1 WP No.4506/2011 HIGH COURT OF MADHYA PRADESH : BENCH INDORE S.B.: Hon'ble Shri Justice S.C. Sharma Writ Petition No.4506/2011 All India Cafe and Sheesha Association through its President Shri Harish s/o Shri Anil Rawat Versus The State of Madhya Pradesh and others Writ Petition No.6926/2011 Rahul Kalra s/o Shri Prakash Kalra Versus The State of Madhya Pradesh and others Writ Petition No.6933/2011 Harish Rawat s/o Shri Anil Rawat Versus The State of Madhya Pradesh and others Writ Petition No.6934/2011 Naresh Kumar Sharma s/o Shri Radheshyam Sharma Versus The State of Madhya Pradesh and others Writ Petition No.6935/2011 Mayank Jhaveri s/o Abhay Jhaveri Versus The State of Madhya Pradesh and others Writ Petition No.6936/2011 Akshat Gupta s/o Shri Ajay Gupta Versus 2 WP No.4506/2011 The State of Madhya Pradesh and others Writ Petition No.6937/2011 Sohaib Ahmad Chouhan s/o Shabbir Ahmad Chouhan Versus The State of Madhya Pradesh and others * * * * * Shri Ajay Bagadia, learned counsel with Shri Prateek Maheshwari, learned counsel for the petitioner. Shri Bhuvan Deshmukh, learned Government Advocate for respondents No.1 to 6/State. Shri Anand Agrawal, learned counsel for respondent No.7/IMC. * * * * * O R D E R (Passed in open Court on this 18th day of October, 2011) Regard being had to the similar controversy involved in the bunch of cases, they were heard analogously together with the consent of the learned counsel for the parties and by a common order all the aforesaid writ petitions are being disposed of. Facts of Writ Petition No.4506/2011 are narrated, as under:- 2. Petitioner/association, namely All India Cafe and Sheesha Association through its President, has filed the present petition initially challenging order dated 18.05.2011 and 21.07.2011 passed by the Additional District Magistrate, Indore under the provisions of Section 144 of the Code of Criminal Procedure, 1973, by which the District Magistrate has imposed a ban on smoking of hukka in the 3 WP No.4506/2011 restaurants in question. Contention of the petitioner is that the petitioner/association is a society formed by persons associated with the operation of business Cafe and Sheesha Lounges and they have obtained necessary permission from the Municipal Corporation to run restaurants. It has also been stated that at present there are about 16 members in the association who are operating Cafe and Sheesha Lounges in the city of Indore. The petitioners have enclosed Annexure P/1 collectively, which are licenses granted by Municipal Corporation, Indore for running restaurants. One such license enclosed at page 23 is valid up to 31.03.2011. The petitioners have further stated that they are carrying out their lawful business, after obtaining lawful permission and they are also maintaining proper health and hygiene facilities and quality product are being served for consumption of the consumers manufactured by the reputed companies, duly approved by the authorities/labs after testing it. The petitioners have further stated that Cafe and Sheesha Lounges are providing service to their consumers by offering refreshment, coffee, food and also by providing them hukka (a device to facilitate smoking and flavoured smoking). The same is being offered to them in the form of Sheesha, but in reality the tobacco content in the said product remains minimal and contains more herbal flavours than nicotine. The petitioners have also stated that they are following the prescribed norms as provided under the Cigarettes and Other Tobacco Products (Prohibitions of 4 WP No.4506/2011 Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, and therefore, by no stretch of imagination, the impugned orders could have been passed. The petitioner/association have further stated that various news items were published in local dailies against their business and based upon the newspaper reports, the District Magistrate has taken action against the Cafe and Shesha Lounges in the township of Indore. It has also been stated that safer hukka smoking is provided through a water-filtered glass bowl, which acts as a barrier for most harmful substances of tobacco. The petitioners have also stated that they have submitted various representations to the authorities against the threats, which were received by them in respect of closure of their business and the some of the representations dated 28.12.2010 are on record as Annexure P/3 and Annexure P/4. The petitioners’ contention is that the Additional District Magistrate without there being any material on record has passed the impugned order dated 18.05.2011 by which a ban has been imposed in respect of hukka bars/Sheesha Lounges/Sheesha Cafés in the township of Indore. Learned counsel for the petitioner has vehemently argued before this Court that the order dated 18.05.2011 passed under Section 144 of the Code of Criminal Procedure was valid for a period of two months, as provided under Section 144 itself. However, another order dated 21.07.2011 was issued again for a period of two months and now finally another order has been issued on 5 WP No.4506/2011 26.09.2011. The learned counsel for the petitioners has vehemently argued before this Court that in case an order has to be issued under Section 144 of the Code of Criminal Procedure, 1973 for a period of more than two months, it is only the State Government, who is competent to pass an order, as provided under Section 