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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 ..... rary and ultra vires the FSSA as Respondent No.1 is not empowered under the provisions of the FSSA, or the rules and regulations made thereunder to impose such a prohibition on manufacture, storage, distribution or sale of chewing tobacco since the same is a scheduled product under the COTPA and cannot in any manner be construed as food within the ambit of the FSSA. The Respondents, on the contrary, have argued that Respondent No.1 was well within his rights to issue the impugned Notifications under Regulation 2.3.4, who has been mandated with power under Section 30(2)(a) of the FSSA to prohibit the manufacture, storage, distribution and sale of any article of food, such as chewing tobacco, in the interest of public health and welfare. The FSSA is an Act to consolidate all laws relating to food and to establish the FSSAI for laying down science-based standards for articles of food. As per the Preamble of the FSSA, the purpose of the FSSA is to provide safe, wholesome and unadulterated food to consumers. The Statement of Objects and Reasons of COTPA states that it is an Act for regulation of trade and commerce in, and production, supply and distribution of, cigarettes and ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to the tobacco industry amongst others - once the Parliament has exercised power under Entry 52 of List I in order to take the entire tobacco industry under its control, the State Legislatures are not competent to enact laws on the said subject. The Hon ble Supreme Court, in the case of Godawat Pan Masala [[ 2004 (8) TMI 692 - SUPREME COURT] ], observed that the legislation enacted to deal with tobacco does not suggest that the Parliament has ever treated tobacco as res extra commercium nor has the Parliament ever attempted to ban its use absolutely. Merely licensing regulation, duties and taxes have been imposed on tobacco products. The Hon ble Supreme Court further examined whether tobacco can be treated as res extra commercium‟, and held that In any event, whether an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of legislature and not by a mere notification issued by an executive authority. The FSSA is an Act to consolidate the laws relating to food and for laying down sciencebased standards for articles of food and to regulate their manufacture, storage, distribution, sale and impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieved by the impugned Notifications. In fact, the said discrimination which is being promoted by the impugned Notifications encourages smoking tobacco over smokeless tobacco, thereby being not only clearly discriminatory but in violation of Article 14 of the Constitution. This Court is of the considered view that the classification sought to be created between smokeless and smoking tobacco is clearly violative of Article 14 of the Constitution - this Court is conscious of the harmful effects and various diseases caused by the use of tobacco, both smokeless and smoking. In addition to the ill-effects of smokeless tobacco pointed by the Respondents, this Court is of the view that tobacco, in any form, not only smokeless but also smoking, is injurious to public health and this Court accordingly condemns and discourages the use of any form of tobacco. Public health is one of the most important part of the society and country and therefore, it is necessary to take all steps to preserve the same in all possible manners. This Court is of the considered view that the impugned Notifications passed by the Commissioner of Food Safety in view of Regulation 2.3.4 in exercise of powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) Regulations, 2011 ( Regulation 2.3.4 ) in purported exercise of power under Section 30(2)(a) of Food Safety and Standards Act, 2006 ( FSSA ) on the grounds of being arbitrary and ultra vires the FSSA and violative of the fundamental and other legal rights of the Petitioners. 3. The Impugned Notifications sought to prohibit the manufacture, storage, distribution or sale of Gutka, Pan Masala, flavoured/scented tobacco, Kharra and similar products in the interest of public health for a period of one year throughout the NCT of Delhi. 4. The Petitioners claim to be inter alia engaged in the business of lawful manufacture, trade, distribution and sale of scheduled tobacco produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 addicted, and to exhibit prominent health warnings. Furthermore, apart from reiteration of the Resolution of the 39th Assembly, the Resolution of 43rd Assembly of the WHO urged the Member States to consider including progressive financial measures aimed at discouraging the use of tobacco in their tobacco control strategic legislations. 11. The existence of plethora of laws in the food industry and their operations led to a lot of confusion for investors, manufacturers, traders and consumers. A need was felt for integration of all such laws. In 1998, the Prime Minister‟s Council on Trade and Industry appointed a Subject Group on Food and Agro Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued 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 take under its control the food industry . 18. Section 3 of the FSSA has exhaustive definitions with 48 entries. Section 2(j) of the FSSA defines food as under: Food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd out compliance by such units of the standards notified by the Food Authority for various articles of food; (c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety; (d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility; (e) sanction prosecution for offences punishable with imprisonment under this Act; (f) such other functions as the State Government may, in consultation with the Food Authority, prescribe. (3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him. 21. Section 32 deals with the improvement notices. It sets out a detailed process to be foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 . The preamble of the COTPA states as follows: An Act to prohibit advertisement of and to provide for regulation of trade and commerce, production, supply and distribution of cigarettes and other tobacco products and for matters connected therewith or incidental thereto. 