- 1 - IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.396 OF 2005 WRIT PETITION NO.396 OF 2005 WRIT PETITION NO.396 OF 2005 WITH WITH WITH WRIT PETITION NO.397 OF 2005 WRIT PETITION NO.397 OF 2005 WRIT PETITION NO.397 OF 2005 WRIT PETITION NO.396 OF 2005 WRIT PETITION NO.396 OF 2005 WRIT PETITION NO.396 OF 2005 1. M/s.Sai Traders, ) a Proprietary concern of ) Shri Motilal Amonkar, ) Shop No.52, ) Mapusa Municipal Market, ) Mapusa, Bardez, Goa. ) 2. Shri Motilal Amonkar, ) Proprietor of Petitioner No.1,) Mapusa, Bardez, Goad. ).. Petitioners Versus 1. State of Goa, ) through Chief Secretary, ) having office at Secretariat, ) Porvorim, Bardez, Goa. ) 2. Directorate of Health Services) Government of Goa, ) through its Director, ) having office at Campal, ) Panaji, Goa. ) 3. Directorate of Food & ) Drugs Administration, ) Government of Goa, ) through its Director, ) having office at Altinho, ) Panaji, Goa. ) 4. The Collector, ) North Goa District, ) Government of Goa, ) Panaji, Goa. ) 5. The Collector, ) South Goa District, ) Government of Goa, ) - 2 - Margao, Goa. ) 6. Superintendent of Police, ) North Goa District, ) Government of Goa, ) Panaji, Goa. ) 7. Superintendent of Police, ) South Goa District, ) Government of Goa, ) Margao, Goa. ).. Respondents -- S/Shri H.D.Naik and Nilesh Takekar, Advocates for the petitioners. Shri S.S.Kantak, Advocate General with Ms G.Bhonsale, Additional Government Advocate for the State-respondents. -- WRIT PETITION NO.397 OF 2005 WRIT PETITION NO.397 OF 2005 WRIT PETITION NO.397 OF 2005 1. M/s.Ghodawat Industries (I) ) Pvt.Ltd., ) a Company incorporated under ) the Companies Act, 1956, ) having its office at ) Plot No.438, Post Box No.118, ) A.A.Chipri - 41611, Via ) Jaysingpur District Kolhapur, ) State of Maharashtra. ) 2. Shri Sanjay Dhanchand Ghodawat,) Son of Dhanchand Ghodawat, ) Indian National, resident of ) Kolhapur, Managing Director ) and Shareholder of Petitioner ) No.1, with his office at ) Plot No.438, P.B.118, ) A.P.Chipri - 416 11, ) Via Jaysingpur District ) Kolhapur. ) 3. Sudhakar Matkar & Sons, ) Proprietary concern of ) Shri Sudhakar Matkar, ) - 3 - having its Shop at Budhwarpeth,) Ponda, Goa. ).. Petitioners Versus 1. State of Goa, ) through the Chief Secretary, ) with office at Secretariat, ) Vidhansabha Complex, ) Porvorim - Goa. ) 2. Directorate of Health Services) Government of Goa, ) through its Director, ) with Office at Campal, ) Panaji - Goa. ).. Respondents -- Shri M.S.Usgaonkar, Senior Advocate with Shri Sudesh Usgaonkar and Ms P.Kamat, Advocates for the petitioners. Shri S.S.Kantak, Advocate General with Ms R.Chodankar, Additional Government Advocate for the State-Respondents. -- CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & CORAM : R.M.S.KHANDEPARKAR & N.A.BRITTO, JJ N.A.BRITTO, JJ N.A.BRITTO, JJ DATED : 7TH JUNE, 2006 DATED : 7TH JUNE, 2006 DATED : 7TH JUNE, 2006 JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) JUDGMENT : ( PER R.M.S.KHANDEPARKAR, J ) 1. Since common questions of law and facts arise in both the petitions, they were heard together and are being disposed of by this common judgment. - 4 - 2. The Goa Public Health Act, 1985, hereinafter called as "the Health Act" has been amended by the Public Health (Amendment) Act, 2005, hereinafter called as "the Amendment Act". The petitioners challenge the Amendment Act, on the ground that the same encroaches upon the legislation by the Parliament i.e. the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, hereinafter called as "the Tobacco Act", and Prevention of Food Adulteration Act, 1954, hereinafter called as "Food Adulteration Act" which relate to Entry Nos.33 and 18 respectively of Concurrent List and considering the Entry No.52 of Union List read with declaration under Section 2 of the Tobacco Act, the entire tobacco industry comes under the control of Union and occupies the field, which excludes the jurisdiction of the State to legislate on the subject of tobacco, and therefore, to that extent the Amendment Act is ultra vires for want of legislative competence. 