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... Respondents

ALONGWITH WRIT PETITION NO.1632 OF 2012

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SDD Agencies Pvt.Ltd. Versus State of Maharashtra and others.

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Rajnandini Foods Pvt.Ltd. Versus The State of Maharashtra and others.

ALONGWITH WRIT PETITION NO.1633 OF 2012

... Petitioner ... Respondents

ALONGWITH WRIT PETITION NO.1634 OF 2012

... Petitioner ... Respondents

ALONGWITH WRIT PETITION NO.1635 OF 2012

M/s. Hira Enterprises Versus State of Maharashtra and others. ... Petitioner ... Respondents

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Ghodawat Pan Masala Products (I) Pvt.Ltd. Versus The State of Maharashtra and others.

... Petitioner ... Respondents

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M/s. Dhariwal Industries Limited and another. Versus The State of Maharashtra and others.

... Petitioners

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1631 OF 2012

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... Respondents

ALONGWITH WRIT PETITION NO.8800 OF 2012 (APPELLATE SIDE)

Mr.Janak Dwarkadas, Senior Advocate with Mr.V.P.Sawant, Mr.Hitesh Jain, Mr.Subhash Jadhav, Mr.Amana Usman and Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No. 1633 of 2012.

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Mr.Ravi Kadam, Senior Advocate with Mr.Hitesh Jain, Mr.Subhash Jadhav, Mr.Amana Usman and Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No. 1634 of 2012. Mr.Aspi Chinoy, Senior Advocate with Mr.Birendra Saraf, Mr.Hitesh Jain, Mr.Subhash Jadhav for the petitioners in WP No.1635 of 2012. Mr.Chirag Balsara i/by M/s. Kartikeya & Associates for the petitioners in WP Nos.7592 of 2012. Mr.Prakash Shah with Mr.Jay Sanghavi i/by M/s. Prompt Legal for the petitioners in WP No.8800 of 2012.

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Mr.N.H. Seervai, Senior Advocate with Ms.H. Jain, Mr.Subhash Jadhav, Mr.Amana Usman, Ms.Neha Thakkar i/by M/s. ALMT for the petitioners in WP No.1632 of 2012.

Mr.Milind Sathe, Senior Advocate i/by M/s. ALMT for the petitioners in WP No.1631 of 2012.

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M/s. MSS Food Processors Versus The State of Maharashtra and others.

Petitioner Respondents

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Rajat Industries Private Limited Versus State of Maharashtra and others.

... Petitioner

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ALONGWITH WRIT PETITION NO.7592 OF 2012 (APPELLATE SIDE)

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Mr. Kevic Setalvad, Additional Solicitor General for Union of India.

ORAL ORDER: (PER CHIEF JUSTICE)

Rule, returnable in the first week of July 2013. Heard the learned counsel on the question of interim relief.

manufacture, supply and distribution of pan masala containing tobacco (known as gutka) and pan masala not containing tobacco. The petitioners claim to have licences and permissions under the Prevention of Food Adulteration Act, 1954 which is now replaced by the Food Safety and Standards Act, 2006 and the other legislations. According to the learned counsel for the petitioners in five petitions, the petitioners' factories are situate outside the State of Maharashtra. Statutory Regulations and Standing Order under challenge: 2. The petitioners have challenged the validity of the following provisions of two different Regulations under the Food Safety and Standards Act, 2006 (the Food Safety Act or FSS Act or Act of 2006) as well as the statutory order dated 19 July 2012 of the Commissioner of Food Safety, State
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The writ petitioners are companies engaged in the business of

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CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. Saturday, September 15, 2012

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Mr.D.J. Khambata, Advocate General with Mr.S.K.Shinde, Government Pleader, Mr.A.B. Vyagyani, Assistant Government Pleader and Mr.Prashant Darandale, Assistant Government Pleader for respondent-State in Appellate Side matters.

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Mr.D.J. Khambata, Advocate General with Mr.Aditya Mehta, Mr.D.A.Nalawade, Government Pleader, Ms.Nina Nariman, Ms.Geeta Shastri, Assistant Government Pleader for respondent-State in Original Side matters.

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of Maharashtra under Section 30(2)(a) of the Food Safety Act. The regulations (i) Regulation 2.3.4 of the Food Safety and Standards

Prohibition and Restrictions Regulations) and (ii)

Regulation 3.1.7 of the Food Safety and Standards (Food

Products Standards & Food Additives) Regulations, 2011 (the Standards Regulations). Both the Regulations taken together are referred to as 2011 Regulations. The impugned regulations read as under:2.3.4 Product not to contain any substance which may be injurious to health: Tobacco and nicotine shall not be used as ingredients in any food products. 3.1.7 Restriction on use of anticaking agents No anticaking agents shall be used in any food except where the use of anticacking agents is specifically permitted. PROVIDED that Table Salt, Onion Powder, Garlic Powder, Fruit Powder and Soup Powder contain the following anticaking agents in quantities not exceeding 2.0 percent either singly or in combination namely:Carbonates of calcium and magnesium Phosphates of calcium and magnesium Silicates of calcium, magnesium, aluminum or sodium or silicon dioxide; Myristates, Palmitates or stearates of aluminum, ammonium, calcium, Potassium or sodium. PROVIDED that calcium potassium or sodium ferrocyanide may be used as crystal modifiers and anticaking agent in common salt and iron fortified salt in
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a) b) c) d)

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(Prohibition & Restrictions on Sales) Regulations, 2011 (The

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impugned in these petitions are -

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Safety, Maharashtra State (the Food Safety Commissioner) after referring to the harmful effects of the ingredients being used in gutka or Pan Masala including carcinogenic and co-carcinogenic effects etc., in exercise of the powers conferred by Section 30(2)(a) of the Food Safety Act, has in the interest of public health, prohibited manufacture, storage, distribution or sale of Carbonate as ingredients, by whatsoever name these are available in the market and any other products marketed separately to constitute as Gutka or Pan from the date of publication of the order in the Maharashtra Government Gazette. The order was published in the Maharashtra Government Gazette on 20 July 2012. 4. Masala etc. as final products in the State of Maharashtra, for a period one year

on the following grounds:-

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The above regulations and the impugned order are challenged broadly The prohibition similar to one contained in the impugned order dated 19 July 2012 was struck down by the Supreme Court in Ghodawat Pan Masala Products I.P. Ltd. and another v. Union of India and others, (2004) 7 SCC 68 (the Ghodawat judgment). In the above judgment, the Supreme Court in terms held that the Cigarettes and other Tobacco Products (Prohibition of Advertisements) and Regulation of Trade & commerce, Production, Supply & Distribution Act, 2003 (the Cigarettes Act, COTPA Act or Act of 2003) is a comprehensive law on

(i)

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Gutka or Pan Masala containing either tobacco and/or nicotine or Magnesium

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3.

By the impugned order dated 19 July 2012, the Commissioner of Food

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quantity not exceeding 10 mg/kg singly or in combination expressed as ferrocuanide (emphasis supplied)

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tobacco. ingredients (by whatever name called) and gutka are included 2003. The Apex Court has already held that the said Act of 2003 occupies the field and Prevention of Food Adulteration Act, 1954 (PFA Act) which was a general Act, was directly in conflict with the Act of 2003 and accordingly, the State Government did not have any power to ban pan masala or gutka. The State Government has, however, again reiterated the same ban which is contrary to law laid down by the Supreme Court and the impugned order seeks to nullify the Supreme Court judgment without changing the basis of the judgment. (ii) The Food Safety Act, 2006 is a general Act which does not refer to tobacco or any tobacco product and, therefore, the matter is still

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governed by the COTPA Act of 2003. There is no implied repeal of the COTPA Act, 2003. Hence, the impugned order is ultravires the power of State Government under the COTPA Act 2003.