26. The plain reading of the COTPA reveals that it has two stated objectives: (i) To prohibit advertisement of cigarettes and other tobacco products; and (ii) To regulate the trade and commerce as well as the production, supply and distribution thereof in cigarette and other tobacco p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 ‗declaration of expediency relating to the ‗Food Industry under Section 2 of the FSSA. Another question for consideration before this Court is the trade and commerce in, manufacture of, supply and distribution of Tobacco covered under the term ‗Food Industry . 34. Mr. C. S. Vaidyanathan, learned senior counsel appearing on behalf of the Petitioners opened his arguments by submitting that the Impugned Notifications have been repromulgated sans any significant change. It was emphasized that the FSSA, from which the power to impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 subject. It cannot be said that Entry 52 of List I impinge upon, override, and governs other specific entries in the List. Thus, any encroachment by the Union on the specific entries is beyond legislative competence. To substantiate his submission, learned senior counsel relied upon ITC Limited v. Agriculture Produce Market Committee reported as (2002) 9 SCC 232. Moreover, the degree and extent to which the Union may have control would be subject to the extent and scope of the enactment, the same was corroborated with Ishwari Khetan Sugar M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porting 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 thereto . Explicitly, the aim of COTPA is to prohibit advertisement while regulating the trade commerce, production, supply and distribution of cigarettes and tobacco products. The COTPA was enacted by the Parliament under Entry 52 of List I read with Entry 33 of List II to Schedule VII of the Constitution. 43. Thus, subject to a declaration as envisaged in Entry 52 of List I, the Parliament may take over an industry i.e., manufacturing and production, as submitted before, but not trade commerce, supply distribution activities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohibition; 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 of the Constitution Bench of the Supreme Court in Union of India v. Elphinstone Spinning and Weaving Co. Ltd. Ors. reported as (2001) 4 SCC 139 which held that where the language of an Act is clear, the Preamble must be disregarded though, where the object or meaning of an enactment is not clear, the Preamble may be resorted to explain it. Third, the enactment of FSSA (in 2006) does not in any manner impinge upon the enforceability of the COTPA (enacted in 2003) which continues to be applicable and in force. There is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 FSSA. Therefore, it is apparent that there is an explicit expression of Legislature that both the Acts continue to operate in their respective fields. Fourth, A prior ‗special law (COTPA) would prevail over a later ‗general law (FSSA) . 53. Dr. Abhishek Manu Singhvi, learned senior counsel appearing on behalf of the Petitioners submitted that when the legislature intends to occupy a field by a special law, it does so completely. The COTPA is dealing with tobacco, exclusively, entirely, comprehensively a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tprint 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, the meaning and scope of Entry 8 of List II is not subject to provisions of an Act. 58. The definition of food‟ under Section 3(1)(j) of the FSSA comprises of both means and includes . The principle of statutory interpretation says that, where the word defined is declared to include‟, the definition is prima facie extensive. Further, when the word include‟ is substituted by the word means‟, it was held to be more extensive. Therefore, the said provision is exhaustive in nature an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the FSSA would reveal that the purpose of the Act is to provide safe wholesome and unadulterated food to consumers. 62. The FSSA would seem to derive its legitimacy by reference to (i) Entry 52 of List I read with Entry 33 of List III, in so far as the industry it seeks to regulate; (ii) Entry 51 of List I, in so far as it seeks to establish standards of quality for goods; and (iii) Entry 18 of List III, in so far as it seeks to address the issue of adulteration. The scope of the exercise of competence under Entry 51 of List I and Entry 18 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued 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 ingredients in any food product. Thus, the ingredient is obviously visualized as separate and distinct from the food product . Where the Food Authority has desired to prohibit, it has specifically stated so. It is no one‟s contention that any foreign substance is being added to adulterate any food product; neither the product is adulterated nor anything is surreptitiously being added to tobacco products. 67. Referring to Section 30(3) of the FSSA, learned senior counsel submitted that the power to prohibit impinges on Article 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 clearly failed to follow the mandatory procedure prescribed under the Act and thus, are bad in law. 72. Learned senior counsel relied on Lakshmanasami Gounder v. C.I.T., Selvamani Ors. reported as (1992) 1 SCC 91 and submitted that where the consequences are harsh, with respect to deprivation of property, the Court has interpreted in a way that it shall be mandatory. In the present case, where we are dealing with a ban/prohibition, the word shall in Section 18 would be mandatory. Thus, not conceding with the procedure laid down and disr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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) Authority, paradoxical results would arise. The same article could be considered injurious to public health in one local area, but not so in another and hence inconsistent. 76. While concluding, the learned senior counsel referred to Section 30 of the FSSA, which deals with the functions of the Commissioner of Food Safety of the State and submitted that the perusal of the section suggests that the power granted under a statute to be exercised under specific conditions, cannot travel the boundaries which have been set up. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 they are manifestly arbitrary, unjust and outrageous or directed to an unauthorized end and do not tend some degree to the accomplishment of the objects of the delegation, the Court might as well say, the Parliament never intended to give authority to such rule which is unreasonable and progressed. Tenth, Article 14- discrimination between Smokeless Tobacco and Smoking Tobacco . 