3. Prior to enforcement of the Amendment Act, on 8th November, 2004, the Governor of Goa had promulgated Public Health ( Second Amendment ) Ordinance, 2004, for short "the said Ordinance". By - 5 - the said Ordinance, Section 2 of Goa Daman and Diu Public Health Act, 1985, hereinafter called as "the Health Act’, was sought to be amended by substituting the Clause (10) of Section 2, providing definition of ‘injurious food’ and adding Clause (c), further adding clause (30A) to Section 2 defining the word "sale", and inserting a new Chapter IXA concerning ‘Articles injurious to public health’ containing Sections 87A to 87L. The changes, which were sought to be incorporated by the said Ordinance, have been replaced and introduced in the Health Act by virtue of the Amendment Act. Meanwhile, on 20th December, 2004, the respondents issued an order and six notifications; one of the notifications was issued in exercise of powers conferred by Section 87A of the said Act, prohibiting consumption, manufacture, sale and distribution of any article of food containing tobacco in the entire State of Goa with immediate effect. Another Notification was issued to declare any article of food containing tobacco to be injurious food for the purpose of Chapter IXA of the said Act. Under four other notifications, the officials attached to combined Food and Drugs Laboratory under Directorate and Food and Drugs Administration were declared to be a Public Analyst under the said Act and certain other officials were authorised for the purpose of - 6 - implementation of the said Act. The Amendment Act was published in Official Gazette of Government of Goa on 16th March, 2005 and the implementation thereof commenced from 2nd October, 2005. Consequent thereto, the authorities under the Health Act conducted raids and seized and confiscated the products containing tobacco including gutka in the State of Goa. 4. The grievance of the petitioners is that once the entire control of an industry is brought under the domain of Central Government, the State Legislature cannot enact any law in respect of such industry or the products manufactured by such industry. As per Section 2 of the Tobacco Act, the Union has taken over the control of the tobacco industry, which is a declaration covered by Entry 52 of List I of Schedule VII of the Constitution of India. The Entry 24 in the List II is subject to Entry 52 of List I. Therefore, the product of tobacco stands excluded from the field of the State List. Since the Entry 33(a) of List III deals with trade and commerce in and the production, supply and distribution of the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, it would result in exclusion of the concerned product under Entry 33 of List III - 7 - along with the Entry Nos.26 and 27 of List II from the State List. In other words, in view of the Entry 52 and declaration contained under Section 2 of the Tobacco Act, the entire tobacco industry comes under the control of Central Government, and therefore, the Tobacco Act completely occupies the field relating to the product of tobacco, and hence, jurisdiction of the State Legislature in respect of the said subject stands excluded. When the Tobacco Act, which is Central Act enacted by Parliament, deals with the subject of industry of tobacco, any legislation made by the State Legislature directly or indirectly encroaching upon the legislation made by Parliament would be ultra vires, and hence, the provisions of Amendment Act are void. The provisions of the Amendment Act and the notifications issued thereunder are repugnant to the provisions of the Tobacco Act, and therefore, are liable to be quashed. The Amendment Act was preceded by the Ordinance which was, in fact, issued after the Supreme Court’s decision delivered on 2nd August, 2004 in the matter of Godawat Godawat Godawat Pan Masala Products I.P.Ltd. & Anr. v. Union of Pan Masala Products I.P.Ltd. & Anr. v. Union of Pan Masala Products I.P.Ltd. & Anr. v. Union of India & Ors., India & Ors., India & Ors., reported in (2004)7 SCC 68. The Amendment Act is a colourable legislation in as much as the State has no power to prohibit manufacture of any food item permanently in view of the fact that - 8 - such power is available under the Prevention of Food Adulteration Act, 1954, and the powers in that regard under the said Act are exclusively vested in the Central Government. In short, the challenge to the impugned legislation is on the ground of applicability of the principle of "occupied field," and resultant absence of jurisdiction to enact any law relating to any product of tobacco. 