(iii) Section 30(2)(a) of the FSS Act, 2006 is similar to section 7(iv) of the PFA Act, 1954. The Supreme Court has held in terms that the power conferred by Section 7(iv) of PFA Act is only to deal with emergent situations, and not to ban manufacture, distribution and sale of gutka or pan masala on permanent basis. Hence the impugned order is ultra vires the FSS Act, 2006. (iv) Position prior to 19 July 2012: Reliance was sought to be placed on the position prior to the order dated 19 July 2012 in support of their contention that there was no total ban prior to the impugned order.
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at items 8 and 9 respectively in Schedule to the above Act of

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Pan Masala or any chewing material having tobacco as one of its

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(a)

Regulation 2.3.4 is in para-materia with Rule 44J which was

year 2006. Following the judgment in Ghodawat case, this Court

2007 of Ghodawat Industries (India) Pvt.Ltd. has granted interim stay restraining the respondent authorities from initiating or taking any further steps against the petitioners for contravening Rule 44J of the PFA Rules 1955. (b) Prior to order dated 19 July 2012, the respondent authorities

were not taking action against the manufacturers or distributors of gutka or pan masala and, therefore, the authorities themselves had not interpreted the 2011 Regulations as imposing a total ban on gutka having tobacco or on pan masala having magnesium carbonate. (v) The impugned order is also violative of petitioners' fundamental

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rights under Articles 14 and 19(1)(g) and other rights under Article 300A of the Constitution. In Ghodawat, the Supreme Court had considered the stand of the State Government that Gutka and Pan Masala are injurious to health but the Supreme Court held the total ban on Gutka and Pan Masala as unreasonable and violative of petitioners' fundamental rights under Article 19(1)(g) of the Constitution because on the one hand, the State Government did not ban chewing tobacco which has cent percent tobacco, but banned gutka which has only 6 to 7% tobacco. The Supreme Court also held that since the petitioners were granted licences under the PFA Act, the Act did not contemplate any total ban but on the contrary, permitted the petitioners to manufacture, distribute and supply gutka and pan
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by an order dated 17 January 2008 in Writ Petition No.1984 of

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inserted in the Prevention of Food Adulteration Rules 1955 in the

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masala.

Similarly, Section 31 of the Food Safety Act, 2006

licences are entitled to carry on the business of manufacture, (vi) The impugned order dated 19 July 2012 is illegal as it is issued in violation of the principles of natural justice.

(vii) The impugned order dated 19 July 2012 also violates the petitioners' rights under Articles 301 and 304 of the Constitution.

Joint Commissioner (Food) at Food and Drugs Administration, Government of Maharashtra justifying the impugned order and submitting that the said order is made thereunder. Reference is made to the reports submitted by Tata Institute of Fundamental Research and other organizations indicating the harmful effects consumption of gutka and pan masala in the State of Maharashtra and that out of about 1200 samples of gutka and pan masala collected by the authorities in the State of Maharashtra in the years 2003-2011, 98% of gutka and pan masala of consumption of gutka and pan masala, the widespread prevalence of in conformity with the provisions of the Food Safety Act and 2011 Regulations

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were found to be contravening the provisions of the Prevention of Food Adulteration Rules and the 2011 Regulations as they were found to be containing prohibited ingredients like Magnesium carbonate, tobacco or nicotine. 6.

Professors of Medicine and Professors of Oncology of Tata Memorial Hospital and other hospitals has been permitted to intervene. The affidavits dated 10 August 2012 and 23 August 2012 have also been filed on behalf of the intervenor placing on record substantial material including the following:SRK 8 of 48

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Action Council Against Tobacco, India, having as its members,

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5.

Affidavits in reply have been filed by Mr. Kamlesh V. Sankhe,

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distribution and sale of pan masala and gutka.

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provides for granting licences and the petitioners who have such

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ii) iii) iv) v) vi) vii)

Economics of Tobacco in India by Voluntary Health. Article on Cancer Mortality in India

World Health Organisation's Monographs on evaluation of carcinogenic risks to humans

Reports of National Institute of Health and Family Welfare making assessment about the contents of gutka, pan masala and other similar articles manufactured in India. These reports were submitted by the National Institute of Health and Family Welfare pursuant to the Supreme Court order dated 7 December 2010 in SLP No.16308 of 2007 (Ankur gutka v. Indian Asthma Care Society & ors.) 7. Initially, the petitions were to be listed for final hearing on 12

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September 2012. However, as the final hearing of the writ petitions was likely to take considerable time, the learned counsel for the petitioners prayed for hearing on interim relief. Accordingly, the learned counsel for the parties as well as the learned counsel for the intervenor have been heard at length on the question of interim relief.

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Evidence assessment by National Institute of Health and Family Welfare. and several other reports.

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Review of Areca nut and tobacco use in Pacific-A technical report

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Short report of World Health Organization framework convention on Tobacco Control

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i)

Global Adult Tobacco Survey Factsheet (2009-2010)

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that in the Ghodawat Judgment, the Supreme Court has in terms held that the Act of 2003 is comprehensive law on tobacco. The preamble to the said Act as well as the Statement of Objects and Reasons indicate that tobacco products are injurious to health and there is need to discourage the use of tobacco and tobacco products. However, the Act only regulates and imposes restrictions such as prohibition of advertisements and no sale of tobacco products to persons below 18 years of age, but the Act does not prohibit consumption of tobacco products. The Act regulates supply and distribution of tobacco which provides that the Central Government may make rules to carry out the provisions of the Act to specify the maximum and permissible nicotine and tar 7(5) which requires the manufacturer/supplier/distributor of tobacco products to indicate on the baggage or on its label, the nicotine and tar contents on all the concerned tobacco product alongwith the maximum permissible limits products as would be clear from the provisions of section 31(2)(b) of the Act

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thereof. It is submitted that the Supreme Court in Ghodawat judgment has specifically held that the Act of 2003 is a special Act and that the PFA Act, 1954 is merely a general Act and that the power to prohibit sale or manufacture of tobacco products under the PFA Act was directly in conflict with the Act of 2003, and the Food Safety Act, 2006 being merely a successor to the PFA Act, 1954, the legal position continues to remain the same as was laid down by the Supreme Court in Ghodawat case, that is to say, the Food Safety Act is a general Act. It was also vehemently submitted that the Food Safety Act does not cover any tobacco product because the tobacco products enumerated in the
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contents in cigarettes or other tobacco products under the proviso to section

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8.

The first contention of the learned counsel for the petitioners is

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Contentions (i) to (iii) Does Cigarettes Act of 2003 occupy the entire field OR the Food Safety Act of 2006 is the comprehensive law on the subject?

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schedule to the COTPA Act 2003 are only governed by COTPA Act. 9. In support of the contention that the Food Safety Act of 2006 does

June 2012 of the Food Authority of India to query dated 26 June 2012 under RTI Act (i) whether Gutka comes within the provisions of the Food Safety Act, 2006 and the 2011 Regulations or the COTPA Act, 2003; (ii) please confirm whether the Food Safety Act, 2006 is a general Act or special Act. The reply dated 29 June 2012 of the Chief Public Information Officer (CPIO) of the Food Safety and Standards Authority of India in the Ministry of Health and Family Welfare was as under:-

Please refer to your RTI application received on 28.06.2012 on the subject cited above, the following information is provided:

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10.

reliance on the report of the expert group which was appointed to examine the draft notification dated 25 November 2005 for amendment of the Prevention of Food Adulteration Act. The expert group had at its meeting held on 22 and 24 March 2006 under the Chairmanship of Dr.Shiv Lal, Additional Director General made, interalia, the following recommendations:The Group noted that there is no proposal to ban the manufacture and sale of tobacco, gutka or any tobacco product, but there is a proposal to exclude these products from the purview
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1,3,4,5. As per the extant Food Safety and Standards Act and regulation, gutka has not been defined as food.
2.

The query raised is a clarification and not pertains to RTI, the copy of the Food Safety and standards act is present on the website www.fssal.gov.in.

The learned counsel for the petitioners have also placed strong

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not cover gutka or pan masala, strong reliance is placed on the reply dated 29

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The Group referred to and extracted the judgment of the Supreme Court in Ghodawat case. In view of the observations of the Hon'ble Supreme Court there is no proposal to ban the manufacture and sale of tobacco products under PFA Act but it is proposed through this amendment that these products be regulated under Tobacco Act (Act 34 of 2003). Accordingly the manufacture of tobacco products which are listed in the Schedule of the Act 34 of 2003 may be regulated under that specific Act and the manufacturers of that product may take license under excise Act as is being taken for tobacco products like cigarette or cigar. The Group therefore, accordingly recommended to finalise the clause with respect to tobacco and nicotine products. Rule 4(e):

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Tobacco and nicotine shall not be used as ingredients in manufacture of proprietary products. Consumer representatives raised the issues relating prohibition on use of tobacco and nicotine in the food products which have been standardize under PFA Rules 1955. He brought out that the case before the group that there are some products like chocolates and toffee which contained nicotines though is not allowed in these products under PFA Rules. .. .. He, therefore, requested the Group to put a specific prohibition under PFA rules so that use of nicotine & tobacco is prohibited in any food including food products for which standards have been prescribed under PFA Rules 1955.

