Manufacturer Of Banned Tobacco Product Which Is 'Food' Can Be Prosecuted Under Food Safety And Standards Act: Madras High Court

A single judge bench of Justice G Jayachandran in its order also noted that the manufacturer of the banned tobacco was liable to face prosecution and could not claim that he had no knowledge how the product entered the banned place.

“The manufacturer of the banned product is liable to face the prosecution since their product which is a chewable tobacco with nicotine is a food and the Hon'ble Supreme Court in its interim order dated 25.04.2023 has given liberty to the respondent (chewing tobacco manufacturers)to seek redressal before the appropriate forum if they have a case that their acts or operations are not covered by the Notification issued under Section 30(2) of the FSS Act,” the court said.

The court noted that as per Section 109 of the Bharatiya Sakshya Adhiniyam 2023, when any fact was especially within the knowledge of any person, the burden of proving the fact was upon the person.

The court thus observed that the manufacturer of the tobacco product was supposed to disclose the details of manufacture of his products, to whom the products were sold, etc and when the manufacturer chooses to remain silent, it leads to a statutory presumption that that the product was knowingly distributed in a state where there was a ban.

The court was hearing a plea by Jaiswal Products, manufacturer of Hans Chhap Tobacco against the proceedings before Katpadi Judicial Magistrate based on a complaint by the Food Safety Officer under Section 52(i) and 63 of the Food Safety and Standards Act 2006 against the manufacturer and seller.

It was alleged that the Food Safety Officer, having jurisdiction over Vellore District had inspected the shop of one G Mohan were it was found that banned Hans Chhap Tobacco was stocked by the shop owner without any purchase bill. Samples were drawn and tested by State Laboratory where it was found that it contained nicotine, an unsafe food. Based on this, the complaint was filed which was taken on file by the Judicial Magistrate.

The petitioner manufacturing company submitted that it was a registered manufacturer under the Excise Act and the GST Act and had been varying on the trade of tobacco. It was argued that tobacco would not fall within the definition of “Food” to invoke the provisions of the Food Safety and Standards Act and thus the action of the Food Safety officer was baseless and without legal sanction.

It was further submitted that though a notification was issued banning the tobacco products, this notification was stayed by the Delhi High Court and thus on the date of seizure and complaint there was no ban. It was also argued that the manufacturer's product was tobacco and would be covered under the COTPA Act instead of the Food Safety Act and thus unless it was mixed with any food product, the manufacturer could not be implicated for manufacturing unsafe food. It was also argued that there was no material to show that the manufacturer directly or knowingly sold the products in a State where it is banned.

The Additional Advocate General appearing for the state argued that being the Manufacturer, they were bound to explain how their products found way to Tamil Nadu. He also pointed out that huge quantity of banned products found across Tamil Nadu could not be construed as sold or transported without the connivance of the manufacturer and anything contrary had to be proved by the manufacturer.

The high court then noted that the State of Tamil Nadu had issued a prohibitory order in 2013 as per the Supreme Court directions and this notification had been renewed every year. The court also noted that the Government of India, though its Health and Family Welfare Department had reinforced the need to ban chewing tobacco product.

The high court also noted that it had in its earlier decisions held that tobacco with or without any additive was a food product under the Act.

The court also noted that in the present case, the manufacturer, after issuance of show cause notice had not disclosed any information about the manufacture and sale of the tobacco products that was in his exclusive knowledge. The court thus held that the manufacture could prove his case before the trial court by producing documents to prove that they have not sold products to dealers in Tamil Nadu.

The court was thus not inclined to quash the proceedings and dismissed the plea.

Case Title: M/s Jaiswal Products v State of Tamil Nadu

Counsel for Petitioner: Mr.D.Saikumaran and Mr.L.Goutham Raj

Counsel for Respondent: Mr.P.Kumaresan, AAG-VII Asst.by Mr.S.Udaya Kumar Govt.Advocate (Crl.Side)

Citation: 2024 LiveLaw (Mad) 418

Case No: Crl.O.P.No.1698 of 2023