HEGH CUUKT OF Ch‘i-EATTmELiARH AT uiLAb‘rUR 1V??? ?E"‘ITEE‘)N {C} NO. '20? GF 2CV£F8 _"TITEO'NbR ‘ KP. Sugahdh Limited l"C VER$U$ RES?ONUENT§ Stat€ of ChhattEgarh and otha‘s T’ETI’TEGR512R Chhattisgarh pan Masaia ‘V'Vanari Sarigh KESFUNUENT ‘ State of Chhattisgarh and others _ _ _ -_. ”w 'V EJRSUS <\ (J 1T1€T iOl‘ COHSICI EYE UO D .Sd/L , r” f 1" :«Bhirendm Mishra l ' x ’ VJudge ‘ p "J Hon’b‘le Snri Ra‘fiev qupta, (,4 SW' Chief Justice ‘ O WTT PE’TITIGN [‘C’) N3. 29'? OF 2W$ v-rr‘ DIVER P CHEATTISGARH AT BILASPU—R RT? SUgandh Lilnited, A Limited Com corpGratcd undcr t1 C Companies Act, 1956, having its R€giét€r€d Offlce and ‘Norks a: Hot No. 75:76, Sirgitti industrial Area, , 113$ Air thrcugh itS Dir€ctor Freunod Jain, S/o Shri Manmal Jain, agsd 44 yearS, R/G U vwvr, Sai Palisar, Bilaspur (Chhamisgarh DQTTS RE$FOIVBEETS xm v u;\.u .L. State of Cihhatiisgarh through the S€cr€ta1fv3 D€part111& t 0f Foed 36 DrugS , Mantralava, D . K. S. Bhawall, Raipur {CG} controller, Food 82, Drugs Administratian, (Ewiattisgarh Old Nurses Hostei Premises, Near Mantraaya Raipur Union of India, through the Secretary, Millistzy of Health 5;; Fmnilv Weifare, Navin Bhawan, New ‘eJhi RESPGNDENTS CO Chhattisgarh Dani Masala Vx‘apari Sangh, A Society registerec under Somety Keglsu‘ation Act, having it office at 204, Second Floor, Lal Ganga Mantion,‘ M.G. Road, Raimn Innx‘ \vvi Through: Sui Suresh Agrawaj, S’o gate Shankar e I A I [xr‘rwa‘vvn l\ aged oU years, President of Chhattisgarh Pan Masala ‘v’yapari Sangh, R f o Anupaln Nagar, Rf 7 , Raipur, Tahsil and District Rajyur (CG) l. State of Chhattisgarh through The C‘ m+ n R I : n:- y n F YD A S). oCCi p L al'fv", nu ifue LT} U1 r GOu. Lx~ Drugs, Mantralava, D K S, Buau an, Raipur (CG) V Inn‘:v f u WKTT‘ PETITION (Ci NO. 20:5 OF 2038 p a 2 . Conti‘oiier, Food & Drugs AdzniniStr ion, Chhatu‘sger 01d Nurs‘es Hostd Premises, Near 1\man 4~W‘ ayq, Raipur Co Union of Endi'i Through th€ Sgcretarv, Minimu Gf Hea t1} 5;, Fanli‘k‘ W'ehal 6, barman Bilawan, Ninnv 1 wv TN u€mi 11" DB: HON’BLE SHRI RAJEEV GUPHA. C.J. n- unw’n‘f F ¢uD “UTDE‘KTHDA III'I' “DA 1‘ w “v“ u u ”LL“; u;u.wnu.t\n ”“5“...“1. u FI‘6Senli Shri Manindra Shrivastava, Sr Advonate with Shri Nal‘n Tahwn '2 Shri Sanjay Aq-awal, Shri Amuab bin vastava and Shri Amrito pas, counsel ior the petwwuu 1” y! .1 . m, m7, MM, l Parag lkOt€Cfla COLu1S€l 101‘ til€ DCUT101161‘ ill WP. Jo gag/29% 1111 Praghanr Mis1'1ra., AdvocatE General with Qilri aQhwailL wnsh "‘hakur Dy. Advccate Gen rm, 101‘ the \tate/ msponcwut i‘o‘ 1 and 2‘ Shri Manish Shanna, St d1 g Counsel for r€$1mnd<int NG. 3. ‘XT D RTA ')l'\f Q ZUI <k GREEK {Passed cnQ&/Q£2QQ8‘ Dhirendra Mishra. J The p€titioners of they; two writ petitions have questioned the 1ega1itx', correctness and constitutional validity of the order dated 3‘1—1'2—‘200‘7 passed by the Controller, Food and Drugs Administration and Food (Healtn) authoring Cihhattisgarh in Durnorted exercise of power conferred under Section ‘7I'ivl of the Prevention of Food Adulteration Act, 1954 (8‘7 of l954‘) (for short hereinafter referred to as Act d of 1954‘}. Since bot‘ these petitions raise identical issue of 12m? and, therefore, they are being dispoeed of by a conunon {a ofdeL 2. The petitioner in WP. No. 26772008 is a mnited company. it mallufactures Pari Masaia a11d Gutka which is a Chewable Pan Masaia mended with tobacco. The D3: Director, Food and Drugs, the competent authority under ihe Act 3'7 of f 954 and the 1111es fralned thereunder, gra nted 1icenoe for manufacturmg, stocking and distribution of the product Vide order of Annexure 13—53 dated 13—2_'ZOO’7 WhereaS the petitioner of the mi? No. 208/2008 is. a society registered under the Societies Registration Act and is engaged in trading in various brands of Pan Masaiz-L containing tobacco i.e. Gutka manufactured Within the State of C liiattisgarh and other States. The respondent Not 2, an authority constituted under the provision of the Act 3'7 of 1954, in the purported exercise of the power conferred under Section '7, part (iv) of the Act 3'7 of 1‘454 has banned the sale of tobacco biended Trutka by Whichever nanie it is known in the State of Chhattisgarh, for n period of five years with effect from 15‘ January, 2008 and has further directed that no person either personaiiy or through any other person for hinl shall, for the purposes of sale, mallufacuu‘e or storage, SCH or diStri‘Dute tobacco blended Gutka, 13V whichever mane it is known, with effect from ist Januarv, 2008 for a period of flve vears. xv The