For ease of reference, refer the table as under:-

1. The Ministry of Health and Family Welfare in the Union Government1 together with the Government of National Capital Territory of Delhi2 have preferred the present appeals questioning the correctness of the judgment dated 27 September 2022 rendered by a learned Single Judge of the Court. The judgment came to be rendered on a batch of writ petitions which had assailed the validity of a Notification bearing No. F.1(3)DO- I/2012/10503-10521 dated 25 March 2015 passed by the Commissioner (Food Safety), GNCTD prohibiting the manufacture, storage, distribution or sale of tobacco, flavoured/scented, or mixed with any of the said additives and described as gutka, pan masala, flavoured/scented tobacco, kharra or otherwise called by any other name in its packaged or unpackaged form and sold either separately or as one composite product in the National Capital Territory.

2. Undisputedly, the aforesaid directive though originally prescribed to prevail for a period of one year from the date of publication of the said original notification had been extended from 1 Union Government 2 GNCTD LPA 742/2022 & LPA 748/2022 Page 4 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB time to time and supplemented by identical notifications issued over the years. Those notifications shall for the sake of brevity be hereinafter referred to as the "Impugned Notifications". The original notification of 25 March 2015 read as under: -

3. The writ petitioners had assailed the validity of the aforesaid notification on numerous grounds which have been duly noticed and considered by the learned Single Judge in the impugned judgment. The principal challenge, however, appears to have centered around the provisions of the Cigarettes and Other Tobacco Products LPA 742/2022 & LPA 748/2022 Page 6 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 20033 and which, according to the petitioners, conferred a right upon them to undertake the manufacture, production, sale and distribution of pan masala or any other chewing material having tobacco or gutka as one of its ingredients . The writ petitioners also appear to have contended that the Food Safety and Standards Act, 20064 was not liable to be considered as an enactment empowering the respondents to pass prohibitory orders impeding or impinging upon the rights conferred upon the petitioners by COTPA. The writ petitioners also questioned the validity of the prohibitory orders in light of the ‗declaration of expediency' as embodied in COTPA and the expression of public interest of the Union taking under its control the tobacco industry by virtue of Entry-52 falling in List-I of the Seventh Schedule of the Constitution.

4. For the purposes of appreciating the challenge which stood raised before the learned Single Judge, it would be apposite to reproduce the principal arguments and issues which stood framed in the batch of writ petitions. The learned Single Judge had, upon noticing the submissions addressed, identified the principal issues as the following: -

5. On due consideration of the aforenoted submissions, the learned Single Judge proceeded to record the following conclusions: -

6. The learned Single Judge has firstly proceeded to examine the scope of the FSSA. The Court ultimately came to conclude that while the FSSA may empower the food safety authorities to establish standards for quality of food, it would not include within its purview the power to prohibit the manufacture, sale, storage and distribution of tobacco and this more so when tobacco products are enlisted in the Schedule of products to be regulated by COTPA. Dealing with the aforesaid issue, the learned Single Judge has held as follows: -

7. Turning then to the provisions of Regulation 2 .3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, the learned Single Judge observes that the intent of Regulation 2 .3.4 is not to prohibit but to merely restrict the use of tobacco and nicotine as ingredients in food products. According to the learned Single Judge, Regulation 2 .3.4 cannot be read as empowering the food safety authorities to regulate tobacco itself. The learned Judge accordingly proceeded to hold that the regulation of tobacco would be governed exclusively by the provisions of COTPA. This is evident from the following extract of the impugned judgment: -

8. Proceeding further on the aforesaid subject, the learned Single Judge came to the following conclusion: -

9. Turing then to the question of declaration of expediency and noticing that both COTPA as well as FSSA embodied the intent of the LPA 742/2022 & LPA 748/2022 Page 11 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB Union to take under its control the tobacco and food industries, the learned Single Judge held as follows: -

Admittedly, the impugned Notifications have been issued by Respondent No.1 as an executive action under the garb of Regulation 2 .3.4 in exercise of power conferred by Section 30(2)(a) of the FSSA. Therefore, the FSSA cannot override LPA 742/2022 & LPA 748/2022 Page 12 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB COTPA which is a Central Act enacted solely for the purposes of regulation of tobacco and its products.

200. The COTPA is a special enactment dealing with tobacco and exclusively and comprehensively deal with tobacco and tobacco products. As held in the case of Godawat Pan Masala (supra), COTPA is a special Act intended to deal with tobacco and tobacco products, while the PFA is a general enactment, therefore, the COTPA overrides the provisions of the PFA with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule of the COTPA. In Godawat Pan Masala (supra), the Hon'ble Supreme Court further held that COTPA is a special Act intended to deal with tobacco and tobacco products and hence it will override Section 7(iv) of the PFA. The relevant portion, inter alia, reads as follows:

The said Regulation merely lays down general principle for food safety and cannot in any manner be read to construe that ―tobacco‖ is ―food‖ within the meaning of the FSSA.

220. After considering the arguments advanced and the judgments relied by the parties,―food‖ as defined in the FSSA does not include tobacco within its ambit or scope and therefore, tobacco cannot be termed as ―food‖ within the meaning of the FSSA.‖

12. The learned Single Judge then took up for consideration the question of whether Section 30(2)(a) of the FSSA could be recognized as empowering the Commissioner (Food Safety) to pass a prohibitory order and which could be extended to operate beyond a period of one year. Proceeding to rule on the aforesaid issue, the learned Single Judge held as follows: -

In order for a prohibition to be exercised, alternative policies are to be evaluated; interested parties are to be consulted and risk analysis, risk assessment and risk management has to be ascertained; interested parties are consulted qua factors relevant for protection of health; and appropriate prevention/control options are selected, besides compliance of other principles as laid down under Section 18 of the FSSA. Moreover, the use of the word ―shall‖ in Section 18 of the FSSA clearly demonstrates its mandatory nature of the procedure to be followed. Accordingly, the powers conferred upon the Commissioner of Food Safety have to be exercised subject to compliance of mandatory principles as prescribed under Section 18 of the FSSA.

225. However, it is pertinent to mention that in the present case, no compliance under Section 30(2)(a) read with Section 18 of the FSSA has been undertaken before issuance of the impugned Notifications by Respondent No.1. At the outset, no risk analysis, risk assessment or risk management has been made in the present case. Further, there has been no reference to emergent circumstances which led to issuance/passing of the impugned Notifications. In fact, no opportunity of being heard has been provided to the stakeholders who would be adversely affected by such prohibitory order i.e., issuance of the impugned Notifications.

226. In this regard, it has been discussed in the case of Omkar Agency (supra):

It was further held, in Olga Tellis (supra), that it must further be presumed that, while vesting the Commissioner with the power to act without notice, the Legislature intended that the power should be exercised sparingly and, in cases of urgency, which brook no delay. In all other cases, no departure from the audi alteram partem rule could be presumed to have been intended. On the provisions of Section 314, the Supreme Court held, in Olga Tellis (supra), that it is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations, which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place, the apprehended danger and so on. The ordinary rule, which regulates all procedure, is that persons, who are likely to be affected by the proposed action, must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances, which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those, who affirm their existence.

28. The relevant observations, appearing in Olga Tellis (supra), are being reproduced herein as follows; para 44―... (the said section) confers on the Commissioner the discretion to cause an encroachment to be removed with or without notice. That discretion has to be exercised in a reasonable manner so as to comply with the constitutional mandate that the LPA 742/2022 & LPA 748/2022 Page 17 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB procedure accompanying the performance of a public act must be fair and reasonable. (The Court) must lean in favour of this interpretation because it helps sustain the validity of the law.‖ para 45...―It must further be presumed that, while vesting in the Commissioner the power to act without notice, the Legislature intended that the power should be exercised sparingly and in cases of urgency which brook no delay. In all other cases, no departure from the audi alteram partem rule (‗Hear the other side') could be presumed to have been intended. Section 314 is so designed as to exclude the principles of natural justice by way of exception and not as a general rule. There are situations which demand the exclusion of the rules of natural justice by reason of diverse factors like time, place the apprehended danger and so on. The ordinary rule which regulates all procedure is that persons who are likely to be affected by the proposed action must be afforded an opportunity of being heard as to why that action should not be taken. The hearing may be given individually or collectively, depending upon the facts of each situation. A departure from this fundamental rule of natural justice may be presumed to have been intended by the Legislature only in circumstances which warrant it. Such circumstances must be shown to exist, when so required, the burden being upon those who affirm their existence.‖

29. Relying on the aforesaid observations made in the case of Olga Tellis (supra),the Supreme Court, in the case of C.B. Gautam v. Union of India , reported in (1993) 1SCC 78, has held that it must, however, be borne in mind that courts have generally read into the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made, which would have adverse civil consequences for the parties affected. This would be particularly so in a case, where the validity of the section would be open to a serious challenge for want of such an opportunity.

30. In the case of Godawat Pan Masala v. Union of India , reported in (2004) 7 SCC 68, the Supreme Court repelled the contention put forward by the State of Maharashtra that the impugned notifications being a legislative act, there was no LPA 742/2022 & LPA 748/2022 Page 18 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB question of complying with the principles of natural justice. The Supreme Court, in Godawat Pan Masala (supra), held that if such arguments were to be accepted, then, every executive act could masquerade as a legislative act and escape the procedural mechanism of fair play and natural justice. In this regard, reliance was placed on the case of State of T.N. v. K. Sabanayagam, (1998) 1 SCC 318, wherein it has been observed that even when exercising a legislative function, the delegate may, in a given, case be required to consider the viewpoint, which may be likely to be affected by the exercise of power.

31. As pointed out, in K. Sabanayagam (supra), a conditional legislation can be broadly classified into three categories:

32. The Supreme Court emphasised, in K. Sabanayagam (supra), that in the third type of cases, the satisfaction of the delegate must necessarily be based on objective considerations and, irrespective of the fact as to whether the exercise of such power involves a judicial or quasi-judicial function, it has to be nonetheless treated a function, which requires objective consideration of relevant factual data pressed into service by one side, which could be rebutted by the other side, who would be adversely affected if such exercise of power is undertaken by the delegate.

Neutral Citation Number: 2023:DHC:2375-DB

33. In view of the above reasoning, the following facts emerge with respect to the issuance of prohibition orders under Section 30(a) of the Food Act:--

Neutral Citation Number: 2023:DHC:2375-DB The writ petitioners had essentially asserted that bearing in mind the deleterious effect of both those categories of tobacco products on public health, there existed no justification for a prohibition having been imposed in respect of smokeless tobacco alone. The aforesaid submission found favour with the learned Single Judge who ultimately came to record as under: -

It was their submission that the impugned notification came to be promulgated in order to give effect to the directives issued by the Supreme Court in the aforenoted matters and which had led to various States in the country prohibiting the distribution and sale of gutka and 5 SLP No. 16308 of 2007 LPA 742/2022 & LPA 748/2022 Page 22 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB pan masala with tobacco and/or nicotine. While dealing with this aspect, the learned Single Judge has held as follows: -

Neutral Citation Number: 2023:DHC:2375-DB B. THE REGULATORY REGIME

16. COTPA came to be promulgated by Parliament in 2003. The Preamble of COPTA reads as follows: -

17. Section 2 embodies the expression of intent of the Union Government referable to Entry-52 falling in List-I of the Seventh Schedule. That provision reads as under: -

18. Sections 4 and 5 of COTPA carry the prohibitions placed by the Legislature in respect of smoking in public places and advertisement of cigarettes and other tobacco products. Those provisions are set out hereinbelow: -

(2) No person, for any direct or indirect pecuniary benefit, shall-

(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or

(b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or

(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is LPA 742/2022 & LPA 748/2022 Page 25 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB or which contains an advertisement of cigarettes or any other tobacco product; or

(d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:

19. Sections 6 and 7 of COTPA embody the prohibition with respect to sale of cigarettes to person below 18 years of age and the restrictions statutorily imposed on production, supply and distribution of cigarettes and other tobacco products and those being subject to the pictorial warnings which must be carried compulsorily. Those two provisions read as follows: -

7. Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products.-(1) No person shall, directly or indirectly, produce, supply or distribute 6 cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label [such specified warning including a pictorial warning as may be prescribed.] (2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning.

(3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.

(4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration.

(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof:

Neutral Citation Number: 2023:DHC:2375-DB Section 10 prescribes the size of letters and the figures in which the specified warnings are to be displayed on the packaging. COTPA also envisages the establishment of a testing laboratory which may be granted recognition by the Union and charged with the task of testing the nicotine and tar contents in cigarettes and other tobacco products. Sections 13 and 14 of COTPA embody the coercive measures which the competent authorities under the enactment are entitled to adopt in case of a violation of its provisions. Sections 20 , 21 , 22 of COTPA provide for various punishments for violation of the provisions of the said Act.

21. Tobacco products are those which are specified in the Schedule in terms of Section 3(p) . The said Schedule reads as under: -

22. Turning then to the FSSA, the Court firstly deems it apposite to refer to its Statement of Objects and Reasons which reads thus: -

Neutral Citation Number: 2023:DHC:2375-DB

6. The abovesaid Bill is contemporary, comprehensive and intends to ensure better consumer safety through Food Safety Management Systems and setting standards based on science and transparency as also to meet the dynamic requirements of Indian Food Trade and Industry and International trade. The Bill seeks to achieve the aforesaid objectives.‖

23. As would be evident from the Preamble of the FSSA, it is an Act essentially aimed at consolidating laws relating to food and to establish the Food Safety and Standards Authority of India6 for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import. The principal objective of the Act is to facilitate food safety and to ensure availability of safe and wholesome food for human consumption and for matters connected therewith. The FSSA also carries a declaration referable to Entry 52 falling in List I of the Seventh Schedule and the said declaration stands embodied in Section 2 thereof. The Act came to be promulgated on 23 August 2006. However, its various provisions were enforced from different dates. For the purposes of evaluating the challenge which stands raised in the present appeals, it would be appropriate to refer to the following definitions as set out in Section 3 of the FSSA: -

24. Section 18 of the Act sets out the general principles to be borne in mind by appropriate governments as well as the FSSAI while implementing the provisions of the Act. The said provision reads as under: -

25. The Impugned Notifications which had been assailed before the learned Judge were asserted to have been promulgated by virtue of the powers conferred upon the Commissioner of Food Safety of respective State Governments. Those powers, as spelt out in Section 30 , would be evident from the following extract of that provision: -

Neutral Citation Number: 2023:DHC:2375-DB

(e) sanction prosecution for offences punishable with imprisonment under this Act;

(f) such other functions as the State Government may, in consultation with the Food Authority, prescribe.

(3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act (except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him.‖

26. Section 89 confers an overriding effect on the provisions of the FSSA over all other food related laws. That section reads thus: -

27. Since the principal controversy which stands raised centers upon Regulation 2 .3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 20117, the same is extracted hereinbelow: -

28. Pan masala as a food article is regulated by virtue of the provisions contained in Regulation 2 .11 titled ‗Other Food Products and Ingredients' and forming part of the Food Safety and Standards 7 Prohibition Regulations 2011 LPA 742/2022 & LPA 748/2022 Page 36 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB (Food Products Standards and Food Additives) Regulations 20118. Regulation 2 .11.5 which specifically deals with the aforesaid food article reads as follows: -

Explanation.- - For the purpose of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale.‖ 10 (2004) 7 SCC 68 LPA 742/2022 & LPA 748/2022 Page 38 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

31. While the Court would be dealing with the decision in Godawat in greater detail in the latter parts of this decision, it may, at this stage, only be noted that one of the questions which stood formulated was whether pan masala could be construed as ―food‖. That question was unequivocally answered in the affirmative with the Court rejecting the contention that pan masala could not be said to fall within the ambit of Section 2(v) of the PFA. The orders issued by the Food Health Authority however came to be set aside with the Supreme Court noting that the notifications issued were ultra vires the Act, unconstitutional and void. The Supreme Court while arriving at that conclusion had held that Section 7(iv) of the PFA was not an independent source of power which could be availed of or invoked by the State authorities. It found that the power of the State Food Health Authority could have been exercised only under the relevant Rules which stood framed. It is also pertinently observed that the powers so conferred on the Food Health Authority was transitory in nature and that the power to prohibit or ban an article of food was one which stood vested exclusively in the Union Government in light of the provisions contained in Section 23 (1-A)(f) of the PFA.

32. Post the decision which came to be rendered in Godawat, Rule 44J came to be inserted in the Prevention of Food Adulteration Rules 195511. That provision read as under: -

33. Pan Masala as an article of food was regulated in accordance with the Clause A.30 falling in Appendix B of the 1955 Rules. The said clause is extracted hereinbelow: -.

Ash insoluble in dilute hydrochloric acid. - Not more than 0.5 per cent by weight (on dry basis).‖ C. CONTENTIONS OF GNCTD

34. Leading the challenge in the present appeals, Mr. Gautam Narayan, learned ASC appearing for the GNCTD, addressed the following submissions. Mr. Narayan, at the outset, submitted that the writ petitioners as well as the learned Single Judge clearly erred in construing the Impugned Notifications as being directed towards the manufacture, storage and sale of tobacco. Learned counsel submitted that the Impugned Notifications were never intended to either regulate or prohibit either pure tobacco or raw tobacco. Learned counsel laid LPA 742/2022 & LPA 748/2022 Page 40 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB emphasis on the fact that the notifications sought to prohibit the sale of tobacco which is flavoured, scented or mixed with other ingredients. It was his submissions that tobacco when mixed with flavoring or scenting agents or other ingredients clearly falls within the definition of food as contemplated under the FSSA. Learned counsel submitted that the primary objective of the Impugned Notifications was to enforce and implement the prohibition on sale of flavoured or scented tobacco and to address the modus adopted by the writ petitioners and other similar manufacturers of making available for sale chewing tobacco in a pouch separated from pan masala and to thereby defeat the ban on gutka. This ban, according to Mr. Narayan, was sought to be circumvented by selling the aforenoted two products in separate sachets/packets and sometimes as a composite combination.

