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TMI Blog2012 (12) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... of Kerala. Though they had represented that the ban of panmasala does not apply to chewing tobacco, the goods are not permitted to be brought to State of Kerala. It is their contention that though the Government had passed Ext.P9 order banning the manufacture, storage, sale or distribution of gutkha and panmasala containing tobacco or nicotine as ingredients in pursuance of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011 (hereinafter referred to as the Regulations of 2011), the said prohibition does not apply to chewing tobacco and therefore it is not open for the respondents to prohibit the import of chewing tobacco to State of Kerala from any other State in the Country. Ext.P9 is extracted hereunder: OFFICE OF THE COMMISSIONER OF FOOD SAFETY, KERALA, THIRUVANANTHAPURAM No. A/1327/2012/CFS Dated, Thiruvananthapuram, 22.5.2012. ORDER WHEREAS, regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 made by the Food Safety and Standards Authority of India in exercise of the powers conferred by clause (i) of sub-section (2) of S. 92 of the Food Safety and Standards Act, 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to sell the said products within the State of Kerala and further for a declaration that the products are not banned in the State of Kerala. 4. W.P.C. No. 21854 of 2011 is filed by a wholesale dealer of tobacco products under the brand name Hans Khaini, Madhu Khaini, Chaini Khaini and Cool Khaini. He has also taken identical contentions as that of other petitioners and challenges the action of the official respondents in not permitting the import of tobacco products to the State of Kerala or sale of the same on the basis of the Government Order banning gutkha and panmasala containing tobacco and nicotine as ingredients. 5. The second respondent has filed a counter affidavit in W.P.C. No. 13580 of 2012. A voluntary organization has filed I. A. No. 8558 of 2012 for impleading as additional fifth respondent which is already allowed. Second respondent has filed a counter affidavit in W.P.C. No. 16496 of 2012 and adopted the same contention as in W.P.C. No. 21854 of 2012 by filing a memo. 6. Common contention urged by the second respondent in the counter affidavit is that the petitioners were trying to transport banned products under the name flavoured chewing tobacco. According to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea within a radius of 100 yards of any educational institution. Section 6 reads as under. 6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area.- No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product- (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. (iv) Section 7 imposes restriction on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products which reads as under: 7. Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products.- (1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label, 1[such specified warning including a pictorial warning as may be prescribed]. (2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seizure made under this Act. (vi) Section 22 imposes the punishment for contravening any provisions under Sections of the Act which reads as under: 22. Punishment for advertisement of cigarettes and tobacco products.-Whoever contravenes the provision of Section 5 shall, on conviction, be punishable (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. (vii) Section 24 further imposes a punishment for sale of such products contravening Section 6 of the Act which reads as under: 24. Punishment for sale of cigarettes or any other tobacco products in certain places or to persons below the age of eighteen years.- (1) Any person who contravenes the provisions of Section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees. (2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purposes of this Act having regards to its use, nature, substance or quality; 13. Senior Counsel Sri. Joseph Kodianthara referred to the provisions in the Central Excise notification to contend that chewing tobacco is considered as a separate item and therefore it cannot be equated with Panmasala or Gutkha which are again treated as distinct items as per Central Excise Notification. The argument is that going by any law on the point chewing tobacco is classified as a distinct item and cannot be equated with Panmasala which is another distinct item or Gutkha which is another distinct item. Therefore according to the learned counsel unless Tobacco or Tobacco products are specifically described in the F.S.S. Act as a Food Product, the supply and sale cannot be prohibited or regulated in the State of Kerala, and at any rate Ext.P9 has no application to such products. 14. It is further contended by the learned senior counsel in so far as the F.S.S. Act is concerned the schedule to the Act prescribes standards for Panmasala whereas there is no such entry in the FSS Act or the Rules framed thereunder in relation to chewing tobacco. 15. Learned counsel also referred to judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which affects 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 consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines food very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word food is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish by men for taste and nourishment? It is. And so it is food. Without tarrying further on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If it is not a food product, apparently regulation 2.3.4 does not apply. The controversy therefore is only regarding the question as to whether the products manufactured and sold by the petitioners is a food product. 24. Going by the definition, it only indicates that any substance whether processed, partially processed or unprocessed which is intended for human consumption is meant as food. Tobacco as it is cannot be treated as food and the respondents do not have such a case also. According to the respondents, the additives of lime or other substance in the tobacco makes it a food product as it is used for human consumption. According to the respondents the juice of the tobacco is consumed and therefore it becomes a food product. 25. In the normal circumstances one cannot imagine tobacco as a food item as no one consumes tobacco as it is. But, in a processed form when it is used for chewing, whether it becomes a food product is the question. According to the learned Government Pleader, when chewing gum and supari is included as food product, necessarily chewing tobacco also should be treated as the same. It has to be remembered that S. 3(j) of F.S.S. Act defines food and then by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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