Restaurants entitled to provide tobacco products in the smoking area of licensed premises

Supreme Court: In the present case, the Court set aside  the decision of Bombay, Madras and Gujarat High Courts barring the restaurants to provide tobacco products including cigarettes and hookah in smoking area of the licensed premises viz. restaurants, airports etc. The Court was hearing challenge against the Circulars issued by Municipal Corporations of Mumbai, Chennai and Ahmedabad implementing Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply & Distribution) Act, 2003 and Prohibition of Smoking in Public Places Rules, 2008, which allegedly banned serving of hookah in licensed premises.

The counsel for appellant C.U.Singh, contended that the circular by Mumbai Municipal Corporation was in excess of the provisions provided in the above mentioned Acts. The counsel for respondents R.P.Bhatt said the circular provided only what was stated in the respective Act and Rules, read with harmonious construction, and nothing extra was provided in the Circulars.

The Court hearing the appeal against Bombay HC, held that the circular exceeded its power since Section 6 of Cigarettes and other Tobacco Products Act, 2003 bars selling of cigarettes and other tobacco products only to a minor and within 100 yards of educational institutions and clearly adding any new condition i.e. of barring licensed premises to serve tobacco products, to the existing ones would be impermissible by law. The Court further said that Rule 3 (1)(a) of Prohibition of Smoking in Public Places Rules 2008 makes it incumbent upon owner of a licensed premises to prohibit smoking in such places but where smoking in smoking area is allowed by Rule 4(3) therefore smoking hookah would be allowed in such places as the same comes under the definition of smoking provided under Section 3(n) of the  Cigarettes and other Tobacco Products Act, 2003. The Court added that the dimensions for smoking area provided in the Circular is within ambit of municipal corporations and thus have to be adhered to. Similarly decision of Madras HC was set aside banning sale of tobacco products within 300 feet of educational institution as the Act provided for 100 yards. The decision of Gujarat HC upholding the ban implemented under Section 144 of CrPC was also set aside holding that the Order under said Section was only valid for 2 months and the same cannot be extended  for long in name of equity as it would be in contravention of law. Narinder S. Chadha v.Municipal Corporation of Greater Mumba, 2014 SCC OnLine SC 981, decided on 8.12.2014)

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