Delhi High Court sets aside notifications banning manufacture, sale of tobacco products in Delhi

The Delhi High Court on Tuesday set aside the notifications prohibiting manufacture, storage, distribution and sale of gutka, pan masala, flavoured tobacco and other similar products in Delhi..Justice Gaurang Kanth said that these products cannot be classified as "food" within the meaning of Food Safety and Standards Act (FSSA) and that Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) occupies entire field relating to tobacco products..The court held that the classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the notifications was violative of Article 14 of the Constitution as well.“… this Court is of the considered view that while issuing the impugned Notifications, the Respondent No.1/Commissioner of Food safety exceeded its power and authority in contravention of the powers vested in him under the FSSA and therefore, the said impugned Notifications are hereby quashed and set aside,” the Court ordered..Several firms involved in the manufacture and trade of tobacco products had approached the Court challenging the notifications on the grounds that they are arbitrary and ultra vires the FSSA as Commissioner of Food Safety is not empowered to impose such a prohibition on manufacture, storage, distribution or sale of chewing tobacco.The etitioners argued that these are scheduled products under the COTPA and cannot in any manner be construed as “food” within the ambit of the FSSA..A total of seven notifications had been issued since 2015 by the Commissioner prohibiting these products..However, the Food Safety authority argued that the commissioner is well within his rights to issue the notifications under Regulation 2.3.4 and that he is empowered under Section 30(2)(a) of the FSSA to prohibit the manufacture, storage, distribution and sale of any article of food, such as chewing tobacco, in the interest of public health and welfare..The Court noted that the notifications had been issued year after year in a mechanical manner without following the general principles laid down under Section 18 and 30(2)(a) of the FSSA and that this was a clear abuse of the powers conferred upon the Commissioner of Food Safety.Justice Kanth said that though he agrees that tobacco and nicotine are injurious to health, the present case involves certain questions of law which cannot be decided merely on the basis of public consciousness and sentiments..Therefore, the judge held that it was never the intention of the parliament to impose an absolute ban on tobacco products but to regulate the related trade and commerce. “The doctrine of implied repeal has no application to the present case as the FSSA and the COTPA occupy different fields i.e., the former applies to the “food industry” while the latter applies to the “tobacco industry”. Therefore, the FSSA does not impliedly repeal the provisions of the COTPA.”.The Court, therefore, allowed the petitions and set aside the notifications..[Read Judgment]