THE HONOURABLE SRI JUSTICE N.TUKARAMJI WRIT PETITION No.15867 OF 2017

ORDER:

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

“….to issue a writ or order more particularly in the nature of Writ of Mandamus declaring the illegal action of the Respondents herein in interfering with the business and banning the sale of hookah pots as well as flavored tobacco as illegal arbitrary unconstitutional and contrary to the provisions of the COTP Act 2003 and consequently direct the Respondents to permit the Petitioners to continue their business of selling hookah pots as well as flavored tobacco without any hindrance or restrictions except under law and pass such other order….”

2. None appeared for the Petitioners.

3. Heard Mr. R. Laxmikanth Reddy, 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 are running sole proprietorships or partnerships and either sell or supply hookahs and hookah flavoured (Tobacco) to people and businesses/coffee shops and they do this small business directly from their houses and contends that the respondent police authorities, without any legal prescription, are interfering with their business of serving flavoured Hookah and threatening them, closing and locking their shops and keeping them in lockups illegally without raising any FIRs.

7. In this context, it is pertinent to note that a Coordinate Bench of this Court, in W.P. No. 15944 of 2012 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