35. Mr. Narayan submitted that the moment tobacco is mixed with pan masala, it would clearly fall foul of Regulation 2 .3.4. It was contended that it was the aforesaid fact which weighed upon the appellants to issue the Impugned Notifications. Mr. Narayan further submitted that the Impugned Notifications themselves came to be promulgated in order to effect compliance with the orders passed by the Supreme Court in Ankur Gutka and Central Arecanut. Learned counsel drew the attention of the Court to the order dated 07 December 2010 passed in Ankur Gutka where amongst various other directions, the Supreme Court called upon the Solicitor General to require the National Institute of Public Health to undertake a LPA 742/2022 & LPA 748/2022 Page 41 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB comprehensive analysis and study with respect to the contents of gutka, tobacco, pan masala and similar articles being manufactured in the country and the harmful effects of consumption thereof.

36. The relevant extracts from the order of 07 December 2010 are reproduced hereinbelow: -

37. It was then submitted that it was in light of the aforesaid direction that the National Institute of Health and Family Welfare12, New Delhi submitted a report. Drawing the attention of the Court to the relevant parts of that report, Mr. Narayan submitted 12 NIHFW LPA 742/2022 & LPA 748/2022 Page 42 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB that NIHFW enumerated and chronicled the numerous health concerns which arose from the consumption of gutka and chewing tobacco. Mr. Narayan laid emphasis on the following extracts from that report:-

Renal cancer Most of the studies included in the IARC monograph have reported an increased risk of renal cell cancer by 3-4 times with the use of smokeless tobacco (Annexure 1 (d)) MORTALITY Results from some studies indicate an increased risk of all-cause mortality or all-cancer mortality in smokeless tobacco users compared to non-users (Annexure 70 - 73), and the increased risk was seen predominantly in female users. In addition, one Swedish study has reported an increased risk of dying from cardiovascular disease among the users (Annexure 74).

NON-CANCEROUS DISEASES/CONDITIONS Oro-dental health All the Indian studies identified under this section have shown a close association between smokeless tobacco usage and different types of periodontal diseases (inflammation, gingival recession and bleeding, staining, tooth loss) and/or caries (Annexure 75 -

80). A review of oral mucosal disorders associated with gutkha usage also found an increased risk of peri-odontal inflammation (Annexure 43).

Hypertension & Cardiovascular diseases Results from several studies indicate that regular use of smokeless tobacco increases the risk of hypertension (Annexure LPA 742/2022 & LPA 748/2022 Page 44 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB 81 - 86) and that of cardiovascular disease (Annexure 82, 84, 86, 87). A systematic review of observational studies from Sweden and USA has also shown an increased risk of fatal myocardial infarction (Annexure 88).

Nervous system diseases Two large studies have found a significant association between the use of smokeless tobacco and the risk of fatal cerebrovascular stroke (or stroke) (Annexure 89, 90).

Metabolic abnormalities A study from Sweden reported significant association between high-dose consumption of snus/snuff and metabolic syndrome which is defined as 3 or more abnormalities of abdominal obesity, high cholesterol level, high triglycerides level, hypertension, and diabetes or hyperglycemia (Annexure 91). Another study has found increased triglyceride and cholesterol levels among smokeless tobacco user (Annexure 86).

Reproductive health Multiple studies have reported adverse effects of smokeless tobacco on the reproductive health of men and women and during pregnancy. A study of Indian men attending an infertility clinic reported a strong association with decrease in sperm quality and sperm count (Annexure 92), while another study found an increased risk of cervical lesions in women (Annexure

93). Its use during pregnancy is reported to be associated with increased incidence of birth complications and anemia (Annexure 94, 95), increased risk of fetal loss (Annexure 96, 97), and a higher incidence of preterm babies and low-birth weight babies (Annexure 98 - 100).

Other diseases (Gastro-intestinal and Respiratory) Results from few studies have found increased prevalence of benign gastrointestinal diseases (oesophagitis, sub-mucous fibrosis) in smokeless tobacco users (Annexure 101, 102). Moreover it has been associated with chronic bronchitis and impaired lung function with chronic use (Annexure 103, 104).‖ LPA 742/2022 & LPA 748/2022 Page 45 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

38. It becomes pertinent to note that NIHFW had taken note of the Global Adult Tobacco Survey India13 and which had reported that more than 35% of adults in India use tobacco in some form or the other. That report had further recorded that out of the aforesaid percentage, 21% adults consumed smokeless tobacco, 9% were smokers and 5% were those who used to indulge in smoking as well as in consumption of smokeless tobacco. The number of tobacco users in India were estimated to stand at 274.9 million of which 163.7 million were estimated to be users of only smokeless tobacco, 68.9 million were smokers and 42.3 million users were those who indulged in the consumption of both. GATS India had further found that the Quit Ratio for the users of smokeless tobacco was around 5%. Proceeding further to account for the harmful effects associated with the use of tobacco, NIHFW found that the consumption of smokeless tobacco was not only the leading cause of various categories of cancers, it had a direct impact on mortality and was also the root cause of various non-cancerous diseases including hypertension, cardiovascular diseases, nervous system diseases, metabolic abnormalities and poor reproductive health. NIHFW also estimated the economic costs of treating smokeless tobacco as standing at a staggering USD 285 million. It was further observed that the total economic cost of tobacco use was reportedly USD 1.7 million.

39. The Summary of Evidence as forming part of that report is reproduced hereunder: -

40. The aforesaid report came to be duly placed before the Supreme Court in the proceedings aforenoted. It would be pertinent to note that by this time, FSSA had already come into force. According to the Appellants, the Prohibition Regulations 2011 were enforced with effect from 05 August 2011 and saw the enforcement of Regulation 2 .3.4. According to Mr. Narayan, the said Regulation was directly correlated to the various findings which had come to be recorded by NIHFW and was clearly aimed at fighting the aforesaid scourge. Mr. Narayan further drew the attention of the Court to a communication of 21 November 2012, issued by the Special Secretary in the Ministry of Health of the Union Government which had advised States to consider LPA 742/2022 & LPA 748/2022 Page 47 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the passing of necessary orders at the State level to ban the manufacture and sale of gutka, pan masala and other chewable products having tobacco and nicotine. The aforesaid advisory sought to draw sustenance from Regulation 2 .3.4 as well as the decision taken by the Government of Mizoram which had proceeded to ban the aforesaid articles.

41. Ankur Gutka thereafter came to be called on 03 April 2013 before the Supreme Court. In the aforesaid proceedings, the Supreme Court recorded the statement made on behalf of the Union that Governments of 23 States and Administrators of 5 Union Territories had proceeded to issue notifications imposing a complete ban on gutka and pan masala with tobacco. The Additional Solicitor General had also referred to a subterfuge adopted by manufacturers of the aforesaid articles who were stated to be attempting to overcome the ban by selling gutka and pan masala in a convenient twin packet packaged to facilitate mixing of tobacco with spice mixtures by consumers. Taking note of the aforesaid, the Supreme Court proceeded to pass the following directions: -

42. According to Mr. Narayan, it was in light of the aforesaid directions issued by the Supreme Court that GNCTD proceeded to issue the Impugned Notifications. Mr. Narayan also referred to the order dated 23 September 2016 passed by the Supreme Court in Central Arecanut and which had reiterated the directions issued in Ankur Gutka. The Court deems it apposite to extract the following relevant passages from that order: -

In view of the statement made by the learned Additional Solicitor General, we order issue of notice to the Chief Secretaries of the States and the Administrators of the Union Territories which have so far not issued notification in terms of 2006 Act to apprise this court with the reasons as to why they have not taken action pursuant to letter dated 27.08.2012.

We also direct the Secretaries, Health Department of all the 23 States and 5 Union Territories to file their affidavits within four weeks on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine.‖ Learned Amicus Curiae has also invited our attention to paragraph 21 of the Written Submissions on behalf of the Ministry of Health and Family Welfare, Government of India, in S.L.P. (C) No. 16308 of 2007, which reads as follows:

43. As would be evident and manifest from a reading of the aforesaid extracts, the Supreme Court appears to have called upon all concerned statutory authorities to act in furtherance of the directions issued in Ankur Gutka and to comply with the mandatory provisions of Regulations 2.3.4.

44. Close on the heels of the passing of the aforesaid direction, the Ministry of Health and Family Welfare in the Union Government is stated to have reiterated its request to the respective States and Union Territories to ensure compliance with the aforesaid directions issued by the Supreme Court and to prohibit any counterproductive activities being undertaken by manufacturers so as to circumvent the ban and overcome the prohibition comprised in Regulation 2 .3.4. An identical request is also stated to have been addressed by FSSAI to all States and Union Territories in terms of its letter of 09 October 2017. It was the submission of Mr. Narayan that since the impugned Notifications had been issued principally to give effect to the binding directives of the Supreme Court, there existed no justification for the learned Single Judge to have quashed the same.

Neutral Citation Number: 2023:DHC:2375-DB

45. Proceeding further with the challenge to the impugned judgment, it was the submission of Mr. Narayan that chewing tobacco is clearly an article which is intended for human consumption and therefore constitutes ―food‖ as defined in Section 3(1)(j) of the FSSA. According to learned counsel, the principal intent of Regulation 2 .3.4 is to ensure that tobacco and nicotine are not used as ingredients in any food product. Learned counsel laid emphasis upon the fact that pan masala, undisputedly, would constitute food and would fall within the ambit of Section 3(1)(j) . Mr. Narayan laid emphasis on the subtle and yet significant distinction between the definition of food as contained in the Act in contrast to how the said expression was defined under PFA. Mr. Narayan submitted that PFA had defined food to mean ‗any article used as food or drink for human consumption including any article which ordinarily enters into or is used in the composition or preparation of human food'. According to Mr. Narayan, the FSSA defines food in a more expansive manner by defining it to mean ‗any substance which is intended for human consumption'. Emphasis was laid on Section 3(1)(j) employing the expressions ―means‖, ―includes‖ as well as ―but does not include‖. Mr. Narayan submitted that Section 3(1)(j) thus not only explicitly defines and describes food as envisioned under the Act, it also and simultaneously includes various articles which would fall within its ambit. It was also stressed that only certain articles such as animal feed, live animals, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances are LPA 742/2022 & LPA 748/2022 Page 52 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB specifically excluded. Learned counsel sought to highlight the fact that pan masala or gutka have not been placed in the list of excluded items and thus reinforcing their submission that they would fall within the ambit of food as defined.

46. It was submitted that pan masala in any case was a food product which was specifically dealt with both under the PFA as well as the Regulations framed under the Act. This, according to learned counsel, would clearly be evident from a reading of Rule 44J of the 1955 Rules and Clause 2.11.5 of the Food Products Regulations 2011. Mr. Narayan then submitted that even prior to the promulgation of the FSSA, the word ‗food' had consistently been conferred an expansive meaning. Reliance in this regard was placed on the following pertinent observations as appearing in the decision of the Supreme Court in State of Bombay v. Virkumar Gulabchand Shah14 which had held turmeric to be food stuff. This is evident from the following passages of this decision:-

also considered that tea was an article of food for the purposes 14 (1952) 2 SCC 41 LPA 742/2022 & LPA 748/2022 Page 53 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB of these laws though Darling, J. preferred to adhere to his earlier view. All three Judges also held that the provisions were wide enough to enable the Food Controller to hit at articles which were not food at all, such as sacks and tin containers (Darling, J.) so long as he was able by these means even indirectly to regulate the supply of ―food‖, but that portion of the decision does not concern us here because the laws they were interpreting were more widely phrased.

19. Now the comparison of one Act with another is dangerous, especially when the Act used for comparison is an English Act and a wartime measure, and I have no intention of falling into that error. I am concerned here with the Act before me and must interpret its provisions uninfluenced by expressions, however similar, used in other Acts. I have referred to the cases discussed above, not for purposes of comparison but to show that the terms ―food‖ and ―foodstuffs‖ can be used in both a wide and a narrow sense and that the circumstances and background can alone determine which is proper in any given case.

20. Turning to the Act with which we are concerned, it will be necessary again to advert to its history. Rule 81(2) was wide and all-embracing and the Order of 1944 clearly fell within its ambit. It is also relevant to note that one of the purposes of the Order, as disclosed in its Preamble, was to ―maintain supplies essential to the life of the community‖. As turmeric was specifically included with certain other spices, it is clear that turmeric was then considered to be a commodity essential to the life of the community, that is to say, it was considered an essential commodity and not merely a luxury which at a time of austerity could be dispensed with.

21. Then, when we turn to the Ordinance and the Act of 1946, we find from the Preamble that the legislature considered that it was still necessary--

―... to provide for the continuance ... of powers to control the production, supply and distribution of, and trade and commerce in, foodstuffs....‖ (emphasis supplied) Section 3(1) of the Act continues this theme:

22. Now I have no doubt that had the Central Government re- promulgated the Order of 1944 in 1946 after the passing of either the Ordinance or the Act of 1946, the Order would have been good. As we have seen, turmeric falls within the wider definition of ―food‖ and ―foodstuffs‖ given in a dictionary of international standing as well as in several English decisions. It is, I think, as much a ―foodstuff‖, in its wider meaning, as sausage, skins and baking powder and tea. In the face of all that I would find it difficult to hold that an article like turmeric cannot fall within the wider meaning of the term ―foodstuffs‖. Had the Order of 1944 not specified turmeric and had it merely prohibited forward contracts in ―foodstuffs‖ I would have held, in line with the earlier tea case, that that is not a proper way of penalising a man for trading in an article which would not ordinarily be considered as a foodstuff. But in the face of the Order of 1944, which specifically includes turmeric, no one can complain that his attention was not drawn to the prohibition of trading in this particular commodity and if, in spite of that, he chooses to disregard the Order and test its validity in a court of law, he can hardly complain that he was trapped or taken unawares; whatever he may have thought he was at any rate placed on his guard. As I see it, the test here is whether the Order of 1944 would have been a good order had it been re- promulgated after the Ordinance of 1946. In my opinion, it would, and from that it follows that it is saved by the saving clauses of the Ordinance and the Act.

23. I have already set out Section 5 of the Ordinance. In my opinion, the Order of 1944 falls within its purview, and if it is saved by that, it is equally saved by Section 17(2) of the Act. The section is in these terms:

24. In my opinion, the conviction was good and the High Court was wrong in setting it aside, but though the matter has no relevance here because of the undertaking given by the learned Solicitor General not to proceed against the respondent any further in this matter, I think it right to observe that the attitude of the learned English Judges in the first tea case would not be without relevance on the question of sentence in many cases of this kind. There can, I think, be no doubt that businessmen who are not lawyers might well be misled into thinking that the Ordinance and the Act did not intend to keep the Order of 1944 alive because the Order related to certain specified spices while the Ordinance and the Act changed the nomenclature and limited themselves to ―foodstuffs‖, a term which, on a narrow view, would not include condiments and spices. However, these observations are not relevant here because we are not asked to restore either the conviction or the sentence. In view of that, there will be no further order and the acquittal will be left as it stands.‖

47. Mr. Narayan then referred to the decision of the Supreme Court in Pyarli K. Tejani v. Mahadeo Ramchandra Dange15 which had found supari to be ―food‖ under PFA. Learned counsel submitted that the Constitution Bench in Pyarli K. Tejani had squarely rejected the contention that the word ‗food' under the PFA was liable to be understood as being confined to articles which were consumed for nourishment and taste. The relevant extracts from the said decision are extracted hereinbelow: -

We are here concerned with a law regulating adulteration of food which affects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines ―food‖ very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word ―food‖ is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish by men for taste and nourishment? It is. And so it is food. Without tarrying further on this unusual argument we hold that supari is food within the meaning of Section 2(v) of the Act.‖

48. Mr. Narayan proceeded further to contend that the nourishment argument was in any case rendered a death knell by the Supreme Court in State of Tamil Nadu vs. Krishnamurthy16 which had enunciated the test to be whether the article in question is generally or commonly used for human consumption. The relevant extracts from the decision of State of Tamil Nadu are set out hereunder: -

it is enough if it is generally or commonly used for human consumption or in the preparation of human food. Where an article is generally or commonly not used for human consumption or in the preparation of human food but for some other purpose, notwithstanding that it may be capable of being used, on rare occasions, for human consumption or in the preparation of human food, it may be said, depending on the facts and circumstances of the case, that it is not ―food‖. In such a case the question whether it is intended for human consumption or in the preparation of human food may become material. But where the article is one which is generally or commonly used for human consumption or in the preparation of human food, there can be no question but that the article is ―food‖. Gingelly oil, mixed or not with groundnut oil or some other oil, whether described or exhibited as an article of food for human consumption or as an article for external use only is ―food‖ within the meaning of the definition contained in Section 2(v) of the Act.‖ LPA 742/2022 & LPA 748/2022 Page 58 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

49. It was submitted that the tests propounded in Pyarli K. Tejani were then reiterated by the Supreme Court in Krishna Gopal Sharma & Anr. v. Govt. of NCT of Delhi17 where the Supreme Court held that both pan masala as well as mouth freshener would undoubtedly fall within the ambit of food as defined under the PFA. The relevant parts of the aforesaid judgment are reproduced hereinbelow: -

50. Mr. Narayan further submitted that if any doubt could be said to be existing on this issue, the same clearly came to be rendered a quietus by the Supreme Court in its decision in Godawat. Reliance was placed on the following observations as entered in that decision: -

51. Turning then to the judgments rendered by various High Courts on the subject, Mr. Narayan, firstly drew the attention of the Court to the decision rendered by a Division Bench of the Bombay High Court in Dhariwal Industries Limited & Anr. v. State of Maharashtra & Ors.18 Dhariwal Industries was dealing with the validity of an order issued by the Commissioner of Food Safety, Maharashtra, in terms of which by invoking Section 30(2)(a), it had prohibited the manufacture, storage, distribution and sale of gutka or pan masala containing either tobacco and nicotine. Dealing firstly with the aspect 18 2013(1)Mh.L.J. 461 LPA 742/2022 & LPA 748/2022 Page 61 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB of food as defined under the FSSA, the Bombay High Court held as follows: -

52. Their Lordships then proceeded to hold on the validity of the ban in the following terms: -

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.‖

53. The orders passed in Ankur Gutka were also taken into consideration as would be evident from the following passage of the aforesaid decision. Their Lordships ultimately proceeded to hold as under:-

54. Mr. Narayan also sought to draw sustenance from the decision rendered by the Madras High Court in J. Anbazhagan v. The Union of India & Ors.19 The said decision was rendered on a Public Interest Litigation which came to be instituted before the said High Court and sought the constitution of a Special Investigating Team to take steps to cease banned articles such as gutka and pan masala. While dealing with the aforesaid issue, the Madras High Court referred to Regulation 2 .3.4 and also took notice of the orders passed in Ankur Gutka and Central Arecanut. It then proceeded to observe as follows: -

Neutral Citation Number: 2023:DHC:2375-DB

82. It is well settled that the endeavour of the Court should be to harmonize two Acts seemingly in conflict. Of course, in this case there does not appear to be any conflict between COTA and the Food Safety Act. COTA is in addition to and not in derogation of other laws relating to food products. There is no non obstante clause in COTA which excludes the operation of other Acts.

