Madras High Court
M/S.Rathinam Enterprises Rep vs The State Of Tamil Nadu on 23 May, 2024
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
2025:MHC:1580
WP.No.29805 of 2024
In the High Court of Judicature at Madras
Reserved on : Delivered on:
03.7.2025 .08.7.2025
Coram :
The Honourable Mr.Justice N.ANAND VENKATESH
Writ Petition No.29805 of 2024
& WMP.Nos.32506 & 32507 of 2024
M/s.Rathinam Enterprises rep.
by its Proprietor R.Prabhu …Petitioner
Vs
1.The State of Tamil Nadu, rep.
By its Commissioner (Additional
Charge), Tamil Nadu Food Safety
& Drug Administration, No.359,
Anna Salai, Teynampet, Chennai-6.
2.The Food Safety Officer (Chennai
District), Tamil Nadu Food Safety
& Drug Administration Department,
No.33, West Jones Road, West
Saidapet, Chennai-15.
3.The Designated Officer/Appellate
Authority, Tamilnadu Food Safety &
Drug Administration Department,
No.369, Anna Salai, Teynampet,
Chennai-6. …Respondents
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WP.No.29805 of 2024
PETITION under Article 226 of The Constitution of India praying
for the issuance of a Writ of Certiorari to call for the records pertaining
to the impugned notification issued by the 1st respondent published in
TN government Gazette Extraordinary dated 23.5.2024 in ref.No.
VI(1)/372(a)/2024 in exercise of power conferred by Clause (i) of Sub-
Section (2) of Section 92 read with Section 26 of the Food Safety and
Standards Act, 2006, pursuant to which, the impugned order issued by
the 2nd respondent dated 20.6.2024 and communicated in ref.No.
7207/D.O./CH/FSSA/2024-25 dated 28.6.2024 and confirmed by the
3rd respondent vide his order dated 16.7.2024 under Section 47(4) of
the Food Safety and Standards Act read with Rule 2.4.6 of the Food
Safety and Standards Rules, 2011 and quash the same as illegal,
arbitrary, abuse of power, without jurisdiction, violative of audi
alteram and offending Articles 14, 19(1)(g) and 21 of The Constitution
of India
For Petitioner : Mr.V.Raghavachari, SC for
Mr.R.Veeramani
For Respondents : Mr.P.Kumaresan, AAG for
Mr.E.Sundaram, GA
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WP.No.29805 of 2024
ORDER
This writ petition has been filed challenging the Notification issued by the first respondent published in the Tamil Nadu Government Gazette dated 23.5.2024 in exercise of power conferred under Clause (i) to Sub-Section (2) of Section 92 read with Section 26 of the Food Safety and Standards Act, 2006 (hereinafter called the Act) and the consequential order passed by the second respondent dated 20.6.2024 and the communication dated 28.6.2024, which was confirmed by the third respondent by proceedings dated 16.7.2024 under Section 47(4) of the Act read with the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011 (for short, the Regulations).
2. Heard the learned counsel on either side.
3. The case of the petitioner is as follows :
(i) The petitioner is in the business of sale of chewing tobacco.
The grievance of the petitioner is that the respondents are treating raw tobacco as a banned food product and accordingly, it was sent for 3/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 chemical analysis. On chemical analysis, it was reported that it contained nicotine to an extent of 0.47% and on that basis, the second respondent concluded that the petitioner’s chewing cut tobacco leaves are unsafe for human consumption and injurious to health and thereby placing reliance upon the impugned Notification published in the Government Gazette dated 24.5.2023, issued an intimation by treating the business of the petitioner as a food business operator under the Act, the relevant Rules and the relevant Regulations framed thereunder.
(ii) Aggrieved by that, the petitioner preferred an appeal before the third respondent, who, by proceedings dated 16.7.2024, dismissed the appeal and confirmed the report of the food analyst as legally maintainable and sustainable. As against the same, above writ petition has been filed.
