Madras High Court
Jeetmal Ramesh Kumar vs The Commissioner on 14 February, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 14.02.2019
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
W.P.(MD)No.778 of 2019
and
W.M.P.(MD)Nos.646 and 647 of 2019
Jeetmal Ramesh Kumar ... Petitioner
Vs.
1.The Commissioner,
Food Safety and Drug Administration Department,
Chennai-6.
2.The Food Analyst,
Food Analyst Laboratory,
Thanjavur.
3.The Designated Officer,
Food Safety and Drug Administration Department,
(Food Wing)
No.820/B, N.G.O. 'A' Colony,
Tractors Road,
Perumalpuram,
Tirunelveli-7.
4.The Inspector of Police,
Tirunelveli Town Police Station,
Tirunelveli.
(Crime No.324 of 2018) ... Respondents
PRAYER: Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorari, to call for the entire records
pertaining to the report of the second respondent in K.Dis.No.
2222/A4/2018 Report No.1103/2018-19, dated 03.12.2018 and
quash the same as illegal.
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2
For Petitioner :Mr.R.Anand
For Respondents :Mr.M.Rajarajan
Government Advocate
ORDER
The writ petitioner is running a General Merchant Shop at Tirunelveli. The Inspector of Police, Tirunelveli Town Police Station registered Crime No.324 of 2018 under Sections 5(2) (C), 6(b) and 21(b) of Cigarette and other Tobacco Act read with 294 of I.P.C. following the recovery of five gunny bags containing chewing tobacco. The writ petitioner was implicated in the said case. Even though the police arrested the petitioner and sought his remand, the Jurisdictional Magistrate declined to remand the petitioner.
2.The stand of the writ petitioner is that he has nothing to do with the said contraband. While so, the samples of the contraband were taken and one of them was sent for analysis. The food analyst appointed under the provisions of the Food Safety and Standards Act, 2006, found the sample to be a banned food product containing Nicotine falling under Regulation 2.12.1(1) of the Food Safety and Standards (Food Product Standards and Food Additives) Regulations, 2011.
3.A copy of the report of the said food analyst was furnished http://www.judis.nic.in to the writ petitioner herein vide communication dated 07.12.2018 3 by the third respondent herein / designated officer. The Designated Officer called upon the writ petitioner to apply within 30 days if the petitioner wants the sample to be tested in the referral lab. The report of the food analyst dated 03.12.2018 is under challenge in this writ petition.
4.The learned counsel appearing for the writ petitioner submitted that the issue on hand is no longer res-integra and that, it is covered by a catena of the decisions rendered by the Madras High Court. The short argument advanced by the learned counsel appearing for the writ petitioner that chewing tobacco will not fall under the purview of the Food Safety and Standards Act, 2006. The petitioner has enclosed the order dated 23.04.2018 made in W.P. (MD)No.5924 of 2018, wherein it was held that since chewing tobacco would not fall under the purview of the said Act, the authorities under the said Act will not be justified in initiating coercive action against the petitioner. The learned Judge allowed the said writ petition by following the earlier order dated 27.04.2015 made in Crl.O.P.(MD)No.5505 of 2015, wherein, it was held that FSSA cannot be invoked against manufacturing Gutka and Pan Masala since tobacco is covered under COTPA (Cigarettes and other Tobacco Products Act, 2003).
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5.The writ petitioner has rushed to this Court without noticing that the ground beneath his feet had totally shifted.
6.No doubt, the order dated 23.04.2018 made in W.P.(MD)No. 5924 of 2018 is squarely in favour of the petitioner. But then, the learned Judge had merely followed an earlier order dated 27.04.2015 in Crl.O.P.(MD)No.5505 of 2015. It would be useful to extract the operative portion of the order dated 27.04.2015 in Crl.O.P.(MD)NO.5505 of 2015 (Manufacturer, Tejram Dharam Paul, Maurmandi, Bhatinda District, Punjab and another Vs. The Food Safety Inspector, Ambasamudram) in its entirety.
“4.The only submission made by the learned counsel for the petitioners is that the sale of Tobacco would not attract the provisions of the enactment. He further submits that as per Rule 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation Act, 2011, Tobacco shall not be used as ingredients in any food products. As the Tobacco does not come within the purview of the food product, the provisions will not apply. Moreover, when the allegation itself is that is has been sold in packet as Tobacco.
7.Considering the very same issue with respect to the petitioners, the High Court of Kerala was pleased to hold while dealing with the very same provisions in the following manner:
http://www.judis.nic.in “30. Having found that chewing Tobacco is not a food 5 product as defined under the FSS Act, I am of the view that the writ petitions are only to be allowed as follows:
(i) That Tobacco or Tobacco products are not food as defined under Section 3(j) of the FSS Act and it is not a food product as specified in the Regulation 2.3.4 of the Regulations.
(ii) Tobacco and Tobacco products are to be manufactured and sold strictly in accordance with the provisions of the CTP Act and the Rules framed thereunder.
(iii) The Respondents have no right take any action against Tobacco or Tobacco products by virtue of Government Order dated 22.05.2012 (Ext.P9 in W.P.C.No. 13580 of 2012).”
