Telangana High Court
F M Marketing vs The State Of Telangana on 30 November, 2021
Bench: Satish Chandra Sharma, A.Rajasheker Reddy
THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
AND
THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY
WP.Nos. 19928, 20022, 21277, 21314, 21344, 21352, 21362, 21523, 21545,
21547, 21555, 21569, 21831, 21886, 21899, 21914, 21939, 22297, 22310,
22322, 22325, 22330, 22333, 22349, 22369, 22376, 22388, 22390, 22392,
22416. 22423, 22425, 22432, 22447, 22480, 22482, 22498, 22507, 22560,
22569, 22573, 22586, 22635, 22708, 22728, 22732, 22762, 22764, 22785,
22808, 22846, 22850, 22868, 22895, 22897, 22898, 22930, 22941, 22969,
22983, 23000, 23036, 23058, 23069, 23128, 23132, 23182, 23186, 23209,
23257, 23284, 23286, 23292, 23321, 23350, 23358, 23476, 23490, 23528,
23599, 23629, 23633, 23802, 24088, 24273, 24285, 24467, 24475, 24591,
24698, 24927, 24929, 25049, 25073, 25074, 25083, 25114, 25124, 25131,
25203, 25206, 25267, 25272, 25305, 25472, 25558, 25702, 25713, 25740,
25898, 25905, 25933, 25984, 26196, 26368, 26467, 26570, 26618, 26738,
26972, 27044, 27138, 27279, 27364, 27406, 27459, 28100 and 28704 of
2021
COMMON ORDER: (Per the Hon'ble the Chief Justice Satish Chandra Sharma)
(1) Regard being had to the similitude in the controversy
involved in the present cases, the writ petitions were
analogously heard and by a common order, they are being
disposed of by this Court.
(2) Facts of the Writ Petition No.19928 of 2021 are
narrated hereunder.
The petitioner before this Court, which is a
proprietorship firm engaged in the business of wholesale
distribution and retailing of chewing/chewable tobacco
products and cigarettes, has filed this present writ
petition being aggrieved by the Notification No.505/FSS-
1/2021, dated 06.01.2021 issued by the respondent
No.3/Commissioner of Food Safety, Telangana in exercise
of powers conferred under Section 30 of the Food Safety
and Standards Act, 2006 (hereinafter called 'FSS Act
2
2006'). The petitioner has challenged the impugned
Notification on the ground that it is illegal, arbitrary,
unconstitutional, ultra vires the Cigarettes and Other
Tobacco Products (Prohibition of Advertisement and
Regulation of Trade and Commerce, Production, Supply
and Distribution) Act, 2003 (hereinafter called, 'COTPA
2003') and is in violation of principles of natural justice
and is also in violation of Articles 14 and 19(1)(g) of the
Constitution of India.
(3) The learned counsel for the petitioner stated before
this Court that the petitioner's business is broadly
concerned with pure tobacco and scented tobacco, which
are marketed under the brand names Phoolchap (pure
tobacco) and VI Tobacco (scented tobacco).
(4) In the other connected matters, the petitioners are
carrying on the business either of wholesale distribution
or sale of pan masala mixed with tobacco and other allied
products. The petitioners' contention is that the COTPA
2003 is a central legislation dealing exclusively with
tobacco industry, traceable to Entry 52, List I of the
Seventh Schedule of the Constitution of India and it
provides a comprehensive legislation which governs the
law on tobacco products and is occupying the field. It has
3
been stated that the COTPA 2003 deals with tobacco
products and therefore, the products mentioned in the
impugned Notification issued under FSS Act 2006 are
covered in the list of products specified in the Schedule of
COTPA 2003.
(5) The petitioners further contended that the legislative
policy in respect of tobacco products as evident from the
provisions of COTPA 2003 is not to impose a complete ban
on tobacco products and it certainly regulates and
imposes restrictions on the trade and business with
respect to advertising the products, smoking in public
places and pictorial warnings on the ill-effects of
consuming tobacco on packaging material of those
products etc. It has been further contended that the
legislative policy is to permit trade and business in
tobacco products subject to reasonable restrictions. It has
been further contended that the country's taxing statutes
also permit trade and business in tobacco products and
tax is levied under the Central Goods and Services Tax
Act, 2017. Meaning thereby, the statute does not prohibit
trade and business in tobacco products at all.
(6) The petitioners further contended that the FSS Act
2006 is an Act that regulates food standards and the
4
production, distribution and consumption of food. It is a
general law that covers all aspects pertaining to food
safety, traceable to Entry 18 of List III of the Seventh
Schedule of the Constitution of India and the FSS Act
2006 does not define 'tobacco products' nor it provides
any power for prohibition in the trade and business of
such products. It has been further contended that COTPA
2003 being a special law pertaining to subject matter of
'tobacco products' and 'tobacco industry' that overrides
the FSS Act 2006 which is a general law pertaining to
'food products and food safety' and therefore, the
provisions of the FSS Act 2006 cannot impinge or
encroach upon any subject matter, that is exclusively
governed by the COTPA 2003.
(7) The petitioners further contended that the
Regulations made under the FSS Act 2006 cannot travel
beyond the field covered by the FSS Act 2006 and they
cannot encroach upon the areas covered by the COTPA
2003. It has been further contended that in exercise of
powers conferred under Section 92 of the FSS Act 2006,
the Food Safety and Standards Authority of India has
issued Regulations titled 'the Food Safety and Standards
(Prohibition and Restrictions on Sales) Regulations, 2011
(hereinafter called, 'Food Safety Regulations, 2011'). The
5
Regulation 2.3.4 of the said Regulations provides that
tobacco and nicotine shall not be used as ingredients in
any food stuffs and that the tobacco per se is not treated
as food and therefore, the FSS Act 2006 nor the Food
Safety Regulations, 2011 framed thereunder empowers
the Authorities to impose a ban in respect of trade and
business of tobacco.
(8) The petitioners further contended that the impugned
Notification is ultra vires the FSS Act 2006 and is also
contrary to COTPA 2003. It has been further contended
that under the Food Safety and Standards (Food Products
Standards and Food Additives) Regulations, 2011, 'pan
masala' is defined under Regulation 2.11.5 as 'the food
generally taken as such or in conjunction with pan'. It
lists out the substances that pan masala should be free
from. The treatment of pure pan masala as food under the
Regulations only implies that except to the extent
specifically covered under the special law COTPA 2003,
the provisions of the FSS Act 2006 and Rules/Regulations
made thereunder govern pan masala. Insofar as the pan
masala in combination with tobacco finds place in the
Schedule of COTPA 2003 and the said product is outside
the reach of the provisions of the FSS Act 2006. It has
been further contended that the tobacco products
6
mentioned in the impugned Notification are exclusively
regulated by the COTPA 2003, they are not all covered by
the FSS Act 2006 and therefore, the impugned Notification
is ultra vires the FSS Act 2006 and the COTPA 2003.
(9) The petitioners further contended that the
respondent No.3/Commissioner of Food Safety, Telangana
is jurisdictionally incompetent to issue any such
Notification in exercise of powers conferred under Section
30(2) of the FSS Act 2006 as the products mentioned in
the Notification are not covered by the FSS Act 2006 and
they are covered under the Schedule appended to the
COTPA 2003. It has been further contended that the
impugned Notification deprives the petitioners and other
connected persons of their valuable rights guaranteed
under Article 19(1)(g) of the Constitution of India.
(10) The petitioners further contended that earlier also,
such Notifications were issued by the State Government
and this Court has quashed the criminal proceedings by
passing a detailed Judgment in Criminal Petition No.3731
of 2018 and batch, vide Judgment dated 27.08.2018 and
therefore, no criminal proceedings can be initiated against
the petitioners and against other persons who are involved
in the trade of pan masala/tobacco. Reference has also
7
been made to other Judgments delivered by the High
Court of Andhra Pradesh in Criminal Petition No.5421 of
2019 and batch decided on 18.12.2019. The petitioners
stated that apprehending criminal action on the basis of
the Notification which is void ab initio, the petitioners
approached this Court by filing a writ petition under
Article 226 of the Constitution of India seeking protection
of the fundamental rights guaranteed under Articles 14,
19(1)(g) and 21 of the Constitution of India. It has been
further contended that in earlier years, similar
Notifications were issued by the State Government and
the interim orders have been granted in all matters.
However, as the validity of the Notifications was only for a
period of one year, the Notifications expired by afflux of
time.
(11) The petitioners have raised various grounds before
this Court for setting aside the impugned Notification.
(12) It has been contended by the learned counsel for the
petitioners that the COTPA 2003 is a comprehensive code
and a special law dealing with all aspects of the tobacco
products and tobacco industry, whereas the FSS Act 2006
deals with the broad area of food safety and standards.
