Bombay High Court Judgement on Gutkha & Pan Masala Ban

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IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.1631 OF 2012

M/s. Dhariwal Industries Limited and another. ... PetitionersVersus

The State of Maharashtra and others. ... Respondents

ALONGWITHWRIT PETITION NO.1632 OF 2012

Ghodawat Pan Masala Products (I) Pvt.Ltd. ... PetitionerVersus



Rajnandini Foods Pvt.Ltd. ... PetitionerVersus



SDD Agencies Pvt.Ltd. ... PetitionerVersus

State of Maharashtra and others. ... Respondents


M/s. Hira Enterprises ... PetitionerVersus


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(APPELLATE SIDE)

Rajat Industries Private Limited ... PetitionerVersus



(APPELLATE SIDE)

M/s. MSS Food Processors … PetitionerVersus

The State of Maharashtra and others. … Respondents

Mr.Milind Sathe, Senior Advocate i/by M/s. ALMT for the petitioners in WP No.1631 of 2012.

Mr.N.H. Seervai, Senior Advocate with Ms.H. Jain, Mr.Subhash Jadhav, Mr.Amana Usman, Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No.1632 of 2012.

Mr.Janak Dwarkadas, Senior Advocate with Mr.V.P.Sawant, Mr.Hitesh Jain, Mr.Subhash Jadhav, Mr.Amana Usman and Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No. 1633 of 2012.

Mr.Ravi Kadam, Senior Advocate with Mr.Hitesh Jain, Mr.Subhash Jadhav, Mr.Amana Usman and Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No. 1634 of 2012.

Mr.Aspi Chinoy, Senior Advocate with Mr.Birendra Saraf, Mr.Hitesh Jain, Mr.Subhash Jadhav for the petitioners in WP No.1635 of 2012.

Mr.Chirag Balsara i/by M/s. Kartikeya & Associates for the petitioners in WP Nos.7592 of 2012.

Mr.Prakash Shah with Mr.Jay Sanghavi i/by M/s. Prompt Legal for the petitioners in WP No.8800 of 2012.

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Mr.D.J. Khambata, Advocate General with Mr.Aditya Mehta, Mr.D.A.Nalawade, Government Pleader, Ms.Nina Nariman, Ms.Geeta Shastri, Assistant Government Pleader for respondent-State in Original Side matters.

Mr.D.J. Khambata, Advocate General with Mr.S.K.Shinde, Government Pleader, Mr.A.B. Vyagyani, Assistant Government Pleader and Mr.Prashant Darandale, Assistant Government Pleader for respondent-State in Appellate Side matters.

Mr. Kevic Setalvad, Additional Solicitor General for Union of India.

CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR, J.

Saturday, September 15, 2012

ORAL ORDER: (PER CHIEF JUSTICE)

Rule, returnable in the first week of July 2013.

Heard the learned counsel on the question of interim relief.

The writ petitioners are companies engaged in the business of

manufacture, supply and distribution of pan masala containing tobacco (known

as gutka) and pan masala not containing tobacco. The petitioners claim to have

licences and permissions under the Prevention of Food Adulteration Act, 1954

which is now replaced by the Food Safety and Standards Act, 2006 and the

other legislations. According to the learned counsel for the petitioners in five

petitions, the petitioners' factories are situate outside the State of Maharashtra.

Statutory Regulations and Standing Order under challenge :

2. The petitioners have challenged the validity of the following

provisions of two different Regulations under the Food Safety and Standards

Act, 2006 (“the Food Safety Act “or FSS Act or Act of 2006”) as well as the

statutory order dated 19 July 2012 of the Commissioner of Food Safety, State

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of Maharashtra under Section 30(2)(a) of the Food Safety Act. The regulations

impugned in these petitions are -

(i) Regulation 2.3.4 of the Food Safety and Standards

(Prohibition & Restrictions on Sales) Regulations, 2011 (“The

Prohibition and Restrictions Regulations”) and

(ii) Regulation 3.1.7 of the Food Safety and Standards (Food

Products Standards & Food Additives) Regulations, 2011 (“the

Standards Regulations”). Both the Regulations taken together are

referred to as “2011 Regulations”.

The impugned regulations read as under:-

“2.3.4 Product not to contain any substance which may be injurious to health:

Tobacco and nicotine shall not be used as ingredients in any food products.”

“3.1.7 Restriction on use of anticaking agents –

No anticaking agents shall be used in any food except where the use of anticacking agents is specifically permitted.

PROVIDED that Table Salt, Onion Powder, Garlic Powder, Fruit Powder and Soup Powder contain the following anticaking agents in quantities not exceeding 2.0 percent either singly or in combination namely:-

a) Carbonates of calcium and magnesium b) Phosphates of calcium and magnesiumc) Silicates of calcium, magnesium, aluminum or sodium or

silicon dioxide;d) Myristates, Palmitates or stearates of aluminum,

ammonium, calcium, Potassium or sodium.

PROVIDED that calcium potassium or sodium ferrocyanide may be used as crystal modifiers and anticaking agent in common salt and iron fortified salt in

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quantity not exceeding 10 mg/kg singly or in combination expressed as ferrocuanide”

(emphasis supplied)

3. By the impugned order dated 19 July 2012, the Commissioner of Food

Safety, Maharashtra State (the Food Safety Commissioner) after referring to

the harmful effects of the ingredients being used in gutka or Pan Masala

including carcinogenic and co-carcinogenic effects etc., in exercise of the

powers conferred by Section 30(2)(a) of the Food Safety Act, has in the

interest of public health, prohibited manufacture, storage, distribution or sale of

Gutka or Pan Masala containing either tobacco and/or nicotine or Magnesium

Carbonate as ingredients, by whatsoever name these are available in the market

and any other products marketed separately to constitute as Gutka or Pan

Masala etc. as final products in the State of Maharashtra, for a period one year

from the date of publication of the order in the Maharashtra Government

Gazette. The order was published in the Maharashtra Government Gazette on

20 July 2012.

BROAD CHALLENGES

4. The above regulations and the impugned order are challenged broadly

on the following grounds:-

(i) The prohibition similar to one contained in the impugned order

dated 19 July 2012 was struck down by the Supreme Court in

Ghodawat Pan Masala Products I.P. Ltd. and another v. Union of

India and others, (2004) 7 SCC 68 (the Ghodawat judgment). In

the above judgment, the Supreme Court in terms held that the

Cigarettes and other Tobacco Products (Prohibition of

Advertisements) and Regulation of Trade & commerce,

Production, Supply & Distribution Act, 2003 (the Cigarettes Act,

COTPA Act or Act of 2003) is a “comprehensive law on

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tobacco”.

“Pan Masala or any chewing material having tobacco as one of its

ingredients (by whatever name called)” and “gutka” are included

at items 8 and 9 respectively in Schedule to the above Act of

2003. The Apex Court has already held that the said Act of 2003

occupies the field and Prevention of Food Adulteration Act, 1954

(PFA Act) which was a general Act, was directly in conflict with

the Act of 2003 and accordingly, the State Government did not

have any power to ban pan masala or gutka. The State

Government has, however, again reiterated the same ban which is

contrary to law laid down by the Supreme Court and the impugned

order seeks to nullify the Supreme Court judgment without

changing the basis of the judgment.

(ii) The Food Safety Act, 2006 is a general Act which does not refer

to tobacco or any tobacco product and, therefore, the matter is still

governed by the COTPA Act of 2003. There is no implied repeal

of the COTPA Act, 2003. Hence, the impugned order is ultravires

the power of State Government under the COTPA Act 2003.

(iii) Section 30(2)(a) of the FSS Act, 2006 is similar to section 7(iv) of

the PFA Act, 1954. The Supreme Court has held in terms that the

power conferred by Section 7(iv) of PFA Act is only to deal with

emergent situations, and not to ban manufacture, distribution and

sale of gutka or pan masala on permanent basis. Hence the

impugned order is ultra vires the FSS Act, 2006.

(iv) Position prior to 19 July 2012: Reliance was sought to be placed

on the position prior to the order dated 19 July 2012 in support of

their contention that there was no total ban prior to the impugned

order.

