Telangana High Court: A writ petition was filed under Article 22 of the Constitution seeking to pass an order, direction or a writ particularly in the nature of Writ of Mandamus directing respondents to allow petitioner to serve hookah in his establishment freely as long as he followed the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade Commerce Supply and Distribution) Act, 2003 (‘the COTP Act’) and rules and that petitioner be allowed to serve hookah in open areas and smoking zones and to issue necessary directions to the effect that no coercive action of any nature ought to be initiated against petitioner or his establishment namely ‘Resign Sky Bar’.
C.V. Bhaskar Reddy, J., opined that petitioner had obtained licences to run Hotels/Restaurants/Bars and without specifying any area as smoking zone as per the provisions of COTP Act and Rules made thereunder, as such they did not have right to contend that they were entitled to run the hotels/restaurants as Hookah centres. Therefore, to establish hookah centres, permission from the authority concerned had to be obtained under the provisions of the Hyderabad City Police Act, 1348 Fasli (‘the City Police Act’). The Court thus directed petitioner to follow rules and regulations issued by the Commissioner of Police from time to time for preservation of the public order.
Petitioner was running a restaurant under the name and style ‘Resign Sky Bar’ since many years and obtained a trade license from the Greater Hyderabad Municipal Corporation, Hyderabad. Petitioner submitted that owners of certain restaurants had filed a writ petition, wherein this Court vide common order dated 27-01-2017, allowed petitioners therein to serve Hookah as long as they followed rules and regulations and the conditions stipulated therein like having CCTV cameras and not serving to minors etc. Petitioner also submitted that even though the restaurant owners were following the rules and regulations as prescribed under the COTP Act, the task force police under the control of Respondent 2 were visiting the business place and foisting false cases with a malafide intention to force the owners of the business establishments to shut down the hookah sales and usage.
Petitioner further submitted that the owners of the restaurants approached this Court and filed a writ petition and this Court vide common order dated 02-08-2017 ordered that the restaurant owners were free to run their restaurants as per rules and regulations and that if police took any steps, petitioners therein were given liberty to approach the Director General of Police/Commissioner of Police and lodge complaint regarding illegal interference of officers.
Analysis, Law, and Decision
The Court noted that as per Section 4 of the COTP Act, if the restaurant had seating capacity of thirty persons or more, a separate provision for the smoking area had to be provided and the word “Hookah” had not been defined in the COTP Act. The Court also noted that Section 3(k) of the COTP Act defined “production”, which included making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff. Therefore, the Court opined that “it implied that all the tobacco products which were taken with the aid of pipe, wrapper or any other instruments would fall within the definition of Section 3(n) of the COTP Act and the restaurant or coffee shop falling within the ambit of Section 4 of the COTP Act, had to provide a separate smoking zone”.
The Court also noted that the Government of India had issued a notification in the month of May 2017, which clearly indicated that no service shall be allowed in a smoking area or in the space provided for smoking, therefore, the restaurant owners shall not involve themselves in the act of service to their customers, in the prohibited area. The Court relied on Section 12 of the COTP Act, which conferred powers to the police officer to search the premises at any reasonable time, if he suspected that the provisions of the COTP Act were contravened. The Court thus opined that it did not find any illegality in police officers, entering the premises and searching the same, so as to find out whether the owners of the restaurants had contravened or violated any of the provisions of the COTP Act and Rules made thereunder.
The Court opined that “Article 47 of the Constitution dealt with improvement of public health, which was a primary duty of the State and thus, the Court should enforce this duty against a defaulting local authority. Any article which was hazardous or injurious to public health was a potential danger to the fundamental right to life guaranteed to the citizens under Article 21 read with Article 47 and a duty was cast on the States and its authorities to achieve an appropriate level of protection to human life and health”. The Court further opined that restrictions imposed by law for supply and serving of tobacco products including serving hookah could not be said to be violative of Article 19(1)(g) of the Constitution as the State or its authorities had right to regulate the sale of tobacco product which included running of hookah centres and while granting license to run the restaurants, the State or its authorities must resort to strict scrutiny of the applications.
The Court relied on Vincent Panikurlangara v. Union of India, (1987) 2 SCC 165, wherein the Supreme Court observed that “maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends, the building of the society of which the Constitution makers envisaged. Attending to public health is of high priority.”.
The Court referred to Sections 4 and 6 of the COTP Act and Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 (‘2008 Rules’) and opined that the Hotels and Restaurants where food was supplied, were prohibited from smoking of any tobacco product, unless a separate area was made to allow smoking. The Court thus opined that petitioner’s contention that the licence obtained by them to run the hotels/restaurants also allowed them to have smoking of hookah and run hookah centres, was not tenable. The Court also opined that the licence obtained for running restaurants which had a seating capacity of thirty persons or more did not confer any right to petitioner to convert the same as a place of smoking area or to run hookah centre.
The Court opined that as per the powers being conferred on the Commissioner of Police, under the City Police Act, the police was having power to supervise the business establishments of petitioner and seize the hookah centres if there was any violation of the provisions of the COTP Act. Therefore, to establish hookah centres, permission from the authority concerned had to be obtained under the provisions of the City Police Act. The Court directed petitioner to follow rules and regulations issued by the Commissioner of Police from time to time for preservation of the public order.
The Court imposed the following conditions to run Hookah Centres:
As charcoal was being used for serving hookah in the Hookah Centres, petitioner shall obtain licence from the Municipal Corporation as specified under Section
521(1)(b)of Greater Hyderabad Municipal Corporation Act, 1955.
Since the City Police Act conferred power over the amusement centres/restaurants which were defined as “public place” under the COTP Act and as per Rule 4 of the 2008 Rules, permission was required specifying smoking area. Therefore, to establish hookah centres, petitioner shall obtain necessary permission from the authority concerned under the provisions of the City Police Act.
Hookah Centres were prohibited from serving any tobacco product to persons under the age of eighteen years and pictorial health-warning labels at the entrance must be displayed.
The police was at liberty to supervise and inspect the Hookah Centres, for any violation of rules and regulations, guidelines or circulars issued under the provisions of the City Police Act.
Thus, the Court directed the respondents to not interfere with the business activity of petitioner for running Hookah Centres and if the police was found to act in a highhanded manner, the owners of the Hookah Centres were at liberty to bring the same to the notice of the Director General of Police/Commissioner of Police.
[Waheed Uddin Ahmed Ansari v. Prl. Secy., Home Dept, 2023 SCC OnLine TS 3761, decided on 15-11-2023]
*Judgment authored by: Justice C.V. Bhaskar Reddy
Advocates who appeared in this case :
For the Petitioner: Mohammed Aslam, Advocate