TMI Blog2004 (8) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... common issue raised for consideration of this Court in all these cases is the validity of notifications issued by the Food (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 (hereinafter referred to as the 'Act') by which the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) were banned for different periods. We shall take the facts in the civil appeal arising out of special leave petition No. 24449 of 2002 as typical of the cases. Facts: Civil Appeal arising out of SLP(C) No. 24449 of 2002 The appellants manufacture gutka within the state of Maharashtra, which is stored in convenient godowns and sold both within and outside the state of Maharashtra. By a notification dated 23rd July, 2002 issued by the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra, the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) were banned for a period of five years with effect from 1st August, 2002. The appellants challenged the validity of this notification by a writ petition No. 2024 of 2002 before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r name called. The fourth notification challenged in the writ petition is the notification dated 24th January, 2003 issued by the Directorate of Food and Drugs Administration and Food (Health) Authority for the State of Goa. By this notification, purportedly issued under Section 7(iv) of the Act, the sale of gutka and pan masala, containing tobacco or not containing tobacco, by whatever name called, is prohibited within the state of Goa and it is directed that no person shall himself or any person on his behalf, shall manufacture for sale or store, sell or distribute gutka or pan masala, containing tobacco or not containing tobacco, by whatever name called. The prohibition in the notification is made effective from 26th January, 2003. All the four notifications are under challenge. Civil Appeals arising out of S.L.P. Nos. 23635/02, 24292/02, 533/03, 834/03 and 2186/03 The appellants are engaged, inter alia, in the manufacture and trade of pan masala and gutka, pan masala containing tobacco and other allied tobacco products. They sell their products all over India including State of Maharashtra. They have a wide network of dealers through whom their products are sold to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State Government to frame rules under Section 24 of the Act is extremely narrow and limited to the field which is not covered by Section 23, the exclusive domain of the Central Government. 4. The Act is concerned with the prevention of adulterated articles of food and not intended to prohibit any article used as food or otherwise. 5. The impugned notification dated 23rd July, 2002, issued by the State of Maharashtra operates extra territorially, and, to that extent, is ultra vires of the powers of the State. 6. By enacting the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, (Act 34 of 2003), Parliament has evinced its intent to occupy the whole field with regard to prohibition of advertisement and regulation of trade and commerce, production, supply and distribution of tobacco products. While the central legislation prohibits the sale of tobacco products only to persons below age of 18 years, the impugned notification purports to impose a wholesale ban without any qualification. Thus, there is a conflict between the powers exercisable under two central statutes de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept in accordance with the conditions of the licence; (iv) 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; (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or (vi) any adulterant. Explanation.-For the purposes of this section, a person shall be deemed to store any adulterated food or misbranded food or any article of food referred to in clause (iii) or clause (iv) or clause (v) if he stores such food for the manufacture therefrom of any article of food for sale. Section 22A empowers the Central Government to give such directions as it may deem necessary to a State Government regarding the implementation of the Act. Section 23 empowers the Central Government to make rules to carry out the provisions of the Act. In particular, and without prejudice to the generality of the rule making power, the power of the Central Government includes the one in clause (f). Section 24 of the Act is the section which grants rule making power to the State Government. The State Government may, after consultation with the Committee, and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be noticed. The relevant Goa rules are as under: 3. Powers and duties of Food (Health) Authority: (1) The Director of Health Services for the Union Territory of Goa, Daman and Diu being the Chief Officer in charge of the Health Administration in the Union Territory shall be the Food (Health) Authority. (2) The Food (Health) Authority shall be responsible for the general superintendence of the administration and enforcement of the Act. (3) The Food (Health) Authority shall, for the purpose of giving effect to the provisions of the Act, have control over the Public Health Laboratories maintained by the Government and Local Authorities and Local (Health) Authorities, Licensing Authorities, the Public Analyst and Food Inspectors appointed under the Act. (4) The Food (Health) Authority may give to a Local (Health) Authority such directions as he may consider necessary in regard to any matter connected with the enforcement of the Act and the Rules made thereunder and the Local (Health) Authority shall comply with such directions. (5) The Food (Health) Authority whenever called upon to do so shall advise the Government in matters relating to the administration and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding location of the business premises which are intended for the manufacture for sale, for the storage, for the sale or for the distribution of any article of food and in Form B the details about the locality in which, the mobile van is intended to be moved and its registration number issued by the Road Transport Authority. (4) On receipt of such application, the Licensing Authority shall, if on inspecting the said premises is satisfied that the premises are free from sanitary defects and are in proper hygienic conditions and the applicant complies with other conditions for holding licence, grant the applicant a licence in Form as specified below on payment of fees laid down in the Schedule appended to the rules. (i) Form 'C' in respect of any premises. (ii) Form 'D' in respect of any mobile