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of the P'FA Act 1954 because a separate specific legislation has been enacted by the Central Government to deal with tobacco products including Gutka under the name of The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production , Supply and Distribution Act 2003.

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The Group recommended insertion of Rule 44-J 44-J: Product not to contain any substances which may be injurious to health: The food articles shall not contain tobacco and nicotine. It is submitted that the above recommendations indicate that insertion of Rule 44J providing that food article shall not contain tobacco and nicotine was only intended to cover proprietary food products like chocolate and toffee which contain nicotine. 11.

It is submitted that the FSS Act,2006 should not be construed as

impledly repealing the COTPA Act, 2003, because:

(ii)

The legislature while enacting a law necessarily has

complete knowledge of the existing laws & when it does not

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provide a repealing provision, the intention is clearly not to repeal existing legislation. (iii) When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened. (iv) The new law will be construed as impliedly repealing an existing law only if there is no other alternative construction which allows both laws to operate and if the two are so repugnant or inconsistent that the two cannot stand together. (2003) 7 SCC 389, (2002) 5 SCC 285 and (2001) 8 SCC 257

(i)

There is a presumption against implied repeal.

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12.

The learned counsel for the petitioners also sought to rely upon the

there was no total ban prior to the impugned order. 13.

On the other hand, Mr. Darius Khambata, learned Advocate

General for the State of Maharashtra and the Food Safety Commissioner, Maharashtra State as well as Mr. Kevic Setalvad, learned Additional Solicitor General for the Central Government have opposed the above submissions. It is submitted by the learned counsel for the respondents that Ghodawat judgment does not continue to govern the field when there is a subsequent legislation made by Parliament itself being Food Safety and Standards Act, 2006 which is Reasons. 14. required to be read in light of its Preamble and Statement of Objects and

definition of food in wide and general terms is sufficient to include all food products including gutka and pan masala. Even the narrower definition of food in section 2(v) of the PFA Act, 1954 was considered by the Supreme Court wide enough to include gutka and pan masala, (Ghodawat case, para 65). The petitioners' argument in Ghodawat case that Cigarettes Act 2003 occupies the entire field of tobacco and tobacco products (Paras 35 and 37) was not accepted and the Supreme Court merely held the Cigarettes Act, 2003 to be a special Act. What weighed with the Supreme Court in Ghodawat case was not merely that the Cigarettes Act, 2003 was a special Act but that it was a law later to the PFA Act, 1954. The Supreme Court in terms held that the Central Government had under section 23(1A)(f) of the PFA Act, the power to ban and prohibit tobacco products (paras 23, 28, 30, 60 and 77). Hence, the Supreme Court did not construe the Cigarettes Act, 2003 as excluding the purview of
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It is further submitted on behalf of the respondents that the

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position prior to the order dated 19 July 2012 in support of their contentions tht

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PFA Act over tobacco products. It is, therefore, submitted that there is no

manufacture and sale of gutka and pan masala, even then the Parliament will expressed in the later Act of 2006 and the statutory Regulations of 2011 prevail over the Cigarettes Act, 2003 which itself acknowledged applicability of other legislations by providing in section 16 of the said Act as under:

confiscation made, costs ordered to be paid under this Act shall prevent the infliction of any punishment to which the person affected thereby is liable under the provisions of this Act or under any other law.

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16.

Confiscation not to interfere with other punishments.- No

Reasons, Food Safety Act of 2006 is a comprehensive legislation on food and is a single statute relating to food which provides a single window to guide and regulate persons engaged in the manufacture and sale of food products. The Food Safety Act, 2006 is thus a special Act and cannot be considered to be a general Act. It is submitted that in any view of the matter, even if the Food Safety Act is considered to be a general Act, having regard to the fact that the Food Safety Act, 2006 is a later Act and contains the non-obstante clause in Section 89 thereof, the later Act will prevail over the earlier special Act. 16. The learned counsel for the respondents submitted that Parliament

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must be deemed to be aware of the existence of the Cigarettes Act, 2003 as well as the Supreme Court judgment in Ghodawat case in 2004 holding pan

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As stated in its Preamble and the Statement of Objections and

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15.

Assuming that the Cigarettes Act, 2003 is held to permit

(emphasis supplied)

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repugnancy between the Cigarettes Act, 2003 and the Food Safety Act, 2006.

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masala and gutka to be food. The fact that tobacco and tobacco products are Parliament did not intend to exclude tobacco or tobacco products being used or

2006. Moreover, the 2011 Regulations including the impugned regulations 2.3.4 and 3.1.7 were laid before each House of Parliament under section 93 of the Food Safety Act. The Parliament did not modify or nullify any of those Regulations and, therefore also the Regulations under the Food Safety Act must prevail. 17. Reliance is placed by learned counsel for the respondents on

decisions of the Supreme court in Allahabad Bank v/s Canara Bank, AIR 2000 1130 (Para 39) and S. Prakash v/s. K.M.Kurian, AIR 1999 SC 2094 (Paras 10 to 13 and 15) in support of the following propositions:-

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(I)

The endeavour of Court should be to harmonize two Acts In the case of a direct conflict (repugnancy) between two special The later Act will prevail over the earlier Act. If there is a provision in one of the Acts giving overriding

seemingly in conflict. (II)

statutes, both being special laws, the following rules apply: (i) (ii)

effect then that Act will prevail.

(III) A later Act, even if it is a general Act, can prevail over an earlier special Act, in the case of a repugnancy if there is no express provision to the contrary in the earlier special Act.

SC 1535 (para 40) and Ajay Kumar Banerjee v/s. Umed Singh, AIR 1984 SC

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being intended for human consumption from the purview of Food Safety Act,

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not excluded from the purview of Food Safety Act, 2006 clearly indicates that

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18.

We find considerable substance in the submissions of the learned

definition of food in the Food Safety Act, 2006 includes all food products definition.

Prevention of Food Adultration Act, 1954: 2(v)

food means any article used as food or drink for human consumption other than drugs and water and includes--

(b)

any flavouring matter or condiments, and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare, by notification in the Official Gazette, as food for the purposes of this Act. Food Safety and Standards Act, 2006: food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances. Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality. (emphasis supplied)
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(j)

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(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

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intended for human consumption which are not specifically excluded from the

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Advocate General and the learned Additional Solicitor General that the

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19.

While the definition in the 1954 Act excluded drugs and water, the

definition in the Food Safety Act, 2006 excludes animal feed, live animals, psychotropic substance. Obviously, gutka and pan masala do not fall in any of these excluded categories. The expression any substance which is intended

for human consumption in FSS Act 2006 is also wider than the expression any article used as food or drink for human consumption in PFA Act, 1954. It is also pertinent to note that the definition of food in the Act of 2006 during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance by definition of food just as chewing gum may be kept in the mouth for some time and thereafter thrown out. Similarly gutka containing tobacco may be digestive system, it would be covered by the definition of food which is in the widest possible terms. The definition of food under section 2(v) of the PFA Act was narrower than the definition of food under Food Safety Act, still chewed for some time and then thrown out. Even if it does not enter into the which goes into the mouth for human consumption is sufficient to be covered

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the Supreme Court in Ghodawat case held that pan masala and gutka were food within the meaning of PFA Act. The very fact that the petitioners themselves had obtained licences under the PFA Act and have also obtained licences under the Food Safety Act, 2006 is sufficient to estop them from raising the contention that gutka and pan masala do not fall within the definition of food under the Food Safety Act, 2006. 20. The next question is whether the provisions of the Food Safety

Act, 2006 make any difference to the legal position which was laid down by

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specifically includes chewing gum and any substance used into the food

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plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and

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the Supreme Court in Ghodawat case. Before proceeding further, we must note Court did not accept the contention of the petitioners that the PFA Act had no pan masala. In fact, the Supreme Court in terms held that the power to ban gutka or pan masala under the PFA Act, 1954 was vested in the Central Government under Section 23(1A)(f) thereof and not in the State Government under section 7(iv) thereof. The Supreme Court thus did not accept the petitioners' contention in Ghodawat case that Cigarettes Act was the only legislation occupying the field of tobacco and tobacco products and that PFA Act had nothing to do with any tobacco product. 21.