83. Considering the harmful effects of consumption of chewable tobacco, such as gutkha, which leads to fatal ailments such as cancer, this court cannot shut its eyes to the malaise of illegal manufacture and sale of gutkha within the jurisdiction of this High Court, i.e., the State of Tamil Nadu and the Union Territory of Puducherry.‖

55. The aforesaid passages from the judgment rendered by the Madras High Court would clearly establish that the view taken in Dhariwal Industries was adopted and affirmed. Mr. Narayan also highlighted the fact that the decision in J. Anbazhagan ultimately came to be affirmed by the Supreme Court in E. Sivakumar v. Union of India20 . The attention of the Court was also drawn to the decisions in Jeetmal Ramesh Kumar v. Commissioner, Food Safety and Drug Administration Departmnet & Ors.21 and Urmin Products Pvt. Ltd. V. The Commissioner of Food Safety & Anr.22 in which J. Anbazhagan was followed

56. Mr. Narayan also placed reliance upon the judgment rendered by the Telangana High Court in Sri Kamadhenu Traders v. State of 20 (2018) 7 SCC 365 21 2019 SCC OnLine Madras 18993 22 W.No. 3351/2019 LPA 742/2022 & LPA 748/2022 Page 68 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB Telangana23 where while dealing with an identical banning order the said High Court had held as under: -

57. In so far as the contrarian views which had been taken by the various other High Courts, Mr. Narayan referred to Annexure A to his written submissions and sought to distinguish those judgments along the following lines. While dealing with the decision rendered by the Patna High in M/s Omkar Agency v. The Food Safety and Standards Authority of India24 , it was submitted that the notification which had been impugned in those proceedings had banned all forms of pan masala and the same clearly did not stand restricted to those which contained tobacco or nicotine. It was further pointed out that the aforesaid decision was, in any case, rendered prior to the order passed by the Supreme Court on 23 September 2016 in terms of which the prohibition on chewing tobacco had been reiterated. Learned counsel also the sought to assail the correctness of the view expressed in that decision since it had failed to notice the judgment rendered by a learned Judge of that High Court itself in Lal Babu Yadav v. State of Bihar25 which had upheld the ban.

2016 SCC OnLine Pat 9231 25 2012 SCC OnLine Pat 1265 LPA 742/2022 & LPA 748/2022 Page 70 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

58. Turning then to the judgment rendered by the Calcutta High Court in Sanjay Anjay Stores v. Union of India & Ors.26 , learned counsel submitted that the aforesaid decision proceeds on the premise that tobacco is not food, and that food must be construed as only those products which are a source of nutrition or energy. According to Mr. Narayan, the aforesaid view is clearly contrary to the expansive interpretation as placed upon the said word by the Supreme Court in the decisions aforenoted and which had held that all articles which are usually used for human consumption would be liable to be understood as food and that the said expression could not stand restricted only to those articles which may have a nutritive value or function.

59. Insofar as the judgment of the Calcutta High Court in Prabhat Zarda Factory India Pvt. Ltd. v. The LG & Ors.27 is concerned, it was the submission of Mr. Narayan that the same had merely followed the judgment in Sanjay Anjay Stores. Drawing the attention of the Court to the decision rendered by the Gauhati High Court in Dharampal Satyapal Ltd. & Anr. v. State of Assam & Anr.28, Mr. Narayan submitted that the Gauhati High Court had struck down a State legislation which sought to regulate chewing tobacco on the ground that COTPA occupied the entire field. According to Mr. Narayan , the said decision clearly fails to bear in consideration the provisions of Regulations 2.3.4 and the obligation of the State Governments to enforce the same in light of the orders passed by the 26 2017 SCC OnLine Cal 16323 27 2017 SCC OnLine Cal 6957 28 2017 SCC OnLine Gau 1196 LPA 742/2022 & LPA 748/2022 Page 71 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB Supreme Court in Ankur Gutka and Central Arecanut. It was submitted that as would be evident from a reading of the aforesaid judgment, those orders were neither noticed nor considered.

60. Mr. Narayan also assailed the correctness of the view expressed by a learned Single Judge of the Kerala High Court in Joshy KV & Ors. v. State of Kerala & Ors.29 and contended that aforesaid judgment clearly does not merit acceptance since it was rendered per incuriam and fails to notice the judgment pronounced by another Single Judge of the same High Court in All Kerala Tobacco Dealers‟ Association v. State of Kerala30 .

61. Mr. Narayan also assailed the correctness of the judgment rendered by the learned Single Judge of the Andhra Pradesh High Court in Uppara Veerendra v. State of Andhra Pradesh31 on the ground that the said judgment also failed to take into consideration the orders passed by the Supreme Court and in any case fails to notice the judgment rendered by the Division Bench of that Court itself in Dasa Shekar v. State of Andhra Pradesh.32 . According to Mr. Narayan, Godawat as well as the judgments rendered by the Bombay, Madras and Telangana High Courts clearly commend acceptance since they had upon a due consideration of the various decisions rendered in the backdrop of the provisions contained in the FSSA come to the conclusion that ―food‖ is a word of very wide import coupled with the 29 (2013) 1 KL3 244 30 (2016) 2 SCC 161 31 2021 SCC OnLine AP 4005 32 2021 SCC OnLine AP 2907 LPA 742/2022 & LPA 748/2022 Page 72 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB fact that pan masala had, in any case, been recognized as falling within its ambit by the Supreme Court in Godawat itself. It was Mr. Narayan's submission that the judgments which have taken a divergent view have failed to appreciate the intent of Regulation 2 .3.4 which clearly prohibited the introduction, incorporation or mixing of tobacco or nicotine in any food product. Learned counsel submitted that the moment tobacco or nicotine is introduced in pan masala, a product which is undoubtedly covered under the FSSA, the result would clearly be contrary to the unambiguous statutory injunct comprised in Regulation 2 .3.4 of the Prohibition Regulations 2011.

62. According to learned counsel, the learned Single Judge clearly erred in defining the inquiry to be ―Whether tobacco would fall within the definition of food‖. Mr. Narayan submitted that the entire focus of the impugned Notification was on the introduction of tobacco in a food article and thus falling foul of the statutory injunction placed by Regulation 2 .3.4. According to learned counsel, the learned Single Judge has clearly embarked on a wholly incorrect path while proceeding to test whether tobacco could be construed or interpreted as ―food‖. This, according to Mr. Narayan, is palpably clear from the findings as recorded in paragraph 218. According to learned counsel, the issue of whether FSSA and the Regulations framed thereunder were intended to regulate or prescribe standards for the use tobacco was clearly misplaced. That, according to learned counsel, was clearly neither the scope nor the intent of the Impugned Notifications. It was his submissions that the solitary question which could be recognized LPA 742/2022 & LPA 748/2022 Page 73 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB to have arisen was whether pan masala when mixed along with tobacco or nicotine could be said to be an article which would fall within the ambit of Regulation 2 .3.4 and consequently whether the Food Safety Authority could in exercise of powers conferred by Section 30(2)(a) have issued an order banning its manufacture, distribution, and sale.

63. Mr. Narayan further submitted that the view taken by the learned Judge that the power to prohibit as contained in Section 30(2)(a) is temporary and fleeting in character is also untenable. According to learned counsel, the reliance placed by the Court on the decision in Himat Lal K. Shah v. Commissioner of Police, Ahmedabad & Anr.33 as well as Omkar Agency was clearly misconceived since those were decisions rendered in a wholly different statutory context. According to learned counsel, the ultimate findings returned on this score failed to bear in mind the undisputed fact that Section 30(2)(a) expressly confers a power on the Food Safety Authorities to prohibit and ban the manufacture, storage, distribution or sale of any food article in the interest of public health.

64. Mr. Narayan also questioned the correctness of the view expressed by the learned Single Judge while dealing with the interplay between the provisions of COTPA and FSSA. It was at the outset submitted that the appellants had never contended before the learned Single Judge that COTPA stood impliedly repealed by the FSSA. In 33 (1973) 1 SCC 227 LPA 742/2022 & LPA 748/2022 Page 74 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB fact, it was vehemently contended that the aforesaid findings have come to be returned by the learned Single Judge even though no such submission had been addressed or made by the appellants in that regard.

65. Mr. Narayan then submitted that notwithstanding the fact that COTPA does itemise pan masala and gutka in its Schedule, that alone would not justify the prohibition in Regulation 2 .3.4 being disregarded. According to Mr. Narayan, on a due consideration of the two legislations, it would be apparent that they clearly operate upon different subject matters and over well-defined fields. According to Mr. Narayan, it would be wholly incorrect to interpret or construe the provisions of COTPA in a manner which would either defeat the intent of the FSSA or render its provisions or the regulations framed thereunder as being otiose.

66. It was submitted that the learned Single Judge also failed to appreciate the overriding effect conferred upon the provisions of the FSSA by virtue of Section 89 thereof. It was urged that undisputedly FSSA came to be promulgated later in point of time to COTPA. According to Mr. Narayan, the FSSA being a later special food law would clearly override COTPA. Reliance in this respect was placed on the judgment of the Supreme Court in Ashoka Marketing v. Punjab National Bank34 .

(1994) 4 SCC 406 LPA 742/2022 & LPA 748/2022 Page 75 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

67. Turing then to the question of whether the Impugned Notifications could be said to be violative of Article 14 , Mr. Narayan addressed the following submissions. It was submitted that the writ petitioners had contended that even though it may be asserted that ―smoking tobacco‖ is a more benign substance and poses lesser dangers to health than smokeless tobacco, the appellants have chosen to ban only the latter and thus offending Article 14. It was submitted that undisputedly both smoking as well as smokeless tobacco have a deleterious effect on health and welfare of individuals. According to Mr. Narayan, if the contentions addressed on this score were to be accepted, it would essentially amount to the principle of negative equality being invoked. It was submitted that the respondents had on due consideration of the Expert Committee Reports taken note of the larger impact which smokeless tobacco had on consumers and, consequently, compelling the respondents to take emergent steps in respect of that category. Mr. Narayan submitted that the appellant had borne in consideration the number of users of smokeless tobacco which were almost double in number compared to those using other smoking products, the Quit Ratio for users of smokeless tobacco being much lower, the GATS survey which was undertaken all of which clearly evidenced and justified the ban being introduced.

68. It was submitted that the classification and subcategories which were made by the respondents were not only was based on intelligible differentia but had a clear nexus with the object sought to be achieved. It was his submission that the balancing of competing imperatives and LPA 742/2022 & LPA 748/2022 Page 76 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the nature of regulatory measures which are to be adopted is one which clearly lay within the province of the executive. According to Mr. Narayan, the respondents had taken into consideration the findings and conclusions recorded in various scientific reports and studies and which clearly warranted emergent steps being taken to curb the use of smokeless tobacco. In any case it was his submission that in the absence of the classification suffering from patent or manifest arbitrariness, the Notification clearly did not warrant being set aside on this score.

D. SUBMISSIONS ADDRESSED ON BEHALF OF UOI

69. Mr. Singh, the learned CGSC advanced submissions on the connected appeal on behalf of the Union which too has assailed the correctness of the view expressed by the learned Single Judge in the impugned judgment. According to Mr. Singh, the principal question which formed the subject matter of the present dispute was whether the products which were sought to be prohibited and regulated in terms of the Impugned Notifications could be said to be ―food‖ within the meaning of Section 3(1)(j) of the FSSA. According to Mr. Singh, the learned Single Judge proceeded to frame a question as to whether tobacco and tobacco products could be termed as ―food‖. It was his submission that the question as framed itself loses sight of the fundamental question which arose and which was whether the use of tobacco in any food product could be permitted under the FSSA.

Neutral Citation Number: 2023:DHC:2375-DB

70. According to Mr. Singh, the definition of food under the FSSA takes within its fold any item which is intended for human consumption. Learned counsel submitted that both under the PFA as well as the FSSA, courts have consistently adopted the aforesaid test. It was also highlighted that Section 3(1)(j) of the FSSA is clearly couched in more expansive terms than the definition of ‗food' as it appeared in the repealed PFA. Mr. Singh submitted that Section 2(v) of the PFA had defined it to mean any article which ordinarily enters into or is used in the composition or preparation of human food. The FSSA, according to learned counsel, on the other hand, adopts the principle of any substance intended for human consumption to be the primary test for understanding whether any article would constitute food for the purposes of the said enactment. This, according to Mr. Singh, is in tune with the principles which had been enunciated by the Supreme Court in Pyarli K. Tejani and R. Krishnamurthy.

71. Learned counsel further submitted that any doubt which may have existed on the question of whether pan masala would constitute food in any case stands definitively laid to rest in light of the judgment in Godawat. Mr. Singh then submitted that both in Dhariwal Industries as well as J. Anbazhagan, it was the aforenoted principles which were borne in consideration by the respective High Courts who held that gutka would constitute food. Learned counsel also placed reliance on the decision rendered by the Telangana High Court in Sri Kamadhenu Traders which had categorically concluded that gutka / pan masala which contains tobacco would all fall within the ambit of LPA 742/2022 & LPA 748/2022 Page 78 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB food as defined under the FSSA. Mr. Singh also sought to draw sustenance from the decision of the Bombay High Court in Mohammad Yamin Naeem Mohammad vs. The State of Maharashtra35 which too had returned findings consistent with the same line of reasoning and had in clearly and unequivocal terms expressed its dissent from decisions of other High Courts which had held to the contrary.

72. It was further submitted that the correctness of the judgment rendered by the learned Single Judge is also liable to be tested bearing in mind the undisputed fact that the validity of Regulation 2 .3.4 had neither been questioned nor assailed. It was Mr. Singh's contention that once the said Regulation was recognised as constituting the principal plank for examining the validity of the challenge which stood raised, it would be evident that as soon as tobacco or nicotine came to be added to pan masala, it must necessarily be accepted to be food and the statutory prohibition as enshrined in Regulation 2 .3.4 would be violated.

73. Turning then to the scheme and the ambit of COTPA and FSSA, learned counsel submitted that the former essentially seeks to regulate a host of tobacco products. It was his submission that the regulatory measures which constitute the body of COTPA have clearly been misunderstood by the petitioners as a source of entitlement to manufacture and sell tobacco products. Mr. Singh 35 2021 SCC OnLine Bom 26 LPA 742/2022 & LPA 748/2022 Page 79 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB submitted that as would be apparent from the various provisions of COTPA, the said enactment is clearly aimed at discouraging the public at large from consuming tobacco-based products. That, according to learned counsel, cannot be read conversely to amount to a conferment of a right upon the petitioners to engage in the manufacture, distribution and sale of tobacco products.

74. Mr. Singh then traced the history of the promulgation of PFA, COTPA and FSSA to submit that PFA recognized different categories of food including those for which standards had been fixed as also those for which no parameters stood prescribed. Mr. Singh highlighted the fact that pan masala was identified as a standardized food items in terms of Rule 5 read with A.30 of Appendix-A. This, according to Mr. Singh clearly established that the manufacture and sale of chewing tobacco or pan masala as an item of food always stood regulated even under PFA and was subject to appropriate permissions and licenses being obtained from the competent authority.

75. Mr. Singh submitted that trade and commerce as well as production, supply and distribution of cigarettes is essentially regulated by the Cigarettes (Regulation of Production, Supply & Distribution) Act, 197536. It was submitted that upon a subsequent review of the said legislation, a Parliamentary Committee had found that the aforesaid statute had proven to be ineffective since it had failed to have an impact on the avowed objective of making the 36 The 1975 Act LPA 742/2022 & LPA 748/2022 Page 80 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB smoking public aware of the numerous health hazards connected therewith. According to Mr. Singh, it was the recommendations framed by this committee for promulgation of a broader and more effective legislation which formed the percussor for the enactment of COTPA. Learned counsel submitted that COTPA which came to be promulgated in 2003, adopted a different strategy in order to educate people who consumed tobacco and consequently framed novel and broader regulatory provisions to achieve the stated goal. It was also pointed out that the insertion of Rule 44J of the PFA Rules with effect from 21 August 2006 was a categorical reiteration of the intent of the statute to ensure that the use of tobacco and nicotine as ingredients in food products is prohibited. Mr. Singh submitted that the aforesaid statutory imperative was only reiterated by Regulation 2 .3.4.

