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TMI Blog2012 (9) TMI 1121X X X X Extracts X X X X X X X X Extracts X X X X ..... tate in Original Side matters, Mr. D.J. Khambata, Advocate General with Mr. S.K. Shinde, Government Pleader, Mr. A.B. Vyagyani, Assistant Government Pleader and Mr. Prashant Darandale, Assistant Government Pleader for respondent-State in Appellate Side matters and Mr. Kevic Setalvad, Additional Solicitor General for Union of India ORDER M.S. Shah, C.J. 1. Rule, returnable in the first week of July 2013. Heard the learned counsel on the question of interim relief. The writ petitioners are companies engaged in the business of manufacture, supply and distribution of pan masala containing tobacco (known as gutka) and pan masala not containing tobacco. The petitioners claim to have licences and permissions under the Prevention of Food Adulteration Act, 1954 which is now replaced by the Food Safety and Standards Act, 2006 and the other legislations. According to the learned counsel for the petitioners in five petitions, the petitioners' factories are situate outside the State of Maharashtra. Statutory Regulations and Standing Order under challenge : The petitioners have challenged the validity of the following provisions of two different Regulations under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et and any other products marketed separately to constitute as Gutka or Pan Masala etc. as final products in the State of Maharashtra, for a period one year from the date of publication of the order in the Maharashtra Government Gazette. The order was published in the Maharashtra Government Gazette on 20 July 2012. BROAD CHALLENGES 3. The above regulations and the impugned order are challenged broadly on the following grounds:- (i) The prohibition similar to one contained in the impugned order dated 19 July 2012 was struck down by the Supreme Court in Ghodawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, (2004) 7 SCC 68 (the Ghodawat judgment). In the above judgment, the Supreme Court in terms held that the Cigarettes and other Tobacco Products (Prohibition of Advertisements) and Regulation of Trade commerce, Production, Supply Distribution Act, 2003 (the Cigarettes Act, COTPA Act or Act of 2003) is a comprehensive law on tobacco . Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called) and gutka are included at items 8 and 9 respectively in Schedule to the above Act of 2003. The Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 300A of the Constitution. In Ghodawat, the Supreme Court had considered the stand of the State Government that Gutka and Pan Masala are injurious to health but the Supreme Court held the total ban on Gutka and Pan Masala as unreasonable and violative of petitioners' fundamental rights under Article 19(1)(g) of the Constitution because on the one hand, the State Government did not ban chewing tobacco which has cent percent tobacco, but banned gutka which has only 6 to 7% tobacco. The Supreme Court also held that since the petitioners were granted licences under the PFA Act, the Act did not contemplate any total ban but on the contrary, permitted the petitioners to manufacture, distribute and supply gutka and pan masala. Similarly, Section 31 of the Food Safety Act, 2006 provides for granting licences and the petitioners who have such licences are entitled to carry on the business of manufacture, distribution and sale of pan masala and gutka. (vi) The impugned order dated 19 July 2012 is illegal as it is issued in violation of the principles of natural justice. (vii) The impugned order dated 19 July 2012 also violates the petitioners' rights under Articles 301 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al hearing of the writ petitions was likely to take considerable time, the learned counsel for the petitioners prayed for hearing on interim relief. Accordingly, the learned counsel for the parties as well as the learned counsel for the intervenor have been heard at length on the question of interim relief. Contentions (i) to (iii) - Does Cigarettes Act of 2003 occupy the entire field OR the Food Safety Act of 2006 is the comprehensive law on the subject? 7. The first contention of the learned counsel for the petitioners is that in the Ghodawat Judgment, the Supreme Court has in terms held that the Act of 2003 is comprehensive law on tobacco. The preamble to the said Act as well as the Statement of Objects and Reasons indicate that tobacco products are injurious to health and there is need to discourage the use of tobacco and tobacco products. However, the Act only regulates and imposes restrictions such as prohibition of advertisements and no sale of tobacco products to persons below 18 years of age, but the Act does not prohibit consumption of tobacco products. The Act regulates supply and distribution of tobacco products as would be clear from the provisions of section 31( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed to examine the draft notification dated 25 November 2005 for amendment of the Prevention of Food Adulteration Act. The expert group had at its meeting held on 22 and 24 March 2006 under the Chairmanship of Dr. Shiv