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TMI Blog2023 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... enior Advocate alongwith Mr. Gautam Narayan, ASC with Mr. Chaitanya Gosain and Ms. Asmita Singh, Advocates for GNCTD. Mr. Aditya Singla and Ms. A. Sahitya Veena, Advocates for FSSAI. Mr. Ripu Daman Bhardwaj, CGSC for respondent No. 2/ UOI. Ms. Manisha Agarwal Narain, CGSC with Mr. Aditya Singh Deshwal and Ms. Rakshita Goyal, Advocates for UOI Mr. Kamal deep and Mr.Sarvan Kumar, Advocates for UOI. Mr. Vivek Goyal, Advocate for UOI. JUDGMENT GAURANG KANTH, J. 1. The present writ petitions under Article 226 of the Constitution of India raise a common question of law, arising in similar circumstances; hence, they are dealt with and disposed of by a common judgment. 2. The present batch of petitions challenge the legality and validity and seek quashing of the Notification bearing No. F.1(3)DOI/ 2012/10503-10521 dated 25.03.2015 and subsequent Notifications dated 13.04.2016, 13.04.2017, 13.04.2018, 13.04.2019, 15.07.2020 and 06.08.2021 ("impugned Notifications") 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) Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (E) dated 19.06.2009. 9. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001 was tabled in the Parliament with the intention to enact a comprehensive law on tobacco in public interest and in order to protect public health. The COTPA was enacted to give effect to the principles enshrined in Article 47 of the Constitution of India that the "State shall endeavour to bring about prohibition of the consumption, except for medicinal purpose of intoxicating drinks and of drugs which are injurious to health". Accordingly, COTPA repealed the Cigarettes Act. It received the assent of the President on 18.05.2003 and was published in the Gazette of India on 19.05.2003. 10. The origin of Statement of Objects and Reasons of the COTPA is from the Resolution passed by the 39th and 43rdAssembly of the World Health Organisation ("WHO") wherein the Member States were urged to ensure that non-smokers receive protection from involuntary exposure to tobacco smoke. Further, the WHO inter alia urged to promote abstention from the use of tobacco to protect children and young people from getting addic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs connected therewith or incidental thereto". 15. The repealing of eight laws governing the food sector under Second Schedule to Section 97 of the FSSA was termed as one of the key features of the Bill. The said laws included: 1. The Prevention of Food Adulteration Act, 1954. 2. The Fruit Products Order, 1955. 3. The Meat Food Products Order, 1973. 4. The Vegetable Oil Products (Control) Order, 1947. 5. The Edible Oils Packaging (Regulation) Order, 1998. 6. The Solvent Extracted Oil, De oiled Meal, and Edible Flour (Control) Order, 1967. 7. The Milk and Milk Products Order, 1992. 8. Any other order issued under the Essential Commodities Act, 1955 relating to food. 16. Further, the FSSA set up the Food Safety and Standards Authority of India ("FSSAI") to ascertain the standards and regulate the manufacturing, import, processing, distribution and sale of food. The FSSA incorporated salient features of the Prevention of Food Adulteration Act, 1954 ("PFA") and other international laws including Codex Alimentarius Commission. 17. Section 2 of the FSSA makes a declaration to the effect that ‗it is expedient in the public interest that the Union should ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 punishabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment is empowered to make rules with respect to the areas which are mentioned therein. As per Section 92, the Food Authority is empowered to make regulations with respect to the specific areas as mentioned therein. As per Section 93, all the rules and regulations made under the FSSA needs to be placed before both houses of the Parliament for at least 30 days. 24. Therefore, from the evaluation of the FSSA, it is evident that the intention of the legislature was to include everything capable of human consumption within the ambit of the FSSA. This is a complete Code relating to the food laws in India. The safety of the public was of paramount consideration and hence responsibilities were fixed at various levels to ensure proper implementation of these safety measures. The FSSA established the FSSAI for effective implementation of the said enactment. There are scientific Panels and scientific Committees under the FSSAI to fix the standards for food based on scientific methods. 25. Let us now evaluate the provisions of COTPA. Section 2 of the COTPA makes a declaration that ‗it is expedient in the public interest that the Union should take under its control the tobacco industry' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d savings. 31. From the overall assessment of the COTPA, it is discernible that this enactment is a comprehensive piece of legislation on all tobacco products as mentioned in the Schedule therein. The COTPA clearly prohibits three activities which are mentioned in Sections 4 to 6, i.e., smoking in any public place, advertisement of cigarettes and other tobacco products and sale of cigarettes or any other tobacco products: (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. In addition to the aforesaid prohibitions, the COTPA intend to regulate the trade and commerce in cigarettes and other tobacco products including production, supply and distribution thereof. 32. From the analysis of the various provisions of COTPA, it is quite evident that the legislature never intended to prohibit tobacco or products containing tobacco through COTPA, rather it regulates the production, supply and distribution of these products. SUBMISSIONS MADE ON BEHALF OF THE PETITIONERS 33. The submissions on behalf of the Petitioners were dealt under various aspects. First one being the "scope of the ‗declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of defence or for the prosecution of war." 36. Upon a declaration being made under Entry 52 of List I, the Union can only acquire what is available under Entry 24 of List II. However, Entry 24 of List II is a general entry in relation to industries whereas there may be specific entries relating to other entries. To elaborate, industries engaged in production and manufacture of intoxicating liquors is under Entry 8 of List II and hence, beyond the scope of Entry 52 of List I. Learned senior counsel argued that as per the rules of interpretation, „special excludes the general‟, the industries engaged in specific activities would not be construed to fall within Entry 24 of List II but within their respective Entries. 37. Hence, the declaration by Parliament in terms of Entry 52 of List I would not transfer industries specified in other Entries of List II or List III to the exclusive domain of the Parliament. Learned senior counsel asserted on the reason why the framers of the Constitution gave special attention to some entries. The express intention of the Constitution which is apparent is to treat certain industries exclusively under the domain of the State subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rves, through organic action, to build-up normal structure or supply the waste of tissue and includes confectionary. Thus, a product that could neither be nutritive nor restitutive nor promotive would not constitute as „food‟ because it is consumed. More so, when the said product is perceived as detrimental to health. Most importantly, it has been observed that tobacco is not foodstuff in ITC Limited (supra). 41. Learned senior counsel, while concluding his arguments, submitted that the declaration under Section 2 of FSSA purporting to take over the "food industry" cannot cover tobacco within its ambit as the same was already covered under the "tobacco industry" when the COTPA was enacted in 2003. Second, "Once COTPA occupies the entire domain- cradle to grave- for tobacco; can FSSA encroach upon an "Occupied Field"? 42. Mr. Vivek Kohli, learned senior counsel submitted on behalf of the Petitioners that the object of the COTPA is, "An Act 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 and for matters connected therewith or incidental theret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder its control the tobacco industry and denuded the States qua the Scheduled products. 