THE HONOURABLE SRI JUSTICE N.V.SHRAVAN KUMAR WRIT PETITION No.33366 of 2024

ORDER

Heard learned counsel for the petitioner and learned Assistant Government Pleader for Home appearing for respondent Nos.1 to 5. With their consent this writ petition is taken up for disposal at the admission stage itself.

2. This writ petition is filed seeking following prayer:-

“to issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents more particularly the respondent Nos.3 and 4 herein banning and interfering with the said business of the petitioner running under the name and style as “CAFÉ SUNDOWNER” situated at plot No.28, F.C.I., Employees Co-operative Housing Society, Indir Nagar, Gachibowli, Telangana (hereinafter referred as ‘coffee shop’) represented by its owner Mr. Jammula Sriharsha, S/o Jammula Bapineedu in serving of flavoured Hookahs without reference to rule, law or regulations as illegal, arbitrary, unconstitutional and contrary to the provisions of COTP Act and consequently, direct the respondents to permit the petitioner to continue his business of serving flavored Hookahs in his coffee shop without any hindrance or restrictions.”

3. The facts of the case in brief as stated are that petitioner along claims to be Proprietor of the coffee shop. It is submitted that the petitioner has obtained all necessary permissions from various authorities to run its business. The petitioner has applied for provisional trade license from GHMC. The respondent authorities are restricting the petitioner from serving flavoured hookahs in the said Coffee Shop. Questioning the same, the present writ petition is filed.

4. On a perusal of the COTP Act, 2003, Sub-clauses (b), (k)

and (n) of Section 3: Definitions, reads as under:

“(b) cigarette includes,--

(i) any roll of tobacco wrapped in paper or in any other substance not containing tobacco, (ii) any roll of tobacco wrapped in any substance containing tobacco, which, by reason of its appearance, the type of tobacco used in the filter, or its packaging and labelling is likely to be offered to, or purchased by, consumers as cigarette, but does not include beedi, cheroot and cigar;

(k) production, with its grammatical variations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall include--

(i) packing, labelling or re-labelling, of containers;

(ii) re-packing from bulk packages to retail packages; and (iii) the adoption of any other method to render the tobacco product marketable;

(n) smoking, means smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments;”

5. Section 4 of the Act stipulates prohibition of smoking in a public place. As per the State Amendment of Gujarat, Section 4A has been inserted which is extracted hereunder for reference:

“Prohibition of hookah bar.--4A.Notwithstanding anything contained in this Act, no person shall, either on his own or on behalf of any other person, open or run any hookah bar in any place including the eating house.

Explanation.-- The term eating house shall have the same meaning as assigned to it by clause (5A) of section 2 of the Gujarat Police Act, 1951 (Bom. XXII of

1951).”

6. Similarly the State of Maharashtra also inserted Section 4A as was inserted by State of Gujarat.

7. This Court has taken note of the above amendments carried out by other States in their respective statutes on the subject which may serve as useful guide.

8. Section 6 of the Act refers to prohibition on sale of cigarette or other tobacco products to persons below the age of 18 years and in particular area.

9. Section 7 of the Act stipulates Restrictions on trade and commerce in, and production, supply and distribution of ciga