4. The respondents have filed a counter affidavit wherein they have taken the following stand :
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(i) On 30.5.2024, the second respondent inspected the shop of the petitioner and found the banned tobacco products, which were kept for selling. Pursuant to that, samples were drawn and sent to the Food Analysis Laboratory, Coimbatore. It gave a report dated 20.6.2024 and opined that the sample that was sent for analysis was unsafe and contained nicotine to an extent of 0.47%, which is injurious to health as per the Regulations and as per the Notification issued in the Government Gazette dated 23.5.2024 read with Section 26(2)(iv) of the Act. The appeal that was filed by the petitioner before the third respondent also came to be rejected by order dated 16.7.2024.
(ii) The Government of Tamil Nadu has taken a conscious decision to prohibit the manufacture, storage, distribution and/or sale of gutkha, pan masala and other chewing tobacco products in the interest of public health. This was pursuant to the order passed by the Hon’ble Apex Court dated 03.4.2013 directing all the States to file affidavits on the total compliance of the ban imposed against the manufacture and sale of pan masala with tobacco and/or nicotine. The Notification is being issued year after year in compliance of the order passed by the Hon’ble Apex Court.
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(iii) Tobacco, per se, comes within the meaning of the word ‘food’ as defined under Section 3(j) of the Act. That apart, tobacco is also mixed with gutkha and pan masala and it has been sold. Thus, the respondents have justified the proceedings initiated against the petitioner and sought for dismissal of this writ petition.
5. The learned Senior Counsel appearing on behalf of the petitioner submitted as follows :
(i) The order of the Hon’ble Apex Court only dealt with the ban imposed on the manufacture and sale of gutkha and pan masala with tobacco and/or nicotine. Therefore, this cannot be extended to tobacco per se and the very Notification issued by the first respondent is bad.
Tobacco will not come within the definition of the word ‘food’ under Section 3(j) of the Act. The very proceedings initiated by the respondents are illegal.
(ii) To substantiate the said submission, he relied upon the following :
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(a) judgment of a learned Single Judge of the Kerala High Court in Joshy K.V. Vs. State of Kerala [reported in 2012 SCC OnLine Kerala 31407];
(b) judgment of a learned Single Judge of the Calcutta High Court in Sanjay Ajay Stores Vs. Union of India [reported in 2017 SCC OnLine Calcutta 16323];
(c) judgment of a learned Single Judge of this Court in M/s.Vaipugaiyilai Urpathiyalargal Matrum Virpanaiyalargal Nala Sangam rep.by its Secretary S.Noordeen Vs. Commissioner of Food Safety, Chennai-6 [reported in 2017 SCC OnLine Madras 25328];
(d) judgment of the First Bench of the Patna High Court in M/s.Omkar Agency, through its proprietor Narayan Panda Vs. 7/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Food Safety & Standards Authority of India [reported in 2016 SCC OnLine Patna 9231];
(e) judgment of the First Bench of the Andhra Pradesh High Court in Dwarapudi Sivarama Reddy Vs. Union of India [reported on 2023 SCC OnLine AP 444];
(f) the order passed by the Hon'ble Apex Court in Dharampal Satyapal Limited Vs. Commissioner of Food Safety [S.L.P.(C) Diary No.30415 of 2023 dated 01.9.2023];
(g) the order of a learned Single Judge of this Court in M/s.E.S. Mydeen & Co. rep. by its Managing Partner Mr.E.S.M.P.Kaleel Vs. Designated Officer (Thanjavur District), Tamil Nadu Food Safety and Drug Administration and another [WP.(MD) No. 8/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 18115 of 2021 etc. cases dated 18.7.2022]; and
(h) the judgment of the First Bench of the Jharkhand High Court in Smokeless Tobacco Association, through its President, namely, Mr.Jayesh Dolatrai Desai Vs. Union of India [reported in 2023 SCC Online Jharkhand 2541].
