Tobacco; Omkar Agency Vs. State of Bihar [Patna High Court, 19-07-2016]

Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003 (COTPA)- Food Safety and Standards Act, 2006 – Section 30(a) –  Scope and Powers – Held, The order of the Commissioner of the Food Safety, in so far as it prohibits the use of tobacco and nicotine with respect to scheduled tobacco products under COTPA, is not only arbitrarily made, but is also beyond the scope of powers conferred by the Food Act.


IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE THE ACTING CHIEF JUSTICE and HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH

Date: 19-07-2016

Civil Writ Jurisdiction Case No.3805 of 2015

M/s Omkar Agency, through its Proprietor Narayan Panda, son of Late Murlidhar Panda, resident of Krishna Market, Karbigahiya, P.S. Jakkanpur, District Patna (Bihar)….. …. Petitioner

Versus

1. The Food Safety and Standadrs Authority of India, FDA Bhavan, Near Bal Bhavan, Kotla Road, New Delhi- 110002 through its Chairperson 2. Secretary, Ministry of Health and Family Welfare, Government of India, New Delhi …. …. Respondents

With Civil Writ Jurisdiction Case No. 18244 of 2015

M/s Prabhat Zarda Factory India Private Ltd., ( a Company registered under Companies Act 1956 ) respresented by its Director, Rajesh Kumar Prasad Son of Late Sridhar Prasad, having Registered office at New Area, Sikandarpur, P.S. Muzaffarpur Town, District – Muzaffarpur, Bihar …. …. Petitioner

Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna, 2. The Principal Secretary, Department of Health & Medical Education, Government of Bihar, Patna, 3. The Commissioner of Food Safety, Pariwar Kalyan Bhawan, Government of Bihar, Patna …. …. Respondents

With Civil Writ Jurisdiction Case No. 18282 of 2015

Rajat Industries Pvt. Ltd., through its Zonal Manager Syed Zeyaul Islam, son of Syed Arif Reza, resident of Vivek Nursing Home, 4th Floor, G T Road, P.S. Golawari, District Kolkata, West Bengal….. …. Petitioner

Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna., 2. The Principal Secretary, Department of Health & Medical Education, Government of Bihar, Patna., 3. The Commissioner of Food Safety, Pariwar Kalyan Bhawan, Government of Bihar, Patna….. …. Respondents

With Civil Writ Jurisdiction Case No. 18351 of 2015

1. M/s Omkar Agency, through its Proprietor Narayan Panda, son of LKate Murlidhar Panda, resident of Krishna Market, Karbigahiya, P.S.- Jakkanpur, District- Patna (Bihar), 2. M/s. R K Products Company, (Unit III), Plot No. 126, SY No. 125 Part, I D A Mallapur, RR, P.S. Nacharam, District Hyderabad through its authorized Signatory, Jitendra Kumar Chaurasia, son of Sri Megh Nath Chourasia, resident of Gali No. 2, Chandmari Road, P.S.- Kankarbagh, District- Patna (Bihar) …. …. Petitioners

Versus

1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna; 2. The Commissioner of Food Safety, Patna, Bihar …. …. Respondents

Appearance : (In all cases) For the Petitioner(s) : Mr. Jitendra Singh, Senior Advocate Mr. Prabhat Ranjan, Advocate For the Respondent-UoI: Mr. S. D. Sanjay, A.S.G. For the Respondent-State : Mr. Mr. P.N. Shahi, AAG-10 For FSSAI : Mr. Brisketu Sharan Pandey, Advocate

JUDGMENT AND ORDER

(Per: HONOURABLE THE ACTING CHIEF JUSTICE)

The present set of writ petitions involve common question of fact and raise common questions of law; hence, these writ petitions have been heard together by the consent of the parties for final disposal and are being disposed of by this common judgment and order.