We may now refer to the provisions of the Food Safety Act, 2006 It provides a single

which is the comprehensive single integrated legislation on food as specifically indicated in the Statement of Objects and Reasons. window to guide and regulate the persons engaged in manufacture, import, processing, distribution and sale of food so as to ensure safe and wholesome food for the people.

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Council on Trade and Industry had appointed a Subject Group on Food and Agro Industries which had recommended for one comprehensive legislation on food with a Food Regulation Authority. The committee expressed its concern on public health and food safety in India and the Standing Committee of Parliament also desired that the much needed legislation on Integrated Food Law should be expedited. The Law Commission of India had also suggested to make a comprehensive review of Food Laws of various developing and development countries and other relevant international agreements and

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The statement of Objects and Reasons states that Prime Minister's

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role to play in the matter of regulation of manufacture and sale of gutka and

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that even while holding the Cigarettes Act to be a special Act, the Supreme

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instruments on the subject and after making an indepth survey of the be subsumed within the proposed Integrated Food Law. The statement of statute relating to food. Standards Authority of It is proposed to establish the Food Safety and India which will fix food standards and

regulate/monitor the manufacturing import, processing, distribution and sale of food, so as to ensure safe and wholesome food for the people . The Bill also makes single window to guide and regulate persons engaged in manufacture, processing, distribution and sale of food. (a) to (c) .....;

(d) single reference point for all matters relating to Food Safety and standards, regulations and enforcement; (e) shift from mere regulatory regime to self-compliance through Food Safety Management Systems; (f) responsibility on food business operators to ensure that food processed, manufactured, imported or distributed is in compliance with the domestic food laws; and

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on prevention of food adulteration in the 1954 Act has moved to Food Safety and Standardsin the Act of 2006. Preamble to Prevention of Food Adulteration Act, 1954: An Act to make provision for the prevention of adulteration of food.
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(g) provision for graded penalties depending on the gravity of offence and accordingly, civil penalties for minor offences and punishment for serious violations. It is also necessary to realize that the legislative focus which was

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The main features of the Bill are -

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objects and reasons also provides that the main object is to bring out a single

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International scenario it was suggested that all acts and orders relating to food

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Preamble to Cigarettes Act, 2003: An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto. Preamble to Food Safety and Standards Act, 2006:

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Section 16 of the Food Safety Act, 2006 providing for duties and

functions of the Food Safety and Standard Authority of India clearly provides in sub-section (1) that it shall be the duty of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food. The detailed duties and functions of the Food Authority in sub-

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section (2) of section 16 are without prejudice to the provisions of sub-section (1), Clause (a) of sub-section (2) thereafter confers power upon the Food Authority to specify the standards and guidelines in relation to articles of food and the limits for use of food additives. Chapter III of the Act contains general principles of food safety and requires the Central Government, the State Government, the Food Authority and other agencies implementing the provisions of the Act to be guided by the principles laid down in Chapter III. These provisions require all the above authorities which include the other agencies implementing the provisions of the Act to identify the possibility of harmful effects on health on the basis of assessment of available information.
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An Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science-based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto (emphasis supplied)

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If the possibility of harmful effects on health is identified but scientific appropriate level of health may be adopted. In cases where there are

the Food Authority and the Commissioner of Food Supply shall inform the general public about the food, risk to health and measures being taken to prevent or eliminate that risk. Section 18(2)(a) also requires that the Food Authority shall, while framing regulations and specifying standards under the Act, ensure prevention of unsafe or contaminated or sub-standard food. It is, thus, clear that the authorities entrusted with the duty of implementing the Food Safety Act, 2006 are not merely to perform the negative duty of preventing food adulteration, but are required to play a very pro-active role for ensuring safe and wholesome food and to prevent and eliminate risk to health caused by unsafe food. It is, therefore, clear that Food Safety and Standards Act, 2006 is the comprehensive single special legislation for all food products on the subject of safety and standards.

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used in manufacturing or processing food. Section 19 provides that no article of food shall contain any food additive or processing aid unless it is in accordance with the provisions of this Act and regulations made thereunder. Section 20 provides that no article of food shall contain any contaminant, naturally occurring toxic substances or toxins etc. in excess of such quantities as may be specified in regulations. 25. Section 92 confers power on the Food Authority of India, with the

previous approval of the Central Government and after previous publication by notification, to make regulations consistent with this Act and the rules made
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Chapter IV of the Act further provides as to which article may be

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reasonable grounds to suspect that a food may present a risk for human health,

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uncertainty persists, provisional risk management measures necessary to ensure

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thereunder to carry out the provisions of the Act. Clauses (e) & (i) of subin relation to articles of food meant for human consumption under sub-section

manufacture and processing of food so as to ensure safe and wholesome food. Clause (i) specifies the limits of quantities of contaminants, toxic substance and heavy metals, etc. under section 20. It is in exercise of these powers that the Food Authority of India has made with the previous approval of the Central Government and after previous publication, the 2011 regulations including regulations 2.3.4, 3.1.7 and 2.11.5, which read as under:2.3.4. Product not to contain any substance which may be injurious to health: Tobacco and nicotine shall not be used as ingredients in any food products.

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3.1.7 Anticaking Agents (i) Restriction on use of anticaking agents.- No anticaking agents shall be used in any food except where the use of anticaking agents is specifically permitted: (a) carbonates of calcium and magnesium; (b) to (d) ......

2.11.5.: Pan Masala Pan Masala means the food generally taken as such or in conjunction with Pan, it may contain:Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits, mulethi, sabnermusa, other aromatic herbs and spices, sugar , glycerine, glucose, permitted natural colours, menthol and non prohibited flavours. It shall be free from added coaltar colouring matter and any other ingredient injurious to health.
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(2) of section 16 which makes it their duty to regulate and monitor the

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section (2) of section 92 specifically provide notifying standards and guidelines

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Ash insoluble in dilute................ HCL acid .............

Safety Act is wide enough to include gutka and pan masala, it is obvious that the above regulations also apply to gutka and pan masala, Apart from, and even before, conferring powers of enforcement on the authorities under the Act in Chapter VII, Parliament has in Chapter VI of the Act cast special responsibilities as to food safety on the food business operators, manufacturers, 3(o) as a person by whom food business is carried on or owned and is responsible for ensuring the compliance. Food business is defined as any undertaking carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food. Section 26(1) provides that every food business operator shall ensure that the articles of food satisfy the requirements of the Act and the rules and regulations made thereunder at all stages of production etc. within the businesses under his control. The Parliament has not stopped at requiring the food business operator to comply with the legal requirements in such general terms alone. Clause (i) of sub-section (2) further casts a duty on the food business operator in the following express terms:workers, distributors and sellers. Food business operator is defined by section

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26.

Since we have already held that the definition of food in the Food

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Total Ash ..............

(emphasis supplied)

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It shall also conform to the following standards namely:-

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It is, thus, clear that it is for the food business operators (which would include the petitioners manufacturing gutka and pan masala) to ensure that they do not manufacture any article or food which is unsafe. The Parliament does not made by the Food Authority or the Central Government or the State Government to declare any food as injurious to health or unsafe. It is the article of food which is unsafe. We may, therefore, proceed now to deal with the question of the harmful effects of the ingredients of gutka and pan masala respondents and the intervenors and which is not seriously disputed at the hearing of interim relief. on public health about which ample material has been placed on record by the statutory duty of the manufacturers to ensure that they do not manufacture any

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27.