Lal, Additional Director General made, interalia, the following recommendations:- The Group noted that there is no proposal to ban the manufacture and sale of tobacco, gutka or any tobacco product, but there is a proposal to exclude these products from the purview of the PFA Act 1954 because a separate specific legislation has been enacted by the Central Government to deal with tobacco products including Gutka under the name of The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution Act 2003 . The Group referred to and extracted the judgment of the Supreme Court in Ghodawat case. In view of the observations of the Hon'ble Supreme Court there is no proposal to ban the manufacture and sale of tobacco products under PFA Act but it is proposed through this amendment that these products be regulated under Tobacco Act (Act 34 of 2003). Accordingly the manufacture o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel for the petitioners also sought to rely upon the position prior to the order dated 19 July 2012 in support of their contentions that there was no total ban prior to the impugned order. 12. On the other hand, Mr. Darius Khambata, learned Advocate General for the State of Maharashtra and the Food Safety Commissioner, Maharashtra State as well as Mr. Kevic Setalvad, learned Additional Solicitor General for the Central Government have opposed the above submissions. It is submitted by the learned counsel for the respondents that Ghodawat judgment based on the provisions of the PFA Act, 1954 and the Cigarettes Act, 2003 does not continue to govern the field when there is a subsequent legislation made by Parliament itself being Food Safety and Standards Act, 2006 which is required to be read in light of its Preamble and Statement of Objects and Reasons. 13. It is further submitted on behalf of the respondents that the definition of food in wide and general terms is sufficient to include all food products including gutka and pan masala. Even the narrower definition of food in section 2(v) of the PFA Act, 1954 was considered by the Supreme Court wide enough to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as the Supreme Court judgment in Ghodawat case in 2004 holding pan masala and gutka to be food. The fact that tobacco and tobacco products are not excluded from the purview of Food Safety Act, 2006 clearly indicates that Parliament did not intend to exclude tobacco or tobacco products being used or being intended for human consumption from the purview of Food Safety Act, 2006. Moreover, the 2011 Regulations including the impugned regulations 2.3.4 and 3.1.7 were laid before each House of Parliament under section 93 of the Food Safety Act. The Parliament did not modify or nullify any of those Regulations and, therefore also the Regulations under the Food Safety Act must prevail. 16. Reliance is placed by learned counsel for the respondents on decisions of the Supreme court in Allahabad Bank v/s Canara Bank, AIR 2000 SC 1535 (para 40) and Ajay Kumar Banerjee v/s. Umed Singh, AIR 1984 SC 1130 (Para 39) and S. Prakash v/s. K.M. Kurian, AIR 1999 SC 2094 (Paras 10 to 13 and 15) in support of the following propositions:- (I) The endeavour of Court should be to harmonize two Acts seemingly in conflict. (II) In the case of a direct conflict (repugnancy) between two special stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medicinal products, cosmetic, narcotic and psychotropic substance. Obviously, gutka and pan masala do not fall in any of these excluded categories. The expression any substance which is intended for human consumption in FSS Act 2006 is also wider than the expression any article used as food or drink for human consumption in PFA Act, 1954. It is also pertinent to note that the definition of food in the Act of 2006 specifically includes chewing gum and any substance used into the food during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance which goes into the mouth for human consumption is sufficient to be covered by definition of food just as chewing gum may be kept in the mouth for some time and thereafter thrown out. Similarly gutka containing tobacco may be chewed for some time and then thrown out. Even if it does not enter into the digestive system, it would be covered by the definition of food which is in the widest possible terms. The definition of food under section 2 of the PFA Act was narrower than the definition of food under Food Safety Act, still the Supreme Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ruments on the subject and after making an indepth survey of the International scenario it was suggested that all acts and orders relating to food be subsumed within the proposed Integrated Food Law. The statement of objects and reasons also provides that the main object is to bring out a single statute relating to food. It is proposed to establish the Food Safety and Standards Authority of India which will fix food standards and regulate/monitor the manufacturing import, processing, distribution and sale of food, so as to ensure safe and wholesome food for the people. The Bill also makes single window to guide and regulate persons engaged in manufacture, processing, distribution