76. It was then submitted that COTPA was enacted primarily for discouraging the use and consumption of products that contained tobacco. FSSA on the other hand, according to Mr. Singh, is a comprehensive legislation which deals with food and all aspects relating thereto. Assailing the findings returned by the learned Single Judge who had held that COTPA would prevail over FSSA insofar as tobacco is concerned, it was the submission of Mr. Singh that there is, in fact, no conflict whatsoever between the two legislations which operate in separate and distinct fields. Mr. Singh submitted that while FSSA is concerned with matters relating to safe and wholesome food, COTPA introduces regulatory measures which are concerned with the sale, purchase and advertising of various tobacco products specified in LPA 742/2022 & LPA 748/2022 Page 81 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the Schedule. According to Mr. Singh, the field of food is to be governed solely by the provisions of the FSSA and the various Regulations framed thereunder and thus it would be wholly incorrect to assume that COTPA would override the provisions of the former or that it would sanction the addition of tobacco or nicotine in a food article.

77. Mr. Singh also questioned the correctness of the conclusions recorded by the learned Judge in light in light of Dhariwal Industries and Mohammad Yamin to submit that gutka and pan masala with tobacco or nicotine would clearly be governed by the FSSA by virtue of being articles of food. Stress was also laid upon the aforenoted two decisions which had also alluded to the overriding effect conferred by Section 89 on the provisions of the FSSA.

78. The validity of the impugned notification was also sought to be sustained by Mr. Singh referring to Article 144 of the Constitution and the obligation of all authorities to act in aid of orders passed by the Supreme Court. According to Mr. Singh, the various orders passed in Ankur Gutka and Central Arecanut were liable to be strictly implemented and enforced by all authorities throughout the territory of India. It was his submission that all States and Union Territories were obliged and in fact placed under a duty to ensure that the ban as imposed by the Supreme Court was effectively enforced and implemented.

Neutral Citation Number: 2023:DHC:2375-DB

79. Mr. Singh also questioned the conclusions recorded by the learned Judge who had held that tobacco was a subject which would stand governed exclusively by COTPA by virtue of the declaration of expediency as enshrined therein. Mr. Singh submitted that a declaration in terms of Entry-52 of List I cannot possibly be read as an intent to exercise monopoly over the entire field and of no other legislation being framed in a legitimate exercise of legislative powers. It was his submission that if the aforesaid argument were to be accepted, the various provisions which are made with respect to tobacco and nicotine under the Environment (Protection) Act, 198637 and the rules made there under the Drugs and Cosmetics Act 194038 would also be rendered ultra vires and illegal. Reliance in this respect was placed upon the following pertinent observations as rendered by the Madras High Court in Designated Officer, food safety & Drugs Control Dept. v. Jayavilas Tobacco Traders LLP39:-

COTPA deals with Tobacco Industry, the subsequent enactment, viz. FSS Act deals with the Food Industry. There would arise an essential conflict between the provisions of these two enactments if one is to reach a conclusion that tobacco would be food within the meaning of Section 3(j) of the FSS Act. Such conflict, in our opinion, has to be resolved by attempting to harmonise the provisions of that two enactments. Both the enactments are made by the Parliament invoking Entry 52 and there is a chance of there LPA 742/2022 & LPA 748/2022 Page 84 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB being some overlapping in certain areas. That by itself cannot, in our opinion, denude the Parliament of the power to enact a Law controlling a different industry invoking Entry 52 of List I of Schedule VII of the Constitution of India.

23. The submissions of the learned Senior Counsel appearing for the petitioner in the Writ Petitions, to a great extent proceed on the power of the State Legislature to enact a Law on the same subject covered by the Law enacted by the Parliament under Entry 52. As we had already observed such power is not available to the State Legislatures, unless the procedure under Article 254 is followed. Therefore, the theory of occupied field would not apply, in the light of the above discussion, we answer the first issue to the effect that the Parliament is not denuded of the power to make a Law invoking Entry 52 in respect of a particular class of Industry after having made a Law invoking Entry 52 taking over a particular Industry merely because there is a chance of overlapping of the provisions of the two enactments.‖

80. Mr. Singh also placed reliance upon the following observations as appearing in the aforenoted decision and which while dealing with the aspect of incidental entrenchment had observed as under: -

Of course there is a possibility of over lapping, of the provisions of LPA 742/2022 & LPA 748/2022 Page 85 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB these two enactments particularly when it relates to chewing Tobacco, Gutka or Pan Masala, since those products could be brought within the meaning of the expanded definition of food under Section 3(j) of FSS Act. We are unable to see any conflict between the two enactments. If a Tobacco product answers the definition of food under the FSS Act , the manufacture or sale or distribution of it, could be regulated by the Commissioner of Food Safety under the powers invested in him under the regulations and the provisions contained in Section 30 (2)(a) .

26. A contention is raised by the learned Senior Counsel appearing for the petitioner in the Writ Petitions to the effect that there is a conflict between the provisions of the two enactments as the provisions of the two enactments stand and the objective sought to be achieved by the two enactments. We are unable to see any conflict between the two enactments except for a remote chance of there being overlapping in terms of implementation of the provisions of the enactments. This, as already stated, should be resolved by adopting the Principle of harmonious construction that attempt should be to reconcile the provisions of the enactments with a view to advance the objectives of the enactment.

27. A Division Bench of this Court in Government of Tamil Nadu v. K. Sevanthinatha Pandarasannathi , reported in 2009 SCC OnLine Mad 597, had an occasion to consider the theory of incidental encroachment while dealing with amendment to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 , which sought to introduce a prohibition disqualifying a non- citizen from being a trustee of a Hindu Religious Institution within the State which was challenged on the ground that it amounted to transgression of rights of foreigners, which would be covered by Entry 17 of List I of the Schedule VII, which deals with citizenship naturalization and aliens and therefore, the State Legislature was incompetent to enact such law.‖

81. Mr. Singh, lastly argued that numerous scientific and authoritative reports had repeatedly expounded on the irreversible and harmful effects flowing from the consumption of gutka, chewing tobacco and other like products. It was submitted that it would be a LPA 742/2022 & LPA 748/2022 Page 86 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB travesty of justice if the writ petitioners were recognized to have a right to carry on trade and business in such products.

82. Mr. Singh submitted that after the Supreme Court came to render its decision in Godawat, various questions were raised in Parliament with respect to the proposed course of action liable to be adopted by the Union Government. Referring to the 14th Lok Sabha Debates and which records the proceedings as they unfolded on 10 May 2006, it was pointed that the House was informed that the Union Government was proposing an appropriate amendment in the 1955 Rules in order to empower the Union Government to effectively introduce a ban. According to Mr. Singh, the introduction of Rule 44J in the 1955 Rules was in implementation of the aforesaid policy decision taken by the Union Government.

83. Reliance was also placed on a decision rendered by this Court in Nava Bans Sar Vyapar Association v. Union of India & Ors.40 to submit that tobacco was considered to be a substance so perniciously harmful that trade in the same was liable to be considered as res extra commercium. Mr. Singh placed reliance upon the following passages from the aforesaid decision: -

Undoubtedly, the Supreme Court in Godawat Pan Masala Products I.P. Ltd. (supra) maintained that the legislature/government having chosen not to ban the sale of tobacco products except to minors, trade in tobacco could not be classified as res extra commercium i.e. a business in crime, but the principles laid down in Cooverjee B. Bharucha v. Excise Commr., Ajmer AIR 1954 SC 220 and P.N. Krishna Lal v. Govt. of Kerala 1995 Supp (2) SCC 187, that there is no fundamental right to trade in dangerous and noxious substances, would nevertheless apply to tobacco which has now been universally accepted as a major public health hazard.‖

84. Mr. Singh also sought to buttress the aforesaid contention in terms of the following observations as rendered by the Supreme Court in an interim order passed upon Health for Millions Trust v. Union of India41 :-

85. The attention of the Court was also drawn to the following passages from the judgment of the Supreme Court in Union of India & Ors. v. Unicorn Industries42 :-

However, for those who are addicted to these products or are already affected by premalignant lesions, educational interventions to encourage stopping the habit are essential. Additionally, chemopreventive interventions are being explored. Retinoids, NSAIDS and green tea are among the promising agents (Garewal, 1994; IUSHNCC, 1997; Papadimitrakopoulou and Hong, 1997; Lin et al., 2002a). Although a large percentage of lesions did respond to treatment, recurrence after terminating the chemopreventive regime was also observed (Sankaranarayanan et al., 1997), perhaps due in part to continuation of the addictive habit.

As with all cancers, early diagnosis is important for successful treatment of oral cancer, as its prognosis is still very poor. There is, nowadays, a strong drive to apply proteomics technology to molecular diagnosis of cancer. Expression profiling of tumour tissues, molecular classification of tumours and identification of markers to allow early detection, sensitive diagnosis and effective treatment are now being explored for oral cancers. Genes with significant differences in expression levels between normal, dysplastic and tumour samples have been reported and this should help in better understanding the progression of oral squamous cell carcinoma (Kuo et al., 2002; Leethanakul et al., 2003).

DNA aneuploidy in oral leucoplakia in Caucasian tobacco users has been found to signal a very high risk for subsequent development of oral squamous cell carcinomas and associated mortality (Sudbo and Reith, 2003; Sudbo et LPA 742/2022 & LPA 748/2022 Page 90 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB al., 2004). A risk assessment model to predict progression of premalignant lesions that includes histology and a score combining chromosomal polysomy, expression and loss of heterozygosity on 3p or 9p has also been described (Lee et al., 2000; Rosin et al., 2002). Once diagnosed, these premalignant lesions could be treated at a much earlier stage by chemopreventive agents, surgery, chemotherapy and/or intense radiotherapy to prevent new lesions and premalignant lesions from progressing to invasive cancer.

Conclusions Gutkha and pan masala have flooded the Indian market as cheap and convenient BQ substitutes and become popular across all age groups wherever this habit is practised. There is sufficient evidence that chewing of tobacco with lime, BQ with tobacco, BQ without tobacco and areca nut are carcinogenic in humans (IARC, 1985, 2004). These evaluations in conjunction with the available evidence on the BQ substitutes gutkha and pan masala implicates them as potent carcinogenic mixtures that can cause oral cancer. Additionally, these products are addictive and enhance the early appearance of OSF, especially so in young users who could be more susceptible to the disease. Although recently some curbs have been put on the manufacture and sale of these products, urgent action needs be taken to permanently ban gutkha and pan masala, together with the other well- established oral cancer-causing tobacco products. Finally, as the consequences of these habits are significant and likely to intensify in the future, an emphasis on education aimed at reducing or eliminating the use of these products as well as home-made preparations should be accelerated.‖

28. Recently, the Department of Oral Medicines and Radiology, Dental Institute, Rajendra Institute of Medical Sciences, Ranchi has through its experts, namely, Anjani Kumar Shukla, Tanya Khaitan, Prashant Gupta and Shantala R. Naik conducted a study on the subject ―Smokeless Tobacco and Its Adverse Effects on Haematological Parameters: A Cross-Sectional Study [ Advances LPA 742/2022 & LPA 748/2022 Page 91 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB in Preventive Medicine 2019.] ‖. The study paper considered the consumption of smokeless tobacco (SLT) in various forms in India such as pan (betel quid) with tobacco, zarda, pan masala, khaini, arecanut. After conducting an in-depth analysis, the paper concludes and recommends as under:

29. It was sought to be argued on behalf of the manufacturers of pan masala without tobacco, that the pan masala without tobacco stands on a different pedestal than the pan masala with tobacco. It was sought to be argued that, pan masala without tobacco cannot be considered to be hazardous to health. The Department of Head and Neck Surgery, Tata Memorial Hospital, Mumbai through its experts Garg A., Chaturvedi P. Mishra A. and Datta S. had conducted a study on ―A Review on Harmful Effects of Pan Masala [ Indian Journal of Cancer (October-December 2015), Vol. 52, Issue 4.] ‖. It is to be noted that this study is of ―pan masala without tobacco‖. It will be apposite to refer to the following observations of the said report:

30. The study which has been conducted in 2004, found that gutkha and pan masala have been one of the major causes of oral LPA 742/2022 & LPA 748/2022 Page 93 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB cancer. The Oncologists as early as in 2004 had strongly advocated banning of gutkha and pan masala. They further find that banning the manufacture and sale of these products would reduce oral cancer incidence rates. It is found that gutkha and pan masala have flooded the Indian markets and become popular amongst all age groups. It is observed that pan masala with tobacco as well as without tobacco have been found to be having a potent carcinogenic mixtures that can cause oral cancer. It further found that, these products are an addictive and enhance the early appearance of oral sub-mucous fibrosis (OSMF). It is especially so in the young users who could be more susceptible to the disease.

31. The report further finds that, in the National Family Health Survey-2, it has been found that 21% of people over 15 years of age consumed pan masala or tobacco. The report finds that, though advertising tobacco products including pan masala containing tobacco is banned in India since 1-5-2004, to bypass this ban, tobacco companies are advertising pan masala ostensibly without tobacco, heavily in all forms of media. It has been found that, after the ban on pan masala and gutkha, the sale has come down. The 2016 report finds that, in Mumbai, after the ban on pan masala and gutkha, the sale has come down and the percentage of users quitting and reducing the habit was 23.53% and 55.88% respectively.

32. It could thus be seen that, by scientific research conducted by experts in the field, it has been found that the consumption of pan masala with tobacco as well as pan masala sans tobacco is hazardous to health. It has further been found that, the percentage of teenagers consuming the hazardous product was very high and as such exposing a large chunk of young population of this country to the risk of oral cancer. Taking into consideration this aspect, if the State has decided to withdraw the exemption granted for manufacture of such products, we fail to understand as to how it can be said to be not in the public interest.

36. The Appellate Bench of the High Court observed that some of the notifications providing modalities for exemption were issued subsequent to the enactment of Section 154 of the Finance Act, LPA 742/2022 & LPA 748/2022 Page 94 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB 2003 and, therefore, Section 154 of the Finance Act, 2003 has no relevance in the said case. However, the Appellate Bench does not find it necessary to even make a reference to the judgment of this Court which was relied on by the learned Single Judge while dismissing the writ petitions and which is specifically put in service by the Union of India. We are unable to appreciate as to how the Appellate Bench of the Gauhati High Court finds that withdrawal of exemption in respect of ―pan masala with tobacco‖ is not in the public interest. The legislative policy as reflected in Section 154 of the Finance Act was to withdraw the exemption granted to the manufacturers of cigarettes as well as pan masala with tobacco and that too with retrospective effect. Apart from the fact that, it is a common knowledge that tobacco is highly hazardous, the legislative intent was also unambiguous. In these circumstances, the finding of the High Court that the withdrawal of exemption for tobacco products was not in the public interest, to say the least is shocking. We find that the approach of the Appellate Bench of the High Court was totally unsustainable.

37. As already discussed hereinabove, we have no hesitation to hold that the withdrawal of the exemption to the pan masala with tobacco and pan masala sans tobacco is in the larger public interest. As such, the doctrine of promissory estoppel could not have been invoked in the present matter. The State could not be compelled to continue the exemption, though it was satisfied that it was not in the public interest to do so. The larger public interest would outweigh an individual loss, if any. In that view of the matter we find that the appeals deserve to be allowed.‖

86. In view of the aforesaid, it was Mr. Singh's submission that in light of the unanimity of scientific and judicial opinion, the subject products must clearly be recognized as being hazardous, dangerous and harmful to public health and the trade business and commerce in the same cannot be accorded the status of a fundamental right.

Neutral Citation Number: 2023:DHC:2375-DB E. STAND OF THE WRIT PETITIONERS

87. Supporting the judgment rendered by the learned Judge and appearing for the writ petitioners, Mr.Vaidyanathan, Mr. Singhvi and Mr. Kohli, learned senior counsels, addressed the following submissions.

88. Mr. Vaidyanathan, learned senior counsel appearing for the writ petitioners had principally addressed submissions relating to the declaration of expediency as embodied in COTPA, the doctrine of occupied field and the contention of the writ petitioners that the entire gamut of activities pertaining to tobacco stand governed exclusively by COTPA. As would be evident from the written submissions which were filed in the writ petition as well as those which have been tendered in these proceedings, the scope and ambit of COTPA and FSSA, the argument of occupied field was principally addressed in the backdrop of Entry 52 falling in List I, Entries 24, 26 and 27 falling in List II and Entry 33 of List III as placed in the Seventh Schedule to the Constitution. The submissions on this aspect proceeded along the following lines.

89. Mr. Vaidyanathan taking the Court through the Statement of Objects and Reasons as well as the Preamble of COTPA submitted that it is a legislation which is aimed at prohibiting the advertisement of cigarettes and other tobacco products as well as for the regulation of trade and commerce in and production, supply and distribution of the aforesaid. Learned senior counsel laid emphasis on the declaration LPA 742/2022 & LPA 748/2022 Page 96 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB of Parliament as embodied in the Act and evincing its intent to take over the tobacco industry as a whole. Bearing in mind the provisions made by Entries 52 and 33, it was submitted that upon a declaration being made in terms of Entry 52 of List I, it is permissible for Parliament to take over an entire industry and which would include the manufacturing and production activities related thereto as well as trade and commerce, production, supply and distribution activities relating to the said industry.