5. On the other hand, it is the contention of the respondents that Article 47 of the Constitution of India enjoins upon the State to improve the standard of living of the people and improvement of public health. The Entry 6 in the List II of Schedule VII is a legislative field for the State to enact a law in respect of public health. The Amendment Act which has been brought into force is referable to Entry 6 of List II in the Schedule VII, and therefore, is within the legislative competence of the State. Since the legislation is referable to Entry 6 of List II of Schedule VII, Article 254 of the Constitution of India does not come into play. The meaning of the word "industry" in Entry 52 of List I is restrictive and limited to the manufacturing process of that industry, and therefore, even if the control of the tobacco industry is, by law made by Parliament, taken over by - 9 - the Union Government, the State is not denuded of its powers to enact a law in respect of that industry in exercise of its powers with reference to different entry in the State List. Though there is a declaration in respect of tobacco industry as required under Entry 52, the State’s power to enact a legislation in respect of tobacco industry is not barred. The provisions of the Amendment Act are not inflicted with the provisions of the Tobacco Act. In any case, considering the challenge to the constitutional validity of the statute, the same is to be considered by examining the pith and substance of the Amendment Act. 6. It is well settled that when the challenge to a statute is on the ground that it is ultra vires the powers of the legislature which enacted it, the Court has to primarily ascertain the true character of the legislation. It has to be with regard to the enactment as a whole, while considering its objects, its scope and its effect. If the examination reveals that the legislation is in substance relatable to a matter assigned to the legislature, then its validity has to be upheld, even though it might incidentally trench on matters which are beyond its competence. In such cases, it is always to be remembered, as was - 10 - reminded by the Apex Court in A.S.Krishna & Ors. v. A.S.Krishna & Ors. v. A.S.Krishna & Ors. v. State of Madras, State of Madras, State of Madras, reported in AIR 1957 SC 297 that "it would be quite an erroneous approach to the question to view such a statute not as an organic whole, but as a mere collection of sections, then disintegrate it into parts, examine under what heads of legislation those parts would severally fall, and by that process determine what portions thereof are intra vires, and what are not." 7. The rule of repugnancy embodied in Article 254(2) of the Constitution is about eclipsing effect of the Central Legislation on the State Legislation when the later seeks to encroach upon the field occupied by the former. Reiterating its view taken in Zaverbhai Amaidas v. State of Bombay, Zaverbhai Amaidas v. State of Bombay, Zaverbhai Amaidas v. State of Bombay, reported in AIR 1954 SC 752, the Apex Court in Deep Chand & Others v. Deep Chand & Others v. Deep Chand & Others v. The State of Uttar Pradesh & Others, The State of Uttar Pradesh & Others, The State of Uttar Pradesh & Others, reported in AIR 1959 SC 648 held that the principle embodied in Article 254(2) of the Constitution of India is that when there is legislation covering the same field both by Centre and by the Province, both of them being competent to enact the same, the law of the Centre should prevail over that of the State. It was further ruled that the repugnancy between the two statutes should be ascertained on the basis of the three - 11 - principles, viz.:- (1) Whether there is direct conflict or repugnancy between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field. 8. The principle of "occupied field" clearly means that if by reason of the declaration by Parliament the entire subject matter is taken over, for being dealt with by Parliament, depriving the State of the power which it possesses in that regard, then it would follow that the "matter" in the State List is, to the extent of the declaration, subtracted from the scope and ambit of the State List. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 52, and if the said declaration covers the subject enlisted in the State List, then the State Act on such - 12 - subject would be ultra vires, not because of any repugnancy between the two statutes but because the State Legislature has no jurisdiction to pass the law. ( Vide: State of Orissa & Anr. v. M/s.M.A.Tulloch State of Orissa & Anr. v. M/s.M.A.Tulloch State of Orissa & Anr. v. M/s.M.A.Tulloch and Co., and Co., and Co., reported in AIR 1964 SC 1284.) Obviously, therefore, when the both, the Parliament and the State Legislatures exercise their powers under the Concurrent List of VII Schedule, and the Central Legislation brings out an exhaustive code in respect of the subject matter and the State Legislation comes out with another Legislation on the same subject, the State Legislation, to that extent, would be repugnant and void. ( Vide : State of Assam v. Horizon Union State of Assam v. Horizon Union State of Assam v. Horizon Union & Anr., & Anr., & Anr., reported in AIR 1967 SC 442.) 9. In Ishwari Khetan Sugar Mills (P) Ltd. & Ishwari Khetan Sugar Mills (P) Ltd. & Ishwari Khetan Sugar Mills (P) Ltd. & Ors., v. State of Uttar Pradesh & Ors., Ors., v. State of Uttar Pradesh & Ors., Ors., v. State of Uttar Pradesh & Ors., reported in (1980) 4 SCC 136, it was held that when the validity of the legislation is challenged on the ground of want of legislative competence and it is necessary to ascertain which entry in the entry list the legislation is referable to, the court has evolved the theory of pith and substance. If in pith and substance a legislation falls within one entry or the other but some portion of the subject matter of the legislation incidentally trenches upon and might enter - 13 - a field under another list, the Statute as a whole would be valid notwithstanding such incidental trenching. 10. In M/s.Ujagar Prints etc.etc. v. Union of M/s.Ujagar Prints etc.etc. v. Union of M/s.Ujagar Prints etc.etc. v. Union of India & Ors., India & Ors., India & Ors., reported in AIR 1989 SC 516, it was held that the entries to the legislative lists are not sources of the legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The expression "with respect to" in Article 246 brings in the doctrine of "Pith and Substance" in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially ‘with respect to’ the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic. 11. Article 47 of the Constitution of India deals with the subject of duty of the State to raise the level of nutrition and the standard of living and to improve public health. It provides that the State - 14 - 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. The said Article is comprised under Part IV of the Constitution and Article 36 of the said Part IV clarifies that unless the context otherwise requires, "the State" has the same meaning as in Part III. Article 12 of Part III defines the term "State" as, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. 12. Entry No.6 in the State List clearly refers to the subject of "Public health and sanitation, hospitals and dispensaries." The Health Act deals with the law for the purpose of advancing the public health in the State of Goa. Chapter I thereof deals with definition of various terms and expression used in the Health Act. Chapter II enumerates various authorities and their powers under the Health Act. Chapter III - 15 - relates to the subject of water supply, and makes provisions for obligation of local authorities to provide potable water to the residents of that respective areas, the power of Government to direct local authorities to execute water works, protection and periodical examination of water supply, action against insanitary sources, etc. Chapter IV deals with the subject of drainage. It deals with the provisions requiring local authority to maintain public drains, provision regarding drains in private streets, drainage for huts, court-yard, passage, construction and closure of cesspools, restriction from the point of view of public health, for establishment of commercial, industry and other establishments and constructions, prohibition for sullage or sewage to be let out into street, prohibition for pollution of water, etc. Chapter V relates to the sanitary convenience. It comprises of provisions for obligation of local authority to provide public sanitary conveniences, mode of construction of latrines, etc. Chapter VI relates to the subject of abatement of nuisances. It declares certain things to be nuisances and provisions for power of Health Officer and local authorities to abate nuisances, for disposal of articles removed while abating nuisance, for prohibition of the deposit of - 16 - rubbish, etc. in