A division bench of the Madras High Court comprising of Justice R Subramanian and Justice K Kumaresh Babu in a Writ Appeal quashes the successive notifications issued by the Commissioner of Food Safety for banning the sale of products that contain tobacco, as it was in excess of their statutory powers.
Brief Facts:
The order of the Commissioner of Food Safety imposing a ban on the sale of Gutka, Pan Masala, flavored or scented food products or chewable food products containing tobacco and/or Nicotine as ingredients as per the powers under Section 30(2)(a) of the Food Safety and Standards Act, 2003 was challenged by way of the writ petitions. The writ applications also challenged the criminal prosecution which was initiated as per the order if there is a violation of the ban.
In the Writ Court, it was concluded that the respondent cannot be a criminal. The same judgment was challenged by way of this Writ Appeal in the Madras High Court.
Observations of the Court:
Section 30(2)(a) of the Food Safety and Standards Act, 2006 was referred by the Bench and it was concluded that this provision cannot be used for imposing a permanent ban that too by issuing successive notifications year by year. The power vested in the commissioner of Food Safety is to only issue notifications for temporary measures and imposing bans by issuing successive notifications is not within the statutory powers of the commissioner. Hence, it was concluded that the notifications issued for permanently imposing the ban, is in excess of the powers of the Commissioner, of Food Safety. Further, the court mentioned that if an almost permanent ban on a food product is permitted by this court, then the court will be permitted something that is not contemplated by the bylaws and that will amount to doing violence to the provisions of the enactment.
It was also noted by the court that Food Safety and Standards Act as well as the Cigarettes and Other Tobacco Products Act (COTPA), 2003, both do not provide for a complete ban on tobacco products and the court disagreed with the view that the provisions of COTPA would prevail over the provisions of the FSS act as noted by the Delhi High Court. The case J. Anbazhagan v. Union of India was also referred to where it was concluded that Tobacco with or without any additives would fall within the definition under Section 3 (j) of the FSS Act.
Decision of the Court:
The Successive Notifications issued by the Commissioner of Food Safety were quashed by the court on the ground that they were in excess of the powers of the Commissioner, of Food Safety under section 30(2)(a) of the FSS Act. Further, the criminal proceedings launched on the basis of the imposition of the ban were also quashed.
Case Title: The Designated Officer v. Jayavilas Tobacco Trades LLP
Coram: The Hon’ble Mr. Justice R. Subramanian and The Hon’ble Mr. Justice K. Kumaresh Babu
Case No.: WA No. 2093 of 2018 (and other related cases decided together)
Advocate for the Appellant: Mr. R. Shanmugasundaram (Advocate General)
Advocate for the Respondent: Mr. S.R. Rajagopal
Read Judgment ;
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(With input from news agency language)
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