and sale of food. The main features of the Bill are - (a) to (c) ... (d) single reference point for all matters relating to Food Safety and standards, regulations and enforcement; (e) shift from mere regulatory regime to self-compliance through Food Safety Management Systems; (f) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws; and (g) provision for graded penalties depending on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health may be adopted. In cases where there are reasonable grounds to suspect that a food may present a risk for human health, the Food Authority and the Commissioner of Food Supply shall inform the general public about the food, risk to health and measures being taken to prevent or eliminate that risk. Section 18(2)(a) also requires that the Food Authority shall, while framing regulations and specifying standards under the Act, ensure prevention of unsafe or contaminated or sub-standard food. It is, thus, clear that the authorities entrusted with the duty of implementing the Food Safety Act, 2006 are not merely to perform the negative duty of preventing food adulteration, but are required to play a very pro-active role for ensuring safe and wholesome food and to prevent and eliminate risk to health caused by unsafe food. It is, therefore, clear that Food Safety and Standards Act, 2006 is the comprehensive single special legislation for all food products on the subject of safety and standards. 23. Chapter IV of the Act further provides as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HCL acid .... (Emphasis supplied) 25. Since we have already held that the definition of food in the Food Safety Act is wide enough to include gutka and pan masala, it is obvious that the above regulations also apply to gutka and pan masala, Apart from, and even before, conferring powers of enforcement on the authorities under the Act in Chapter VII, Parliament has in Chapter VI of the Act cast special responsibilities as to food safety on the food business operators, manufacturers, workers, distributors and sellers. Food business operator is defined by section 3(o) as a person by whom food business is carried on or owned and is responsible for ensuring the compliance. Food business is defined as any undertaking carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food. Section 26(1) provides that every food business operator shall ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production etc. within the businesses under his control. The Parliament has not stopped at requiring the food business operator t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of different forms of smokeless tobacco used in the country. There is also strong association between smokeless tobacco and pancreatic cancer, throat cancer, oesophagal cancer, renal cancer and higher mortality rate. The use of smokeless tobacco also causes non-cancerous diseases/ conditions including nervous system diseases, metabolic abnormalities, reproductive complications and other diseases like gastrointestinal and respiratory diseases The study further reveals that areca nut or supari causes harmful effects like oral pre-malignant lasions, oral cancer, throat cancer, oesophagal cancer, liver cancer and non-cancerous diseases/conditions like hypertension and cardiovascular diseases, nervous system disease, metabolic abnormalities, reproductive abnormalities, liver and kidney diseases. 27. The learned counsel for the petitioners would, however, still submit that section 30(2)(a) conferring power on the Food Safety Commissioner of the State is similar to power of the State Government under section 7(iv) of the PFA Act, 1954. In the Ghodawat case, the Supreme Court held that the power of the State Government under section 7(iv) of the PFA Act was not an independent sour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and have been placed before each House of Parliament without any modifications having been made by Parliament. Section 30(2)(a) confers independent power on the Food Safety Commissioner in the State. As already noticed by us, Section 26 of the Food Safety Act directs that every food business operator shall not manufacture or distribute any article of food which is unsafe and that it is not necessary for the said obligation to be enforced that such a food article must be first prohibited by the Food Authority of India or the Central Government or the State Government. The Food Safety Commissioner in the State of Maharashtra noticed that 98% out of more than 1000 samples collected during the last seven years contained tobacco, nicotine or magnesium carbonate which are injurious to health and that the Food Authority of India had by statutory Regulations of 2011 already banned the manufacture of any product containing tobacco, nicotine or magnesium carbonate (excluding specific product like salt powder which could have up to 2% magnesium carbonate). The Food Safety Commissioner, State of Maharashtra was, thus, acting well within his powers to ensure that manufacturers, distributors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the Ghodawat case but, according to the petitioners, the Supreme Court did not consider them to be relevant for the purpose of deciding the legal question which had arisen before the Supreme Court. It is vehemently submitted by the learned counsel for the petitioners that in para 48 of the judgment, the Supreme Court had noticed that strangely, the States did not ban chewing tobacco or other tobacco products which contain almost cent percent tobacco, but they banned the sale of gutka which contains only about 6 per cent of tobacco and pan masala, which contains no tobacco whatsoever, even accepting on the correctness of the material presented. 