144 (4) of the Code of Criminal Procedure. His contention is that the continuance of order passed under Section 144 beyond the period of two months is not within the domain of the District Magistrate, and therefore, the impugned orders passed subsequently on 21.07.2011 and 26.09.2011 deserve to be quashed on this ground alone. Learned counsel for the petitioners has also vehemently argued before this Court that the District Magistrate was not having any material to form an opinion as provided under Section 144 of the Code of Criminal Procedure. He has simply and mechanically followed the observations made by the Chief Medical & Health Officer and newspaper clippings. He has slapped the order upon the petitioners under Section 144 of the Code of Criminal Procedure. Learned counsel has vehemently argued that in the absence of any material and in the absence of any subjective satisfaction of the District Magistrate, the impugned orders dated 18.05.2011, 21.07.2011 and 26.09.2011 deserve to be quashed. Lastly, he has submitted before this Court that the petitioner association as well as all restaurant owners, who are at present running hukka bars/sheesha lounges/sheesha cafés are ready to abide with 6 WP No.4506/2011 the provisions of the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and Prohibition of Smoking in Public Places Rules, 2008 and therefore, the impugned orders deserve to be set aside. 3. Reply has been filed on behalf of the State of Madhya Pradesh. Shri Bhuvan Deshmukh, learned Government Advocate appearing with Shri Alok Kumar Singh, Additional District Magistrate on behalf of the State of Madhya Pradesh submits that the impugned orders do not warrant any interference. He has vehemently argued before this Court that the members of the petitioner association were running hukka bars/sheesha lounges/hukka centres and on each and every table of it, hukka was being provided to the customers. He has vehemently argued before this Court that Rules of 2008 known as “Prohibition of Smoking in Public Places Rules, 2008” prohibits smoking at public place. Restaurant is certainly a public place, as defined under Rule 2 (b) of the Smoke Free Rules, 2008. He has further argued before this Court that by virtue of provisions of Prohibition of Smoking in Public Places Rules, 2008, Rule 3 (1) (c), no ashtrays, matches, lighters or other things designed to facilitate smoking can be provided at public place and as hukka is certainly a device to facilitate smoking cannot be provided in a public place; meaning thereby, that on each and every table in a restaurant, placing a hukka or any other device to facilitate smoking is not at all 7 WP No.4506/2011 permissible in the eye of law. He has further argued before this Court that after taking into account the overall situation that the smoking with the aid of hukka in a restaurant is harmful and dangerous to human life, birth and safety and further after taking into account the entire material on record, the District Magistrate has rightly passed the order dated 18.05.2011. He has further vehemently argued before this Court that the District Magistrate is competent to pass order under Section 144 of the Code of Criminal Procedure for a period of two months. He has also stated that the District Magistrate has not extended the period of order dated 18.05.2011 for a period of further two months. On the contrary, fresh order dated 21.07.2011 has been passed, keeping in view the material available before the District Magistrate. He has further argued before this Court that last order dated 26.09.2011 has again been passed by the District Magistrate based upon his subjective satisfaction and on the basis of the material available before him, and therefore, it is not a case where an order has been passed for a period of six months. He has argued that in case the order is required to be passed for a period of more than two months, it is certainly the State Government, who has to pass necessary orders, as provided under Section 144 (4) of the Code of Criminal Procedure. His contention is that all the petitions deserve to be dismissed as the order dated 26.09.2011 has been passed, based upon the subjective satisfaction of the District Magistrate, on the basis of 8 WP No.4506/2011 material placed before him. Learned Government Advocate for the respondent/State has also argued before this Court that after conducting raid on hukka bars, material product used for smoking was sent for chemical analysis. The Public Analyst, State Food Laboratory has vide his report dated 24.08.2011 (Annexure R/6) has informed to the Chief Medical & Health Officer, Indore that those substances/products, which are being used for smoking in hukka, were containing nicotine. Percentage of nicotine found in the products is also mentioned in the report dated 24.08.2011 submitted by the Public Analyst, State Food Laboratory. Learned Government Advocate has vehemently argued before this Court that the report submitted by the Public Analyst, State Food Laboratory establishes that the tobacco in some quantity was being used in each and every substances/products which were being used for smoking in hukka bars/sheesha lounges. He has argued before this Court that such type of smoking in a public place is not permissible, keeping in view the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and the Rules, 2008 framed thereunder. He has also drawn attention of this Court towards the interim order dated 13.07.2011 passed by the Division Bench of Bombay High Court in the case of Crusade Against Tobacco (A branch of the Neli Charitable Trust) and others v. Union of India and 9 WP No.4506/2011 others in Public Interest Litigation No.111/2010. His contention is that in the light of the order passed by the Division Bench of Bombay High Court in the aforesaid case, the question of granting permission to Sheesha lounges/hukka bars does not arise. He has further argued before this Court that keeping in view the totality of the facts and circumstances of the case, the orders passed by the District Magistrate do not warrant any interference and the writ petitions deserve to be dismissed. 