THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.40535 OF 2017

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 in not disposing of the representation dated 16.11.2017 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 open their business of serving flavored hookahs in their coffee shop without any hindrance or restrictions except under law….”

2. None appeared for the Petitioner.

3. Heard Mr. M.Srinivas, 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 implies the supply of tobacco products. However, the nature of the substances being used in the preparation of flavoured Hookah has not been clearly specified by the petitioner. Apart from certain vague assertions, no specific particulars have been furnished as to the alleged manner of interference by the respondent authorities. However, fairly concedes that in similar matters this Court has directed petitioners/business establishments to comply with certain conditions, and upon such compliance, the respondent police authorities were directed not to interfere with their business activities. In view of the above, he prays that appropriate orders be passed in the instant matter.

5. I have perused the material on record.

6. The petitioner is running a restaurant and a coffee shop under the name and style of “Red Brick Cafe” and contends that the respondent police authorities, without any legal prescription, 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 concealed, records its operations and also undertakes to preserve the recordings for a minimum of fifteen days period, so that the police, in case of suspicion or necessity, can replay t