8.Thus, it is clear that the petitioners, who are manufacturing Gutkha and Pan Masala cannot be proceeded under the FSSAI. Tobacco is covered under the COTA (Cigarettes and other Tobacco Products Act, 2003)
9.In the light of the above, this Court is constrained to quash the proceedings. Accordingly, the proceedings initiated against the petitioners in C.C.No.9 of 2014 on the file of the Judicial Magistrate Court, Ambasamudram, is hereby quashed and the Criminal Original Petition is allowed. Consequently, the connected miscellaneous petition is closed. However, it is made clear that the Order will not stand in the way the Appropriate Authority to take action under COTA (Cigarettes and other Tobacco Products Act, 2003)” http://www.judis.nic.in 6 This Order was followed in 2017 (4) CTC 149 (Jayavilas Tobacco Traders LLP, Vs. The Designated Officer).
7.Both these decisions came up for consideration before the Hon'ble First Bench in J.Anbazhagan Vs. Union of India (2018 (3) CTC 449). The Hon'ble First Bench categorically held that they do not agree with these decisions. The relevant portions of the said decision reads as under:-
“ 71. Food is defined in Section 3(j) of the Food Safety Act to mean any substance, whether processed, partially processed or unprocessed, 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 http://www.judis.nic.in follows:7
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,
(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 J.Anbazhagan vs 3 The Joint Director Indian Kanoon -
http://indiankanoon.org/doc/95196559/ 24 substance, including water, used into the food during its manufacture, preparation or treatment. What is excluded is animal feed, live animals unless they are prepared or processed for http://www.judis.nic.in placing on the market for human consumption, plants prior 8 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:
.. .... 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 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.
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79. With the greatest of respect, we are unable to 9 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 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 J.Anbazhagan vs 3 The Joint Director Indian Kanoon -
http://www.judis.nic.in http://indiankanoon.org/doc/95196559/ 25 some time 10 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 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.
82. It is well settled that the endeavour of the Court should be to harmonize two Acts seemingly in conflict. Of course, in this case there does not appear to be any conflict between COTA and the Food Safety Act. COTA is in addition to and not in derogation of other laws relating to food http://www.judis.nic.in products. There is no non obstante clause in COTA which 11 excludes the operation of other Acts.
83. Considering the harmful effects of consumption of chewable tobacco, such as gutkha, which leads to fatal ailments such as cancer, this court cannot shut its eyes to the malaise of illegal manufacture and sale of gutkha within the jurisdiction of this High Court, i.e., the State of Tamil Nadu and the Union Territory of Puducherry.
84. There can be no doubt that a high level, fair and impartial enquiry should be conducted to effectively stop illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco in contravention of the provisions of the 2011 Regulations and the various notifications, referred to above, and also to identify and take action against those carrying on, aiding, abetting or otherwise in connivance with the illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco.” Though the Hon'ble First Bench employed a polite expression that it was unable to agree with the Single Bench decision, in effect, it means that all the earlier Single Bench decisions on the subject stood over ruled and no longer constitute good law. The order dated 23.04.2018 made in W.P.(MD)No.5924 of 2018 rests on these two decisions. Therefore, in view of the later judgment rendered by the Hon'ble First Bench on 26.04.2018, the foundational proposition, on which, the writ petition is anchored stands totally shaken and undermined.
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8.It is relevant to note here that the order of the Hon'ble First Bench rendered in Anbalagan's case was challenged before the Hon'ble Supreme Court. A Three Judges of the Hon'ble Supreme Court in the decision reported in (2018) 7 SCC 365 (E.Siva Kumar Vs. Union of India), declined to interfere. Of-course, the order passed by the Hon'ble Supreme Court dismissing the SLP was more on the correctness of the order entrusting the investigation of the crime in question to C.B.I. But then, the petitioner before the Hon'ble Supreme Court namely, E.Siva Kumar who was named as an accused in the F.I.R, was on deputation as Food Safety Officer in the Food Safety and Drug Administration Department, Ministry of Health. The very first paragraph refers to the “illegal manufacture and sale of Gutkha and Pan Masala containing tobacco and Nicotine”. The dismissal of the SLP was not by a non speaking order. It refers to the facts of the case and is a speaking order. Therefore this Court can proceed on the premise that the decision of the Hon'ble First Bench in Anbalagan case has been approved by the Hon'ble Supreme Court in E.Sivakumar case. In fact, the editorial note made in the web edition of SCC online also says so. Still there may be some controversy as to whether, the Hon'ble Supreme Court has given its seal of approval to the finding of the Hon'ble First Bench with regard to tobacco being a food product falling under Food Safety and Standards Act, 2006. But then, there cannot be http://www.judis.nic.in 13 any dispute about the fact that as on date, as far as the State of Tamil Nadu is concerned, the position is that chewing tobacco/pan masala containing tobacco/nicotine are food substances falling within the purview of the Food Safety and Standards Act, 2006.