90. It was in the alternative submitted that in light of the language employed in Entries 52 and 33 falling in Lists I and III respectively, Parliament may choose to exercise the authority conferred by the aforementioned two entries and take over only some facets pertaining to the concerned industry while leaving the rest for the competent Legislature. The interplay between Entry 52 falling in List I read with Entries 26 and 27 falling in List II and Entry 33 comprised in List III, was explained with Mr. Vaidyanathan submitting that while under the constitutional framework the State Legislatures stand empowered to enact laws relating to trade and commerce within the State as well as for production, supply and distribution of goods under Entries 26 and 27 of List II, that power becomes subject to Entry 33 of List III, once Parliament has evinced its intent to take over an industry in exercise of the legislative power conferred by Entry 52 in List I.

91. The petitioners, as would be evident from the written submissions filed in the original writ proceedings, concede the legal LPA 742/2022 & LPA 748/2022 Page 97 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB position that upon such a declaration being made and Parliament taking over control of an industry in public interest, the scope of the control would ultimately have to be evaluated based on the provisions of COTPA itself. Mr. Vaidyanathan submitted that a reading of the provisions of COTPA would unerringly establish that Parliament had in fact taken over all matters pertaining to trade and commerce in and production, supply and distribution of cigarettes and other products by virtue of the authority conferred by Entry 33 falling in List III of the Seventh Schedule. It was contended that COTPA being especially enacted with reference to Entry 52 of List I read with Entry 33 of List III, it would be manifest that Parliament not only took under its control the tobacco industry as a whole, it consequently denuded the States of the jurisdiction to legislate with respect to the various products set out in the Schedule to the aforesaid enactment.

92. Mr. Vaidyanathan drew the attention of the Court to the definition of ―tobacco products‖ as contained in Section 3(p) to submit that undisputedly pan masala and gutka are clearly included in the aforesaid expression. Learned senior counsel submitted that COTPA is an all-inclusive and a ―fully occupying seamless‖ statute, regulating the entire field and every aspect relating to the defined tobacco products. Mr. Vaidyanathan referred to the statutory prohibition as contained in Sections 4 , 5 and 6 of COTPA, the restrictions introduced in terms of Section 7 and the aspect of regulation which is embodied in Sections 8 , 9 and 10 of the said enactment. It was submitted that since COTPA occupies the entire field relating to tobacco products, LPA 742/2022 & LPA 748/2022 Page 98 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB any regulation or prohibition in respect of a tobacco product or activities relating thereto must be found in COTPA alone. It was submitted that the Impugned Notifications cannot possibly be construed or read as having been promulgated in exercise of any power traceable to the provisions of COTPA. Viewed in that light Mr. Vaidyanathan would submit that the Impugned Notifications have clearly transgressed into an occupied field and consequently the learned Single Judge has correctly come to conclude that the impugned action of the appellants cannot be sustained in law.

93. Mr. Vaidyanathan further submitted that as per the submission of the appellant itself, neither raw tobacco nor pure tobaccos are products which could be regulated by them. According to learned senior counsel, if the aforesaid submission were to be accepted it would be sufficient for the Court to uphold the quashing of the Impugned Notifications since they clearly purport to deal with the aforesaid products. It was contended that the submissions addressed in this regard by the appellants are clearly untenable since they proceed on the incorrect premise that raw tobacco or pure tobacco has been taken over by Parliament under COTPA. Mr. Vaidyanathan sought to highlight the fact that COTPA evidences the intent of Parliament to take over the tobacco industry as a whole. It was submitted that scented tobacco, chewing tobacco, cigarettes and other like products would clearly fall within the expanse of the phrase ―tobacco industry‖. Learned senior counsel contended that once Parliament had taken over legislative competence with respect to the LPA 742/2022 & LPA 748/2022 Page 99 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB tobacco industry and COTPA covered the entire field, no authority purporting to exercise powers under the FSSA can possibly legislate in respect of those products.

94. It was the submission of Mr. Vaidyanathan that the term food industry as occurring in the declaration which finds place in Section 2 of the FSSA must thus be understood as not including products which are already covered by a separate legislation dealing exclusively with products of the tobacco industry. The submission in essence was that any product of the tobacco industry can neither be regulated nor its production, sale or distribution be prohibited by exercise of powers conferred by FSSA.

95. Turning then to the question of whether tobacco could be said to be food or a food product, learned senior counsel submitted that the aforesaid issue stands conclusively settled in light of the judgment rendered by the Constitution Bench of the Supreme Court in ITC Ltd. v. Agricultural Produce Market Committee43 , where it came to be categorically held that tobacco is not foodstuff and thus would not be governed by Entry 33 of List III. The aforesaid submission was addressed in the backdrop of the following observations as appearing in that decision: -

96. Mr. Kohli learned senior counsel submitted that the Supreme Court in S. Samuel, M.D., Harrisons Malayalam & Anr. v. Union of India & Ors.44 , had used the word ―foodstuff‖ interchangeably with ―food‖. In view of the aforesaid it was contended that the decision of the Supreme Court in ITC Ltd. and the passage extracted above, cannot be understood as the Supreme Court intending foodstuff to be different from food. It was additionally urged that the aforesaid decision had also enunciated the essential elements and characteristics of food to mean a product which is used for nourishment or one which satiates hunger. It was submitted that the Supreme Court had held that a stimulant like tea cannot be food. In view of the aforesaid, it was submitted by learned senior counsel that once tobacco has been found 44 (2004) 1 SCC 256 LPA 742/2022 & LPA 748/2022 Page 101 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB not be food or foodstuff, then its addition to any product cannot be considered to be violative of Regulation 2 .3.4.

97. From the written submissions which had been filed in the writ proceedings, the Court notes that it was the case of the petitioners that the basic characteristic of food are nutritive, restitutive, and promotive. Tested on the aforesaid factors, it was contended that tobacco cannot possibly be construed as food. While reiterating the aforesaid submissions before us, learned senior counsel submitted that the fundamental understanding of food cannot be expanded to include tobacco.

98. Proceeding then to the scope of Regulation 2 .3.4, it was submitted by Mr. Kohli, that the said provision prohibits the usage of tobacco and nicotine as ingredients in any food product. It was submitted that on a plain reading of the said Regulation, it is manifest that it does not seek to prohibit tobacco or nicotine. Mr. Kohli further contended that pan masala, a product which is covered under the FSSA and chewing tobacco which is governed by COTPA, on their own cannot possibly be viewed as violating Regulation 2 .3.4. According to him, the Impugned Notifications are based on a complete misconstruction of Regulation 2 .3.4 since tobacco in light of the submissions noted above is not a food product and consequently, the impugned Notifications were liable to be struck down on this fundamental ground itself.

Neutral Citation Number: 2023:DHC:2375-DB

99. The orders passed by the Supreme Court in Ankur Gutka and Central Arecanut were sought to be explained with learned senior counsel arguing that those were concerned only with gutka and pan masala mixed with chewing tobacco. It was submitted that those orders do not relate to the principal product namely, tobacco.

100. Learned senior counsel also assailed the Impugned Notifications on the ground of them being ultra vires Section 30(2)(a) of the FSSA. It was submitted that on a plain reading of the said provision, it is manifest that the same cannot be resorted to for the purposes of repeated or yearly prohibitory orders being issued. It was contended that Section 30(2)(a) only contemplates a pro tem power being exercised. It was in the aforesaid light that the writ petitioners had argued before the learned Single Judge that the Impugned Notifications had been issued in colourable exercise of powers and in manifest violation of the scope and intent of Section 30(2)(a) . The ambit of Section 30(2)(a) was explained with learned senior counsel submitting that on a reading of the said provision it clearly appears to embody three separate dimensions. According to the writ petitioners, the said aspect is evident from the said statutory provision comprising of the element of territory (either in the whole of the State or any area or part thereof), time (not exceeding one year) and scope (interest of public health, the manufacture, storage, distribution or sale and an article of food). Mr. Kohli contended that even if it were assumed for the sake of argument that Section 30(2)(a) could be resorted to for issuance of the Impugned Notifications, it would clearly be subject to LPA 742/2022 & LPA 748/2022 Page 103 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the limitations expressly embodied in that provision itself and therefore the prohibitory order could not have run beyond a period of one year. It was submitted that the appellants have in complete violation of the aforenoted express limitation repeatedly exercised that power on a yearly basis. This, according to Mr. Kohli, is one which has been correctly answered by the learned Single Judge in their favour and warrants no interference.

101. Dr. Singhvi, learned senior counsel appearing for the writ petitioners, addressed submissions on Article 14 of the Constitution and in light of the ban being restricted to smokeless tobacco. Dr. Singhvi submitted that the respondents have clearly discriminated against manufactures of smokeless tobacco since undisputedly, smoking tobacco products are equally harmful and deleterious to public health. It was his submission that the Impugned Notifications create an artificial sub-class of products and which classification cannot be sustained on any reasonable or rationale differentia. It was his submission that while Regulation 2 .3.4 prohibits the use of tobacco and nicotine as ingredients, the respondents have arbitrarily created an artificial distinction by applying its provisions only to smokeless tobacco.

102. Dr. Singhvi further submitted that no plausible reason has been proffered by the appellants as to why tobacco should not be used and understood in its plenary sense and be limited to smokeless tobacco. It was his contention that the larger constitutional issue which arises is LPA 742/2022 & LPA 748/2022 Page 104 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the burden of proof which stands placed upon the appellant to justify the artificial ―intra tobacco‖ class that stands created. Dr. Singhvi urged that there is no justification or rationale to artificially segregate ingested tobacco from inhaled tobacco for the purposes of banning, especially when both are tobacco products which are consumed by users as mild intoxicants to achieve identical results. It was thus submitted that the impugned action fails the test of a valid classification as enunciated by various precedents rendered on the scope of Article 14. It is these rival submissions which fall for consideration.

103. Since elaborate submissions appear to have been addressed before the learned Single Judge and were reiterated before us in respect of the impact of the declaration of expediency made by Parliament by virtue of Entry 52 of List I, it would be appropriate to consider the aforesaid question at the very outset.

104. However, and before proceeding ahead to do so, we deem it necessary to underline the fact that unlike the various decisions which were cited for our consideration on this aspect, and which had dealt with a conflict between a Parliamentary legislation and a State enactment, in the present case we are called upon to deal with two Parliamentary statutes and both of which carry the declaration contemplated under Entry 52 of List I. LPA 742/2022 & LPA 748/2022 Page 105 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB F. ENTRY 52 & DECLARATION OF EXPEDIENCY

105. In order to appreciate the arguments addressed and centering around the various entries in the Seventh Schedule and more particularly Entry 52 falling in List I thereof, it would be beneficial to articulate some of the fundamental and well settled principles of interpretation which govern the subject of constitutional entries. As has been repeatedly held, entries in the Seventh Schedule are not a source of legislative power. They merely delineate and broadly indicate the field of legislation. The power to legislate flows essentially from Article 246 of the Constitution. The entries broadly define the areas or the subjects in respect of which a legislation may be framed. While entries are to be conferred the widest permissible and plausible interpretation, no particular entry should be interpreted in a manner which would deprive any other entry of its content or render it ineffectual or insubstantial. When questions of conflict are raised, it is the bounden duty of the Court to strike a just balance between the scope of legislation falling in respective entries in the Lists ensuring that no entry is rendered meaningless or devoid of substance. Regard must also be had to the fact that Entry 52 erodes the power that may otherwise be exercised by a competent legislature. Courts are thus obliged to carefully discern and identify the extent and scope of the legislation that comes to be consequently framed pursuant to that declaration. This since the Constitution seeks to strike a just balance between Parliament and the individual States and thus LPA 742/2022 & LPA 748/2022 Page 106 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB ensuring that the meaning that we ascribe represents federalism in its truest form.

106. The interplay between Entry 52 of List I, Entries 26 and 27 comprised in List II and Entry 33 falling in List III was succinctly explained by the Constitution Bench in Ch. Tika Ramji vs. State of U.P.45 as follows: -

19. The argument, however, was that the word ‗industry' was a word of wide import and should be construed as including not only the process of manufacture or production but also activities antecedent thereto such as acquisition of raw materials and subsequent thereto such as disposal of the finished products of that industry. The process of acquiring raw materials was an integral part of the industrial process and was, therefore, included in the connotation of the was ‗industry' and when the Central Legislature was invested with the power to legislate in regard to sugar industry which was a controlled industry by Entry 52 of List I, that legislative power included also the power to legislate in regard to the raw material of the sugar industry, that is sugarcane, and the production, supply and distribution of sugarcane was, by reason of its being the necessary ingredient in the process of manufacture or production of sugar, within the legislative competence of the Central Legislature. Each entry in the Lists which is a category or head of the subject-matter of legislation must be construed not in a narrow or restricted sense but as widely as possible so as to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it (Vide The United Provinces v. Mst. Atiqa Begum [(1940) FCR 110, 134] , Thakur Jagannath Baksh Singh v. The United Provinces [( 1946) FCR 111, 119] , and Megh Raj v. Allah Rakhia [(1947) FCR 77] , and the topic ‗industries' should, therefore, be construed to include the raw materials which are the necessary ingredients thereof and which form an integral part of the industrial process.

24. It is clear, therefore, that all the Acts and the notifications issued thereunder by the Centre in regard to sugar and sugarcane were enacted in exercise of the concurrent jurisdiction. The LPA 742/2022 & LPA 748/2022 Page 108 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB exercise of such concurrent jurisdiction would not deprive the Provincial Legislatures of similar powers which they had under the Provincial Legislative List and there would, therefore, be no question of legislative incompetence qua the Provincial Legislatures in regard to similar pieces of legislation enacted by the latter. The Provincial Legislatures as well as the Central Legislature would be competent to enact such pieces of legislation and no question of legislative competence would arise. It also follows as a necessary corollary that, even though sugar industry was a controlled industry, none of these Acts enacted by the Centre was in exercise of its jurisdiction under Entry 52 of List I. Industry in the wide sense of the term would be capable of comprising three different aspects : (1) raw materials which are an integral part of the industrial process, (2) the process of manufacture or production, and (3) the distribution of the products of the industry. The raw materials would be goods which would be comprised in Entry 27 of List II. The process of manufacture or production would be comprised in Entry 24 of List II except where the industry was a controlled industry when it would fall within Entry 52 of List I and the products of the industry would also be comprised in Entry 27 of List II except where they were the products of the controlled industries when they would fall within Entry 33 of List III. This being the position, it cannot be said that the legislation which was enacted by the Centre in regard to sugar and sugarcane could fall within Entry 52 of List I. Before sugar industry became a controlled industry, both sugar and sugarcane fell within Entry 27 of List II but, after a declaration was made by Parliament in 1951 by Act 65 of 1951, sugar industry became a controlled industry and the product of that industry viz. sugar was comprised in Entry 33 of List III taking it out of Entry 27 of List II. Even so, the Centre as well as the Provincial Legislatures had concurrent jurisdiction in regard to the same. In no event could the legislation in regard to sugar and sugarcane be thus included within Entry 52 of List I. The pith and substance argument also cannot be imported here for the simple reason that, when both the Centre as well as the State Legislatures were operating in the concurrent field, there was no question of any trespass upon the exclusive jurisdiction vested in the Centre under Entry 52 of List I, the only question which survived being whether, putting both the pieces of legislation enacted by the Centre and the State Legislature together, there was any repugnancy, a contention which will be dealt with hereafter.‖ LPA 742/2022 & LPA 748/2022 Page 109 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

107. While dealing with the issue of the meaning to be ascribed to the word ―industry‖ as appearing in the aforenoted entries comprised in the different Lists placed in the Seventh Schedule to the Constitution, the Supreme Court in Tika Ramji had explained it to be a term which was capable of being understood as comprising of three different aspects, namely, (a) raw materials forming an integral part of the industrial process (b) process of manufacture or production and (c) the distribution of products of that industry. On facts in Tika Ramji, the Constitution Bench had ultimately held that raw materials being goods would fall within the scope of Entry 27 of List II, the process of manufacture would stand comprised in Entry 24 of List II except in a case where the same be a controlled industry in which case it would fall within Entry 52 of List I. Similarly, the Supreme Court had explained that the products of the industry would be comprised in Entry 27 of List II except where it were a controlled industry in which case both Parliament as well as the State Legislatures would have concurrent jurisdiction since those products would fall within Entry 33 of List III.

108. The Constitution Bench went on further to observe that by virtue of the declaration made by Parliament with respect to the sugar industry, it became a controlled industry and the products of that industry would thus fall under the ambit of Entry 33 of List III and consequently be carved out from Entry 27 of List II. However, the Constitution Bench held that sugar and sugarcane which were merely raw products could not be said to fall under Entry 52 of List I and the LPA 742/2022 & LPA 748/2022 Page 110 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB declaration that was made by Parliament. The authority of the State Legislature to promulgate the enactment, the validity whereof had been questioned, was ultimately upheld. The principles enunciated in Tika Ramji have been consistently followed by the Supreme Court in various judgments rendered thereafter and constitutes the locus classicus on the subject. However, for the purposes of understanding the essence of the principles which came to be enunciated in that decision, it would be apposite to advert to some of the observations which appear in the judgment of yet another Constitution Bench in ITC Ltd.

109. The opinions penned by Y.K. Sabharwal, J., Ms. Ruma Pal, J., and Brijesh Kumar, J. constituted the majority. In ITC Ltd., the Constitution Bench was called upon to consider the correctness of the earlier decision rendered in ITC limited versus State of Kartnatka46 which had held that the Bihar Agricultural Produce Markets Act, 1960 insofar as it levied market fee on the sale of tobacco was ultra vires and beyond the legislative competence of the State in light of the Tobacco Board Act, 1975 and the declaration referable to Entry 52 on which the said enactment was founded.