The FSS Act 2006 even though enacted subsequent to the
8
COTPA 2003 does not either expressly or impliedly seek to
override the COTPA 2003. Therefore, the application of the
well settled principle that special law prevails over general
law, even if the general law is subsequent, the COTPA
2003 will prevail over the FSS Act 2006 when it comes to
regulation of tobacco products. Thus, the power conferred
under Section 30(2) of the FSS Act 2006 does not extend
to prohibit the tobacco products, which is the sole
prerogative of the COTPA 2003.
(13) It has been further contended that the Rules,
Regulations and Notifications should not only conform to
the parent statute but also shall not be contrary to any
other statute since subordinate legislation cannot violate a
plenary legislation. The impugned Notification in banning
trade or business in tobacco products, imposes a
prohibition which is beyond the limited extent of
prohibition imposed under Section 6 of the COTPA 2003
(i.e., sale to persons under 18 years of age and in an area
within 100 yards of an educational institution).
(14) It has been further contended that if any prohibition
on the trade or business of tobacco products is to be
imposed in addition to what is covered under Section 6 of
the COTPA 2003, the same can be done only by an
9
amendment to the COTPA 2003. However, by issuing the
impugned Notification, the respondent No.3/the
Commissioner of Food Safety has added a new head of
prohibition which is otherwise absent in the COTPA 2003,
which has been done under the garb of exercising power
under Section 30 of the FSS Act 2006. It is nothing but
doing an act indirectly which is not permissible directly
and Regulation 2.3.4 of the Food Safety Regulations, 2011
does not empower the respondent No.3/Commissioner of
Food Safety to ban the products covered under the COTPA
2003. It has been further contended that the FSS Act
2006 cannot encroach upon the field covered by the
COTPA 2003 and therefore, the Regulations made under
the FSS Act 2006 cannot do the same, hence the
prohibition under Regulation 2.3.4 can extend to any food
which is consumed, except the products specifically
covered under the COTPA 2003. It has been further
argued that the exercise of power under Section 30 of the
FSS Act 2006 and the Regulation 2.3.4 of the Food Safety
Regulations, 2011 amounts to colourable exercise of
power, which is impermissible. It has been further
contended that Regulation 2.3.4 of the Food Safety
Regulations, 2011 does not cover chewing tobacco. The
said Regulation makes a dichotomy between 'tobacco' on
10
one hand and 'food products' on the other hand, which
implies that chewing/chewable tobacco products were
never intended to be covered under the Food Safety
Regulations, 2011. Thus, by no stretch of imagination, the
impugned Notification covers chewing/chewable tobacco
products. The issuance of the impugned Notification is a
complete non-application of mind and the same violates
the Article 14 of the Constitution of India.
(15) The petitioners further contended that since the
impugned Notification is ultra vires the FSS Act 2006 and
the COTPA 2003, the restriction imposed on the
petitioners' rights to carry on trade and business in
chewing/chewable tobacco products has no legal basis.
Meaning thereby, the prohibition imposed is without
backing of law as mandated under Article 19(6) of the
Constitution of India. Thus, the prohibition imposed by
virtue of the impugned Notification is in violation of the
petitioners' fundamental right to carry out trade and
business under Article 19(1)(g) of the Constitution of
India. The petitioners further contended that Section 6 of
the COTPA 2003 imposes a complete ban in respect of
extremely vulnerable or important subjects (i.e., to protect
individuals under the age of 18 years and students and
protect individuals from the harm of passive smoking), it
11
imposes less onerous restrictions on the rest of the
subjects limited to the manner in which tobacco products
are advertised. The very fact that the respondent
No.5/Union of India enacted the COTPA 2003 where
prohibition is not imposed but restrictions are imposed on
various facets of the trade in tobacco implies that there
are less intrusive measures than complete prohibition.
Unmindful of this well thought out legislative scheme and
intent, the respondent No.3/the Commissioner of Food
Safety has imposed a wholesale ban on trade/business in
tobacco products. This does not stand the test of
proportionality and as such, it is not a reasonable
restriction within the meaning of Article 19(6) of the
Constitution of India.
(16) The petitioners further contended that by virtue of
the impugned Notification, the petitioners and other
connected persons face an imminent threat of criminal
proceedings being initiated by the Authorities concerned
and are being arrested as is obvious from the various
cases foisted in the earlier years against them and other
persons under the garb of implementation of similar
Notifications. Even the entities and persons to whom the
petitioners supply its products also face a threat. This is a
direct infringement on the right to liberty guaranteed
12
under Article 21 of the Constitution of India. The
petitioners further contended that a complete ban on
trade and business adversely affects the livelihood of the
petitioners and other connected persons.
(17) The petitioners further contended that the impugned
Notification was issued without asking for the views of the
persons engaged in the trade or business of the tobacco
products and it is mandatory to grant opportunity of
hearing to the affected stakeholders before passing an
administrative order. Therefore, the issuance of the
impugned Notification violates the principles of natural
justice. The petitioners further contended that Section 31
of the FSS Act 2006 mandates every food business
operator to obtain a license, such a requirement is not
made applicable for the persons carrying on business in
the products covered under the COTPA 2003. In fact, the
same was clarified by the respondent No.6/Food Safety
and Standard Authority of India by its letter dated
10.10.2012 to a query raised by a person engaged in the
trade of such products in Delhi. Similar clarification has
also been issued by the Food Safety Authority of
Uttarakhand. The petitioners further contended that while
the Food Safety Regulations, 2011 provide safety
standards with respect to every type of food extending
13
even to pan masala, they are absolutely silent in respect of
chewing/chewable tobacco products in which the
petitioners are engaged in. No standards for labelling or
packaging chewing tobacco products are set out. Thus, it
is crystal clear that those products were never
contemplated within the meaning of 'food' under the FSS
Act 2006. Thus, the Regulation making Authority under
the FSS Act 2006 itself does not treat the above products
as falling within the meaning of 'food'.
(18) The petitioners further contended that interpreting
Section 30(2)(a) of the FSS Act 2006, the power to issue a
Notification such as the impugned Notification would lead
to a paradoxical situation where the respondent No.3/the
Commissioner of Food Safety can issue a Notification in
one area of the State and not in another, with respect to
tobacco products, which is otherwise permitted. Similarly,
the Commissioner of Food Safety of one State may issue a
Notification banning tobacco products while that of
another State may not and this situation exists in case of
chewing/chewable tobacco products. The State of
Telangana has issued the impugned Notification extending
the ban to chewing tobacco and pure tobacco products,
whereas the State of Karnataka and several other States
have not issued similar Notifications. The petitioners
14
further contended that the non-obstante clause under
Section 89 of the FSS Act 2006 does not enable the
authorities under the said statute to override the
provisions of the COTPA 2003, since it is settled law that
even a non-obstante clause in a subsequent general law
cannot override a prior special law. The petitioners further
contended that the prohibition that can be imposed under
Section 30(2)(a) of the FSS Act 2006 can be for a
maximum period of one year. This itself reflects that the
power therein was given to be exercised under some
emergent extraordinary circumstances and not in a
routine manner. However, the respondent No.3/the
Commissioner of Food Safety, Telangana by repeatedly
issuing those Notifications year after year and ensuring
that a product is banned in perpetually, is nothing but
abusing the power conferred on it and it also amounts to
colourable exercise of power.
(19) The petitioners have further contended that various
writ petitions have been decided by different High Courts
and the matter is pending before the Hon'ble Supreme
Court and as the Hon'ble Supreme Court is seized of the
issue, the present petitions be decided after Judgment is
delivered by the Hon'ble Supreme Court. However, the fact
remains that in respect of the impugned Notification, no
15
writ petition is pending before the Hon'ble Supreme Court
and no order has been brought to the notice of this Court
restraining this Court to decide the issue. On the
contrary, there is an order passed by the Hon'ble Supreme
Court in S.L.P.Nos.4879 and 5743 of 2021, dated
11.05.2021, directing this Court to decide the matters at
an early date.
(20) The learned counsel for the petitioners have placed
reliance upon the following Judgments in respect of the
contentions canvassed on behalf of the petitioners in the
present petition as well as other connected matters.
Ch.Tika Ramji v. State of U.P.1, State of Madras v. Gannon
Dunkerley2, Calcutta Gas Company Limited v. State of West
Bengal3, Ramavatar Budhaiprasad v. Assistant Sales Tax
Officer, Akola4, Kannan Devan Hills Produce Company Limited
v. State of Kerala5, Shah Ashu Jaiwant v. State of Maharashtra6,
Ishwari Khetan Sugar Mills (Private) Limited v. State of U.P.7,
D.C.Wadhwa v. State of Bihar8, Collector of Central Excise,
Bombay-I v. M/s.Parle Exports9, India Cement Limited v. State
of Tamil Nadu10, Synthetics & Chemicals Limited v. State of
1
1956 SCR 393
2
1959 SCR 379
3
1962 Supp (3) SCR 1
4
(1962) 1 SCR 279
5
(1972) 2 SCC 218
6
(1976) 2 SCC 99
7
(1980) 4 SCC 136
8
(1987) 1 SCC 378
9
(1989) 1 SCC 345
10
(1990) 1 SCC 12
16
U.P.11, State of Andhra Pradesh v. McDowell & Co.,12, SIEL
Limited v. Union of India13, ITC Limited v. Agricultural Produce
Market Committee14, S.Samuel, M.D., Harrisons Malayalam v.
