2023 Supreme(AP) 594

ANDHRA PRADESH HIGH COURT AT AMARAVATI
Prashant Kumar Mishra, D.V.S.S. Somayajulu, JJ.
Dwarapudi Sivarama Reddy – Appellant
Versus
Union of India – Respondent
W.P. Nos. 30185, 7336, 8635, 8638, 8717, 10161, 10320, 10500, 11405, 11440, 11480, 11502, 11531, 11543, 11834, 11903, 12059, 12061, 12062, 12087, 12094, 12179, 12277, 12291, 12344, 12793, 12915, 12949, 14416, 14445, 19010 and 21080 of 2021; W.P. Nos. 11854, 16172, 16187, 16257, 16699, 16713, 16843, 16935, 17295, 19761, 19765, 19983, 20035, 20108, 20110, 20118, 20534, 20680, 22119, 22120, 22121, 22132, 22139, 23804, 30417, 30449, 30505 and 33532 of 2022
Decided On : 24-03-2023

The Commissioner of Food Safety, Andhra Pradesh, has no authority or jurisdiction to issue notifications prohibiting the sale of Tobacco products within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, under the powers conferred by Section 30(2)(a) of the FSSA, 2006, as Tobacco and Tobacco products are not “food” within the meaning of Section 3(j) of the FSSA, 2006, and the COTPA, 2003 prevails over the FSSA, 2006 in relation to Tobacco and Tobacco products.

Headnote:

FOOD SAFETY AND STANDARDS ACT, 2006 - [FSSA, 2006] - SECTION 3(J), 26(1), 26(2), 30(2)(A), 92 - CIGARETTES AND OTHER TOBACCO PRODUCTS (PROHIBITION OF ADVERTISEMENT AND REGULATION OF TRADE AND COMMERCE, PRODUCTION, SUPPLY AND DISTRIBUTION) ACT, 2003 - [COTPA, 2003] - SECTION 3(M), 3(P) - TOBACCO PRODUCTS - BAN ON MANUFACTURE, STORAGE, DISTRIBUTION, TRANSPORTATION AND SALE - JURISDICTION OF COMMISSIONER OF FOOD SAFETY - VALIDITY OF NOTIFICATION ISSUED UNDER SECTION 30(2)(A) OF FSSA, 2006 - SCOPE OF DEFINITION OF “FOOD” UNDER SECTION 3(J) OF FSSA, 2006 - OVERRIDING EFFECT OF COTPA, 2003 - INTERPRETATION AND APPLICATION.

Fact of the Case:

The petitioners, manufacturers and sellers of Gutka and Pan Masala containing Tobacco, challenged the constitutional validity of notifications issued by the Commissioner of Food Safety, Andhra Pradesh, under Section 30(2)(a) of the Food Safety and Standards Act, 2006 (FSSA, 2006), prohibiting the manufacture, storage, distribution, transportation, and sale of Gutka/Pan Masala containing Tobacco and Nicotine as ingredients and Chewing Tobacco products, 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 (COTPA, 2003). The petitioners contended that Tobacco is not a food product covered under the FSSA, 2006, but an item covered under the COTPA, 2003, which takes precedence over the FSSA, 2006, as it is a special Act, whereas the FSSA, 2006 is a general Act. The respondents, on the other hand, argued that the FSSA, 2006 prevails over the COTPA, 2003, as it is a latter Act and has an overriding provision under Section 89. They contended that Pan Masala is a food product and should not contain Tobacco and Nicotine, as per the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011 (FPSFA Regulations, 2011).

Finding of the Court:

The Court held that the Commissioner of Food Safety, Andhra Pradesh, had no authority or jurisdiction to issue the impugned notification prohibiting the sale of Tobacco products within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, under the powers conferred by Section 30(2)(a) of the FSSA, 2006. The Court found that Tobacco and Tobacco products are not “food” within the meaning of Section 3(j) of the FSSA, 2006, and that the FSSA, 2006 does not authorize the authorities to prohibit the manufacture, storage, distribution, sale, and import of Tobacco or Tobacco products. The Court further held that the COTPA, 2003 is a special Act dealing specifically with Tobacco and Tobacco products, while the FSSA, 2006 is a general Act dealing with food as defined under Section 3(j) of the Act. Therefore, the COTPA, 2003 prevails over the FSSA, 2006 in relation to Tobacco and Tobacco products, and the Commissioner of Food Safety, Andhra Pradesh, could not exercise powers under the FSSA, 2006 to prohibit the sale of Tobacco products.

Issues: 1. Whether the Commissioner of Food Safety, Andhra Pradesh, has the authority and jurisdiction to issue the impugned notification prohibiting the sale of Tobacco products within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, under the powers conferred by Section 30(2)(a) of the FSSA, 2006? 2. Whether Tobacco and Tobacco products are “food” within the meaning of Section 3(j) of the FSSA, 2006? 3. Whether the FSSA, 2006 authorizes the authorities to prohibit the manufacture, storage, distribution, sale, and import of Tobacco or Tobacco products? 4. Whether the COTPA, 2003 prevails over the FSSA, 2006 in relation to Tobacco and Tobacco products?

Ratio Decidendi: 1. The power to prohibit the manufacture, storage, distribution, sale, and import of Tobacco or Tobacco products does not fall within the scope of the FSSA, 2006, as Tobacco and Tobacco products are not “food” within the meaning of Section 3(j) of the Act. 2. The COTPA, 2003 is a special Act dealing specifically with Tobacco and Tobacco products, while the FSSA, 2006 is a general Act dealing with food. Therefore, the COTPA, 2003 prevails over the FSSA, 2006 in relation to Tobacco and Tobacco products. 3. The Commissioner of Food Safety, Andhra Pradesh, could not exercise powers under the FSSA, 2006 to prohibit the sale of Tobacco products, as such powers are not conferred by the Act and are in conflict with the COTPA, 2003.

Final Decision: The Court allowed the writ petitions and declared that the Commissioner of Food Safety, Andhra Pradesh, had no authority or jurisdiction to issue the impugned notification prohibiting the manufacture, storage, distribution, transportation, and sale of Gutka/Pan Masala containing Tobacco and Nicotine as ingredients and Chewing Tobacco products, within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, under the powers conferred by Section 30(2)(a) of the FSSA, 2006. The Court also directed the respondents not to interfere with the lawful day-to-day business activities of the writ petitioners with regard to Tobacco products and ordered the release of all seized Tobacco products.