streets, etc. Chapter VII relates to prevention, notification and treatment of diseases. It declares certain diseases to be infectious and deals with the provisions and maintenance of isolation hospitals and wards, provisions for ambulances, obligation of medical practitioners to give information of certain infections diseases, prohibition of the use of water from suspected source, removal of infected person to hospital, prohibition for infected person from engaging in certain trades and occupations, prevention of infectious diseases transmissible from animals, etc. The Part II of Goa Health Act relates to the various provisions pertaining to the notified diseases. The Part III relates to venereal diseases. The Part IV relates to rule making power and penalty for offences. The Chapter VIII relates to mosquito control. The Chapter IX deals with the subject of sanitation and buildings and Part I thereunder refers to control over insanitary buildings. Part II of Chapter IX relates to abatement of overcrowding. Chapter X relates to fairs and festivals. Chapter XI relates to general power to impose conditions in respect of certain services. Chapter XII deals with the rules, bye-laws, penalties, etc. Chapter XIII relates to appeal against decision of health officer, method of serving - 17 - notices, offences to be cognizable etc. 13. The Health Act came into force with effect from 27th November, 1985. By the Amendment Act, implementation of which commenced from 2nd October, 2005, the Health Act is sought to be amended by modifying the clause (10) of Section 2 and by introducing new clauses like (15A) and (30A) in the said Section 2. Simultaneously, new Chapter IXA is sought to be introduced in the Health Act. Section 87A of Chapter IXA deals with the subject of prohibition of dealing in food articles injurious to public health, and Section 87B relates to prohibition in dealing with certain articles of food in designated area. Section 87C relates to the public analyst, Section 87D pertains to power to entry and search, Section 87E pertains to procedure to be followed after seizure, Section 87F pertains to penalty, and Section 87G pertains to punishment for illegal possession in small quantity for personal consumption of any article of food injurious to health or consumption of such article of food. Section 87H relates to cognizance and trial of offences under the Goa Public Health Act. Section 87I thereof pertains to forfeiture of property, Section 87J relates to offences by companies, Section 87K relates to protection of action - 18 - taken in good faith, Section 87L provides that the provisions under Chapter IXA shall be in addition to and not in derogation of other provisions or laws. 14. The Section 2(15A) of the Health Act defines the term "injurious food" to mean that the food which upon consumption may cause or is likely to cause injury or is likely to be injurious or has the capacity or tendency to be injurious and cause any harm, damage, injury to the human body or its cells or tissues or any part thereof, and includes all that injurious food which the Government may, having regard to the circumstances, as also its effect use, nature substance or quality, declare, by notification in the Official Gazette, as injurious food for the purposes of Chapter IXA of the Health Act. 15. The Section 2(30A) defines the term "sale", with its grammatical variation and cognate expression, to mean the sale of any article of injurious food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, including free samples for human consumption or use, and includes an agreement for sale, an offer for sale, the exhibition for sale or having in possession for sale of any such article, and includes also an attempt to sell any such - 19 - injurious article. 16. Section 87A of the Health Act prohibits dealing in food articles injurious to public health. It provides that no person shall manufacture for sale, or store, exhibit, sell or distribute or in any way deal with any injurious food article used for human consumption. It also empowers the Government to prohibit the consumption, manufacture, sale, distribution, storing or stocking of an injurious articles of food, containing any ingredient and in such quantity which is likely to be injurious to public health. 17. The Section 87B prohibits any substance or article of food containing tobacco or any other ingredients of tobacco,