Delhi High Court upholds ban on flavoured tobacco, pan masala, gutka in Delhi; says tobacco products 'food' under FSSA

The Delhi High Court on Monday upheld the State government notifications prohibiting the manufacture, storage, distribution or sale of scented/flavoured tobacco, pan masala, gutka and similar products in the national capital..A division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma set aside the single-judge’s order quashing the notifications. The division bench held that the decision to ban these products was a policy decision taken by the government keeping in mind the large number of users of smokeless tobacco.It also rejected the argument made by the manufacturers of these products that because prohibition was limited only to “smokeless tobacco” and not other forms like cigarettes, it violated Article 14 of the Constitution..The Court concluded that the guarantee and protection conferred by Article 14 cannot be invoked to assert a right to manufacture, sell or distribute a harmful substance merely because the government has failed to take identical steps in respect of an equally injurious article.“We find ourselves unable to appreciate the aforesaid submission since once it was found and conceded that both categories of tobacco constituted substances which had a direct impact on public health, the impugned notifications clearly did not warrant being quashed. We bear in mind the well settled principle that a prerogative writ would not issue to perpetuate an illegality or cause serious prejudice to larger public interest. The acceptance of the submission addressed in this regard would amount to the Court sanctioning the distribution and sale of smokeless tobacco in addition to smoking tobacco,” the court underlined..The division bench was dealing with an appeal filed by the Delhi and the Central government challenging the single-judge’s order setting aside the notifications issued by the Commissioner of Food Safety, Government of Delhi banning these products which were classified as “smokeless tobacco”.In his order, the single-judge held 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.It was further 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..After considering the case, the division bench said that a careful reading of the notifications under challenge would establish that what was proposed to be banned was not raw or pure tobacco but tobacco mixed with other ingredients and additives.Those articles were specified to be gutka, pan masala, flavoured/scented tobacco and other like products, the Court noted.It rejected the single-judge’s findings that chewing tobacco, pan masala and gutka do not fall within the ambit of expression ‘food’ in the FSSA and that COTPA occupies the entire field when it comes to tobacco products.The bench concluded that the food safety authorities do have power to prohibit food articles under the FSSA by virtue of Section 30(2)(a).“Accordingly, and for all the aforesaid reasons, we find ourselves unable to sustain the impugned judgment rendered by the learned Judge. These appeals shall consequently stand allowed. The impugned judgment and order dated 23 September 2022 shall stand set aside,” the Court ordered..Additional Standing Counsel Gautam Narayan along with advocate Asmita Singh and Harshit Goel appeared for the Delhi government.Central Government Standing Counsel Kirtiman Singh along with advocates Manmeet Kaur, Waize Ali Noor, Vidhi Jain, Prateek Dhanda, Taha Yasin, Kunjala Bhardwaj, Madhav Bajaj, Yash Upadhyay, Shreya Mehra and Ranjit Singh appeared for the Central government.Senior Advocates CS Vaidyanathan, Dr Abhishek Manu Singhvi and Vivek Kohli along with advocates Nalin Tawar, Manoj Gupta, Sunil Tyagi, Prerna Kohli, Sandeep Bhuraria, Yeshi Rinchhen, Vishnu Anand, Akash Yadav, Harshit Mahalwal, Juvas Rawal, Pavan Narang, Himanshu Sethi, Aishwarya Chhabra and Shiven Khurana appeared for the Respondents..[Read Judgment].Delhi High Court sets aside notifications banning manufacture, sale of tobacco products in Delhi