groundS formulated by the petitioners for CCI impugning the notifxcation are as under:— (i) Section '7 (iv) of the Act 3'7 of 1954 is not an independent source of power for the State Authority and the salne cannot be invoked bv the State Food (Health) Authority {if} Central Rules of 1955 or the State Rules of 1962 do not confer any statutory Dower on the 2nd respondent to issue the order imposing complete ban on manufacture , storage, distribution and sale of Gutka including tobacco and the same can be exercised onlx' by the Central Governinent in accordance with the rules made under Section ‘23 of the Act 3‘7 of 1954i (iii) Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supplx' and Distribution) Act, 2003 {'34 of 2003’) {for short, hereinafter referred to as ‘Act 84 of 2063’“) being; special Act and of later origin, overrides f{t {116 J provisions of Section 7fiv) of the Act 3'7 of 1954 with regard to the Dower to prohibit the saie or manufactur€ of tobacco product which are listed in Schedule to the Act 34 of 2003. 4. Shri Manirxh‘a Shrivastava, learned Senior Advocate with 'Shri Nalin Talwar and Shri Parag Kotecha, learned counsel for the petitioners argued that iegal queetions invoived in these petitions have been Ciearh' and unanibiguousiv answered bx: Hon’bie The Supreme Court. in the matter of Godawat Pan Masaia ?roducts LP. Ltd. and another —v- Union of indie. and othersi, as in the afom$aid matter (J50 the notiiieations issued by the competent Authorities under the Act 3'7 of 1954 of State of Maharashtra, State of Karnataka, State of Goa and State of Tahiti Nadu, imposing ban on the saie of ail brands of Pan Masala (containing tobacco) and chewing tobacco, G-utka containing tobacco in any form or any other ingredients iniurious to health under whichever naine or descrintion, were challenged. and aii the notifications were quashed by Hon’h1e Supreme Court as nitra vires the Act and hence bad in iaw and the sanie were unconstitutionai and void ahridging the fundamentai rim mniuwae mmcr lair-7 . : CK rights of the appeiiants guarantecad Lutlder AmiCieS 14 and 19 of the Constiiution of India. It was further argu€d that R1116 '3 of the Mahafashtra Prévention of Food Aduiteration RuleS, 1962 and th€ Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982 conferred powers and duties on the Food (Heaith) Authoritv of those StateS and Rules (GHQ) and (6}(13’) of the above rules conferred power upon the Food (Hearth) Authority that in the event of outbreak of auTy‘ infectious; diseases, he couid take such measureS as it Shall deen'i neeessarv to prevent the out break of Such infectious disease or Spread thereof. The argtuuent based on the above ruie was also negatived by the Honrbie Supreme Court with an obseivation that the power of the Food (Health) Authority under the Ruies is only of transitory nature and intended to deal with iocai emergencies and can last only for short period While such emergencr lasts. However, even no such Dower has been conferred on the Food (Health) Authority in the State of "‘hhattisaarh under Chhattisgarh Prevention of Food Adulteration Rules 1962. ed/ 5. On the other hand, Shri Prashant Mishra, Learned Advocate Generai and Shri Yashwant Singh Thakur, Learned DV‘ Advocate General opposing the praver of the petitioners vehemenTly argued that the impugned notifmation was iSsued under Section 7(iv‘) of the Act 3/ of 1954 with the 1audable purpose of banning manufacture, storage, sale and distribution of Gutka containing tobacco as the same is injurious to health. The school going chiidren and coiiege students are easily becoming prey of consumption of Gutka containing tobacco and thus they are becoming addict to the iniurious food articles. Referring to the iudgnent of Hon’bie the Supreme Court in the matter of Khodhv bistiiieries Ltd. anti others -—v— State of Karnat'aka and othersi, it was argued that “The right to practice anV' DI‘OfCSSiOl-i 01‘ t0 CEIFV 011 allV OCCL‘LDatiOl—l, U‘ad6 01‘ business does not extend to practicing a profession or carrying on occupation, trade or business which is inherently vicious and pernicious, and is condemned bx‘ ali Civilized societies It does not entitle Citizens to carrv on trade or business in activities which are minioral and criminal and in articles or goods which are obnoxious and injurious to health. safety and welfare of the general public, i,e. res extra commerciuin (outside commerce]. There cannot be business in crime.” Referring to para 24 of the judgment in Guclawat Fan Masaial, it was argued that Food (Health) Authority is, empowered to take such immediate step and to prohibit for the time being, the inanufacture, saie, Storage, distribution of the concerned injuriouS articles; and to take anv appropriate step‘ in the intereSt of bublic health. 