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

2012 (9) TMI 1121 - BOMBAY HIGH COURT

Writ Petition No. 1631 of 2012, Writ Petition Nos. 1632, 1633, 1634, 1635, 7592 and 8800 of 2012 - Dated:- 15-9-2012 - M.S. Shah, C.J. & N.M. Jamdar, J. For the Appellant: Mr. Milind Sathe, Senior Advocate i/by M/s. ALMT, Mr. N.H. Seervai, Senior Advocate with Ms. H. Jain, Mr. Subhash Jadhav, Mr. Amana Usman and Ms. Neha Thakkar i/by M/s. ALMT, 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, .....

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stri, Assistant Government Pleader for respondent-State in Original Side matters, 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 and Mr. Kevic Setalvad, Additional Solicitor General for Union of India ORDER M.S. Shah, C.J. 1. Rule, returnable in the first week of July 2013. Heard the learned counsel on the question .....

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factories are situate outside the State of Maharashtra. Statutory Regulations and Standing Order under challenge : 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 of Maharashtra under Section 30(2)(a) of the Food Safety Act. The regulations i .....

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.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 co .....

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mphasis supplied) 2. By the impugned order dated 19 July 2012, the Commissioner of Food 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 Gutka or Pan Masala containing .....

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r are challenged broadly on the following grounds:- (i) 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 & D .....

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tly 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 gov .....

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ce 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. (a) Regulation 2.3.4 is in para-materia with Rule 44J which was inserted in the Prevention of Food Adulteration Rules 1955 in the year 2006. Following the judgment in Ghodawat case, this Court by an order dated 17 January 2008 in Wr .....

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a total ban on gutka having tobacco or on pan masala having magnesium carbonate. (v) The impugned order is also violative of petitioners' fundamental 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' funda .....

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t, 2006 provides for granting licences and the petitioners who have such licences are entitled to carry on the business of manufacture, distribution and sale of pan masala and gutka. (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. 4. Affidavits in reply have been filed by Mr. Kamlesh V. Sankh .....

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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 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. 5. Action Council Against Tobacco, India, having as its members, Professors of Medicin .....

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ity in India v) World Health Organisation's Monographs on evaluation of carcinogenic risks to humans vi) Review of Areca nut and tobacco use in Pacific-A technical report vii) Evidence assessment by National Institute of Health and Family Welfare and several other reports. 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 .....

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for the intervenor have been heard at length on the question of interim relief. 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? 7. The first contention of the learned counsel for the petitioners is 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 .....

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at the Central Government may make rules to carry out the provisions of the Act to specify the maximum and permissible nicotine and tar contents in cigarettes or other tobacco products under the proviso to section 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 along with the maximum permissible limits thereof. It is submitted that the Supreme Court in Ghod .....

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al Act. It was also vehemently submitted that the Food Safety Act does not cover any tobacco product because the tobacco products enumerated in the schedule to the COTPA Act 2003 are only governed by COTPA Act. 8. In support of the contention that the Food Safety Act of 2006 does not cover gutka or pan masala, strong reliance is placed on the reply dated 29 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 .....

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ood 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. 9. The learned counsel for the petitioners have also placed strong 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 .....

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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". 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 und .....

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facture 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 & t .....

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cts like chocolate and toffee which contain nicotine. 10. It is submitted that the FSS Act, 2006 should not be construed as impliedly repealing the COTPA Act, 2003, because: (i) There is a presumption against implied repeal. (ii) The legislature while enacting a law necessarily has complete knowledge of the existing laws & when it does not provide a repealing provision, the intention is clearly not to repeal existing legislation. (iii) When the new Act contains a repealing section mentioning .....

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or to the order dated 19 July 2012 in support of their contentions that there was no total ban prior to the impugned order. 12. 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 based on the .....

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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 merel .....

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the Food Safety Act, 2006. 14. Assuming that the Cigarettes Act, 2003 is held to permit 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: 16. Confiscation not to interfere with other punishments.- No confiscation made, costs ordered to be paid und .....

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s 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. 15. The learned counsel for the respondents submitted that Parliament must be deemed to be aware of the existence of the Cigarettes A .....

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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. 16. Reliance is placed by learned counsel for the respondents on decisions of the Supreme court in Allahabad Bank v/s Canara Bank, AIR 2000 SC 1535 (para 40) and Ajay Kumar Banerjee v/s. Umed Singh, AIR 1984 SC 1130 (Para 39) and S. Prakash v/s. K.M. Kurian, AIR 1999 SC 2094 (Paras 10 to 13 and .....

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Act, in the case of a repugnancy if there is no express provision to the contrary in the earlier special Act. 17. We find considerable substance in the submissions of the learned Advocate General and the learned Additional Solicitor General that the definition of "food" in the Food Safety Act, 2006 includes all food products intended for human consumption which are not specifically excluded from the definition. Prevention of Food Adulteration Act, 1954: "2(v) "food" mean .....