110. While answering the question which arose, Sabharwal, J. while reiterating the interpretation accorded by Tika Ramji to the competing entries falling in the three Lists comprised in Seventh Schedule held as follows: -

moneylending and moneylenders (Entry 30 List II); production, supply and distribution of goods subject to the provisions of Entry 33 of List III (Entry 27 List II); industries subject to the provisions of Entries 7 and 52 of List I (Entry 24 List II). It would, thus, be seen that under the 1935 Act, both production, supply and distribution of goods as well as development of industries were subject to the provisions of List I as provided in Entry 29. Our Constitution-makers, however, bifurcated Entry 29 into two parts. Industries were put in Entry 24 of List II subject to the provisions of Entries 7 and 52 of List I. The production, supply and distribution of goods was put in Entry 27 of List II and made subject to Entry 33 of List III. The acceptance of the argument of Mr Shanti Bhushan would mean that no object was sought to be achieved by such a bifurcation. It is clear that the two entries have been separated. One made subject to the provisions of Entry 33 of List III and the other subject to the provisions of Entries 7 and 52 of List I. Therefore, to interpret the expression ―industry‖ to include in it the aspect of raw material would mean that by the same analogy the subject-matter of production, supply and distribution of goods should also be included therein and in fact that was the argument of Mr Shanti Bhushan. Would the acceptance of that argument not negate the will of the Constitution- makers? I think it would. Therefore, the argument cannot be accepted. The same argument would equally apply to Entry 14 of List II in respect of agriculture which is not subject to any list. It would so become if we accept the contention of Mr Shanti Bhushan. Further, earlier when Parliament felt the need to control raw material, it included ―raw jute and raw cotton‖ in Entry 33 List III by the Constitution (Third Amendment) Act, 1954 . Even Article 369 indicates that agricultural raw material is in the State List for it refers to raw cotton, cotton seed and edible oilseeds and seeks to temporarily place it, by fiction, in the Concurrent List to enable Parliament to make laws. The expression ―industries‖ in Entry 24 List II or Entry 52 List I, cannot be interpreted in a manner that would make other entries of List II of the Seventh Schedule subject to Union control, which in fact they are not. Wherever it was intended to be made subject to such control, whether of List I or that of List III, it was said so. A perusal of List II shows that whenever a particular entry was intended to be made subject to an entry in List I or III, it has been so stated specifically. Therefore, an interpretation which tends to have the effect of making a particular entry subject to any other entry, though not so stated in the entry, LPA 742/2022 & LPA 748/2022 Page 112 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB deserves to be avoided unless that be the only possible interpretation. We do not think that such an interpretation on the entries in question, namely, Entry 52 of the Union List and Entry 24 of the State List deserves to be placed.

62. The principles of interpretation are well settled. There is no doubt that the entries in the lists in the Seventh Schedule do not provide competence or power to legislate on the legislature for which the source of power is contained in Article 246 of the Constitution. In deciding the question of legislative competence, it has to be kept in view that the Constitution is not required to be considered with a narrow or pedantic approach. It is not to be construed as a mere law but as a machinery by which laws are made. The interpretation should be broad and liberal. The entries only demarcate the legislative field of the respective legislature and do not confer legislative power as such and if it is found that some of the entries overlap or are in conflict with the other, an attempt to reconcile such entries and bring about a harmonious construction is the duty of the Court. When, however, reconciliation is not possible, as here, then the Court will have to examine the entries in relation to legislative power in the Constitution.‖

111. Ruma Pal, J. in her concurring opinion made the following pertinent observations: -

The Court said that if the word ―industry‖ in Entry 24 of List II and, therefore, Entry 52 of List I were interpreted to include ―gas and gasworks‖ which were expressly covered by Entry 25 List II, Entry 25 may become redundant and it would amount to attributing to the authors of the Constitution ―inaptitude, want of precision and tautology‖. As a result, the challenge to the State Act was negatived and the Central Act, insofar as it purported to deal with the gas industry, was held to be beyond the legislative competence of Parliament.

119. It is unnecessary to multiply instances of the numerous decisions which have followed the logic of Tika Ramji [AIR 1956 SC 676 : 1956 SCR 393] and accepted its conclusion that for the purposes of Entry 24 of List II and consequently Entry 52 of List I, ―industry‖ means ―manufacture or production‖ and nothing more. It is sufficient to note that Tika Ramji's [AIR 1956 SC 676 : 1956 SCR 393] definition of industry has been affirmed and applied recently by a Constitution Bench in Belsund Sugar Co. Ltd. v. State of Bihar [(1999) 9 SCC 620] and is still good law. Harakchand Banthia case [(1969) 2 SCC 166 : (1970) 1 SCR 479] does not strike a discordant note.

122. This provides for States to generally legislate on production, supply and distribution of goods. Entry 33 of List III deals particularly with the production, supply and distribution of the products of industries where the control of such industry by the Union is declared by law to be expedient in the public interest under Entry 7 or 52 of List I. It would not have been necessary to have especially provided for trade and commerce in, and the production, supply and distribution of the products of a controlled industry in Entry 33 of List III, had the word ―industry‖ in Entries 7 and 52 of List I covered the field. Similarly had the word ―industry‖ in Entry 24 of List II been sufficient, why have a separate head under Entry 27 of the same list dealing with the production, supply and distribution of goods unless we concede that the framers of the Constitution were guilty of ―inaptitude, want of precision and tautology‖? The concept of a ―general‖ and ―particular‖ term is necessarily relative depending upon the context in which the term is considered. Entry 27 of List II is certainly a LPA 742/2022 & LPA 748/2022 Page 114 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB general entry but only in relation to Entry 33 of List III which deals with trade, commerce etc. in particular kinds of products, namely, the products of a controlled industry. Finally, it is clear from the passage quoted, that Banthia [(1969) 2 SCC 166 : (1970) 1 SCR 479] held that the Gold Act was legislatively competent under Entry 52 of List I because it dealt with the process of manufacture or production of gold i.e. it was within the sweep of industry as defined in Tika Ramji [AIR 1956 SC 676 : 1956 SCR 393] .

126. To sum up: the word ―industry‖ for the purposes of Entry 52 of List I has been firmly confined by Tika Ramji [AIR 1956 SC 676: 1956 SCR 393] to the process of manufacture or production only. Subsequent decisions including those of other Constitution Benches have reaffirmed that Tika Ramji case [AIR 1956 SC 676 :

127. Applying the negative test as evolved in Tika Ramji [AIR 1956 SC 676 : 1956 SCR 393] in this case it would follow that the word ―industry‖ in Entry 24 of List II and consequently Entry 52 of List I does not and cannot be read to include Entries 28 and 66 of List II which have been expressly marked out as fields within the State's exclusive legislative powers. As noted earlier, Entry 28 deals with markets and fairs and Entry 66 with the right to levy fees in respect of, in the present context, markets and fairs. Entry 52 of List I does not override Entry 28 in List II nor has Entry 28 in List II been made subject to Entry 52 unlike Entry 24 of List II. This Court in Belsund Sugar [(1999) 9 SCC 620] has also accepted the argument that Entry 28 of List II operated on its own and cannot be affected by any legislation pertaining to industry as found in Entry 52 of List I.‖

112. Her Ladyship proceeded to record her conclusions as under: -

113. Brijesh Kumar, J., whose opinion formed part of the majority had held as follows: -

114. The law with respect to a declaration made under Entry 52 falling in List I can thus be said to have been conclusively settled to be that a declaration once made under that entry, results in denuding a State legislature of the competence to legislate on the subject of industries to the extent to which its control has been taken over by Parliament. As a consequence of that declaration, the products of that industry which would have otherwise fallen within the scope of production, supply and distribution of goods in Entry 27 of List II, become the subject matter of Entry 33 falling in List III. Similarly, the processes of production and manufacture of such an industry which would have ordinarily been comprised in Entry 24 of List II would then be governed by a legislation framed in terms of Entry 52 of List I. However, the extent of control that Parliament ultimately takes over, be it with respect to the industry as a whole, the aspect of production, supply and distribution of goods or mere facets of it are issues which would ultimately have to be answered on the basis of the actual provisions enacted by Parliament. This would be evident from the discussion which follows.

115. This the Court notes since it would be open to Parliament to take over only certain facets of that industry and refrain from exercising its complete legislative authority that may otherwise flow from Entry 33 falling in List III. Ultimately, the extent of control and the assumption of legislative authority would have to be evaluated LPA 742/2022 & LPA 748/2022 Page 118 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB based upon the statute and the specific measures that Parliament may deem appropriate to adopt.

116. The Constitution Bench of the Supreme Court in Ishwari Khetan Sugar Mills (P) Ltd. v. State of U.P.47 extensively dealt with this aspect as would be evident from the following excerpts of that decision: -

9. The declaration made in Section 2 of the IDR Act reads as under:

Legislative intention has to be gathered from the Act as a whole and not by piece-meal examination of its provisions. It would, therefore, be reasonable to hold that to the extent Union acquired control by virtue of declaration in Section 2 of the IDR Act as amended from time to time, the power of the State Legislature under Entry 24 List II to enact any legislation in respect of declared industry so as to encroach upon the field of control occupied by the IDR Act would be taken away. This is clearly borne out not only LPA 742/2022 & LPA 748/2022 Page 121 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB by the decision in Baijnath Kadio case [(1969) 3 SCC 838, 847- 848 : AIR 1970 SC 1436 : (1970) 2 SCR 100, 113] where undoubtedly while referring to the control assumed by the Union by a declaration made in Section 2 of the Mines and Minerals Act, it was said that to what extent such a declaration would go is for Parliament to determine and this must be commensurate with public interest, and once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. It is not merely some abstract control but the extent of the control assumed by the Union by the provisions of the IDR Act pursuant to declaration made by Parliament that the State Legislature to that extent, that is, to the extent the provisions of the IDR Act occupies this field, is denuded of its power to legislate in respect of such declared industry.

22. There is on the contrary a good volume of authority for the proposition that the control assumed by the Union pursuant to declaration to the extent indicated in the statute, making the declaration does not comprehend the power of acquisition if it is not so specifically spelt out. In Kannan Devan Hills Produce Company Ltd. v. State of Kerala [(1972) 2 SCC 218 : (1973) 1 SCR 356] constitutional validity of Kannan Devan Hills (Resumption of Lands) Act, 1971 , was challenged on the ground of legislative competence of Kerala State Legislature to enact the legislation. It was urged that in view of the declaration made in Section 2 of the Tea Act, 1953, tea was a controlled industry and, therefore, the State Legislature was denuded of any power to deal with the industry. It was further contended that tea plantation required extensive land and that resumption of land by the impugned legislation would directly and adversely affect the control taken over by the Union and, therefore, the State Legislature was incompetent to enact the impugned legislation. This contention was repelled holding that the impugned legislation was in pith and substance one under Entry 18 of List II read with Entry 42, List III. In reaching this conclusion the Court held as under : (SCC p. 229, para 28) ―It seems to us clear that the State has legislative competence to legislate on Entry 18 List II and Entry 42 List III. This power cannot be denied on the ground that it has some effect on an industry controlled under Entry 52, List I. Effect is not the same thing as subject-matter. If a State Act, otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an LPA 742/2022 & LPA 748/2022 Page 122 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB entry in List II or List III. The object of Sections 4 and 5 seems to be to enable the State to acquire all the lands which do not fall within Categories (a), (b) and (c) of Section 4(1) . These provisions are really incidental to the exercise of the power of acquisition. The State cannot be denied a power to ascertain what land should be acquired by it in the public interest.‖

24. It can, therefore, be said with a measure of confidence that legislative power of the States under Entry 24 List II is eroded only to the extent control is assumed by the Union pursuant to a declaration made by the Parliament in respect of declared industry as spelt out by legislative enactment and the field occupied by such enactment is the measure of erosion. Subject to such erosion, on the remainder the State Legislature will have power to legislate in respect of declared industry without in any way trenching upon the occupied field. State Legislature which is otherwise competent to deal with industry under Entry 24, List II, can deal with that industry in exercise of other powers enabling it to legislate under different heads set out in Lists II and III and this power cannot be denied to the State. In this connection it would be advantageous to refer to Chanan Mal case [(1977) 1 SCC 340, 351 : AIR 1976 SC 1654 : (1976) 3 SCR 688, 700] . In that case constitutional validity of Haryana Minerals (Vesting of Rights) Act, 1973 , and the two notifications issued thereunder was challenged on the ground that the Act and the notifications issued thereunder were repugnant to the Mines and Minerals Act made by Parliament after making a declaration as contemplated by Entry 54 List I. The challenge was that the State Legislature was incompetent to legislate on the topic of mines and minerals under Entry 23, List II in view of the declaration made under Entry 54 List I and the enactment of Act 67 of 1957 (Mines and Minerals Act) by the Parliament. By the impugned Act and the notifications issued thereunder the State Government of Haryana purported to acquire rights to salt petre, a minor mineral in the land described in the schedule appended to the notification and by the second impugned notification the State Government announced to the general public that certain salt petre- bearing areas in the State of Haryana mentioned therein would be auctioned on the dates given there. Repelling the contention regarding legislative incompetence it was observed that it is difficult to see how the field of acquisition could become occupied by a Central Act in the same way as it had been in West Bengal case [ State of W.B. v. Union of India , AIR 1963 SC 1241 : (1964) 1 SCR 371] even before Parliament legislates to acquire land in a LPA 742/2022 & LPA 748/2022 Page 123 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB State. At least until Parliament has so legislated as it was shewn to have done by the statute considered by this Court in the case from West Bengal [State of W.B. v. Union of India , AIR 1963 SC 1241 :

COTPA also embodies statutory measures for confiscation, adjudication of offences and prescribes various punishments for violations of its provisions.

120. FSSA, on the other hand, is a legislation which is primarily concerned with food and the laying down of scientific standards for articles of food and to regulate manufacture, storage, distribution, sale and import thereof. The intent of the statute is aimed at ensuring availability of safe and wholesome food in the market for human consumption and for matters connected therewith. FSSA thus clearly comes across as a statute which seeks to comprehensively regulate food and food products. The arguments which were addressed based on an asserted and perceived conflict between COTPA and FSSA clearly appear to be misconceived for the following reasons.

121. In the considered opinion of this Court, the declaration of expediency which stands embodied in the two aforenoted statutes is merely an embodiment of the intent of Parliament to take under its control both the tobacco as well as the food industry. In our considered view, neither the subsequent promulgation of FSSA nor Section 89 thereof constitute the key to answering the questions which LPA 742/2022 & LPA 748/2022 Page 126 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB stand posited. We are also of the firm opinion that the issue of implied repeal and one, which according to the appellants, was not even urged before the learned Single Judge but has been answered, neither arose nor was germane for the purposes of considering the issues which had arisen for consideration.

122. For the purposes of examining the question of the interplay between legislations and conflicts arising therefrom, it is imperative to firstly understand the scope of the respective legislations. While COTPA does and evidently purport to regulate trade, commerce, production, supply and distribution of cigarettes and other tobacco products, in order to examine the extent of the regulatory measures that came to be adopted and the areas which they cover, one would necessarily have to bear in mind the provisions that ultimately came to be engrafted in that legislation and the extent to which they ultimately operate. As was eloquently explained by the Constitution Bench in Ishwari Khetan, a mere declaration under Entry 52 is not liable to be understood as being sufficient to deprive a competent legislature from exercising its legislative powers conferred by the Constitution. As the Supreme Court explained in Ishwari Khetan, the control has to be concrete and specific as opposed to being abstract. It was then pertinently observed that a State Legislature would stand denuded of the authority only to the extent of the power which Parliament may ultimately acquire.

Neutral Citation Number: 2023:DHC:2375-DB

123. The key to answering the questions that stood raised in the writ petitions was principally the extent of control which had been ultimately acquired by the Parliament. Examined in the aforesaid light, we find that the assumption of control by Parliament under COTPA extends to the prohibitions imposed with respect to smoking in public places, advertisements in connection therewith, the sale of cigarettes and tobacco products to minors and the prohibition in respect of certain areas where those products should not be available for sale or distribution. COTPA also proceeds to prescribe the nature and the content of statutory warnings, graphic images on packets and issues relating thereto. The regulation of trade, commerce, production, supply and distribution of cigarettes and tobacco products is thus limited to the aforesaid extent only. It would thus be wholly incorrect for it to be contended that aspects unconnected with the aforesaid and pertaining to the products specified in the Schedule could not possibly be regulated by legislation promulgated by a competent and constitutionally empowered law-making body independent of COTPA.

124. We find that the learned Single Judge has understood COTPA to be a piece of legislation which covers the entire spectrum of subjects and activities relating to the tobacco industry. In our considered opinion, the learned Single Judge clearly failed to appreciate the degree and scope of the coverage of the statutory provisions engrafted therein. The ―extent of erosion‖ test as was enunciated in Ishwari Khetan was neither considered nor were the LPA 742/2022 & LPA 748/2022 Page 128 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB provisions of COTPA subjected to that scrutiny. The extent of control which COTPA purported to exercise and the field that it sought to cover in respect of scheduled products would have to be perceived and determined upon a due consideration of the provisions ultimately embodied in that legislation.

125. What needs to be emphasized is that while COTPA does adopt measures regulating smoking of cigarettes and consumption of tobacco products in public places, in and around the vicinity of educational institutions, the nature of written and pictorial warnings to be displayed on packages, its provisions neither comprehensively control nor regulate all aspects relating to those scheduled products. The extent of the regulation, the aspects that are governed are to be ultimately discerned from the language and the scope of the individual sections of COTPA. No statute can be construed or understood as legislating upon a subject or conferring a right which is neither spoken of nor engraved therein. Tested on the aforesaid precepts, it is manifest that while scheduled products falling under COTPA are regulated and controlled by its individual provisions, it would be wholly incorrect to understand the said enactment as being an all- encompassing and comprehensive legislation pertaining thereto.