6. VVe have heard 1earned counsel for the parties. (fi 7i in order to appreciate the contention of the learned counsel for the reSpective parties, reference to the reievant provisions of the Act is necessaryx Section ‘7 of the‘Act '37 of 1954 readS as under:- "7 Prohibitions of manufacture, sale, etc of certain articles of food.— No person shall hiinseif or bx‘ any? person on his behalf manufacture for sale, or store, sell or distribute—~ (i‘) anv adulterated food; (ii) anv 1n isbranded food; {iii‘} any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) anv article of food the sale of which is for the time being prohibited by the Food 4@ (Health) Authoriw in the inter€st of public health; (v) Any article of food in contravention of anx“ other provision of this Act or of any rule macie thereLmder; or {'vi‘) Any adulterant.” 8. The State of Chhattisgarh has framed the Chhattisgarh F'revention of Food Aduiteration Rules 1962. Rules 3 and 4 of the above Rules deai with Food (Health) Authoritv and its powers and duties ahd Powers of iocal authoritv, which reads as under:— “3. Food (Heaith) Authoritv and its powers and duties.—{1'I The Director of Health Services, Madhya Pradesh (being the Chief Qfflcer in Charge of health administration in the State of Madhva Pradesh) Shah he the Food {Health} Authoritv (hereinafter referred to as the ‘Authoritv’i ('2) The authority shall be responsible for the general superintendence of the administration and enforcement of the Act. ('3) The authoritV‘ shall for giving effect to the provisions of the Act, have control over the Public Health Laboratories maintained by the St e l 6.... qf Governnmnt and local authorities and the Dubiic anajlysts and Food InSpeCtors appointed under the ACE. (4)4 The authority may give to a local authority all such directions a3 it may considar necessarv in regard to any matter connected with the enforcement of the Act and the ruies made theretulder and the local authority shail comply \V lUfl SllCll Cl1r€Ct10flS . «.y‘ (5‘) The authority, Whenever called upon to do So, shah adviSe the State Government or the local authority, as the case may be, in matters relating to the adminiStration and enforcement of the Act. 4. Powers and duties of local authoritv.-‘(1l Suhiect to the provisions of Rule '3, the local authority shall be responsible for the proper day~ to—dav administration and enforcement of the Act within its jurisdiction. (‘2') The local authority shall appoint a health officer, or health officers for the purpose of the Act, having jtu‘isdiction over the Whole or part of its area as it nia‘; specify 11 (8) The local authority maxi appoint 136130115 in such number as it tliinks flt, having qualiflcation prescribed under the Centrai Rules, to be Food Inspectors for the purpose of the Act, thex; shall exercise powers Within such local areas as it may assign to them, with the approval of the authority. ‘Jr‘ [4) the local authority shall appoint such officers, as it thinks fit to be licensing authorities within iuriscliction for the purposes of Cl. (b) of sub‘section ('2‘) of Sec“ ‘24 of the Act. The preamble of Act 84 of 2003 reacls as under:— “An Act to prohibit the advertisement of, and to provide for the regulation of trade and cominerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto . ” The statement of Obiects and Reasons of the Act 34 of 2003 reads as under:— “Statement of Obiects mad Reasons .— Tobacco is universally regarded as one of the major public health hazards and is responsible directly lO. F x1 H h). indirectly for an estimated sight lakh deaths annualiy in the country. it has alSo been found that treatment of tobacco related diseases and the loss of Droductivitv caused therein cost the countrv almost Rs. }8,5OO crores annual‘w, which more than offsets all the beneflts accruing in The form of revenue and empioyment generated by tobacco industry. The need for a comprehensive legisiation to prohibit advertising and regulation of production, suDD‘lV and distribution of cigarettes and tobacco products was recommended by the Parliainentan' Committee on Subordinate Legislation (Tenth Lok S‘abha) and a number of points suggested by the Committee on the $Libordinate Legislation have been incorporation in the