Union of India15, Gulati & Co., v. Commissioner of Sales Tax16,
and Dharampal Satyapal Limited v. State of Assam17.
(21) The respondent No.3/Commissioner of Food Safety,
Telangana has filed a detailed counter affidavit and it has
been stated that the petitioners are engaged in the
wholesale business of the products like chewing tobacco.
The products contain pure tobacco, flavoured tobacco and
scented tobacco. It has been stated that the chewing
tobacco products flavoured with some spices such as
cardamom, menthol, clove etc., includes scented tobacco.
This also includes edible perfumes and therefore, as per
the FSS Act 2006, the spices and other edible perfumes
added to the chewing tobacco comes under the definition
of 'food'. It has been stated that the law of the land is very
clear and the FSS Act 2006 read with Regulations framed
thereunder provides that no food product shall contain
tobacco and nicotine as ingredient. The stand of the
respondent No.3 is that the petitioner while obtaining GST
11
(1990) 1 SCC 109
12
(1996) 3 SCC 709
13
(1998) 7 SCC 26
14
(2002) 9 SCC 232
15
(2004) 1 SCC 256
16
(2014) 14 SCC 286
17
(2018) 2 Gauhati Law Reports 168
17
number and GST certificate has stated that he is doing
business to sell unmanufactured tobacco, refuse tobacco,
not stem or strippe, flue cured Virginia tobacco, but the
petitioner is selling chewing tobacco products flavoured
with some spices, such as cardamom, menthol, clove etc.,
scented tobacco comprising edible perfumes. In the other
writ petitions, the petitioners are dealing with gutka or
pan masala, which certainly contain tobacco.
(22) It has been further stated that the Hon'ble Supreme
Court in the case of Ankur Gutka v. Indian Asthma Care
Society (SLP No.16308 of 2007, vide order dated
07.12.2010) has directed the learned Solicitor General of
India to instruct concerned Ministries to approach
National Institute of Public Health to undertake a
comprehensive analysis and study of contents of gutka,
tobacco, pan masala and similar articles manufactured in
the country and harmful affects on human health. The
Ministry of Health and Family Welfare, in the light of the
directions issued by the Hon'ble Supreme Court, in
consultation with the National Institute of Health and
Family Welfare (NIHFW) constituted a Committee of
Technical Experts and submitted a Report on the contents
of gutka, tobacco, pan masala and other similar articles
manufactured in the country as well as in respect of
18
Areca-Nut or Betel Quid or Supari. The Report includes
the harmful affect on human body. As per the Report
submitted by NIHFW, the term 'smokeless tobacco'
includes large variety of commercially or non-
commercially available products and mixtures that
contain tobacco as the principal constituent and are used
either orally (through the mouth) or nasally (through the
nose) without combustion. As per the Report, three forms
of smokeless tobacco, which are commonly used in India
are as under:-
(1) Tobacco alone (with aroma and flavourings) - e.g.
Creamy or dry snuff, Gudakhu, Gul, Mishri, Red
tooth power.
(2) Betel quid with tobacco (includes areca nut, slaked
lime, catechu and tobacco with spices) - e.g. Gutkha.
(3) Tobacco with other components (lime, sodium
bicarbonate, ash) - e.g. Khaini, Zarda, Maras,
Naswar.
(23) The respondent No.3 has further stated that as per
the NIHFW Health Report, there are as many as 3095
chemical components in smokeless tobacco products and
out of them, 28 are proven carcinogen. The major and
most abundant group of carcinogens is the tobacco -
specific N-nitrosamines (TSNA) and no safe level of this
chemical has been ascribed so far. The other carcinogens
reportedly present in smokeless tobacco include volatile
N-nitrosamines, certain volatile aldehydes, poly-nuclear
19
aromatic hydrocarbons, certain lactones, urethane, metals
and radioactive polonium. The Report also reveals that
high level of Nitrosamines is present in the branded
Indian smokeless tobacco products. The Laboratory
Reports also establish that the smokeless tobacco
available in India contains substantive quantities of two
potent carcinogens (nitrosamines and benzo-a-pyrene)
and heavy metals. The presence of high levels of heavy
metals (Lead, Cadmium, Chromium, Arsenic and Nickel)
is also reported. The Report establishes that the tobacco
and other tobacco related products cause oral,
esophageal, stomach, pancreatic, throat and renal
cancers. It also causes periodontal diseases, hypertension
and cardiovascular diseases, nervous system diseases,
metabolic abnormalities. It also affects reproductive
organs in men and women and is also responsible for pre-
term and low birth babies. The Expert Committee in its
Report dated 23.09.1997 recommended prohibition of
consumption of pan masala/gutka/chewing tobacco as
the ingredient in any food items as they are injurious to
public health and the Central Committee of Food
Standards in its Meeting dated 26th and 27th of November,
1997 unanimously resolved to ban use of chewing tobacco
in pan masala/gutka. It has been further stated that
20
Global Audit Tobacco Survey of India is the Global
Standard for systematic monitoring of audit tobacco use
(smoking and smokeless) in the country and the survey
conducted in the year 2016-17 by the International
Institute for Population Sciences (IIPS), Mumbai reveals
that almost 27 crores of adults in India used tobacco in
some form or the other. Among them, 20 crores use only
smokeless tobacco products.
(24) It has been brought to the notice of this Court that
tobacco is a prominent risk factor for 6 to 8 leading
causes of death and almost 40% of the Non
Communicable Diseases (NCD) including cancers,
cardiovascular diseases and lung disorders are directly
attributable to tobacco use. The number of deaths every
year in India which is attributable to tobacco use is
almost 14 lakhs and 50% of cancers in males and 20%
cancers in females can be directly attributed to tobacco
use (ICMR Study). According to the World Health
Organization (WHO) Global Report on "Tobacco
Attributable Mortality, 2012", 7% of all deaths (for ages 30
and over) in India are attributable to tobacco use. It has
been further brought to the notice of this Court that a
study titled "Economic Burden of Tobacco Related
Diseases in India" (2014) commissioned by the Ministry of
21
Health and Family Welfare, the total economic costs
attributable to tobacco use from all diseases in India in
the year 2011 for persons aged 35 to 69 years amounted
to Rs.1,04,500/- crores. The estimated cost was 1.16% of
the GDP and was 12% more than the combined state and
central government expenditures on health in 2011-12.
(25) The respondent No.3 further stated that the FSS Act
2006 is enacted with the objective to consolidate the laws
relating to food and for laying down standards for articles
of food and to regulate their manufacture, storage,
distribution, sale and import, to ensure availability of safe
and wholesome food for human consumption and for
matters connected therewith or incidental thereto. The
respondent No.3 has dealt with the salient provisions of
the FSS Act 2006 and the definition of the word 'food' is
defined under Section 3(j) of the FSS Act 2006. It has been
further stated that the Gutkas including tobacco and
tobacco certainly fall within the definition of 'food' as it is
intended for human consumption. It has been further
stated that the Hon'ble Supreme Court in the case of State
of Tamil Nadu v. R.Krishnamurthy18 has held that a product
be classified as 'food' in case it is used for human
consumption or in preparing human food. The respondent
18
(1980) 1 SCC 167
22
No.3 has further brought to the notice of this Court that
the Hon'ble Supreme Court in the case of Godawat Pan
Masala Products I.P., Limited v. Union of India19 has held that
gutka, pan masala and supari are food articles. Further,
the Allahabad High Court in the case of Manohar Lal v.
State of U.P., (Criminal Revision No.318 of 1982) and in the
case of Khedan Lal and Sons v. State of U.P.,20 relying on the
decision of the Hon'ble Supreme Court in the case of
R.Krishnamurthy (supra), has held that 'chewing tobacco' is
an article of food.
(26) The respondent No.3 has further stated that the
Food Safety Regulations, 2011 was notified on 01.08.2011
in exercise of powers conferred under Section 92 read with
Section 26 of the FSS Act 2006 and Regulation 2.3.4 of
the Food Safety Regulations, 2011 prohibit the use of
tobacco and nicotine in all food products. It has been
further stated that the FSS Act 2006 also defines the word
'ingredient' and 'food additive' and tobacco is certainly an
additive, which is commonly sold under various brand
names.