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(a) Regulation 2.3.4 is in para-materia with Rule 44J which was

inserted in the Prevention of Food Adulteration Rules 1955 in the

year 2006. Following the judgment in Ghodawat case, this Court

by an order dated 17 January 2008 in Writ Petition No.1984 of

2007 of Ghodawat Industries (India) Pvt.Ltd. has granted interim

stay restraining the respondent authorities from initiating or taking

any further steps against the petitioners for contravening Rule 44J

of the PFA Rules 1955.

(b) Prior to order dated 19 July 2012, the respondent authorities

were not taking action against the manufacturers or distributors of

gutka or pan masala and, therefore, the authorities themselves had

not interpreted the 2011 Regulations as imposing a total ban on

gutka having tobacco or on pan masala having magnesium

carbonate.

(v) The impugned order is also violative of petitioners' fundamental

rights under Articles 14 and 19(1)(g) and other rights under Article

300A of the Constitution.

In Ghodawat, the Supreme Court had considered the stand of the

State Government that Gutka and Pan Masala are injurious to

health but the Supreme Court held the total ban on Gutka and Pan

Masala as unreasonable and violative of petitioners' fundamental

rights under Article 19(1)(g) of the Constitution because on the

one hand, the State Government did not ban chewing tobacco

which has cent percent tobacco, but banned gutka which has only

6 to 7% tobacco. The Supreme Court also held that since the

petitioners were granted licences under the PFA Act, the Act did

not contemplate any total ban but on the contrary, permitted the

petitioners to manufacture, distribute and supply gutka and pan

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masala. Similarly, Section 31 of the Food Safety Act, 2006

provides for granting licences and the petitioners who have such

licences are entitled to carry on the business of manufacture,

distribution and sale of pan masala and gutka.

(vi) The impugned order dated 19 July 2012 is illegal as it is issued in

violation of the principles of natural justice.

(vii) The impugned order dated 19 July 2012 also violates the

petitioners' rights under Articles 301 and 304 of the Constitution.

5. Affidavits in reply have been filed by Mr. Kamlesh V. Sankhe,

Joint Commissioner (Food) at Food and Drugs Administration, Government of

Maharashtra justifying the impugned order and submitting that the said order is

in conformity with the provisions of the Food Safety Act and 2011 Regulations

made thereunder. Reference is made to the reports submitted by Tata Institute

of Fundamental Research and other organizations indicating the harmful effects

of consumption of gutka and pan masala, the widespread prevalence of

consumption of gutka and pan masala in the State of Maharashtra and that out

of about 1200 samples of gutka and pan masala collected by the authorities in

the State of Maharashtra in the years 2003-2011, 98% of gutka and pan masala

were found to be contravening the provisions of the Prevention of Food

Adulteration Rules and the 2011 Regulations as they were found to be

containing prohibited ingredients like Magnesium carbonate, tobacco or

nicotine.

6. Action Council Against Tobacco, India, having as its members,

Professors of Medicine and Professors of Oncology of Tata Memorial Hospital

and other hospitals has been permitted to intervene. The affidavits dated 10

August 2012 and 23 August 2012 have also been filed on behalf of the

intervenor placing on record substantial material including the following:-

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i) Global Adult Tobacco Survey Factsheet (2009-2010)

ii) Short report of World Health Organization framework convention on Tobacco Control

iii) Economics of Tobacco in India by Voluntary Health.

iv) Article on Cancer Mortality in India

v) World Health Organisation's Monographs on evaluation of carcinogenic risks to humans

vi) Review of Areca nut and tobacco use in Pacific-A technical report

vii) Evidence assessment by National Institute of Health and Family Welfare.and several other reports.

Reports of National Institute of Health and Family Welfare

making assessment about the contents of gutka, pan masala and other similar

articles manufactured in India. These reports were submitted by the National

Institute of Health and Family Welfare pursuant to the Supreme Court order

dated 7 December 2010 in SLP No.16308 of 2007 (Ankur gutka v. Indian

Asthma Care Society & ors.)

7. Initially, the petitions were to be listed for final hearing on 12

September 2012. However, as the final hearing of the writ petitions was likely

to take considerable time, the learned counsel for the petitioners prayed for

hearing on interim relief. Accordingly, the learned counsel for the parties as

well as the learned counsel for the intervenor have been heard at length on the

question of interim relief.

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Contentions (i) to (iii) – Does Cigarettes Act of 2003 occupy the entire field OR the Food Safety Act of 2006 is the comprehensive law on the subject?

8. The first contention of the learned counsel for the petitioners is

that in the Ghodawat Judgment, the Supreme Court has in terms held that the

Act of 2003 is comprehensive law on tobacco. The preamble to the said Act as

well as the Statement of Objects and Reasons indicate that tobacco products are

injurious to health and there is need to discourage the use of tobacco and

tobacco products. However, the Act only regulates and imposes restrictions

such as prohibition of advertisements and no sale of tobacco products to

persons below 18 years of age, but the Act does not prohibit consumption of

tobacco products. The Act regulates supply and distribution of tobacco

products as would be clear from the provisions of section 31(2)(b) of the Act

which provides that the Central Government may make rules to carry out the

provisions of the Act to specify the maximum and permissible nicotine and tar

contents in cigarettes or other tobacco products under the proviso to section

7(5) which requires the manufacturer/supplier/distributor of tobacco products

to indicate on the baggage or on its label, the nicotine and tar contents on all

the concerned tobacco product alongwith the maximum permissible limits

thereof. It is submitted that the Supreme Court in Ghodawat judgment has

specifically held that the Act of 2003 is a special Act and that the PFA Act,

1954 is merely a general Act and that the power to prohibit sale or manufacture

of tobacco products under the PFA Act was “directly in conflict” with the Act

of 2003, and the Food Safety Act, 2006 being merely a successor to the PFA

Act, 1954, the legal position continues to remain the same as was laid down by

the Supreme Court in Ghodawat case, that is to say, the Food Safety Act is a

general Act. It was also vehemently submitted that the Food Safety Act does

not cover any tobacco product because the tobacco products enumerated in the

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schedule to the COTPA Act 2003 are only governed by COTPA Act.

9. In support of the contention that the Food Safety Act of 2006 does

not cover gutka or pan masala, strong reliance is placed on the reply dated 29

June 2012 of the Food Authority of India to query dated 26 June 2012 under

RTI Act (i) whether Gutka comes within the provisions of the Food Safety

Act, 2006 and the 2011 Regulations or the COTPA Act, 2003; (ii) please

confirm whether the Food Safety Act, 2006 is a general Act or special Act.

The reply dated 29 June 2012 of the Chief Public Information Officer (CPIO)

of the Food Safety and Standards Authority of India in the Ministry of Health

and Family Welfare was as under:-

“Please refer to your RTI application received on 28.06.2012 on the subject cited above, the following information is provided:

1,3,4,5. As per the extant Food Safety and Standards Act and regulation, gutka has not been defined as food.

2. The query raised is a clarification and not pertains to RTI, the copy of the Food Safety and standards act is present on the website www.fssal.gov.in.

10. The learned counsel for the petitioners have also placed strong

reliance on the report of the expert group which was appointed to examine the

draft notification dated 25 November 2005 for amendment of the Prevention of

Food Adulteration Act. The expert group had at its meeting held on 22 and 24

March 2006 under the Chairmanship of Dr.Shiv Lal, Additional Director

General made, interalia, the following recommendations:-

“The Group noted that “there is no proposal to ban the manufacture and sale of tobacco, gutka or any tobacco product, but there is a proposal to exclude these products from the purview

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of the P'FA Act 1954 because a separate specific legislation has been enacted by the Central Government to deal with tobacco products including Gutka under the name of “The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production , Supply and Distribution Act 2003”.

The Group referred to and extracted the judgment of the Supreme Court in Ghodawat case.

“In view of the observations of the Hon'ble Supreme Court there is no proposal to ban the manufacture and sale of tobacco products under PFA Act but it is proposed through this amendment that these products be regulated under Tobacco Act (Act 34 of 2003). Accordingly the manufacture of tobacco products which are listed in the Schedule of the Act 34 of 2003 may be regulated under that specific Act and the manufacturers of that product may take license under excise Act as is being taken for tobacco products like cigarette or cigar. The Group therefore, accordingly recommended to finalise the clause with respect to tobacco and nicotine products”.Rule 4(e):

“Tobacco and nicotine shall not be used as ingredients in manufacture of proprietary products.”