9.It is true that the other High Courts have taken a contra position. The Hon'ble First Bench of the Delhi High Court in the decision reported in 2015 DLT 752 (Food Safety and Standards Authority of India Vs. Danisco (India) Private Limited) held that a food addictive is distinct from and is not a food. The Calcutta High Court in Sanjay Anjay Stores Vs. The Union of India reported in 2017 SCC Online Cal 16323, held that the tobacco products are regulated exclusively by COTPA and that, the authority under FSSA, has no jurisdiction in respect of tobacco products mentioned in the schedule to COPTA. Chewing tobacco figures at Serial No.6 in the schedule of COPTA. The decision of the Kerala High Court in Joshy K.V. Others Vs. State of Kerala reported in (2013) 1 KL3 244, is also on the same lines. But then, that can be of no assistance to the writ petitioner.
10.The Hon'ble First Bench of the Madras High Court has categorically held that the Food Safety and Standards Act, 2006, will apply to tobacco products also and that as on date, tobacco http://www.judis.nic.in 14 products including chewing tobacco/chewable tobacco are banned food items.
11.I may incidentally add that the Food Safety and Standards Act, 2006 contains a overriding provision. Section 89 of the said Act reads as follows:-
“Overriding effect of this Act over all other food related laws:- The provisions of this Act shall have effect notwithstanding anything inconsistent therewith 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.”
12.The learned Government Advocate also brings to my notice that regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales Regulations, 2011 made by the Food Safety and Standards Authority of India in exercise of the powers conferred by clause (i) of subsection (2) of Section 92 read with Section 26 of Food Safety and Standards Act, 2006 (Central Act 34 of 2006) states that tobacco and nicotine shall not be used as ingredients in any food products as they are injurious to health and that as on date, the said regulation has not been stayed and that it is very much in force. He drew my attention to the order dated 23.09.2016 in Transfer Case (Civil) No.1 of 2010, which reads as follows:-
http://www.judis.nic.in 15 “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 and Restriction 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 and Standards Act, 2006.”
13.The Commissioner of the Food Safety has issued a notification dated 23.05.2018 published in the Tamil Nadu Government Gazette No.184, dated 23.05.2018. It reads as follows:
“Now therefore, in exercise of the powers conferred by clause (a) of sub-section (2) of Section 30 of the Food Safety and Standards Act, 2006 (Central Act 34 of 2006), the Commissioner of Food Safety of the State of Tamil Nadu, in the interest of public health, hereby prohibits the manufacture, storage, transport, distribution or sale of all food products chewable or otherwise which is either flavoured or scented or mixed with any of the said additives, and whether going by the name or form of gutkha, panmasala, flavoured or scented food products or chewable food products by whatsoever name called, whether packaged or unpackaged and/or sold as one product, or through packaged as separate products, sold or distributed in such a manner so as to easily facilitate mixing http://www.judis.nic.in by the consumer and any other food products containing 16 tobacco and/or nicotine as ingredients, by whatsoever name it is available in the whole of the State of Tamil Nadu for a further period of one year with effect from 23.05.2018.”
14.The definition of the term food is found in Section (3)(j) of Food Safety and Standards Act, 2006 is as follows:-
(j)“Food” means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), 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 but does not include any animal feed, live animals 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:
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality”
15.It is interesting to note that chewing gum is also defined as a food. One does not swallow a chewing gum. Therefore, there is no merit in the petitioner's contention that tobacco is only chewed and not digested and therefore, cannot be considered as food.
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16. As rightly contended by the respondents, tobacco is kept in the mouth and chewed and it gets mixed with saliva and goes into the body. Therefore, a conjoint reading of Section 3(j) of the Food Safety and Standards Act, 2006, regulation 2.3.4 of FSSA, 2011 and Notification No.1418/2013/S8/FSSA, dated 23.05.2018 in the light of the decision of the Hon'ble First Bench in Anbalagan Case leads one to the irresistible inference that chewing /chewable tobacco is a banned substance and that, it falls under the purview of the Food Safety and Standards Act, 2006. Therefore, I find no merit in the contention of the writ petitioner that the impugned report of the analyst is without jurisdiction. The writ petition stands dismissed. However, it is made clear that the dismissal of this writ petition will not come in the way of the petitioner establishing his innocence that he has nothing to do with the contraband in question. All the other defences of the writ petitioner are left open. The writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
14.02.2019
Index :Yes/No
Internet : Yes/No
rmi
NOTE:Issue Order Copy on 22.02.2019
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18
G.R.SWAMINATHAN,J.
rmi
To
1.The Commissioner,
Food Safety and Drug Administration Department, Chennai-6.
2.The Food Analyst, Food Analyst Laboratory, Thanjavur.
3.The Designated Officer, Food Safety and Drug Administration Department, (Food Wing) No.820/B, N.G.O. 'A' Colony, Tractors Road, Perumalpuram, Tirunelveli-7.
4.The Inspector of Police, Tirunelveli Town Police Station, Tirunelveli.
W.P.(MD)No.778 of 2019
and W.M.P.(MD)Nos.646 and 647 of 2019 14.02.2019 http://www.judis.nic.in