46. That while enacting the COTPA, the Union acknowledged and admitted certain tobacco products under Section 3(p) of the COTPA over which it was going to exercise control. Learned senior counsel argued that as far as the "extent" or "scope" of the control taken over is concerned, the COTPA is a comprehensive, self-contained, seamless legislation regulating the whole field of tobacco and allied products. Sections 4, 5 and 6 provide for prohibition; Section 7 lays down restrictions; Sections 8, 9 and 10 regulates packaging of tobacco products. Thus, it is apparent that the COTPA does not envisage product prohibition. 47. In any view, the fact that COTPA occupies the entire field relating to tobacco products cannot be disputed. Hence, the source of all actions qua regulation/prohibition of any form of tobacco shall be governed by the COTPA. Admittedly, the Impugned Notifications have been issued under the FSSA; and since the FSSA transgresses into an "occupied field", such an action would be ultra vires and illegal. To substantiate his submission, learned senior counsel relied on the judgment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est exclusio alterius. 51. He submitted that the continuance of an existing legislation in the absence of an express provision of repeal being presumed, the burden to show that there has been repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and „repeal‟ is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, „repeal‟ will not be inferred. 52. Learned senior counsel, while concluding his arguments qua the present aspect submitted that, the non-obstante clause of Section 89 of the FSSA, which allegedly has an overriding effect over the COTPA deals with "other food related laws". The COTPA is a legislation governing tobacco products and does not cover or address "food" at all. Moreover, while several laws were repealed by the FSSA through Section 97, the COTPA was left untouched. Furthermore, both the COTPA and the FSSA, together have been in operation since the enactment of the FSS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g power, the later general law will not repeal the earlier law. Fifth, ""Food" as defined under the FSSA does not include tobacco within its ambit or scope." 57. Learned senior counsel for the Petitioners submitted that the Parliament enacted the FSSA in terms of Entry 52 of List I of Schedule VII of the Constitution of India. Section 2 of FSSA carries a declaration mandated under Entry 52 of List I of Schedule VII. He further submitted that what flows downwards from the Constitution is actually the footprint that is available to the legislature; of that footprint, what the legislature chooses to cover is in terms of the Act. The legislature may cover the entire footprint or part of the footprint but they cannot go beyond that, as it would be beyond their competence. Learned senior counsel adduced his submission through State of A.P. v. McDowell & Co. reported as (1996) 3 SCC 709 and submitted that the ambit and scope of a constitutional entry cannot be determined with reference to a Parliamentary enactment. For instance, the definition of „factory‟ in clause (c) of Section 3 of the Industries (Development and Regulation) Act, 1951 may be changed tomorrow. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efinition of food is very expansive in the FSSA, doesn‟t mean the competence will flow. Therefore, the fundamental definition of "food" cannot be expanded to include chewing tobacco. Sixth, that "the scope, intent and purpose of the FSSA is to establish and regulate the standards for Food. The power to regulate the standards for Food. The power to regulate does not include in its ambit the power to prohibit. In any case, the power to prohibit does not vest in the Food Commissioner at all. The distribution of powers amongst the: (i) Union; (ii) State; and (iii) the Statutory authorities- Food Safety Authority and Food Commissioner; clearly indicates that the Food Commissioner cannot take the decision to prohibit and that too permanently". 61. Learned senior counsel on behalf of the Petitioners asserted that 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 and to regulate their manufacture, storage, distribution, sale and import to ensure availability of sale and wholesome food for human consumption. The bare reading of the Statement of Objects and Reasons and the Preamble o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... food article". There is no pari materia clause to Section 23(1A)(f) of the PFA. Section 22 where the embargo is absolute, the Legislature in its wisdom has conferred that power to the Central Government and the Food Authority has no powers to make any Regulations relating thereto. The power to prohibit would fall with the essential Legislative Policy domain and hence, it is not possible to delegate such power. 65. The Foods Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 ("Regulations, 2011") were initially issued in exercise of powers under Section 92(2)(l) read with Section 26 of the FSSA. Section 92(2)(l) does not in any manner, even remotely, refer to any power to prohibit. However, with effect from 08.02.2013, the Preamble was amended to reflect the exercise in terms of Section 92 and sub-section (2)(l) were dropped. It may be noted, as mentioned earlier, that in the entirety of Section 92, the Food Authority has been conferred with no powers to prohibit. 66. Furthermore, even the perusal of Regulation 2.3.4 would demonstrate that there is no intention to prohibit. The only restriction placed is that tobacco or nicotine should not be used as in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nels, Scientific Committees and the Central Advisory Committee) that consider and analyze the risk; (iv) interact with all stake holders in the value chain; (v) then recommend the best response; and (vi) assist the Food Authority in the framing of Regulations. 70. Further, it was submitted that Section 18 of the FSSA lays down the general principles that have to be mandatorily followed in administration of the Act. No prevention can be exercised until alternative policies are evaluated; interested parties are consulted qua consideration of risk assessment; interested parties are consulted qua factors relevant for protection of health; selecting appropriate prevention/control options, if needed. Thus, it is apparent that for any action with respect to food products there has to be exchange of information and opinions between the risk managers, consumers and other interested parties after proper risk assessment, risk analysis and risk management. 71. The use of the word "shall" in the beginning of Section 18 of the FSSA would clearly and unequivocally demonstrate the mandatory nature of the procedure to be followed. It was therefore, submitted that the Impugned Notifications clearl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior approval of the Central Government. Thus, the power to prohibit did not vest in the Food Commissioner at all. The regime had moved from implementation and monitoring to selfregulation. Further, under Section 30(2)(a) of the FSSA, while conferring a power to prohibit upon the Food Commissioner, the said power was specifically limited and subjected to three dimensions: (i) product - being an article of food; (ii) geographical area - being the whole state or any area or part thereof; and (iii) time - upto a maximum period of one year. The overarching pre-requisite for any exercise of power under this Section would be that it is "in the interest of public health". Thus, the temporary nature of the power was clearly stated to make explicit the legislative intent. 75. From Godawat Pan Masala (supra), it was further elucidated that power of the State Health Authority is a limited power to be exercised locally for a temporary duration. The decision for banning an article of food or an article containing any ingredient of food injurious to health can only arise as a result of broadly considered policy. If such a power be conceded in favour of a local authority i.e., the Food (Health) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the motion - would demand that the decision so taken be given the persuasive value due to it. 79. Learned senior counsel further argued that, pertinently, in 2003, the COTPA was enacted where the Parliament did not impose any ban on tobacco. The COTPA was enacted pursuant to Article 47 to "provide regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products". 