Chattisgarh High Court
K.P. Sugandh Limited And Etc. vs State Of Chhattisgarh And Ors. on 28 February, 2008
Equivalent citations: 2008CRILJ1830
Author: Dhirendra Mishra
Bench: Rajeev Gupta, Dhirendra Mishra
JUDGMENT Dhirendra Mishra, J.
1. The petitioners of these two writ petitions have questioned the legality, correctness and constitutional validity of the order dated 31-12-2007 passed by the Controller, Food and Drugs Administration and Food (Health) Authority, Chhattisgarh in purported exercise of power conferred under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 (37 of 1954) (for short hereinafter referred to as 'Act 37 of 1954'). Since both these petitions raise identical issue of law and, therefore, they are being disposed of by a common order.
2. The petitioner in W.P. No. 207/2008 is a limited company. It manufacturers Pan Masala and Gutka which is a chewable Pan Masala blended with tobacco. The Dy. Director, Food and Drugs, the competent authority under the Act 37 of 1954 and the rules framed thereunder, granted licence for manufacturing, stocking and distribution of the product vide order of Annexure P-3 dated 13-2-2007 whereas the petitioner of the W.P. No. 208/2008 is a society registered under the Societies Registration Act and is engaged in trading in various brands of Pan Masala containing tobacoo i.e. Gutka manufactured within the State of Chhattisgarh and other States. The respondent No. 2, an authority constituted under the provision of the Act 37 of 1954, in the purported exercise of the power conferred under Section 7, part (iv) of the Act 37 of 1954 has banned the sale of tobacco blended Gutka by whichever name it is known in the State of Chhattisgarh, for a period of five years with effect from 1st January. 2008 and has further directed that no person either personally or through any other person for him shall, for the purposes of sale, manufacture or storage, sell or distribute tobacco blended Gutka, by whichever name it is known, with effect from 1st January, 2008 for a period of five years.
3. The grounds formulated by the petitioners for impugning the notification are as under:
(i) Section 7(iv) of the Act 37 of 1954 is not an independent source of power for the State Authority and the same cannot be invoked by the State Food (Health) Authority.
(ii) Central Rules of 1955 or the State Rules of 1962 do not confer any statutory power on the 2nd respondent to issue the order imposing complete ban on manufacture, storage, distribution and sale of Gutka including tobacco and the same can be exercised only by the Central Government in accordance with the rules made under Section 23 of the Act 37 of 1954.
(iii) Cigarette and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (34 of 2003)(for short, hereinafter referred to as 'Act 34 of 2003') being special Act and of later origin, overrides the provisions of Section 7(iv) of the Act 37 of 1954 with regard to the power to prohibit the sale or manufacture of tobacco product which are listed in Schedule to the Act 34 of 2003.
4. Shri Manindra Shrivastava, learned Senior Advocate with Shri Nalin Talwar and Shri Parag Kotecha, learned Counsel for the petitioners argued that legal questions involved in these petitions have been clearly and unambiguously answered by Hon'ble The Supreme Court in the matter of Godawat Pan Masala Products I.P. Ltd. and Anr. v. Union of India and Ors. , as in the aforesaid matter also, the notifications issued by the competent authorities under the Act 37 of 1954 of State of Maharashtra. State of Karnataka, State of Goa and State of Tamil Nadu, imposing ban on the sale of all brands of Pan Masala (containing tobacco) and chewing tobacco, Gutka containing tobacco in any form or any other ingredients injurious to health under whichever name or description, were challenged and all the notifications were quashed by Hon'ble Supreme Court as ultra vires the Act and hence bad in law and the same were unconstitutional and void abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution of India. It was further argued that Rule 3 of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the Goa, Daman and Diu Prevention of Food Adulteration Rules, 1982 conferred powers and duties on the Food (Health) Authority of those States and Rules (6)(a) and (6)(b) of the above rules conferred power upon the Food (Health) Authority that in the event of outbreak of any infectious diseases, he could take such measures as it shall deem necessary to prevent the out break of such infectious disease or spread thereof. The argument based on the above rule was also negatived by the Hon'ble Supreme Court with an observation that the power of the Food (Health) Authority under the Rules is only of transitory nature and intended to deal with local emergencies and can last only for short period while such emergency lasts. However, even no such power has been conferred on the Food (Health) Authority in the State of Chhattisgarh under Chhattisgarh Prevention of Food Adulteration Rules, 1962.
