Delhi High Court Upholds Validity Of Notifications Banning Manufacture & Sale Of Chewing Tobacco Products, Sets Aside Single Bench Ruling

The Delhi High Court on Monday set aside a single judge verdict which had quashed various notifications issued by Delhi Government’s Commissioner of Food Safety prohibiting the manufacture, storage, distribution or sale of Gutka, Pan Masala, flavoured tobacco and similar products in the national capital.

Upholding the validity of the notifications, a division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma allowed the appeals moved by Delhi Government and Union of India’s Ministry of Health and Family Welfare.

Since 2015, seven notifications have been issued by Delhi Government’s Commissioner of Food Safety.

In the judgment running into 176 pages, the court held that while Cigarettes and Other Tobacco Products Act (COTPA) adopts measures regulating smoking of cigarettes and consumption of tobacco products in public places and around the vicinity of educational institutions, its provisions neither comprehensively control nor regulate all aspects relating to the 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,” the court said.

The bench ruled that though the scheduled products falling under COTPA are regulated and controlled by separate provisions, it would be wholly incorrect to understand the enactment as being an all- encompassing and comprehensive legislation pertaining to varied aspects.

The court also said that the single judge ignored the fact that the notifications were issued by a State authority and were promulgated in exercise of powers conferred under Food Safety and Standards Act, 2006 being a parliamentary legislation.

“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,” it said.

The bench also said that as long as the regulatory power is exercised under FSSA in respect of a food article, it would not be invalidated 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,” the bench said.

It also observed that the impugned notifications were not an attempt to regulate tobacco or nicotine but to regulate food containing those substances.

Referring to various judgments, the court held that pan masala, chewing tobacco or gutka will be included in the definition of food under section 3(1)(j) of FSSA.

The bench also rejected the argument on violation of Article 14 and the prohibition being restricted to smokeless tobacco. It rejected the contention that there exists no rationale to create an artificial distinction between smoking and smokeless 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 court said.

It observed that the protection conferred under Article 14 cannot be invoked to assert a right to manufacture, sell or distribute a harmful substance merely because the Delhi Government and Union of India failed to take identical steps in respect of an equally injurious article.

“Viewed in light of the aforesaid principles, we are of the firm opinion that there existed no justification for the Impugned Notifications being quashed on grounds which have found acceptance with the learned Judge. In any case, Article 14 clearly did not warrant the Impugned Notifications being set aside,” the court held.

About Single Judge Order

In the verdict passed in September last year, Justice Gaurang Kanth had allowed a bunch of pleas filed by various entities engaged in the business of manufacture and sale of scheduled chewing tobacco products, both flavoured and scented.

The entities, respondents in appeal, claimed that they had obtained all requisite licenses and permissions under law.

The single judge had observed that the notifications were issued year after year "in a mechanical manner" without following the general principles laid down under the provisions of FSSA.

One of the main grounds of challenging the impugned notifications was that they were ultra vires the Food Safety and Standards Act as the Delhi Government's Commissioner of Food Safety was not empowered under the Act to impose such a prohibition on manufacture or sale of chewing tobacco.

The reason accorded by the entities was that tobacco product was a scheduled product under the Cigarettes and Other Tobacco Products Act (COTPA) and cannot be construed as "food" within the ambit of the FSSA.

On the other hand, the Commissioner of Food Safety had argued that it was well within his rights to issue the impugned notifications in view of Section 30(2)(a) of the FSSA, in the interest of public health and welfare.

Title: COMMISSIONER (FOOD SAFETY), GNCTD v. SUGANDHI SNUFF KING PVT. LTD. AND ORS. and another connected matter

Citation: 2023 LiveLaw (Del) 299

Click Here To Read Order