SHORT NOTE
KERALA HIGH COURT
A.M. Shaffique, J.
Joshy K.V. and Ors. —Petitioners
versus
State of Kerala and Ors. —Respondents
Writ Petition Nos. 13580, 15496 and 21854 of 2012
Decided on 20.12.2012

IMPORTANT POINT
Tobacco or tobacco products are not food products.

Headnote:Food Safety and Standards Act, 2006—Section 3(j)—Regulation 2.3.4 of Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations 2011— Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003—Chewing tobacco—Ban on supply and sale—Irrespective of name of product or brand name of product, if it is Pan-Masala or Gutkha, the ban applies. Gutkha admittedly contains tobacco. In respect of Pan-Masala, ban is only if it contains tobacco or nicotine—Tobacco in any food product is prohibited—This itself indicates that tobacco is not a food product—It might at best be an intoxicant which is not used for taste or nourishment—Chewing tobacco or tobacco products are covered by provisions of CTP Act and FSS Act has no application to such products—It cannot be said that chewing tobacco or tobacco products are treated as food products and there is no power under Clause 2.3.4 of Regulations to impose a ban on tobacco or tobacco products whereas ban is confined only to Gutkha and Pan-Masala containing tobacco and Nicotine—Tobacco or tobacco products are not food as defined under Section 3(j) of FSS Act and it is not a food product as specified in Regulation 2.3.4 of Regulations—Tobacco and tobacco products are to be manufactured and sold strictly in accordance with provisions of CTP Act and Rules framed thereunder— Respondents have no right take any action against tobacco or tobacco products by virtue of Government Order dated 22.5.2012.

       Held: It is not in dispute that the official respondents have relied upon Ex.P9 order to prevent chewing tobacco to be brought into State of Kerala where there is a ban on supply and sale of gutkha and pan masala “containing nicotine or tobacco” by whatever name called. Therefore irrespective of the name of the product or brand name of the product, if it is pan-masala or gutkha, the ban applies. Gutkha admittedly contains tobacco. In respect of pan-masala, the ban is only if it contains tobacco or nicotine. The question here is whether tobacco by itself with some additives like lime or other flavouring substances can be prevented from being brought to State of Kerala or can be seized by the official respondents under the guise of the aforesaid ban.

       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 Section 3(j) of FSS Act defines food and then by virtue of a legal fiction it provides an inclusive definition of certain other items which are not generally treated as food and by virtue of that fiction certain substances like primary food as defined under Z(k) genetically modified or engineered or goods containing such ingredients, infant food, package drinking water, alcoholic drink, chewing gum and any substance including water is considered to be food. That does not by itself mean that a product not named in the inclusive definition which is not a food will become a food product unless it is shown that it is eaten with relish be men for taste or nourishment as held in Pyarali K. Tejani (supra). The fact that tobacco is a product which is to be avoided is clear from the Regulation 2.3.4 itself. In fact tobacco in any food product is prohibited. This itself indicates that tobacco is not a food product. It might at best be an intoxicant, which is not used for taste or nourishment. Therefore, I am of the view that chewing tobacco or tobacco products are covered by the provisions of CTP Act, and FSS Act has no application to such products. I am in respectful agreement with the judgment of Delhi High Court in Ram Babu Rastogi & Ors. (supra).

       Though the learned counsel for the petitioners tried to draw distinction in respect of the chewing tobacco with reference to the provisions of Central Excise Act and the relevant provisions by which separate duty is being imposed, such items like chewing tobacco, pan-masala or Gutkha, I do not think that reference to imposition of excise duty for the said items by itself will not amount to treating the said items as different or distinct, when the matter is being considered as to whether chewing tobacco is a food or not.

        Now coming to Ex.P9 order, which imposes a ban on Gutkha and Pan-masala containing tobacco or Nicotine, the said ban can have no application to tobacco or chewing tobacco or tobacco products as the case may be. From a reading of the provisions of the Act, it cannot be said that chewing tobacco or tobacco products are treated as food products and therefore there is no power under Clause 2.3.4 of the Regulations to impose a ban on tobacco or tobacco products, whereas the ban is confined only to Gutkha and Pan-masala containing tobacco and Nicotine.

        It is argued by the learned Special Government Pleader that Ex.P9 order is still in force and the respondents have to implement the same. It is not in dispute that the Regulation permits the Government to impose any restriction on any food product containing tobacco or Nicotine. But, it cannot prohibit the manufacture and sale of tobacco or tobacco products which cannot be considered as a “food product”.

        Having found that chewing tobacco is not a food product as defined under the FSS Act, I am of the view that the writ petitions are only to be allowed as follows:

        (i) That tobacco or tobacco products are not food as defined under Section 3(j) of the FSS Act and it is not a food product as specified in the Regulation 2.3.4 of the Regulations.

        (ii) Tobacco and tobacco products are to be manufactured and sold strictly in accordance with the provisions of the CTP Act and the Rules framed thereunder.

        (iii) The respondents have no right take any action against tobacco or tobacco products by virtue of Government Order dated 22.5.2012 (Ext.P9 in W.P.C.No.13580 of 2012).