80. By placing reliance on Narinder S. Chadha v. State of Maharashtra reported as (2014) 15 SCC 689, it was further submitted that it must not be forgotten that „equity follows the law‟. Hence, in the garb of public health, an illegal act shall not be promoted. Further, referring to Jacob Puliyel v. Union of India & Ors. reported as 2022 SCC OnLine SC 533, learned senior counsel submitted that the power delegated by a statute is limited by its terms. The delegate should act in good faith reasonably intra vires the power granted and on relevant consideration of material facts. All the decisions made by a delegate should be in harmony with the Constitution and other laws of the land. They must be relatable to the purposes of the enabling legislation and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions. Further, the purported ban on smokeless tobacco alone out of various other forms of tobacco products [e.g. cigarettes, cigars, cheroots, bidis, cigarette tobacco, pipe tobacco and hookah tobacco, all listed in Schedule to the COTPA read with Section 3(p) of the COTPA] is clearly discriminatory and hence violative of Article 14 of the Constitution since it creates an artificial class of products (viz. smokeless tobacco) which are subjected to the disability and prejudice. 84. That the impugned Notifications are discriminatory, ultra vires and unconstitutional as being hit by Article 14 in as much as within the class of tobacco products, it creates an artificial sub-class/distinction prohibiting inter-alia sale, manufacture, storage of smokeless tobacco. Indeed, the discriminatory operation of Regulations, 2011 is evident from the fact that while Regulation 2.3.4 itself purports to prohibit the use of "tobacco and nicotine" as ingredients, the Respondents by self-serving, arbitrary and artificial interpretation purport to apply it only to smokeless tobacco out of the various tobacco products mentioned under the Schedule of the COTPA. 85. Tobacco and nicotine cannot only be f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents to justify the aforesaid artificial intra-tobacco class purported to be created by the Respondents. In other words, the Respondents have to sufficiently discharge the burden of proof, that the creation of an artificial sub-class within tobacco products, being the subclass of consumable/eatable tobacco products like smokeless tobacco, while excluding other tobacco products listed above, bears a clear or reasonable nexus to the objects sought to be achieved by the impugned Notifications i.e., public interest. Unless this burden of proof in terms of the aforesaid demonstrable nexus is established, the impugned Notifications must fail on the test of Article 14 of the Constitution. The Petitioners discharged the burden of proof by raising the issue, the entire burden to show the classification stands the test of Article 14, is on the Respondents. 90. Sixthly, it has been repeatedly held that once prima facie a valid challenge is raised by the Petitioners under Article 14, the burden of proof to justify the classification/sub-classification made by the Respondents shifts and is placed entirely on the Respondents. Learned senior counsel relied on the judgment of D.S. Nakara & O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be achieved as violating Article 14 has been repeatedly emphasized and underlined in a catena of judicial precedents. The said legal proposition was also dealt in the landmark judgment of R.C. Cooper v. Union of India reported as (1970) 1 SCC 248. 95. Learned senior counsel, while concluding his arguments, referred to the Counter Affidavit filed on behalf the Respondents and submitted that the Counter is pregnant with silence, and the Respondents have not been able to explain why smoking tobacco is left out of the purview of the ban/prohibition when the object sought to be achieved is public health. He submitted that hard cases shall not make a bad law. 96. In view of the aforesaid submissions, it has been argued on behalf of the Petitioners that the impugned Notifications are arbitrary and ultra vires the FSSA, COTPA and abridges the fundamental rights enshrined under Article 14, 19 and 21 of the Constitution of India. The Petitioners have also argued that the impugned Notifications have been issued by Respondent No.1 in excess of the jurisdiction vested in him under the FSSA. Respondent No.1 has in fact arbitrarily expanded the scope of Regulation 2.3.4 since he is not emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch, 2011..." 100. He further navigated this Court to the report submitted by the National Institute of Health and Family Welfare, Munirka, New Delhi in the view of the judgment in Ankur Gutka (supra) and submitted that Pan Masala in one sachet and flavored and scented tobacco in another sachet, when mixed together makes it very palatable for consumers. He further emphasized that consuming raw tobacco otherwise is very bitter and is not palatable to most of the consumers. So, in order to enhance its taste and increase sales, this mixture which is well known as Gutka is sold in the market circumventing the orders of the Hon'ble Supreme Court. Relevant part of the report submitted by the National Institute of Health and Family Welfare, Munirka, New Delhi is reproduced hereunder: "RESULTS I. CONTENTS OF ARTICLES The term 'smokeless tobacco' includes a 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 (Annexure1 (a)). Oral use of smokeless tobacco is widely prevalent in India and different met ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucted, it is evident that 21% adults used only smokeless tobacco and only 9% use smoking tobacco, and 5% use smoking as well as smokeless tobacco. He further emphasized that the study suggests that it is almost impossible to quit smokeless tobacco. Relevant part of the report referred by the learned senior counsel is reproduced hereunder: "II. REVIEW OF EVIDENCE ON HARMFUL EFFECTS The two key ingredients of smokeless tobacco and betel-quid products are tobacco and arecanut, and the chemical composition and effects of these two ingredients are quite different. Hence the evidence on the harmful effects of smokeless tobacco and areca/betel nut (or supari) has been reviewed under separate sections. Section I deals with smokeless tobacco and includes evidence on harmful effects from 105 studies from India and abroad. Section 2 is a compilation of harmful effects of areca nut and includes 93 Indian and International studies. Altogether 184 scientific articles have been included in this review. Effort has been made to include all the relevant studies identified from literature search and which met the predefined selection criteria. SECTION I: SMOKELESS TOBACCO (OR CHEWED TOB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seases come to USD 285 million, while indirect morbidity costs (including costs of caregivers and work loss due to illness) amounted to USD 104 million. In conclusion he stated that, the total economic cost of tobacco use was reported as USD 1.7 billion which was many times more than the annual government expenditure on tobacco control and about 16% more than the total tax revenue generated from tobacco. 103. It was submitted by the learned senior counsel for the Respondents that an assertion has been made from the Petitioners‟ side that no study was undertaken by the Government before banning the sale of tobacco vide the impugned Notifications and a whimsical approach has been adopted by the Government. However, au contriare, he submitted that the date of this report is 09.02.2011, which is prior to the date on which Regulation 2.3.4 came into force. Prior to the Regulation coming into existence, a detailed study was undertaken in view of the orders of the Hon'ble Supreme Court in Ankur Gutka (supra) and subsequent to the detailed study the Regulations and Notifications came into force. 