(Ankur Gutka v. Asthama Care Society & Ors.), the Supreme Court had directed the Central Government to undertake a comprehensive analysis and study of the contents of gutka, tobacco, pan masala and similar articles manufactured in the country, and harmful effects of consumption of such articles. The Report of National Institute of Health and Family Welfare submitted, pursuant to the above analysis and study, reveals that more than one-third of adults in India use tobacco in some or other form, more than 16 crore people are users of only smokeless tobacco and 4 crore people are users of both smoking and smokeless tobacco. Several studies in India have reported
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By an order dated 7 December 2010 in SLP No. 16308 of 2007

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require the manufacturers like the petitioners to wait for any declaration to be

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No food business operator shall himself or by any person on his behalf manufacture, store, sell or distribute any article of food (i) which is unsafe; or (ii) ......... or (iii) .............., or (iv) which is for the time being prohibited by the Food Authority or the Central Government or the State Government in the interest of public health. (emphasis supplied)

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a strong association between smokeless tobacco use and oral pre-malignant / smokeless tobacco use. There are consistent results of an increased risk of oral country.

There is also strong association between smokeless tobacco and The use of smokeless tobacco also causes non-cancerous including nervous system and diseases, metabolic like reproductive complications other diseases

pancreatic cancer, throat cancer, oesophagal cancer, renal cancer and higher mortality rate. diseases/ abnormalities, conditions

gastrointestinal and respiratory diseases

The study further reveals that areca nut or supari causes harmful effects like oral pre-malignant lasions, oral cancer, throat cancer, oesophagal cancer, liver cancer and non-cancerous diseases/conditions like hypertension and cardiovascular diseases, nervous system disease, metabolic abnormalities, reproductive abnormalities, liver and kidney diseases.

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28.

submit that section 30(2)(a) conferring power on the Food Safety Commissioner of the State is similar to power of the State Government under section 7(iv) of the PFA Act, 1954. In the Ghodawat case, the Supreme Court held that the power of the State Government under section 7(iv) of the PFA Act was not an independent source of power and that the power was vested only in the Central government under section 23(1A)(f). The Food Safety Act, 2006, however, does not confer any power on the Central Government similar to section 23(1A)(f) of the PFA Act. Therefore, neither the State Government nor the Central Government have any power to impose any ban which is
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The learned counsel for the petitioners would, however, still

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cancer with the use of different forms of smokeless tobacco used in the

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pre-cancerous lasions. The risk increases with the duration and frequency of

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purportedly done by the impugned order dated 19 July 2012. It is vehemently gutka but whether the impugned order could have been passed without any

of 2003. It is submitted that the Supreme Court has interpreted section 7(iv) of the PFA Act as merely conferring power to deal with emergency like epidemic and not to ban a product permanently. 29.

In the first place, the submission overlooks the important

difference in the phraseology of the provisions of the two Acts. Section 7(iv) of PFA Act, 1954 provided that no person shall manufacture etc. any article of food, the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health. The corresponding provision in section 26(2)(a) of the Food Safety Act casts obligation on the food business operator not to manufacture, etc. any article of food - (i) which is unsafe, without limiting the obligation to any time frame, much less for the time being. Hence, the idea of an emergent situation which would go with the expression for the time being ... does not apply to the obligation of the Food business operator to provide safe food. Secondly, in Ghodawat case, the Supreme Court noticed that the

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power to prohibit a food article as injurious to health was conferred by section 23(2A)(f) only on the Central Government without conferring similar power on the State Government. Therefore, now in section 30(2)(a), Parliament has expressly conferred power on the Food Safety Commissioner of the State, subject to the only limitation of one year period at a time.

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express provision either in the Food Safety Act of 2006 or in the Cigarettes Act

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submitted that the question is not about the harmful effects of pan masala or

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30.

As already noticed above, 2011 Regulations have come on the

2011 Regulations have been made by the Food Authority of India in exercise of the Central Government and have been placed before each House of Parliament without any modifications having been made by Parliament. Section 30(2)(a) confers independent power on the Food Safety Commissioner in the State. As already noticed by us, Section 26 of the Food Safety Act directs that every food business operator shall not manufacture or distribute any article of food which is unsafe and that it is not necessary for the said obligation to be enforced that such a food article must be first prohibited by the Food Authority of India or the Central Government or the State Government. The Food Safety Commissioner in the State of Maharashtra noticed that 98% out of more than 1000 samples collected during the last seven years contained tobacco, nicotine or magnesium carbonate which are injurious to health and that the Food Authority of India had by statutory Regulations of 2011 already banned the manufacture of any product containing tobacco, nicotine or magnesium carbonate (excluding specific product like salt powder which could have upto 2% magnesium carbonate). The Food Safety Commissioner, State of

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Maharashtra was, thus, acting well within his powers to ensure that manufacturers, distributors and sellers of gutka and pan masala shall not be allowed to contravene the statutory provisions contained in 2011 Regulations, such as Regulation 2.3.4, 3.1.7 and 2.11.5. We, therefore, do not find any substance in the petitioners' submission that the impugned order dated 19 July 2012 was beyond the authority of the Food Safety Commissioner of the State of Maharashtra.

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the powers under sections 16 and 92 of the Act after previous consultation with

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statute book long after the Supreme Court judgment in Ghodawat case. The

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30A.

Having examined the scheme of PFA Act, 1954, Cigarettes Act,

which were laid before Parliament and not modified and having regard to the on food safety and contains a non-obstante clause in section 89 thereof, we are of the prima facie view that in the field of safety and standards of food (which includes gutka, pan masala and supari) the Food Safety Act, 2006 occupies the entire field.

Contention (iv): Position prior to 19 July 2012: 31. (a) Reliance placed by the learned counsel for the petitioners on the interim order dated 17 January 2008, in the writ petition of Ghodawat challenging Rule 44(j) of the PFA Act, 1954 is also misconceived. In that case, the Court had no occasion to deal with the provisions of the Food Safety Act, 2006. For the same reason, the recommendations of the Expert Group in March 2006 were not at all concerned with the policy which got codified in the Food Safety Act, 2006. That group was only dealing with the Cigarettes Act, 2003 and PFA Act, 1954 in light of the Supreme Court judgment in Ghodawat case of 2004.

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been denied by the learned Advocate General. Our attention is invited to a number of prosecutions launched for breach of the statutory Regulations which came into force on 5 August 2011 including Regulations 3.1.7 and 2.3.4 (Annexure C to reply affidavit dated 31 August 2012). In any view of the matter, the interpretation of statutory Regulations of 2011 leaves no room for doubt, as discussed above. The said Regulations take complete care of conclusions 4 and 5 laid down by the Supreme Court in Ghodawat judgment.

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(b)

The allegation of inaction on the part of the authorities has

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fact that Food Safety Act, 2006 is a later Act and a comprehensive legislation

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2003 and the Food Safety Act, 2006 and 2011 Regulations framed thereunder,

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Contention (v): Is there any violation of Article 19(1)(g) read with Article 19(6) 32. The petitioners' contention is that the harmful effects of gutka and

case but, according to the petitioners, the Supreme Court did not consider them to be relevant for the purpose of deciding the legal question which had arisen before the Supreme Court. It is vehemently submitted by the learned counsel for the petitioners that in para 48 of the judgment, the Supreme Court had products which contain almost cent percent tobacco, but they banned the sale of gutka which contains only about 6 per cent of tobacco and pan masala, which contains no tobacco whatsoever, even accepting on the correctness of the material presented. 33. noticed that strangely, the States did not ban chewing tobacco or other tobacco

It is, however, not the case of the petitioners that the material

making the 2011 Regulations or the material which was placed before the Food Safety Commissioner of the State of Maharashtra in 2012 or the material which is placed before us was brought to the notice of the Supreme Court. This is

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clear from the finding in para 44 of the judgment in the Ghodawat case where the following observations were made:44. We are unable to discern as to how the very same magnesium carbonate would become injurious as a result of combined chewing of arecanut and lime, particularly when it is not the case of the State Government that Rajnigandha Pan Masala itself contains magnesium carbonate. It is permissible under Article 19(6) to impose a reasonable restriction in the interest of general public. Assuming that such a restriction can be imposed, even if by legislation intended to prohibit manufacture, sale or storage of articles harmful or injurious to health, the restriction has to be commensurate with the danger posed. On a conspectus of the facts, we are unable to uphold the prohibition imposed by the
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pan masala were brought to the notice of the Supreme Court in the Ghodawat

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34.

