Govt's Argument Against Tobacco Is Like Devil Quoting Scripture, When It Has Thousands Of Liquor Outlets Of Its Own: Madras High Court

Dealing with the State's argument that consumption of tobacco is causing a serious health hazard and Article 47 of the Constitution imposes a duty on it to improve public health, the Madras High Court said the government's contention would have impressed it had the law been enforced into totality.

"Unfortunately, that is not the case. The State has monopolized the privilege of selling liquor. The government of Tamil Nadu is raising huge revenue through liquor sale. Tamil Nadu State Marketing Corporation (TASMAC), a wholly government owned company, has thousands of retail outlets throughout the State," said the court

Justice G R Swaminathan compared the state's argument on Article 47 against tobacco to "devil quoting the scripture or pot calling the kettle black."

The court was dealing with a matter challenging the Food Safety and Drug Administration Department's decision to ban the sale of such tobacco leaves on which jaggery water has been sprayed by the seller. The dealers of 'unmanufactured tobacco' purchase the leaves from farmers, spray jaggery water on them and then cut them into small pieces before packing them for sale.

According to the department as a result of the liquoring process, the raw tobacco undergoes a fundamental change and emerges as a distinct product which makes it edible.

The department also cited test reports to claim the manufacturers use Nicotine as an ingredient in the manufacture of their products. Thus, according to the department, raw tobacco was processed and made fit for chewing and consumption. The same is clearly prohibited in law under Regulation 2.3.4 of Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations 2011, the government argued.

Spraying Of Jaggery Water On Tobacco Does Not Amount To 'Manufacturing'

The bench relied upon the decision of a division bench in Pachiappa Chettiar v State of Madras wherein the court had held that sprinkling of jaggery water, drying tobacco in the shade and subjecting it to the process of bulking would not convert raw tobacco into some other product and that cutting the same also will not mean that there is a process of manufacture.

Looking into the test reports, the court said

"I went through the test reports of the respondents. A mere look at the same would reveal that on account of the sprinkling of jaggery water, there has been no change in the Nicotine content. Jaggery water is sprayed only to ensure that the leaf does not turn brittle. In other words, the Nicotine content in the tobacco remains the same before and after the liquoring process. Nicotine is inherent in the product itself. It is not as if the petitioners have added Nicotine as an ingredient in the food product."

The court also noted that cultivation of tobacco was not prohibited in the country like that of Ganja.

"There is even Central Tobacco Research Institute located in Vedasandur, Dindigul which trains the tobacco farmers regarding tobacco cultivation. Applying the ratio laid down by the Hon'ble Division Bench in Pachiappa Chettiar case, I hold that the petitioners are dealing only with unmanufactured tobacco and that they have not been mixing the same in any food product," it added.

On State's argument that Article 47 imposes a duty on it to raise the level of nutrition, the court, while referring to presence of the government liquor stores in the state, also said that it was not rejecting the contention on the ground of whataboutery.

"Nicotine is inherent in tobacco and its content in the tobacco leaf has not gone up on account of spraying of jaggery water. Regulation 2.3.4 only mandates that tobacco and nicotine shall not be used as ingredients in any food products. Since the petitioners are dealing only with unmanufactured tobacco, they have not breached any of the statutory provisions."

Thus, the court set aside the impugned orders and notice and allowed the petition filed by the manufacturers.

Case Title: M/s ES Mydeen and Co. v. The Designated Officer and others

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