THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.11793 OF 2018

ORDER:

This Writ Petition is filed under Article 226 of Constitution of India seeking the following relief:

“….to issue a writ, order or direction and more particularly one in the nature of writ of mandamus declaring the action of the Respondents herein banning and interfering with the business of the Petitioner under the name and style of K. PRESTIGIOUS LOUNGE AND COFEE SHOP in serving of flavored Hookahs without reference to rule, law or regulations as illegal, arbitrary, unconstitutional and contrary to the provisions of Cigarettes and other Tobacco products COTP Act and consequently direct the Respondents to permit the Petitioner to continue their business of serving flavored Hookahs in their coffee shop without any hindrance or restrictions except under law and pass….”

2. None appeared for the Petitioner.

3. Heard Mr.D.Pradeep, learned Assistant Government Pleader appearing on behalf of respondents.

4. Learned Assistant Government Pleader for the respondents submits that the act of serving Hookah necessarily involves the use and supply of tobacco products. He contends that the petitioner has not clearly specified the exact substances used in the preparation of the flavoured Hookah. Except for certain vague assertions, no specific particulars have been furnished regarding the alleged interference by the respondent authorities. However, he fairly submits that in similar matters, this Court has directed petitioners or business establishments to comply with certain conditions, and upon such compliance, the respondent police authorities were instructed not to interfere with their business activities. In view of the above, he prays that appropriate orders be passed in the present case.

5. I have perused the material placed on record.

6. The petitioner, who is operating a Coffee Shop and Food Court under the name and style of “K. PRESTIGIOUS LOUNGE AND COFFEE SHOP,” alleges that the respondent police authorities, without any legal authority, are interfering with his business of serving flavoured Hookah.

7. In this context, it is pertinent to note that a Coordinate Bench of this Court, in W.P. No. 15944 of 2022 decided on 08.12.2022, examined the question as to whether a licence is required for running a Hookah center under the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (‘COTP Act’) and upon due consideration, recorded its conclusion in the following terms:

“Though the Act does not contemplate any licence to be taken, in the larger interest of the youngsters, who are visiting the hookah centres, the restaurant owners shall have a definite place for hookah / smoking. The restaurant owners, who are having a separate place for smoking and for hookah consumption, shall inform the same to the Station House Officer, so that they can have surveillance on the activities that are taking place in the said place and whether the business is carried out as per the norms and the procedure laid down under the Act. Police under the guise of this, shall not harass the persons running these centres without following the procedure. The officers, who are competent alone can enter the premises. If there is any high-handed action on the part of the police, the same shall be brought to the notice of the higher authorities and they shall cause enquiry into the same and take appropriate action.”

8. Furthermore, in an analogues matter, this Court issued certain directions and, upon compliance by the petitioner, restrained the respondent police from interfering with the petitioner’s business. For ready reference, the relevant directions are reproduced hereunder:

“In the light of the interim order granted by this Court in identical matters, there shall be an order alike in this matter also in the following terms:

If the petitioner installs video cameras, either open or conc