Delhi High Court: In a batch of appeals filed by the Commissioner, Food Safety (appellants) challenging the validity of the judgment dated 27-09-2022 as well as the Notification dated 25-03-2015 passed by the Commissioner (Food Safety), GNCTD prohibiting the manufacture, storage, distribution or sale of tobacco, flavoured/scented, or mixed with any of the said additives and described as gutka, pan masala, flavoured/scented tobacco, kharra or otherwise called by any other name in its packaged or unpackaged form and sold either separately or as one composite product in the National Capital Territory, the Division Bench of Satish Chandra Sharma CJ., and Yashwant Verma, JJ., set aside the judgment quashing these notifications and held that Article 14 of the Constitution does not warrant the impugned notifications to be set aside.
Factual Background
The petition was filed on the principal ground regarding provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 which allegedly conferred a right upon them to undertake the manufacture, production, sale, and distribution of pan masala or any other chewing material having tobacco or gutka as one of its ingredients. It was also claimed that the Food Safety and Standards Act, 20064 was not liable to be considered as an enactment empowering the respondents to pass prohibitory orders impeding or impinging upon the rights conferred upon the petitioners by COTPA.
The writ petitioners also questioned the validity of the prohibitory orders considering the declaration of expediency, as embodied in COTPA and the expression of public interest of the Union taking under its control the tobacco industry by virtue of Entry-52 falling in List-I of the Seventh Schedule of the Constitution.
Observations and Analysis
The Court noted that the Single Judge has clearly erred in failing to notice and appreciate the nature and the extent of the control which was taken over by COTPA. The observations in the impugned judgment clearly appear to lose sight of the fact that the subject matter of the writ petitions was a perceived conflict between two Parliamentary statutes, namely, COTPA and FSSA as opposed to legislation framed by a State. Secondly, the Single Judge also appears to have ignored the indubitable fact that the impugned notifications, albeit issued by State authority, had in fact been promulgated in the exercise of powers conferred under FSSA, which is Parliamentary legislation.
Issue 1: On the issue of conflict between COTPA and FSSA, the Court noted that COTPA is legislation that purports to prohibit the advertisement of cigarettes and tobacco products as well as to regulate trade and commerce in the production, supply, and distribution of cigarettes and other tobacco products. FSSA, on the other hand, is legislation that is primarily aimed at ensuring the availability of safe and wholesome food in the market for human consumption and for matters connected therewith. FSSA thus clearly comes across as a statute that seeks to comprehensively regulate food and food products.
The Court clarified that from a reading of the Impugned Notifications what was sought to be regulated and controlled was chewing tobacco, gutka, and pan masala, and tobacco sold as a mixture or in a combination package. The question which thus principally arose was whether the aforesaid articles could be termed as food and thus regulated under FSSA.
It was, hence, held that if the regulatory power is exercised under the FSSA in respect of a food article, it would not be invalidated or discredited merely because it is viewed as incidentally entrenching upon a provision contained in another competing statute. However, no provision of COTPA incorporates provisions similar or identical to those set out in Regulation 2.11.5 of the Food Products Regulations 2011, thus, giving no credence to the issue of conflict between the two statutes.
Issue 2: On the issue of the purport of the impugned notifications, the Court observed that the writ petitioners appear to have proceeded on the mistaken assumption that the impugned notifications sought to ban or prohibit tobacco. The prohibition which was sought to be enforced was the addition of tobacco or tobacco products to a food product, namely, Pan Masala because tobacco when mixed with other ingredients and additives mentioned therein, is ‘food’ as defined under the FSSA.
Thus, the subject matter of the prohibitory order was tobacco when mixed with other ingredients and additives. Those articles were specified to be gutka, pan masala, flavoured/scented tobacco and other like products. It would thus be wholly incorrect to assume that the notifications sought to ban tobacco ‘per se’.
Issue 3: On the issue of whether ‘Tobacco is Food’, the Court remarked that FSSAI confers an expansive meaning upon the expression ‘food’ by providing that any substance meant for human consumption would stand included. Thus, pan masala, gutka or any other form of chewing tobacco that is meant for human consumption would not stand excluded from the ambit of Section 3(1)(j) of Food Safety and Standards Act, 2006.
Issue 4: On the issue of purported violation of the equality principles as enshrined in Article 14 and the prohibition being restricted to —smokeless tobacco, the Court observed that Article 14 cannot possibly be invoked on the ground that since a particular genre of tobacco has not been banned, there should be no prohibition in respect of an equally harmful article. In any case,
“Article 14 does not contemplate negative equality. It is a positive constitutional right. The guarantee and protection conferred by that Article cannot be invoked to assert a right to manufacture, sell or distribute a harmful substance merely because the appellant has failed to take identical steps in respect of an equally injurious article.”
Thus, the Court rejected the submission that there exists no rationale to create an artificial distinction between —smoking and —smokeless tobacco, as both categories of tobacco constituted substances which had a direct impact on public health.
Conclusion
The Court concluded that these were essentially policy imperatives that the appellants appear to have borne in mind while issuing the impugned notifications.
Reiterating the scope of judicial review in case of policy decisions, the Court observed,
“The Courts would refrain from interfering with such policy decisions merely on the ground, that a more prudent or wiser alternative was available. We would clearly be crossing the well-recognised rubicon, if we were to impute our own views and perceptions of what would have been a more efficacious measure.”
The Court, hence, allowed the appeals and set aside the judgment by the Single Judge and thus upheld the notification.
[Commissioner, Food Safety, GNCTD v Sugandhi Snuff King Private Limited, 2023 SCC OnLine Del 2003, decided on 10-04-2023]
Advocates who appeared in this case :
Mr. Gautam Narayan, Additional Standing Counsel with Ms. Asmita Singh and Mr. Harshit Goel, Advocates for GNCTD;
Ms. C.S. Vaidyanathan, Dr. Abhishek Manu Singhvi and Mr. Vivek Kohli, Senior Advocates, with Mr. Nalin Tawar, Mr. Manoj Gupta, Mr. Sunil Tyagi, Ms. Prerna Kohli, Ms. Yeshi Rinchhen, Mr. Vishnu Anand, Mr. Akash Yadav, Mr. Harshit Mahalwal, Mr. Juvas Rawal, and Mr. Vinayak Goel, Advocates for Respondents No.1 & 2. Mr. Pavan Narang, Mr. Himanshu Sethi, Ms. Aishwarya Chhabra & Mr. Shiven Khurana, Advocates for S.K. Tobacco & Gandhi Tobacco. Mr. Bhagvan Swarup Shukla, CGSC with Mr. Sarvan Kumar, Advocate for UOI.