Delhi High Court Sets Aside Ban On Gutka Sale

The Delhi High Court has quashed the notifications of the Food Safety Commissioner prohibiting the manufacture, storage, and sale of gutka, pan masala, tobacco, and similar products in the national capital in the interest of public health, saying they were issued in a mechanical manner and the authorities exceeded the powers vested in them.

The notifications were issued from time to time from 2015 to 2021.

The high court said it was conscious of the harmful effects and various diseases caused by the use of tobacco, both smokeless and smoking and that smoking is injurious to public health and added that it "accordingly condemns and discourages the use of any form of tobacco".

But, the question of law cannot be decided merely based on public consciousness and sentiments and have to be decided on a fair interpretation of the law, it said.

"In addition to the ill-effects of smokeless tobacco pointed out by the respondents, this court is of the view that tobacco, in any form, not only smokeless but also smoking, is injurious to public health and this court accordingly condemns and discourages the use of any form of tobacco. Public health is one of the most important parts of society and country and therefore, it is necessary to take all steps to preserve the same in all possible manners.

"Undisputedly, this court agrees that tobacco and nicotine are injurious to health, however, the present case involves certain questions of law which cannot be decided merely on the basis of public conscious and sentiments but have to be decided and settled based on the fair interpretation of the law in the light of the judicial precedents," Justice Gaurang Kanth said in a 162-page judgement passed on Tuesday.

The judgement came on a batch of petitions filed by those engaged in the business of lawful manufacture, trade, distribution, and sale of scheduled tobacco products, more particularly chewing tobacco, both flavoured and scented for several decades.

The petitioners have challenged various notifications issued by the Delhi government's Commissioner of Food Safety which prohibited the manufacture, storage, distribution, or sale of gutka, pan masala, flavoured/scented tobacco, Kharra, and similar products in the interest of the public health for a period of one year throughout the NCT of Delhi.

The petitioners contended that the notifications were arbitrary and ultra vires the Food Safety and Standard Act (FSSA) and are violative of their fundamental rights.

The high court said the power under Section 30(2)(a) is transitory in nature and the Commissioner of Food Safety can issue prohibition orders only in emergent circumstances after giving an opportunity of being heard to the concerned food operator.

"The impugned Notifications, however, have been issued by respondent no.1 (commissioner of food safety) year after year in a mechanical manner without following the general principles laid down under Section 18 and 30(2)(a) of the FSSA, which is a clear abuse of the powers conferred upon him under the FSSA," it said.

The petitioners argued that the authorities are purporting to ban an artificially created sub-category of tobacco, namely 'smokeless tobacco' which includes chewing tobacco, pan masala, gutka, etc., and other scheduled tobacco products listed under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 (COTPA).

The high court said the classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the notifications is clearly violative of Article 14 of the Constitution.

"This court is of the considered view that while issuing the notifications, the Commissioner of Food Safety exceeded its power and authority in contravention of the powers vested in him under the FSSA and therefore, the said impugned notifications are hereby quashed and set aside. The present writ petitions are allowed," Justice Kanth said.

The petitioners said the commissioner was not empowered under the FSSA to impose such a prohibition since the same is a scheduled product under the COTPA and cannot in any manner be construed as "food" within the ambit of the FSSA.

The authorities, however, argued that the commissioner was well within his rights to issue the notifications under the regulation and he has been mandated with power under Section 30(2)(a) of the FSSA to impose such a prohibition in the interest of public health and welfare.

The high court said section 30(2)(a) clearly stipulates that the maximum period for which such prohibitory order may be passed is not more than one year.

However, it has been noted that the notifications under challenge in the present case have been issued year after year in a mechanical manner without following the general principles laid down under the Act which is a "clear abuse of the powers" conferred upon the Commissioner of Food Safety under the FSSA, it said.

"This clearly amounts to be an act which only the Legislature is entitled to exercise and no such power has been vested in the Commissioner of Food Safety in terms of the provisions of the FSSA," it said, adding that tobacco cannot be construed as "food" within the meaning of the provisions of FSSA.

The high court said it has never been the intention of Parliament to impose an absolute ban on the manufacture, sale, distribution, and storage of tobacco or tobacco products. However, the intention of the Parliament is to regulate the trade and commerce of tobacco and tobacco products in accordance with the COTPA, a Central Act that deals with the tobacco industry.

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