104. He further took this Court through the Notification dated 01.08.2011 issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icotine in the final product by whatever name called, whether packaged or un-packaged and/or sold as one product, or though packaged as separate products, sold or distributed in such a manner so as to easily facilitate mixing by the consumer. Relevant part of the order dated 05.12.2016 is reproduced hereunder: "In this context, the Hon'ble Supreme Court in Central Areca-nut Marketing Corporation & Others Vs Union of India & Ors (Transfer Case (C) 1 of 2010) on 23rd October, 2016, passed an order recording and directing asunder: Ld. Amicus Curiae has also pointed out that this court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on sales) Regulations, 2011 and the concerned authorities ate duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006. In view of the above, the concerned statutory authorities are directed to comply with the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of current adult smokeless tobacco users in India was recorded as 199.4 million i.e., twice that of the current tobacco smokers at 99.5 million. Further, learned senior counsel asserted that according to GATS Survey 2009-10, the total number of smokeless tobacco users in India was 163.7 million as mentioned above, this number had increased to 199.4 million in 2016-17. Relevant part of the report is reproduced hereunder: "4.3.1 Prevalence of use of smokeless- Table 4.24 presents prevalence of smokeless tobacco in India by gender and place of residence. The prevalence of smokeless tobacco use (21.4%) is more than twice that of smoking (10.7%). Of the 21.4 percent of all adults who use smokeless tobacco, 85 percent (18.2% of all adults) use smokeless tobacco every day, and the remaining 15 percent (3.1% of all adults) use it occasionally. Two percent of the adults, who were using smokeless tobacco in the past, either daily (1.2%) or occasionally (0.8%), have stopped the use completely. The extent of use of smokeless tobacco among men (29.6%) is higher than among women (12.8%). In rural areas, 24.6 percent adults use smokeless tobacco, whereas in urban areas, 15.2 percent use s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low: 5.8 percent of daily smokeless tobacco users successfully stopped the use of smokeless tobacco." 112. Learned senior counsel referred to an article titled „Banning smokeless tobacco in India: Policy Analysis‟ by Aroral M, Madhu R., published in the Indian Journal of Cancer in 2012 and submitted that multiple legislations have failed to effectively control or regulate smokeless tobacco in India and regionally hence there is an immediate need to strengthen smokeless tobacco control efforts as "no ordinary product". 113. He furthermore referred to a report titled „Smokeless Tobacco and Public Health: A Global Perspective‟ published by the US Department of Health and Human Services, Centers for Disease Control and Prevention and National Institutes of Health, National Cancer Institute and submitted that smokeless tobacco products cause a widespread challenge to public health and has received limited attention from researchers and policymakers. Attention was drawn to Chapter 4 of the said report and he emphasized on the health consequences of the usage of smokeless tobacco and the various diseases caused by consuming smokeless tobacco. Relevant part of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pack of Marlboro cigarettes purchased in Canada or Cambodia. On the other hand, ST purchased in Sweden is very different in terms of ingredients and types of products from ST purchased in India or Sudan. Second, although cigarettes are a legal product in every nation of the world (except Bhutan), the sale of ST has been effectively banned in nearly 40 countries, most of which are in Europe or the Western Pacific. As a result, and because ST is not widely used in many nations, the consumption of ST is largely concentrated in a few specific regions of the world. Cigarettes, in contrast, are consumed in almost all parts of the world. Third, ST markets in low- and middle-income countries are not yet dominated by multinational tobacco corporations; the products consumed in those countries are often homemade or manufactured within a fragmented network of small, locally owned businesses. The ST market in many high-income countries, however, has become more highly concentrated, with multinational tobacco corporations owning the largest share. This concentration among multinationals has implications for tobacco surveillance, the regulatory environment, and economies of scale. Fourth, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acco flakes (also called sada pata); sometimes flavored tobacco flakes such as zarda or khaini may be added. Snuff-type products, which tend to be applied to gums or teeth rather than chewed, are not used with betel quid. Although areca nut itself is mildly addictive, a betel quid user may not understand the much higher addictive potential of tobacco in the quid. In India, some products have been manufactured on an industrial scale since 1975. These commercially produced ST products, such as pan masala and gutka, are modeled after betel quid and contain many of the same ingredients but in a dried form and without fresh betel leaf. The manufactured products were designed to be easily carried and consumed anywhere at any time, unlike betel quid, which is highly perishable and inconvenient to carry because of its high moisture content. In addition to being dried and packaged in single-use doses, these manufactured products contain preservatives to lengthen their shelf life. They may also contain other ingredients, such as small pieces of areca nut, calcium hydroxide, catechu, sweeteners, perfumes, tobacco flakes and/or powder, and flavorings such as menthol, cardamom, and clove. Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Government of India. From 2000-2001 to 2009-2010, legal exports of chewing tobacco from India increased nearly 450%, from 1,953 tons to 8,725 tons. The value of exported chewing tobacco products in 2009-2010 was around US$63.6 million. In addition to legal exports, some amount of ST is smuggled to other countries in South-East Asia, and possibly around the world. During 2009-2010, India exported chewing tobacco products to more than 48 countries, and snuff to at least 6 countries. The countries to which India exported 11 tons or more of tobacco for chewing include: the United Arab Emirates, 4,477 tons; Saudi Arabia, 980 tons; Malaysia, 323 tons; the United States, 160 tons; and Kenya, 77 tons. India also exported 85 tons of snuff products in 2009-2010, primarily to China, Tanzania, and the United States." 120. Learned senior counsel referred to an article dated July 2018 titled as „Global Challenges in smokeless tobacco control‟ published in Indian Journal of Medical Research and submitted that every study contradicts the stand taken by the Petitioners that smoking cigarettes is more harmful than smokeless tobacco. 121. Learned counsel drew the attention of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has nutritive value, the intentional addition 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" 122. Learned senior counsel compared both the definitions of "food" and submitted that unlike the PFA, the definition under Section 3(1)(j) of the FSSA is expansive enough to include products which are intended for consumption or even if not intended/advertised for consumption can be consumed. He further emphasized that definition should take meaning from the context and facts and circumstances. He further submitted that flavored/scented chewing tobacco, which is the subject matter of the impugned Notifications, constitute "food" within the meaning of Section 3(1)(j) of the FSSA. It is clearly evident from the definition that food means "any substance intended for hum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or exclusive of Regulation 2.3.4 and is merely seeking to enforce the mandate of the Regulation in its letter and spirit and is thus justified. 