van. (iii) Form 'E' in respect of any temporary stall. (5) If the information furnished in the application appears to be incorrect or incomplete or if the prescribed fee has not been paid, the Licensing Authority shall make such enquiry as he considers necessary and after giving the applicant an opportunity of proving the correctness and completeness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under rule 13 or rule 14. The relevant rules of the Maharashtra Prevention of Food Adulteration Rules, 1962 are as under: 3. Food (Health) Authority and its powers and duties - (1) The Director of Public Health for the State of Maharashtra being the Chief Officer-in-charge of the Health Administration in the State of Maharashtra shall be the Food (Health) Authority (hereinafter referred to as the authority). (2) The authority shall be responsible for the general superintendence of the administration and enforcement of the Act. (6)(a) If the State or any part thereof is visited by, or threatened with an outbreak of any infectious disease, the authority shall ascertain the cause of such outbreak of the infectious disease. (b) If in the opinion of the authority the outbreak of any infectious disease is due to any article of food, the authority shall take such measures as it shall deem necessary to prevent the outbreak of such disease or the spread thereof. Rule 5 deals with licences and the manner of suspension or cancellation of licences. Submissions : Ex visceribus actus: The first contention urged on behalf of the appellants is that Section 7 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for prohibition of any substance which may be injurious to health, it is contended that the state Food (Health) Authority is denuded of such power. There appears to be merit in the contentions of the appellants. Rule 3 of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the corresponding rule in the Goa, Daman Diu Prevention of Food Adulteration Rules, 1982 suggest that the power given to the Food (Health) Authority is only a pro tem power to deal with an emergent situation, such as outbreak of any infectious disease, which may be due to any article of food. In such a contingency, the Food (Health) Authority is empowered to take all such action as it deemed necessary to ascertain the cause of such infectious disease and to prevent the outbreak of such disease or the spread thereof. Certainly, such power would include the power to ban for the time being the sale of such injurious articles of food. Hence, correspondingly Section 7(iv) of the Act provides that no person shall manufacture for sale, or store, sell or distribute 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. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Food (Health) Authority, it appears to us that the arguments of the State Governments that this amendment was intended to give a carte blanche to the Food (Health) Authority cannot be accepted. On the contrary, the construction canvassed by the appellants appears to be more reasonable. We are inclined to the view that the power of the state authority, which is discernible under Section 24(2)(a) read with the state rules, operates only for a temporary period during which an emergent situation exists which needs to be controlled. It is not possible to accept the State Governments' contention that clause (iv) of Section 7 of the Act is an independent provision which clothes the Food (Health) Authority with the power to issue an order of ban for a long period. Mr. Lalit, learned counsel for the state of Maharashtra, took us through the affidavit filed by the state Government and the voluminous data presented therein by the state to indicate that gutka and pan masala are addictive and, in the long run, deleterious to human health. He also referred to certain scientific reports on the subject by the National Toxicology Centre, an International Agency for Research on Cancer, par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them. An isolated consideration of a provision leads to the risk of some other inter- related provision becoming otiose or devoid of meaning. Against the background of these principles, it is not possible to agree with the view taken by the High Court that Section 7(iv) of the Act is an independent source of power of such amplitude as held. In our view, the power of the state under Section 7(iv) of the Act is statutory; absolute to the extent provided therein, and limited to the extent indicated by Section 23(1A) of the Act. Learned counsel for the appellants urged that the expression for the time being used in clause (iv) of Section 7 of the Act is significant and indicates the transient nature of the power that is conferred on the Food (Health) Authority under the rules to ban or otherwise take any other appropriate action in relation to an article of food even if it be in the interest of public health . This too lends support to their contention. Learned counsel for the state of Maharashtra a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the state Governments were to prevail, then this provision would give to the food inspector, a lower authority in the hierarchy, an extraordinary power of banning permanently - which power can only be the result of a policy decision to be taken at the highest level of the state Government. In our view, it is not possible to interpret these clauses disparately or disjunctively. Clause (iv) of Section 7 and clause (c) of sub-section (1) of Section 10 of the Act and their interplay unmistakably suggest that the power conferred on the Food (Health) Authority and the food inspector, being derived from the Rules made in exercise of the powers exercised under Section 24 of the Act are necessarily subservient to the powers derivable from the rules made under Section 23 of the Act. Hence, neither the Food (Health) Authority, nor the food inspector can be said to have such power which could be available to the Central Government by prescription of a rule in exercise of power under Section 23(1A)(f). Reliance was placed by the respondents on the decision of a learned Single Judge in Gandhi Irwin Salt Manufacturers Association v. The Government of Tamil Nadu . Having perused the judgment, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s displaying the quantities of nicotine and tar contents of these products. For the effective implementation of the proposed legislation, provisions have been proposed for compounding minor offences and making punishments for offences by companies more stringent. The objective of the proposed enactment is to reduce the exposure of people to tobacco smoke (passive smoking) and to prevent the sale of tobacco products to minors and to protect them from becoming victims of misleading advertisements. This will result in a healthier life style and the protection of the right to life enshrined in the Constitution. The proposed legislation further seeks to implement article 47 of the Constitution which, inter alia, requires the State to endeavour to improve public health of the people. 