It is, thus, clear that no material was placed before the Supreme

Court about demonstrated danger to the public health by magnesium carbonate by consumption of pan masala. It was observed that if there were danger to the public health by magnesium carbonate, the prohibition could have extended to pan masala containing magnesium carbonate. The harmful effects of the magnesium carbonate have been brought out in the affidavit filed by the Joint Commissioner, Drug Administration, Government of Maharashtra as well as in the reports placed by the intervenor on the record of these petitions. It is not only tobacco and nicotine which cause carcinogenic effect but also magnesium carbonate which is generally used for manufacture of gutka as well as pan masala to sweeten the pieces of supari and other ingredients. 35. It is an admitted position that pan masalas being manufactured by

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the petitioners contain magnesium carbonate. It is specifically urged in paras 2.3.2 and 2.3.3 of the petitions (W.P. No. 1631 to 1635 of 2012) that magnesium carbonates occurs naturally in tobacco, lime, arecanut and cardamom and that therefore, pan masala necessarily contains magnesium carbonate. 36. Dealing with the above submission of the petitioners, the Joint

Food Commissioner has pointed out in his affidavit dated 14 August 2012 that lime does not contain magnesium carbonate and that the magnesium carbonate in betel nut and lime is in miniscule scale.
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Betel nut does not contain

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impugned notification as a restriction which can pass the test of reasonableness under Article 19(6) of the Constitution of India for two reasons. Firstly, there is no demonstrated danger to the public health by mgnesium carbonate by consumption of Rajnigandha Pan Masala; secondly, even if there were, the prohibition could only have extended to pan masala containing magnesium carbonate and could not be wider than that. (emphasis supplied)

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carbonate but it only contains inherent and natural magnesium which is 2.8 nut/areca nut and slaked lime and catechu is as under:i) ii) iii)

The concentration of magnesium in slaked lime 1.3 nanogram in 1 gm. = 0.0000000013% The concentration of magnesium in catechu 19.4 nanogram in 1 gm = 0.0000000194%

It is, thus, clear that the percentage of magnesium carbonate in the natural product is so insignificant that the presence of magnesium carbonate in gutka and pan masala is in the extent of 2% or more cannot be explained merely by stating that magnesium carbonate is to be found in the natural agricultural products. It is, thus, clear that presence of magnesium carbonate that too to the extent of 2% or more is in more than 98% of the samples tested by the authorities as given by way of additives being added by the petitioners for the purpose of sweetening the natural product. 37. We may also refer to the report placed by the intervenor on record

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wherein the survey indicates that out of 3896 children surveyed, 1054 children take areca nut and that 854 out of them use sweetened areca nut and that only 36 children used unsweetened betel nut alone. Most of the children used one packet of areca nut per day. The average age at which the people start consumption of gutka and pan masala is 17 years. It is also found that those who chew areca nut were not aware of the health hazard. Out of the school children chewing areca nut, 19% claimed it to be harmless and 70% did not know about the health hazard. Only 10% were aware about the health hazard of chewing areca nut. It is, thus, clear that in Ghodawat case, the material

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nanogram per gram dry weight. The exact percentage of magnesium in betel

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about harmful effects of magnesium carbonate and the large scale on which it unaware of health hazards does not appear to have been brought to the notice magnesium carbonate had injurious effect on health, it could be prohibited. 38. (a)

The learned counsel for the petitioners have further relied on the chewing tobacco and other tobacco products which contain almost

observations of the Supreme Court in Ghodavat's case for contending that -

gutka which contains about 6% of tobacco, is violative of Article 14 and is an unreasonable restriction on the petitioners' fundamental right to carry on (b) even after finding that smoking is injurious to health, in the business under Article 19(1)(g), and

Cigarettes Act, 2003 the Parliament has not imposed a total ban on smoking cigarettes and other tobacco products and prohibiting sale of cigarettes and other tobacco products to persons below the age of 18 years. Similar restrictive measures can be taken for gutka and pan masala. Hence, the State Government

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is not justified in imposing total ban on manufacture and sale of gutka and pan masala; instead of taking less drastic measures would suffice. The ban is, however, an unreasonable restriction on the fundamental rights under Article 19(1)(g). 39. We are unable to appreciate the above contentions because the

Supreme Court had no occasion to consider the provisions of the Food Safety Act, 2006 and the Regulations subsequently made by the Food Authority of India in the year 2011 in exercise of the powers under sections 16 and 92 of the Food Safety Act, 2006. The impugned Regulations have been made by the
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cigarettes and has rested content with merely prohibiting advertisements of

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cent percent tobacco are not banned, and, therefore, complete ban on sale of

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of the Supreme Court.

In fact, the Supreme Court had indicated that if

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is being consumed and the fact that people and particularly children are

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Food Authority of India after consultation with the Central Government, after Parliament but no modification of the regulations has been made by the have to be treated not merely as having force of law, but also as a part of the Food Safety Act, 2006 itself. 40.

As regards the petitioners' contention that since chewing tobacco

with 100% tobacco is not banned, total ban on gutka having 6 to 7% tobacco is Advocate General have pointed out on facts that in case of chewing tobacco, the taste is bitter and, therefore, people ordinarily do not take chewing tobacco add sweetening additives to make tobacco palatable. It is because of this sweetening additives which contain magnesium carbonate and other students and adults get addicted to gutka and pan masala. 41. As regards law on the subject, the following principle laid down ingredients injurious to health that a large number of school children, college on a large scale, unlike gutka where the petitioners and other manufacturers

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by the Constitution Bench of the Supreme Court in Sakhawat Ali v. State of Orissa, AIR 1955 SC 166 (para10) is a complete answer:The simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution.

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unreasonable, learned counsel for the respondents and in particular learned

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Parliament. We are, therefore, of the prima facie view that the Regulations

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previous publication and the Regulations have been laid before each House of

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The Statutory Regulations of 2011 made by the Food Authority of India in consultation with the Central Government and after prior publication, which are not modified or nullified by Parliament which have to be treated as a part of the Act, cannot, therefore, be faulted for banning use of tobacco, nicotine or magnesium carbonate in manufacture of gutka on the ground that chewing or consumption of tobacco with cent percent tobacco is not banned.

42.

We also find considerable substance in the submission of the

learned Advocate General that the State has the power to prohibit trades which are injurious to health and welfare of the public. A reasonable restriction as contemplated under Article 19(1)(g) read with clause (6) may require prohibition if it is in the public interest. In Cooverjee B. Bharucha v. Execise Commissioner and the Chief Commissioner, Ajmer and others, AIR 1954 SC 220 (Para 7), the Supreme Court made the following observations:-

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(7) Article 19(1)(g) of the Constitution guarantees that all citizens have the right to practise any profession or to carry on any occupation or trade or business, and Cl.(6) of the article authorises legislation which imposes reasonable restrictions on this right in the interests of the general public. It was not disputed that in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade. It is obvious that these factors must differ from trade to trade and no hard and fast rules concerning all trades can be laid down. It can also not be denied that the State has the power to prohibit trades which are illegal or immoral or injurious to the health and welfare of the public. Laws prohibiting trades in noxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation. The nature of the business is, therefore, an important element in deciding the reasonableness
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................. This is in this position an assumption of a fact which does not exist, that when the liquors are taken in excess the injuries are confined to the party offending. The injury, it is true, first falls upon him in his health, which the habit undermines, in his morals, which it weakens, and in the self-absement which it creates. But as it leads to neglect of business and waste of property and general demoralisation, it affects those who are immediately connected with and dependent upon him. By the general concurrence of opinion of every civilized and Chirstan community, there are few sources of crime and misery to society equal to the dram shop, where intoxicating liquors, in small quantities, to be drunk at the time are sold indiscriminately to all parties applying. ............. The police power of the State is fully competent to regulate the business- to mitigate its evils or to suppress it entirely. There is no inherent right in a citizen to thus sell intoxicating liquors by retail; it is not a privilege of a citizen of the State or or a citizen of the United States. As it is a business attended with danger to the community, it may, as already said, be entirely prohibited or be permitted under such conditions as will limit to the utmost its evils. The manner and extent of regulation rest in the discretion of the governing authority. That authority may vest in such officers as it may deem proper the power of passing upon applications for permission to carry it on, and to issue licences for that purpose. It is a matter of legislative will only.