bill. 2. The proposed Bill seeks to put totai ban on advertising of cigarettes and other tobacco products and to prohibit sponsorship of sports and culturai events either directiv or indirecdv as well as sale of tobacco products to minors. It also proposes to make rules for the purpose of prescribing the contents of the specified warnings, the languages in 13 " 3 which they are to be diSpiayed, as W611 as displaying the Quantities of nicotine and tar couténtS of these products. For the effective implementation of the proposed legislation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent, The objective of the proposed enactment is to reduce the exposure of peopie to tobacco smoke (passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements. This will result in a healthier life stvle and the protection of the right to life enshrined in the Constitution. The proposed legislation further seeks to implement article 4‘7 of the Constitution Which, inter aZia, requires the State to endeavour to iniprove public health of the people. ’ The Bill seeks to achieve the aforesaid obiects. 1 l. Section 2(p‘1 of the Act 34 of 2003 deflnss “tobacco products? Tobacco products means thc products specified in the Schedule and the Entry No. S of Schedule under Section 2m] refel‘S to “Pan Masala 01‘ anv chewing material having tobacco as one of its ingredients (by Whatever name called)” and Entry 9 refers “Gutka”. \,-\ , 12. In the matter of Godawatl‘ the Hon’ble Sum‘eme Court after considering the arguments advanced by the respective parties in detaii has finally concluded that there is no source of power under Section 7(iv] for imposing anv restriction with Food (Health) Authority irrespective of whether it is used as food or as an ing‘edient in the manufacture of any articie of food and it has been further held that the inlpugned notification is vioiative of fundaniental rights guaranteed under Art. 19(1‘n'g‘) because it is excessivelv restrictive in nature. Even the iatest Act No. 34 of 2003 does not ban the sale of tobacco product listed in the Schedule except to the IlllHOl‘S. 13. in the matter of Godawat 1, as already mentioned in the earlier paragraphs, the issue before the Hon’ble Apex Court was Whether the Food (Health) Authoritv had the power to issue an order of prohibition whethe permanent or quasi permanent under Section 7{iv) of the Act 3'7 of 1954 as in the above matter also, the Food (Health) Authority for the State of Maharashtra, vide notification dated 23rd July, 2002 banned the manufacture, sale, storage and distribution of Pan Masala and Gutka (Pan Masaia containing tobacco) for a period of 5 years with effect from 15‘ August, 2002. Similar notifications were aiso issued by the State Food (Health) Authoritxu Govermnent of Tamilnadu for a period of 5 years with effect from 19th Noveinber, 2001 whereas the Food (Health) Authority, State of Goa banned sale of Gutka and Fan Masala containing tobacco or not containing tobacco, by whatever naine calied, prohibited within the State of Goa with effect from 26f“ January, 2003. Aliowing the appeal of the appellants and the writ petitions inipugning the notification, the notifications were quashed as bad in law, void and illegal and unenforceable against the appellants] petitioners and it. has been held thus:— “38. lt is significant that, while dealing with the powers of Food Inspector under S. 10(l)(e) of the Act, the Act provides that a Food inspector shall have power, with the previous approval of the Local (Health) Authority having jurisdiction in the locai area C011Cerned, or with the previous approval of £116 Fooci (Health) Authority, to prohibit. the sai6 of anv article of food in the interest of public health. Secondly, this Clause does not include the phrase “for the tiule being.” if the arguinents of the 1earned counsel for the State Govermnent were to prevail, Then this provision would give to the Food Inspector, a lower authoritx‘ in the hierarchv, an extraordinary power of banning permanentlv which power can only be the result of a policy decision to he taken at the highest level of the State Governinent. ln our Vl€VV, It 1S 1101 pOSSlDl€ t0 lntefplEt {DESE ClaL1S€S disparatelv or disjunctivelv. Clause (iv‘) of S. '7 and Cl. (c) of sub-seetion (l) of S. lO of the Act and their interplay unmistakably suggest that the power conferred on the Food (Health) Authority and the Food inspector, being derived from the Rules made in exercise of the powers exercised under S. ‘24 of the Act are necessarilv