126. The fallacy of the reasoning on which the impugned judgment proceeds is also evident from the following facts. As we read paras 197 and 198 of the impugned judgment, we find that the learned Single Judge has observed that upon promulgation of COTPA, LPA 742/2022 & LPA 748/2022 Page 129 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB ―....Parliament took under its control the tobacco industry thereby denuding the States to legislate qua the scheduled tobacco products.....‖. The learned Single Judge has clearly erred in failing to notice and appreciate the nature and the extent of the control which was taken over by COTPA. The incorrect premise on which the judgment proceeds is further evident when the learned Judge observes that ―.... once the Parliament has exercised power under Entry 52 of List I in order to take the entire tobacco industry under its control, the State Legislatures are not competent to enact laws on the said subject.‖ The said observation clearly appear to lose sight of the fact that the subject matter of the writ petitions was a perceived conflict between two Parliamentary statutes, namely, COTPA and FSSA as opposed to a legislation framed by a State. Secondly, the learned Judge also appears to have ignored the indubitable fact that the Impugned Notifications, albeit issued by a State authority, had in fact been promulgated in exercise of powers conferred under FSSA, a Parliamentary legislation.

127. The learned Single Judge while dealing with the question of a perceived conflict between COTPA and FSSA clearly appears to have trodden down an incorrect path while holding that FSSA constitutes a general legislation and therefore must yield to COTPA. We find that the aforesaid conclusion proceeds on the fallacious premise that the respondents sought to regulate and prohibit tobacco per se. As would be manifest from a reading of the Impugned Notifications what was sought to be regulated and controlled was chewing tobacco, gutka and LPA 742/2022 & LPA 748/2022 Page 130 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB pan masala and tobacco sold as a mixture or in a combination package. The question which thus principally arose was whether the aforesaid articles could be termed as food and thus regulated under FSSA. Rather than conferring attention and restricting its unerring scrutiny on the aforesaid aspect, the learned Single Judge appears to have comprehended the principal question to be whether tobacco could be labelled as food. We are of the considered view that the same was not a question which even remotely arose for consideration.

128. In any case, and this we do deem necessary to observe, that while COTPA undoubtedly is a special statute regulating and controlling certain aspects of scheduled products, it is special by virtue of the individual and specific provisions contained therein. Similarly, FSSA is special in its own right in light of the detailed provisions that it adopts and engrafts relating to food safety and other allied issues. As long as the regulatory power is exercised under the FSSA in respect of a food article, it would not be invalidated or discredited merely because it is viewed as incidentally entrenching upon a provision contained in another competing statute. In the present matters, we have not been shown any provision in the COTPA which may be viewed as covering matters falling under the FSSA or the Regulations framed thereunder.

129. What we seek to emphasize is that the issue of a general or special law would have arisen provided the Court came to be faced with a situation of an apparent or evident conflict between the LPA 742/2022 & LPA 748/2022 Page 131 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB working of two statutes dealing with the same article. However, and as is evident from the aforesaid discussion, FSSA was neither understood nor asserted to be a legislation which seeks to regulate tobacco or any other tobacco products specified in a Schedule covering issues falling under COTPA. Even if one were to consider the article of pan masala which is covered both under the COTPA as well as FSSA, the former would be liable to be construed as regulating that article only to the extent of the specific provisions contained therein. Those provisions would also have to be construed bearing in mind that pan masala is an article which is also regulated under the FSSA. We find that the aspects of that article which are covered and regulated by FSSA are not regulated by the provisions of COTPA at all. In fact, the two statutes do not even construct or erect parallel or competing regimes of regulation.

130. The principles of interpretation which would apply for the purposes of understanding the operation of general and special laws were lucidly explained by the Supreme Court in Ajoy Kumar Banerjee vs. Union of India48 where the following precepts were culled out: -

131. The Court also deems it apposite to note the following observations as were made by the Supreme Court in Ashoka Marketing: -

Neutral Citation Number: 2023:DHC:2375-DB

57. In Shri Ram Narain v. Simla Banking and Industrial Co. Ltd. [1956 SCR 603 : AIR 1956 SC 614 : (1956) 26 Comp Cas 280] this Court was considering the provisions contained in the Banking Companies Act, 1949 and the Displaced Persons (Debts Adjustment) Act, 1951 . Both the enactments contained provisions giving overriding effect to the provisions of the enactment over any other law. This Court has observed : (SCR pp. 613 and 615) ―Each enactment being a special Act, the ordinary principle that a special law overrides a general law does not afford any clear solution in this case.‖ ―It is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two Acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein.‖

132. What emerges upon a consideration of the legal principles propounded in the aforenoted two decisions, is the imperative of understanding the scope of the respective legislations, the subjects which are sought to be regulated, the nature of the inconsistency and whether it is wholly irreconcilable. The question of conflict is not liable to be answered on a facile examination of the provisions of the respective statutes but on a more meaningful consideration of the provisions themselves, the situations that they seek to remedy and provision and the measures that are ultimately adopted. Courts would also bear in mind the objects of the two legislations and the purposes that they seek to achieve. Tested on those principles, we find ourselves unable to recognize any element of incompatibility in the operation and implementation of the two legislations in question.

133. It becomes pertinent to note that no provision of COTPA incorporates provisions similar or identical to those set out in LPA 742/2022 & LPA 748/2022 Page 134 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB Regulation 2 .11.5 of the Food Products Regulations 2011. The question of conflict thus clearly did not arise at all. We are also of the considered opinion that the conclusions which have come to be recorded by the learned Judge in Para 198 of the impugned judgment are legally unsustainable bearing in mind that the writ petitions did not raise an issue of a conflict between a Parliamentary and a State legislation. It is pertinent to recall that the State food authorities were not exercising powers while issuing the impugned notifications under a State enactment. Those notifications had been issued in purported exercise of powers conferred by Section 30(2)(a) of the FSSA read with Regulation 2 .3.4 of the Food Product Regulations 2011.

134. Before closing the discussion on this particular issue, we deem it expedient to advert to Godawat on the strength of which it was contended that COTPA is a special statute and would thus override the provisions of the FSSA. It would be pertinent to note the following passages from the decision in Godawat:-

135. The Supreme Court recorded its conclusions on this aspect in para 77(6) which is reproduced hereinbelow: -

136. It would be relevant to note that Godawat was a decision which had come to be rendered prior to the insertion of Rule 44J in the 1955 Rules and the promulgation of Regulation 2 .3.4 in the FSSA. As noted LPA 742/2022 & LPA 748/2022 Page 137 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB hereinabove, the validity of the aforesaid provisions was neither questioned nor assailed in the writ petitions. The writ petitioners also did not assert that the aforenoted two provisions were liable to be struck down on that score. The decision in Godawat must also be appreciated in the backdrop of COTPA constituting a latter legislation having been brought onto the statute book long after PFA. It was in this factual setting that Godawat came to be rendered. However, and undisputedly FSSA, on the other hand, was promulgated thereafter in 2006 and in any case post the enforcement of COTPA. The statutory regime which prevailed at the time when the judgment in Godawat came to be handed down has undergone a paradigm shift as is manifest from the introduction of statutory measures which specifically prohibit the addition of tobacco and nicotine to food products.

H. PURPORT OF THE IMPUGNED NOTIFICATIONS

137. We are of the firm view that the fundamental question which the writ petitions raised was itself confined to whether the Impugned Notifications could have prohibited the addition of tobacco or nicotine in a food product. Pan Masala, indubitably, is a food product which is regulated under the FSSA. The fundamental question which therefore arose was whether tobacco or nicotine for that matter could be permitted to be added to that food product.

138. The Appellants sought to support the issuance of the notifications based upon the statutory command of Regulation 2 .3.4.

Neutral Citation Number: 2023:DHC:2375-DB The writ petitioners, however, clearly appear to have proceeded on the mistaken assumption that the impugned notifications sought to ban or prohibit tobacco. The prohibition which was sought to be enforced was of the addition of tobacco or tobacco products to a food product, namely, Pan Masala.

139. The impugned notifications essentially sought to regulate a food article. The learned Single Judge clearly appears to have misconstrued the scope and intent of those notifications as being one directly aimed at regulating tobacco. As would be manifest and evident from a reading of the various provisions of the FSSA including the impugned notifications, the respondents never evinced an intent to regulate tobacco or tobacco products. In fact, and as per the appellants themselves, FSSA does not even deal with raw tobacco or pure tobacco.

140. The conclusions of the Court recorded hereinabove are further buttressed from the following facts. As would be evident from a reading of the Impugned Notifications, the GNCTD Food Authority firstly records its conclusion that gutka, pan masala and other like products containing tobacco are injurious to health. It then proceeds to proclaim that tobacco when mixed with other ingredients and additives mentioned therein, is ―food‖ as defined under the FSSA. It then proceeds to take cognizance of the prohibition placed by Regulation 2 .3.4 of tobacco or nicotine being added to a food article. Taking into consideration the harmful effect that those substances may LPA 742/2022 & LPA 748/2022 Page 139 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB have on public health, it proceeds to ban the manufacture, storage, distribution or sale of tobacco which is either flavoured, scented or mixed with any additive. The articles to which the ban is proposed to be extended have been mentioned as gutka, pan masala, flavoured/scented tobacco, kharra and other like products by whatever name called.

141. A careful reading of the Impugned Notifications would establish that what was proposed to be banned was not raw or pure tobacco. The subject matter of the prohibitory order was tobacco when mixed with other ingredients and additives. Those articles were specified to be gutka, pan masala, flavoured/scented tobacco and other like products. It would thus be wholly incorrect to assume that the notifications sought to ban tobacco per se.

142. Undisputedly, food as defined under the FSSA would mean any substance which is intended to be used for human consumption. As has been noticed hereinabove, the nutritive or restitutive properties of a substance being a sin qua non for it to be termed as food is a principle which has been consistently and stoutly negatived both under the PFA as well as the FSSA. What needs to be underlined is that when tobacco is mixed or used as an ingredient or additive to a food article, it is then that it becomes subject to the regulatory regime constructed by the FSSA. It would be pertinent to recall that a food additive is defined under the FSSA to mean ―any substance which is not normally consumed as a food by itself or used as a typical LPA 742/2022 & LPA 748/2022 Page 140 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB ingredient of the food, whether or not it has nutritive value....‖. It is thus apparent that an additive could be one which is neither a substance which is normally consumed as food nor one which may have a nutritive value. Similarly, Regulation 2 .11.5 of the Food Products Regulations 2011 while prescribing the standards for pan masala, proscribes the addition of any substance which may be injurious to health. The aforenoted prohibition is in addition to that contained in Regulation 2 .3.4 of the Prohibition Regulations 2011. The Impugned Notifications were thus clearly not an attempt to regulate tobacco or nicotine but to regulate food containing those substances. We thus find ourselves unable to countenance the conclusions to the contrary that the Learned Judge proceeded to record in para 193 of the impugned judgment.

I. THE „TOBACCO AS FOOD" QUESTION

143. That takes the Court to consider whether the impugned articles which form subject matter of the Impugned Notifications could be held to be food as defined under the FSSA. While on the question of food and foodstuff, it would be relevant to briefly notice some of the decisions which were commended for our consideration by the writ petitioners. It becomes pertinent to note that S. Samuel was dealing with an order made under the Essential Commodities Act, 1955 and which did not define foodstuff specifically. It was in the aforesaid backdrop that the Supreme Court employed the common parlance test for the purposes of ascribing the meaning to be assigned to that word.

Neutral Citation Number: 2023:DHC:2375-DB Similar was the position in Gulati & Co. where in the context of a fiscal statute, the Supreme Court held that the word food must be interpreted bearing in mind how that expression is commonly understood.

144. In contrast to the above, we are called upon to consider a legislation, namely the FSSA, which defines food specifically. It would be apposite to note that the nutritive element test as was advocated had been rejected by the Constitution Bench of the Supreme Court as far back as in Virkumar Gulabchand Shah as would be evident from the following extracts from that decision: -

145. In Pyarli K. Tejani, the Supreme Court significantly observed that all that may be ingested by humans would be food. This was a case which was considering whether supari could be termed as food. Answering that question, the Supreme Court had observed as follows:-

Nothing more than the actus reus is needed where regulation of private activity in vulnerable areas like public health is intended. In the words of Lord Wright in McLeod v. Buchanan "intention to commit a breach of statute need not be shown. The breach in fact is enough." Social defence reasonably overpowers individual freedom to injure, in special situations of strict liability. Section 7 casts an absolute obligation regardless of scienter, bad faith and mens rea. If you have sold any article of food contrary to any of the sub-sections of Section 7 , you are guilty. There is no more argument about it. The law denies the right of a dealer to rob the health of a supari consumer. We may merely refer to a similar plea overruled in the case Andhra Pradesh Grain & Seed Merchants' Asso- ciation v. Union of India [(1971)1 SCR 166 : 1970) 2 SCC 71].‖

146. The Supreme Court in R. Krishnamurthy took the principle even further to hold that as long as an article is ―generally or commonly used for human consumption‖, that would be sufficient to hold it to be food for the purposes of the PFA. This is evident from the following passages of that decision: -

147. In any case, the death knell to the nutritional or restitutive tests as being relevant for the purposes of ascertaining the meaning to be ascribed to food and whether pan masala or gutka would be food is Godawat itself which had clearly held that they would fall within the LPA 742/2022 & LPA 748/2022 Page 146 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB ambit of that expression. This Court also bears in mind the plethora of authorities starting from Khedan Lal, Manohar Lal, Dhariwal Industries, J. Anbazhagan and Sri Kamdhenu Traders which have held that chewing tobacco, pan masala and gutka are food. The Court finds no justification to differ from the views expressed therein.

148. While arriving at this conclusion, the Court also bears in mind the definition of food under the FSSA. It would be pertinent to recall that Section 3(1)(j) not only embodies an inclusive element it also specifically excludes certain articles. We also bear in mind the admitted position that while the PFA defined food to mean ―any article used as food or drink for human consumption‖, the FSSAI clearly attempts to confer an expansive meaning upon that expression by providing that any substance meant for human consumption would stand included. We thus find no justification to hold that pan masala, gutka or any other form of chewing tobacco which is meant for human consumption would stand excluded from the ambit of Section 3(1)(j) . We are further fortified in the view that we take noting that neither pan masala, nor chewing tobacco or gutka stand excluded from Section 3(1)(j) of the FSSA. This too clearly appears to be evidence of the intent of the enactment to include not only those articles but also all others.

149. While dealing with this aspect, the learned Single Judge in para 217 of the impugned judgment proceeds to base his decision on the fact that no scientific standards had been fixed under the FSSA for LPA 742/2022 & LPA 748/2022 Page 147 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB tobacco. In view thereof, the learned Judge concluded that tobacco could not be considered as food. We find ourselves unable to adopt this line of reasoning since it clearly fails to consider that what the appellants sought to regulate and prohibit was not tobacco itself but its introduction and addition in a food article. It becomes pertinent to highlight that FSSA does not even attempt to lay down standards for tobacco. It is concerned solely with substances which are meant for human consumption. Tobacco or nicotine are noticed in that legislation only to the extent of being identified as substances which cannot be added to an article of food. It is our respectful view that the learned Judge clearly erred in this regard and completely misconstrued the principal question which arose for consideration.

150. We similarly find that the learned Judge has clearly erred in proceeding on the premise that the Appellants sought to prohibit tobacco in terms of Regulation 2 .3.4. That does not appear to have been their case at all. The Appellants had consistently taken the position that what Regulation 2 .3.4 proscribes is the addition of tobacco or nicotine to food.

151. Significantly, while holding so the learned Judge observes in para 219 of the judgment that there is no conflict between Regulation 2 .3.4 and COTPA. We note that this was exactly the argument of the Appellants before us. The judgment thus clearly appears to suffer from inherent and apparent inconsistencies.

Neutral Citation Number: 2023:DHC:2375-DB J. POWER TO PROHIBIT UNDER FSSA

152. Proceeding to deal with the issues which arise out of Section 30(2)(a) of the FSSA and Regulation 2 .3.4, the learned Judge has proceeded to hold that the power to establish standards for food under the FSSA would not include within its purview the power to prohibit the manufacture, sale, storage and distribution of goods more so when those which are sought to be prohibited pertain to scheduled tobacco products. The learned Judge has sought to draw sustenance for the aforesaid findings from the decision rendered by the Supreme Court in Himat Lal K. Shah. While ruling on this issue, it has been additionally observed by the learned Judge that on a consideration of the entire scheme of the FSSA, it is apparent that the power to frame Regulations would not include the power to prohibit manufacture, distribution, storage and sale of a product.

153. We are constrained to observe that the aforesaid findings have come to be returned with the learned Judge significantly ignoring the admitted position that no challenge to Regulation 2 .3.4 stood raised. The reliance which was sought to be placed on the observations as appearing in Himat Lal K. Shah was also clearly misplaced since the said decision observes that the power to regulate would not ―normally‖ include the power to prohibit. Himat Lal K. Shah thus could not have been viewed as an authority laying down an absolute proposition that the power to regulate would not include the power to prohibit.

Neutral Citation Number: 2023:DHC:2375-DB

154. More fundamentally, we note that the power to prohibit stands specifically conferred upon the food safety authorities by virtue of Section 30(2)(a) of the FSSA. The learned Judge thus clearly appears to have overlooked the fact that the principal enactment itself had conferred a power to prohibit and therefore the said power need not have been additionally spelt out in the Regulations which came to be framed under the FSSA.

155. In any case, Regulation 2 .3.4 on its plain language prohibits the use of tobacco or nicotine in a food product. That prohibition is neither temporary nor one which is stipulated to operate for a particular period of time. The statutory prohibition is permanent and would thus apply to all food articles during the entire period that FSSA and Regulation 2 .3.4 operates. The question therefore of the power being temporary or pro tem did not arise. As long as Regulation 2 .3.4 remained on the statute book, it was incumbent upon the appellant to implement and enforce that provision and the statutory injunct which stood engrafted therein.