126. Learned senior counsel submitted that Courts in various judgments have interpreted "food" expansively enough to include products which are consumed/intended for consumption. In this regard, he referred to the judgment of the Hon'ble Supreme Court in State of Bombay v. Virkumar Gulabchand Shah, reported as AIR 1952 SC 335 wherein the issue before the Apex Court was whether turmeric is a "foodstuff" within the meaning of clause 3 of the Spices (Forward Contracts Prohibition) Order, 1944 read with Section 2(a) of the Essential Supplies (Temporary Powers) Act, 1946). Learned senior counsel referred to Para 12 thereof and submitted that, whether "food" has to be interpreted narrowly or strictly, will depend on the facts and circumstances and context. Further, he submitted that the Hon'ble Court noted with approval of the decision in James v. Jones of the Queen‟s Bench, which held Baking Powder to be an article of food within the meaning of English Sale of Food and Drugs Act, 1875 and thus expanded the definition of food to include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the world. 128. Learned counsel referred to the Judgment of the Hon'ble Supreme Court in State of Tamil Nadu v. R. Krishnamurthy, reported as (1980) 1 SCC 167. The issue before the Hon'ble Court was whether "gingerly oil" allegedly being sold for external application only could be considered as "food" within the meaning of the PFA. The Hon'ble Court went beyond the test in Pyarali K. Tejani (supra) and held that the intention of the manufacturer was irrelevant for the purpose of including an article within the definition of food. The Court held that it was not necessary that the article was intended for human consumption or preparation of human food. However, it was enough if the article was generally or commonly used for human consumption. The Court‟s view was guided by the social reality of the country in which the vast number of people living beneath ordinary subsistence level are ready to consume that which may otherwise be thought as not fit for human consumption or intended for it. In this context, the Court held that, "in order to be food for the purposes of the act, an article need not be "fit" for human consumption; it need not be even described or exhibited as inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 130. Learned counsel placed reliance on the judgment of the Division Bench of the Allahabad High Court in Khedan Lal (supra), wherein the issue before the Court was precisely whether chewing tobacco, which was sold placing in paan was "food" within the meaning of definition under the PFA. The Court in Para 6 interpreted Section 2(v) of the PFA to mean that "food" includes not only the articles which normally a person eats or drinks with a view to nourish his body but also an article which normally is not considered to be food but which ordinarily enters into or is used in the composition or preparation of human food. The Court further held that since tobacco is commonly used in the preparation of paan, which is indisputably food, chewing tobacco was also an article of food within the meaning of Section 2(v) of the PFA. 131. Similarly, in the case of Manohar Lal (supra), the learned Single Judge of the Lucknow Bench of the High Court of Allahabad once again held that tobacco was "food" because it was consumed with other articles of food such as betel leaves. The Court rejected the argument that food comprises of only those articles which are nutritious and reiterated the tests la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he most vulnerable sections of the society, judicial notice of circumvention of the ban shall be taken. 134. From the decision in Shri Kamdhenu Traders v. State of Telangana and Ors. reported as MANU/TL/1327/2021 of the Hon'ble High Court of Telangana, learned counsel submitted that the issue in the present case and the writ petition before the High Court of Telangana are identical. The common order observed that keeping in view the definition of "food" under the FSSA, which is wide and exhaustive certainly includes smokeless tobacco products. 135. Further, the Hon'ble Supreme Court in 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. In Godawat Pan Masala (supra), the Apex Court has held gutka, pan masala, supari as food articles. The Hon'ble Court of Allahabad in Manohar Lal (supra) and in M/s. Khedan Lal and Sons (supra) has held that "chewing tobacco" is an article of food. Moreover, the FSSA has defined "ingredient" and "food additive", and thus, gutka and pan masala which contains tobacco and other tobacco products do fall within the definition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .e., the COTPA and the FSSA will have to be treated as special enactments since the former deals with tobacco and the latter deals with food and other items including the ones specified under the former enactment. 141. Further, it was pointed that Section 30(2)(a) of the FSSA gives the power to pass a prohibitory order for a period not exceeding one year. However, there cannot be a situation wherein „unsafe food‟ under Section 3(1)(zz) and (v) can be a matter for manufacture and distribution. As tobacco and nicotine are not permitted to be added, the same will be "unsafe food". That, whether the power is exercised under Section 30(2)(a) of the FSSA or to implement the provision under the general powers, the outcome will be the same. Section 30(2)(a) has given the Commissioner of Food Safety the power to prohibit "the manufacture, storage, distribution or sale of any article of food...". It is an independent power conferred on the Commissioner himself. 142. It was further submitted that the exclusionary part of the definition of "food" under Section 3(1)(j) of the FSSA is exhaustive. Through Narpatchand A. Bhandari v. Shantilal Moolshankar Jani & Anr. reported as (1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws, the Courts must approach the problem from the point of view of furthering the social interest which was the purpose of the legislation. Learned counsel reiterated his submissions through Akshay N. Patel v. RBI reported as (2022) 3 SCC 694, that the right to carry on trade is subject to reasonable restrictions which are imposed in the interests of the general public. 147. The Hon'ble Supreme Court has laid down several tests for determining "reasonableness" for the purpose of Article 19(1)(g) of the Constitution. It ranges from test of arbitrariness, excessiveness, and discerning their objective compliance with the Directive Principles of State Policy. In Chintaman Rao v. State of M.P. reported as (1950) SCC 695, the importance of striking the balance between social control and individual freedom was discussed. He vehemently contended that the State has acted within the walls of the proportionality standard in determining violations of fundamental rights laid down in K.S. Puttaswamy v. Union of India reported as (2017) 10 SCC 1. 148. Lastly, learned counsel made an attempt to distinguish the judgments of various High Courts which have held tobacco as not food. He urges the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to consider the bold bid made by the appellant to convince the Court that supari is not an article of food and, as such, the admixture of any sweetener cannot attract the penal provisions at all. He who runs and reads the definition in Section 2(v) of the Act will answer back that supari is food. The lexicographic learning, pharmacopic erudition, the ancient medical literature and extracts of encyclopaedias pressed before us with great industry are worthy of a more substantial submission. Indeed, learned counsel treated us to an extensive study to make out that supari was not a food but a drug. He explained the botany of betelnut, drew our attention to Dr. Nandkarni's Indian Materia Medica, invited us to the great Susruta's reference to this aromatic stimulant in a valiant endeavour to persuade us to hold that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which effects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 que ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12747 of 1996 (decided on 6th November 2003). In our view, this judgment is of no aid to us. In the first place, this judgment arises under the provisions of the Essential Commodities Act, 1955, read with the Tamil Nadu Scheduled Articles (Prescription of Standards) Order, 1977 and the notification dated 9th June, 1978, issued by the Central Government which