subservient to the powers derivable from the rules inade under S. 23 of the Act. Hence, under the Food {Health} Authority, nor the Food inspector can be said to have such power which could he available to the C€nuai Govermnent bV prescription of a ruie in exercise of Dower under S. '23( 1mm. ‘77. As a result of the discussions, we are of the View that: 1. Section 7(iv‘) of the Act is not an independent source of power for the State e r Authority ; 2. The source of power of the State Food (Health) Authoritv is located 011k? in the valid rules made in exercise of the power under S. ’24 of the Act 13V the State Governnient to the extent pernlitted thereunder; Ki 3. The power of the Food (Health) AuthoritV under the ruies is oniV of transitorv nature and intended to deal with local emergencies and can last onlV for the short period While such einergencv lasts; so 4. The power on banning an article of food or an article used as ingredient. of food, on the ground that it is injurious to health, belongs appropriately to the Central Governrnent to be exercised in accordance with the Rules :nlade \ under S. 23 of the Act, particularly, sub—section (1A.)(f); 5. The State Food (Health) Authority hass no power to prohibit the 111anm“act1.u‘e for seJe storage, sale or distribution of any article, Whether used as an article or adjunct thereto or not used as food. Such a power cm only ariSe aS a result of wider policy decision arid enianate from Parliainentary legislation or, at least, by exerciSe of the powers by the Central Government by fralning Rules under S, '28 of the Act; b. The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in comlict with the provisions of S, 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, While the latter enactment is general enactment. Thus the Act 34 of 2003 being a special Act, and of later orig‘n, overrides the provisions of S. 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power , a / , H \c to prohibit the saie or manufacture of tobacco products which are Hated in the sch€dule to th6 Act 34 of 2003. '7. The impugned Nbtiflcation are uitra Vires the Act and, hence, bad in law; 8 . The ilnpugned Notiflcations are unconstitutional and void as abridging the fundalnental rights of the appeuants guaranteed under Arts. 14 and 19 of the Constitution.” 14‘ So far as the submission of the learned Advocate Generai based on concept of res extra commercium is concerned, the above argtunent has also been dealt with in paragraph 53 of the above judgment arid it has been held thus “Is the consunintion of pan Inasala or Gutka (containing tobacco), or for that matter tobacco itseif, considered so inherently or viciouslv dangerous to health, and if so, is there arm legislative Dolic'y’ to totallv bah its use in the country? in the face of Act 34 of 2003, the answer inust. be in the negative. it is difficult to accent the contention that the substance banned by the llllpllgHSCl NOtlllCatlOH 1S U‘eatCCl as res extra ‘V F commercium. In {he ‘ first mace, the gamut of iegislation enacted in thiS country which c‘mals with tobacco does not Suggest that Parliwnent has ever treated it as m1 article res extra commercium, 1101‘ has Pallialnent attempted to ban its use ab$oiuteiv.” Considering the various iegisiative measures seeking to levy restrictions and controi the manufacture and sale of tobacco and its aiiied produces as weii as Pan Inasala, it has been heid thusz~ “It is not possibie to accept that the article itself has been treated as res extra commercium, The iegislative Doiicv, if anv, seems to be to the contrarv. in anv event, whether an article is to be prohibited as res extra Commerczum is a inatter oi iegisiative policy and must arise out of an Act of Legislature ahd not bv a mere Notification issued ‘e, bx; an executive authority.” Io. in our considered opinion, the subject matter of the instant petition, the question of fact and legal issue involved in these petitions are identical to the facts and issues involved in the matter of Godawati. l6. Learned counse1 for the State Gouid not point out any other ground which‘ distinguishes the pr6$ent matter either on factS or on law with the above matter already decided by the Hon’me Supreme Court. 17. In the reSu‘n, relying upon the judgment of the Hon’b‘ie Supreme Court in the matter of Fmdawatl, We allow both the writ petitions and quash the notification impugned as bad in law, void, iliegal and unenforceable against the petitioners. \“x M i //7w‘,.. Y Sd/- I ) Justice Judge w 7 . V I *‘e ,