Consumer representatives raised the issues relating prohibition on use of tobacco and nicotine in the food products which have been standardize under PFA Rules 1955. He brought out that the case before the group that there are some products like chocolates and toffee which contained nicotines though is not allowed in these products under PFA Rules.

.. .. He, therefore, requested the Group to put a specific prohibition under PFA rules so that use of nicotine & tobacco is prohibited in any food including food products for which standards have been prescribed under PFA Rules 1955.

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The Group recommended insertion of Rule 44-J

“44-J: Product not to contain any substances which may be injurious to health: The food articles shall not contain tobacco and nicotine.”

It is submitted that the above recommendations indicate that

insertion of Rule 44J providing that food article shall not contain tobacco and

nicotine was only intended to cover proprietary food products like chocolate

and toffee which contain nicotine.

11. It is submitted that the FSS Act,2006 should not be construed as

impledly repealing the COTPA Act, 2003, because:

(i) There is a presumption against implied repeal.

(ii) The legislature while enacting a law necessarily has

complete knowledge of the existing laws & when it does not

provide a repealing provision, the intention is clearly not to repeal

existing legislation.

(iii) When the new Act contains a repealing section mentioning

the Acts which it expressly repeals, the presumption against

implied repeal of other laws is further strengthened.

(iv) The new law will be construed as impliedly repealing an

existing law only if there is no other alternative construction which

allows both laws to operate and if the two are so repugnant or

inconsistent that the two cannot stand together.

(2003) 7 SCC 389, (2002) 5 SCC 285 and (2001) 8 SCC 257

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12. The learned counsel for the petitioners also sought to rely upon the

position prior to the order dated 19 July 2012 in support of their contentions tht

there was no total ban prior to the impugned order.

13. On the other hand, Mr. Darius Khambata, learned Advocate

General for the State of Maharashtra and the Food Safety Commissioner,

Maharashtra State as well as Mr. Kevic Setalvad, learned Additional Solicitor

General for the Central Government have opposed the above submissions. It is

submitted by the learned counsel for the respondents that Ghodawat judgment

based on the provisions of the PFA Act, 1954 and the Cigarettes Act, 2003

does not continue to govern the field when there is a subsequent legislation

made by Parliament itself being Food Safety and Standards Act, 2006 which is

required to be read in light of its Preamble and Statement of Objects and

Reasons.

14. It is further submitted on behalf of the respondents that the

definition of “food” in wide and general terms is sufficient to include all food

products including gutka and pan masala. Even the narrower definition of

“food” in section 2(v) of the PFA Act, 1954 was considered by the Supreme

Court wide enough to include gutka and pan masala, (Ghodawat case, para 65).

The petitioners' argument in Ghodawat case that Cigarettes Act 2003 occupies

the entire field of tobacco and tobacco products (Paras 35 and 37) was not

accepted and the Supreme Court merely held the Cigarettes Act, 2003 to be a

special Act. What weighed with the Supreme Court in Ghodawat case was not

merely that the Cigarettes Act, 2003 was a special Act but that it was a law

later to the PFA Act, 1954. The Supreme Court in terms held that the Central

Government had under section 23(1A)(f) of the PFA Act, the power to ban and

prohibit tobacco products (paras 23, 28, 30, 60 and 77). Hence, the Supreme

Court did not construe the Cigarettes Act, 2003 as excluding the purview of

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PFA Act over tobacco products. It is, therefore, submitted that there is no

repugnancy between the Cigarettes Act, 2003 and the Food Safety Act, 2006.

15. Assuming that the Cigarettes Act, 2003 is held to permit

manufacture and sale of gutka and pan masala, even then the Parliament will

expressed in the later Act of 2006 and the statutory Regulations of 2011 prevail

over the Cigarettes Act, 2003 which itself acknowledged applicability of other

legislations by providing in section 16 of the said Act as under:

“16. Confiscation not to interfere with other punishments.- No

confiscation made, costs ordered to be paid under this Act shall

prevent the infliction of any punishment to which the person

affected thereby is liable under the provisions of this Act or under

any other law.”

(emphasis supplied)

As stated in its Preamble and the Statement of Objections and

Reasons, Food Safety Act of 2006 is a comprehensive legislation on food and

is a single statute relating to food which provides a single window to guide and

regulate persons engaged in the manufacture and sale of food products. The

Food Safety Act, 2006 is thus a special Act and cannot be considered to be a

general Act. It is submitted that in any view of the matter, even if the Food

Safety Act is considered to be a general Act, having regard to the fact that the

Food Safety Act, 2006 is a later Act and contains the non-obstante clause in

Section 89 thereof, the later Act will prevail over the earlier special Act.

16. The learned counsel for the respondents submitted that Parliament

must be deemed to be aware of the existence of the Cigarettes Act, 2003 as

well as the Supreme Court judgment in Ghodawat case in 2004 holding pan

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masala and gutka to be food. The fact that tobacco and tobacco products are

not excluded from the purview of Food Safety Act, 2006 clearly indicates that

Parliament did not intend to exclude tobacco or tobacco products being used or

being intended for human consumption from the purview of Food Safety Act,

2006. Moreover, the 2011 Regulations including the impugned regulations

2.3.4 and 3.1.7 were laid before each House of Parliament under section 93 of

the Food Safety Act. The Parliament did not modify or nullify any of those

Regulations and, therefore also the Regulations under the Food Safety Act must

prevail.

17. Reliance is placed by learned counsel for the respondents on

decisions of the Supreme court in Allahabad Bank v/s Canara Bank, AIR 2000

SC 1535 (para 40) and Ajay Kumar Banerjee v/s. Umed Singh, AIR 1984 SC

1130 (Para 39) and S. Prakash v/s. K.M.Kurian, AIR 1999 SC 2094 (Paras 10

to 13 and 15) in support of the following propositions:-

(I) The endeavour of Court should be to harmonize two Acts

seemingly in conflict.

(II) In the case of a direct conflict (repugnancy) between two special

statutes, both being special laws, the following rules apply:

(i) The later Act will prevail over the earlier Act.

(ii) If there is a provision in one of the Acts giving overriding

effect then that Act will prevail.

(III) A later Act, even if it is a general Act, can prevail over an earlier

special Act, in the case of a repugnancy if there is no express provision

to the contrary in the earlier special Act.

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18. We find considerable substance in the submissions of the learned

Advocate General and the learned Additional Solicitor General that the

definition of “food” in the Food Safety Act, 2006 includes all food products

intended for human consumption which are not specifically excluded from the

definition.

Prevention of Food Adultration Act, 1954:

“2(v) “food” means any article used as food or drink for human consumption other than drugs and water and includes--

(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act.”

Food Safety and Standards Act, 2006:(j) “food” means any substance, whether processed, partially

processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality.”

(emphasis supplied)

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19. While the definition in the 1954 Act excluded drugs and water, the

definition in the Food Safety Act, 2006 excludes animal feed, live animals,

plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and

psychotropic substance. Obviously, gutka and pan masala do not fall in any of

these excluded categories. The expression “any substance which is intended

for human consumption” in FSS Act 2006 is also wider than the expression

“any article used as food or drink for human consumption” in PFA Act, 1954.

It is also pertinent to note that the definition of food in the Act of 2006

specifically includes “chewing gum” and any substance used into the food

during its manufacture, preparation or treatment. Hence, even if gutka or pan

masala were not to be ingested inside the digestive system, any substance

which goes into the mouth for human consumption is sufficient to be covered

by definition of food just as chewing gum may be kept in the mouth for some

time and thereafter thrown out. Similarly gutka containing tobacco may be

chewed for some time and then thrown out. Even if it does not enter into the

digestive system, it would be covered by the definition of “food” which is in

the widest possible terms. The definition of “food” under section 2(v) of the

PFA Act was narrower than the definition of food under Food Safety Act, still

the Supreme Court in Ghodawat case held that pan masala and gutka were

“food” within the meaning of PFA Act. The very fact that the petitioners

themselves had obtained licences under the PFA Act and have also obtained

licences under the Food Safety Act, 2006 is sufficient to estop them from

raising the contention that gutka and pan masala do not fall within the

definition of “food” under the Food Safety Act, 2006.

