Point of law: Section 89 of the FSSA, gives the provisions of the FSSA, an overriding effect on all other food related laws. Once it is held that tobacco and other products, fall within the definition of food as enumerated in Section 3 (j) of the FSSA, the overriding effect of Section 89 of the FSSA, would make the FSSA hold the field instead of COPTA

ORDER:

Satish Chandra Sharma, J.

1. Regard being had to the similitude in the controversy involved in the present cases, the writ petitions were analogously heard and by a common order, they are being disposed of by this Court.

2. Facts of the Writ Petition No.19928 of 2021 are narrated hereunder.

The petitioner before this Court, which is a proprietorship firm engaged in the business of wholesale distribution and retailing of chewing/chewable tobacco products and cigarettes, has filed this present writ petition being aggrieved by the Notification No.505/FSS-1/2021, dated 06.01.2021 issued by the respondent No.3/Commissioner of Food Safety, Telangana in exercise of powers conferred under Section 30 of the Food Safety and Standards Act, 2006 (hereinafter called ‘FSS Act 2006’). The petitioner has challenged the impugned Notification on the ground that it is illegal, arbitrary, unconstitutional, ultra vires the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter called, ‘COTPA 2003’) and is in violation of principles of natural justice and is also in violation of Articles 14 and 19(1)(g) of the Constitution of India.

3. The learned counsel for the petitioner stated before this Court that the petitioner’s business is broadly concerned with pure tobacco and scented tobacco, which are marketed under the brand names Phoolchap (pure tobacco) and VI Tobacco (scented tobacco).

4. In the other connected matters, the petitioners are carrying on the business either of wholesale distribution or sale of pan masala mixed with tobacco and other allied products. The petitioners’ contention is that the COTPA 2003 is a central legislation dealing exclusively with tobacco industry, traceable to Entry 52, List I of the Seventh Schedule of the Constitution of India and it provides a comprehensive legislation which governs the law on tobacco products and is occupying the field. It has been stated that the COTPA 2003 deals with tobacco products and therefore, the products mentioned in the impugned Notification issued under FSS Act 2006 are covered in the list of products specified in the Schedule of COTPA 2003.

5. The petitioners further contended that the legislative policy in respect of tobacco products as evident from the provisions of COTPA 2003 is not to impose a complete ban on tobacco products and it certainly regulates and imposes restrictions on the trade and business with respect to advertising the products, smoking in public places and pictorial warnings on the ill-effects of consuming tobacco on packaging material of those products etc. It has been further contended that the legislative policy is to permit trade and business in tobacco products subject to reasonable restrictions. It has been further contended that the country’s taxing statutes also permit trade and business in tobacco products and tax is levied under the Central Goods and Services Tax Act, 2017. Meaning thereby, the statute does not prohibit trade and business in tobacco products at all.

6. The petitioners further contended that the FSS Act 2006 is an Act that regulates food standards and the production, distribution and consumption of food. It is a general law that covers all aspects pertaining to food safety, traceable to Entry 18 of List III of the Seventh Schedule of the Constitution of India and the FSS Act 2006 does not define ‘tobacco products’ nor it provides any power for prohibition in the trade and business of such products. It has been further contended that COTPA 2003 being a special law pertaining to subject matter of ‘tobacco products’ and ‘tobacco industry’ that overrides the FSS Act 2006 which is a general law pertaining to ‘food products and food safety’ and therefore, the provisions of the FSS Act 2006 cannot impinge or encroach upon any subject matter, that is exclusively governed by the COTPA 2003.

7. The petitioners further contended that the Regu