The main legal point established in the judgment is that chewing tobacco containing food additives does not fall within the definition of 'food' under the Food Safety and Standards Act, 2006, and should be regulated under the Cigarettes and Other Tobacco Products Act, 2003.

JUDGMENT :

S.K. Mishra, J.

1) Following mixed questions of facts and law and also pure questions of law arise for determination in this case:-

(i) Whether chewing tobacco containing food additives comes within the definition of “food” under the Food Safety and Standards Act, 2006 (hereinafter referred to as ‘the FSSA” for brevity)?

(ii) Whether the Commissioner of Food Safety has jurisdiction to permanently prohibit chewing tobacco containing food additives under the provisions of the FSSA?

(iii) Whether the tobacco industry and food industry are two distinct and separate industries – one, falling 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 COTPA” for brevity)?

(iv) Whether scheduled tobacco product cannot be treated as “food” under the FSSA in spite of the fact that food additives are found in the finished goods and it remains essentially a tobacco product to be regulated under the COTPA and not under the FSSA?

(v) Whether the impugned advisory and notification(s) 21st dated September, 2017 (Annexure 4), 18.12.2018 (Annexure 5) and 12.01.2021 (Annexure 7), are liable to be quashed because of lack of jurisdiction as well as non-application of mind by Commissioner of Food Safety?

2) The Smokeless Tobacco Association representing the Tobacco Producers and Traders has filed this writ petition to issue a writ in the nature of certiorari quashing the letter dated 21.09.2017 issued by respondent No.1 (Annexure 4 to the writ petition) whereby the respondent No.2 has been suggested to devise a mechanism for issuing license for sale of tobacco. Further, it has been prayed for issuance of appropriate writ, order or direction, including writ of certiorari for quashing the order dated 18.12.2018 (Annexure 5) and Notification No. F.16/Khadya (Vividh)/12-06/2017/05(16) Heath, Ranchi dated 12.01.2021 issued by the Principal Secretary-cum-Commissioner of Food Safety, Government of Jharkhand (Annexure-7). The petitioner has also prayed for consequential relief.

3) The petitioner is a society registered under the Societies Registration Act, 1860. It is an Association of legal entities and persons engaged in the manufacturing, trading, marketing and dealing in all forms of smokeless tobacco products.

4) It is stated on behalf of the petitioner that tobacco plays a significant role in the Indian economy as it contributes substantially in terms of excise revenue and employment. India is the second largest producer of tobacco and also a major exporter of unmanufactured tobacco. The tax and GST collection from tobacco products in the year 2019-20 was stated to the tune of Rs.53,540/-Crores.

5) Entry 52 of List I of the Seventh Schedule of Constitution reserves the field of controlled industries within the competence of the Parliament. Entry 52 List 1 reads as follows:-

“52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.”

6) Relevant part of Entry 33 of List III reads as follows:-

“33. Trade and commerce in, and the production, supply and distribution of,-

(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;

(b) foodstuffs, including edible oilseeds and oils;

(c)... … …

(d)… … …

(e)… … …”

7) It is the case of the petitioner that the schedule appended to COTPA includes chewing tobacco in Serial No.6 and, therefore, it is governed under the COTPA.

8) It is further case of the petitioner that under the aegis of the World Health Organization (‘WHO’ in short), the Codex Alimentarius has been created which is a collection of internationally adopted food standards and related texts presented in a uniform manner. The food standards and related texts aim at protecting consumers’ health and ensuring fair p