2. The petitioners are manufacturers of tobacco products, such as Pan Masala and Zarda. The petitioners are aggrieved by the orders of the Commissioner of Food Safety, Patna, whereby the Commissioner, in exercise of powers, under

Section 30(a) of the Food Safety and Standards Act, 2006

has prohibited the manufacture, storage, distribution or sale of Zarda, Pan Masala and Gutkha.

3. The petitioners contend that the Food Safety and Standards Act, 2006, and the Regulations made thereunder do not operate as a prohibition on Manufacture, Production, Marketing, Storage and other allied activities of the Scheduled Tobacco products within the meaning and definition of the

Cigarettes and other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce Production, Supply and Distribution) Act, 2003

(hereinafter referred to as COTPA). It is the case of the petitioners that as the petitioners are dealing in the manufacturing, production and marketing of Scheduled Tobacco products within the meaning of Section 3 (p) of COTPA, they are not performing any Food Business and, hence, they are not Food Business Operators under the Food Safety and Standards Act, 2006. Consequently, they are not required to submit to the statutory requirements of the Food Safety and Standards Act, 2006, and the Regulations made thereunder. It is also their case that the COTPA is a comprehensive law to provide for Regulation of Trade and Commerce and other allied activities including production in tobacco products and, as such, the petitioners, who are manufacturers of tobacco products, are regulated exclusively by the provisions of the COTPA. The petitioners further contend that the Central Government is levying and collecting Excise duty considering the products, in question, namely, pan masala and Zarda as tobacco products.

4. The petitioners have also challenged the vires of Regulation 2.11.5 of the Food Safety and Standards (Food Products Standards Food Additives) Regulation, 2011, made by the Food Safety and Standards Authority of India, whereby Pan Masala (not Zarda) has been included as an item of food, the standards for the same has been prescribed and separate provisions for their packaging and labeling has been made. In this regard, it is contented that the Regulations 2.11.5 of the Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011, being in the form of a subordinate legislation, made by a statutory authority, namely, Food Safety and Standards Authority of India (FSSAI), under its rule- making power, is in direct and irreconcilable conflict with the substantiveCentral Act being COTPA enacted by the Parliament of India. It is also contended that the impugned Regulations suffer from the vice of excessive delegation and travel beyond the scope of delegation as conferred by the parent Act, there is inherent lack of legislative competence as the impugned Regulations is hit by the inhibition contained in Article 13 (2) of the Constitution of India prohibiting the State from making any law, which takes away or abridges the rights conferred under Part III of the Constitution of India and thereby renders any such law abridging Fundamental Rights, to the extent of contravention, void.

5. It has been further urged that by virtue of inclusion of Pan Masala as an item of Food under the Food Safety and Standards (Food Products Standards & Food Additives) Regulation, 2011, the product has to conform to the other Regulations made under the Food Safety and Standards Act. As per Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sales) Regulation 2011, Tobacco and Nicotine shall not be used as ingredients in any Food Products. However, as per Section 7 (5) of COTPA, which is a substantive Central Act, the use of Tobacco or Nicotine is permissible in any tobacco products. Thus, Pan Masala, being a Scheduled Item at Serial No. 8 of the Schedule appended to COTPA, addition of Tobacco or Nicotine, by virtue of Section 7 (5) of the COTPA, is permissible. However, if Pan Masala is treated as an item of food, as has been done by the impugned Regulation 2.11.5, then, no Tobacco or Nicotine can be mixed in any Pan Masala.

6. It is, therefore, submitted that inclusion of Pan Masala under the Food Safety and Standards Act, 2006, leads to inherent inconsistency between two different Acts and render them entirely inconsistent and unworkable; hence, the impugned Regulation must yield in favour of the substantive Central Act, i.e., COTPA.

7. The petitioner further states that impugned Regulations suffer from the vice of excessive delegation. It is contended that the Food Safety and Standards Act, 2006, was enacted, on 23.08.2006, to consolidate the laws relating to Food and to establish the Food Safety and Standards Authority of India for laying down science based standards for article of Food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and whole-some food for human consumption and for matters connected therewith and incidental thereto.