5. On the other hand, Shri Prashant Mishra, Learned Advocate General and Shri Yashwant Singh Thakur, Learned Dy. Advocate General opposing the prayer of the petitioners vehemently argued that the impugned notification was issued under Section 7(iv) of the Act 37 of 1954 with the laudable purpose of banning manufacture, storage, sale and distribution of Gutka containing tobacco as the same is injurious to health. The school going children and college students are easily becoming prey of consumption of Gutka containing tobacco and thus they are becoming addict to the injurious food articles. Referring to the judgment of Hon'ble the Supreme Court in the matter of Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors. 1995 A.I.R. S.C.W. 313, it was argued that "The right to practice any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilized societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e. res extra commercium (outside commerce). There cannot be business in crime." Referring to para 24 of the judgment in Gudawat Pan Masala (AIR 2004 SC 4057), it was argued that Food (Health) Authority is empowered to take such immediate step and to prohibit for the time being, the manufacture, sale, storage, distribution of the concerned injurious articles and to take any appropriate step in the interest of public health.
6. We have heard learned Counsel for the parties. In order to appreciate the contention of the learned Counsel for the respective parties, reference to the relevant provisions of the Act is necessary. Section 7 of the Act 37 of 1954 reads as under:
7. Prohibitions of manufacture, sale, etc. of certain articles of food.--No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute-
(i) any adulterated food;
(ii) any misbranded food;
(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;
(iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;
(v) Any article of food in contravention of any other provision of this Act or of any rule made thereunder; or
(vi) Any adulterant.
7. The State of Chhattisgarh has framed the Chhattisgarh Prevention of Food Adulteration Rules, 1962. Rules 3 and 4 of the above Rules deal with Food (Health) Authority and its powers and duties and Powers Of local authority, which reads as under:
3. Food (Health) Authority and its powers and duties.-- (1) The Director of Health Services, Madhya Pradesh (being the Chief Officer in charge of health administration in the State of Madhya Pradesh) shall be the Food (Health) Authority (hereinafter referred to as the 'Authority').
(2) The authority shall be responsible for the general superintendence of the administration and enforcement of the Act.
(3) The authority shall for giving effect to the provisions of the Act, have control over the Public Health Laboratories maintained by the State Government and local authorities and the public analysts and Food Inspectors appointed under the Act.
(4) The authority may give to a local authority all such directions as it may consider necessary in regard to any matter connected with the enforcement of the Act and the rules made thereunder and the local authority shall comply with such directions.
(5) The authority, whenever called upon to do so, shall advise the State Government or the local authority, as the case may be, in matters relating to the administration and enforcement of the Act.
4. Powers and duties of local authority.-- (1) Subject to the provisions of Rule 3, the local authority shall be responsible for the proper day-to-day administration and enforcement of the Act within its jurisdiction.
(2) The local authority shall appoint a health officer, or health officers for the purpose of the Act, having jurisdiction over the whole or part of its area as it may specify.
(3) The local authority may appoint persons in such number as it thinks fit, having qualification prescribed under the Central Rules, to be Food Inspectors for the purpose of the Act, they shall exercise powers within such local areas as it may assign to them, with the approval of the authority.
(4) The local authority shall appoint such officers, as it thinks fit to be licensing authorities within jurisdiction for the purposes of Clause (b) of Sub-section (2) of Section 24 of the Act.
8. The preamble of Act 34 of 2003 reads as under:
An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matter's connected therewith or incidental thereto.
9. The statement of Objects and Reasons of the Act 34 of 2003 reads as under:
Statement of Objects and Reasons.-- Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500 crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry. The need for a comprehensive legislation to prohibit advertising and regulation of production, supply and distribution of cigarettes and tobacco products was recommended by the Parliamentary Committee on Subordinate Legislation (Tenth Lok Sabha) and a number of points suggested by the Committee on the Subordinate Legislation have been incorporation in the bill.
2. The proposed Bill seeks to put total ban on advertising of cigarettes and other tobacco products and to prohibit sponsor ship of sports and cultural events either directly or indirectly as well as sale of tobacco products to minors. It also proposes to make rules for the purpose of prescribing the con tents of the specified warnings, the languages in which they are to be displayed, as well as displaying the quantities of nicotine and tar contents of these products. For the effective implementation of the proposed leg islation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent. The objective of the proposed enactment is to reduce the exposure of people to tobacco smoke (passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements. This will result in a healthier life style and the protection of the right to life enshrined in the Constitution. The proposed legislation further seeks to implement Article 47 of the Constitution which, inter alia, requires the State to endeavour to improve public health of the people.
3. The Bill seeks to achieve the aforesaid Objects.
10. Section 2(p) of the Act 34 of 2003 defines "tobacco products". Tobacco products means the products specified in the Schedule and the Entry No. 8 of Schedule under Section 2(p) refers to "Pan Masala or any chewing material having tobacco as one of its ingredients (by whatever name called)" and Entry 9 refers "Gutka".
11. In the matter of Godawat the Hon'ble Supreme Court after considering the arguments advanced by the respective parties in detail has finally concluded that there is no source of power under Section 7(iv) for imposing any restriction with Food (Health) Authority irrespective of whether it is used as food or as an ingredient in the manufacture of any article of food and it has been further held that the impugned notification is violative of fundamental rights guaranteed under Article 19(1)(g) because it is excessively restrictive in nature. Even the latest Act No. 34 of 2003 does not ban the sale of tobacco product listed in the Schedule except to the minors.