(27) The respondent No.3 has brought to the notice of
this Court that the Hon'ble Supreme Court in
19
(2004) 7 SCC 68
20
1980 CriLJ 1346
23
S.L.P.No.16308 of 2007, vide order dated 03.04.2013
directed the Secretaries, Health Department of all
States/Union Territories to file affidavits of total
compliance of the ban imposed on manufacturing and
sale of gutka and pan masala with tobacco and/or
nicotine. It has been further stated that in the light of the
aforesaid order passed by the Hon'ble Supreme Court, all
the State Governments/Union Territories have issued
necessary orders/Notifications under Regulation 2.3.4 or
under Section 30 of the FSS Act 2006 banning the sale of
gutka and pan masala (containing tobacco or nicotine).
(28) The respondent No.3 has further stated that in order
to circumvent the ban on the sale of gutka, the
manufacturers are selling pan masala (without tobacco)
with flavoured chewing tobacco in separate sachets but
often conjoint and sold together by the same vendors from
the same premises, so that consumers can buy the pan
masala and flavoured chewing tobacco and mix them both
and consume the same. It has been further stated that
instead of earlier 'ready to consume mixes', chewing
tobacco companies are selling gutka in twin packs to be
mixed as one. Reference has also been drawn towards the
order passed by the Hon'ble Supreme Court in the case of
Central Areca-nut Marketing Corporation v. Union of India
24
(Transfer Case Civil No.1 of 2010, dated 23.09.2016)
directing the Authorities to ensure total ban and its
compliance on manufacturing and sale of gutka and pan
masala with tobacco and/or nicotine. The respondents
have further stated that in the light of the Order passed
by the Hon'ble Supreme Court, the letter dated
05.12.2016 was issued by the Ministry of Health
requesting all the State Governments/Union Territories to
pass necessary orders to ensure that the Order passed by
the Hon'ble Supreme Court has been complied with.
(29) The respondent No.3 has further stated that the
COTPA 2003 is an Act enacted to discourage the use of
tobacco with great emphasis on protection of children and
young people from being addicted to the use of tobacco
and prohibits smoking in public places, sale of tobacco
products to minors and within 100 yards of any
educational institution, direct and indirect advertisement,
promotion and sponsorship of tobacco products and
mandates display of pictorial health warnings on tobacco
product packages. The respondent No.3 has further stated
that the petitioners' arguments on the subject that there
is a conflict between the COTPA 2003 and the FSS Act
2006 is misconstrued and they occupy different fields
altogether. The respondent No.3 has placed reliance upon
25
the judgments of the Hon'ble Supreme Court in Ajay
Kumar Banerjee v. Umed Singh21, Khoday Distilleries Limited v.
State of Karnataka22, P.N.Krishnalal v. State of Kerala23,
S.Prakash v. K.M.Kurian24, Allahabad Bank v. Canara Bank25,
and Kerala Bar Hotels Association v. State of Kerala (Civil Appeal
No.4157 of 2015, dated 29.12.2015), Centre for Public Interest
Litigation v. Union of India (W.P. (C) No.681 of 2004, dated
22.10.2013), State of Maharastra v. Sayyed Subhan (Criminal
No.1195 of 2018, dated 20.09.2018), the High Court of
Jharkhand at Ranchi in the case of Fariyaad Foundation v.
Government of Jharkhand (W.P. (PIL) No.954 of 2019), the
High Court of Madhya Pradesh, Indore Bench in the case
of Amarchand Upadhyay v. Union of India (W.P.No.10998 of
2012), the High Court of Patna in the case of Lal Babu
Yadav v. the State of Bihar (WP (Civil) No.10297 of 2012,
dated 10.07.2012) and the High Court of Bombay in the
case of M/s.Dhariwal Industries Limited v. the State of
Maharashtra (W.P.No.1631 of 2012 and other connected
matters).
(30) The respondent No.3 in the light of the various
Judgments of the Hon'ble Supreme Court and some High
Courts referred above has stated that the Notification
issued by the State Government has been issued strictly
21
AIR 1984 SC 1130
22
(1995) 1 SCC 574
23
1995 Supp (2) SCC 187
24
AIR 1999 SC 2094
25
AIR 2000 SC 1535
26
in consonance with the statutory provisions governing the
field under the FSS Act 2006 and the gutka containing
tobacco and tobacco are great thereat to the public health.
It is having a grave negative impact on public health and
therefore, the State Government has rightly imposed
reasonable restrictions in the matter of manufacture,
distribution, storage, transport and sale of gutka or pan
masala, which contains tobacco and nicotine as
ingredients and chewing tobacco products like chap
tobacco, khaini, kharra, scented/flavoured tobacco. The
respondent No.3 has further stated that the petitioners
have not been able to make out any case before this Court
and the restriction imposed by the State is a reasonable
restriction and does not warrant any interference.
(31) The respondent No.6/Food Safety and Standards
Authority of India has also filed a detailed counter
affidavit and it has been stated that the FSS Act 2006 was
enacted by the Parliament for laying down scientifically
based standards for articles of food and to regulate their
manufacture, storage, distribution, sale and import and to
ensure availability of safe and wholesome food for human
consumption. It has been further stated that Section 92 of
the FSS Act 2006 empowers the authority to make
regulations with the previous approval of the Central
27
Government and after previous publication to carry out
the objects of the FSS Act 2006 and in exercise of powers
conferred, the Authority notified the Food Safety
Regulations, 2011. The Regulations provide for prohibition
and restrictions on sale of certain products. It has been
further stated that as per the Food Safety Regulations,
2011, the product should not contain any substance
which is injurious to health and tobacco and nicotine
shall not be used as an ingredient in any food product and
therefore, as reasonable restrictions have been imposed in
the interest of public at large, the question of interference
by this Court in respect of the impugned Notification does
not arise. It has been further stated that the Food Safety
Regulations, 2011 have been issued in accordance with
law in exercise of powers conferred under Section 92 read
with Section 16 of the FSS Act 2006 and the Regulations
provide for no anti-caking agent shall be used in any food
except where anti-caking agent is specifically permitted.
As per the Food Safety Regulations, 2011 use of anti-
caking agent in pan masala is not permitted.
(32) The respondent No.6 has also stated that as per the
mandate of Section 89 of the FSS Act 2006, the Act has
the overriding effect on all legislations including the
COTPA 2003 and the former takes precedence over the
28
latter Act. The respondent No.6 has also placed reliance
upon the definition clause, which defines 'food' and it has
been argued vehemently that pan masala with tobacco
and tobacco certainly fall under the definition of 'food' as
they are intended for human consumption. The
respondent No.6 has also placed reliance upon the
Judgments of the Hon'ble Supreme Court in the case of
P.K.Tejani v. M.R.Dange26, R.Krishnamurthy (supra), Krishan
Gopal Sharma v. Government of NCT of Delhi27, Godawat Pan
Masala Products I.P. Limited (supra), Laxmikant v. Union of
India28 and the Judgment of the High Court of Kerala in
W.P.No.12352 of 2012 and other connected matters.
(33) The respondent No.6 has also brought to the notice
of this Court that Minutes of the Expert Committee
constituted by the Ministry of Health and Family Welfare
which has recommended a complete ban on gutka
containing tobacco/tobacco products/tobacco. It has been
stated that large number of people are dying out of cancer
and the action taken by the State Government is in
consonance with the directions issued by the Hon'ble
Supreme Court from time to time. Therefore, a prayer has
been made for dismissal of the writ petitions.
26
(1974) 1 SCC 167
27
(1996) 4 SCC 513
28
(1997) 4 SCC 739
29
(34) Heard the learned counsel for the parties and
perused the record. The writ petitions are being disposed
of at admission stage with the consent of the parties.
(35) The petitioners before this Court are aggrieved by
Notification No.505/FSS-1/2021, dated 06.01.2021
issued by the respondent No.3/Commissioner of Food
Safety, Telangana in exercise of powers conferred under
Section 30 of the FSS Act 2006. The Notification dated
06.01.2021 is reproduced as under:-
"GOVERNMENT OF TELANGANA
Office of the Commissioner of Food Safety,
Directorate Institute of Preventive Medicine,
Public Health Labs, Food (Health) Administration,
Telangana State, Narayanaguda,
Hyderabad - 500 029.
Food Safety and Standards - Imposition of
Act, 2006
prohibition u/s 30(2) of the said Act on manufacture,
storage, distribution, transportation and sale of
Gutka/Pan masala which contains tobacco and nicotine
as ingredients and Chewing Tobacco products like chop
tobacco, pure tobacco, Khaini, Kharra, Scented
tobacco/Flavoured tobacco or by whatever name locally it
is called packed in sachets/pouches/package in the entire
State of Telangana - Orders - Issued.
Ref: 1. Food Safety and Standards Act, 2006.
2. Regulations 2.3.4 of FSS (Prohibition and
Restriction on Sales) Regulations 2011.
3. G.O.Ms.No.01 of Health, Medical & Family
Welfare (C2) Dept., dated 04.01.2016.
***
The Government of India has enacted Food Safety
and Standards Act 2006 (FSS Act) to regulate and monitor
the manufacturing, processing, packing, storage,
transport, distribution, sale of any food or food ingredient,
so as to ensure availability of safe and wholesome food for
human consumption.
