I.A. Ansari, J.

The present set of writ petitions involve common question of fact and raise common questions of law; hence, these writ petitions have been heard together by the consent of the parties for final disposal and are being disposed of by this common judgment and order.

2. The petitioners are manufacturers of tobacco products, such as Pan Masala and Zarda. The petitioners are aggrieved by the orders of the Commissioner of Food Safety, Patna, whereby the Commissioner, in exercise of powers, under Section 30(a) of the Food Safety and Standards Act, 2006, has prohibited the manufacture, storage, distribution or sale of Zarda, Pan Masala and Gutkha.

3. The petitioners contend that the Food Safety and Standards Act, 2006, and the Regulations made thereunder do not operate as a prohibition on Manufacture, Production, Marketing, Storage and other allied activities of the Scheduled Tobacco products within the meaning and definition of the Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003 (hereinafter referred to as COTPA). It is the case of the petitioners that as the petitioners are dealing in the manufacturing, production and marketing of Scheduled Tobacco products within the meaning of Section 3(p) of COTPA, they are not performing any Food Business and, hence, they are not Food Business Operators under the Food Safety and Standards Act, 2006. Consequently, they are not required to submit to the statutory requirements of the Food Safety and Standards Act, 2006, and the Regulations made thereunder. It is also their case that the COTPA is a comprehensive law to provide for Regulation of Trade and Commerce and other allied activities including production in tobacco products and, as such, the petitioners, who are manufacturers of tobacco products, are regulated exclusively by the provisions of the COTPA. The petitioners further contend that the Central Government is levying and collecting Excise duty considering the products, in question, namely, pan masala and Zarda as tobacco products.

4. The petitioners have also challenged the vires of Regulation 2.11.5 of the Food Safety and Standards (Food Products Standards Food Additives) Regulation, 2011, made by the Food Safety and Standards Authority of India, whereby Pan Masala (not Zarda) has been included as an item of food, the standards for the same has been prescribed and separate provisions for their packaging and labeling has been made. In this regard, it is contented that the Regulations 2.11.5 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011, being in the form of a subordinate legislation, made by a statutory authority, namely, Food Safety and Standards Authority of India (FSSAI), under its rule-making power, is in direct and irreconcilable conflict with the substantive Central Act being COTPA enacted by the Parliament of India. It is also contended that the impugned Regulations suffer from the vice of excessive delegation and travel beyond the scope of delegation as conferred by the parent Act, there is inherent lack of legislative competence as the impugned Regulations is hit by the inhibition contained in Article 13(2) of the Constitution of India prohibiting the State from making any law, which takes away or abridges the rights conferred under Part III of the Constitution of India and thereby renders any such law abridging Fundamental Rights, to the extent of contravention, void.

5. It has been further urged that by virtue of inclusion of Pan Masala as an item of Food under the Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011, the product has to conform to the other Regulations made under the Food Safety and Standards Act. As per Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulation 2011, Tobacco and Nicotine shall not be used as ingredien