laid down certain specifications "in relation to foodstuffs". The question that arose before the Court was whether tea is 'foodstuff' within the meaning of the said legislation. The division bench of this Court came to the conclusion that 'tea' is not food as it is not understood as 'food' or 'foodstuff' either in common parlance or by the opinion of lexicographers. We are unable to derive much help from this judgment for the reason that we are not concerned with tea. It is not possible to extrapolate the reasoning of this judgment pertaining to tea into the realm of pan masala and gutka. In any event, the judgment in Tejani (supra) was a judgment of the Constitutional Bench which does not seem to have been noticed. We are, therefore, unable to agree with the contention that pan masala or gutk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint filed by the Food Inspector of the department of PFA, alleging violation of Section 7 read with Section 16 of the PFA. This Hon'ble Court held that none of the items mentioned in Section 3(p) of COTPA including the chewing tobacco could be said to be falling within the meaning of „food‟ under Section 2(v) of the PFA. 161. The Single Bench of the Hon'ble Delhi High Court in the matter of Food Inspector v. Rupesh Jain, reported as 2017 SCC OnLine Del 12391, held that: "20. It is clear after going through the Schedule of the CPT Act that ‗Chewing Tobacco' and ‗Pan Masala' which has tobacco as one of its ingredients comes within the definition of ‗Tobacco Products' as per Section 3(p) of the CPT Act. None of the items including chewing tobacco mentioned in the Schedule could be included in the definition of ‗food' under Section 2(v)(a) of the PFA, 1954 since none of these items could be said to be used as food for human consumption or ordinarily enter into or are used in the composition or preparation of human food. Further if the legislature intended to include Pan Masala having tobacco as one of its ingredients or Chewing Tobacco as a "food ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that whether any 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. 165. While negating the contention of the State Authorities to the effect that the impugned Notifications are a result of legislative Act and not an administrative act, the Hon'ble Supreme Court observed that the words "in the interest of public health" used in clause (iv) of Section 7 of the PFA cannot operate as an incantation or mantra to get over all the constitutional difficulties posited. According to the Hon'ble Supreme Court, the collocation of the words in the impugned Notification suggests not a matter of policy, but a matter of implementation of policy. According to the Hon'ble Supreme Court, a decision for banning an article of food or an article containing any ingredient of food injurious to health can only arise as a result of broadly considered policy. If such a power be conceded in favour of a local authority like the Food (Health) Authority, paradoxical results would arise. The same article could be considered injurious to public health in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its intended effect on past, present and future events, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts." 74. We are, however, unable to accept the contention of the learned counsel for the state of Maharashtra that, because the notification is generally intended, it is necessarily a legislative act and therefore there was no question of complying with principles of natural justice. If that were so, then every executive act could masquerade as a legislative act and escape the procedural mechanism of fair play and natural justice. 75. In State of Tami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Heath) authority as unconstitutional, the Hon'ble Supreme Court concluded as under: "77 ....... 1. Section 7(iv) of the Act is not an independent source of power for the state authority; 2. The source of power of the state Food (Health) Authority is located only in the valid rules made in exercise of the power under Section 24 of the Act by the State Government, to the extent permitted thereunder; 3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts; 4. The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the rules made under Section 23 of the Act, particularly, sub-section (1A)(f). 5. The state Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al should instruct the concerned Ministries to approach National Institute of Public Health to undertake a comprehensive analysis and study of the contents of gutkha, pan masala and similar articles manufactured in the country and harmful effects of consumption of such articles. The learned Solicitor General says that a report based on such study will be made available within eight weeks. 2) The Plastics (Manufacture, Usage and Waste Management) Rules, 2009 be finalized, notified and enforced within a period of eight weeks from today. 3) The direction contained in the impugned order of the High Court for imposition of fine shall remain stayed. 4) Respondent Nos.3 to 15 and other manufacturers of gutkha, tobacco, pan masala are restrained from using plastic material in the sachets of gutkha, tobacco and pan masala. This direction shall come into force with effect from 1st March, 2011..." 170. Further the Hon'ble Apex Court,vide its order dated 03.04.2013 in Ankur Gutkha (supra), directed the Secretaries Health Department of all 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.P (C) No.16308 of 2007, which reads as follows: "21. It is most respectfully submitted that to circumvent the ban on the sale of guthka, 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. Hence, instead of the earlier "ready to consume mixes", chewing tobacco companies are selling guthka in twin packs to be mixed as one" Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006. In view of the above, the concerned statutory authorities are directed to comply with the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30(2)(a) confers independent power on the Food Safety Commissioner of the State. (d) FSSA is a later Act and a comprehensive legislation on food safety and contains a non-obstante clause in Section 89 thereof, in the field of safety and standards of food (which includes gutka, pan masala and supari) and thus, the FSSA occupies the entire field. (e) The Commissioner of Food Safety, Maharashtra exercising his powers under Section 30(2)(a) of the FSSA, is a delegate of Parliament. (f) When action based on experts' report is taken by a delegate of Parliament, it should not in the normal course, be disturbed. (g) There is an obligation on the food business operator under Section 26(2)(i) of the FSSA not to manufacture or sale any food which is unsafe. Hence, if there is any violation of the said Section, the Commissioner of Food Safety has the power to issue a quasi-legislative order under Section 30(2)(a) of the FSSA. Thus, the Commissioner of Food Safety need not follow the principles of natural justice before the issuance of order under Section 30(2)(a) of the FSSA. 174. The decision in Dhariwal Industries Limited (supra) was followed by the Division Bench of the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (f) The principle of audi alteram partem applies in exercise of powers under Section 30(2)(a) and the aggrieved persons should be heard before continuing with the prohibition order. (g) Since the prohibition is with reference to a food business operator, the prohibition must indicate the name of food business operator and also the brand name, if any, under which the food business is being carried out. (h) The provisions of Section 30(2)(a) of the FSSA are referable to Section 7(iv) of the PFA (since repealed) and, hence, the powers are transitory in nature and intended to deal with emergent circumstances for a short period, while such emergency lasts. (i) The Commissioner of Food Safety has been issuing Notifications from time to time exceeding the period of 1 (one) year, which amounts to an act of legislation, a power not vested in the Commissioner of Food Safety. The power conferred by Section 30 of the FSSA upon the Commissioner of Food Safety, cannot be used on a permanent basis or else, it would amount to doing of an act or prohibiting an act by resorting to executive fiat and not by legislative act. (j) The COTPA, being a parent legislation, is the comprehensi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it also held that unlike intoxicating drinks, trade and commerce in tobacco cannot be said to be res extra commercium. 