The Madras High Court in a significant ruling has quashed a Notification issued by the Food and Safety Commissioner vide which a ban was imposed on the sale of Gutka, Pan Masala, flavoured or scented food products or chewable food products containing Tobacco and/or Nicotine within the state of Tamil Nadu. The Court ruled in favour of the Petitioner represented by IndusLaw’s Chennai partner, Mr. Vivekanand G along with Ms. Varuni Mohan (Principal Associate) and Mr. Thevaraj T S (Senior Associate) who assisted Senior Advocates Mr. Satish Parasaran and Mr. Vivek Kohli.
The High Court expounded that the powers bestowed upon the Commission of Food Safety under Section 30(2)(a) of the Food Safety and Standards Act, 2006 (“FSS Act”) for imposing a ban in the interest of public health is only for a maximum period of 1 year. It implies that the ban can be imposed for a temporary period and as such no permanent ban can be levied by the Commissioner, especially by issuing successive notifications each year.
The Bench headed by Hon’ble Justice R Subramanian and Hon’ble Justice K Kumaresh Babu explicitly stated that the Commissioner while imposing a permanent ban on the same or manufacture of tobacco and allied products has exceeded the statutory powers which cannot be sustained in law.
“The notifications can be only temporary measures and allowing the Commissioner, Food Safety to impose a permanent ban by issuing successive notifications would amount to conferring a power that is not contemplated by the statute.”,the Court opined.
After examining the FSS Act and Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“COTPA”), the High Court was of the view that both the Acts have distinct object and purpose, the former was enacted to regulate the Food industry while the latter aims to regulate the use of Tobacco products in public places. Therefore, the two enactments cannot be said to be contradictory to each other and in case of any overlapping provisions, harmonious construction doctrine may be applied.
Further, the Bench propounded that Tobacco being a product of agriculture will be categorized as a food product under Section 3(j) of the FSS Act. On this finding, the Madras High Court differentiated from the Delhi High Court’s opinion in the case of Sugandhi Snuff King Pvt. Ltd. & Anr. V. Commissioner (Food Safety) Government of Delhi (WP (C) No. 3362/2015).
The Madras High Court held “We express our inability to agree with the conclusion of the Delhi High Court to the effect that Tobacco cannot be construed as Food within the meaning of the provisions of the FSS Act.”
Asserting that a complete ban on the said products has to be backed by a statutory power, the Division Bench enunciated that in both the enactments FSS Act and COTPA, no such provision is present which allowed for a permanent ban.
“Successive notifications issued by the Commissioner of Food Safety relying upon Regulation 2.3.4 are not within the powers of the Commissioner and the Commissioner of Food Safety has exceeded its powers in issuing such successive notifications. We, therefore, quash the notifications on the ground that they are in excess of the powers of the Commissioner of Food Safety.”
Case Title: The Designated Officer v. Jayavilas Tobacco Traders LLP, Manoj Kumar Srivastava v. The Commissioner
Coram: Hon’ble Justice R Subramanian and Hon’ble Justice K Kumaresh Babu
Case No: Writ Appeal No. 2093 of 2018, WP NO. 3076 & 3084 of 2019
Advocates for Petitioner: Advs. Mr. R. Shanmugasundaram, Mr. K.V. Sanjeev Kumar,Satish Parasaran, Mr. Vivekanand G, Varuni Mr. Thevaraj T S , Mr. Vivek Kohli.
Advocates for Respondents: Advs. Mr. S.R. Rajagopal, Mr. K.R. Laxman
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