COMMON ORDER

Dt.24.03.2023 (Prashant Kumar Mishra, CJ)

In this batch of writ petitions, petitioners challenge the constitutional validity of the impugned notifications, i.e. notification No.318/FSSAMP/2014-20, dated 08.01.2020, published on 10.01.2020, and notification No.318/FSSA/AP/2014-21 dated 06.12.2021, issued by the Commissioner of Food Safety, by invoking Section 30(2)(a) of the Food Safety and Standard Act, 2006 (for short, “the FSSA, 2006”) thereby prohibiting the manufacture, storage, distribution, transportation and sale of Gutka/Pan Masala which contains Tobacco and Nicotine as ingredients and chewing tobacco products etc., within the meaning of Sections 3(m) and 3(p) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, “the COTPA, 2003”); as such, the writ petitions are heard together and disposed of by this common order.

2. Challenge to the notification is mainly on the ground that the Central Government is levying and collecting excise duty on the production of Tobacco products under the Central Excise Act, 1944 and that Tobacco and Tobacco related products are regulated under the COTPA, 2003 in respect of prohibition of advertisement, prohibition on sale on minors, prohibition on consumption in public places by making provisions for packing and labelling, as also statutory warning; therefore, Tobacco is not a food product so as to empower the State Government to issue the impugned notification.

3. It is stated that Government of India by its office memorandum dated 13.02.2012 has clarified that anything containing Tobacco is covered under the COTPA, 2003 and a clarification to this effect has been issued on 22.02.2012 by the Ministry of Finance, Government of India. The FSSA, 2006 has also clarified that Zarda, Khaini etc., are pure Tobacco products and are not covered under the FSSA, 2006.

4. Referring to the schedule of the COTPA, 2003, it is stated that Cigarettes, Cigars, Cheroots, Beedis, Tobacco, Pipe Tobacco, Chewing Tobacco, Snuff, Pan Masala, Gutka etc, are all coming within the meaning of Tobacco as per the COTPA, 2003.

5. The judgment in Godawat Pan Masala Products I.P. LTD. v. Union of India and others – (2004) 7 SCC 68, has been referred, wherein the Hon’ble Supreme Court has held that the power of banning an article of food or an article used as ingredient of food on the ground that it is injurious to health, belongs appropriately to the Central Government and the State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article whether used as an article or adjunct thereto or not used as food and such power can only arise as a result of wider policy decision and emanates from Parliamentary Legislation by exercise of powers by the Central Government by framing rules under Section 23 of the COTPA, 2003. The Supreme Court eventually declared the notification issued under the provisions of the Prevention of Food Adulteration Act, 1954 as ultra vires the Act. Similarly, when criminal cases were registered under various provisions of Indian Penal Code and FSSA, 2006 in view of ban on Tobacco products through a notification in the year 2018, Criminal Petition No.3731 of 2018 and batch came to be filed and vide order dated 27.08.2018, the FIRs., and charge-sheets were quashed on the reason that Police has no power to register cases and the said order was not appealed against and has, thus, attained finality. Similar quash petitions were also allowed vide Criminal Petition No.5421 of 2019 and batch by order dated 18.12.2019, holding that offences under the COTPA, 2003 can only be launched if the Police find that Sections 5, 6, 7 and 10 are not complied with and against this judgment also, State has not carried the matter to Supreme Court. Similar is the case with Criminal Petition No.5103 of 2020 and batch decided on 05.03.2020. Ref