8. It is the case of the petitioners that a conjoint reading of the aims and objects and Section 97(1) of the Food Safety and Standards Act, 2006, makes it clear that at no point of time, there was any intention of the legislature to repeal the COTPA. The Food Safety and Standards Authority of India was constituted only for the purposes of laying down science based standards for articles of food and other allied activities. The Food Safety and Standards Act, 2006, nowhere, while delegating the rule-making power, empowered the Food Safety and Standards Authority of India to make any Regulation, which, in effect, overrides or repeals any Substantive Central Act or plenary legislation. The inevitable result of the impugned Regulation by the Food Safety and Standards Authority of India is, virtually or impliedly repealing a plenary legislation, namely, COTPA by means of a delegated legislation, which was beyond the scope of the rule-making power of the authority concerned.

9. The petitioners also submit that by virtue of the impugned Regulations, whereby Pan Masala has been brought under the scope and applicability of the Food Safety and Standards Act, 2006, the product has to conform to the other Regulations made under the Act. In exercise of powers conferred by Clause (k) of Sub-Section (2) of Section 92 read with Section 23 of the Food Safety and Standards Act, 2006, the Food Safety and Standards Authority of India has made the Food Safety and Standards (Packaging and Labelling) Regulations, 2011. As per Regulation 2.4 of the Food Safety and Standards (Packaging and labelling) Regulation 2011, every package of Pan Masala and advertisement relating thereto shall carry the warning namely—-“Chewing of Pan Masala is injurious to health”.

10. If Pan Masala is treated to be an Item of Food under the Food Safety and Standards Act, 2006, as has been done under the impugned Regulations, then, in that event, as per the Packaging rules under the Food Safety Act, it has to only mention statutory warning, namely, Chewing of Pan Masala is injurious to Health and, furthermore, the advertisement of the product is also permissible subject to the aforesaid Statutory warning being mentioned in the Advertisement. To the contrary, the substantive Central Act, i.e., COTPA, provides altogether a different Packaging and Labelling Rules for tobacco and tobacco products in the name of the Cigerattes and other Tobacco products (Packaging and Labelling) Rules 2008, and prohibits the advertisement of the products altogether. Thus, if the impugned Regulations is given full effect, the consequence would be that advertisement of a tobacco product like Pan Masala would become legally permissible, whereas COTPA does not permit at all the advertisement of tobacco products.

11. The respondent, Union of India, opposing the claims of the petitioners, submits that the Supreme Court, in the case of Ankur Gutka vs Asthma Cure, SLP 16308/2007, has been pleased to issue notice to the State Governments to show cause as to why prohibition order has not been issued in connection with Pan Masala containing Tobacco and Gutka; hence, the ban on Gutka has been imposed in terms of the directions of the Supreme Court. It has been further stated by the Union of India that the Supreme Court, in the case of Godawat Paan Masala vs State of Maharashtra, reported in (2004) 7 SCC 68, has held that Gutka is an item of food and since tobacco is used for human consumption, it becomes food within the meaning and definition ofSection 3(j) of the Food Safety and Standards Act, 2006. The Union of India also contend that since the Food Safety and Standards Act, 2006, has an over-riding provisions in the form ofSection 89, it will prevail over COTPA.

12. The State Government, while defending the order of the Food Safety Commissioner and adopting the arguments of the Union of India, has taken the plea that the Food Safety andStandards Act, 2006, being a later Act than that of COTPA 2003, would prevail over the latter.

13. We have heard Mr. Jitendra Singh, learned Senior Counsel, appearing for the petitioners, and Mr. P.N. Shahi, learned Additional Advocate General No. 10, appearing for the State-respondents. We have also heard Mr. S.D. Sanjay, learned Additional Solicitor General, appearing on behalf of Union of India.