32. It is, however, not the case of the petitioners that the material which was taken into consideration by the Food Authority of India while making the 2011 Regulations or the material which was placed before the Food Safety Commissioner of the State of Maharashtra in 2012 or the material which is placed before us was brought to the notice of the Supreme Court. This is clear from the finding in para 44 of the judgment in the Ghodawat case where the following observations were made:- 44. We are unable to discern as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted out in his affidavit dated 14 August 2012 that lime does not contain magnesium carbonate and that the magnesium carbonate in betel nut and lime is in miniscule scale. Betel nut does not contain carbonate but it only contains inherent and natural magnesium which is 2.8 nanogram per gram dry weight. The exact percentage of magnesium in betel nut/areca nut and slaked lime and catechu is as under:- i) The concentration of magnesium in Arecanut - 2.8 nanograms in 1 gm. = 0.0000000028% ii) The concentration of magnesium in slaked lime - 1.3 nanogram in 1 gm. = 0.0000000013% iii) The concentration of magnesium in catechu - 19.4 nanogram in 1 gm = 0.0000000194% It is, thus, clear that the percentage of magnesium carbonate in the natural product is so insignificant that the presence of magnesium carbonate in gutka and pan masala is in the extent of 2% or more cannot be explained merely by stating that magnesium carbonate is to be found in the natural agricultural products. It is, thus, clear that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an masala; instead of taking less drastic measures would suffice. The ban is, however, an unreasonable restriction on the fundamental rights under Article 19(1)(g). 38. We are unable to appreciate the above contentions because the Supreme Court had no occasion to consider the provisions of the Food Safety Act, 2006 and the Regulations subsequently made by the Food Authority of India in the year 2011 in exercise of the powers under sections 16 and 92 of the Food Safety Act, 2006. The impugned Regulations have been made by the Food Authority of India after consultation with the Central Government, after previous publication and the Regulations have been laid before each House of Parliament but no modification of the regulations has been made by the Parliament. We are, therefore, of the prima facie view that the Regulations have to be treated not merely as having force of law, but also as a part of the Food Safety Act, 2006 itself. 39. As regards the petitioners' contention that since chewing tobacco with 100% tobacco is not banned, total ban on gutka having 6 to 7% tobacco is unreasonable, learned counsel for the respondents and in particular learned Advocate General have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they enge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for the State Government to post inspectors outside each school to prevent sale of pan masala and gutka to school children or to inspect and test each batch of pan masala to find out whether it forms part of 98% or the remaining 2%. 43. In a catena of decisions, the Supreme Court has held that the Court should take into account not only the material on record but should also take judicial notice of circumstances including the widespread illiteracy and practicability of enforcement measures. In Pyarali K. Tejani v. Mahadeo Ramchandra Dange and others AIR 1974 SC 228, a Constitution Bench of the Supreme Court dealt with the contravention of the provisions of Prevention of Food Adulteration Act, 1954 in relation to supari. After holding that supari was covered by the definition of food under section 2(v) of the PFA Act, the Supreme Court made the following pertinent observations in paras 14 and 15:- 14. Even on cyclamates, the toxic degree is not too clear. There is considerable controversy both in the United States and the United Kingdom about a total ban on cyclamates but there is a growing volume of opinion that its use has caused bladder tumour when massive doses are fed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re. That is the comity of constitutional jurisdictions in our jurisprudence. We cannot evolve a judicial policy on medical issues or food additives and should refuse to invalidate Rules 44(g) and 47 on the mystic maybes and happy hopefuls held up before us by the appellant. (Emphasis supplied) 44. In Srinivas Enterprises v. Union of India (1980) 4 SCC 507, a Constitution Bench of the Supreme Court was dealing with the challenge to the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. While