Tobacco Not A 'Food' Product: Andhra Pradesh High Court Reiterates; Quashes FIR Under Food Safety Standards Act

A Bench of Justice K. Suresh Reddy relied on a 2019 ruling of the High Court in Sri Jaganath Enterprises v. State of Andhra Pradesh whereby the FIR registered against a tobacco manufacturer was quashed on this ground. It was held therein that tobacco products are governed solely by the Cigarettes and other Tobacco Products Act, 2003.

"The COTPA Act is a special Act intended to deal with trade, commerce, production, supply and distribution of tobacco products. Although it is universally recognised that tobacco products are injurious to health, the fact remains that their production, trade and supply etc., are not banned in their entirety… Whatever be the impact of tobacco products on the health of an individual or the nation; till the law is amended/modified it has to be followed," the order stated.

In view thereof, the single-Judge held,

"Considering the aforesaid and looking to the undisputed fact that previously, F.I.Rs., have been quashed by this Court in similar matters, however, registration of F.I.R and proceeding with trial is wholly undesirable."

In 2015, by the Madurai Bench of High Court in Manufacturer, M/s. Tejram Dharam Paul, Maurmandi, Bhatinda District, Punjab & Anr. v. Food Safety Inspector, had upheld the Petitioner's contention that tobacco does not come within the purview of Food Products.

Thereby, the Court had relied on a ruling of the Kerala High Court as per which:

(i) Tobacco or tobacco products are not food as defined under Section 3(j) of the FSS Act and it is not a food product as specified in the Regulation 2.3.4 of the Regulations made thereunder; (ii) Tobacco and tobacco products are to be manufactured and sold strictly in accordance with the provisions of the CTP Act and the Rules framed thereunder; (iii) Food safety authorities have no right take any action against tobacco or tobacco products by virtue of Government Order dated 22.05.2012.

In 2017, Justice M. Duraiswamy of the Madras High Court relied on the aforesaid decisions and held that persons who are manufacturing Gutkha and Pan Masala cannot be proceeded under the FSSAI as tobacco is covered under the COTA (Cigarettes and other Tobacco Products Act, 2003).

The High Court of Delhi had also, in the same year, observed that chewing tobacco and pan masala do not come under the definition of 'food' prescribed by the Prevention of Food Adulteration Act, 1954.

"It is clear after going through the Schedule of the CPT Act that "Chewing Tobacco" and "Pan Masala" which has tobacco as one of its ingredients comes within the definition of "Tobacco Products" as per Section 3(p) of the CPT Act. None of the items including chewing tobacco mentioned in the Schedule could be included in the definition of "food" under Section 2(v) (a) of the PFA, 1954 since none of these items could be said to be used as food for human consumption or ordinarily enter into or are used in the composition or preparation of human food.

Further if the legislature intended to include Pan Masala having tobacco as one of its ingredients or Chewing Tobacco as a "food" item under Section 2(v) (a) of the PFA, 1954 then it would have been specifically mentioned in Appendix B which contains the standards of quality of all food items falling under the PFA, 1954. Therefore since "Chewing Tobacco" and Pan Masala containing tobacco as one of its ingredients come within the ambit of the CPT Act, Rule 44J of the PFA, 1954 cannot be said to apply to these products," it had held.

The Calcutta High Court in Sanjay Anjay Stores v. Union of India & Ors., Manu/WB/0846/2017, also came to the conclusion that tobacco is not a food stuff.

[Section 3(1)(j) defines "Food" as any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances]

Case No.: Gurram Srinivasa Rao & Ors. State

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