Whereas section 3(1)(j) of FSS Act 2006 defines that
"Food" means any substance, whether processed, partially
processed or unprocessed, which is intended for human
consumption and includes primary food, to the extent
defined in clause 3 (ZK) genetically modified or engineered
food or food containing such ingredients, infant food,
packaged drinking water, alcoholic drink, chewing gum,
and any substance, including water used into the food
during its manufacture, preparation or treatment but does
not include any 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.
The Hon'ble Supreme Court of India in Godawat Pan
Masala v. UoI (2004) 7 SCC 68, while dealing case on
prohibition on sale of Gutka in the States on 02.08.2004
vide Civil Appeal No.4674 of 2004 (SLP (C) No.24449 of
2002) held that Gutka or panmasala having tobacco or
nicotine are food items. Gutka/Panmasala which contain
tobacco and nicotine as ingredients and Chewing Tobacco
products like Chap Tobacco, Pure Tobacco, Khaini,
Kharra, Scented Tobacco/Flavoured Tobacco packed in
pouches/sachets/containers etc., or by whatever name it
is called inherently falls within the definition of "food" as
defined under Section 3(1)(j) of the FSS Act, 2006.
Scientific Reports/opinions of ICMR (Indian Council
of Medical Research) and NIHFW (National Institute of
Health and Family Welfare) demonstrate the extremely
harmful effects of consumption of Gutka/ Panmasala/
Chewing Tobacco such as Cancers (Oral) pre-malignant
lesions/conditions) - Oesophageal Cancer, Stomach
Cancer, Pancreatic Cancer, Throat (pharynx and larynx)
cancer, renal cancer, Non cancerous - deterioration of
Oral-dental health, Hypertension & Cardiovascular
diseases, Consumption of such products is injurious to
health.
As per section 18(1)(a) of the FSS Act 2006, it is the
Government's endeavour to achieve an appropriate level of
protection of human life and health.
Whereas regulation 2.3.4 of FSS (Prohibition and
restriction on sales) Regulations 2011 made under the
FSS Act 2006 mandates that tobacco and nicotine shall
not be used as ingredients in any food products.
Whereas the Commissioner of Food Safety has the
power coupled with duty to prohibit in the interest of
public health, the manufacture, storage, transportation,
distribution, sale of any articles of food, either in whole of
the state or any area or part thereof for such period, not
exceeding one year as per clause (a) of sub-section (2) of
Section 30 of FSS Act, 2006.
Accordingly the following notification will be
published in the Extraordinary issue of the Telangana
State Gazette.
NOTIFICATION
Notification No.505/FSS-1/2021 : In exercise of the
powers conferred under clause (a) of Sub-section (2) of
Section 30 of Food Safety and Standards Act, 2006 read
with 2.3.4 of Food Safety and Standards (Prohibition and
Restriction on Sales) Regulation 2011 and in the interest
of public health, the Commissioner of Food Safety,
Telangana State hereby prohibits the manufacture,
storage, distribution, transportation and sale of
Guitka/Pan masala which contains tobacco and nicotine,
as ingredients and chewing Tobacco products like chap
Tobacco, Pure tobacco, Khaini, Kharra, Scented
tobacco/flavoured tobacco packed in pouches/sachets/
containers etc., or by whatever name it is called in the
entire State of Telangana for a period of one year with
effect from 10th January, 2021."
(36) The petitioners have challenged the impugned
Notification on the ground that it is illegal,
unconstitutional and ultra vires the COTPA 2003 and is
also in violation of natural justice and fair play. The
undisputed facts of the case reveal that the Notification
imposes prohibition of manufacture, storage, distribution,
transportation and sale of gutka/pan masala which
contains tobacco and nicotine as ingredients and chewing
tobacco products like chap tobacco, pure tobacco, khaini,
kharra, scented tobacco/flavoured tobacco or by whatever
name locally it is called, packed in sachets/pouches/
packages in the entire State of Telangana. Meaning
thereby, the sachets/pouches containing scented
tobacco/tobacco and/or pan masala, which contain
tobacco and nicotine are the subject matter of the
Notification.
(37) It is an undisputed fact that the tobacco is the main
cause of cancer and the statistics pertaining to tobacco
related mortality and cancer are detailed as under:-
"Global
According to the World Health Organisation
(WHO), tobacco kills more than 8 million people each year.
More than 7 million of those deaths are the result of direct
tobacco use while around 1.2 million are the result of non-
smokers being exposed to second-hand smoke.
National
- According to the National Health Mission under
the Ministry of Health and Family Welfare, Government of
India, mortality due to tobacco in India is established at
upwards of 13.5 lakhs (Report on Global Adult Tobacco
Survey GAT 2, 2016-17). If the current trend continues
and effective steps are not taken to control tobacco
consumption, it is estimated that by the year 2020,
tobacco use will account for 13% of all deaths in India
every year.
- According to Cancer Statistics, 2020: Report for
National Cancer Registry Programmes, India, based on
population-based cancer registries (PBCR) data, almost
one-third of the cancers were known to be associated with
the use of tobacco in India. India State-level Disease
Burden Initiative cancer collaborators estimated that
tobacco use was the highest contributing risk factor for
cancer in India.
- Available estimates in India show that smoking-
attributable annual deaths were about 930,000, while the
smokeless tobacco (SLT) attributable annual deaths were
about 350,000, together accounting for about 12,80,000
deaths per year or approximately 3500 deaths every day.
(According to Jha P, Jacob B, Gajalakshmi V et al, A
Nationally Representative Case-Control Study of Smoking
and Death in India. New England Journal of Medicine,
2008; 358 and Sinha DN, Palipudi KM, Gupta PC, et al.
Smokeless tobacco use: a meta-analysis of risk and
attributable mortality estimates for India. Indian J Cancer.
2014; 51 Suppl 1: S73-77).
- As per the WHO Global Report (2012) on "Mortality
attributable to tobacco', 7% of all deaths (for ages 30 and
over) in India are attributable to tobacco.
Telangana
- The age adjusted mortality rate (AAMR) of
Hyderabad District - reported for 2014-16 - is 4.8 per
100,00 males and 2.0 per 100,000 females. Also, the
relative proportion of cancer sites associated with the use
of Tobacco in Hyderabad is 42.2% in males and 13.5% in
females. (According to ICMR-NCDIR, Report on Sites of
Cancer Associated with Tobacco use in India-Findings
from the National Cancer Registry Programme, 2021,
Bengaluru, India)
- As per ICMR-NCDIR, Profile of Cancer and Related
factors - Telangana (2021), the prevalence of current
tobacco use (smoking and/or smokeless) in adults over 15
years of age (for 2016) is as follows:
Total - 17.8% Males - 25.9% Females - 9.8%"
National Family Health Survey - 5 (2019-2021)
- The recent survey conducted by NFHS-5 reveals
that the tobacco usage among males across India was
38%, in rural areas accounting for 42.7% of users. The
urban users of tobacco among men and women accounted
for 28.8% and 5.4% respectively. The usage of tobacco is
resulting in various kinds of cancers like breast cancers,
cervical cancers and cancers of other organs.
(38) The relevant statutory provisions under the FSS Act
2006, which are necessary for proper adjudication of the
present writ petitions, are reproduced as under:-
"3 (i) "extraneous matter" means any matter
contained in an article of food which may be carried from
the raw materials, packaging materials or process systems
used for its manufacture or which is added to it, but such
matter does not render such article of food unsafe;
3 (j) "food" means any substance, whether
processed, partially processed or unprocessed, which is
intended for human consumption and includes primary
food, to the extent defined in clause 3 (ZK) genetically
modified or engineered food or food containing such
ingredients, infant food, packaged drinking water,
alcoholic drink, chewing gum, and any substance,
including water used into the food during its manufacture,
preparation or treatment but does not include any 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.
Provided that the Central Government may declare,
by notification in the Official Gazette, any other article as
food for the purposes of this Act having regards to its use,
nature, substance or quality.
3 (k) "food additive" means any substance not
normally consumed as a food by itself or used as a typical
ingredient of the food, whether or not it has nutritive
value, the intentional additional of which to food for a
technological (including organoleptic) purpose in the
manufacture, processing, preparation, treatment, packing,
packaging, transport or holding of such food results, or
may be reasonably expected to result (directly or
indirectly), in it or its by-products becoming a component
of or otherwise affecting the characteristics of such food
but does not include "contaminants" or substances added
to food for maintaining or improving nutritional qualities;
3 (y) "ingredient" means any substance, including a
food additive used in the manufacture or preparation of
food and present in the Final product, possibly in a
modified form;
3 (zc) "manufacture" means a process or adoption or
any treatment for conversion of ingredients into an article
of food, which includes any sub-process, incidental or
ancillary to the manufacture of an article of food;
3 (zd) "manufacturer" means a person engaged in
the business of manufacturing any article of food for sale
and includes any person who obtains such article from
another person and packs and labels it for sale or only
labels it for such purposes;
3 (zk) "primary food" means an article of food, being
a produce of agriculture or horticulture or animal
husbandry and dairying or aquaculture in its natural
form, resulting from the growing, raising, cultivation,
picking, harvesting, collection or catching in the hands of
a person other than a farmer or fisherman;
16 (1) Duties and functions of Food Authority.- (1) It shall
be the duty of the Food Authority to regulate and monitor
the manufacture, processing, distribution, sale and import
of food so as to ensure safe and wholesome food.