81. Learned senior counsel Dr. Singhvi submitted that every day in every activity Article 14 has its interconnection. Many rights un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 found in smokeless tobacco. Firstly, there is no justification for using the word tobacco in its uncircumscribed, unrestricted and unqualified manner but applying it only to one sub-class (viz. smokeless tobacco). The Regulation must be taken as it is and, assuming without conceding its validity, its plain and natural meaning and scope must be implemented, namely, its application to all forms of tobacco without artificially truncating that word. Secondly, not only is the language referring to tobacco and nicoti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic 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 Ors. v. Union of India reported as (1983) 5 SCC 730 and stated that the burden of proof is to be discharged by the Respondents by affirmatively placing material on record. Further, to substantiate his submission that the Respondents have to discharge the burden, reliance has been placed on the judgment of State of Maharashtra v. Manubhai Pragaji Vashi Ors. reported as (1995) 5 SCC 730. 91. Seventhly, ex-facie, there can be no nexus much less direct nexus to artificially segregate ingested tobacco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 empowered to legislate in respect of a field occupied under the COTPA. The Petitioners have accordingly sought for quashing of the impugned Notifications. SUBMISSIONS MADE ON BEHALF OF THE RESPONDENTS 97. Mr. Rahul Mehra, learned senior counsel appearing on behalf of the Respondents opened his arguments by stating that this matter is a challenge to the impugned Notifications issued by Respondent No.1 and the Petitioners‟ case is that Respondent No. 1 does not have the power to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumers. 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 methods of its consumption include chewing, sucking and applying tobacco preparations to the teeth and gums (Annexure 2). According to the monograph developed by the International Agency for Research in Cancer (lARC) of the World Health Organization (Annexure 1 (a)), the three forms of smokeless tobacco which are commonly used orally include: a) Tobacco alone (with aroma and flavourings) - e.g Creamy or dry snuff, Gudakhu, Gul, Mishri, Red tooth powder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... co 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 TOBACCO) Prevalence in India The Global Adult Tobacco Survey India (GATS India) is the global standard for systematic monitoring of adult tobacco use (smoking and smokeless) in the country. The survey, conducted in 2009-10 by the International Institute for Population Sciences (IIPS) Mumbai, covered about 99.9 % of the total population of India. Its findings revealed that more than one-third (35%) of adult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco. 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 Ministry of Health and Family Welfare vide which the Regulations, 2011 were born and Regulation 2.3.4 also forms part of the said Notification. Learned senior counsel pointed out that the objections and suggestions were invited from the persons who were likely to be affected and the whole process was undertaken before the said Regulations saw the light of the day. He further submitted that the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine. (copy enclosed) It is relevant to mention in this context that, States such as Bihar, Karnataka, Mizoram, Kerala and Madhya Pradesh have issued orders in compliance of the Hon'ble Supreme Court order dated 23.09.2016. (copy of order of Bihar and Karnataka is enclosed). In view of the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant 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 smokeless tobacco. In each category of adults, either by residence or gender, 84-87 percent of the current smokeless tobacco users use it every day. 4.3.2 Number of users of smokeless tobacco The estimated number of current adult smokeless tobacco users in India is 199.4 million, twice that of current tobacco smokers (99.5 million). The number of male smokeles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively 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 the report is reproduced hereunder: The health risks associated with smokeless tobacco (ST) can vary substantially by product characteristics and ingredients, manner of use, and potential interactions with other tobacco use behaviors, such as cigarette smoking. Based on epidemiologic studies of traditional ST products, such as snuff, chewing tobacco, and betel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ST markets are much less regulated than cigarette markets, particularly in low- and middle-income countries, and this lack of regulation affects tax levels and the effectiveness of collecting taxes on smokeless tobacco. 116. Learned senior counsel further referred to Chapter 13 of the abovementioned report titled Smokeless Tobacco use in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. Gutka always contains tobacco, but most brands of pan masala do not. Gutka and pan masala products frequently carry the same brand names, allowing manufacturers to circumvent laws banning tobacco advertisements since they are able to advertise a product that appears identical to tobaccocontaining gutka. 117. He further pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 Court to Section 2(v) of the PFA which defines food and compared its definition with Section 3(1)(j) of FSSA which also defines food . He further referred to the definitions of substance , ingredient and food additive defined under Sections 3(1)(zw), 3(1)(y) and 3(1)(k) of the FSSA respectively. Section 2(v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 human consumption . 