6. Per contra, the learned Additional Advocate General appearing on behalf of the respondents submitted as follows :
This Court, on more than one occasion, held that tobacco, with or without any additives, will come within the definition of the word ‘food’ under Section 3(j) of the Act. As against the Division Bench judgment in Designated Officer, Food Safety & Drugs Control Department, Villupuram Vs. Jayavilas Tobacco Traders LLP [W.A.No.2093 of 2018 etc. cases dated 20.1.2023] quashing the Notifications issued by the Commissioner, Tamil Nadu Food and Safety 9/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 and Drug Administration Department, Chennai-6, a special leave petition was filed by the State of Tamil Nadu and the Hon’ble Apex Court, by interim order dated 25.4.2023, granted stay in so far as paragraph 13 of the judgment of the Division Bench of this Court.
Therefore, the Notifications are continued to be issued every year by virtue of the earlier directions issued by the Hon’ble Apex Court.
Ultimately, the learned Additional Advocate General sought for dismissal of this writ petition.
7. This Court has carefully considered the submissions of the learned counsel on either side and perused the materials available on record and more particularly the impugned orders.
8. The justification for the first respondent to publish the Notification on year to year basis is traced to the order passed by the Hon’ble Apex Court dated 23.9.2016 in Transfer Case (Civil) No.1 of 2010 etc. cases. Hence, it will be relevant to take note of that 10/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 order even at the inception. For proper appreciation, the entire order is extracted as hereunder :
“These matters have been heard inter alia on 1.9.2016, 7.9.2016, 15.9.2016, 16.9.2016, 20.9.2016 and 21.9.2016. In the course of submissions by the learned counsel, it has been stated today that longer time will be required in completing the hearing as more submissions are to be made by many learned counsel representing the parties. Thus, it may not be possible to conclude the hearing so as to enable this Bench to decide the matter within the time available.
In view of submission of the learned counsel for the parties and the learned Amicus Curiae, we direct that the matters be now listed for hearing on 9.11.2016 as first case.
At this stage, learned Amicus Curiae has invited the attention of the Court to the Order dated 3.4.2013 passed by this Court. The relevant part of the said order reads as follows:
‘Ms.Indira Jaising, learned Additional Solicitor General invited the Court's attention to notifications issued by the Government of 23 States and the Administrators of 5 Union Territories for imposing complete ban on Gutkha and Pan Masala with tobacco and/or nicotine and then stated that notwithstanding the ban, the 11/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 manufacturers have devised a subterfuge for selling Gutkha and Pan Masala in separate pouches and in this manner the ban is being flouted.
Ms.Indira Jaising also placed before the Court xerox copy of D.O.No.P.16012/12/11-Part I dated 27.08.2012 sent by the Special Secretary, Ministry of Health and Family Welfare, Government of India to the Chief Secretaries of all the States except the States of Madhya Pradesh, Kerala, Bihar Rajasthan, Maharashtra, Haryana, Chhatisgarh and Jharkhand and submitted that the Court may call upon the remaining States and Union Territories to issue necessary notifications.
In view of the statement made by the learned Additional Solicitor General, we order issue of notice to the Chief Secretaries of the States and the Administrators of the Union Territories which have so far not issued notification in terms of 2006 Act to apprise this court with the reasons as to why they have not taken action pursuant to letter dated 27.08.2012.
We also direct the Secretaries, Health Department of all the 23 States and 5 Union Territories to file their affidavits within four weeks on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine.’ 12/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Learned Amicus Curiae has also invited our attention to paragraph 21 of the Written Submissions on behalf of the Ministry of Health and Family Welfare, Government of India, in S.L.P. (C) No. 16308 of 2007, which reads as follows:
‘21. It is most respectfully submitted that to circumvent the ban on the sale of gutkha, the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same premises, so that consumers can buy the pan masala and flavoured chewing tobacco and mix them both and consume the same. Hence, instead of the earlier “ready to consume mixes”, chewing tobacco companies are selling gutkha in twin packs to be mixed as one’.
Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006.
In view of the above, the concerned statutory authorities are directed to comply with 13/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine.”
