Tobacco-free hookah allowed in restaurants: Bombay High Court

The Bombay High Court has clarified that restaurants and cafés are not prohibited from serving hookah that does not contain tobacco or nicotine [Munib Birya Vs State of Maharashtra].

A Division Bench of Justices RI Chagla and Farhan Dubash was dealing with a petition by certain restaurant owners who claimed that they were facing police harassment and being issued threats that their businesses would be raided for serving hookah.

The petitioners pointed out that in the 2019 case of Munib Birya & Ors. v. State of Maharashtra & Ors., the Court had already held that the serving of herbal or tobacco-free hookah is permitted.

Citing this judgment, the Court has now clarified that hookah can be served by restaurants or cafés or parlours as long as it is tobacco-free and the establishment complies with provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA).

"The Petitioners are not prohibited from running a business of restaurant or serving hookah which according to the Petitioners do not contain tobacco or nicotine ... As long as the Petitioners comply with the provisions of COTPA and do not serve any prohibited substance in the hookah parlour, then no action can be taken against them," the Court said.

The Court also noted that after a 2018 amendment to Section 3 of COTPA, a hookah bar is among the establishments recognised under this law.

A clause inserted by the amendment defined a hookah bar as an establishment where people gather to smoke tobacco from a community hookah or narghile.

It has been clarified now that the law only prohibits hookah use that involves tobacco and not the herbal or nicotine-free variants.

The Court added that if there is any violation of this legal bar under the COTPA, the police can take legal action.

However, such action under COTPA can only be initiated by a police officer who is not below the rank of an Assistant Police Inspector, the Court cautioned.

“In the event, if there is any infraction of the provisions of COTPA as amended in 2018, the Police Officer, not below the rank of Assistant Police Inspector, is empowered to take legal action for such infringement of the conditions imposed under COTPA Act as well as taking action on the hookah parlours where drugs / narcotics are provided and consumed which falls under the purview of Police Department,” the order stated

The petitioners were represented by Senior Advocate Zubin Bheramkamdin along with Advocates Meiron Damania, Rajendra Rathod, Shabana Shah, Sohail Ali Bubere, Mujtaba, Umar Dalvi, Abdullah, Muddasir, Zeeshan, Bilal, and Dhruv Jain.

The State of Maharashtra was represented by Government Pleader PH Kantharia with Additional Government Pleader Jyoti Chavan.

[Read Judgment]