The main legal point established in the judgment is that while the authorities have the power to regulate the use of tobacco products, including hookah, they cannot impose total prohibition on the sale of tobacco products and offering of hookah in restaurants.

1. The present writ petition has been filed for quashing and setting aside the order dated 30.05.2017 passed by the respondent no. 2 - the Deputy Commissioner-cum-District Magistrate, Ranchi enforcing/imposing complete restriction/prohibition from carrying on the business activities concerning smoking of hookah within the district of Ranchi.

2. The learned counsel for the petitioner submits that the petitioner is carrying on the business of Restro & Lounge having a separate space for smoking of hookah. The restriction imposed under 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 the “Act, 2003”) is confined to prohibiting smoking at public places. However, subject to compliance of certain conditions and regulations, the same has otherwise been permitted at some places which includes the airports, restaurants and hotels at designated smoking area or space as defined in rule 2(e) of the Prohibition of Smoking in Public Places Rules, 2008 (hereinafter referred to as the “Rules, 2008”). Moreover, the sale of articles having tobacco is prohibited to be sold to the persons below 18 years of age and the other restriction is that it should not be sold within a radius of 100 yards of any educational institution. It is further submitted that since the Act, 2003 does not prohibit or restrict trade or business of cigarette or tobacco products except certain conditions appended thereto, there is no power vested to the State Government much less the district administration to restrict or close down the business of sale of tobacco & tobacco products. The petitioner has been carrying on the business of Restro & Lounge having a separate space for smoking of hookah and the flavours used in the said business of the petitioner are all herbal molasses which have also been tested by one of the laboratories recognized by the Government of India according to which no nicotine and tar content in the product was being sold by the petitioner. However, the respondent no. 2 arbitrarily by way of a general order, has directed total prohibition on running of Hookah Bars.

3. Per contra, the learned counsel for the respondent-State submits that the order passed by the respondent no. 2 is in conformity with the provisions of the Act, 2003 as also the ratio laid down by the Hon’ble Supreme Court in various judgments rendered in this regard. Section 6 of the Act, 2003 prohibits the sale of cigarettes and other tobacco products to persons below 18 years of age and in an area within a radius of 100 yards of any educational institution. Serving of any form of hookah/shisha in restaurants, lounges, pubs, bars, cafes etc. is in violation of Section 268 and 278 of the Indian Penal Code and Section 4, 5, 6(A), 7 of the Act, 2003 and the Rules, 2008 as amended vide Gazette Notification No. GSR 500(E) dated 23.05.2017. It is further submitted that the order dated 30.5.2017 passed by the respondent no. 2 enforcing/imposing complete restriction/ prohibition from carrying on business activities concerning smoking of hookah within the district of Ranchi has been issued in compliance of the above provisions of the statutes. Several State governments such as NCT of Delhi, State of Uttar Pradesh, Madhya Pradesh, Punjab, Haryana etc. have issued necessary orders prohibiting service of all forms of hookah in restaurants, bars, cafes etc. and strict actions have been taken against the owners who under the garb of running restaurants and cafes were serving hookah. National Green Tribunal in the matter of Manjinder Sing Sirsa vs. Union of India and Others, O.A. No. 610 (479) of 2017 through various orders, has enforced ban on serving of all forms of hookah in restaurants and bars in Delhi. Smoking of herbal or flavoured hookah/shisha whether having tobacco or not is harmful to smokers as well as non-smokers as the smoke carries carbon-mono-oxi