(Chief Justice)

Rule, returnable in the first week of July 2013.

Heard the learned counsel on the question of interim relief.

The writ petitioners are companies engaged in the business of manufacture, supply and distribution of pan masala containing tobacco (known as gutka) and pan masala not containing tobacco. The petitioners claim to have licences and permissions under the Prevention of Food Adulteration Act, 1954 which is now replaced by the Food Safety and Standards Act, 2006 and the other legislations. According to the learned counsel for the petitioners in five petitions, the petitioners' factories are situate outside the State of Maharashtra. Statutory Regulations and Standing Order under challenge :

2. The petitioners have challenged the validity of the following provisions of two different Regulations under the Food Safety and Standards Act, 2006 (“the Food Safety Act “or FSS Act or Act of 2006”) as well as the statutory order dated 19 July 2012 of the Commissioner of Food Safety, State of Maharashtra under Section 30(2)(a) of the Food Safety Act. The regulations impugned in these petitions are -

(i) Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 (“The Prohibition and Restrictions Regulations”) and

(ii) Regulation 3.1.7 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulations, 2011 (“the Standards Regulations”). Both the Regulations taken together are referred to as “2011 Regulations”.

The impugned regulations read as under:-

“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.”

“3.1.7 Restriction on use of anticaking agents – No anticaking agents shall be used in any food except where the use of anticacking agents is specifically permitted.

PROVIDED that Table Salt, Onion Powder, Garlic Powder, Fruit Powder and Soup Powder contain the following anticaking agents in quantities not exceeding 2.0 percent either singly or in combination namely:-a) Carbonates of calcium and magnesium b) Phosphates of calcium and magnesium c) Silicates of calcium, magnesium, aluminum or sodium or silicon dioxide; d) Myristates, Palmitates or stearates of aluminum, ammonium, calcium, Potassium or sodium.

PROVIDED that calcium potassium or sodium ferrocyanide may be used as crystal modifiers and anticaking agent in common salt and iron fortified salt in quantity not exceeding 10 mg/kg singly or in combination expressed as ferrocuanide”

(emphasis supplied)

3. By the impugned order dated 19 July 2012, the Commissioner of Food Safety, Maharashtra State (the Food Safety Commissioner) after referring to the harmful effects of the ingredients being used in gutka or Pan Masala including carcinogenic and co-carcinogenic effects etc., in exercise of the powers conferred by Section 30(2)(a) of the Food Safety Act, has in the interest of public health, prohibited manufacture, storage, distribution or sale of Gutka or Pan Masala containing either tobacco and/or nicotine or Magnesium Carbonate as ingredients, by whatsoever name these are available in the market and any other products marketed separately to constitute as Gutka or Pan Masala etc. as final products in the State of Maharashtra, for a period one year from the date of publication of the order in the Maharashtra Government Gazette. The order was published in the Maharashtra Government Gazette on 20 July 2012.

BROAD CHALLENGES

4. The above regulations and the impugned order are challenged broadly on the following grounds:-

(i) The prohibition similar to one contained in the impugned order dated 19 July 2012 was struck down by the Supreme Court in Ghodawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, (2004) 7 SCC 68 (the Ghodawat judgment). In the above judgment, the Supreme Court in terms held that the Cigarettes and other Tobacco Products (Prohibition of Advertisements) and Regulatio