Madhya Pradesh High Court
Amarchand Upadhyay And Anr. vs Union Of India And 3 Ors. on 8 September, 2017
Author: Virender Singh
Bench: Virender Singh
11 W. P. No.10998/2012
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.:Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Virender Singh, JJ.
Writ Petition No.10998/2012
AMARCHAND UPADHYAY & ANOTHER
Versus
UNION OF INDIA & OTHERS.
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Shri A.K. Sethi, learned Senior counsel with Shri Anil Naidu,
Advocate for the petitioners.
Shri Deepak Rawal, ASG for respondent No.1.
Shri Rohit Mangal, Government Advocate for respondents No.2,
3 and 4.
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ORDER
(Passed on 8.9.2017) Per P.K. Jaiswal, J:-
The petitioners are aggrieved by the order No.3765 dated 31.3.2012 issued by the Commissioner for M.P. & Controller (Food & Drugs Administration), Govt. of M.P. under Regulation 2.3.4 of Food Safety and Standards (Prohibition & Restriction on Sales) Regulations, 2011 (hereinafter referred as "the Regulations"), prohibiting the use of nicotine in any food. Further the sale of Gutka, which is commonly Pan Masala mixed with Tobacco was also prohibited from being manufactured. Licenses and Registration under the FSS (Licensing & Registration) Regulation, 2011 was also prohibited for such units.
2. The petitioners in the present case are praying for 11 W. P. No.10998/2012 issuance of writ of mandamus declaring a Regulation 2.3.4 contained in Notification No.2-15015/30/2010 dated 1.8.2011 as null and void and the Notification No.2-15015/30/2010 dated 1.8.2011 not applicable on scheduled tobacco products under The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or COTPA (hereinafter referred as COTPA, 2003) and for issuance of writ of certiorari quashing order dated 31.3.2012 issued by the Commissioner of Food Safety and issue a writ of Mandamus declaring that the provisions of FSS Act, 2006 Rules and Regulation are not applicable on tobacco products scheduled under COTPA, 2003 and issue a writ, order or direction in the nature of mandamus restraining the respondents from proceeding further in any manner under the said FSS Act, 2006 Rules and Regulations insofar as it relates to the tobacco products scheduled under the COTPA, 2003 and issue a writ of mandamus directing the respondents not to initiate any punitive/penal/criminal action in any manner whatsoever against the petitioners and their servants, agents, retailers, employees, dealers under the provisions of the said FSS Act, 2006 and Rules.
11 W. P. No.10998/20123. The present writ petition was initially filed as Amarchand Upadhyay & Anr. V/s. Union of India (W.P.No.7550/2012) before the Principal seat of High court of M.P. at Jabalpur and inter-alia challenged the FSSAI Regulation 2.3.4 and the order dated 31.3.2012 issued by the State Government for its enforcement. Against the interim order dated 24.7.2012 passed in the said petition, the petitioner filed a Special Leave to Appeal (Civil) No.23440-23441 of 2012, before the Supreme Court of India. The Hon'ble Supreme Court on 7.8.2012 dismissed the SLP with a request to the High court to dispose of the matter at an early date.
4. The petitioners subsequently, filed another Special Leave to Appeal (Civil) 4165-4166 of 2013, titled as Amarchand Upadhyay & Anr. V/s. Union of India against the interim orders dated 13.9.2012 and 25.9.2012, in W.P.No.7550/2012 wherein the principal seat at Jabalpur, extended the date of hearing in the matter, in veiw of the Transfer Petition (Civil) No.1147-1152/2012, filed for transfer of similar matters pending before various High courts to Supreme court of India. Thus, the Apex Court vide order dated 18.1.2013 issued notice and tagged the matters with SLP(c) No.28716 of 2012. Now the said matters are tagged with Transfer Case (Civil) 11 W. P. No.10998/2012 No(s).1/2010 which is pending for hearing before the Apex Court.
5. The W.P.No.7550 of 2012 pending at Principal seat at Jabalpur was tagged with similar petition filed against the same notification/orders titled as M/s. Kaipan Pan Masala V/s. UOI, WP(C) 5915 of 2012. W.P.No.(Civil) 5915/2012 was transferred to the Apex court vide order dated 26.11.2013 in Transfer Petition (Civil) No.1147- 1152/2012 and is tagged with Transfer Case (Civil) No(s).1/2010.
6. W.P.No.7550/2012 was subsequently transferred to Indore Bench and re-numbered as W.P.No.10998 of 2012, which is the instant petition.
7. Learned Senior counsel for the petitioners has drawn our attention to the decision of the Apex court in the case of Godawat Pan Masala Products IT., Ltd & Another V/s. Union of India & Others, reported as 2004 (7) SCC 68 and submits that the Apex court has held that Gutka, Pan Masala and Supari does not come within the purview of the food product / food articles. After the decision of the Apex court Food Safety & Standard Act, 2006 (herein after referred as "FSS Act 2006") was framed and in exercise of the powers conferred under Section 92 11 W. P. No.10998/2012 read with Section 26 of the FSS Act, 2006 "Regulations" was invited. Clause 2.3.4 of the said Regulation expressly prohibit tobacco and nicotine in all food products.
