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Granting temporary reprieve to vendors of electronic cigarettes (e-cigarettes), the Calcutta High Court has passed an interim order staying the ordinance banning the sale of e-cigarettes in so far it relates to requiring e-cigarette companies to surrender their stocks to the authorities.
To this end, the order passed by Justice Arindam Sinha on Tuesday states,
“In the circumstances, this Court thinks it fit to pass interim order staying the operation of clause (b) under the proviso in section 5 of impugned Ordinance. As a consequence, the requirement of submission of stock, specified in the list, to be submitted to the nearest office of the authorized officer, as requirement under clause (a) under said proviso, will also remain stayed. The authorized officer, if feels necessary, will verify the inventory made on the list submitted. It is clarified, there is to be no disposal.“
Justice Sinha issued the direction after taking note that up until recently, the Central Government had only been contemplating the regulation of e-cigarettes rather than imposing a ban.
“It appears from proceedings happened in Parliament between 7th September, 2012 (in Lok Sabha as well as Rajya Sabha, relating to e-cigarettes) and 26th July, 2019 that, inter alia, the Government was aware of marketing of e-cigarettes and their growing popularity across the country. That it was considering regulating, including banning of it. It had issued advisories to States and Union Territories to ensure the product is not sold. Till before the issuance of the Ordinance, at least as on 10th July, 2019, the Government, it appears, had not taken a decision.”
The order was passed on pleas filed by e-cigarette companies, Plume Vapors Private Limited and Woke Vapors Private Limited challenging the ban imposed by the Central Government’s ordinance passed last month.
Appearing for the Central Government, Additional Solicitor General Aman Lekhi contended that there was sufficient material necessitating the ban on e-cigarettes by the legislature. Inter alia, he argued the consumption of e-cigarettes had to be nipped in the bud. He further submitted that there is a presumption in favour of the constitutionality of the ordinance and that the Court cannot stay its operation unless it is clearly made out that the statute is unconstitutional. He also urged that the Court grant the Centre time to reply in the matter.
On the other hand, Senior Advocate AM Singhvi pressed for interim relief, highlighting that it must be admitted that e-cigarettes are less harmful than combustible tobacco. He contended that verbal imagery is being made to attach fear to the product (e-cigarette). He also argued that there were different standards of judicial review when it comes to an ordinance, as opposed to legislative action.
In response, the Court has now directed that no coercive steps be taken against e-cigarette companies as far as the disposal of their stocks is concerned.
In effect, the ban on the sale of e-cigarettes has not been stayed. Rather, clauses (a) and (b) under Section 5 of the ordinance has been put on hold. Whereas Section 5a requires the owner or occupier of the e-cigarette stock to surrender the stock in possession, Section 5b requires the authorized officer to dispose of the same in accordance with the law.
The matter has been listed to be taken up next on November 14.
Senior Advocate AM Singhvi appeared for Plume Vapour along with Senior Advocate Jishnu Saha, and assisted by Amar Gupta (Partner, JSA) and Omar Ahmed (Partner, CAM). Also assisting were Sanjay Ginodia, Manoj Kumar Tiwari, Debnath Ghosh, Kamaljeet Singh, Shwetank Ginodia, Ashish Joshi,Vikram Shah, Sandeep Chilana and Madhavi Khana.
For Woke Vapors, Senior Advocate Anindya Kumar Mitra appeared, assisted by Advocate Srijan Sinha. The team also comprised of Soumya Roy Chowdhury, Himanshu Chaubey, Surojit Biswas, Ritesh Ganguly and Awani Kumar Roy.
ASG Lekhi was assisted by Government standing counsel Vipul Kundalia and counsels Shraddha Deshmukh and Ritwiz Rishabhi in making submissions for the Centre.
[Read the order]