Prosecution Cannot Be Initiated Under Food Safety and Standards Act For Lack Of Labelling On Chewing Tobacco Product By Manufacturer: Delhi High Court

The Delhi High Court has observed that a prosecution cannot be initiated under Food Safety and Standard Act, 2006 for any lack on part of the manufacturer in labelling a chewing tobacco product.

Justice Swarana Kanta Sharma said that such a prosecution will have to be dealt as per the provisions of Cigarettes and other Tobacco Products (Packaging and Labelling) Rules, 2008 and section 20 of Cigarettes and Other Tobacco Products Act, 2003 or any other law applicable therein.

"Therefore, considering the facts and circumstances of the case and the settled position of law, when the product in question is admittedly chewing tobacco, application of FSSA, 2006 is ruled out," the court added.

The court made the observations while dealing with two pleas filed by manufacturer and seller of a flavoured chewing tobacco product "Royal Zafrani Zarda" seeking quashing of a complaint case as well as two orders passed by the trial court.

After a sample of the product was taken by Food Safety Officer and a Food Analyst Report was prepared, the entire case file was sent by the Designated Officer to Delhi Government's Commissioner (Food Safety) who accorded consent under section 42(4) of FSSA for the prosecution of petitioners.

The trial court had then taken cognizance of the offences mentioned in the complaint and summoned the petitioners. Their revision petition against the summoning order was dismissed by the sessions court.

It was submitted on behalf of the petitioners that the product was a tobacco product covered under the COTPA and thus, cannot be subjected to FSSA. It was added that no authority under FSSA is conferred with any powers to exercise jurisdiction over the product in question.

The petitioners' counsel also submitted that a huge pictorial warning, on both sides, covering 80% of the display and relevant declaration, in compliance with COTPA, clearly stated that the product was a Tobacco Product.

While allowing the plea, the court relied on a recent decision of a coordinate bench wherein it was held that tobacco cannot be construed as "food" under FSSA and that COTPA occupies the entire field for tobacco and tobacco products.

The court noted that as per the Food Analyst Report, the product in question was a flavoured tobacco and that the physical description of the product also said "Brown color sample of tobacco containing Metal leaves and flavours peculiar to saffron. The sample is flavoured chewing tobacco as it contains food ingredients like silver leaves flavours and saffron alongwith tobacco."

"When the product has itself been categorized as chewing tobacco by the Department of Food Safety, Government of NCT of Delhi, the same would immediately fall under the purview of COTPA, 2003…," the court said.

The court observed that the provision regarding "unsafe food" under section 3(1)(zz)(i) of FSSA was also not applicable in the case since the product cannot be termed as "food" under FSSA.

Noting further that a sample was shown to the court having pictorial health warnings covering a large area of the packaging, Justice Sharma said:

"Be that as it may, even if there was any lack on part of the petitioners/manufacturers in labeling the product as per law, the same will have to be dealt as per the provisions of Cigarettes and other Tobacco Products (Packaging and Labeling) Rules, 2008 and Section 20 of COTPA, 2003 or any other law applicable therein, and prosecution cannot be initiated under FSSA, 2006 for such violation, if any."

The court thus quashed the impugned orders as well as the complaint case against the petitioners.

Title: D.S. CHEWING PRODUCT LLP & ORS. v. FOOD SAFETY OFFICER

Citation: 2022 LiveLaw (Del) 1202

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