4. Shri Anand Agrawal, learned counsel appearing for respondent No.7/Indore Municipal Corporation vehemently argued before this Court that the petitioners are, in fact, permitting young people to smoke by providing hukka on each and every table in restaurants. He has further argued before this Court that the Bombay High Court in an interim order passed in the case of Crusade Against Tobacco (A branch of the Neli Charitable Trust) (supra) has dealt with the provisions of the COPTA and the Rules of 2008 framed thereunder. He has argued before this Court that hukka smoking cannot be permitted in a restaurant/Sheesha Lounges, as prayed by the petitioners. Learned counsel for the Municipal Corporation has further contended that the provisions of the Act of 2003 and Rules of 2008, as considered by the Division Bench of Bombay High Court in their interim order dated 13.07.2011 are being considered by the Indore Municipal Corporation. He has also informed that the Indore Municipal Corporation is also 10 WP No.4506/2011 taking appropriate steps to incorporate certain conditions, which have been incorporated by the Bombay Municipal Corporation in respect of smoking and the matter has already been placed before the Mayor-in-Council and on similar lines, general conditions of license in respect of the restaurants/hotels and other places are being incorporated. His contention is that by no stretch of imagination, smoking can be permitted as prayed by the petitioners and the impugned orders passed by the District Magistrate are based upon material available before him, do not warrant any interference. He has prayed for dismissal of all the writ petitions. Learned counsel for the Indore Municipal Corporation has also brought to the notice of this Court that the licenses enclosed along with the writ petitions are expired licenses and at present no licenses have been issued, and therefore, the petitioners are not at all entitled even to operate a restaurant. He has prayed for dismissal of all the writ petitions. 5. Heard learned counsel for the parties and perused the record. 6. The matter is being disposed of at motion hearing stage with the consent of the learned counsel for the parties. 7. In the present case, the petitioner/association, who is representing the cause of Cafe and Sheesha owners in the township of Indore has filed this present petition initially being aggrieved by the order dated 18.05.2011 11 WP No.4506/2011 passed by the Additional District Magistrate, Indore imposing restriction in respect of smoking hukka. This Court has carefully gone through the order dated 18.05.2011 and the order only imposes a ban by prohibiting smoking in hukka bars/Sheesha Lounges and the aforesaid order was valid only for a period of two months and the same has come to an end. Another order was issued on 21.07.2011 and the validity of the same has also come to an end. The third order was issued on 26.09.2011 and the material on the basis of which the order has been issued and on the basis of which, the District Magistrate has formed his opinion, has been brought to my notice by Shri Alok Kumar Singh, Additional District Magistrate. Section 144 of the Code of Criminal Procedure reads as under: - “144. Power to issue order in urgent cases of nuisance or apprehended danger. (1) In cases where, in the opinion of' a District Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by section 134, direct any person to abstain from it certain act or to take certain order 12 WP No.4506/2011 with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance of injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an at-fray. (2) An order under this section may, in cases of' emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte. (3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting it particular place or area. (4) No order under this section shall remain in force for more than two months from the making thereof. Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any, affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not 13 WP No.4506/2011 exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate Subordinate to him or by his predecessor-in-office. (6) The State Government may either on its own motion or on the application of any person aggrieved, rescind or alter an order made by it under the proviso to sub-section (4). (7) Where an application under subsection (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may, be shall afford to the applicant an early, opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part he or it shall record in writing the reasons-for so doing.” 