9. On a careful reading of the above extracted order, it is seen that the focus of the Hon’ble Apex Court was on the ban imposed on the manufacture and sale of gutkha and pan masala with tobacco and/or nicotine. Hence, tobacco gets tainted only when it is mixed with gutkha and pan masala. The Hon’ble Apex Court was not dealing with a case of tobacco per se. It must also be kept in mind that in chewing tobacco, nicotine is not added as an ingredient or as food additive and it is inherent in tobacco. This position becomes clear if one looks at the certificate dated 23.2.2022 issued by the Referral Food Laboratory. This certificate was issued pursuant to test conducted on the tobacco that was seized and sent for analysis. What was found during the analysis was nicotine and nothing else.14/32
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10. When the later Notifications were published by the first respondent, they omitted the words ‘gutkha’ and ‘pan masala’ and what is mentioned in the Notifications is ‘containing tobacco and/or nicotine as ingredients’. This development has given rise to even dealing with tobacco as a banned substance and the Notification is issued under Section 30(2)(a) of the Act.
11. The justification for issuing the Notifications under the Act is traceable to two Division Bench decisions of this Court.
12. In the case of J.Anbalagan, Member of Legislative Assembly Chepauk – Triplicane Assembly Constituency Vs. Union of India & others [W.P.No.19335 of 2017 dated 26.4.2018], the First Bench of this Court came to the conclusion that tobacco will fall within the definition of the word ‘food’ under Section 3(j) of the Act. The relevant portions are extracted as hereunder :
“71. “Food” is defined in Section 3(j) of the Food Safety Act to mean any substance, whether processed, partially processed or unprocessed, 15/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 which is intended for human consumption and includes genetically modified or engineered food, but does not include animal feed, live animals, unless they are prepared or processed for placing in the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.
72. The definition of “food” which includes any substance whether processed, partially processed or unprocessed, which is intended for human consumption, and even includes chewing gum, is clearly wide enough to include gutkha and other forms of chewable tobacco intended for human consumption.
73. The Food Safety Act is a statute enacted after COTA. The definition of “Food” in Section 3(j) of the Food Safety Act is different from the definition of food in the Prevention of Food Adulteration Act, 1954, which was as follows:
‘Section 2. Definitions: - In this Act unless the context otherwise requires,-
....
(v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes, 16/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024
(a) Any article, which ordinarily enters into, or is used in the composition or preparation of, human food,
(b) Any flavouring matter or condiments, and
(c) Any other article which the Central Government may, having regard to its use, nature, substance or quality declare, by notification in the official Gazette, as food for the purposes of this Act.’
74. Under the Food Safety Act, food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption. It includes primary food to the extent defined in clause (zk), that is an article of food being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman. It also includes genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water, used into the food during its manufacture, preparation or treatment.
What is excluded is animal feed, live animals 17/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.
75. Significantly, in Godawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, reported in (2004) 7 SCC 68, the Supreme Court observed:
‘6. .... 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.’
76. The Prevention of Food Adulteration Act, 1954 has been repealed and replaced by the Food Safety Act. The definition of “food” in Section 3(j) of the Food Safety Act is different from and far more expansive than the definition of “food” in Section 2(v) of the Prevention of Food Adulteration Act. Further, the Food Safety Act has been enacted after the COTA.
77. The judgment of the Supreme Court in Godawat Pan Masala Products I.P. Ltd., supra, rendered in the context of the Prevention of Food 18/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Adulteration Act, 1954 will not have application in the facts and circumstances of the instant case.
78. It appears that in Jayavilas Tobacco Traders LLP v. The Designated Officer, The Food Safety and Drugs Control Department, (W.P.No.21 of 2017, dated 9.6.2017), Duraiswamy,J. referred to and followed the judgment of the Supreme Court in Godawat Pan Masala Products I.P. Ltd., supra. It is on that ground that the notifications impugned were held to be void.
