ORDER :

Common Prayer: Writ Petitions filed under Article 226 of the Constitution of India, praying to issue a writ of certiorari, to call for the Notification No.VI(1)/155(a)/2017, dated 23.05.2017 on the file of the respondent and to quash the same as illegal as far as the 'Chewing Tobacco' is concerned.

The petitioners are traders in chewing tobacco and registered dealers on the files of the State Commercial Tax Authorities. They challenge a notification issued by the Commissioner of Food Safety which includes chewing tobacco within the ambit of the provision of the Food Safety and Standards Act, 2006.

2. The notification is challenged on the ground that excess of tobacco is not a food product and thus the restrictions placed by the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations Act, 2011 would not apply in such a case.

3. The petitioner relies on two orders passed by learned Single Judges of this Court in (i) Jayavilas Tobacco Traders LLP Vs. The Designated Officer, the Food Safety and Drugs Control Department [W.P.No.21 of 2017 dated 09.06.2017] and (ii) Manufacturer, Tejram Dharam Paul, Punjab and Another Vs. The Food Safety Inspector [Crl.O.P.(MD) No.5505 of 2015 dated 27.04.2015 Madurai Bench of the Madras High Court].

4. However, this issue has been decided against the petitioner by the First Bench of this Court in J. Anbazhagan Vs. Union of India and Others [2018 (7) SCC 365]. The prayer in that writ petition was for a mandamus directing the respondents to constitute a Special Investigation Team to be headed by a retired Judge of this Court and comprising officials drawn from Central Bureau of Investigation and other departments to be identified by this Court and take all effective steps to seize and eradicate banned items, more particularly Gutkha and Pan Masala containing tobacco and/or nicotine in line with Gazette Notification dated 23.05.2015 passed by the Commissioner of Food Safety and Drug Administration/R11 and in line with the judgment of the Supreme Court in the case of Central Arecanut Marketing Corporation Vs. Union of India [T.C.(Civil) No.1 of 2010 dated 23.09.2016].

5. That writ petition came to be disposed by way of a decision reported in [2018 (3) CTC 449] wherein this Court has upheld the regulation on the sale of tobacco. The Bench has also specifically disagreed with the decisions of the learned Single Judges of this Court relied upon by the petitioner. Paragraphs 73 to 83 of the judgment of the First Bench of this Court are extracted below :

“73. The Food Safety Act is a statute enacted after COTA. The definition of “Food” in Section 3(j) of the Food Safety Act is different from the definition of food in the Prevention of Food Adulteration Act, 1954, which was as follows:

“Section 2. Definitions: - In this Act unless the context otherwise requires,-

....

(v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes,

(a) Any article, which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) Any flavouring matter or condiments, and

(c) Any other article which the Central Government may, having regard to its use, nature, substance or quality declare, by notification in the official Gazette, as food for the purposes of this Act.”

74. Under the Food Safety Act, food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption. It includes primary food to the extent defined in clause (zk), that is an article of food being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman. It also includes genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any