8. The Apex Court in the matter of Ankur Gutka V/s. India Ashma Society & Others (SLP No.16308/2007), vide order dated 3.4.2013 held as under :-
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 manufactures have devised a subterfuge for selling Gutkha and Pan Masala in separate pouches and in this manner the ban is being flouted.
Ms . Indira Jaisingh 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 11 W. P. No.10998/2012 ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine.
9. In SJJ Exports Company V/s. Food Safety Commissioner, W.P.No.2266/2012, the Bombay High court vide order dated 21.1.2013, dismissed a petition seeking exemption from the ban imposed on the sale and manufacture of Gutkha manufactured for export. The company's appeal to the Hon'ble Supreme court was dismissed in SLP No.8432/2013 by order dated 1.3.2013.
10. The Apex court in Center for Public Interest Litigation V/s. Union of India & Others (W.P.(C) No.681/2004) vide its judgment dated 22.10.2013
21. We may emphasize that any food article which is hazardous or injurious to public health is a potential danger to the fundamental right to life guaranteed under Article 21 of the Constitution of India. A paramount duty is cast on the States and its authorities to achieve an appropriate level of protection to human life and health which is a fundamental right guaranteed to the citizens under Article 21 read with Article 47 of the Constitution of India.
22. We are, therefore, of the view that the provisions of the FSS Act and PFA Act and the rules and regulations framed thereunder have to be interpreted and applied in the light of the Constitutional Principles, discussed above and endeavour has to be made to achieve an appropriate level of protection of human life and health. Considerable responsibility is cast on the Authorities as well as the other officers functioning under the above mentioned Acts to achieve the desired results. Authorities are also obliged to maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and 11 W. P. No.10998/2012 risk, food safety surveillance and other monitoring activities covering all stages of food business.
11. The Apex court in Transfer case (Civil) No(s.)1/2010 on 23.9.2016 directed that the concerned statutory authorities to enforce Regulation 2.3.4 of 2011 Regulations and that all States and Union Territories are 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. Relevant part of Order dated 23.9.2016 passed by the Apex court in Transfer case No.1/2010, SLP (C) Nos.4165-4166/2013 (Amarchand Upadhyay & Another V/s. Union of India & Others), against order dated 13.9.2012 and 25.9.2012 passed in W.P.No.7550/2012 (New W.P.No.10998/2012) and other connected matters reads as under:-
"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 11 W. P. No.10998/2012 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 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."
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 œready to consume mixes, chewing tobacco companies are selling gutkha in twin packs to be mixed as one"11 W. P. No.10998/2012
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 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."
12. The Commissioner Food Safety, M.P. in compliance to order dated 23.9.2016 passed by the Apex court in Transfer Case No.1/2010, issued an order No.5615 dated 19.10.2016 that Pan Masala and Tobacco should be stapled and sold together in pouches and neither any product should contain Tobacco and Nicotine.
13. Special Leave to Appeal 4165-4166/2013 titled as Amarchand Upadhyay & Anr. V/s. Union of India against the interim order dated 3.9.2012 and 25.9.2012 passed by the Principal seat at Jabalpur, the said cases are tagged with Transfer Case (Civil) No.
(s).1/2010, which is pending for hearing before the Hon'ble Supreme court.
14. Considering the aforesaid, we cannot accept the prayer of the learned Senior counsel for the petitioners that the writ petition be heard finally in compliance to 11 W. P. No.10998/2012 order dated 7.8.2012 passed in the case of petitioners nor, we decide this writ petition on merit on the basis of detailed order passed by the Patna High Court in the case of Onkar Agency V/s. Food Safety Standard, Authority of India & Another decided on 19.7.2016 and similar order by Madras High court in the case of Jai Vilas Pan Masala V/s. Designated Officer decided on 9.6.2017. As per orders passed by the Hon'ble Supreme court on 1.3.2013, 26.11.2013, 22.10.2013 and 23.9.2016 whereby, the complete ban on sale of Gutkha and Pan Masala, which are having tobacco ingredients has been made, we cannot accept the prayer of the learned senior counsel for the petitioners on the basis of judgment passed in the case of Godawat Pan Masala Products I.P. V/s. Union Of India & Ors., Appeal (civil) 4674 of 2004 decided on 2.8.2004 and the decision of Patna High court and Madras High court. The subject matter is ceased up by the Hon'ble Supreme Court and interim orders have been passed therein and also directed all the States and Union Territories including the State of M.P. to file affidavit. The subject matter involved in this petition is still pending (including the transfer petition of the petitioner and SLP (Civil) No.4165-4166 of 2013) before the Hon'ble Supreme Court and, 11 W. P. No.10998/2012 therefore, we defer the hearing till the subject matter is finally decided by the Hon'ble Supreme Court.
15. We direct the learned Government Advocate to file appropriate application for transfer of the case. Registry / Office is directed to list this matter for final hearing only after the final order in SLP 4165-4166 of 2013 (Amarchand Upadhyay & Another V/s. Union of India & Others), Transfer Case (Civil) No.1 of 2010 and other connected matters passed by Hon'ble Supreme court in pending SLP's / Transfer Petitions and writ petitions.
(P. K. JAISWAL) (VIRENDER SINGH)
JUDGE JUDGE
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