Himachal Pradesh High Court
Court On Its Own Motion vs State Of Himachal Pradesh & Others on 6 November, 2018
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No.75 of 2018 Reserved on : 14.9.2018 .
Date of Decision : November 6, 2018 Court on its own motion ...Petitioner.
Versus State of Himachal Pradesh & others ...Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge. The Hon'ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting? Yes.
For the Petitioner : Ms Jyotsna Rewal Dua, Senior Advocate, Amicus Curiae with Ms Charu Bhatnagar, Advocate.
For the Respondents : Mr. J.K. Verma, Ms Ritta Goswami, Additional Advocates General for respondents No.1 to 31.
Mr. Bimal Gupta, Senior Advocate, with Ms Rubina Bhatt, for respondent No.32.
Sanjay Karol, Judge Letter petitioner Mr. Ankush Dobhal resident of Madan Kutti, Upper (Ramnagar), District Shimla, Himachal Pradesh, has highlighted a vital issue of public importance, i.e. non-implementation of state policy for the sale of tobacco products and loose cigarettes.::: Downloaded on - 06/11/2018 22:59:21 :::HCHP
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2. The questions, which arise for consideration in the present petition, are:
a) Whether the state has failed in its duty for .
proper implementation of the laws/its policy regarding the sale of tobacco products?
b) If, the above answer is in affirmative, what steps are to be taken to make the implementation stricter?
Legislative Policy of the Central Government
3. The Hon. Apex Court in 2001 stated its opinion, regarding public smoking in Murli S. Deora vs Union of India, (2001) 8 SCC 765, wherein the court observed as under:
"2. Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then-why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously-yes. Undisputedly smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case there is no reason to compel non-smokers to be helpless victims of air pollution."
Realising the gravity of the situation and considering the adverse affect of smoking on smokers and passive smokers, the court was pleased to direct and prohibit smoking in public places and issued directions to the ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...3...
Union of India, State Governments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely: Auditoriums, Hospital .
Buildings, Health Institutions, Educational Institutions, Libraries, Court Buildings, Public Offices, Public Conveyances, including Railways.
4. With this, the Central Government in 2003 replaced the Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, with Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation and Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as COTPA). Most of the sections came into force w.e.f.
1.5.2005. The Act of 2003 has banned smoking in public places and also prohibited advertisements of cigarettes and other tobacco product. The Act, inter alia, bans sale of cigarettes or any other tobacco products to persons under 18 years of age and also in an area within a radius of 100 yards from educational institutions, providing further that cigarettes or any other tobacco products can only be sold/produced/ supplied/distributed under packages containing specified warnings and not ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...4...
otherwise. As a result, sale of loose cigarettes is also banned.
5. Section 3(p) of COTPA defines "Tobacco .
Products" to mean the products in the Schedule appended to the Act, which includes - 1.Cigarettes,
2.Cigars, 3.Cheroots, 4.Beedis, 5.Cigarette tobacco, pipe tobacco and hookah tobacco, 6.Chewing tobacco, 7.Snuff,
8.Pan masala or any chewing material having tobacco as
6.
r to one of its ingredients (by whatever name called),
9.Gutka, 10.Tooth powder containing tobacco.
Relevant Sections of COTPA read as under:
"Section 4: Prohibition of smoking in a public place- No person shall smoke in any public place. Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.
Section 5: Prohibition of advertisement of cigarettes and other tobacco products - (1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products;
(2) No person, for any direct or indirect pecuniary benefit, shall ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...5...
(a) display, cause to display, or permit or authorize to display any advertisement of cigarettes or any other tobacco product; or
(b) sell or cause to sell, or permit or authorize to sell a film or video tape .
containing advertisement of cigarettes or any other tobacco product; or
(c) distribute, cause to distribute, or permit or authorize to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or
(d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:
Provided that this sub-section shall not apply in relation to- (a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product; (b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.
(3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of-
(a) cigarettes or any other tobacco product;
or
(b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.
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Section 6: Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area-
No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco .
product-
(a) to any person who is under eighteen years of age, and
(b) in an area within a radius of one hundred yards of any educational institution.
Section 7: Restrictions on trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products-
(1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label, the specified warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed.
(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning.
(3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of Cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.
(4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco product have been packed for distribution, sale or supply for a valuable consideration.
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(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar .
contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof."
7. The Central Government also framed Prohibition of Smoking in Public Places Rules, 2008, which came into force w.e.f 2.10.2008. Rule 3 of the same reads as under:
"3. Prohibition of smoking in a public place:
(l) The owner, proprietor, manager, supervisor or in charge of the affairs of a public place shall ensure that: (a) No person smokes in the public place (under his jurisdiction/implied). (b) The board as specified in schedule II is displayed prominently at the entrance of the public place, in case there are more than one entrance at each such entrance and conspicuous place(s) inside. In case if there are more than one floor, at each floor including the staircase and entrance to the lift/s at each floor. (c) No ashtrays, matches, lighters or other things designed to facilitate smoking are provided in the public place.