178. The learned Single Judge of the Calcutta High Court in the matter of Sanjay Anjay Stores and Ors. v. Union of India, reported as 2017 SCC OnLine Cal 16323 was dealing with a petition, where the petitioners prayed that they are producers within the meaning of Section 3(k) of the COTPA and are outside the purview of the FSSA and Regulation 2.3.4. Further, the petitioners also challenged a Notification issued by the Commissioner of Food Safety, West Bengal, prohibiting zarda, khaini and all tobacco products in the State of West Bengal, in exercise of its powers under Section 30(2)(a) of the FSSA read with Regulation 2.3.4. The main questions before the Hon'ble Court were whether the said products are "food" within the meaning of the FSSA and secondly, whether the FSSA would apply to such products or the COTPA would apply for regulating the manufacturing, storage, distribution and sale of such products. The Hon'ble Calcutta High Court held that the above-mentioned items are not "food" within the meaning of the FSSA as tobacco products provide stimulant which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorize the authorities to prohibit the manufacture, etc. of tobacco or tobacco products even if the same can be called 'food'. Trade in tobacco is not impermissible in India. In Godawat Pan Masala (supra) the Apex Court held that tobacco or tobacco products are not res extra commercium. If consumption of tobacco or products containing tobacco or nicotine was considered to be so inherently dangerous for human health, the Parliament could have banned altogether trade and commerce in tobacco and tobacco products even in the face of Art. 19(1)(g) of the Constitution of India. But the Parliament did not do so. It has instead chosen to regulate rather than prohibit trade and commerce in tobacco and tobacco products by promulgating COTPA. Hence, on the strength of a delegated legislation in the form of FSS Regulations framed under the FSSA, the authorities cannot seek to prohibit trade and commerce in the said products. That would be an exercise of a power that they do not have. (43) In view of my considered opinion that the said products are not food within the meaning of FSSA, according to me there is no conflict between the FSSA and COTPA. The two statutes operate in differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Bench of the High Court of Bombay in Dhariwal Industries Limited (supra) and held that Gutka and Pan Masala are "food" within the meaning of the FSSA. The Hon'ble Court further held that the judgment of the Hon'ble Supreme Court in Godawat Pan Masala (supra) was rendered in the context of the PFA and will not have any application in the facts and circumstances of the instant case, as the definition of "food" under the FSSA is different and far more expansive than the definition of "food" in Section 2(v) of the PFA. The said decision in J.Anbazhagan Member of Legislative Assembly (supra) has further been affirmed by the Hon'ble Supreme Court in E. Sivakumar v. UOI, reported as (2018) 7 SCC 365. 180. In Prabhat Zarda Factory India Private Ltd. v. Lieutenant Governor reported as 2018 SCC OnLine Cal 221, an Order issued by the Commissioner of Food Safety was challenged before the Hon'ble High Court of Calcutta, Circuit Bench at Port Blair. The said Order issued under Regulation 2.3.4 in exercise of the powers conferred by Section 92(2)(1) read with Section 26 of the FSSA, provides that products are not to contain any substance which may be injurious to heath and tobacco and nic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Union of India & Ors., have been to the effect that, the above tobacco products are not Food. There are now two contradictory views being expressed by this court, on the basis of the very same judgements.... 36. In the circumstances, the issue as to whether Chewing Tobacco, Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called), Gutka and Tooth Powder containing tobacco would have to be construed as food or not is referred for the consideration of a Division Bench of this Court." It is pertinent to note that the Hon'ble Court referred the above judgment to the Division Bench in W.P 10500 of 2021, which is a pending consideration. 183. After the judgment in Dasa Shekar (supra), the learned Single Judge passed a judgment in Uppara Veerendra v. State of Andhra Pradesh, reported as 2021 SCC OnLine AP 4005, dated 28.12.2021 wherein the learned Single Judge held that chewing tobacco is not "food" under the FSSA. 184. Further, the Hon'ble Division Bench of the High Court of Telangana in the matter of Shri Kamdhenu Traders (supra) was dealing with a challenge to a Notification issued by Commissioner of Food Safety, in exercise of its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s behalf in the Official Gazette; .............." 188. Regulation 2.3.4 of Regulations, 2011 states the following: "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." 189. 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". 190. 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. 191. The Hon'ble Supreme Court in the case of Himat Lal K. Shah (supra) has explicitly held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to make the laws lies with the Legislature and not with the Executive. The Executive has to merely implement the policies/laws made by the Legislature. If the State is permitted to take recourse to its executive powers to make laws, then the same would result in laws being made by the Executive and not by the Legislature in contravention to the intent of the Constitution of India. 196. In view of the aforementioned, 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. 197. Section 2 of FSSA provides that it is expedient in public interest that the Union should take under its control the food industry, whereas Section 2 of COTPA provides that it is expedient in the public interest that the Union should take under its control the tobacco industry. On a comparative reading of the aforementioned provisions, it can be seen that the FSSA concerns "food industry" and the COTPA relates to the "tobacco industry" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the provisions of the PFA with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule of the COTPA. In Godawat Pan Masala (supra), the Hon'ble Supreme Court further held that COTPA is a special Act intended to deal with tobacco and tobacco products and hence it will override Section 7(iv) of the PFA. The relevant portion, inter alia, reads as follows: "The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003" 201. The Hon'ble Supreme Court, in the case of Godawat Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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." 202. Even the COTPA does not ban the sale and distribution of tobacco and tobacco products except for imposition of certain conditions and various checks and balances to regulate the advertisement and sale thereof. Furthermore, 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 the Legislature and not merely by a Notification issued by an executive authority. Thus, the trade, sale and distribution of tobacco is permissible subject to certain restrictions imposed under the COTPA and the same has only been regulated and not prohibited. 203. The Preamble of the COTPA read with Section 2 thereof establishes that the COTPA is a comprehensive law dealing with the prohibition of advertisement and Regulation of trade and commerce, production, supply and distribution of tobacco and tobacco products. Section 3(p) of the COTPA defines tobacco products i.e., the products defined in the Schedule to the COTPA. Various provisions of the COTPA provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r expressly or by implication. 209. 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. 