20. The next question is whether the provisions of the Food Safety

Act, 2006 make any difference to the legal position which was laid down by

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the Supreme Court in Ghodawat case. Before proceeding further, we must note

that even while holding the Cigarettes Act to be a special Act, the Supreme

Court did not accept the contention of the petitioners that the PFA Act had no

role to play in the matter of regulation of manufacture and sale of gutka and

pan masala. In fact, the Supreme Court in terms held that the power to ban

gutka or pan masala under the PFA Act, 1954 was vested in the Central

Government under Section 23(1A)(f) thereof and not in the State Government

under section 7(iv) thereof. The Supreme Court thus did not accept the

petitioners' contention in Ghodawat case that Cigarettes Act was the only

legislation occupying the field of tobacco and tobacco products and that PFA

Act had nothing to do with any tobacco product.

21. We may now refer to the provisions of the Food Safety Act, 2006

which is the comprehensive single integrated legislation on food as specifically

indicated in the Statement of Objects and Reasons. It provides a single

window to guide and regulate the persons engaged in manufacture, import,

processing, distribution and sale of food so as to ensure safe and wholesome

food for the people.

The statement of Objects and Reasons states that Prime Minister's

Council on Trade and Industry had appointed a Subject Group on Food and

Agro Industries which had recommended for one comprehensive legislation on

food with a Food Regulation Authority. The committee expressed its concern

on public health and food safety in India and the Standing Committee of

Parliament also desired that the much needed legislation on Integrated Food

Law should be expedited. The Law Commission of India had also suggested to

make a comprehensive review of Food Laws of various developing and

development countries and other relevant international agreements and

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instruments on the subject and after making an indepth survey of the

International scenario it was suggested that all acts and orders relating to food

be subsumed within the proposed Integrated Food Law . The statement of

objects and reasons also provides that the main object is to bring out a single

statute relating to food. It is proposed to establish the Food Safety and

Standards Authority of India which will fix food standards and

regulate/monitor the manufacturing import, processing, distribution and sale of

food, so as to ensure safe and wholesome food for the people . The Bill also

makes single window to guide and regulate persons engaged in manufacture,

processing, distribution and sale of food. The main features of the Bill are -

“(a) to (c) ….....;

(d) single reference point for all matters relating to Food Safety and standards, regulations and enforcement;

(e) shift from mere regulatory regime to self-compliance through Food Safety Management Systems;

(f) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws; and

(g) provision for graded penalties depending on the gravity of offence and accordingly, civil penalties for minor offences and punishment for serious violations.”

22. It is also necessary to realize that the legislative focus which was

on “prevention of food adulteration” in the 1954 Act has moved to “Food

Safety and Standards”in the Act of 2006.

Preamble to Prevention of Food Adulteration Act, 1954:

“An Act to make provision for the prevention of adulteration of food.”

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Preamble to Cigarettes Act, 2003:

“An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.

Preamble to Food Safety and Standards Act, 2006:

An Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto”

(emphasis supplied)

23. Section 16 of the Food Safety Act, 2006 providing for duties and

functions of the Food Safety and Standard Authority of India clearly provides

in sub-section (1) that it shall be the duty of the Food Authority to regulate and

monitor the manufacture, processing, distribution, sale and import of food so as

to ensure safe and wholesome food.

The detailed duties and functions of the Food Authority in sub-

section (2) of section 16 are without prejudice to the provisions of sub-section

(1), Clause (a) of sub-section (2) thereafter confers power upon the Food

Authority to specify the standards and guidelines in relation to articles of food

and the limits for use of food additives. Chapter III of the Act contains general

principles of food safety and requires the Central Government, the State

Government, the Food Authority and other agencies implementing the

provisions of the Act to be guided by the principles laid down in Chapter III.

These provisions require all the above authorities which include the other

agencies implementing the provisions of the Act to identify the possibility of

harmful effects on health on the basis of assessment of available information.

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If the possibility of harmful effects on health is identified but scientific

uncertainty persists, provisional risk management measures necessary to ensure

appropriate level of health may be adopted. In cases where there are

reasonable grounds to suspect that a food may present a risk for human health,

the Food Authority and the Commissioner of Food Supply shall inform the

general public about the food, risk to health and measures being taken to

prevent or eliminate that risk. Section 18(2)(a) also requires that the Food

Authority shall, while framing regulations and specifying standards under the

Act, ensure prevention of unsafe or contaminated or sub-standard food. It is,

thus, clear that the authorities entrusted with the duty of implementing the

Food Safety Act, 2006 are not merely to perform the negative duty of

preventing food adulteration, but are required to play a very pro-active role for

ensuring safe and wholesome food and to prevent and eliminate risk to health

caused by unsafe food. It is, therefore, clear that Food Safety and Standards

Act, 2006 is the comprehensive single special legislation for all food products

on the subject of safety and standards.

24. Chapter IV of the Act further provides as to which article may be

used in manufacturing or processing food. Section 19 provides that no article

of food shall contain any food additive or processing aid unless it is in

accordance with the provisions of this Act and regulations made thereunder.

Section 20 provides that no article of food shall contain any contaminant,

naturally occurring toxic substances or toxins etc. in excess of such quantities

as may be specified in regulations.

25. Section 92 confers power on the Food Authority of India, with the

previous approval of the Central Government and after previous publication by

notification, to make regulations consistent with this Act and the rules made

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thereunder to carry out the provisions of the Act. Clauses (e) & (i) of sub-

section (2) of section 92 specifically provide notifying standards and guidelines

in relation to articles of food meant for human consumption under sub-section

(2) of section 16 which makes it their duty to regulate and monitor the

manufacture and processing of food so as to ensure safe and wholesome food.

Clause (i) specifies the limits of quantities of contaminants, toxic substance and

heavy metals, etc. under section 20. It is in exercise of these powers that the

Food Authority of India has made with the previous approval of the Central

Government and after previous publication, the 2011 regulations including

regulations 2.3.4, 3.1.7 and 2.11.5, which read as under:-

2.3.4. Product not to contain any substance which may be injurious to health:Tobacco and nicotine shall not be used as ingredients in any food products.

3.1.7 Anticaking Agents(i) Restriction on use of anticaking agents.- No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted:

(a) carbonates of calcium and magnesium;(b) to (d) …......

2.11.5.: Pan Masala

Pan Masala means the food generally taken as such or in conjunction with Pan, it may contain:-

Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits, mulethi, sabnermusa, other aromatic herbs and spices, sugar , glycerine, glucose, permitted natural colours, menthol and non prohibited flavours.

It shall be free from added coaltar colouring matter and any other ingredient injurious to health.

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It shall also conform to the following standards namely:-

Total Ash …..............

Ash insoluble in dilute................

HCL acid ….............

(emphasis supplied)

26. Since we have already held that the definition of “food” in the Food

Safety Act is wide enough to include gutka and pan masala, it is obvious that

the above regulations also apply to gutka and pan masala, Apart from, and even

before, conferring powers of enforcement on the authorities under the Act in

Chapter VII, Parliament has in Chapter VI of the Act cast special

responsibilities as to food safety on the food business operators, manufacturers,

workers, distributors and sellers. Food business operator is defined by section

3(o) as a person by whom food business is carried on or owned and is

responsible for ensuring the compliance. Food business is defined as any

undertaking carrying out any of the activities related to any stage of

manufacture, processing, packaging, storage, transportation, distribution of

food. Section 26(1) provides that every food business operator shall ensure

that the articles of food satisfy the requirements of the Act and the rules and

regulations made thereunder at all stages of production etc. within the

businesses under his control. The Parliament has not stopped at requiring the

food business operator to comply with the legal requirements in such general

terms alone. Clause (i) of sub-section (2) further casts a duty on the food

business operator in the following express terms:-

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No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food —

(i) which is unsafe; or (ii) …......... or (iii) ….............., or (iv) which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health.