79. With the greatest of respect, we are unable to agree with the Single Bench decision of Duraiswamy,J. in Jayavilas Tobacco Traders LLP, supra, and and the decision of the Madurai Bench in Crl.O.P.(MD) No.5505 of 2015 [Manufacturer, M/s.Tejram Dharam Paul, Maurmandi, Bhatinda District, Punjab and another v. The Food Safety Inspector, Ambasamudram] dated 27.04.2015.
80. In Dhariwal Industries Limited and another v. State of Maharashtra and others, reported in (2013) 1 Mah LJ 461, a Single Bench of the Bombay High Court held:
‘19. While the definition in the 1954 Act excluded drugs and water, the definition in the Food Safety Act, 2006 excludes animal feed, live animals, plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and 19/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 psychotropic substance. Obviously, gutka and pan masala do not fall in any of these excluded categories. The expression "any substance which is intended for human consumption" in FSS Act, 2006 is also wider than the expression "any article used as food or drink for human consumption" in PFA Act, 1954. It is also pertinent to note that the definition of food in the Act of 2006 specifically includes "chewing-gum" and any substance used into the food during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance which goes into the mouth for human consumption is sufficient to be covered by definition of food just as chewing-gum may be kept in the mouth for some time and thereafter thrown out. Similarly gutka containing tobacco may be chewed for some time and then thrown out. Even if it does not enter into the digestive system, it would be covered by the definition of "food" which is in the widest possible terms. The definition of "food" under section 2(v) of the PFA Act was narrower than the definition of food under Food Safety Act, still the Supreme Court in Ghodawat case held that pan masala and gutka were "food" within the meaning of PFA Act. The very fact that the petitioners themselves had obtained licences under the PFA Act and have also obtained licences 20/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 under the Food Safety Act, 2006 is sufficient to estop them from raising the contention that gutka and pan masala do not fall within the definition of "food" under the Food Safety Act, 2006.’
81. We agree with the view of the learned Single Bench of the Bombay High Court that gutkha and pan masala are food within the meaning of the Food Safety Act. Gutkha also being a tobacco product might be governed by the provisions of the COTA. COTA deals with regulation of cigarettes or other tobacco products. The Food Safety Act is not in conflict with the provisions of COTA in any manner. COTA does not deal with adulteration, though it may remotely touch upon misbranding.”
13. The above judgment of the First Bench of this Court was subsequently followed by another Division Bench of this Court in W.A.No.2093 of 2018 etc. cases dated 20.1.2023 wherein it was held thus :
“11.7. In the light of the above pronouncement of a Division Bench of this Court which is binding on us, we are not persuaded to accept the contention of the learned Senior Counsel for the petitioner and the respondent in 21/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 the Writ Appeal that Tobacco without any additives cannot fall within the meaning of Food as defined under Section 3(j) of the FSS Act. In fine, we conclude that Tobacco with or without any additives would fall within the definition of food under Section 3(j) of FSS Act. We have already extracted the definition as found in Section 3(j) of FSS Act, the definition in our opinion is wide enough to include Tobacco.
11.8. A reading of the definition would show that it includes primary food as defined under Clause zk and does not include plants prior to harvesting. Clause zk of Section 2 of FSS Act, defines Primary Food as an article of food being a produce of agriculture or horticulture etc. Tobacco is essentially a product of agriculture and Section 3(j) of FSS Act includes Primary Food as defined under zk of FSS Act, therefore, even on the language used in Section 3(j) the irresistible conclusion is that Tobacco with or without additives will be a food product as defined under Section 3(j) of the Food Safety and Standards Act.”
14. In both the said judgments, the Division Benches of this Court held that tobacco, with or without additives, would fall within the 22/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 definition of the word ‘food’ under Section 3(j) of the Act. In view of the same, the first respondent, while issuing the Notification under Section 30(2)(a) of the Act is, per se, including tobacco and/or nicotine as ingredients.
15. The above judgments of the two Division Benches of this Court were followed by a learned Single Judge of this Court in Crl.O.P.No.8080 of 2024 in the order dated 03.9.2024 (Ref :
Paragraphs 29 & 30].
