IMPORTANT POINT
Manufacturers of Gutkha and Pan Masala cannot be proceeded under Food Safety and Standard Act, 2006.

JUDGMENT

M. Duraiswamy, J.—The petitioner has filed the above writ petition to issue a Writ of Certiorari to call for the records relating to the issuance of the order dated 24.11.2016 of the respondent and to quash the same.

2. According to the petitioner, it is a partnership firm and has been manufacturing tobacco products since the year 1972. On 05.10.2016, samples of tobacco products manufactured by the petitioner was collected by the Food Safety Officer, Vikkiravaandi, from the shop named “Kalima Stores” located at 116-4/324, Main Road, Vikkiravaandi. On 03.11.2016, a representation was sent to the respondent along with other similar tobacco products manufactured by the petitioner stating that the tobacco does not fall under the food category and the order of the Madurai Bench of Madras High Court passed in Crl.O.P.(MD) No.5505 of 2015, dated 27.04.2015 was also annexed along with the representation. The respondent passed the impugned order dated 24.11.2016 under the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations Act, 2011 implicating the petitioner for the alleged offences under section 3(1) (zz) (i) (iii) (v) of FSS Act, 2006 and Rules 2.3.4 of the Food Safety and Standards Regulations Act, 2011. According to the petitioner, tobacco is not a food product, therefore, the provisions of Food Safety and Standards Regulations Act, 2011 and FSS Act, 2006, does not apply.

3. Mr.S.Prabhakaran, learned Senior Counsel, appearing for the petitioner submitted that since the tobacco is not a food product, the provisions of FSS Act, 2006 and Food Safety and Standards Regulations Act, 2011 have no application. Further, the learned Senior Counsel, in support of his contention, relied upon the following judgments:—

(i) Judgment of the Hon’ble Supreme Court of India passed in Appeal (Civil) No.4674 of 2004 [Godawat Pan Masala Products I.P. Ltd. & Another v. Union of India & others], dated 02.08.2004, wherein the Apex Court held as follows:—

“As a result of the discussions, we are of the view that:

1. Section 7(iv)of the Act is not an independent 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. 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;