(emphasis supplied)

It is, thus, clear that it is for the food business operators (which would include

the petitioners manufacturing gutka and pan masala) to ensure that they do not

manufacture any article or food which is unsafe. The Parliament does not

require the manufacturers like the petitioners to wait for any declaration to be

made by the Food Authority or the Central Government or the State

Government to declare any food as injurious to health or unsafe. It is the

statutory duty of the manufacturers to ensure that they do not manufacture any

article of food which is unsafe. We may, therefore, proceed now to deal with

the question of the harmful effects of the ingredients of gutka and pan masala

on public health about which ample material has been placed on record by the

respondents and the intervenors and which is not seriously disputed at the

hearing of interim relief.

27. By an order dated 7 December 2010 in SLP No. 16308 of 2007

(Ankur Gutka v. Asthama Care Society & Ors.), the Supreme Court had

directed the Central Government “to undertake a comprehensive analysis and

study of the contents of gutka, tobacco, pan masala and similar articles

manufactured in the country, and harmful effects of consumption of such

articles.” The Report of National Institute of Health and Family Welfare

submitted, pursuant to the above analysis and study, reveals that more than

one-third of adults in India use tobacco in some or other form, more than 16

crore people are users of only smokeless tobacco and 4 crore people are users

of both smoking and smokeless tobacco. Several studies in India have reported

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a strong association between smokeless tobacco use and oral pre-malignant /

pre-cancerous lasions. The risk increases with the duration and frequency of

smokeless tobacco use. There are consistent results of an increased risk of oral

cancer with the use of different forms of smokeless tobacco used in the

country. There is also strong association between smokeless tobacco and

pancreatic cancer, throat cancer, oesophagal cancer, renal cancer and higher

mortality rate. The use of smokeless tobacco also causes non-cancerous

diseases/ conditions including nervous system diseases, metabolic

abnormalities, reproductive complications and other diseases like

gastrointestinal and respiratory diseases

The study further reveals that areca nut or supari causes harmful

effects like oral pre-malignant lasions, oral cancer, throat cancer, oesophagal

cancer, liver cancer and non-cancerous diseases/conditions like hypertension

and cardiovascular diseases, nervous system disease, metabolic abnormalities,

reproductive abnormalities, liver and kidney diseases.

28. The learned counsel for the petitioners would, however, still

submit that section 30(2)(a) conferring power on the Food Safety

Commissioner of the State is similar to power of the State Government under

section 7(iv) of the PFA Act, 1954. In the Ghodawat case, the Supreme Court

held that the power of the State Government under section 7(iv) of the PFA Act

was not an independent source of power and that the power was vested only in

the Central government under section 23(1A)(f). The Food Safety Act, 2006,

however, does not confer any power on the Central Government similar to

section 23(1A)(f) of the PFA Act. Therefore, neither the State Government nor

the Central Government have any power to impose any ban which is

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purportedly done by the impugned order dated 19 July 2012. It is vehemently

submitted that the question is not about the harmful effects of pan masala or

gutka but whether the impugned order could have been passed without any

express provision either in the Food Safety Act of 2006 or in the Cigarettes Act

of 2003. It is submitted that the Supreme Court has interpreted section 7(iv) of

the PFA Act as merely conferring power to deal with emergency like epidemic

and not to ban a product permanently.

29. In the first place, the submission overlooks the important

difference in the phraseology of the provisions of the two Acts. Section 7(iv)

of PFA Act, 1954 provided that no person shall manufacture etc. “any article of

food, the sale of which is for the time being prohibited by the Food (Health)

Authority in the interest of public health.”

The corresponding provision in section 26(2)(a) of the Food Safety

Act casts obligation on the food business operator not to manufacture, etc. “any

article of food - (i) which is unsafe”, without limiting the obligation to any time

frame, much less “for the time being”. Hence, the idea of an emergent

situation which would go with the expression “for the time being …...” does

not apply to the obligation of the Food business operator to provide safe food.

Secondly, in Ghodawat case, the Supreme Court noticed that the

power to prohibit a food article as injurious to health was conferred by section

23(2A)(f) only on the Central Government without conferring similar power on

the State Government. Therefore, now in section 30(2)(a), Parliament has

expressly conferred power on the Food Safety Commissioner of the State,

subject to the only limitation of one year period at a time.

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30. As already noticed above, 2011 Regulations have come on the

statute book long after the Supreme Court judgment in Ghodawat case. The

2011 Regulations have been made by the Food Authority of India in exercise of

the powers under sections 16 and 92 of the Act after previous consultation with

the Central Government and have been placed before each House of Parliament

without any modifications having been made by Parliament. Section 30(2)(a)

confers independent power on the Food Safety Commissioner in the State. As

already noticed by us, Section 26 of the Food Safety Act directs that every food

business operator shall not manufacture or distribute any article of food which

is unsafe and that it is not necessary for the said obligation to be enforced that

such a food article must be first prohibited by the Food Authority of India or

the Central Government or the State Government. The Food Safety

Commissioner in the State of Maharashtra noticed that 98% out of more than

1000 samples collected during the last seven years contained tobacco, nicotine

or magnesium carbonate which are injurious to health and that the Food

Authority of India had by statutory Regulations of 2011 already banned the

manufacture of any product containing tobacco, nicotine or magnesium

carbonate (excluding specific product like salt powder which could have upto

2% magnesium carbonate). The Food Safety Commissioner, State of

Maharashtra was, thus, acting well within his powers to ensure that

manufacturers, distributors and sellers of gutka and pan masala shall not be

allowed to contravene the statutory provisions contained in 2011 Regulations,

such as Regulation 2.3.4, 3.1.7 and 2.11.5. We, therefore, do not find any

substance in the petitioners' submission that the impugned order dated 19 July

2012 was beyond the authority of the Food Safety Commissioner of the State

of Maharashtra.

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30A. Having examined the scheme of PFA Act, 1954, Cigarettes Act,

2003 and the Food Safety Act, 2006 and 2011 Regulations framed thereunder,

which were laid before Parliament and not modified and having regard to the

fact that Food Safety Act, 2006 is a later Act and a comprehensive legislation

on food safety and contains a non-obstante clause in section 89 thereof, we are

of the prima facie view that in the field of safety and standards of food (which

includes gutka, pan masala and supari) the Food Safety Act, 2006 occupies the

entire field.

Contention (iv): Position prior to 19 July 2012:

31. (a) Reliance placed by the learned counsel for the petitioners on

the interim order dated 17 January 2008, in the writ petition of Ghodawat

challenging Rule 44(j) of the PFA Act, 1954 is also misconceived. In that case,

the Court had no occasion to deal with the provisions of the Food Safety Act,

2006. For the same reason, the recommendations of the Expert Group in

March 2006 were not at all concerned with the policy which got codified in the

Food Safety Act, 2006. That group was only dealing with the Cigarettes Act,

2003 and PFA Act, 1954 in light of the Supreme Court judgment in Ghodawat

case of 2004.

(b) The allegation of inaction on the part of the authorities has

been denied by the learned Advocate General. Our attention is invited to a

number of prosecutions launched for breach of the statutory Regulations which

came into force on 5 August 2011 including Regulations 3.1.7 and 2.3.4

(Annexure “C” to reply affidavit dated 31 August 2012). In any view of the

matter, the interpretation of statutory Regulations of 2011 leaves no room for

doubt, as discussed above. The said Regulations take complete care of

conclusions 4 and 5 laid down by the Supreme Court in Ghodawat judgment.

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Contention (v): Is there any violation of Article 19(1)(g) read with Article 19(6)

32. The petitioners' contention is that the harmful effects of gutka and

pan masala were brought to the notice of the Supreme Court in the Ghodawat

case but, according to the petitioners, the Supreme Court did not consider them

to be relevant for the purpose of deciding the legal question which had arisen

before the Supreme Court. It is vehemently submitted by the learned counsel

for the petitioners that in para 48 of the judgment, the Supreme Court had

noticed that strangely, the States did not ban chewing tobacco or other tobacco

products which contain almost cent percent tobacco, but they banned the sale

of gutka which contains only about 6 per cent of tobacco and pan masala,

which contains no tobacco whatsoever, even accepting on the correctness of the

material presented.

