Chewable tobacco is classified as a food product under the Food Safety Act, and manufacturers can be prosecuted for sales in states where such products are prohibited, regardless of the absence of a direct nexus with stockists.

ORDER :

The complaint by the Food Safety Officer, Coimbatore, against one Raj Purohith Dinesh, the whole seller/stockiest of tobacco product along with the manufacturing company and its Directors, was taken cognizance by the Judicial Magistrate No.V, Coimbatore for the offences under Sections 58 and 59(1) of the Food Safety and Standards Act 2006.

2. The petitioners herein are the manufacturing company and its Directors. According to the petitioners, the tobacco products, which alleged to have been seized from the premises of the first accused, Raj Purohith Dinesh, on 13.11.2019, is not a food product to fall under the purview of Food Safety Act. Cool Lip Filter Tabbaq (pre-packed condition) is a tobacco produced covered under The Cigarettes and Other Tobacco Products Act, 2003 (in short "COTPA Act 2003"). The first petitioner company, which is duly registered under the Companies Act holds valid license for manufacturing tobacco product under the name and style of M/s Tej Ram Dharam Paul Pvt. Ltd. It has obtained certificate from Central Board of Excise and Customs. The product was not sold by the petitioners herein, but it was stocked and sold by the first accused, by name Raj Purohith Dinesh, who alleged to have been sold the product in his rented premises at 212, HRK Line, R.G.Street, Coimbatore. Ban on the manufacture, storage, distribution or sale of gutkha, pan masala, flavoured tobacco and other such product, in the National capital has been quashed by the Delhi High Court in a batch of writ petitions. The manufacturing of tobacco products in Delhi is not prohibited. The first accused had procured the tobacco product, which are manufactured at Delhi and brought it to Tamil Nadu. Without establishing nexus between the manufacturer and the stockist, the complainant cannot prosecute the petitioners, who are the manufacturer and directors of the company. The complaint does not reveal that the petitioners supplied the seized product to the first accused. Without producing any material with regard to the alleged sale and supply of materials by A2, A3 and A4 to A1, the complaint cannot be sustained and it amounts to abuse of process of law.

3. The learned Government Advocate (Crl.Side) appearing for the respondent submitted that on 13.11.2019, on a specific information, a team of officers of Food Safety Department conducted a search of the premises rented out to Raj Purohith Dinesh. 54 Kg of Cool Lip Filter Tabbaq was recovered from the said premises. The first accused Raj Purohith Dinesh confessed that he purchased the prohibited tobacco product through middle man and stored it to sell in retail. He did not possess any receipt. The sample drawn from the seized tobacco product was sent to the State Laboratory. On 04.01.2020 the opinion of the expert received, which opined as follows:-

Opinion

I am of the opinion that the said sample is unsafe under Section 3(1)(zz) of Food Safety and Standards At 2006 and also the sale is prohibited under Section 26(2) (iv) of Food Safety and Standards Act, 2006 and Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on sale) Regulation 2011 and vide notification No.1418/ 2013/S8/FSSA, dated 23rd May 2019 of Commissioner of Food Safety and Drug Aministration, Chennai, Tamil Nadu State, since the said sample contains Nicotine.

4. The show cause notice issued to the petitioners were received by them and in their reply, they have stated that they have not sold any prohibited tobacco product in Tamil Nadu.

5. Chewable tobacco product is declared as food substance, as per the judgment of this Court in W.P.(MD)No.778 of 2019. Therefore, the manufacturer and its two Directors were prosecuted along with his stockiest for the offence under Sections 58 and 59(i) of the Food Safety and Standards Act, 2006. The orders passed by the Delhi High Court permitting the petitioners to manufacture the tobacco product in Delhi will not give any coverage for them to sell their product in Tamil N