2023 (4) TMI 67 - HC - Indian Laws

FSSA - Restriction / Prohibition on the manufacture, storage, distribution or sale of Gutka, Pan Masala, flavoured/scented tobacco, Kharra and similar products - Constitutional Validity of Notification issued by the Commissioner of Food Safety, Government of National Capital Territory of Delhi (NCT of Delhi) in view of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 (Regulation 2.3.4) in purported exercise of power under Section 30(2)(a) of Food Safety and Standards Act, 2006 - violation of the fundamental and other legal rights of the Petitioners - power to prohibit the sale of chewing tobacco - food within the ambit of Section 3(1)(j) of the FSSA or not. Legality of imposition of such ban by issuance of a Notification or an order by an administrative body. HELD THAT - One of the main grounds on which the impugned Notifications have been challenged by the Petitioners is them being arbitrary and ultra vires the FSSA as Respondent No.1 is not empowered under the provisions of the FSSA, or the rules and regulations made thereunder to impose such a prohibition on manufacture, storage, distribution or sale of chewing tobacco since the same is a scheduled product under the COTPA and cannot in any manner be construed as food within the ambit of the FSSA. The Respondents, on the contrary, have argued that Respondent No.1 was well within his rights to issue the impugned Notifications under Regulation 2.3.4, who has been mandated with power under Section 30(2)(a) of the FSSA to prohibit the manufacture, storage, distribution and sale of any article of food, such as chewing tobacco, in the interest of public health and welfare. The FSSA is an Act to consolidate all laws relating to food and to establish the FSSAI for laying down science-based standards for articles of food. As per the Preamble of the FSSA, the purpose of the FSSA is to provide safe, wholesome and unadulterated food to consumers. The Statement of Objects and Reasons of COTPA states that it is an Act for regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith - The power to establish standards of quality for goods under the FSSA would not include within its purview the power to prohibit the manufacture, sale, storage and distribution of any goods, moreover, when the goods sought to be prohibited pertain to the scheduled tobacco products under the COTPA. The Hon ble Supreme Court in the case of Himat Lal K. Shah 1972 (9) TMI 149 - SUPREME COURT has explicitly held that the power to regulate does not normally include the power to prohibit. A power to regulate implies the continued existence of that which is to be regulated. In view of ratio laid down by Himat Lal and bare perusal of the entire scheme of the FSSA, it is apparent that power to frame Regulations does not include the power to prohibit manufacture, distribution, storage and sale of a product. On the bare perusal of Regulation 2.3.4, it is apparent that the intention is not to prohibit but restrict the use of tobacco or nicotine as ingredients in any food product. In the considered view of this Court, the language of Regulation 2.3.4 does not suggest regulating manufacture, distribution, storage or sale of tobacco or nicotine but amounts to regulating standards of food within the purview of the FSSA. Therefore, what has to be regulated under Regulation 2.3.4 is food without tobacco and not tobacco itself which is a scheduled item under the COTPA, which has to accordingly be regulated under the provisions of COTPA - the impugned Notifications passed by the Commissioner of Food Safety in view of Regulation 2.3.4 in exercise of powers under Section 30(2)(a), in so far as they prohibit the use of tobacco and nicotine with respect to scheduled tobacco products covered under the COTPA, are beyond the scope of powers conferred by the FSSA. The COTPA was enacted by the Parliament under Entry 52 of List I to Schedule VII of the Constitution and once the Parliament chooses to exercise its competence in terms of Entry 33 of List III, it may take over the entire gamut of activities. The power of State Legislatures to enact laws relating to Trade and Commerce within the State‟ and Production, supply and distribution of goods‟ under Entry 26 and Entry 27 of List II is subject to Entry 33 of List III, which enables the Parliament to legislate with respect to the aforesaid matters in relation to the tobacco industry amongst others - once the Parliament has exercised power under Entry 52 of List I in order to take the entire tobacco industry under its control, the State Legislatures are not competent to enact laws on the said subject. The Hon ble Supreme Court, in the case of Godawat Pan Masala 2004 (8) TMI 692 - SUPREME COURT , observed that the legislation enacted to deal with tobacco does not suggest that the Parliament has ever treated tobacco as res extra commercium nor has the Parliament ever attempted to ban its use absolutely. Merely licensing regulation, duties and taxes have been imposed on tobacco products. The Hon ble Supreme Court further examined whether tobacco can be treated as res extra commercium‟, and held that In any event, whether an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of legislature and not by a mere notification issued by an executive authority. The FSSA is an Act to consolidate the laws relating to food and for laying down sciencebased standards for articles of food and to regulate their manufacture, storage, distribution, sale and import to ensure safe and wholesome food for human consumption and incidental matters. Whereas the COTPA is a comprehensive legislation which deals with advertisement, trade, sale and distribution of tobacco and tobacco products. The Union Government assumed control to legislate with regard to both the food industry and the tobacco industry, therefore, it is certain that at the time of enactment of the FSSA, the Legislature was not only aware and conscious of the existence of the COTPA, which was enacted in 2003 but made various rules under the COTPA and carried out multiple amendments in provisions and rules framed thereunder even after the enactment of the FSSA in 2006 - it can be observed that the COTPA, being a special law‟, occupies the field for tobacco and tobacco products and would prevail over the FSSA which is a general law . Whether the enactment of the FSSA impliedly repeals the COTPA? - HELD THAT - It is a settled position of law that there is a presumption against repeal by implication. Thus, when a new Act contains a repealing section mentioning the Acts which it expressly repeals, then there is a presumption against implied repeal of other laws which are not specifically mentioned therein. In such cases, the burden to show that there has been repeal by implication lies on the party asserting the same - the doctrine of implied repeal has no application to the present case because both the aforementioned Acts i.e., FSSA and COTPA occupy different fields i.e., the former applies to the food industry while the latter applies to the tobacco industry. Hence, in the considered view of this Court, the FSSA does not impliedly repeal the provisions of the COTPA. Admittedly, the object sought to be achieved by the said prohibitory order(s) in the nature of the impugned Notifications, is public health . However, there is no justification whatsoever for making such a differentiation in smokeless and smoking tobacco, which may be different in their forms but are no different in terms of their impact on public health. It is worthwhile to note that the COTPA, which is the Central Act governing the tobacco industry, does not make any such distinction between smokeless and smoking tobacco under its Schedule - it is apparent that the said classification/distinction between smokeless and smoking tobacco has no connection with the object sought to be achieved by the impugned Notifications. In fact, the said discrimination which is being promoted by the impugned Notifications encourages smoking tobacco over smokeless tobacco, thereby being not only clearly discriminatory but in violation of Article 14 of the Constitution. This Court is of the considered view that the classification sought to be created between smokeless and smoking tobacco is clearly violative of Article 14 of the Constitution - this Court is conscious of the harmful effects and various diseases caused by the use of tobacco, both smokeless and smoking. In addition to the ill-effects of smokeless tobacco pointed by the Respondents, this Court is of the view that tobacco, in any form, not only smokeless but also smoking, is injurious to public health and this Court accordingly condemns and discourages the use of any form of tobacco. Public health is one of the most important part of the society and country and therefore, it is necessary to take all steps to preserve the same in all possible manners. This Court is of the considered view that the impugned Notifications passed by the Commissioner of Food Safety in view of Regulation 2.3.4 in exercise of powers under Section 30(2)(a), is beyond the scope of powers conferred upon him by the FSSA - the COTPA is a comprehensive legislation dealing with the sale and distribution of scheduled tobacco products and therefore, occupies the entire field relating to tobacco products. Therefore, the COTPA, being a special law, occupies the entire field for tobacco and tobacco products and would prevail over the FSSA which is a general law. This Court is of the considered view that while issuing the impugned Notifications, the Respondent No.1/Commissioner of Food safety exceeded its power and authority in contravention of the powers vested in him under the FSSA and therefore, the said impugned Notifications are hereby quashed and set aside. The present Writ Petitions are allowed.

