4(a) of COTPA Act, prohibits hookah
bar in any place including eating house.
https://www.mhc.tn.gov.in/judis
8. The petitioner has given a letter of undertaking to the
Commissioner of Police, Chennai that he may be permitted to run the
restaurant in the name of “Coin Café Restaurant” with enclosed facility
for herbal hookah service without any content or traces of tobacco and
nicotine. This representation dated 08.08.2024 is sought to be considered
by the respondent Police through this petition seeking Writ of Mandamus.
9. On considering the provisions of the COTPA Act and Food
Safety and Standards Act, if the product used in the hookah is tobacco
containing nicotine, it will fall under the COTPA Act. Otherwise also the
inhalation of a smoke derived from any product other than tobacco
containing nicotine, it will fall within the definition of food under Section
2 (za) of the Food Safety and Standards Act. Therefore, if at all the
petitioner herein wants to have an enclosed zone for herbal hookah, first
of all, he has to satisfy his trade not fall under the prohibition of
Cigarettes and Other Tobacco Products in public places which includes
restaurant.
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10. He cannot use tobacco or any product containing nicotine, in
view of the prohibition under Section 4(A) of the COTPA Act, and in
case if we want to use any other product other than product containing
nicotine and claims it to be a herbal product, it must be in satisfaction
with the provisions of Food Safety and Standards Act, 2006.
11. Therefore, as far as running the restaurant, there cannot be any
legal impediment for the petitioner herein since he holds a valid license
up to 31.03.2025. If he wants to establish a separate zone in his
restaurant for herbal hookah bar, he should satisfy the requirements
which is stated in paragraph Nos. 9 & 10 of this order.
12. Therefore, the petitioner herein has to make appropriate
representation to the Food Safety and Standards Authority for the purpose
of having a separate enclosure for herbal hookah and on obtaining
permission he can have an herbal hookah bar in the said restaurant.
13. The respondent Police shall have Authority to inspect the
premises of the petitioner to ensure whether the running of the hookah bar
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is inconsonance with the permission granted by the Food Safety and
Standards Authority and if there is any violation, it is open to the
respondent Police to take necessary action.
14. With the above directions, the Criminal Original Petition is
disposed of.
23.10.2024
Index: Yes/No
Internet: Yes/No
jv
To
1. The Commissioner of Police,
O/o. The Commissioner of Police,
Vepery, Chennai 600 007.
2. The Assistant Commissioner of Police (Vepery Range)
Chennai 600 007.
3. The Inspector of Police,
G-1 Police Station Vepery,
Chennai 600 007.
4. The Public Prosecutor,
Madras High Court, Chennai 600 104.
https://www.mhc.tn.gov.in/judis
Dr.G.JAYACHANDRAN,J.
jv
Criminal Original Petition No.21020 of 2024
23.10.2024
https://www.mhc.tn.gov.in/judis
