2018 (11) TMI 531 - HC - Indian Laws

Illegal sale of banned products like gutkha and pan masala in the city - whether this Court should constitute a Special Investigation Team to investigate into the involvement of State and Central Government officials and public servants in the manufacture, sale and distribution of gutkha and pan masala containing tobacco and/or nicotine in the State of Tamil Nadu? Held that - In exercise of power under Article 226 of the Constitution of India, the Court can entertain a petition in public interest whenever its attention is drawn to any injustice or patent illegality. In a public interest litigation, the common rule of locus standi is relaxed and any public spirited citizen can approach this Court to seek redress on behalf of the public in general or any specific group - The Court is constitutionally bound to protect the fundamental rights of the people. If issues of public importance and infringement of fundamental and other basic rights of a large number of people are raised, the Court would be duty bound to pass necessary orders. Whenever injustice is meted out, the Court would not hesitate to step in. The unabated sale of gutkha and other forms of chewable tobacco adversely affecting the health of the community is a matter which calls for interference of this Court. It is well settled that the endeavour of the Court should be to harmonize two Acts seemingly in conflict. Of course, in this case there does not appear to be any conflict between COTA and the Food Safety Act. COTA is in addition to and not in derogation of other laws relating to food products. There is no non obstante clause in COTA which excludes the operation of other Acts. Considering the harmful effects of consumption of chewable tobacco, such as gutkha, which leads to fatal ailments such as cancer, this court cannot shut its eyes to the malaise of illegal manufacture and sale of gutkha within the jurisdiction of this High Court, i.e., the State of Tamil Nadu and the Union territory of Puducherry - The illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco is an organized crime which has inter-State ramifications. It involves breach of Central Laws, including Central Excise Laws and the Income Tax Laws, apart from the Food Safety Act, which in itself is a Central Law, which the Central Government and the State Governments are obliged to enforce. The Prevention of Food Adulteration Act having repealed and replaced by the Food Safety Act, any reference in a statutory notification to the repealed Prevention of Food Adulteration Act would have to be construed as reference to the Food Safety Act by virtue of Section 8 of the General Clauses Act, 1897. There can, therefore, be no doubt that CBI has the power to investigate into the illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco. The handing over of investigation to CBI only ensures a co-ordinated investigation, particularly in specified categories of serious offences having ramifications in more than one State. It neither casts any aspersion on the mode and manner of investigation conducted by the State Police or the State Vigilance authorities nor does it necessarily reflect any finding even prima facie of interference of any constitutional authority or any high official of the State Government in such investigation - It is well-settled that justice should not only be done, but manifestly be seen to have been done. Justice is delivered not just by the Courts which adjudicate disputes and exercise powers of judicial review, but also by the Executive which administers the law. A fair and impartial investigation is an essential ingredient of delivery of justice and investigation should not only be fair and impartial, it should manifestly be seen to be fair and impartial. It appropriate to direct the CBI to investigate into all aspects of the offence of illegal manufacture, import, supply, distribution and sale of gutkha and other forms of chewable tobacco which are banned in the State of Tamil Nadu and the Union territory of Puducherry, including detection of and action against those involved in the offence as aforesaid, whether directly or indirectly, by aiding abetting the offence or interfering with attempts to curb the offence - This order is not only imperative to stop the menace of the surreptitious sale of gutkha and chewable forms of tobacco which pose a health hazard to people in general and in particular the youth and to punish the guilty, but also to instil faith of the people in the fairness and impartiality of the investigation. Petition disposed off.

Summary

Issues Involved:
1. Illegal manufacture and sale of chewable forms of tobacco like Gutkha and Pan Masala.
2. Violation of the Food Safety and Standards Act, 2006, and the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011.
3. Allegations of corruption and bribery involving high-ranking officials.
4. Request for transfer of investigation to the Central Bureau of Investigation (CBI).

Detailed Analysis:

1. Illegal Manufacture and Sale of Chewable Forms of Tobacco:
The petitioner, a Member of the Legislative Assembly, filed a writ petition under Article 226 of the Constitution of India against the illegal manufacture and sale of chewable forms of tobacco like Gutkha and Pan Masala in Tamil Nadu, which are believed to cause life-threatening ailments such as cancer. The petitioner highlighted the high prevalence of chewable tobacco use among the younger generation, leading to severe health issues and deaths.

2. Violation of the Food Safety and Standards Act, 2006, and the 2011 Regulations:
The Food Safety and Standards Act, 2006, aims to consolidate food laws and ensure the availability of safe and wholesome food. The 2011 Regulations, framed under this Act, specifically prohibit the use of tobacco and nicotine as ingredients in any food products. Despite these regulations and subsequent notifications banning the sale of Gutkha and Pan Masala with tobacco and/or nicotine, the petitioner alleged that these products continued to be sold openly in Tamil Nadu.

3. Allegations of Corruption and Bribery:
The petitioner alleged that several high-ranking officials, including a Health Minister, police officers, and Central Excise officials, were involved in the illegal Gutkha trade. The allegations were supported by documents seized during Income Tax Department raids, which revealed payments to various officials. The petitioner argued that these officials provided protection to the tobacco mafia, allowing the illegal trade to flourish.

4. Request for Transfer of Investigation to CBI:
The petitioner requested that the investigation into the Gutkha scam be handed over to the CBI, citing the involvement of high-ranking officials and the inter-State nature of the illegal trade. The petitioner argued that a fair and impartial investigation was necessary, which could only be ensured by the CBI. The State opposed this request, arguing that the Directorate of Vigilance and Anti-Corruption was already investigating the matter and that the power to transfer the investigation should be exercised sparingly.

Court's Decision:
The court acknowledged the serious health risks posed by the illegal manufacture and sale of Gutkha and other forms of chewable tobacco. It noted the allegations of corruption involving high-ranking officials and the inter-State nature of the illegal trade. The court held that the definition of "food" under the Food Safety Act, 2006, includes Gutkha and other forms of chewable tobacco, making them subject to the Act's provisions.

The court decided that the investigation should be transferred to the CBI to ensure a fair and impartial inquiry. It emphasized that the CBI's investigation would cover all aspects of the illegal trade, including the involvement of officials and the modus operandi of the Gutkha mafia. The court clarified that this direction should not be construed as a finding of complicity against any specific official but was necessary to curb the illegal trade and restore public faith in the investigation process.

Conclusion:
The writ petition was disposed of with the direction to transfer the investigation to the CBI. The court highlighted the importance of a comprehensive and impartial investigation to address the serious health risks posed by the illegal Gutkha trade and the alleged involvement of high-ranking officials in facilitating this trade.