210. Moreover, Section 89 of the FSSA provides for an overriding effect of the FSSA over all other food related laws. The COTPA, being a legislation governing tobacco products, does not deal with "food" and can therefore, by no stetch of imagination, be covered within the meaning of "other food related laws" as provided under Section 89 of the FSSA. Moreover, the COTPA existed prior to enactment of the FSSA and both the legislations have been in operation since their respective enactments, which makes it apparent that both the Acts continue to operate in their respective fields. Furthermore, even after enactment of the FSSA in the year 2006, various rules have been made in exercise of Section 31 of the COTPA and several amendment(s) have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acco is also a product different from Gutka, Pan Masala, etc. under various taxing statutes. 215. With regard to the question whether tobacco and tobacco products fall within the definition of Section 3(1)(j) of the FSSA, different High Courts have given divergent views on this aspect, which have been discussed in detail herein above. 216. It can be safely presumed that at the time of enactment of the FSSA, a legislation governing the food industry, the Legislature would have known the existence of the COTPA, a Central Act enacted to take control of the tobacco industry. Various amendments and framing of rules under COTPA even after the enactment of the FSSA explains and strengthens the aforementioned presumption and belies the theory of an implied repeal of the COTPA by the FSSA. 217. It is noteworthy to mention that the FSSA warrants to lay down science-based standards for food and regulate their manufacture, storage, distribution, sale and import to ensure availability of wholesome food for human consumption. In view of the aforesaid, tobacco cannot be termed as "food" within the meaning of the FSSA as no science-based standards can be laid down for tobacco to regulate its sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, which are as follows: (a) the manufacture, sale, distribution and storage of a food article may be prohibited in the whole or a part of the State only in emergent circumstances in the interest of public; (b) the tenure of such a prohibitory order is temporary in nature and cannot exceed one (1) year in its entirety; (c) the issuance of order be passed/continued only after compliance of the principles of natural justice; and (d) the prohibition must indicate the name and brand name of the food business operator. 223. It is further a settled position of law that there is a requirement of giving a reasonable opportunity of being heard, in compliance of the principles of natural justice, before making an order, which would have adverse civil consequences for the parties affected. 224. Section 18 of the FSSA lays down the general principles that have to be mandatorily followed in administration of the Act. In order for a prohibition to be exercised, alternative policies are to be evaluated; interested parties are to be consulted and risk analysis, risk assessment and risk management has to be ascertained; interested parties are consulted qua factors relevant for protection of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intended. On the provisions of Section 314, the Supreme Court held, in Olga Tellis (supra), that it is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations, which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule, which regulates all procedure, is that persons, who are likely to be affected by the proposed action, must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances, which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those, who affirm their existence. 28. The relevant observations, appearing in Olga Tellis (supra), are being reproduced herein as follows; para 44"... (the said section) confers on the Commissioner the discretion to cause an encroachment to be removed with or without notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complying with the principles of natural justice. The Supreme Court, in Godawat Pan Masala (supra), held that if such arguments were to be accepted, then, every executive act could masquerade as a legislative act and escape the procedural mechanism of fair play and natural justice. In this regard, reliance was placed on the case of State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318, wherein it has been observed that even when exercising a legislative function, the delegate may, in a given, case be required to consider the viewpoint, which may be likely to be affected by the exercise of power. 31. As pointed out, in K. Sabanayagam (supra), a conditional legislation can be broadly classified into three categories: a. when the legislature has completed its task of enacting a statute, the entire superstructure of the legislation is ready but its future applicability to a given area is left to the subjective satisfaction of the delegate. b. where the delegate has to decide whether and under what circumstances a legislation, which has already come into force, is to be partially withdrawn from operation in a given area or in given cases so as not to be applicable to a given class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued year after year in a mechanical manner without following the general principles laid down under Section 18 and 30(2)(a) of the FSSA, which is a clear abuse of the powers conferred upon the Commissioner of Food Safety under the FSSA. This clearly amounts to be an act which only the Legislature is entitled to exercise and no such power has been vested in the Commissioner of Food Safety in terms of the provisions of the FSSA. Thus, it is clear that Respondent No.1 has clearly exceeded its power and authority in issuance of the impugned Notifications in contravention of the powers conferred upon him under the FSSA. 228. It has been argued on behalf of the Petitioners that the Respondents are purporting to ban an artificially created sub-category of tobacco, namely, „smokeless tobacco‟ which includes chewing tobacco, pan masala, gutka, etc.and other scheduled tobacco products listed under the COTPA. However, there appears to be no rational nexus to the object sought to be achieved by the impugned Notifications prohibiting manufacture, storage, sale and distribution of smokeless tobacco products. Admittedly, the object sought to be achieved by the said prohibitory order( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Consequently, there is no nexus with the object sought to be achieved by the impugned Notifications, so as to justify a valid classification under Article 14 of the Constitution. 232. In view of the detailed arguments advanced on behalf of the parties and for the explanation and the reasons as discussed herein above, 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. 233. This Court has taken note of the fact that the Hon'ble Supreme Court in the matter of Ankur Gutka (supra) and Central Arecanut (supra) has directed the Secretaries, Health Department of the States and Union Territories to ensure compliance of the ban imposed on manufacturing and sale of Gutka and Pan Masala with tobacco and/or nicotine. We understand that the aforesaid matters are still pending disposal before the Hon'ble Apex Court. 234. It is to be noted that it has been submitted before the Hon'ble Supreme Court in the matter of Ankur Gutka (supra) and Central Arecanut (supra) that notwithstanding the complete ban imposed on Gutka and Pan Masala with tobacco and/or nicotine in such St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f law which cannot be decided merely on the basis of public conscious and sentiments but have to be decided and settled based on the fair interpretation of law in the light of the judicial precedents. 238. Considering the submissions made and documents and judgments relied by the parties and in view of the detailed discussion and reasoning mentioned herein above, this Court is of the considered view that: (a) 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. (b) 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. (c) It has never been the intention of the Parliament to impose an absolute ban on manufacture, sale, distribution and storage of tobacco and/or tobacco products. However, the intention of the Parliament is to regulate the trade a ..... 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