16. The learned Senior Counsel appearing on behalf of the petitioner submitted that chewing tobacco cut leaves cannot be termed as ‘food’ within the meaning of Section 3(j) of the Act, that just because there is presence of nicotine, that, by itself, will not bring tobacco as a banned substance since nicotine is naturally contained and inherently present in tobacco leaves, that chewing tobacco is one of the products covered by the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, the COTPA), 23/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 that cultivation and sale of tobacco is only regulated and not banned by any act of the Parliament and that only if tobacco is mixed with or used as an ingredient in any food product or food article, the same is prohibited under the Act.
17. The learned Senior Counsel appearing on behalf of the petitioner placed reliance on the judgments rendered by various High Courts wherein it was held that chewing tobacco is not food.
18. This Court had an opportunity to carefully consider all the judgments that were relied upon on the side of the petitioner. In fact, the First Bench of the Jharkhand High Court and the First Bench of the Andhra Pradesh High Court have taken note of the two Division Bench judgments of this Court and also the appeal filed before the Hon’ble Apex Court against one of the Division Bench judgments of this Court, which is still pending. In all the above judgments, various High Courts have held that any substance, whether processed, partially processed or intended for human consumption, is meant as ‘food’. Tobacco, as it is, cannot be treated as a food.
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19. Section 3(j) of the Act, which defines the word ‘food’, provides for an inclusive definition. That does not, by itself, mean that a product not named in the inclusive definition, which is not a food, will become a food product unless it is shown that it is eaten with relish by men for taste or nourishment. It has been held that tobacco, at the best, is an intoxicant, which has not been used for taste or nourishment. The Courts have made it clear that they are not suggesting that consumption of tobacco or tobacco products is not injurious to public health. However, the Courts have held that tobacco can be brought within the definition of the word ‘food’ where the Commissioner of Food Safety or any other Authority is empowered to prohibit its trade or commerce under the Act and the relevant Regulations framed thereunder.
20. The Courts have also taken into consideration the provisions of the COTPA and the judgments of the Hon’ble Apex Court in Godawat Pan Masala Products I.P. Ltd. Vs. Union of India [reported in 2004 (7) SCC 68] and in ITC Limited Vs. Agricultural Produce Market Committee [reported in 2002 (9) 25/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 SCC 232]. It has been held that the ban on tobacco and tobacco products has not been imposed directly by the Parliament under the Act and hence, the Authorities under the Act cannot attempt to rope in tobacco as a banned substance under the Act, as it has not been so intended by the Parliament. Consequently, it has been held that such power cannot be read into the Act or the relevant Regulations by treating it as ‘food’ under Section 3(j) of the Act.
21. The Courts have also considered the judgment of the Hon’ble Apex Court in Godawat Pan Masala wherein it was held that the COTPA is a Special Enactment and the Prevention of Food Adulteration Act is a General Act and unless contrary appears, the Special Act would outweigh the General Act. After developing this analogy, it has been held that the Act deals with the word ‘food’ as defined under Section 3(j) of the Act whereas tobacco and tobacco products are covered under the COTPA. Therefore, taking cue from the judgment of the Hon’ble Apex Court in Godawat Pan Masala, it has been held that tobacco cannot be considered to be a food and that the 26/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Commissioner of Food Safety is not authorized to issue the Notification.
22. Another reasoning that has been given is that if chewing tobacco alone is banned without a similar ban on smoking tobacco, it will only discriminate between the two classes of players indulged in the manufacture of two products with the same ingredient. That apart, there is no ban on production, manufacture, position, sale, transportation, etc. on smoking tobacco whereas there is a ban when it comes to chewing tobacco. It has, therefore, been held that it is clearly discriminatory and it is more so since tobacco, in both the forms, is injurious and harmful to health.
23. A learned Single Judge of this Court has also taken a similar view in W.P.(MD) No.18115 of 2021 etc. cases dated 18.7.2022.
24. In both the Division Bench judgments of this Court referred to above, it is seen that they have taken note of the decision of the 27/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Hon'ble Apex Court in Godawat Pan Masala. However, both the Division Benches have proceeded on the legal principle that the endeavour of the Court should be to harmonize the COTPA and in the absence of a non-abstante clause, one cannot exclude the other.