(2) The owner, proprietor, manager, supervisor or incharge of the affairs of a public place shall notify and cause to be displayed prominently the name of the person(s) to whom a complaint may be made by a person(s) who observes any person violating the provision of these Rules.
(3) If the owner, proprietor, manager, supervisor or the authorized officer of a public place fails to act on report of such violation, the owner, proprietor, manager, supervisor or the authorized officer shall be liable to pay fine equivalent to the number of individual offences."::: Downloaded on - 06/11/2018 22:59:21 :::HCHP
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Schedule III appended to the rules specifies the officers authorized to take action i.e. to impose and collect the fine against the violation of Section 4 of COTPA."
Policy of the State Government .
8. State of Himachal Pradesh enacted "The Himachal Pradesh Prohibition of Sale of Loose Cigarettes and Beedies and Regulation of Retail Business of Cigarettes and Other Tobacco Products Act, 2016", (hereinafter referred to as the State Act), however the same was not in force. It was pursuant to the directions of this Court that a Notification dated 30.8.2018 was issued, enforcing the provisions of the said Act w.e.f.
30.8.2018.
9. Section 2(f) of State Act defines "Tobacco Products" as the products specified in the Schedule appended to the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003.
10. Relevant provisions of the State Act read as under:
"Section 3: Prohibition of sale of loose cigarettes and beedies.--No person shall sell, offer for sale, or permit sale of loose cigarettes or beedies within the State of Himachal Pradesh.::: Downloaded on - 06/11/2018 22:59:21 :::HCHP
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Section 4: Restriction on retail business of tobacco products.--No person shall carry retail business of any tobacco products without being registered under section 5 of this Act.
Section 5: Registration for the purpose of retail .
business of tobacco products.--(1) Any person who is carrying on or intends to carry on retail business of cigarettes and other tobacco products, shall make an application to the Registering Authority in such form and in such manner and on payment of such fee as may be prescribed. (2) On receipt of application under sub-section (1), the Registering Authority shall, within a period of six months from the receipt of such application, grant Registration Certificate in such form, containing such particulars and such information as may be prescribed. The Registration Certificate shall be issued for a period of three years and may be renewed on payment of such fee and for such period and in such manner as may be prescribed.
(3) If on security the Registering Authority is satisfied that the application submitted under sub-
section (1) is not complete in all respect, he may reject the same after affording the reasonable opportunity of being heard to the person concerned. (4) The Registration Certificate shall be kept affixed in a conspicuous place in the premises in such manner as to be visible to everyone. (5) The Registration Certificate shall be non-transferable.
Section 12(1): Power to make rules.--(1) The State Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act."
11. The State Act is now in force in the State of Himachal Pradesh w.e.f 30.8.2018 whereunder sale of loose cigarettes has been completely banned. Retail business of any tobacco products which find mention in the Schedule appended to COPTA 2003 cannot be carried out, without getting registered with the Registering ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...10...
Authority as per section 4 and 5 of the Act. Section 8 deals with the powers of entry, search and seizures.
Penalties have been provided for violation of the .
provisions of section 3, section 4 and sub-section (4) and (5) of section 5, under Sections 6 and 7 of the Act.
12. Pursuant to the directions of this court, in exercise of the powers conferred under section 12 of the State Act, The Himachal Pradesh Prohibition of Sale of Loose Cigarettes and Beedies and Regulations of Retail Business of Cigarettes and Other Tobacco Products Rules, 2018 were framed which provide for the procedure for registration and renewal of the same. The Registering Authority for urban as well as rural areas was also notified vide notification dated 30.08.2018. The State also issued separate notifications under Food Safety and Standards Act, 2006 (hereinafter referred to as FSSA, 2006) concerning Gutka and Pan Masala.
13. Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011 framed under Section 92 of the FSSA, 2006 reads as under:
"2.3.4: Product not to contain any substance which may be injurious to health: Tobacco and ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...11...
nicotine shall not be used as ingredients in any food products."
14. Regulation 3.1.7 of The Food Safety and Standards (Food Products Standards and Food Additives) .
Regulations, 2011reads as under:
"3.1.7: Anticaking Agents 1) Restriction on use of anticaking agents. No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted.
Provided that table salt, onion powder, garlic powder, fruit powder and soup powder may contain the following anticaking agents in quantities not exceeding 2.0 per cent either singly or in combination namely:- a. carbonates of calcium and magnesium..."
15. The Commissioner Food Safety, Himachal Pradesh, in exercise of the powers vested in him by virtue of Section 26 and 34 of FSSA, 2006, issued a Notification dated 13.7.2012 which states that "in view of provisions of regulation 2.3.4 of FSSA, 2006, storage, sale or distribution of Gutka, Pan Masala, Masheri, Khaini becomes illegal and such food products, if stored, or being manufactured or sold in the State, the persons doing so will be proceeded against as per provisions of The FSSA, 2006, read with Regulations cited aforesaid".
The said Notification further states that "such food business operators should neither be registered nor ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...12...
issued a license for the same". This notification was enforced through a separate notification dated 3.10.2012 which provided that orders will take effect from 2nd .