8. Section 144 of the Code of Criminal Procedure empowers the District Magistrate, Sub Divisional Magistrate or any other Executive Magistrate especially empowered by the State Government to pass an appropriate 14 WP No.4506/2011 order, directing any person to abstain from certain act or the conduct or to take certain order with respect to certain property in his possession or under his management, if such Magistrate is of the opinion that such direction is likely to prevent, or tends to prevent, obstruction, annoyance of injury to any person lawfully employed, or danger to human life, substantiated in the present case. Sheesha Lounges / Hukka Bars are providing hukka (a device) designed to facilitate smoking on each and every table and as per the report of the Public Analyst, material, which is being used in the hukka is certainly containing nicotine. It goes beyond saying that hukka is harmful to human life and creates danger to human life and health. As many as 9 lakhs people are dying on account of tobacco relates cancers in this country. This Court has carefully gone through the material produced before the District Magistrate and the decision of the District Magistrate was justified in forming the opinion, based on the material, which was placed before him, by passing an appropriate order under Section 144 of the Code of Criminal Procedure, 1973, thereby closing down hukka smoking activities in Sheesha Bars / Sheesha Lounges / Hukka Centres. Learned counsel for the petitioners has placed heavy reliance upon the judgment delivered by the Apex Court in the case of Acharya Jagdishwaranand Avadhuta v. Police Commissioner, Calcutta and another reported as AIR 1984 SC 51 and his contention is that prohibitory order can be passed for a maximum period of 15 WP No.4506/2011 six months; that too, by the State Government as provided under Section 144 of the Code of Criminal Procedure and as held by the Apex Court in the case of Acharya Jagdishwaranand Avadhuta. This Court has carefully gone through the aforesaid judgment relied upon by the learned counsel for the petitioners and the controversy involved in the aforesaid case was all together different. In the aforesaid case, Anand Margis were objecting to the order passed by the Commissioner of Police, Calcutta in respect of performance of Tandva dance by Anand Margis in a procession or at public places and the Apex Court in those particular circumstances in paragraph 14 has held, as under: - “14. It is the petitioner's definite case that the prohibitory orders under Section 144 of the Code are being repeated at regular intervals from August 1979. Copies of several prohibitory orders made from time to time have been produced before us and it is not the case of the respondents that such repetitive prohibitory orders have not been made. The order under Section 144 of the Code made in March 1982 has also been challenged on the ground that the material facts of the case have not been stated. Section 144 of the Code, as far as relevant, provides: "(i) In cases where in the opinion of a District Magistrate, a Sub- Divisional Magistrate, or any other 16 WP No.4506/2011 Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct .................." It has been the contention of Mr. Tarkunde that the right to make the order is conditioned upon it being a written one and the material facts of the case being stated. Some High Courts have taken the view that this is a positive requirement and the validity of the order depends upon compliance of this provision. In our opinion it is not necessary to go into this question as counsel for the respondents conceded that this is one of the requirements of the provision and if the power has to be exercised it should be exercised in the manner provided on pain of invalidating for non-compliance. There is currently in force a prohibitory order in the same terms and hence the question cannot be said to be academic. The other aspect, viz., the propriety of repetitive prohibitory orders is, however, to our mind a serious matter and since long arguments have been advanced we propose to deal with it. In this case as a fact from October, 1979 till 1982 at the interval of almost two months 17 WP No.4506/2011 orders under Section 144 (1) of the Code have been made from time to time. It is not disputed before us that the power conferred under this section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this section is to remain valid for two months from the date of its making as provided in sub-s. (4) of Section 144. The proviso to sub-s. (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot, or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would have; but for such order, expired, The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months' period in terms of sub-section (4) of Section 144 of the Code. Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time. A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun Mullick v. Taraoni Chowdharani (1879) ILR 5 Cal 7, 18 WP No.4506/2011 examining the provisions of Section 518 of the Code of 1861 (corresponding to present Section 144) took the view that such an action was beyond the Magistrate's powers. Making of successive orders was disapproved by the Division Bench of the Calcutta High Court in Bishessur Chuckerbutty v. Emperor (AIR 1916 Cal 472). Similar view was taken in Swaminatha Mudaliar v. Gopalakrishna Naidu AIR 1916 Mad 1106 (1); Taturam Sahu