Very Important point
Notifications issued by the Food (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 by which the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacoo) were banned for different periods, quashed as unconstitutional and void as abridging the fundamental rights of the manufacturers guaranteed under Articles 14 and 19 of the Constitution.

Headnote:(i) Prevention of Food Adulteration Act, 1954-Sections 7(iv), 22, 23 and 24-Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act, 2003-Prevention of Food Adulteration Rules, 1955-Ban on manufacture, sale, storage and distribution of pan masala and gutka-Notifications were issued by Food (Health) Authority imposing pan for different periods-For State of Maharashtra, ban was for a period of five years w.e.f. 1.8.2002-Writ petitions filed challenging validity of notifications-Common issue as to the power of Food (Health) Authority to issue order of prohibition u/s 7(iv) of the Act-Each of the manufacturers has been issued a licence to manufacture the banned product by the Central Government-Whether clause (iv) of Section 7 of the Act empowers the Food (Health) Authority with the power to issue an order of ban for a long period-(No)-Whether notifications issued are legal and enforceable against appellants/petitioners-(No)-Maharashtra Prevention of Food Adulteration Rules, 1962-Rule 3-Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982.
       Held : Section 23(1A)(f) empowers the Central Government to prescribe rules for prohibiting the sale or defining the conditions of sale of any substance which may be “injurious to health” when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture for sale of any article of food. Learned counsel, therefore, contend that the power of the Food (Health) Authority has to be necessarily found under the rules made by the State Government and subject to the limitation that they cannot operate in the field covered by Section 23. Since Section 23(1A)(f) empowers the Central Government to make rules for prohibition of any substance which may be injurious to health, it is contended that the state Food (Health) Authority is denuded of such power. There appears to be merit in the contentions of the appellants. Rule 3 of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the corresponding rule in the Goa, Daman & Diu Prevention of Food Adulteration Rules, 1982 suggest that the power given to the Food (Health) Authority is only a pro tem power to deal with an emergent situation, such as outbreak of any infectious disease, which may be due to any article of food. In such a contingency, the Food (Health) Authority is empowered to take all such action as it deemed necessary to ascertain the cause of such infectious disease and to prevent the outbreak of such disease or the spread thereof. Certainly, such power would include the power to ban “for the time being” the sale of such injurious articles of food. Hence, correspondingly Section 7(iv) of the Act provides that no person shall manufacture for sale, or store, sell or distribute “any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health.” In other words, when a contingency envisaged by Rule 3, or one similar thereto, arises and it becomes necessary for the Food (Health) Authority to take immediate steps, the Food (Health) Authority is empowered to prohibit “for the time being” the concerned injurious article and to take any appropriate step “in the interest of public health”. On the collocation of the statutory provisions, we are unable to accept the contention of the learned counsel for the States that clause (f) of Section 7 of the Act is an independent source of power. (Paras 22 to 24)
       We are inclined to the view that the power of the state authority, which is discernible under Section 24(2)(a) read with the state rules, operates only for a temporary period during which an emergent situation exists which needs to be controlled. It is not possible to accept the State Governments’ contention that clause (iv) of Section 7 of the Act is an independent provision which clothes the Food (Health) Authority with the power to issue an order of ban for a long period. (Para 26)
       A contrast of the powers of the Central Government with those of the State Government, with particular reference to the power of the Central Government to make rules to prohibit the manufacture, sale and distribution of such articles which are injurious to health when used as food, enumerated in clause (f) of sub-section (1A) of Section 23 of the Act, leads us to believe that, even assuming that gutka and tobacoo products are injurious to health, the power of their prohibition is only vested with the Central Government and not with the State Food (Health) Authorities. The State (Food) Health authorities have only a limited power of issuing an order of prohibition for a short term while they investigate local problems and take appropriate measures to control the situation. Beyond that, the state authorities have no power as urged by the learned counsel for the State Governments and as accepted in the impugned judgment of the Bombay High Court. (Para 27)
       It is not possible to agree with the view taken by the High Court that Section 7(iv) of the Act is an independent source of power of such amplitude as held. In our view, the power of the state under Section 7(iv) of the Act is statutory; absolute to the extent provided therein, and limited to the extent indicated by Section 23(1A) of the Act. (Para 29)
       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; 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; 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). 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. (Para 76)
       (ii) Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003-Prevention of Food Adulteration Act, 1954-Section 7(iv)-Whether the Act of 2003 is in conflict with the provisions of Section 7(iv) of the Food Adulteration Act-(Yes)-Act of 2003 is a special Act intended to deal with tobacco and tobacco products-Act of 2003 being a Special Act and of later origin overrides provisions of Section 7(iv) of the 1954 Act with regard to power to prohibit sale or manufacture to tobacco products.
       Held : Act 34 of 2003 passed by Parliament does not totally ban the manufacture of tobacco or tobacco products. Section 6 merely prohibits sale of cigarettes and tobacco products to a person under the age of eighteen years. There are stringent provisions made in the Act containing the prohibition of advertisement of cigarettes and tobacco products. Section 3(p) defines the expression “tobacco products” as the products specified in the Schedule. Entry 8 of the Schedule to the Act reads “pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called).” Thus, pan masala or any chewing material having tobacco is also one of the products in respect of which the Act could have imposed a total prohibition, if Parliament was so minded. On the other hand, there is only conditional prohibition of these products against sale to persons under eighteen years of age. (Para 36)
       (iii) Prevention of Food Adulteration Act, 1954-Section 7(iv)-Constitution of India-Articles 14 and 19-Notifications issued by Food (Health) Authority by which manufacture, sale, storage and distribution of pan masala and gutka were banned for different periods-Notifications challenged as unconstitutional-Whether banning of manufacture, sale, storage and distribution of pan masala or gutka is an unreasonable and excessive restriction on fundamental right to carry on trade or business-(Yes)-Notifications quashed as violative of Articles 14 and 19 of the Constitution.
       Held : We are unable to discern as to how the very same magnesium carbonate would become injurious as a result of combined chewing of arecanut and lime, particularly when it is not the case of the state Government that Rajnigandha pan masala itself contains magnesium carbonate. It is permissible under Article 19(6) to impose a reasonable restriction “in the interest of general public”. Assuming that such a restriction can be imposed, even if by legislation intended to prohibit manufacture, sale or storage of articles harmful or injurious to health, the restriction has to be commensurate with the danger posed. On a conspectus of the facts, we are unable to uphold the prohibition imposed by the impugned notification as a restriction which can pass the test of reasonableness under Article 19(6) of the Constitution of India for two reasons. First, there is no demonstrated danger to the public health by magnesium carbonate by consumption of Rajnigandha pan masala; secondly, even if there were, the prohibition could only have extended to pan masala containing magnesium carbonate and could not be wider than that. (Para 43)

