Calcutta High Court (Appellete Side)
For vs Union Of India). Proceedings Happened ... on 30 September, 2019
Author: Arindam Sinha
Bench: Arindam Sinha
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30.09.2019
01
RP Ct.04
AST 41 of 2019
Mr. Anindya Mitra,Sr. Adv.
Mr. Soumya Ray Chowdhury, Adv.
Mr. Himanshu Chaubey, Adv.
Mr. Srijan Sinha, Adv.
Mr. Ritesh Kumar Ganguly, Adv.
Mr. Surajit Biswas, Adv.
.... For petitioners
Mr. Vipul Kundalia, Adv.
Mr. Tapan Bhanja, Adv.
Mr. M.C. Prusty, Adv.
Mr. S. Lamba, Adv.
.... For UOI
Mr. Mitra, learned senior advocate moves the petition, which
contains challenge to Ordinance dated 18th September, 2019.
He brings to attention four dates. On 21st May, 2003 Framework
Convention on Tobacco Control (FCTC), was adopted by members of
World Health Organization (WHO). The treaty was ratified by India in
2004. Same came into operation on 27th February, 2005. Second date
is 18th October, 2014, when conference of parties, established under
article 23 of FCTC, took decision as referred in impugned ordinance.
Third date or dates are in relation to period between October, 2014 and
September, 2019. In this period, 21 Parliamentary sessions were held.
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Last dates are 26th July, 2019 and 11th December, 2019, being period in
which Parliament is not and will not be in session. Date of impugned
ordinance has already been recorded.
On query from Court regarding whether there was discussion in
Parliament during the period, in which 21 sessions were held, he refers
to disclosures in AST 40 of 2019 (Plume Vapour Private Limited & Anr.
Vs. Union of India). Proceedings happened in Parliament between 7th
September, 2012 (in Lok Sabha as well as Rajya Sabha relating to e-
cigarettes) and 26th July, 2019 have been disclosed. From answers
given on behalf of the Government following appear :-
a) The Government is aware of marketing of e-cigarettes and their
growing popularity across the country.
b) On 3rd April, 2018 the Government said, matter regarding regulating
including banning, inter alia, device such as Electronic Nicotine
Delivery System (ENDS) is under consideration of Ministry of Health
and Family Welfare.
c) On 27th July, 2018 unstarred question 1743 had answer given to
include statement that available literature suggests, ENDS contains
nicotine, which is the same addictive component of tobacco
products.
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d) Answer given in Rajya Sabha to unstarred question 893, answered
on 18th December, 2018, contains statement, Government of India
has issued advisory to all States/Union Territories to ensure ENDS
are not sold.
e) As on 21st December, 2018 the Government said no decision has
been taken on how to regulate ENDS.
f) Answer given in Lok Sabha to unstarred question 2826 (H),
answered on 10th July, 2019, includes statement of the Government,
made on its consideration that health is a State subject.
Also to query from Court Mr. Mitra submits, the above is in public
domain. No other information is available therein regarding anything
else to be considered as reason for immediate action.
Petitioner is a manufacturer of ENDS as well Electronic Non-
Nicotine Delivery System (ENNDS). Both have been banned by
impugned ordinance. His clients' fundamental right guaranteed under
article 19(1)(g) in the Constitution of India stand violated. He relies on
judgement of Supreme Court in Ramlila Maidan Incident, In Re
reported in (2012) 5 SCC 1, paragraphs 32 to 35 and 286.2. He
submits, whether the ban is a restriction, in effect amounting to total
prohibition, may be a question, which needs determination but even if
taken to be a restriction, at this stage, standard for judging
reasonability of restriction or restriction amounting to prohibition
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remains the same. Excepting that, a total prohibition must also satisfy
the test that a lesser alternative would be inadequate. It must stand
scrutiny of judicial review. It cannot be arbitrary or excessive. This is
in context of alternative available to Government of India, being a party
to FCTC, of prohibiting or regulating e-cigarettes, as appearing from 2nd
recital in impugned ordinance.
He has another contention. E-cigarettes are included in clause
(n) of definitions section 3, in Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003. He relies on that part
of the definition reproduced below :-
"3(n)...or otherwise with the aid of a pipe, wrapper or any other
instruments;"
He submits, thereby the definition includes e-cigarettes, which came
after commencement of the Act. For regulation of use of e-cigarettes,
including it in the schedule was all that was required. He submits,
ENDS causes consumption of nicotine by the user. This nicotine is an
end product of tobacco. He relies on judgment of Supreme Court in
Collector of Central Excise, New Delhi vs. Ballarpur Industries Ltd.
reported in (1989) 4 SCC 566, paragraphs 14 and 15, for interpretation
of raw material to include end product, in which it is not present.
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Lastly, he relies on judgment of Supreme Court in Godwat Pan
Masala Products I.P. Ltd. Vs. Union of India reported in (2004) 7 SCC
68, paragraph 53 on res extra commercium. He submits, this imposed
illegality on business carried on by his client, on treating it as res extra
commercium, has to be by legislative policy arising out of an Act of
Legislature and not by mere notification on Executive Order. He
reiterates reference to proceedings in both Houses of Parliament in the
period upto last date of ended session.
Respondents will be heard tomorrow.
(ARINDAM SINHA, J.) 6