123. It was also the contention of the learned senior counsel with regard to the definition of substance that flavoured or scented chewing tobacco constituted food within the definition incorporated under Section 3(1)(j) of the FSSA in as much as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not only foodstuffs strictly so called but also ingredients which go into their preparation to ensure that the object of the legislation which was to conserve the health of people was not defeated. Further, he referred that the Hon ble Court also referred to a nar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication 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 intended for human consumption; it may be otherwise described or exhibited; it need not be even 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 . Learned counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning 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 laid down in Pyarali K. Tejani (supra) and R. Krishnamurthy (supra) to hold that any article or substance which is commonly consumed by human beings would be included in the definition of food under the PFA. 132. Learned counsel further referred to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ana, 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 of food . 136. Learned counsel, reading Section 16 of the COTPA, submitted that it was never the intent of the Parliament that the COTPA would cover the entire field qua tobacco. If, it did, the phrase any other law would lose its meaning. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 3 SCC 351, it was asserted that where there is an exclusion clause, it has to be read narrowly and strictly. If the Parliament wanted to exclude tobacco, it would have specifically mentioned it in the list of the exclusion as included. 143. By p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, 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 Court to take cognizance of the action of the welfare State which is towards the betterment of the society. 149. In the light of the aforementioned submissions, the Respondents have accordingly prayed for dismissal of the present writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context, subject of legislation and object of the law. The meaning of common words relating to common articles con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d self-destruction of these poor, ignorant and illiterate persons that the definition of food is couched in such terms as not to take into account whether an article is intended for human consumption or not. In order to be food for the purposes of the Act, an article need not be fit for human consumption; it need not be described or exhibited as intended for human consumption; it may even be otherwise described or exhibited; it need not even be necessarily intended for human consumption; it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not food . In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the prep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 gutka does not amount to food within the meaning of definition in Section 2(v) of the Act. 157. The Division Bench of the Allahabad High Court in Khedan Lal (supra) was dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 item under Section 2(v)(a) of the PFA, 1954 then it would have been specifically mentioned in Appendix B which contains the standards of quality of all food items falling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 one local area, but not in another. Hence, the Hon ble Apex Court opined that the construction of the provisions of the statute must not be such as to result in suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 Tamil Nadu v. K. Sabanayagam and Anr. (vide para17), this Court after referring to the aforesaid observations of Chinnappa Reddy, J. in Cynamide (supra), observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under Section 23 of the Act; 6. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and sale of Gutka and Pan Masala with tobacco and/or nicotine. Relevant part of the order dated 03.04.2013 is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 on the issue of total compliance of the ban imposed on manufacturing and sale of Gutk ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Bombay High Court in Mohammad Yamin Naeem Mohammad (supra). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artem 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 comprehensive law, which deals with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke 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 more psychological ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 different fields and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 nicotine sh ..... 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 exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order notified in this 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 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p the gaps. It is settled that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the COTPA overrides 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of legislature and not by a mere notification issued by an executive authority. 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. Vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TPA has not been repealed either 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, cardamom, etc. besides tobacco. Chewing tobacco 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 stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order by the Commissioner of Food Safety under the said provision, 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; interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... departure from the audi alteram partem rule could be presumed to have been 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 Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra that the impugned notifications being a legislative act, there was no question of 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 withdraw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) year. However, it has been noted that the impugned Notifications under challenge in the present case have been issued 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 dist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which makes the said classifications/ distinctions falling short of passing the test of Article 14 of the Constitution. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputedly, this Court agrees that tobacco and nicotine are injurious to health, however, the present case involves certain questions of 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 manu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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