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(8) The petitioners further contended that the impugned Notification is ultra vires the FSS Act 2006 and is also contrary to COTPA 2003. It has been further contended that under the Food Safety and Standards (Food Products Standards and Food Additives) Regulations, 2011, 'pan masala' is defined under Regulation 2.11.5 as 'the food generally taken as such or in conjunction with pan'. It lists out the substances that pan masala should be free from. The treatment of pure pan masala as food under the Regulations only implies that except to the extent specifically covered under the special law COTPA 2003, the provisions of the FSS Act 2006 and Rules/Regulations made thereunder govern pan masala. Insofar as the pan masala in combination with tobacco finds place in the Schedule of COTPA 2003 and the said product is outside the reach of the provisions of the FSS Act 2006. It has been further contended that the tobacco products mentioned in the impugned Notification are exclusively regulated by the COTPA 2003, they are not all covered by the FSS Act 2006 and therefore, the impugned Notification is ultra vires the FSS Act 2006 and the COTPA 2003. (9) The petitioners further contended that the respondent No.3/Commissioner of Food Safety, Telangana is jurisdictionally incompetent to issue any such Notification in exercise of powers conferred under Section 30(2) of the FSS Act 2006 as the products mentioned in the Notification are not covered by the FSS Act 2006 and they are covered under the Schedule appended to the COTPA 2003. It has been further contended that the impugned Notification deprives the petitioners and other connected persons of their valuable rights guaranteed under Article 19(1)(g) of the Constitution of India. (10) The petitioners further contended that earlier also, such Notifications were issued by the State Government and this Court has quashed the criminal proceedings by passing a detailed Judgment in Criminal Petition No.3731 of 2018 and batch, vide Judgment dated 27.08.2018 and therefore, no criminal proceedings can be initiated against the petitioners and against other persons who are involved in the trade of pan masala/tobacco. Reference has also been made to other Judgments delivered by the High Court of Andhra Pradesh in Criminal Petition No.5421 of 2019 and batch decided on 18.12.2019. The petitioners stated that apprehending criminal action on the basis of the Notification which is void ab initio, the petitioners approached this Court by filing a writ petition under Article 226 of the Constitution of India seeking protection of the fundamental rights guaranteed under Articles 14, 19(1)(g) and 21 of the Constitution of India. It has been further contended that in earlier years, similar Notifications were issued by the State Government and the interim orders have been granted in all matters. However, as the validity of the Notifications was only for a period of one year, the Notifications expired by afflux of time.

(11) The petitioners have raised various grounds before this Court for setting aside the impugned Notification. (12) It has been contended by the learned counsel for the petitioners that the COTPA 2003 is a comprehensive code and a special law dealing with all aspects of the tobacco products and tobacco industry, whereas the FSS Act 2006 deals with the broad area of food safety and standards. The FSS Act 2006 even though enacted subsequent to the COTPA 2003 does not either expressly or impliedly seek to override the COTPA 2003. Therefore, the application of the well settled principle that special law prevails over general law, even if the general law is subsequent, the COTPA 2003 will prevail over the FSS Act 2006 when it comes to regulation of tobacco products. Thus, the power conferred under Section 30(2) of the FSS Act 2006 does not extend to prohibit the tobacco products, which is the sole prerogative of the COTPA 2003.

(13) It has been further contended that the Rules, Regulations and Notifications should not only conform to the parent statute but also shall not be contrary to any other statute since subordinate legislation cannot violate a plenary legislation. The impugned Notification in banning trade or business in tobacco products, imposes a prohibition which is beyond the limited extent of prohibition imposed under Section 6 of the COTPA 2003 (i.e., sale to persons under 18 years of age and in an area within 100 yards of an educational institution). (14) It has been further contended that if any prohibition on the trade or business of tobacco products is to be imposed in addition to what is covered under Section 6 of the COTPA 2003, the same can be done only by an amendment to the COTPA 2003. However, by issuing the impugned Notification, the respondent No.3/the Commissioner of Food Safety has added a new head of prohibition which is otherwise absent in the COTPA 2003, which has been done under the garb of exercising power under Section 30 of the FSS Act 2006. It is nothing but doing an act indirectly which is not permissible directly and Regulation 2.3.4 of the Food Safety Regulations, 2011 does not empower the respondent No.3/Commissioner of Food Safety to ban the products covered under the COTPA 2003. It has been further contended that the FSS Act 2006 cannot encroach upon the field covered by the COTPA 2003 and therefore, the Regulations made under the FSS Act 2006 cannot do the same, hence the prohibition under Regulation 2.3.4 can extend to any food which is consumed, except the products specifically covered under the COTPA 2003. It has been further argued that the exercise of power under Section 30 of the FSS Act 2006 and the Regulation 2.3.4 of the Food Safety Regulations, 2011 amounts to colourable exercise of power, which is impermissible. It has been further contended that Regulation 2.3.4 of the Food Safety Regulations, 2011 does not cover chewing tobacco. The said Regulation makes a dichotomy between 'tobacco' on one hand and 'food products' on the other hand, which implies that chewing/chewable tobacco products were never intended to be covered under the Food Safety Regulations, 2011. Thus, by no stretch of imagination, the impugned Notification covers chewing/chewable tobacco products. The issuance of the impugned Notification is a complete non-application of mind and the same violates the Article 14 of the Constitution of India. (15) The petitioners further contended that since the impugned Notification is ultra vires the FSS Act 2006 and the COTPA 2003, the restriction imposed on the petitioners' rights to carry on trade and business in chewing/chewable tobacco products has no legal basis. Meaning thereby, the prohibition imposed is without backing of law as mandated under Article 19(6) of the Constitution of India. Thus, the prohibition imposed by virtue of the impugned Notification is in violation of the petitioners' fundamental right to carry out trade and business under Article 19(1)(g) of the Constitution of India. The petitioners further contended that Section 6 of the COTPA 2003 imposes a complete ban in respect of extremely vulnerable or important subjects (i.e., to protect individuals under the age of 18 years and students and protect individuals from the harm of passive smoking), it imposes less onerous restrictions on the rest of the subjects limited to the manner in which tobacco products are advertised. The very fact that the respondent No.5/Union of India enacted the COTPA 2003 where prohibition is not imposed but restrictions are imposed on various facets of the trade in tobacco implies that there are less intrusive measures than complete prohibition. Unmindful of this well thought out legislative scheme and intent, the respondent No.3/the Commissioner of Food Safety has imposed a wholesale ban on trade/business in tobacco products. This does not stand the test of proportionality and as such, it is not a reasonable restriction within the meaning of Article 19(6) of the Constitution of India.

(47) Learned counsel for the petitioners have argued before this Court that there is a conflict between the FSS Act 2006 and COTPA 2003. Section 89 of the FSS Act 2006 makes it very clear that it has overriding effect of all the legislations including the COTPA 2003. The FSS Act 2006 has been enacted later to the COTPA 2003 and therefore, the FSS Act 2006 will prevail over the COTPA 2003. The law laid on the aforesaid issue is no longer res integra. The Hon'ble Supreme Court in Allahabad Bank (supra), Anay Kumar Banerjee (supra) and S.Prakash (supra) has held as under:-