JUDGMENT :

R. Subramanian, J.

[Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order passed by this Court dated 09.06.2017 passed in W.P.No.21 of 2017.

Prayer: Writ Petitions filed under Article 226 of the Constitution of India seeking:

in WP 3076 of 2019: to issue a Writ of Certiorari Calling for the records pertaining to private Compliant preferred by the 3rd respondent in C.C.No.129 of 2018 on the file of the Judicial Magistrate No.II, Ariyalur, quash the same.

in WP 3084 of 2019: to issue a Writ of Certiorari Calling for the records pertaining to the Government Order vide Tamil Nadu Government Gazette, Extraordinary No.184 (No.1418/2013/S8/FSSA) dated 23.05.2018, quash the same.]

The Writ Petitions, in which challenge is to the order of the Commissioner of Food Safety imposing a ban and sale of Gutka, Pan Masala, flavoured or scented food products or chewable food products by whatever name called containing Tobacco and/or Nicotine as ingredients invoking the power under Section 30 (2) (a) of The Food Safety and Standards Act, 2006, the Criminal Prosecution in CC No.129 of 2018 under Section 59(i), 58 and 63 of the said Act launched for violation of the ban have been tagged along with the Writ Appeal which challenges the judgment of the Writ Court made in WP No.21 of 2017 striking down the notices issued by the Authorised Officer under the Food Safety and Standards Act, seeking to prosecute the respondent in the Writ Appeal for sale of Tobacco products.

2. The respondent in the Writ Appeal challenged the notices issued by the Authorised Officer under the Food Safety and Standards Act, 2006 seeking to prosecute it for violation of the ban imposed by the Commissioner for Food Safety by making available Tobacco products in the market. The Writ Court following the earlier pronouncements of this Court in Criminal OP (MD) No.5505 of 2015 and the judgment of the Hon’ble Supreme Court in Godawat Pan Masala Products I.P. Ltd & Another v. Union of India & Others, reported in 2004 (7) SCC 68, concluded that the respondent cannot be prosecuted since Tobacco is covered 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). The State is on Appeal against the judgment of the Writ Court.

3. The Writ Petition No.3084 of 2019 has been filed by a Tobacco manufacturer challenging the notification issued by the Commissioner of Food Safety dated 23.05.2018 banning Manufacture, Storage, Transport, Distribution or sale of chewable food products, Gutka, Pan Masala, containing Tobacco and/or Nicotine as “ingredients” in the State of Tamil Nadu for a period of one year from 23.05.2018 invoking the power vested in him under Clause (a) of Sub Section 2 of Section 30 of the Food Safety and Standards Act, 2006 (hereinafter referred to as the FSS Act). The Writ Petition No.3076 of 2019 has also been filed by the petitioner in WP No.3084 of 2019 challenging the criminal proceedings initiated against it under Sections 59(i), 58 and 63 of the Food Safety and Standards Act, for the sale of banned Tobacco products.

4. The case of the petitioner in the Writ Petitions is broadly one of competence on the part of the Commissioner of Food Safety to ban sale of Tobacco products within the State of Tamil Nadu. The contentions of the petitioner can be broadly classified into four aspects:

4.1. The first aspect based on the declaration of expediency made under Entry 52 of List I of Schedule VII of the Constitution of India and the enactment of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA);

4.2. The second aspect is the issue of repugnancy between the provisions of COTPA and FSS Act. This would also take in the theories of occupied field and express and implied repeal;

4.3. The third aspect is,