18(1)(a) General principles to be followed in administration
of Act.- The Central Government, the State Governments,
the Food Authority and other agencies, as the case may
be, while implementing the provisions of this Act shall be
guided by the following principles, namely.-
(1) (a) endeavour to achieve an appropriate level of
protection of human life and health and the protection of
consumers' interests, including fair practices in all kinds
of food trade with reference to food safety standards and
practices;
26. Responsibilities of the food business operator.-
(1) Every food business operator shall ensure that the
articles of food satisfy the requirements of this Act and the
rules and regulations made thereunder at all stages of
production, processing, import, distribution and sale
within the businesses under his control.
(2) No food business operator shall himself or by an
person on his behalf manufacture, store, sell or distribute
any article of food -
(i) which is unsafe;
(ii) to (v) xxxxx
30. Commissioner of Food Safety of the State.- (1) The
State Government shall appoint the Commissioner of Food
Safety for the State for efficient implementation of food
safety and standards and other requirements laid down
under this Act and the rules and regulations made
thereunder.
(2) The Commissioner of Food Safety shall perform
all or any of the following functions, namely:-
(a) prohibit in the interest of public health, the
manufacture, storage, distribution or sale of
any article of food, either in the whole of the
State or any area or part thereof for such
period, not exceeding one year, as may be
specified in the order notified in this behalf
in the Official Gazette;
(b) carry out survey of the industrial units
engaged in the manufacture or processing of
food in the State to find out compliance by
such units of the standards notified by the
Food Authority for various articles of food;
(c) conduct or organise training programmes for
the personnel of the office of the
Commissioner of Food Safety and, on a wider
scale, for different segments of food chain for
generating awareness on food safety;
(d) ensure an efficient and uniform
implementation of the standards and other
requirements as specified and also ensure a
high standard of objectivity, accountability,
practicability, transparency and credibility;
(e) sanction prosecution for offences punishable
with imprisonment under this Act;
(f) such other functions as the State
Government may, in consultation with the
Food Authority, prescribe.
(3) The Commissioner of food Safety may, by Order,
delegate, subject to such conditions and restrictions as
may be specified in the Order, such of his powers and
functions under this Act (except the power to appoint
Designated Officer, Food Safety Officer and Food Analyst)
as he may deem necessary or expedient to any officer
subordinate to him.
97. Repeal and savings.- (1) With effect from such date
as the Central Government may appoint in this behalf, the
enactment and orders specified in the Second Schedule
shall stand repealed:
Provided that such repeal shall not affect-
(i) the previous operations of the enactment
and orders under repeal or anything duly
done or suffered thereunder; or
(ii) any right, privilege, obligation or liability
acquired, accrued or incurred under any of
the enactment or Orders under repeal; or
(iii) any penalty, forfeiture or punishment
incurred in respect of any offences
committed against the enactment and
Orders under repeal; or
(iv) any investigation or remedy in respect of any
such penalty, forfeiture or punishment and
any such investigation, legal proceedings or
remedy may be instituted, continued or
enforced and any such penalty, forfeiture or
punishment may be imposed, as if this Act
had not been passed:
(2) If there is any other law for the time being in force in
any State, corresponding to this Act, the same shall upon
the commencement of this Act, stand repealed and in
such case, the provisions of section 6 of the General
Clauses Act, 1897 (10 of 1897) shall apply as if such
provisions of the State law had been repealed.
(3) Notwithstanding the repeal of the aforesaid enactment
and Orders, the licenses issued under any such
enactment or Order, which are in force on the date of
commencement of this Act, shall continue to be in force
till the date of their expiry for all purposes, as if they had
been issued under the provisions of this Act or the rules
or regulations made thereunder.
(4) Notwithstanding anything contained in any other law
for the time being in force, no court shall take cognizance
of an offence under the repealed Act or Orders after the
expiry of a period of three years from the date of the
commencement of this Act."
(39) The aforesaid statutory provisions make it very clear
that 'food' as defined under Section 3(j) of FSS Act 2006,
means any substance, whether processed, partially
processed or unprocessed, which is intended for human
consumption and includes primary food, to the extent
defined in clause 3 (ZK) genetically modified or engineered
food or food containing such ingredients, infant food,
packaged drinking water, alcoholic drink, chewing gum,
and any substance, including water used into the food
during its manufacture, preparation or treatment but does
not include any 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. Keeping in view the aforesaid
definition of 'food', which is a very wide and exhaustive
definition and includes any substance whether processed,
partially processed or unprocessed, which is intended for
human consumption, certainly includes smokeless
tobacco products like gutka, pan masala, kharra, khaini
or any other similar product like chewing
tobacco/flavoured tobacco within the definition of 'food'
under the FSS Act 2006.
(40) The Hon'ble Supreme Court in the case of
R.Krishnamurthy (supra) has held that all that is required
to classify a product as 'food' is that it has to be used
commonly for human consumption or in preparation of
human food. Not only this, the Hon'ble Supreme Court in
the case of Godawat Pan Masala Products (supra) has held
that gutka, pan masala and supari as food articles. The
Allahabad High Court in the case of Manohar Lal v. State of
U.P., (Criminal Revision No.318 of 1982) and in the case of
Khedan Lal and Sons (supra) has held that 'chewing tobacco'
is an article of food.
(41) The Food Safety Regulations, 2011 was notified on
01.08.2011 in exercise of powers conferred under Section
92 read with Section 26 of the FSS Act 2006 and
Regulation 2.3.4 of the said Regulations expressly
prohibits use of tobacco and nicotine in all food products
and the same is reproduced as under.
"2.3.4 Product not to contain any substance which
may be injurious to health: Tobacco and nicotine shall not
be used as ingredients in any food products."
(42) Not only this, the FSS Act 2006 defined 'ingredient'
and 'food additive' and therefore, gutka/pan masala
which contains tobacco and other kinds of tobacco
products like chap tobacco, pure tobacco, khaini, kharra,
scented tobacco or flavoured tobacco do fall within the
definition of 'food'.
(43) The Hon'ble Supreme Court in S.L.P. No.16308 of
2007, dated 03.04.2013 has passed the following order.
"Ms. Indira Jaisingh, learned Additional Solicitor
General invited the Court's attention to notifications
issued by the Government of 23 States and the
Administrators of 5 Union Territories for imposing
complete ban on Gutkha and Pan Masala with tobacco
and/or nicotine and then stated that notwithstanding the
ban, the manufacturers have devised a subterfuge for
selling Gutkha and Pan Masala in separate pouches and
in this manner the ban is being flouted.
Ms. Indira Jaisingh also placed before the Court
xerox copy of D.P.No.P.16012/12/11-Part I dated
27.08.2012 sent by the Special Secretary, Ministry of
Health and Family Welfare, Government of India to the
Chief Secretaries of all the States except the States of
Madhya Pradesh, Kerala, Bihar, Rajasthan, Maharashtra,
Haryana, Chattisgarh and Jharkhand and submitted that
the Court may call upon the remaining States and Union
Territories to issue necessary notifications.
In view of the statement made by the learned
Additional Solicitor General, we order issue of notice to the
Chief Secretaries of the States and the Administrators of
the Union Territories which have so far not issued
notification in terms of 2006 Act to apprise this Court with
the reasons as to why they have not taken action
pursuant to letter dated 27.08.2012.
We also direct the Secretaries, Health Department of
all the 23 States and 5 Union Territories to file their
affidavits within four weeks on the issue of total
compliance of the ban imposed on manufacturing and sale
of Gutkha and Pan Masala with tobacco and/or nicotine.
Put up on 03.05.2013.
The Registry is directed to send copies of this order
to the Chief Secretaries and the Secretaries, Health
Department as also the Administrators of Union
Territories, Secretaries of the Central and State Pollution
Control Board. Copies be also sent to the Commissioners
of 9 Municipal Corporations named hereinabove. The
copies of order be sent by fax within four days from
today."
(44) The aforesaid order makes it very clear that the
Secretaries, Health Department of all States/Union
Territories were directed to report compliance of complete
ban in respect of manufacturing and sale of gutka and
pan masala with tobacco and/or nicotine.