156. Insofar as the findings returned by the learned Judge with respect to Regulation 2 .3.4 not prohibiting the use of tobacco or nicotine, this Court in the preceding parts of this decision has already found that the said observations have clearly been rendered upon the learned Judge having lost sight of the principal question which arose, namely, whether tobacco and nicotine could be permitted to be used as additives in a food article.

Neutral Citation Number: 2023:DHC:2375-DB

157. On an overall consideration of the aforesaid discussion, we find that both Section 30(2)(a) as well as Regulation 2 .3.4 embody a power to prohibit a particular food article as well as regulate the nature of additives which may be permitted to be added in food articles. We also find that neither Section 30(2)(a) nor the validity of Regulation 2 .3.4 had been questioned by the writ petitioners. Since the restraint embodied in Regulation 2 .3.4 was permanent in character, the prohibitory orders could not have been held to be bound by prescriptions of time.

158. In light of our conclusions recorded hereinabove, we find ourselves unable to accept the view taken by the Madras High Court in Designated Officer and which had in any case followed the judgment rendered by the learned Judge which forms subject matter of the present appeals.

159. For the completeness of the record, we also deem this to be an appropriate stage to consider a recent decision rendered by the Andhra Pradesh High Court in Dwarapudi Sivarama Reddy Vs. State of Union of India & Ors.49 which too has quashed similar notifications issued by the Food Safety authorities of that State. Although the aforesaid judgment was placed for our consideration after the present appeals had been closed for judgment, we do not deem it appropriate to deny the writ petitioners of the opportunity to place reliance upon the said decision on this ground. In any case , the said decision would 49 WP(C) 30185/2021 dated 24.03.2023 LPA 742/2022 & LPA 748/2022 Page 151 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB only aid us in enunciating the correct legal position. Dwarapudi Sivarama Reddy proceeds on the premise that the entire controversy stands conclusively settled in light of Godawat. While proceeding to deal with the impact of the special provisions made in the FSSA and the Regulations framed thereunder, the said High Court held as under:

That prohibition is clearly neither provisional nor impermanent. Thus, as long as the Commissioner of Food Safety finds that food articles containing tobacco or nicotine are being manufactured, distributed or sold, it would be fully justified in issuing a prohibitory order.

163. That prohibition would clearly be sustainable on a conjoint reading of Section 30(2)(a) read with Regulation 2 .3.4. The prohibition this Court finds is principally aimed at giving effect to the statutory injunct contained in Regulation 2 .3.4. As noticed hereinbefore, as long as that Regulation remains on the statute book, there would be a ban which would operate on gutka, pan masala with tobacco or other like commodity.

164. We further note that the scheme of Section 30(2)(a) read with Regulation 2 .3.4 clearly stands on a pedestal distinct and different from other statutory provisions which empower authorities to prohibit or ban for a temporary period of time. For instance, Section 144 as LPA 742/2022 & LPA 748/2022 Page 154 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB contained in the Code of Criminal Procedure Act, 197350 stands out as a primary example of the power to prohibit being operative for a particular period of time. In terms of Section 144(4), an order passed under the aforesaid section is to normally remain in force for no more than two months. The Proviso to Section 144(4), however, empowers the State Government to extend the validity of such a notification for a further period not exceeding six months.

165. We are also aware of the judgments of the Supreme Court in Acharya Jagdishwaranand Avadhuta vs. Commr. of Police51 where while dealing with the validity of successive orders made under Section 144, their Lordships had held as follows: -

It is not necessary on that ground to quash the impugned order of March 1982 as by efflux of time it has already ceased to be effective.

18. It is appropriate to take note of the fact that the impugned order under Section 144 of the Code did not ban processions or gatherings at public places even by Ananda Margis. The prohibition was with reference to the carrying of daggers, trishuls and skulls. Even performance of Tandava dance in public places, which we have held is not an essential part of religious rites to be observed by Ananda Margis, without these, has not been prohibited.‖

166. A similar view was taken by a Division Bench of our Court in Bano Bee vs. UOI and Anr.52 where the following observations came to be made: -

167. Both Bano Bee as well as Acharya Jagdishwaranand Avadhuta have deprecated a repetitive exercise of powers under Section 144 and LPA 742/2022 & LPA 748/2022 Page 162 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB the promulgation of successive orders. However, the underlying theme of Section 30(2)(a) and Regulation 2 .3.4 is clearly distinguishable from the scheme which informs Section 144 of the CrPC. Section 144 is liable to be invoked in an emergent situation and when immediate prevention is to be ordered. It is in the aforesaid backdrop that courts have taken the view that an order once made under Section 144 cannot be revived and renewed for time immemorial.

168. Contrary to the above, the powers conferred under Section 30(2)(a) read with Regulation 2 .3.4 are not emergency provisions per se. Consequently, as long as the interest of public health requires a prohibition being imposed with respect to the addition of tobacco or nicotine in food articles, the appellant would clearly be justified in continuing those orders till the situation is remedied or where it is ultimately established on empirical terms that such additives would not constitute any harm to public health.

169. From the submissions which were addressed on behalf of the appellants the Court notes that the ban as enshrined in the impugned notifications was also sought to be sustained in light of the various orders passed by the Supreme Court in Ankur Gutka and Central Arecanut. As was noted in the preceding parts of this decision, we find that in Ankur Gutka, the Supreme Court in its order of 03 April 2013 had taken note of the contention of the Solicitor General of various States and Union Territories having imposed a complete ban on the sale of gutka and pan masala with tobacco and/or nicotine. The LPA 742/2022 & LPA 748/2022 Page 163 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB Solicitor General had also apprised the Supreme Court of the malicious tactics adopted by some of the manufacturers, of selling gutka and pan masala in two separate pouches.

170. Taking note of the aforesaid as well as the communication issued by the Union Government addressed to all State Governments on 27 August 2012, the Supreme Court issued notice to all State Governments and Union Territories which had so far not issued notifications banning the sale of gutka and pan masala with tobacco in terms of the FSSA to apprise the Court why they had failed to take action pursuant to the letter issued by the Union Government and noticed hereinabove. It was the aforesaid order which appears to have prompted the issuance of the first of the prohibitory orders in 2015.

171. The prohibition with respect to sale of gutka and pan masala with tobacco was again noticed by the Supreme Court in Central Arecanut and more particularly the order of 23 September 2016 passed therein where the aforenoted order passed in Ankur Gutka was noticed yet again. The Supreme Court also took note of Regulation 2 .3.4 and consequently, the obligation placed upon all to enforce the said Regulation. It, accordingly, directed all concerned statutory authorities to comply with Regulation 2 .3.4. It also called upon all State Governments and Union Territories to file affidavits with respect to ―total compliance of the ban imposed on manufacturing and sale of gutka and pan masala with tobacco and/or nicotine‖.

Neutral Citation Number: 2023:DHC:2375-DB

172. While the learned Single Judge has duly noticed those orders in Para 34 of the impugned judgment, he proceeded to hold that the case set up in the writ petition is distinguishable since it relates to chewing tobacco and not gutka and pan masala with tobacco and/or nicotine.

173. We find ourselves unable to appreciate how the orders passed in Ankur Gutka and Central Arecanut could have by any stretch of imagination been held to be distinguishable. The Impugned Notifications clearly related to gutka and pan masala with tobacco or nicotine. The peremptory direction issued by the Supreme Court in the aforenoted two matters was an ambiguous command to all State Governments and Union Territories to enforce the prohibition in respect thereof and to ensure compliance with the diktat of Regulation 2 .3.4. There was thus no justification for the learned Judge holding that they would not apply.

L. THE ARTICLE 14 ARGUMENT

174. One of the arguments which was addressed was a purported violation of the equality principles as enshrined in Article 14 and the prohibition being restricted to ―smokeless tobacco‖. We find that copious material has been placed on the record in the shape of scientific studies which had clearly indicated the nature and extent of the issues that arise from the use of smokeless tobacco. The appellants have also taken the Court through the detailed report which had been submitted by NIHFW pursuant to the directions issued by the Supreme Court on 07 December 2010 in Ankur Gutka. As would be LPA 742/2022 & LPA 748/2022 Page 165 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB evident from the conclusions which came to be recorded by the Expert Committee, it was found that 163.7 million people in the country are users of only smokeless tobacco. Compared to the above, the number of persons smoking was pegged at 68.9 million. The Quit Ratio for users of smokeless tobacco was placed at 5%. That report had also taken note of the exponential increase in the total number of users of smokeless tobacco over the years. As the GATS Report 2016-2017 would establish, the total number of adult smokeless tobacco users was found to be 199.4 million and thus almost double that of current tobacco smokers which was placed in the earlier survey at 99.5 million. It becomes pertinent to note that in GATS 1 [2009-2010], the number of smokeless tobacco users was found to be 163.7 million. By the time the GATS 2 [2016-17] Report came to be published, these users had increased to 199.4 million thus evidencing the exponential increase in the number of users of smokeless tobacco.

175. It becomes necessary to observe that the writ petitioners did not dispute that both cigarettes as well as smokeless tobacco have a direct and pernicious impact on public health. The submission essentially proceeded on the premise that there existed no rationale to create an artificial distinction between ―smoking‖ and ―smokeless‖ tobacco. We find ourselves unable to appreciate the aforesaid submission since once it was found and conceded that both categories of tobacco constituted substances which had a direct impact on public health, the impugned notifications clearly did not warrant being quashed. We bear in mind the well settled principle that a prerogative writ would LPA 742/2022 & LPA 748/2022 Page 166 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB not issue to perpetuate an illegality or cause serious prejudice to larger public interest. The acceptance of the submission addressed in this regard would amount to the Court sanctioning the distribution and sale of smokeless tobacco in addition to smoking tobacco. Article 14 cannot possibly be invoked on the ground that since a particular genre of tobacco has not been banned, there should be no prohibition in respect of an equally harmful article. In any case, Article 14 does not contemplate of a negative equality. It is, as has been repeatedly held, a positive constitutional right. The guarantee and protection conferred by that Article cannot be invoked to assert a right to manufacture, sell or distribute a harmful substance merely because the appellant has failed to take identical steps in respect of an equally injurious article. We thus find ourselves unable to either appreciate or countenance the submissions addressed on this score.

M. POLICY AND JUDICIAL REVIEW

176. More fundamentally we find that the appellant appears to have adopted the impugned measures bearing in mind the larger number of users of smokeless tobacco as was evidenced from the scientific reports coupled with the fact that it stood statutorily armed to impose a prohibition. These were essentially policy imperatives which the appellants appear to have borne in mind while issuing the impugned notifications. It becomes pertinent to note that the power of judicial review which stands conferred upon this Court does not extend to interfering with a policy decision unless it be shown to be wholly LPA 742/2022 & LPA 748/2022 Page 167 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB erroneous, capricious or manifestly arbitrary. Courts would refrain from interfering with such policy decisions merely on the ground that a more prudent or wiser alternative were available. We would clearly be crossing the well recognised rubicon if we were to impute our own views and perceptions of what would have been a more efficacious measure. Ultimately the balancing of imperatives, evaluation of competing factors, exigencies of the time are all factors which must be left for the executive to weigh while formulating an appropriate policy. Courts are ultimately concerned not with the efficacy of the policy but its legality.

177. Though the principles which must be borne in mind with respect to the extent of judicial review in relation to policy decisions is well settled, the Court deems it apposite to notice the following decisions. In Directorate of Film Festivals vs. Gaurav Ashwin Jain53 , while holding that the Courts cannot be called upon to examine the correctness of a policy, the Supreme Court held as follows: -

Union of India [(2002) 2 SCC 333] , State of Orissa v. Gopinath Dash [(2005) 13 SCC 495 : 2006 SCC (L&S) 1225] and Akhil Bharat Goseva Sangh (3) v. State of A.P. [(2006) 4 SCC 162] )‖‖

178. In Krishnan Kakkanth v. Govt. of Kerala54 , the Supreme Court observed that it is only proper to test a public policy on the limited question of illegality and unconstitutionality: -

179. In Shri Sitaram Sugar Co. Ltd. v. Union of India55 , the Supreme Court while dealing with the extent of interference with a policy measure observed as follows: -

The court does not supplant the ―feel of the expert‖ by its own views. When the legislature acts within the sphere of its authority and delegates power to an agent, it may empower the agent to make findings of fact which are conclusive provided such findings satisfy the test of reasonableness. In all such cases, judicial inquiry is confined to the question whether the findings of fact are reasonably based on evidence and whether such findings are consistent with the laws of the land. As stated by Jagannatha Shetty, J. in Gupta Sugar Works [1987 Supp SCC 476, 481] : (SCC p. 479, para 4) ―... the court does not act like a chartered accountant nor acts like an income tax officer. The court is not concerned with any individual case or any particular problem. The court only examines whether the price determined was with due regard to considerations provided by the statute. And whether extraneous matters have been excluded from determination.‖ ―59. It is a matter of policy and planning for the Central Government to decide whether it would be, on adoption of a system of partial control, in the best economic interest of the sugar industry and the general public that the sugar factories are grouped together with reference to geographical-cum-agro-economic factors for the purpose of determining the price of levy sugar. Sufficient power has been delegated to the Central Government to formulate and implement its policy decision by means of statutory instruments and executive orders. Whether the policy should be altered to divide the sugar industry into groups of units with similar cost characteristics with particular reference to recovery, duration, size and age of the units and capital cost per tonne of output, without regard to their location, as recommended by the BICP, is again a matter for the Central Government to decide. What is best for the sugar industry and in what manner the policy should be formulated and implemented, bearing in mind the fundamental object of the statute, viz., supply and equitable distribution of essential commodity at fair prices in the best interest of the general public, is a matter for decision exclusively within the province of the Central Government. Such matters do not ordinarily attract the power of judicial review.‖ LPA 742/2022 & LPA 748/2022 Page 170 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB

180. In State of Orissa v. Gopinath Dash56 and in which the Court was yet again called upon to enunciate the parameters of judicial review, the Supreme Court held as under: -

―8. The Court should constantly remind itself of what the Supreme Court of the United States said in Metropolis Theater Co. v. City of Chicago [57 L Ed 730 : 228 US 61 (1912)] :

181. In a more recent decision rendered in Jacob Puliyel vs. Union of India and Others57 the Supreme Court reiterated the well- established parameters of judicial review in regard to a policy decision in the following terms: -

21. We shall now proceed to analyse the precedents of this Court on the ambit of judicial review of public policies relating to health. It is well settled that the Courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. Indeed, arbitrariness, irrationality, perversity and mala fide will render the policy unconstitutional. It is neither within the domain of the courts nor the scope of judicial review to embark upon an enquiry as to whether a particular public policy is wise or whether better public policy can be evolved. Nor are the courts inclined to strike down a policy at the behest of a petitioner merely because it has been urged that a different policy would have been fairer or wiser or more scientific or more logical. Courts do not and cannot act as appellate authorities examining the correctness, suitability and appropriateness of a policy, nor are courts advisors to the executive LPA 742/2022 & LPA 748/2022 Page 172 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB on matters of policy which the executive is entitled to formulate. The scope of judicial review when examining a policy of the Government is to check whether it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution, or opposed to any statutory provision or manifestly arbitrary18.

22. This Court in a series of decisions has reiterated that courts should not rush in where even scientists and medical experts are careful to tread. The rule of prudence is that courts will be reluctant to interfere with policy decisions taken by the Government, in matters of public health, after collecting and analysing inputs from surveys and research. Nor will courts attempt to substitute their own views as to what is wise, safe, prudent or proper, in relation to technical issues relating to public health in preference to those formulated by persons said to possess technical expertise and rich experience. 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. 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. All judicial thought, Indian and Anglo-American, on the judicial review power where rules under challenge relate to a specialised field and involve sensitive facets of public welfare, has warned courts of easy assumption of unreasonableness of subordinate legislation on the strength of half-baked studies of judicial generalists aided by the adhoc learning of counsel. However, the Court certainly is the constitutional invigilator and must act to defend the citizen in the assertion of his fundamental rights against executive tyranny draped in disciplinary power.

23. There is no doubt that this Court has held in more than one judgment that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since decisions on policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. However, this does not mean that courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the LPA 742/2022 & LPA 748/2022 Page 173 of 176 Signature Not Verified Digitally Signed By:NEHA Signing Date:10.04.2023 15:59:42 Neutral Citation Number: 2023:DHC:2375-DB material on record. In Delhi Development Authority (supra), this Court held that an executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty-gritty of the policy, or substitute one by the other but it will not be correct to contend that the court shall lay its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review. It was further held therein that the policy decision is subject to judicial review on the following grounds:

There was thus no necessity of the said observations being rendered. In any case, in light of the conclusions recorded hereinabove, we find no ground to interfere with the ultimate conclusion recorded by the learned Judge in this respect.

185. Mr. Kirtiman Singh, learned CGSC had additionally sought to contend that trade and commerce in tobacco is liable to be viewed as res extra commercium. Mr. Singh had in this connection referred to certain observations as entered in Nava Bans Sar Vyapar Association as well as Health for Millions Trust and Unicorn Industries. However, we find ourselves unable to enter such a declaration bearing in mind the categorical observations as were made by the Supreme Court in Godawat. The relevant passages of Godawat in this respect are extracted hereinbelow: -

186. Accordingly, and for all the aforesaid reasons, we find ourselves unable to sustain the impugned judgment rendered by the learned Judge. These appeals shall consequently stand allowed. The impugned judgment and order dated 23 September 2022 shall stand set aside.

187. For reasons aforenoted, we find no merit in the challenge raised in W.P.(C) No. 3362/2015. It shall, in consequence, stand dismissed.

SATISH CHANDRA SHARMA, C.J.

YASHWANT VARMA, J.

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