upholding the constitutional validity of the Act, the Supreme Court also dealt with the contention that some of the prize chits schemes were innocuous and they were not required to be banned. The Supreme Court repelled that contention in the following words: 12. The twin requirements of Article 19(6) are: (a) the reasonableness of the restriction upon the fundamental right to trade, and (b) the measure of the reasonableness being the compelling need to promote the interest of the general public. Public interest, of course, there is. But the controversy rages round the compulsive necessity to extinguish the prize chit enterprises altogether as distinguished from handcuffing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition of duties, upon the State or officers and authorities thereof. The Food Safety Commissioner, Maharashtra State exercising his powers under section 30(2)(a), is thus a delegate of Parliament. Delegation of the legislative power by the Parliament to the officer of the State Government holding the rank equivalent to Secretary to the State Government is clearly permissible. There are sufficient guidelines in the Act as to in which circumstances these powers may be exercised. As already indicated above, the Food Authority of India in exercise of the powers under section 16(1) and 16(2)(a) read with section 92 has laid down the standards to ensure safe and wholesome food. It cannot, therefore, be said that any excessive or uncanalized power is conferred upon the Food Safety Commissioner. In fact, no challenge is levelled against the constitutional validity of section 30(2)(a) of the Food Safety Act. 47. As regards the question whether the said power can be considered as a legislative power or an administrative power, in our view, the principles to be applied are laid down by the Supreme Court in Union of India and another v. Cynamide India Ltd. and another (1987)2 SCC 720. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he manufacture, storage, distribution, transportation and sale of gutka and pan masala having prohibited ingredients like tobacco, nicotine, magnesium carbonate and other ingredients injurious to health. These prohibitions are already contained in the statutory regulations made in August 2011. Hence, passing of the order by the Food Safety Commissioner on 19 July 2012 without hearing the petitioners has not caused any prejudice to the petitioners inasmuch as they could not have objected to the constitutional validity of the said statutory regulations before the Food Safety Commissioner of the State of Maharashtra Contention (vii) : Order dated 19 July 2012 and Articles 301 and 304 50. Mr. Seervai, learned senior counsel for the petitioners last submitted that the impugned order dated 19 July 2012 is also violative of the petitioners' rights under Articles 301 to 304 of the Constitution. It is submitted that restrictions contemplated by section 302 or 304 can only be imposed by a Parliament any legislation and not by an executive authority. Apart from reiterating the above submission to the effect that the impugned order is administrative order, the learned counsel relied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Das, J. observed- Even textually, we must ascertain the true meaning of the word 'free' occurring in Art. 301. From what burdens or restrictions is the freedom assured? This is a question of vital importance even in the matter of construction... The conception of freedom of trade in a community regulated by law presupposes some degree of restriction that freedom must necessarily be delimited by considerations of social orderliness. The Supreme Court then observed that the conscience of the commerce clause in India, as elsewhere, is the promotion of an orderly society. Social justice is the core of the constitutional order. The Court further held that every systematic profit-oriented activity, however sinister, suppressive or socially diabolic, cannot ipso facto exalt itself into a trade, entitled to protection of Article 301. The rule of law, for functional purpose, must run close to the rule of life. 53. The Supreme Court has thus, clearly held that Articles 301 to 304 are enacted to remove economic barriers on the free flow of trade, commerce and intercourse within the territory of India. Hence, the said provisions can be invoked only when a State Legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Directive Principles of State Policy shall not be enforceable by any Court, the principles are 'nevertheless fundamental in the governance of the country' and 'it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy. 57. We may also note the caveat sounded by the Supreme Court in Bhavesh D. Parish and others v. Union of India and another (2000) 5 SCC 471 where the Supreme Court has held that the Court will not stay legislation unless it is manifestly unjust and/or glaringly unconstitutional since there is an overwhelming public interest favouring the continued operation of law. 58. We, therefore, find considerable substance in the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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