(45) Various States and Union Territories have issued
necessary orders/notifications under Regulation 2.3.4 of
the Food Safety Regulations, 2011 read with Section 30 of
the FSS Act 2006 banning sale of gutka and pan masala
(containing tobacco or nicotine). It is unfortunate that in
spite of issuance of such notifications, in order to
circumvent the ban of sale of gutka, the manufacturers
are selling pan masala (without tobacco) with flavoured
chewing tobacco in separate sachets and they are sold
together by the same vendor in the same premises so that
the consumer can buy pan masala and the flavoured
chewing tobacco, mix them and consume them. They are
being sold in twin packs to be mixed as one.
(46) Learned counsel for the petitioners has argued before
this Court that there is a conflict between the COTPA
2003 and the FSS Act 2006 and no impugned Notification
could have been issued under the FSS Act 2006. The
arguments canvassed by the learned counsel for the
petitioners are misplaced. The COTPA 2003 has been
enacted with an aim and object to prohibit the
advertisement of, and to provide for the regulation of trade
and commerce in, and production, supply and
distribution of, cigarettes and other tobacco products with
an aim to discourage the use or consumption of tobacco.
The object for the FSS Act 2006 is to ensure safe and
wholesome food for the people. The primary concern and
purpose of the FSS Act 2006 is that promotion of public
health and protection of the right to life of the citizens of
the country and the purpose, aim and the object of the
Food Safety Regulations, 2011 is to ensure safety/health
of citizens of this country by prohibiting any article of food
which are injurious to the health of general public. It is an
undisputed fact that tobacco products which are subject
matter of the impugned Notification are injurious to
general health of the public.
(47) Learned counsel for the petitioners have argued
before this Court that there is a conflict between the FSS
Act 2006 and COTPA 2003. Section 89 of the FSS Act
2006 makes it very clear that it has overriding effect of all
the legislations including the COTPA 2003. The FSS Act
2006 has been enacted later to the COTPA 2003 and
therefore, the FSS Act 2006 will prevail over the COTPA
2003. The law laid on the aforesaid issue is no longer res
integra. The Hon'ble Supreme Court in Allahabad Bank
(supra), Anay Kumar Banerjee (supra) and S.Prakash (supra)
has held as under:-
"a. Where two Central Acts appear to be seemingly
in conflict with each other, the endeavour of Court should
be to harmonize the two Acts seemingly in conflict.
b. Where there is a direct conflict (repugnancy)
between two special Acts, both being special laws, the
following rules shall apply:
(i) The later Act will prevail over the earlier Act.
(ii) If there is a provision in one of the Acts giving
overriding effect then that Act will prevail.
(iii) A later Act, even if it is a general Act, can prevail
over an earlier special Act, in the case of a
repugnancy if there is no express provision to the
contrary in the earlier special Act."
(48) The Hon'ble Supreme Court in the case of
R.Krishnamurthy (supra) has held as under:-
"7. According to the definition of "food" which we
have extracted above, for the purposes of the Act, any
article used as food or drink for human consumption and
any article which ordinarily enters into or is used in the
composition or preparation of human food is "food". It is
not necessary that it is intended for human consumption
or for preparation of human food. It is also irrelevant that
it is described or exhibited as intended for some other use.
It is enough if the article is generally or commonly used
for human consumption or in the preparation of human
food. It is notorious that there are, unfortunately, in our
vast country, large segments of population, who, living as
they do, far beneath ordinary subsistence level, are ready
to consume that which may otherwise be thought as not
fit for human consumption. In order to keep body and
soul together, they are often tempted to buy and use as
food, articles which are adulterated and even unfit for
human consumption but which are sold at inviting prices,
under the pretence or without pretence that they are
intended to be used for purposes other than human
consumption. It is to prevent the exploitation and self-
destruction of these poor, ignorant and illiterate persons
that the definition of "food" is couched in such terms as
not to take into account whether an article is intended for
human consumption or not. In order to be "food" for the
purposes of the Act, an article need not be "fit" for human
consumption; it need not be described or exhibited as
intended for human consumption; it may even be
otherwise described or exhibited; it need not even be
necessarily intended for human consumption; it is enough
if it is generally or commonly used for human
consumption or in the preparation of human food. Where
an article is generally or commonly not used for human
consumption or in the preparation of human food but for
some other purpose, notwithstanding that it may be
capable of being used, on rare occasions, for human
consumption or in the preparation of human food, it may
be said, depending on the facts and circumstances of the
case, that it is not "food". In such a case the question
whether it is intended for human consumption or in the
preparation of human food may become material. But
where the article is one which is generally or commonly
used for human consumption or in the preparation of
human food, there can be no question but that the article
is "food". Gingerly oil, mixed or not with groundnut oil or
some other oil, whether described or exhibited as an
article of food for human consumption or as an article for
external use only is "food" within the meaning of the
definition contained in Section 2(v) of the Act."
(49) Keeping in view the aforesaid definition, the articles
mentioned in the impugned Notification are certainly
included within the definition of 'food' and this Court does
not find any reason to interfere with the impugned
Notification.
(50) Learned counsel for the petitioners has placed heavy
reliance upon the Judgment delivered in the case of
Godawat Pan Masala Products (supra). However, the said
Judgment was delivered prior to enactment of the FSS Act
2006 and the Regulations made thereunder. The
definition of 'food' under the Prevention of Food
Adulteration Act, 1954 and the FSS Act 2006 are
reproduced as under:-
"Definition of 'food' under the Prevention of Food
Adulteration Act, 1954:
2(v) "food" means any article used as food or drink
for human consumption other than drugs and water and
includes-
(a) any article which ordinarily enters into, or is
used in the composition or preparation of,
human food,
(b) any flavouring matter or condiments, and
(c) any other article which the Central
Government may, having regard to its use,
nature, substance or quality, declare, by
notification in the Official Gazette, as food for
the purposes of this Act.
Definition of 'food' under the FSS Act 2006:-
"3 (j) any substance, whether processed, partially
processed or unprocessed, which is intended for human
consumption and includes primary food, to the extent
defined in clause 3 (ZK) genetically modified or engineered
food or food containing such ingredients, infant food,
packaged drinking water, alcoholic drink, chewing gum,
and any substance, including water used into the food
during its manufacture, preparation or treatment but does
not include any 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;
Provided that the Central Government may declare,
by notification in the Official Gazette, any other article as
food for the purposes of this Act having regards to its use,
nature, substance or quality."
(51) The definition of 'food' under the FSS Act 2006 is a
very wide and exhaustive definition and as per the
definition under the FSS Act 2006, any substance, which
is intended for human consumption is included in the
definition of 'food'. Not only this, even in the case of
Godawat Pan Masala Products (supra), the Hon'ble Supreme
Court has held that pan masala or gutka to be covered
under the definition of 'food'. However, only on a limited
issue of jurisdiction, it was held that the power of
prohibition is only vested with the Central Government
and not with the State Food and Health Authorities. The
definition of 'food' has witnessed a sea change and
keeping in view Section 89 of the FSS Act 2006, as the
FSS Act 2006 is having overriding effect over the other
statutes, the respondent No.3/ Commissioner of Food
Safety, Telangana was well within his competence to issue
the impugned Notification banning the food items which
are subject matter of the Notification. The Hon'ble
Supreme Court in the case of Laxmikant (supra), held as
under:-
"10. Therefore, the International Conference held
in collaboration with the World Health Organisation was of
the opinion that the ban on use of tobacco in toothpaste
and toothpowder should totally be imposed since it is
prone to cancer. Under these circumstances, the view
taken by the Government of India imposing total
prohibition on the use of tobacco in the preparation of
toothpowder and toothpaste is well justified in the public
interest covered by Article 19(6) of the Constitution,
though it offends the right to carry on trade guaranteed
under Article 19(1) of the Constitution. The imposition of
total ban is in the public interest."
(52) In the aforesaid case, total ban on use of tobacco in
toothpaste and toothpowder was upheld by the Hon'ble
Supreme Court even though offended the right to carry on
trade guaranteed under Article 19(1) of the Constitution of
India as the imposition of ban was on public interest.
(53) The matter relating to imposition of restrictions on
sale of pan masala containing tobacco and other tobacco
products was considered by the Bombay High Court in the
case of M/s.Dhariwal Industries Limited (supra). A prayer
was also made to declare Regulation 2.3.4 and Regulation
3.1.7 of the Food Safety Regulations, 2011 as ultra vires
and a prayer was also made for granting an interim relief.
Various grounds were raised before the Division Bench of
the Bombay High Court for grant of stay and the Bombay
High Court in paragraph 61 has held as under:-
"61. After taking into consideration the provisions of
Prevention of Food Adulteration Act, 1954 and the Rules
thereunder, Food Safety and Standard Act, 2006, the
Regulations made thereunder, the Cigarettes Act, 2003,
the judgment of the Supreme Court in Ghodawat case and
the material on record, and after considering the rival
submissions and the decisions cited at the Bar, we are of
the view that this is not a fit case for granting any of the
interim reliefs prayed for by the petitioners. Hence, prayer
for interim stay against the implementation of the
impugned statutory order dated 19th July 2021 issued by
the Food Safety Commissioner, Maharashtra State in
public interest in exercise of the power conferred by
Section 30(2)(a) of the Food Safety and Standards Act,
2006 is rejected."
