THE PROHIBITION OF ELECTRONIC CIGARETTES

[Mr. M. GOVINDARAJAN]

Ordinance

In view of the recommendations of the Conference of Parties established under Article 23 of the Convention on Tobacco Control under the World Health Organization, the Central Government has promulgated an ordinance with a view to prohibit the production, manufacture, import, export, transport, sale, distribution, storage and advertisement of electronic cigarettes in the interest of public health to protect the people from harm and for matters connected therewith or incidental thereto.  The ordinance has come into effect on 19.09.2019.

Electronic Cigarette

Section 3(d) defines the expression ‘electronic cigarette’ as an electric device that heats a substance, with or without nicotine and flavors, to create an aerosol for inhalation and includes all forms of electronic nicotine delivery systems, heat not but burn products, e-hookah and the like devices, by whatever name called and whatever shape, size or form it may have, but does not include any product licensed under the Drugs and Cosmetics Act, 1940.  The expression ‘substance’ includes any natural or artificial substance or other matter, whether it is in a solid state or in liquid form or in the form of gas or vapor.

Manufacture

Section 3(g) defines the term ‘manufacture’ as a process for making or assembling electronic cigarettes and any part thereof, which includes any sub-process, incidental or ancillary to the manufacture of electronic cigarettes and any part thereof.

Authorized officer

Section 3(b) defines the expression ‘authorized officer’ as-

• any police officer not below the rank of sub-inspector; or
• any other officer, not below the rank of sub-inspector, authorized by the Central Government or the State Government, by notification.

Prohibition on production, manufacturing etc.,

Section 4 provides that on and from 19.09.2019, no person shall, directly or indirectly produce or manufacture or distribute electronic cigarettes, whether as a complete product or any part thereof and advertise electronic cigarettes or take part in any advertisement that directly or indirectly promotes the use of electronic cigarettes.

This offence shall be cognizable. 

Whoever contravenes the provisions of section 4 shall be punishable with imprisonment for a term which may extend to one year with fine which may extend to ₹ 1 lakh or with both.  If the offence is committed second time or subsequently the said person shall be punishable with imprisonment for a term which may extend to 3 years and with fine which may extend to ₹ 5 lakhs.

Prohibition on storage of electronic cigarettes

Section 5 provides that on and from 19.09.2019 no person, being the owner or occupier or having the control or use of any place shall, knowingly permit it to be used for storage of any stock of electronic cigarettes. 

Any existing stock of electronic cigarettes as on 19.09.2019, kept for sale, distribution, transport, export or advertisement shall be disposed of in the manner as detailed below-

• the owner or occupier of the place with respect to the existing stock of electronic cigarettes shall, suo motu, prepare a list of such stock of electronic cigarettes in his possession and with unnecessary delay submit the stock as specified in the list to the nearest office of the authorized officer; and
• the authorized officer to whom any stock of electronic cigarettes is forwarded as above shall, with all convenient dispatch, take such materials as may be necessary for the disposal according to the law for the time being in force.

Whoever contravenes the provisions of section 5 shall be punishable with imprisonment for a term which may extend to 6 months or with fine which may extend to ₹ 50,000/- or with both.

Offences by companies

Where an offence under this Ordinance has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of, the business of the company, as well as the company, shall be deemed o be guilty of the offence and shall be liable to be proceeded against and punished accordingly.  If he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence he shall not be liable for any punishment.

If it is proved that the offence has been committed by a company with the consent or connivance of, or is   attributable to the neglect on the part of any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.  

Powers of authorized officer

An authorized officer, if he has reason to believe that any provisions of this ordinance has been, or is being contravened, may enter and search any place where-

• any trade or commerce in electronic cigarettes is carried on or electronic cigarettes are produced, supplied, distributed, stored or transported; and
• any advertisement of the electronic cigarettes has been or is being made.

After completion of the search, the authorized officer shall seize any record or property  which are intended to be used, or reasonably suspected to have been used, in connection with any trade or commerce in electronic cigarettes and if he thinks proper, take into custody and produce, along with the records of the property so seized, before the Court of Judicial Magistrate of the I Class, any such person whom he has reasons to believe to have committed offence punishable under this Ordinance.

Where it is no possible to seize the record or property, the authorized may make an order in writing to attach the property, stocks or records maintained by the producer, manufacturer, importer, exporter, transporter, seller, distributor, advertiser or stockist about which a complaint has been made or credible information has been received or a reasonable suspicion exists of their having been connected with any offence in contravention of the provisions of this Ordinance and such order shall be binding on the person connected with the said offence.

All searches, seizures and attachment shall be made in accordance with the provisions of Code of Criminal Procedure, 1973.  After completion of the proceedings before the Court and if it is proved that the stock seized by the authorized officer are stocks of electronic cigarettes, such stocks shall be disposed in accordance with the provisions contained in Chapter XXXIV of the Code of Criminal Procedure Code.

Trial of offences

The offences committed under section 4 or section 5 shall be triable in any place in which the person is liable to be tried under any law for the time being in force.  All the offences shall be tried by the court of Judicial Magistrate of the I Class in accordance with the procedure provided for trials in the Code of Criminal Procedure, 1973.   No court shall take cognizance of an offence punishable under this Ordinance, except upon a complaint in writing made by an authorized officer.