You Are Not Exactly Selling “Amrit”!: Supreme Court To Parties Supporting Madras HC Order Quashing Ban On Chewing Tobacco

The comment was made by a Bench of Justices KM Joseph and B V Nagarathna, pointing to the Respondents who appeared in the support of the High Court judgement.

The Bench hinted that the Respondents were selling items injurious to the public's health. The comment was prompted after the counsel for the Respondents argued against staying the High Court order.

In January, the Madras High Court set aside a notification issued by the State Commissioner of Food Safety imposing a ban on sale of Gutka, Pan Masala, flavoured or scented food products or chewable food products that contain tobacco or nicotine. It noted that both the Food Safety and Standards Act and the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 [COTPA] did not provide for a complete ban on Tobacco products.

The State government in 2013 imposed a ban on tobacco and gutka products, using a temporary provision under the Food Safety and Standards Act, 2006. The ban was subsequently extended every year through various notifications.

During the hearing, Senior Advocate CS Vaidyanathan for the Respondents argued that a permanent prohibition on Tobacco products is beyond the existing legal framework. “Whether there can be permanent prohibition? There can be a ban during (health) emergency but not a total prohibition,” he said.

Senior Advocate Abhishek Singhvi appearing for another respondent pointed out that the last State notification had expired years ago. Vaidyanathan further argued that issuing notifications year after year under the 2006 Act isn’t permissible.

Appearing for the Tamil Nadu government, Senior Advocate Kapil Sibal argued that the year after year argument isn’t valid.

“If it is injurious to the public, can the year-on-year argument be used? Can cancer depend on it? What kind of argument is that?...It is about health. Can it be year on year to control centre?” he asked.

To this, the Bench asked why tobacco wasn’t banned permanently.

That's for the Centre to decide, Sibal said.

“What you can't do directly, can you do it indirectly?”, Justice Nagarathna asked.

The High Court has held that it is a food product, so the government can regulate under the FSA, Sibal said.

Vaidyanathan said that the High Court ruled that 'gutka' is an article of food but not tobacco. “We have not challenged the addition of tobacco to food article”. Hey clarified that they were challenging the ban on chewing tobacco, not Gukta.

Sibal requested for the Bench to pass an order stating that State was at liberty to prosecute people selling pan masala and tobacco separately.

“Lordships may say notwithstanding the High Court order, we are at liberty to prosecute people selling pan masala and tobacco separately…I can't find when he [consumer] is mixing it because he buys it separately.”

Referring to Section 30(2)(a) of the FSA, Vaidyanathan argued that it takes care of an emergency situation.

“From where did you get emergency?”, the Bench asked which prompted the senior counsel to read out the section. “If it is repeatedly used...statute says that you shall not issue notifications for the same thing year after year. The situation contemplated is that there's a health issue which is permanent according to them (government),” he submitted.

Sibal said that it was pursuant to a 2016 Top Court order that a ban on Tobacco products was imposed in the State.

“We don't want the (High Court) judgement to stand in the way. That's all your Lordships may say”, submitted Sibal.

However, the Bench did not pass any order and posted to matter on April 18 as the first item.

Case Title: State of Tamil Nadu vs Jayavilas Tobacco Traders LLP | SLP [C] 5140/2023

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