3. The Bill seeks to achieve the aforesaid objects. The aforesaid internal evidence in the statute, by reason of the preamble, and the external evidence in the Statement of Objects and Reasons, indicate that Parliament has evinced its intention to bring out a comprehensive enactment to deal with tobacco and tobacco products. However, the provisions of the statute do not suggest that Parliament had con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment is deemed to have impliedly repealed the previous one and referred to the observations of this Court in State of Orissa v. M.A. Tulloch and Co. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law in manifested by the enactment of the provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which s. 6 presumes where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring consumption of the product along with lime, the exercise of power should have been restricted to banning pan masala containing magnesium carbonate and not wholesale banning of pan masala, irrespective of the content of magnesium carbonate. The learned counsel contended that the order made under Section 7(iv) of the Act is bad for it is an unreasonable and excessive restriction on the Fundamental Right to carry on trade or business guaranteed under Article 19(1)(g) of the Constitution of India. The learned counsel highlighted the unreasonableness by reference to the provisions of the Act and the Rules and the specific situation contemplated in Appendix B at Paragraph A.25.02.01, which gives the definition and standards of quality with reference to chewing gum and bubble gum, for which magnesium carbonate, inter alia, is a permitted ingredient. He therefore contends that magnesium carbonate is not per se injurious to health for otherwise it would never have been permitted in any article of food. There is no material on the basis of which it can be demonstrated that the very same magnesium carbonate would become injurious to health if it arises on account of mixing of traces of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'adulteration of food stuffs and other articles' without entering into the domain of public health . Reading down the statute in order to upheld its constitutional validity is a device well known to the constitutional courts. [See in this connection State of Karnataka and Anr. v. Shri Ranganatha Reddy Anr. , B.R. Enterprises and Ors. v. State of U.P. and Ors. , and State of A.P. v. National Thermal Power Corpn. Ltd. and Ors. ] Mr. Lalit, learned counsel for the States, however, supported the findings of the division bench of the Bombay High Court that the constitutional validity of Section 7(iv) was never in danger as it could be supported on the doctrine of pith and substance. He contends that in pith and substance the Prevention of Food Adulteration Act, 1954 deals with the subject of adulteration, though, incidentally, by reason of Section 7(iv) it may make an incursion into the domain of public health which is the exclusive province of the State legislature. This contention appears to have been accepted by the impugned judgment of the High Court of Bombay. In fact, the High Court goes to the extent of saying that the power of the Food (Health) Authority under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption of tobacco in any form was injurious to health, but that consumption of pan masala was likely to be addictive and lead to hyper- magnesia. Strangely, the States did not ban chewing tobacco or other tobacco products which contain almost cent per cent 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. Further, the literature produced by the States indicates that pan masala is addictive amongst children and, therefore, likely to be injurious to their health in the long run. Assuming this to be true, the restriction could only have been on sale to under-aged persons and not by way of a total ban. Thus, in our view, the impugned notification is violative of the fundamental right of the appellants guaranteed under Article 19(1)(g), both because it is unreasonable and also because it is excessive in nature. A contrast with the provisions of the Act 34 of 2003 in this regard would drive home the point. While dealing with the nature of a reasonable restriction on the fundamental rights under Article 19(1)(g), this Court observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It requires research and education to convince the society of the harmful effects of the products before a consensus is reached to ban its consumption. Alcohol has since long been known all over the world to have had harmful effects on the health of the individual and the welfare of the society. Even long before the Constitution was framed, it was one of the major items on the agenda of the society to ban or at least to regulate, its consumption. That is why it found place in Article 47 of the Constitution. It is only in recent years that medical research has brought to the fore the fatal link between smoking and consumption of tobacco and cancer, cardiac diseases and deterioration and tuberculosis. There is a sizeable movement all over the world including in this country to educate people about the dangerous effect of tobacco on individual's health. The society may, in course of time, think of prohibiting its production and consumption as in the case of alcohol. There may be more such dangerous products, the harmful effects of which are today unknown. But merely because their production and consumption is not today banned, does not mean that products like alcohol which are pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le itself has been treated as res extra commercium. The legislative policy, if any, seems to be to the contrary. In any event, whether an article is to be prohibited as res extra commercium is a matter of legislative policy and must arise out of an Act of legislature and not by a mere notification issued by an executive authority. Need to read down: There is also merit in the contention of the appellants that if the provisions of Section 7(iv) of the Act are not read down as conferring powers on the authority to deal with an emergent