33. It is, however, not the case of the petitioners that the material

which was taken into consideration by the Food Authority of India while

making the 2011 Regulations or the material which was placed before the Food

Safety Commissioner of the State of Maharashtra in 2012 or the material which

is placed before us was brought to the notice of the Supreme Court. This is

clear from the finding in para 44 of the judgment in the Ghodawat case where

the following observations were made:-

“44. We are unable to discern as to how the very same magnesium carbonate would become injurious as a result of combined chewing of arecanut and lime, particularly when it is not the case of the State Government that Rajnigandha Pan Masala itself contains magnesium carbonate. It is permissible under Article 19(6) to impose a reasonable restriction “in the interest of general public”. Assuming that such a restriction can be imposed, even if by legislation intended to prohibit manufacture, sale or storage of articles harmful or injurious to health, the restriction has to be commensurate with the danger posed. On a conspectus of the facts, we are unable to uphold the prohibition imposed by the

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impugned notification as a restriction which can pass the test of reasonableness under Article 19(6) of the Constitution of India for two reasons. Firstly, there is no demonstrated danger to the public health by mgnesium carbonate by consumption of Rajnigandha Pan Masala; secondly, even if there were, the prohibition could only have extended to pan masala containing magnesium carbonate and could not be wider than that.”

(emphasis supplied)

34. It is, thus, clear that no material was placed before the Supreme

Court about demonstrated danger to the public health by magnesium carbonate

by consumption of pan masala. It was observed that if there were danger to the

public health by magnesium carbonate, the prohibition could have extended to

pan masala containing magnesium carbonate. The harmful effects of the

magnesium carbonate have been brought out in the affidavit filed by the Joint

Commissioner, Drug Administration, Government of Maharashtra as well as in

the reports placed by the intervenor on the record of these petitions. It is not

only tobacco and nicotine which cause carcinogenic effect but also magnesium

carbonate which is generally used for manufacture of gutka as well as pan

masala to sweeten the pieces of supari and other ingredients.

35. It is an admitted position that pan masalas being manufactured by

the petitioners contain magnesium carbonate. It is specifically urged in paras

2.3.2 and 2.3.3 of the petitions (W.P. No. 1631 to 1635 of 2012) that

magnesium carbonates occurs naturally in tobacco, lime, arecanut and

cardamom and that therefore, pan masala necessarily contains magnesium

carbonate.

36. Dealing with the above submission of the petitioners, the Joint

Food Commissioner has pointed out in his affidavit dated 14 August 2012 that

“lime does not contain magnesium carbonate and that the magnesium carbonate

in betel nut and lime is in miniscule scale. Betel nut does not contain

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carbonate but it only contains inherent and natural magnesium which is 2.8

nanogram per gram dry weight. The exact percentage of magnesium in betel

nut/areca nut and slaked lime and catechu is as under:-

i) The concentration of magnesium in Arecanut – 2.8 nanograms in 1 gm. = 0.0000000028%

ii) The concentration of magnesium in slaked lime – 1.3 nanogram in 1 gm. = 0.0000000013%

iii) The concentration of magnesium in catechu – 19.4 nanogram in 1 gm = 0.0000000194%

It is, thus, clear that the percentage of magnesium carbonate in the

natural product is so insignificant that the presence of magnesium carbonate in

gutka and pan masala is in the extent of 2% or more cannot be explained

merely by stating that magnesium carbonate is to be found in the natural

agricultural products. It is, thus, clear that presence of magnesium carbonate

that too to the extent of 2% or more is in more than 98% of the samples tested

by the authorities as given by way of additives being added by the petitioners

for the purpose of sweetening the natural product.”

37. We may also refer to the report placed by the intervenor on record

wherein the survey indicates that out of 3896 children surveyed, 1054 children

take areca nut and that 854 out of them use sweetened areca nut and that only

36 children used unsweetened betel nut alone. Most of the children used one

packet of areca nut per day. The average age at which the people start

consumption of gutka and pan masala is 17 years. It is also found that those

who chew areca nut were not aware of the health hazard. Out of the school

children chewing areca nut, 19% claimed it to be harmless and 70% did not

know about the health hazard. Only 10% were aware about the health hazard

of chewing areca nut. It is, thus, clear that in Ghodawat case, the material

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about harmful effects of magnesium carbonate and the large scale on which it

is being consumed and the fact that people and particularly children are

unaware of health hazards does not appear to have been brought to the notice

of the Supreme Court. In fact, the Supreme Court had indicated that if

magnesium carbonate had injurious effect on health, it could be prohibited.

38. The learned counsel for the petitioners have further relied on the

observations of the Supreme Court in Ghodavat's case for contending that -

(a) chewing tobacco and other tobacco products which contain almost

cent percent tobacco are not banned, and, therefore, complete ban on sale of

gutka which contains about 6% of tobacco, is violative of Article 14 and is an

unreasonable restriction on the petitioners' fundamental right to carry on

business under Article 19(1)(g), and

(b) even after finding that smoking is injurious to health, in the

Cigarettes Act, 2003 the Parliament has not imposed a total ban on smoking

cigarettes and has rested content with merely prohibiting advertisements of

cigarettes and other tobacco products and prohibiting sale of cigarettes and

other tobacco products to persons below the age of 18 years. Similar restrictive

measures can be taken for gutka and pan masala. Hence, the State Government

is not justified in imposing total ban on manufacture and sale of gutka and pan

masala; instead of taking less drastic measures would suffice. The ban is,

however, an unreasonable restriction on the fundamental rights under Article

19(1)(g).

39. We are unable to appreciate the above contentions because the

Supreme Court had no occasion to consider the provisions of the Food Safety

Act, 2006 and the Regulations subsequently made by the Food Authority of

India in the year 2011 in exercise of the powers under sections 16 and 92 of the

Food Safety Act, 2006. The impugned Regulations have been made by the

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Food Authority of India after consultation with the Central Government, after

previous publication and the Regulations have been laid before each House of

Parliament but no modification of the regulations has been made by the

Parliament. We are, therefore, of the prima facie view that the Regulations

have to be treated not merely as having force of law, but also as a part of the

Food Safety Act, 2006 itself.

40. As regards the petitioners' contention that since chewing tobacco

with 100% tobacco is not banned, total ban on gutka having 6 to 7% tobacco is

unreasonable, learned counsel for the respondents and in particular learned

Advocate General have pointed out on facts that in case of chewing tobacco,

the taste is bitter and, therefore, people ordinarily do not take chewing tobacco

on a large scale, unlike gutka where the petitioners and other manufacturers

add sweetening additives to make tobacco palatable. It is because of this

sweetening additives which contain magnesium carbonate and other

ingredients injurious to health that a large number of school children, college

students and adults get addicted to gutka and pan masala.

41. As regards law on the subject, the following principle laid down

by the Constitution Bench of the Supreme Court in Sakhawat Ali v. State of

Orissa, AIR 1955 SC 166 (para10) is a complete answer:-

“The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution.”

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The Statutory Regulations of 2011 made by the Food Authority of India in

consultation with the Central Government and after prior publication, which

are not modified or nullified by Parliament which have to be treated as a part of

the Act, cannot, therefore, be faulted for banning use of tobacco, nicotine or

magnesium carbonate in manufacture of gutka on the ground that chewing or

consumption of tobacco with cent percent tobacco is not banned.

42. We also find considerable substance in the submission of the

learned Advocate General that the State has the power to prohibit trades which

are injurious to health and welfare of the public. A reasonable restriction as

contemplated under Article 19(1)(g) read with clause (6) may require

prohibition if it is in the public interest. In Cooverjee B. Bharucha v. Execise

Commissioner and the Chief Commissioner, Ajmer and others, AIR 1954 SC

220 (Para 7), the Supreme Court made the following observations:-

“(7) Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and Cl.(6) of the article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public.

Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness

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of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualifications in the parties permitted to use, manufacture or sell them.

….................

This is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines, in his morals, which it weakens, and in the self-absement which it creates. But as it leads to neglect of business and waste of property and general demoralisation, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Chirstan community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time are sold indiscriminately to all parties applying.

….............The police power of the State is fully competent to regulate

the business- to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or or a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licences for that purpose. It is a matter of legislative will only.”