25. This Court always believes that a Court must speak in one voice and it must be univocal. Therefore, when there is a binding precedent, a Single Judge, who may have a different view/opinion, cannot proceed to express his opinion in the judgment and the Single Judge is bound by the decision rendered by the Division Bench. There are two Division Bench judgments and one judgment of the learned Single Judge of this Court, which have consistently held that tobacco will come within the definition of the word ‘food’ under Section 3(j) of the Act. Hence, as a Single Judge, this Court must fall in line. Ultimately, the matters have reached the Hon’ble Apex Court and this Court has to await the final decision that will be taken by the Hon’ble Apex Court on this issue.
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26. In the light of the above discussions, this Court cannot interfere with the impugned Notification issued by the first respondent, which has been published in the Government Gazette on 23.5.2024. Such a Notification, which was set aside by the Division Bench of this Court in the case of Jayavilas Tobacco Traders LLP, has been stayed by the Hon’ble Apex Court vide interim order dated 25.4.2023. The Hon’ble Apex Court also made it clear that in cases where the concerned aggrieved persons find that their acts or operations are not covered by the Notification issued by the Authority under Section 30(2)(a) of the Act, they can seek redressal before the appropriate forum. In view of the same, judicial discipline requires that this Court has to necessarily await the final judgment of the Hon’ble Apex Court on this issue.
27. It is relevant to take note of the regulatory that has been issued by the Food Safety and Standards Authority of India dated 09.1.2023. In this regulatory, the Commissioner of Food Safety & Drug Administration Department, Government of Tamil Nadu has been informed that an Expert Committee constituted under the Ministry of 29/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 Health and Family Welfare is considering this issue regarding enforcement of tobacco/chewing tobacco under the Act and it was directed to withhold any further action regarding analysis/enforcement of tobacco or chewing tobacco until further orders in the matter. It is also informed before this Court that no opinion has been given by the Expert Committee so far. In view of the above regulatory - the intimation issued by the Director (Regulatory Compliance), Food Safety and Standards Authority of India, the Commissioner of Food Safety and Drug Administration Department of the Government of Tamil Nadu cannot proceed further to take any action regarding analysis/enforcement of tobacco or chewing tobacco.
28. In the light of the above, till a final decision is taken by the Expert Committee, wherever the unmanufactured tobacco is stored, sold or transported by the petitioner, the same shall not be interfered with by the respondents. However, if tobacco is mixed along with gutkha and pan masala, for which, there is a total ban, the same can be restricted, prohibited and seized and further action can be initiated. This interim arrangement has to continue till the larger issue is dealt 30/32 https://www.mhc.tn.gov.in/judis ( Uploaded on: 08/07/2025 01:04:56 pm ) WP.No.29805 of 2024 with by the Hon’ble Apex Court and a final judgment is rendered and till the Expert Committee submits its report to the Ministry of Health and Family Welfare.
29. The writ petition is disposed of in the above terms. No costs. Consequently, the connected WMPs are closed.
08.7.2025
Index : Yes
Neutral Citation : Yes
To
1.The State of Tamil Nadu, rep.
By its Commissioner (Additional
Charge), Tamil Nadu Food Safety
& Drug Administration, No.359,
Anna Salai, Teynampet, Chennai-6.
2.The Food Safety Officer (Chennai
District), Tamil Nadu Food Safety
& Drug Administration Department,
No.33, West Jones Road, West
Saidapet, Chennai-15.
3.The Designated Officer/Appellate
Authority, Tamilnadu Food Safety &
Drug Administration Department,
No.369, Anna Salai, Teynampet,
Chennai-6.
RS
31/32
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WP.No.29805 of 2024
N.ANAND VENKATESH,J
RS
P.D.ORDER IN
W.P.No.29805 of 2024 &
WMP.Nos.32506 & 32507
of 2024
08.7.2025
32/32
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