situation, the section would be conferring arbitrary powers on the authority and would be procedurally unfair. This is particularly so in the face of the statutory provision under which licences have already been granted to the manufactures of pan masala and gutka for manufacture of the articles. There is already a provision in the statutory scheme for cancellation and suspension of a licence. Without going through such procedure, the power in the state authority to suddenly bring out the result of cancellation or suspension of the licence, without procedural safeguards, would certainly be arbitrary and liable to be hit by Article 14 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trative act. Thus, according to them, there is no question of giving a hearing before taking a policy decision to ban the manufacture for sale, storage, sale and distribution of pan masala and gutka. We are unable to accept the contention of the States. In our view, the scheme of the Act suggests that a decision to ban an article injurious to health, when used as food or as an ingredient in the manufacture of any article of food, can only be the result of broader policy. Hence, this larger power appears to have been located only in the Central Government under Section 23(1A)(f) and not in the state Food (Health) Authority. As we have already pointed out, the power of the state Food (Health) Authority is only transitory in nature and designed to deal with local emergencies. In our considered view, the impugned notification is certainly an administrative act and not a legislative act. Inasmuch as by an executive act the manufacture for sale, storage, sale or distribution of the concerned article has been banned so as to interfere with the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution of India, the impugned notification is illegal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safety and health of general public. There is no inherent right in crime. Prohibition of trade of business of noxious or dangerous substances or goods by law is in the interest of society welfare. There is a plethora of legislation dealing with tobacco products, gutka and pan masala and the fact that licences have been issued to the appellants to manufacture the concerned articles, which does not lead to the conclusion that the trade or business in the concerned articles is an activity which is criminal in propensity, immoral, obnoxious, injurious to the health of general public or that the ban is a result of 'public expediency and public morality'. Is it food ? Mr. Nagaraja, learned counsel appearing for the petitioners in writ petition No. 173 of 2003, raised a further contention that pan masala or gutka which is the subject matter of the impugned notification does not amount to food within the meaning of its definition in Section 2(v) of the Act. Section 2(v) of the Act reads as under: 2. (v) food means any article used as food or drink for human consumption other than drugs and water and includes- (a) any article which ordinarily enters into, or is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet another reason why we are inclined to take the view that Section 7(iv) deals with a situation of emergency with respect to the local area. A decision for banning an article of food or an article containing any ingredient of food injurious to health can only arise as a result of broadly considered policy. If such a power be conceded in favour of a local authority like the Food (Health) Authority, paradoxical results would arise. The same article could be considered injurious to public health in one local area, but not so in another. In our view, the construction of the provision of the statute must not be such as to result in such absurd or paradoxical consequences. Hence, for this reason also, we are of the view that the power of the State (Health) Authority is a limited power to be exercised locally for temporary duration. Width of power: The learned counsel for the state of Maharashtra contended that the power of the Food (Health) Authority discernible in clause (iv) of Section 7 of the Act is an independent power and much wider than the power of the Central Government under Section 23 of the Act. He contended that while the power of the Central Government discernible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are to eliminate the danger to human life from the sale of unwholesome articles of food. The legislation is on the topic 'Adulteration of Food Stuffs and other Goods' (entry 18 List III Seventh Schedule). It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief - an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well-being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proporations. The offence of adulteration is a socio-economic offence. In Municipal Corporation of Delhi v. Kacheroo Mal Sarkaria, J. said: The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well-settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a 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 a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future ; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases'. It has also been said: 'Rule-making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifiable class' while, ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the delegate on objective facts placed by one class of persons seeking benefit of such an exercise with a view to deprive the rival class of persons who otherwise might have already got statutory benefits under the Act and who are likely to lose the existing benefit because of exercise of such a power by the delegate. This Court emphasised that in the third type of cases the satisfaction of the delegate must necessarily be based on objective considerations and, irrespective of whether the exercise of such power is judicial or quasi-judicial function, still it has to be treated to be one which requires objective consideration of relevant factual data pressed into service by one side, which could be rebutted by the other side, who would be adversely affected if such exercise of power is undertaken by the delegate. In our view, even if the impugned notification falls into the last of the above category of cases, whatever the material the Food (Health) Authority had, before taking a decision on articles in question, ought to have been presented to the appellants who are likely to be affected by the ban order. The principle of natural justice requires that they should have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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