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of the restrictions. The right of every citizen to pursue any lawful trade or business is obviously subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, order and morals of the community. Some occupations by the noise made in their pursuit, some by the odours they engender, and some by the dangers accompanying them, require regulations as to the locality in which they may be conducted. Some, by the dangerous character of the articles used, manufactured or sold, require also special qualifications in the parties permitted to use, manufacture or sell them.

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43.

We find considerable substance in the submission of the learned

Advocate General as well as the learned Additional Solicitor General that the width of prohibition depends on the facts and circumstances of the trade. Complete prohibition is justified because less drastic course is not practical. When 98% of the samples of gutka and pan masala were found having inspectors outside each school to prevent sale of pan masala and gutka to school children or to inspect and test each batch of pan masala to find out whether it forms part of 98% or the remaining 2%. 44. injurious ingredients, it is not possible for the State Government to post

In a catena of decisions, the Supreme Court has held that the Court

judicial notice of circumstances including the widespread illiteracy and practicability of enforcement measures. In Pyarali K. Tejani v. Mahadeo

Ramchandra Dange and others, AIR 1974 SC 228, a Constitution Bench of the

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Supreme Court dealt with the contravention of the provisions of Prevention of Food Adulteration Act, 1954 in relation to supari. After holding that supari was covered by the definition of food under section 2(v) of the PFA Act, the Supreme Court made the following pertinent observations in paras 14 and 15:14. Even on cyclamates, the toxic degree is not too clear. There is considerable controversy both in the United States and the United Kingdom about a total ban on cyclamates but there is a growing volume of opinion that its use has caused bladder tumour when massive doses are fed on rats. In India also scientific opinion is sharply divided on the harmful consequences of cyclamates. However, in the United States and the United Kingdom in Japan and other countries there is a ban on this

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should take into account not only the material on record but should also take

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These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner.

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15. Such being the facts, it is not the judicial function to enter the thicket of research controversy or scientific dispute where Parliament has entrusted the Central Government with the power, and therefore the duty, of protecting public health against potential hazards and the Central Government, after consultation with a high-powered technical body, has prohibited the use of saccharin and cyclmates. The fact that for a long these substances were allowed is no argument against the reasonableness of their later ban; for human knowledge advances and what was regarded as innocuous once is later discovered to be deleterious. In no view can the discretion of the government, exercised after listening to the technical counselling of the Central Committee, be castigated as arbitrary and capricious or as unreasonable. So long as the exercise of power is not smeared by bad faith, influenced by extraneous considerations, uninformed by relevant factors, and is within the limits of reasonableness it becomes out of bounds for judicial re-evaluation. Where expertise of a complex nature is expected of the State in framing rules, the exercise of that power not demonstrated as arbitrary must be presumed to be valid as a reasonable restriction on the fundamental right of the citizen and judicial review must halt at the frontiers. The court cannot reweigh and substitute its notion of expedient solution. Constitutionality not chemistry, abuse not error, is our concern and the executive has not transgressed limits at all here. Within the wide judge-proof areas of policy and judgment open to the government, if they make mistakes, correction is not in court but elsewhere. That is the comity of constitutional jurisdictions in our jurisprudence. We cannot evolve a judicial policy on medical issues or food additives and should refuse to invalidate Rules 44(g) and 47 on the mystic maybes and happy hopefuls held up before us by the appellant. (emphasis supplied)

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substance and the Indian official view seems to be that without more information on the mechanism of bladder cancer induction in rats by the cyclmate-saccharin mixture we have to follow the example of the United States. No risks can be taken where millions of people and their lives are involved and cancer being a sure killer does not admit of bio-chemical gamble or medical speculation, particularly when the Indian people, by and large, are less health-conscious and informed than Americans and Britons.

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45.

In Srinivas Enterprises v. Union of India, (1980) 4 SCC 507, a

Prize Chits and Money Circulation Schemes (Banning) Act, 1978.

upholding the constitutional validity of the Act, the Supreme Court also dealt with the contention that some of the prize chits schemes were innocuous and they were not required to be banned. contention in the following words: 12. The twin requirements of Article 19(6) are: (a) the reasonableness of the restriction upon the fundamental right to trade, and (b) the measure of the reasonableness being the compelling need to promote the interest of the general public. Public interest, of course, there is. But the controversy rages The Supreme Court repelled that

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round the compulsive necessity to extinguish the prize chit enterprises altogether as distinguished from handcuffing them with severe conditions geared to protection of public interest...... 13. We may not be taken to mean that every prize chit promoter is a bloodsucker. Indeed, Shri Venugopal persuasively presented the case of his client to make us feel that responsible business was being done by the petitioner. Maybe. But when a general evil is sought to be suppressed, some martyrs may have to suffer for the legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations. (emphasis supplied)

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Constitution Bench of the Supreme Court was dealing with the challenge to the

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Contention (vi): Are Principles of Natural Justice to be followed while exercising powers under section 30(2)(a) of Food Safety Act? 46. The learned counsel for the petitioners have then submitted that

July 2012 in exercise of his administrative powers under section 30(2)(a) and not in exercise of legislative powers, the Food Safety Commissioner was required to give an opportunity of hearing to the manufacturers and that since this was not done, the impugned order is violative of principles of natural administrative in nature. Hence, the power conferred by clause (a) must also be construed accordingly. It is submitted that the same view was taken by the Supreme Court in Ghodawat case and, therefore, also the impugned order is required to be struck down and stayed till final disposal of the petitions. 47. The submission is misconceived. The Food Safety Act of 2006 justice. Powers conferred by clauses (b) to (e) of section 30(2) are

food products. As already held earlier, the definition of food in Food Safety Act includes gutka and pan masala. When the Parliament has specifically conferred power on the Food Safety Commissioner of the State to prohibit in

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the interest of public health, the manufacture, storage, distribution or sale of any article of food in the interest of public health, the Parliament has done what Article 258(2) of the Constitution exactly permits, which Article reads as under: 258(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.

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admittedly empowers the Food Authority of India to lay down the standards of

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since the Food Safety Commissioner had issued the impugned order dated 19

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The Food Safety Commissioner, Maharashtra State exercising his powers legislative power by the Parliament to the officer of the State Government permissible.

There are sufficient guidelines in the Act as to in which

circumstances these powers may be exercised. As already indicated above, the Food Authority of India in exercise of the powers under section 16(1) and 16(2)(a) read with section 92 has laid down the standards to ensure safe and wholesome food. It cannot, therefore, be said that any excessive or uncanalized power is conferred upon the Food Safety Commissioner. In fact, no challenge is levelled against the constitutional validity of section 30(2)(a) of the Food Safety Act. 48.

As regards the question whether the said power can be considered

as a legislative power or an administrative power, in our view, the principles to

v. Cynamide India Ltd. and another, (1987)2 SCC 720. The Constitution
Bench of the Supreme Court laid down the following tests to determine whether the Act of an executive authority is to be considered as a Legislative

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Act or an Administrative Act:Legislation indicates the future course of action. Legislative act is

a creation or promulgation of general rule of conduct without reference to particular cases, An administrative act is the making and issue of a specific direction or the application of general rule to a particular case. The legislation operates in future, administration is a process of performing particular acts in the present. Legislation is made in the interest of general public.

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be applied are laid down by the Supreme Court in Union of India and another

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holding the rank equivalent to Secretary to the State Government is clearly

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under section 30(2)(a), is thus a delegate of Parliament. Delegation of the

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Viewed from whatever angle, the angle of general application, the obligations flowing therefrom, there could be no doubt that the impugned order

Commissioner as a delegate of Parliament. Merely because powers conferred by clauses (b) to (e) of section 30(2) are administrative powers, it does not follow that the power conferred by clause (a) is of the same nature. 49.

