Madras High Court| Notification permanently banning sale of tobacco and its products is beyond the scope of powers of Food safety Commissioner

Madras High Court

Madras High Court: In a case relating to imposing a ban on sale of Gutka, Pan Masala, flavoured or scented food products or chewable food products by whatever name called containing Tobacco and/or Nicotine as ingredients, the division bench of R. Subramanian and K. Kumaresh Babu, JJ. held that the successive notifications issued by the Commissioner of Food Safety relying upon Regulation 2.3.4 are not within the powers of the Commissioner and he had exceeded his powers in issuing such successive notifications. Thus, it quashed the notifications on the ground that they are in excess of the powers of the Commissioner, Food Safety.

The writ petitions, challenging the order of the commissioner of food safety, imposing a ban and sale of the above stated products for one year from 23-05-2018 invoking power under Section 30(2)(a) of the Food Safety and Standards Act, 2006, (‘FSSA’) have been tagged along with the writ appeal challenging the judgment of the Writ Court striking down the notices issued by the authorised officer under the FSSA seeking to prosecute the respondent for violation of the ban imposed by the Commissioner for Food Safety by making Tobacco products available in the market.

The Writ Court concluded that the respondent cannot be prosecuted since Tobacco is covered under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (‘COTPA’)

The issues in the present matter were:

1. Whether the enactment of COPTA by invoking the power under Article 52 of the Constitution of India would denude the Parliament to enact any other law relating to Cigarettes and Tobacco Products?

The Court said that there are two enactments, one is COTPA enacted in 2003 under Entry 52 of List I of Schedule VII and the FSS Act enacted again by the Parliament under Entry 52 by declaring an expediency in public interest. Therefore, the Union took over control of both the Tobacco Industry and the Food Industry by enacting these two Acts after having declared an expediency in public interest. While the earlier enactment, viz. COTPA deals with the Tobacco Industry, the subsequent enactment, viz. FSS Act, deals with the Food Industry. There would arise an essential conflict between the provisions of these two enactments if one is to reach a conclusion that tobacco would be food within the meaning of Section 3(j) of the FSS Act. Such a conflict has to be resolved by attempting to harmonise the provisions of these two enactments. Thus, the Court held that both the enactments are made by the Parliament invoking Entry 52 and there is a chance of there being some overlapping in certain areas, this cannot denude the Parliament of the power to enact a law controlling a different industry invoking Entry 52 of List I of Schedule VII of the Constitution of India.

2. Whether there is any conflict between the COTPA and the FSSA in relation to Tobacco products?

The Court said that the FSS Act, as seen from its statement of objects and reasons, was enacted to regulate the Food Industry and to provide for systematic and scientific development of the Food Processing Industry. While the object of the COTPA is to ban advertisements, to regulate use of Tobacco products in public places and to ban sale of tobacco products to minors.

Thus, the objects of these two enactments are different. However, there is a possibility of overlapping of the provisions of these two enactments, particularly when it relates to chewing tobacco, gutka, since those products could be brought within the meaning of the expanded definition of food under Section 3(j) of FSSA, still there could be no conflict between the two enactments. If a tobacco product answers the definition of food under the FSSA, the manufacture or sale or distribution of it, could be regulated by the Commissioner of Food Safety under the powers invested in him under the regulations and the provisions contained in Section 30 (2) (a).

However, The Court said that even assuming there is a possibility of a conflict of the provisions of two Parliamentary enactments, it shall be the endeavor of the Court to reconcile the provisions of both the enactments with reference to the objects such legislations seek to achieve and the Court should not take shelter under the theory of conflict to invalidate a legislation or an action taken under a power vested by a legislation.

Therefore, it was held that no conflict between the two legislations as they deal with two different aspects and if at all there is an overlapping, the same can be cured by invoking the principle of purposive interpretation.

3. Whether COTPA a special enactment would prevail over the FSSA, a subsequent General Law?

The Court said that both the enactments can co-exist and the conflict, if any, can be resolved by restricting the operation of the Food Safety and Standards Act, to the areas which are covered by the COTPA.

4. Whether Tobacco or Tobacco products would fall within the definition of food under Section 3(j) of the FSSA?

The Court placed reliance on J. Anbazhagan v. Union of India, 2018 SCC OnLine Mad 1231 wherein the Court had considered the definition occurring in Section 3(j) of FSSA tobacco was considered food within the definition of Section 3(j) of FSSA.

Further, it said that the said definition includes primary food as defined under Clause zk and does not include plants prior to harvesting. Section 2(zk) of FSSA, defines Primary Food as an article of food being a produced of agriculture or horticulture etc. Tobacco is essentially a product of agriculture and Section 3(j) of FSSA includes Primary Food as defined under FSSA.

Thus, the Court reiterated that tobacco with or without any additives would fall within the definition of food under Section 3(j) of FSSA.

5. Whether the provisions of Section 30(2)(a) of the FSSA confer the power on the Commissioner, Food Safety to impose a total ban on the sale of Tobacco and Tobacco products by issuing successive notifications year on year?

The Court took note of Section 30(2)(a) of the FSSA, and said that as per this provision, a power is vested in the Commissioner of Food Safety to prohibit in the interest of public health, the manufacture, storage, distribution or sale of any food article, for the whole State or any Part thereof for such period, not exceeding one year. Further, it was opined that this provision cannot be used for imposing a permanent ban, that too by issuing successive notifications year on year.

Further, after placing reliance on Sugandhi Snuff King (P) Ltd. v. State (NCT of Delhi), 2022 SCC OnLine Del 3149, wherein the scope of the provisions of Section 30(2)(a) read with the provisions of Section 2.3.4 of the Regulations was considered. The Court held that the notifications can only be 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.

[Designated Officer v. Jayavilas Tobacco Traders LLP, 2023 SCC OnLine Mad 408, decided on 20-01-2023]

Advocates who appeared in this case :

For Appellant: Advocate General R.Shanmugasundaram , Special Govt. Pleader K.V. Sanjeev Kumar;

For Respondents: Advocate S.R.Rajagopal, Advocate K.R. Laxman.

*Apoorva Goel, Editorial Assistant has reported this brief.

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