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These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner.”

43. We find considerable substance in the submission of the learned

Advocate General as well as the learned Additional Solicitor General that the

width of prohibition depends on the facts and circumstances of the trade.

Complete prohibition is justified because less drastic course is not practical.

When 98% of the samples of gutka and pan masala were found having

injurious ingredients, it is not possible for the State Government to post

inspectors outside each school to prevent sale of pan masala and gutka to

school children or to inspect and test each batch of pan masala to find out

whether it forms part of 98% or the remaining 2%.

44. In a catena of decisions, the Supreme Court has held that the Court

should take into account not only the material on record but should also take

judicial notice of circumstances including the widespread illiteracy and

practicability of enforcement measures. In Pyarali K. Tejani v. Mahadeo

Ramchandra Dange and others, AIR 1974 SC 228, a Constitution Bench of the

Supreme Court dealt with the contravention of the provisions of Prevention of

Food Adulteration Act, 1954 in relation to supari. After holding that supari

was covered by the definition of food under section 2(v) of the PFA Act, the

Supreme Court made the following pertinent observations in paras 14 and 15:-

“14. Even on cyclamates, the toxic degree is not too clear. There is considerable controversy both in the United States and the United Kingdom about a total ban on cyclamates but there is a growing volume of opinion that its use has caused bladder tumour when massive doses are fed on rats. In India also scientific opinion is sharply divided on the harmful consequences of cyclamates. However, in the United States and the United Kingdom in Japan and other countries there is a ban on this

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substance and the Indian official view seems to be that without more information on the mechanism of bladder cancer induction in rats by the cyclmate-saccharin mixture we have to follow the example of the United States. No risks can be taken where millions of people and their lives are involved and cancer being a sure killer does not admit of bio-chemical gamble or medical speculation, particularly when the Indian people, by and large, are less health-conscious and informed than Americans and Britons.

15. Such being the facts, it is not the judicial function to enter the thicket of research controversy or scientific dispute where Parliament has entrusted the Central Government with the power, and therefore the duty, of protecting public health against potential hazards and the Central Government, after consultation with a high-powered technical body, has prohibited the use of saccharin and cyclmates. The fact that for a long these substances were allowed is no argument against the reasonableness of their later ban; for human knowledge advances and what was regarded as innocuous once is later discovered to be deleterious. In no view can the discretion of the government, exercised after listening to the technical counselling of the Central Committee, be castigated as arbitrary and capricious or as unreasonable. So long as the exercise of power is not smeared by bad faith, influenced by extraneous considerations, uninformed by relevant factors, and is within the limits of reasonableness it becomes out of bounds for judicial re-evaluation. Where expertise of a complex nature is expected of the State in framing rules, the exercise of that power not demonstrated as arbitrary must be presumed to be valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. The court cannot re-weigh and substitute its notion of expedient solution. Constitutionality not chemistry, abuse not error, is our concern and the executive has not transgressed limits at all here. Within the wide judge-proof areas of policy and judgment open to the government, if they make mistakes, correction is not in court but elsewhere. That is the comity of constitutional jurisdictions in our jurisprudence. We cannot evolve a judicial policy on medical issues or food additives and should refuse to invalidate Rules 44(g) and 47 on the mystic maybes and happy hopefuls held up before us by the appellant.”

(emphasis supplied)

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45. In Srinivas Enterprises v. Union of India, (1980) 4 SCC 507, a

Constitution Bench of the Supreme Court was dealing with the challenge to the

Prize Chits and Money Circulation Schemes (Banning) Act, 1978. While

upholding the constitutional validity of the Act, the Supreme Court also dealt

with the contention that some of the prize chits schemes were innocuous and

they were not required to be banned. The Supreme Court repelled that

contention in the following words:

“12. The twin requirements of Article 19(6) are: (a) the

reasonableness of the restriction upon the fundamental right to

trade, and (b) the measure of the reasonableness being the

compelling need to promote the interest of the general public.

Public interest, of course, there is. But the controversy rages

round the compulsive necessity to extinguish the prize chit

enterprises altogether as distinguished from handcuffing them with

severe conditions geared to protection of public interest......

13. We may not be taken to mean that every prize chit promoter

is a bloodsucker. Indeed, Shri Venugopal persuasively presented

the case of his client to make us feel that responsible business was

being done by the petitioner. Maybe. But when a general evil is

sought to be suppressed, some martyrs may have to suffer for the

legislature cannot easily make meticulous exceptions and has to

proceed on broad categorisations, not singular individualisations.”

(emphasis supplied)

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Contention (vi): Are Principles of Natural Justice to be followed while exercising powers under section 30(2)(a) of Food Safety Act?

46. The learned counsel for the petitioners have then submitted that

since the Food Safety Commissioner had issued the impugned order dated 19

July 2012 in exercise of his administrative powers under section 30(2)(a) and

not in exercise of legislative powers, the Food Safety Commissioner was

required to give an opportunity of hearing to the manufacturers and that since

this was not done, the impugned order is violative of principles of natural

justice. Powers conferred by clauses (b) to (e) of section 30(2) are

administrative in nature. Hence, the power conferred by clause (a) must also

be construed accordingly. It is submitted that the same view was taken by the

Supreme Court in Ghodawat case and, therefore, also the impugned order is

required to be struck down and stayed till final disposal of the petitions.

47. The submission is misconceived. The Food Safety Act of 2006

admittedly empowers the Food Authority of India to lay down the standards of

food products. As already held earlier, the definition of food in Food Safety

Act includes gutka and pan masala. When the Parliament has specifically

conferred power on the Food Safety Commissioner of the State to prohibit in

the interest of public health, the manufacture, storage, distribution or sale of

any article of food in the interest of public health, the Parliament has done what

Article 258(2) of the Constitution exactly permits, which Article reads as

under:

“258(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.”

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The Food Safety Commissioner, Maharashtra State exercising his powers

under section 30(2)(a), is thus a delegate of Parliament. Delegation of the

legislative power by the Parliament to the officer of the State Government

holding the rank equivalent to Secretary to the State Government is clearly

permissible. There are sufficient guidelines in the Act as to in which

circumstances these powers may be exercised. As already indicated above, the

Food Authority of India in exercise of the powers under section 16(1) and

16(2)(a) read with section 92 has laid down the standards to ensure safe and

wholesome food. It cannot, therefore, be said that any excessive or

uncanalized power is conferred upon the Food Safety Commissioner. In fact,

no challenge is levelled against the constitutional validity of section 30(2)(a) of

the Food Safety Act.

48. As regards the question whether the said power can be considered

as a legislative power or an administrative power, in our view, the principles to

be applied are laid down by the Supreme Court in Union of India and another

v. Cynamide India Ltd. and another, (1987)2 SCC 720. The Constitution

Bench of the Supreme Court laid down the following tests to determine

whether the Act of an executive authority is to be considered as a Legislative

Act or an Administrative Act:-

Legislation indicates the future course of action. Legislative act is

a creation or promulgation of general rule of conduct without reference to

particular cases, An administrative act is the making and issue of a specific

direction or the application of general rule to a particular case. The legislation

operates in future, administration is a process of performing particular acts in

the present. Legislation is made in the interest of general public.

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Viewed from whatever angle, the angle of general application, the

prospectiveness of its effect, the public interest served, and the rights and

obligations flowing therefrom, there could be no doubt that the impugned order

dated 19 July 2012 is a legislative order issued by the Food Safety

Commissioner as a delegate of Parliament. Merely because powers conferred

by clauses (b) to (e) of section 30(2) are administrative powers, it does not

follow that the power conferred by clause (a) is of the same nature.

49. So also we do not find substance in Mr. Seervai's contention that

legislative power has not been conferred on any authority, other than the

Central Government (section 91), Food Authority (section 92) and State

Government (section 94). Merely because the Food Safety Commissioner's

order is not required to be laid before Parliament or State Legislature, it does

not mean that Parliament did not require the Food Safety Commissioner

exercise any quasi legislative power. As already discussed earlier, the

obligation of food business operator under section 26(2)(i) not to manufacture

or sale any food which is unsafe, without any declaration by the Central

Government, Food Authority or the State Government under section 26(2)(iv),

would be meaningless, if the Food Safety Commissioner does not have any

power to issue a quasi legislative order under section 30(2)(a) of the Food

Safety Act, 2006. Hence, the question of the Food Safety Commissioner

following the principles of natural justice before issuing such order under

section 30(2)(a) does not arise.