October 2012 and after this date legal action will be initiated against the defaulters/violators of these orders.
16. The Commissioner Food Safety-cum- Principal Secretary Health to the Government of Himachal Pradesh, in exercise of powers conferred under Section 30(2) of the FSSA, 2006 read with regulations 2.3.4 and 3.1.7 issued a notification dated 19.12.2017 prohibiting the products marketed separately to constitute Gutka or Pan Masala, Scented/ Chewing Pan Masala or Tobacco, Supari, Khaini, Masheri, Zarda etc., by whatever names these are called, for a period of one year. The said notification further states that manufacturing, storing, sale and distribution of these products in the State of Himachal Pradesh will be illegal and will attract penal consequences under the provisions of FSSA, 2006. The said notification is still in force.
17. Reply filed by Respondent No.31 - Director Health Safety and Regulation, Himachal Pradesh reveals that the Central Government vide notification dated 30.5.2008 has authorized persons therein to impose and ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...13...
collect fines against those who resort to smoking in public places. Further the State Government has also vide notification dated 6.8.2009 authorized police personnel, .
not below the rank of Head Constable, to impose and collect fine and to compound the offence under section 4 and 6 of the COTPA in their respective jurisdiction in addition to the persons authorized by the central government in the rules notified vide notification dated 30.5.2008.
notification r Further the dated11.8.2011 Central has Government authorized persons to take action against those who sell tobacco vide certain products to persons under the age of 18 years and in particular within a distance of 100 yards of educational institutions. In addition to this, the Central Government also issued a notification dated 30.7.2009 authorizing certain officers to conduct search and seizure under section 12 and 13 of COTPA.
18. The bare perusal of the reply filed by Respondent No. 9,11,12,13,17,21,22,28, and 29 reveals the following:-
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District Time Period Number of Amount of Fine
Challans Collected (in
under COTPA rupees)
.
Shimla Year 2017 19,393 18,64,680/-
1.1.2018- till date
1441 1,54,550/-
Mandi 2.10.2012 to 26049 26,86,100/-
31.3.2018
Kullu 2.10.2012 to 18862 21,93,980/-
31.3.2018
Kangra 1.1.2017 to 9437 8,30,450/-
31.12.2017
1.1.2018 to
25.4.2018
r 2013 1,70,710/-
Una 2012-2017 9359 9,15,350/-
19. Learned Amicus Curiae invites attention of this court on the issue of validity of the notification dated
19.12.2017 issued by the Commissioner, Food Safety-
cum-Principal Secretary Health to the Government of Himachal Pradesh in exercise of powers conferred by the FSSA, 2006 and not COTPA. It was stated that the aforesaid notification could not be faulted at the behest of the Gutka Companies since according to section 89 of FSSA, 2006, it will have an overriding effect notwithstanding anything inconsistent therewith ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...15...
contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. In support of her contention learned Amicus .
Curiae distinguished Godawat Pan Masala Products vs Union of India , (2004) 7 SCC 68, from the present case wherein the Hon. Apex Court held that the provisions of the COTPA are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act being a special Act intended to deal with tobacco and tobacco products particularly, and the latter being a general enactment, it will have an overriding effect. However now the FSSA, 2006 (which repeals the Prevention of Food Adulteration Act, 1954), by virtue of the section 89 will have an overriding effect.
20. The State Government also notified a flying Squad for the purpose of entry, raid, search and seizure in respect of valuation of COTPA at the state, district and block level vide notification dated 22.11.2011.
21. As is evident from the record, the State Act of 2016 was brought into force only during the pendency of this petition and the same needs to be implemented in letter and spirit. No retailer of tobacco products which is not registered with the registering authority as notified ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...16...
by the state government vide notification dated 30.8.2018 should be allowed to sell distribute or store tobacco products.
.
22. Such retailers if found violating the provisions of COTPA should be dealt strictly, regular inspections for sensitization of retailers as well as general public including school children should be resorted to, incentives to those who challan the defaulters shall be in the form of reward which shall be a part of fine levied.
23. As such, the present petition is disposed of with the following further directions:
i) The authorities, both under the COTPA and the State Act shall ensure that no sale of loose cigarette/bidis/prohibited article, either under the Central Act or the State Act, shall be allowed to be carried out, more specifically within the radius of 100 metres of educational institutions.
ii) The State shall consider further strengthening the mechanism for proper registration, renewal and the procedure for entry, search and seizure.
iii) The State shall ensure that Officers for the purposes of compounding of offence committed under Section 3 are ::: Downloaded on - 06/11/2018 22:59:21 :::HCHP ...17...
appointed forthwith in proper, complete and effective implementation of the provisions of the Act. Not only that Officers under Sections 4,6 and 10 of the .
COTPA must be notified forthwith.
24. We place on record our appreciation for the assistance rendered by Ms Jyotsna Rewal Dua, learned Amicus, who, on the instructions of this Court obtained necessary feedback.
Pending application (s), if any, also stand disposed of.
( Sanjay Karol ),
Judge
( Ajay Mohan Goel ),
November 6, 2018(sd) Judge.
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