No Bar On Hookah Services In Restaurants If Designated Smoking Area Is Provided As Per Law: Madras High Court
While granting relief to a hotel owner, the Madras High Court has recently held that there is no prohibition under law for providing Hookah services in restaurants if same is run conforming to the provisions of “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act, 2003” and also “The...
While granting relief to a hotel owner, the Madras High Court has recently held that there is no prohibition under law for providing Hookah services in restaurants if same is run conforming to the provisions of “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act, 2003” and also “The Prohibition of Smoking in Public Places Rules, 2008”.
The court noted that as per law, a separate smoking area, i.e. a separately ventilated smoking area with the board “Smoking Area” in English or one Indian language is a must. The restaurants should further display the Health advisory message against smoking at the entrance of the restaurant and that the entry of persons below 18 years should be prohibited.
Justice G Chandrasekharan thus directed the police authorities not to harass the restaurant owner or interfere with him running the restaurant if the Hookah service was being run according to law. If otherwise, the authorities had liberty to take appropriate legal action.
this Court disposed this writ petition with a direction to the respondent police not to harass the petitioner or his staff and also not to interfere with the petitioner's running of restaurant “Kafe Latte” along with Hookah service, if the Hookah service is being run conforming to the provisions of “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act, 2003” and also “The Prohibition of Smoking in Public Places Rules, 2008”. If there is violation of any provisions under this Act, it is open to the respondents to take appropriate legal action.
The petitioner had submitted that he had all necessary licenses for running the business. The Hookah was served in a designated smoking area to customers above the age of 21 years in accordance with all the guidelines. He also submitted that proper warning boards and signs regarding health hazards were placed at conspicuous places and that the restaurant was not situated anywhere near 100 yards of educational institutions.
The petitioner further submitted that the police had filed an FIR against him for having materials for making "Hookah" when Hookah was not even a banned substance.
The State, on the other hand, supported the FIR by submitting that there was no specific zone in the restaurant. It was also submitted that the restaurant was functioning near schools and colleges and might spoil the students thus injuring their health.
The State further submitted that it had implemented a Bill to amend the “Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, supply and Distribution) Act prohibiting hookah bars.
The court however observed that until the Act was introduced in the Tamil Nadu legislative assembly, it could not be given effect to. Further, there was already an injunction order against the police authorities from interfering with the working of petitioner's restaurant and providing hookah services in specific smoking zones.
The court noted that the materials seized from the restaurant were hookah pots, Tubes, Alufo-Aluminium foils and premium coconut charcoal. Since smoking hookah was not prohibited, the court noted that the FIR was based on wrong understanding of law.
Case Title: Jay Shah v. The Commissioner of Police and others
Citation: 2023 LiveLaw (Mad) 57