(54) No interim relief was granted in respect of the
Regulations. Challenges were made throughout India and
various orders have been passed by the State of Telangana
by which a prayer for grant of interim relief was rejected.
The Bombay High Court in its recent Judgment in the
case of Mohammad Yamin Naeem Mohammad v. State of
Maharashtra29, in similar circumstances, has exhaustively
dealt with legislative competence of the State and the
restrictions imposed by the State Government. Paragraphs
40 to 45 of the said Judgment are reproduced as under:-
"40. A lot has been said about COPTA, holding the
field as against the FSSA. In this regard, it is material to
note, that COPTA was enacted on 18/5/2003, in which
Section 3 (p) defines "tobacco products" to mean the
products specified in the schedule. The schedule at Serial
No. 8, specifies Pan Masala or any chewing material
having tobacco as one of its ingredients (by whatever
named called) and at Serial No. 8 specifies Gutkha. To
understand basic difference between the provisions of
COPTA and FSSA, it is necessary to consider what is
2021 SCC OnLine Bom 26
contemplated by Sections 5, 6 and 7 of COTPA, which for
ready reference are reproduced as under:--
5. Prohibition of advertisement of cigarettes and other
tobacco products.-
(1) No person engaged in, or purported to be engaged in
the production, supply or distribution of cigarettes or any
other tobacco products shall advertise and no person
having control over a medium shall cause to be advertised
cigarettes or any other tobacco products through that
medium and no person shall take part in any
advertisement which directly or indirectly suggests or
promotes the use or consumption of cigarettes or any
other tobacco products.
(2) No person, for any direct or indirect pecuniary benefit,
shall--
(a) display, cause to display, or permit or
authorise to display any advertisement of
cigarettes or any other tobacco product; or
(b) sell or cause to sell, or permit or authorise to
sell a film or video tape containing
advertisement of cigarettes or any other
tobacco product; or
(c) distribute, cause to distribute, or permit or
authorise to distribute to the public any
leaflet, hand-bill or document which is or
which contains an advertisement of
cigarettes or any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any
land, building, wall, hoarding, frame, post or
structure or upon or in any vehicle or shall
display in any manner whatsoever in any
place any advertisement of cigarettes or any
other tobacco product:
Provided that this sub-section shall not apply in
relation to--
(a) an advertisement of cigarettes or any other
tobacco product in or on a package
containing cigarettes or any other tobacco
product;
(b) advertisement of cigarettes or any other
tobacco product which is displayed at the
entrance or inside a warehouse or a shop
where cigarettes and any other tobacco
products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise
promote or agree to promote the use or consumption of--
(a) cigarettes or any other tobacco product; or
(b) any trade mark or brand name of cigarettes
or any other tobacco product in exchange for
a sponsorship, gift, prize or scholarship
given or agreed to be given by another
person.
6. Prohibition on sale of cigarette or other tobacco products
to a person below the age of eighteen years and in particular
area.-No person shall sell, offer for sale, or permit sale of,
cigarette or any other tobacco product- (a) to any person
who is under eighteen years of age, and (b) in an area
within a radius of one hundred yards of any educational
institution.
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.
41. It would thus be apparent that Section 5 deals with
prohibition of advertisement of cigarettes and other
tobacco products; Section 6 deals with prohibition on sale
to person below the age of 18 years and in particular area;
Section 7 deals with restrictions on trade and commerce
in, production, supply and distribution of cigarettes and
other products, unless every package bears the specified
warning; Section 8 provides the manner in which specified
warning shall be made; Section 9 provides the language of
the warning; Section 10 provides size of letters and figures
of the warning; Section 11 provides the testing laboratory
for nicotine and tar contents; Section 13 provides for the
power to seize, whereas Section 14 provides for
confiscation; Section 15 speaks of an option to pay cost in
lieu of confiscation; Section 17 provides for adjudication;
Section 18 provides for an opportunity based upon the
principles of natural justice; Section 18 provides for an
appeal. The other provisions provide for punishment and
forfeiture. What is material to be noted is that COPTA has
not been given any overriding effect upon any other law,
holding the field or which may be enacted. The regulatory
mechanism in COPTA is restricted to ensuring that the
sale, storage, distribution, of cigarettes and other tobacco
products is not without the warning label and is to
persons above the restricted age and to discourage the use
of tobacco. COPTA does not deal with the long term effects
of smoking and consumption of tobacco and other
products on the health of citizens.
42. As against this, the FSSA is a more comprehensive
Act, dealing with the larger issue of Safety and Standards
of Food in the country and in view of Regulation 2.3.4,
prohibiting use of tobacco and nicotine as ingredients in
any food products in the Food Safety and Standards
(Prohibition and Restrictions On Sales) Regulations, 2011;
by including Pan Masala in Regulation 2.11.5, Anti-caking
agents in Regulation 3.1.7 in the Food Safety and
Standards (Food Products Standards and Food Additives)
Regulations, 2011, has included tobacco and tobacco
products, including Gutkha and Pan Masala within the
definition of food as enumerated in Section 3 (j) of the
FSSA.
43. In fact, in Raju Laxman Pachapure v. The State of
Karnataka, [(2012) 2 FAC 378] itself, relied upon by
Mr. Bhangde, learned Senior Counsel for the petitioners,
the Court, while considering the provisions of the
Prevention of Food Adulteration Act, 1954, the harbinger
of the FSSA, in juxtaposition with those of COPTA, placing
reliance upon the judgment in Godawat Pan
Masala (supra) noticed the difference between the two
enactments, as under:
"25. It is true the Apex Court in Godawat Pan
Masala's case held that mere traces of magnesium
carbonate formed during consumption of product along
with lime cannot be banned, but in the instant case
anticaking agent viz., magnesium carbonate is not
found during consumption but the analytical report
discloses that magnesium carbonate is contained in the
very sample which, in our considered opinion may be
either externally added or present in the raw materials.
Whatsoever the case may be, the report discloses that
there is usage of anticaking agent viz., magnesium
carbonate in the food article in question namely gutka.
That apart Supreme Court in the very same decision
held that the provisions of PFA Rules framed and
directions issued thereunder cannot be said as not
applicable merely because licence is contemplated for
manufacture of gutka under the Cigarettes and other
Tobacco Products (Prohibition of Trade and Commerce,
Production, Supply and Distribution) Act, 2003. The
PFA Act was legislated for the prevention of
adulteration of food whereas Cigarettes and other
Tobacco Products (Prohibition of Trade and Commerce,
Production, Supply and Distribution) Act, 2003 is
intended to prohibit advertising and to regulate the
trade and as such there is no conflict between the
legislative objects between the two enactments."
(emphasis supplied)
44. Section 89 of the FSSA being material is
reproduced as under:
"89. Overriding effect of this Act over all other food related
laws.-- The provisions of this Act shall have effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force or
in any instrument having effect by virtue of any law
other than this Act."
(emphasis supplied)
45. It is thus material to note that Section 89 of the
FSSA, gives the provisions of the FSSA, an overriding
effect on all other food related laws. Once it is held that
tobacco and other products, fall within the definition of
food as enumerated in Section 3 (j) of the FSSA, the
overriding effect of Section 89 of the FSSA, would make
the FSSA hold the field instead of COPTA. Joshy
K.V. v. State of Kerala, Rep. by the Secretary to the
Department of Health and Welfare, Government Secretariat,
Thiruvananthapuram [(2013) 1 KLJ 428], Omkar Agency,
through its Proprietor v. the Food Safety and Standards
Authority of India [2016 SCC OnLine Pat 9231] and Sanjay
Anjay Stores v. the Union of India, [2017 SCC OnLine Cal
16323], which take a contrary view, according to us, do
not lay down the correct law.
(55) The Division Bench of the Bombay High Court has
dealt with all the issues, similar to the issues raised in the
present writ petitions. In the considered opinion of this
Court, the question of interference by this Court in
respect of Notification which is bound to save human lives
cannot be faulted with in any manner. The entire globe is
facing COVID-19 pandemic and the death rate on account
of gutka/pan masala and other tobacco products is more
than the deaths which are taking place on account of
pandemic. The people are suffering from cancer and other
diseases and the restriction imposed is in larger public
interest and is a reasonable restriction and in no way
offends the right to carry on trade guaranteed under the
Constitution.
(56) In the light of the aforesaid, this Court does not find
any reason to interfere with the impugned Notification and
resultantly, the writ petitions are dismissed.
Miscellaneous petitions, if any pending, shall stand
dismissed. There shall be no order as to costs.
_____________________________
SATISH CHANDRA SHARMA, CJ
__________________________
A.RAJASHEKER REDDY, J
30.11.2021
Pln
Note: LR copy be marked.
(By Order)
Pln