Judgment

Srikrishna, J.-Leave granted in the special leave petitions and the writ petition is admitted.

2. These appeals and writ petition arise from different areas and, though marginally differing on facts, raise substantially similar issues of law. They can, therefore, be conveniently disposed of by a common judgment.

3. The common issue raised for consideration of this Court in all these cases is the validity of notifications issued by the Food (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the ‘Act’) by which the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) were banned for different periods. We shall take the facts in the civil appeal arising out of special leave petition No. 24449 of 2002 as typical of the cases.

Facts :

Civil Appeal arising out of SLP (C) No. 24449 of 2002

4. The appellants manufacture gutka within the state of Maharashtra, which is stored in convenient godowns and sold both within and outside the state of Maharashtra. By a notification dated 23rd July, 2002 issued by the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra, the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) were banned for a period of five years with effect from 1st August, 2002. The appellants challenged the validity of this notification by a writ petition No. 2024 of 2002 before the High Court of Judicature at Bombay. By its judgment dated 18th/19th September, 2002, the division bench of the Bombay High Court dismissed the writ petition upholding the validity of the notification. Aggrieved thereby, the appellants challenge the said judgment by the present appeal.

Writ Petition No. 173 of 2003 :

5. Petitioners Nos. 1 to 5 are associations and cooperative societies of arecanut growers, petitioners Nos. 6 and 7 are engaged in the manufacture and sale of pan masala and gutka in the State of Karnataka. They are aggrieved by a notification dated 27th February, 2002, issued by the competent officer appointed as Food (Health) Authority for the State of Andhra Pradesh under Section 7(iv) of the Act, by which the sale of all brands of pan masala (containing tobacco) and chewing tobacco/zarda/khaini under any brand name was prohibited “in the interest of public health” in the entire state of Andhra Pradesh with immediate effect.

6. The petitioners also challenge another notification dated 19th November, 2001 issued by the Director for Public Health and Preventive Medicine and State Food (Health) Authority, Government of Tamil Nadu, under Section 7(iv) of the Act directing that no person shall himself or by any person on his behalf, manufacture for sale or store, sell or distribute; (i) chewing tobacco; (ii) pan masala; (iii) gutka, containing tobacco in any form or any other ingredients injurious to health, under whatever name or description in the State of Tamil Nadu. This notification is purported to have been issued in the “interest of public health”, for a period of five years with effect on and from 19th November, 2001.

7. The third notification which is challenged in the writ petition is the notification dated 23rd July, 2002 issued by the Commissioner of Food and Drug Administration and Food (Health) Authority for the State of Maharashtra. By the said notification, issued purportedly in exercise of the powers under Section 7(iv) of the Act, “in the interest of public health”, the sale of gutka and pan masala, containing tobacco or not containing tobacco, is prohibited for a period of five years effective from 1st August, 2002. The notification directs that “no person shall himself or any person on his behalf, shall manufacture for sale or store, sell or distribute gutka or pan masala, containing tobacco or not containing tobacco, by whatever name called.

8. The fourth notification challenged in the writ petition is the not

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2004 Supreme(SC) 784

Cases Referred (31)