Delhi High Court Law Insider

Sakina Tashrifwala

Published on: September 29, 2022 at 20:43 IST

Several notices forbidding the manufacturing, storage, distribution, or sale of Gutka, Pan Masala, flavoured tobacco, and related goods in the national capital have been overturned by the Delhi High Court.

The Commissioner of Food Safety has issued seven alerts since 2015.

Justice Gaurang Kanth stated that the notices were given “mechanically” year after year without adhering to the broad principles outlined in the Food Safety and Standards Act of 2006.

“The classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the impugned Notifications is clearly violative of Article 14 of the Constitution,” the Court stated.

The Court granted a slew of petitions submitted by numerous organisations engaged in the manufacturing and sale of flavoured and perfumed scheduled chewing tobacco products.

The entities claimed to have gotten the necessary licences and authorization under the law.

One of the primary reasons for challenging the impugned notifications was that they were in violation of the Food Safety and Standards Act, since the Delhi Government’s Commissioner of Food Safety was not authorised under the Act to impose such a ban on the manufacturing or sale of chewing tobacco.

The petitioners claimed that tobacco products were a scheduled product under the Cigarettes and Other Tobacco Products Act (COTPA) and could not be considered “food” under the FSSA.

The Commissioner of Food Safety, on the other hand, contended that, under Section 30(2)(a) of the FSSA, he was well within his powers to issue the contested notifications in the interest of public health and welfare.

The Court remarked that the aim of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011, was not to ban but to restrict the use of tobacco or nicotine as components in any food product.

“In view of the aforementioned, the impugned Notifications passed by the Commissioner of Food Safety in view of Regulation 2.3.4 in exercise of powers under Section 30(2)(a), in so far as they prohibit the use of tobacco and nicotine with respect to scheduled tobacco products covered under the COTPA, are beyond the scope of powers conferred by the FSSA,”  the Court said.

The Court further noted that the COTPA, although imposing certain restrictions and different checks and balances to oversee their marketing and sale, does not prohibit the sale and distribution of tobacco and tobacco products.

Furthermore, it said that whether an article is to be forbidden as res extra commercium (a thing beyond trade) is a question of legislative policy and must result from a statute rather than just a notification made by an executive body.

“Thus, tobacco trade, sale, and distribution are legal subject to specific limits established under the COTPA, and the same has merely been controlled and not forbidden,” the Court stated.

As a result, it was determined that the COTPA, as a special legislation, would predominate over the FSSA, which is a general law, in the sphere of tobacco and tobacco products.

The Court further stated that tobacco cannot be classified as “food” under the FSSA since no science-based criteria can be established to govern its sale, distribution, and storage in order to assure safe and wholesome tobacco for human consumption.

While recognising that the goal of providing the warnings was to promote public health, the Court stated that there was no reason for distinguishing between smokeless tobacco and smoking tobacco, “which may differ in their forms but are no different in terms of their influence on public health.”

“It is worth noting that the COTPA, which is the Central Act overseeing the tobacco business,” the Court noted, “does not draw any such distinction between smokeless and smoking tobacco under its Schedule.”

It was stated, “Given the foregoing considerations, it is clear that the aforementioned classification/distinction between smokeless and smoking tobacco has no bearing on the goal intended by the contested Notifications.”

“Indeed, the prejudice encouraged by the contested Notifications favours smoking tobacco over smokeless tobacco, which is not only blatantly discriminatory but also violates Article 14 of the Constitution.”

The Court further stated that the prohibition imposed by the contested notifications by distinguishing between smokeless tobacco and smoking tobacco did not fall within the scope of justifiable limits on basic rights under Article 19(6) of the Constitution.

The Court also underscored the dangers of tobacco use, both smokeless and smoking.

It opposed and discouraged the use of tobacco in any form and stated that public health is one of the most essential aspects of society and the country. It added –

“Undisputedly, this Court agrees that tobacco and nicotine are harmful to health,”

“However, the present case involves certain legal questions that cannot be decided solely on the basis of public conscience and sentiments, but must be decided and settled based on the fair interpretation of law in light of judicial precedents.”

As a result, the Court granted the pleas while dismissing the contested notices.

Related Post