12. In the matter of Godawat, as already mentioned in the earlier paragraphs, the issue before the Hon'ble Apex Court was whether the Food (Health) Authority had the power to issue an order of prohibition whether permanent or quasi permanent under Section 7(iv) of the Act 37 of 1954 as in the above matter also, the Food (Health) Authority for the State of Maharashtra, vide notification dated 23rd July, 2002 banned the manufacture, sale, storage and distribution of Pan Masala and Gutka (Pan Masala containing tobacco) for a period of 5 years with effect from 1st August, 2002. Similar notifications were also issued by the State Food (Health) Authority, Government of Tamil Nadu for a period of 5 years with effect from 19th November, 2001 whereas the Food (Health) Authority, State of Goa banned sale of Gutka and Pan Masala containing tobacco or not containing tobacco, by whatever name called, prohibited within the State of Goa with effect from 26th January, 2003. Allowing the appeal of the appellants and the writ petitions impugning the notification, the notifications were quashed as bad in law, void and illegal and unenforceable against the appellants/petitioners and it has been held thus:
33. It is significant that, while dealing with the powers of Food Inspector under Section 10(1)(e) of the Act, the Act provides that a Food Inspector shall have power, with the previous approval of the Local (Health) Authority having jurisdiction in the local area concerned, or with the previous approval of the Food (Health) Authority, to prohibit the sale of any article of food in the interest of public health. Secondly, this clause does not include the phrase "for the time being". If the arguments of the learned Counsel for the State Government were to prevail, then this provision would give to the Food Inspector, a lower authority in the hierarchy, an extraordinary power of banning permanently which power can only be the result of a policy decision to be taken at the highest level of the State Government. In our view, it is not possible to interpret these clauses disparately or disjunctively. Clause (iv) of Section 7 and Clause (c) of Sub-section (1) of Section 10 of the Act and their interplay unmistakably suggest that the power conferred on the Food (Health) Authority and the Food Inspector, being derived from the Rules made in exercise of the powers exercised under Section 24 of the Act are necessarily subservient to the powers derivable from the rules made under Section 23 of the Act. Hence, under the Food (Health) Authority, nor the Food Inspector can be said to have such power which could be available to the Central Government by prescription of a rule in exercise of power under Section 23(1A)(f).
77. As a result of the discussions, we are of the view that:
1. Section 7(iv) of the Act is not an independent source of power for the State Authority;
2. The source of power of the State Food (Health) Authority is located only in the valid rules made in exercise of the power under Section 24 of the Act by the State Government to the extent permitted thereunder;
3. The power of the Food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for the short period while such emergency lasts;
4. The power on banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government to be exercised in accordance with the Rules made under Section 23 of the Act, particularly, Sub-section (1A)(f);
5. The State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from Parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing Rules under Section 23 of the Act;
6. The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The former Act is a special Act intended to deal with tobacco and tobacco products particularly, while the latter enactment is a general enactment. Thus the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the schedule to the Act 34 of 2003.
7. The impugned Notification are ultra vires the Act and, hence, bad in law;
8. The impugned Notifications are unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 19 of the Constitution.
13. So far as the submission of the learned Advocate General based on concept of rex extra commercium is concerned, the above argument has also been dealt with in paragraph 53 of the above judgment and it has been held thus:
Is the consumption of pan masala or Gutka (containing tobacco), or for that matter tobacco itself, considered so inherently or viciously dangerous to health, and if so, is there any legislative policy to totally ban its use in the country? In the face of Act 34 of 2003, the answer must be in the negative. It is difficult to accept the contention that the substance banned by the impugned Notification is treated as res extra commerciam. In the first place, the gamut of legislation enacted in this country which deals with tobacco does not suggest that Parliament has ever treated it as an article res extra commercium, nor has Parliament attempted to ban its use absolutely.
Considering the various legislative measures seeking to levy restrictions and control the manufacture and sale of tobacco and its allied produces as well as Pan Masala, it has been held thus:
It is not possible to accept that the article itself has been treated as res extra commercium. The legislative policy, if any, seems to be to the contrary. In any event, whether an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of Legislature and not by a mere Notification issued by an executive authority.
14. In our considered opinion, the subject-matter of the instant petition, the question of fact and legal issue involved in these petitions are identical to the facts and issues involved in the matter of Godawat .
15. Learned Counsel for the State could not point out any other ground which distinguishes the present matter either on facts or on law with the above matter already decided by the Hon'ble Supreme Court.
16. In the result, relying upon the judgment of the Hon'ble Supreme Court in the matter of Godawat , we allow both the writ petitions and quash the notification impugned as bad in law, void, illegal and unenforceable against the petitioners.
17. No order as to costs.