Orissa High Court
Gopal Aromatic Private vs State Of Odisha .... Opposite Party(S) on 9 March, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.6107 of 2026
Gopal Aromatic Private
Limited, Cuttack .... Petitioner(s)
Mr. C.S. Vaidyanathan, Sr. Adv.
Mr. Vivek Kohli, Sr. Adv.
Mr. Nalin Talwar, Adv.
Mr. Manoj Gupta, Adv.
Ms. Yeshi Rinchhen, Adv.
-versus-
State of Odisha .... Opposite Party(s)
Ms. Gayatri Patra, ASC
CORAM:
HON'BLE DR.JUSTICE SANJEEB K PANIGRAHI
ORDER
Order No. 09.03.2026 02.
1. This matter is taken up through hybrid arrangement.
2. Heard.
3. The Petitioner has filed the present Writ Petition under Article 226 of the Constitution of India, invoking the extraordinary jurisdiction of this Court for issuance of an appropriate writ, order or direction to set aside Notification No. 2065/H & F.W. dated 21.01.2026 issued by the Opposite Party-State authorities, insofar as the said notification brings chewing tobacco (with or without additives, flavours and Signature Not Verified Digitally Signed Signed by: SIPUN BEHERA scents) within its ambit. The challenge is confined to the Designation: Senior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 09-Mar-2026 17:23:35 inclusion of chewing tobacco in the impugned notification, Page 1 of 6 which, according to the Petitioner, travels beyond the scope and intent of the regulatory framework under which the notification has been issued.
4. Learned Sr counsel for the Petitioner, Mr. Vaidyanathan contends that the impugned notification is manifestly arbitrary and violative of the guarantees enshrined under Article 14 of the Constitution of India and Article 19(1)(g) of the Constitution of India of the Constitution of India. It is further submitted that the notification travels beyond the statutory scheme contemplated under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, the Food Safety and Standards Act, 2006, as well as the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011. According to the Petitioner, the inclusion of chewing tobacco within the sweep of the impugned notification is inconsistent with the regulatory framework established under the aforesaid enactments and regulations, thereby rendering the notification legally unsustainable.
5. Learned counsel for the Petitioner further submits that the reliance placed by the Opposite Party on Regulation 2.3.1 of the Residues Regulation to contend that chewing tobacco falls within the definition of "food" is wholly erroneous. It is contended that Food Safety and Standards Page 2 of 6 (Contaminants, Toxins and Residues) Regulations, 2011, particularly Regulation 2.3.1 thereof, stood substituted by Notification No. 1-SP (PAR)-Notification-Pesticide/Std- FSSAI/2017 dated 24.12.2018 issued by the Food Safety and Standards Authority of India and under the said substituted regulatory framework, chewing tobacco is no longer referred to as "food", and therefore the foundation of the Opposite Party's contention that chewing tobacco can be regulated as a food item is legally untenable.
6. Learned Senior counsel for the Petitioner further contends that the mere addition of food additives to a pure tobacco product such as chewing tobacco does not alter its essential character so as to transform it into "food" within the meaning of the statutory framework governing food articles. The intrinsic nature of chewing tobacco remains that of a tobacco product notwithstanding the presence of additives, flavouring agents or scents. In this regard, it is further contended that even in the case of a "food" article within the meaning of Food Safety and Standards Act, 2006, the addition of permitted additives does not change the fundamental nature of the food product. On this premise, learned counsel argues that the reasoning adopted by the Opposite Party in treating chewing tobacco as "food" merely on account of the presence of additives is legally unsustainable and contrary to the scheme of the statute. Page 3 of 6
7. Learned Senior counsel for the Petitioner further contends that chewing tobacco is a scheduled tobacco product within the meaning of Section 3(p) of the Cigarettes and Other Tobacco Products Act, 2003, and is statutorily recognized as a tobacco product under the scheme of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. It is submitted that under Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, particularly Regulation 2.3.4, tobacco and nicotine are treated as "ingredients" whose use in food products is prohibited, thereby maintaining a clear statutory distinction between tobacco products and food or food articles.
8. It is therefore submitted that chewing tobacco, being a scheduled and pure tobacco product governed by the regulatory regime of COTPA, cannot by any stretch of imagination be brought within the definition of "food" under Section 3(1)(j) of the Food Safety and Standards Act, 2006, nor within the scope of Regulation 2.3.1 of the Food Safety and Standards (Contaminants, Toxins and Residues) Regulations, 2011.
9. Learned counsel for the Petitioner further contends that Tobacco/Chewing Tobacco cannot simultaneously be treated as "food" under Section 3(1)(j) of the FSSA and also as a Page 4 of 6 "substance/ingredient not to be added to any food article"
for the purpose of Regulation 2.3.4. While Section 30(2)(a) empowers the authority to prohibit "food" in the interest of public health for a period of one year, Regulation 2.3.4 prohibits the addition or mixing tobacco or nicotine to any food article. Therefore, chewing tobacco can either be "food"
and subject to powers under Section 30(2)(a) of FSA Act or it can be treated as a substance prohibited from being added to food article under Regulation 2.3.4. Subjecting chewing tobacco to both the provisions simultaneously by stretching the interpretation of the terms is legally unsustainable and erroneous.
10. Learned counsel for the Petitioner further contends that the impugned notification is vitiated on account of complete non-application of mind, and non-consideration of relevant law governing the field in proper perspective. It is reiterated that no public consultation was undertaken and no material has been placed on record to demonstrate that the competent authority formed a reasoned opinion justifying a departure from the procedure prescribed under Section 18 of the Food Safety and Standards Act, 2006.
11. According to the Counsel for the Petitioner, the absence of any discernible deliberative process, it renders the decision-making process arbitrary and legally unsustainable to issue the impugned notification.
Page 5 of 6
12. Issue Notice.
13. Learned counsel for the State represented by Ms. Gayatri Patra, ASC waives of notice on behalf of the Opposite Party. Let an extra copy of the brief be served on her within three working days hence. She is directed to file reply within ten days from the date of receipt of the brief.
14. List this matter on 10th April, 2026 at 2.00 P.M. I.A. No.3785 of 2026
15. Heard.
16. Issue notice as above.
17. Accept one set of process fee.
18. As in interim measure, it is directed that there shall be a stay on the operation of Notification No.2065/H & F.W. dated 21.01.2026 under Annexure-1. It is further directed that no punitive/penal/criminal action shall be taken in any manner by the Opposite Party against the Petitioner pursuant to the aforesaid notification till the next date of listing of this matter.
19. Issue urgent certified copy of this order as per Rules.
(Dr. Sanjeeb K Panigrahi) Judge Sipun Page 6 of 6