So also we do not find substance in Mr. Seervai's contention that

legislative power has not been conferred on any authority, other than the Central Government (section 91), Food Authority (section 92) and State Government (section 94). Merely because the Food Safety Commissioner's order is not required to be laid before Parliament or State Legislature, it does not mean that Parliament did not require the Food Safety Commissioner exercise any quasi legislative power. As already discussed earlier, the obligation of food business operator under section 26(2)(i) not to manufacture or sale any food which is unsafe, without any declaration by the Central Government, Food Authority or the State Government under section 26(2)(iv), would be meaningless, if the Food Safety Commissioner does not have any power to issue a quasi legislative order under section 30(2)(a) of the Food Safety Act, 2006. Hence, the question of the Food Safety Commissioner following the principles of natural justice before issuing such order under section 30(2)(a) does not arise. 50. Even otherwise, assuming that the statutory order dated 19 July 2012

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were to be treated as an administrative order, all that it does is to prohibit the manufacture, storage, distribution, transportation and sale of gutka and pan masala having prohibited ingredients like tobacco, nicotine, magnesium
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dated 19 July 2012 is a legislative order issued by the Food Safety

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prospectiveness of its effect, the public interest served, and the rights and

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carbonate and other ingredients injurious to health. These prohibitions are passing of the order by the Food Safety Commissioner on 19 July 2012 without as they could not have objected to the constitutional validity of the said statutory regulations before the Food Safety Commissioner of the State of Maharashtra

Contention (vii) : Order dated 19 July 2012 and Articles 301 and 304 51. Mr. Seervai, learned senior counsel for the petitioners last submitted that the impugned order dated 19 July 2012 is also violative of the petitioners' rights under Articles 301 to 304 of the Constitution. It is submitted that restrictions contemplated by section 302 or 304 can only be imposed by a Parliament any legislation and not by an executive authority. Apart from reiterating the above submission to the effect that the impugned order is administrative order, the learned counsel relied upon the several authorities in support of his contention. 52.

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Mr.Seervai as the submission proceeds on an erroneous premise. In Indian Cement v. State of Andhra Pradesh, (1988) 1 SCC 743, the Supreme Court has held that the declaration contained in Part XIII of the Constitution (Articles 301 and 304) is against creation of economic barriers and/or pockets which would stand against the free flow of trade, commerce and intercourse. The impugned statutory order dated 19 July 2012 does not create economic barriers and/or pockets the barriers would have been created by permitting manufacture, etc. of gutka and pan masala within the State of Maharashtra and restricting import of gutka and pan masala from other States into the State of Maharashtra. On

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In our view, it is not necessary to refer to the judgments cited by

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hearing the petitioners has not caused any prejudice to the petitioners inasmuch

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already contained in the statutory regulations made in August 2011. Hence,

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the contrary, the statutory order imposes prohibition on manufacture, storage, they are manufactured within or outside the State of Maharashtra. 53.

In this connection, we may also note the decision of a Constitution

Bench of the Supreme Court in Fatehchad v. State of Maharashtra, AIR 1977 SC 1825, where the Supreme Court considered the challenge to the constitutional validity of the Maharashtra Debt Relief Act, 1976 on the touchstone of Articles 301 and 304 of the Constitution. The Supreme Court referred to the decision in Atiabari Tea Co., AIR 1961 SC 232 (at page 246) tracing the roots of Article 301 of the Constitution to the effect that before the Constitution was adopted nearly two-third of the territory of India was subject to British Rule, while the remaining part was governed by Indian Princes and it consisted of several Indian States. A large number of those States claimed sovereign rights and erected customs barriers. Prior to 1950, the flow of trade and commerce was impeded at several points which constituted the boundaries of Indian States. The historical process of merger and the integration of the several Indian States with the rest of the country was accomplished just before adoption of the Constitution. Hence, the main object of Article 301 was to allow free flow of trade, commerce and intercourse throughout the territory of India.

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observations in Automobile Transport, AIR 1962 SC 1406 wherein Das, J. observedEven textually, we must ascertain the true meaning of the word 'free' occurring in Art. 301. From what burdens or restrictions is
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The Supreme Court then referred to the following pertinent

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distribution and sale of gutka and pan masala irrespective of the fact whether

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the freedom assured? This is a question of vital importance even trade in a community regulated by law presupposes some degree considerations of social orderliness.

The Supreme Court then observed that the conscience of the commerce clause in India, as elsewhere, is the promotion of an orderly society. Social justice is the core of the constitutional order. The Court further held that every systematic profit-oriented activity, however sinister, suppressive or socially diabolic, cannot ipso facto exalt itself into a trade, entitled to protection of Article 301. The rule of law, for functional purpose, must run close to the rule of life. 54.

The Supreme Court has thus, clearly held that Articles 301 to 304

are enacted to remove economic barriers on the free flow of trade, commerce and intercourse within the territory of India. Hence, the said provisions can be invoked only when a State Legislation or the exercise of State Government creates economic barriers which impede the free flow of trade and commerce and intercourse. When the State authority has passed a statutory order which requires the subordinate authorities to implement the statutory regulations made by the Food Authority of India and when the Food Safety Commissioner in exercise of the powers conferred upon him by Parliament issues an order which has the effect of directing his subordinates to implement statutory regulations made by the Food Authority of India in exercise of powers conferred by the Parliament in the same enactment, (which Regulations were laid before each House of Parliament and no modification was made by Parliament) and as a result the petitioners manufacturing pan masala or gutka
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of restriction that freedom must necessarily be delimited by

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in the matter of construction........ The conception of freedom of

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in violation of the said statutory regulations are prohibited from manufacturing, Maharashtra, it cannot be said that any restriction is imposed on the free flow authorised by Parliament. 55.

The impugned statutory regulations as well as the impugned

statutory order dated 19 July 2012 are in furtherance of Article 47 of the Constitution which reads as under:47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.- The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. (emphasis supplied) The voluminous reports and material placed by the respondents as

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well as the intervenor on record establish the dangerous effects of gutka, pan masala (having as their ingredients tobacco or nicotine or magnesium carbonate) on public health, which justify the complete prohibition on manufacture, storage, distribution and sale of gutka and pan masala. 57. We may, at this stage, also refer to the principle laid down by the

Supreme court in The U.P. State Electricity Board and another v. Hari Shankar

Jain and others, AIR 1979 SC 65:-

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of trade, commerce and intercourse within the territory of India, which is not

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storing, distributing or selling gutka or pan masala within the State of

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The mandate of Art.37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are `nevertheless fundamental in the governance of the country' and `it shall be the duty of the State to apply these principles in making laws'. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of legislation, Courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy. 58. We may also note the caveat sounded by the Supreme Court in

Bhavesh D. Parish and others v. Union of India and another, (2000) 5 SCC 471
it is manifestly unjust and/or glaringly unconstitutional since there is an overwhelming public interest favouring the continued operation of law. 59.

by the learned Advocate General and the learned Additional Solicitor General that when action based on experts' reports is taken by a delegate of Parliament,

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it should not in the normal course, be disturbed. 60. Our attention is also invited to the orders passed by various High

Courts including Kerala High Court, M.P. High Court and Patna High Court, either rejecting the writ petitions or rejecting the prayer for interim relief against operation of the similar ban imposed by the respective State Governments on the manufacture, distribution and sale of gutka and pan masala.

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We, therefore, find considerable substance in the submission made

where the Supreme Court has held that the Court will not stay legislation unless

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61.

After taking into consideration the provisions of Prevention of

Standards Act, 2006, the Regulations made thereunder, the Cigarettes Act,

record, and after considering the rival submissions and the decisions cited at the Bar, we are of the view that this is not a fit case for granting any of the interim reliefs prayed for by the petitioners. Hence, prayer for interim stay against implementation of the impugned statutory order dated 19 July 2012 issued by the Food Safety Commissioner, Maharashtra State in public interest in exercise of the powers conferred by section 30(2)(a) of the Food Safety and Standards Act, 2006 is rejected. 62. 63.

All the prayers for interim reliefs are, therefore, rejected. At this stage, the learned counsel for the petitioners pray for a

direction to the respondents not to destroy the goods seized, for a period of 12 weeks in order to have further recourse in accordance with law. The learned counsel for the respondents oppose the prayer and

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submit that the petitioners are bringing more consignments of gutka and pan masala from other States in the State of Maharashtra. We see no justification to grant the prayer. The prayer is,

therefore, rejected. CHIEF JUSTICE

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N.M. JAMDAR, J.

2003, the judgment of the Supreme Court in Ghodawat case and the material on

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Food Adulteration Act, 1954 and the Rules thereunder, Food Safety and