Summary

Issues Involved:
1. Legality and validity of the impugned Notifications issued by the Commissioner of Food Safety under the FSSA.
2. Whether tobacco and tobacco products fall within the definition of "food" under the FSSA.
3. Whether the FSSA impliedly repeals the COTPA.
4. Whether the Commissioner of Food Safety has the power to prohibit the manufacture, storage, distribution, or sale of tobacco products under the FSSA.
5. Whether the impugned Notifications violate Article 14 of the Constitution by discriminating between smokeless and smoking tobacco.

Detailed Analysis:

1. Legality and Validity of the Impugned Notifications:
The Petitioners challenged the impugned Notifications on the grounds of being arbitrary and ultra vires the FSSA. The Respondents contended that the Commissioner of Food Safety was empowered under Section 30(2)(a) of the FSSA to issue such Notifications in the interest of public health. The Court held that the power to prohibit conferred upon the Commissioner of Food Safety is temporary and limited to a maximum period of one year. The impugned Notifications were issued year after year without following the mandatory principles laid down under Section 18 and 30(2)(a) of the FSSA, constituting a clear abuse of power.

2. Definition of "Food" Under the FSSA:
The Court examined whether tobacco and tobacco products fall within the definition of "food" under Section 3(1)(j) of the FSSA. The Court noted that the FSSA was enacted to regulate the food industry and lay down science-based standards for food articles. Tobacco, being a scheduled product under the COTPA, cannot be construed as "food" under the FSSA. The Court emphasized that no science-based standards can be laid down for tobacco to ensure its safe and wholesome consumption, thereby excluding tobacco from the ambit of "food" under the FSSA.

3. Implied Repeal of the COTPA by the FSSA:
The Court held that the doctrine of implied repeal does not apply in this case. Both the FSSA and the COTPA occupy different fields, with the former regulating the food industry and the latter regulating the tobacco industry. The COTPA, being a special Act, prevails over the FSSA, a general Act, in matters relating to tobacco and tobacco products. The FSSA does not impliedly repeal the provisions of the COTPA.

4. Power of the Commissioner of Food Safety:
The Court held that the power to prohibit conferred upon the Commissioner of Food Safety under Section 30(2)(a) of the FSSA is temporary and subject to compliance with the principles of natural justice. The impugned Notifications were issued in a mechanical manner without following the mandatory procedures, including risk analysis, risk assessment, and providing an opportunity of being heard to the affected parties. Therefore, the Commissioner exceeded his authority under the FSSA.

5. Violation of Article 14 of the Constitution:
The Court held that the impugned Notifications discriminated between smokeless and smoking tobacco without any rational nexus to the object sought to be achieved, i.e., public health. Both forms of tobacco are harmful, and there is no justification for treating them differently. The classification created by the impugned Notifications was arbitrary and violated Article 14 of the Constitution, which guarantees equality before the law.

Conclusion:
The Court quashed the impugned Notifications issued by the Commissioner of Food Safety, holding them to be beyond the scope of powers conferred by the FSSA. The Court emphasized that the COTPA, being a special Act, prevails over the FSSA in matters relating to tobacco and tobacco products. The classification between smokeless and smoking tobacco was found to be discriminatory and violative of Article 14 of the Constitution.