50. Even otherwise, assuming that the statutory order dated 19 July 2012

were to be treated as an administrative order, all that it does is to prohibit the

manufacture, storage, distribution, transportation and sale of gutka and pan

masala having prohibited ingredients like tobacco, nicotine, magnesium

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carbonate and other ingredients injurious to health. These prohibitions are

already contained in the statutory regulations made in August 2011. Hence,

passing of the order by the Food Safety Commissioner on 19 July 2012 without

hearing the petitioners has not caused any prejudice to the petitioners inasmuch

as they could not have objected to the constitutional validity of the said

statutory regulations before the Food Safety Commissioner of the State of

Maharashtra

Contention (vii) : Order dated 19 July 2012 and Articles 301 and 304

51. Mr. Seervai, learned senior counsel for the petitioners last

submitted that the impugned order dated 19 July 2012 is also violative of the

petitioners' rights under Articles 301 to 304 of the Constitution. It is submitted

that restrictions contemplated by section 302 or 304 can only be imposed by a

Parliament any legislation and not by an executive authority. Apart from

reiterating the above submission to the effect that the impugned order is

administrative order, the learned counsel relied upon the several authorities in

support of his contention.

52. In our view, it is not necessary to refer to the judgments cited by

Mr.Seervai as the submission proceeds on an erroneous premise. In Indian

Cement v. State of Andhra Pradesh, (1988) 1 SCC 743, the Supreme Court has

held that the declaration contained in Part XIII of the Constitution (Articles 301

and 304) is against creation of economic barriers and/or pockets which would

stand against the free flow of trade, commerce and intercourse. The impugned

statutory order dated 19 July 2012 does not create economic barriers and/or

pockets the barriers would have been created by permitting manufacture, etc.

of gutka and pan masala within the State of Maharashtra and restricting import

of gutka and pan masala from other States into the State of Maharashtra. On

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the contrary, the statutory order imposes prohibition on manufacture, storage,

distribution and sale of gutka and pan masala irrespective of the fact whether

they are manufactured within or outside the State of Maharashtra.

53. In this connection, we may also note the decision of a Constitution

Bench of the Supreme Court in Fatehchad v. State of Maharashtra, AIR 1977

SC 1825, where the Supreme Court considered the challenge to the

constitutional validity of the Maharashtra Debt Relief Act, 1976 on the touch-

stone of Articles 301 and 304 of the Constitution. The Supreme Court referred

to the decision in Atiabari Tea Co., AIR 1961 SC 232 (at page 246) tracing the

roots of Article 301 of the Constitution to the effect that before the Constitution

was adopted nearly two-third of the territory of India was subject to British

Rule, while the remaining part was governed by Indian Princes and it consisted

of several Indian States. A large number of those States claimed sovereign

rights and erected customs barriers. Prior to 1950, the flow of trade and

commerce was impeded at several points which constituted the boundaries of

Indian States. The historical process of merger and the integration of the

several Indian States with the rest of the country was accomplished just before

adoption of the Constitution. Hence, the main object of Article 301 was to

allow free flow of trade, commerce and intercourse throughout the territory of

India.

The Supreme Court then referred to the following pertinent

observations in Automobile Transport, AIR 1962 SC 1406 wherein Das, J.

observed-

“Even textually, we must ascertain the true meaning of the word

'free' occurring in Art. 301. From what burdens or restrictions is

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the freedom assured? This is a question of vital importance even

in the matter of construction........ The conception of freedom of

trade in a community regulated by law presupposes some degree

of restriction that freedom must necessarily be delimited by

considerations of social orderliness.”

The Supreme Court then observed that the conscience of the commerce clause

in India, as elsewhere, is the promotion of an orderly society. Social justice is

the core of the constitutional order. The Court further held that every

systematic profit-oriented activity, however sinister, suppressive or socially

diabolic, cannot ipso facto exalt itself into a trade, entitled to protection of

Article 301. The rule of law, for functional purpose, must run close to the rule

of life.

54. The Supreme Court has thus, clearly held that Articles 301 to 304

are enacted to remove economic barriers on the free flow of trade, commerce

and intercourse within the territory of India. Hence, the said provisions can be

invoked only when a State Legislation or the exercise of State Government

creates economic barriers which impede the free flow of trade and commerce

and intercourse. When the State authority has passed a statutory order which

requires the subordinate authorities to implement the statutory regulations

made by the Food Authority of India and when the Food Safety Commissioner

in exercise of the powers conferred upon him by Parliament issues an order

which has the effect of directing his subordinates to implement statutory

regulations made by the Food Authority of India in exercise of powers

conferred by the Parliament in the same enactment, (which Regulations were

laid before each House of Parliament and no modification was made by

Parliament) and as a result the petitioners manufacturing pan masala or gutka

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in violation of the said statutory regulations are prohibited from manufacturing,

storing, distributing or selling gutka or pan masala within the State of

Maharashtra, it cannot be said that any restriction is imposed on the free flow

of trade, commerce and intercourse within the territory of India, which is not

authorised by Parliament.

55. The impugned statutory regulations as well as the impugned

statutory order dated 19 July 2012 are in furtherance of Article 47 of the

Constitution which reads as under:-

“47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.”

(emphasis supplied)

56. The voluminous reports and material placed by the respondents as

well as the intervenor on record establish the dangerous effects of gutka, pan

masala (having as their ingredients tobacco or nicotine or magnesium

carbonate) on public health, which justify the complete prohibition on

manufacture, storage, distribution and sale of gutka and pan masala.

57. We may, at this stage, also refer to the principle laid down by the

Supreme court in The U.P. State Electricity Board and another v. Hari Shankar

Jain and others, AIR 1979 SC 65:-

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“The mandate of Art.37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are `nevertheless fundamental in the governance of the country' and `it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy.”

58. We may also note the caveat sounded by the Supreme Court in

Bhavesh D. Parish and others v. Union of India and another, (2000) 5 SCC 471

where the Supreme Court has held that the Court will not stay legislation unless

it is manifestly unjust and/or glaringly unconstitutional since there is an

overwhelming public interest favouring the continued operation of law.

59. We, therefore, find considerable substance in the submission made

by the learned Advocate General and the learned Additional Solicitor General

that when action based on experts' reports is taken by a delegate of Parliament,

it should not in the normal course, be disturbed.

60. Our attention is also invited to the orders passed by various High

Courts including Kerala High Court, M.P. High Court and Patna High Court,

either rejecting the writ petitions or rejecting the prayer for interim relief

against operation of the similar ban imposed by the respective State

Governments on the manufacture, distribution and sale of gutka and pan

masala.

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61. After taking into consideration the provisions of Prevention of

Food Adulteration Act, 1954 and the Rules thereunder, Food Safety and

Standards Act, 2006, the Regulations made thereunder, the Cigarettes Act,

2003, the judgment of the Supreme Court in Ghodawat case and the material on

record, and after considering the rival submissions and the decisions cited at

the Bar, we are of the view that this is not a fit case for granting any of the

interim reliefs prayed for by the petitioners. Hence, prayer for interim stay

against implementation of the impugned statutory order dated 19 July 2012

issued by the Food Safety Commissioner, Maharashtra State in public interest

in exercise of the powers conferred by section 30(2)(a) of the Food Safety and

Standards Act, 2006 is rejected.

62. All the prayers for interim reliefs are, therefore, rejected.

63. At this stage, the learned counsel for the petitioners pray for a

direction to the respondents not to destroy the goods seized, for a period of 12

weeks in order to have further recourse in accordance with law.

The learned counsel for the respondents oppose the prayer and

submit that the petitioners are bringing more consignments of gutka and pan

masala from other States in the State of Maharashtra.

We see no justification to grant the prayer. The prayer is,

therefore, rejected.

CHIEF JUSTICE

N.M. JAMDAR, J.

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Bombay High Court Judgement on Gutkha & Pan Masala Ban

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