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od" 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 .....

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fety Act, 2006 excludes animal feed, live animals, plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and 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 definiti .....

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r some time and then thrown out. Even if it does not enter into the 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 of the PFA Act was narrower than the definition of food under Food Safety Act, still 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 lic .....

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he Cigarettes Act to be a special Act, the Supreme Court did not accept the contention of the petitioners that the PFA Act had no role to play in the matter of regulation of manufacture and sale of gutka and 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 p .....

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essing, distribution and sale of food so as to ensure safe and wholesome food for the people. The statement of Objects and Reasons states that Prime Minister's 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 need .....

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that the main object is to bring out a single statute relating to food. It is proposed to establish the Food Safety and Standards Authority of 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. The main features of the Bill are - (a) to .....

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ces and punishment for serious violations. 21. It is also necessary to realize that the legislative focus which was on "prevention of food adulteration" in the 1954 Act has moved to "Food Safety and Standards" in the Act of 2006. Preamble to Prevention of Food Adulteration Act, 1954: An Act to make provision for the prevention of adulteration of food. Preamble to Cigarettes Act, 2003: An Act to prohibit the advertisement of, and to provide for the regulation of trade and comm .....

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or human consumption and for matters connected therewith or incidental thereto (Emphasis supplied) 22. 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 .....

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d 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. If the possibility of harmful effects on health is identified but scientific uncertainty persists, provisional risk management measures necessary to ensure appropriate level of health may be adopted. In cases where there .....

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sted 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. 23. Chapter IV of the Act further p .....

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ority 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 thereunder to carry out the provisions of the Act. Clauses (e) & (i) of sub-section (2) of section 92 specifically provide notifying standards and guidelines in relation to articles of food meant for human consumption under sub-section (2) of section 16 which makes it their duty to regulate and monitor the manufac .....

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urious to health: Tobacco and nicotine shall not be used as ingredients in any food products. 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, cardam .....

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ugh 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, workers, distributors and sellers. Food business operator is defined by section 3(o) as a person by whom food business is carried on or owne .....

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nt 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:- 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 Cent .....

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food as injurious to health or unsafe. It is the statutory duty of the manufacturers to ensure that they do not manufacture any 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 on public health about which ample material has been placed on record by the respondents and the intervenors and which is not seriously disputed at the hearing of interim relief. 26. By an order dated 7 December 201 .....

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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 a strong association between smokeless tobacco use and oral pre-malignant/ pre-cancerous lasions. The risk increases with the duration and frequency of smokeless tobacco use. There are consistent results of an increased risk of oral cancer with the use of different forms of smokeless toba .....

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lignant 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. 27. The learned counsel for the petitioners would, however, still 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 Ac .....

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rtedly done by the impugned order dated 19 July 2012. It is vehemently submitted that the question is not about the harmful effects of pan masala or gutka but whether the impugned order could have been passed without any express provision either in the Food Safety Act of 2006 or in the Cigarettes Act 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. 28. .....

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;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 power to prohibit a food article as injurious to health was conferred by section 23(2A)(f) only .....

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sections 16 and 92 of the Act after previous consultation with 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 sa .....

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uct containing tobacco, nicotine or magnesium carbonate (excluding specific product like salt powder which could have up to 2% magnesium carbonate). The Food Safety Commissioner, State of 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 t .....

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lause 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: 30. (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 o .....

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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. Contention (v): Is there any v .....

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reme Court had noticed that strangely, the States did not ban chewing tobacco or other tobacco 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. 32. It is, however, not the case of the petitioners that the material which was taken into consideration by the Food Authority of India while making the 201 .....

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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 .....

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s, 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 .....

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1 to 1635 of 2012) that magnesium carbonates occurs naturally in tobacco, lime, arecanut and cardamom and that therefore, pan masala necessarily contains magnesium carbonate. 35. 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. Betel nut does not contain carbonate but it only conta .....

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te 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 sweetenin .....

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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 about harmful effects of magnesium carbonate and the large scale on which it is being consumed and the fact that people and particularly children are unaware of health hazards does not appear to have been brought to the .....

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ive of Article 14 and is an unreasonable restriction on the petitioners' fundamental right to carry on business under Article 19(1)(g), and (b) even after finding that smoking is injurious to health, in the Cigarettes Act, 2003 the Parliament has not imposed a total ban on smoking cigarettes and has rested content with merely prohibiting advertisements of cigarettes and other tobacco products and prohibiting sale of cigarettes and other tobacco products to persons below the age of 18 years. .....

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gulations 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 Food Authority of India after consultation with the Central Government, after previous publication and the Regulations have been laid before each House of Parliament but no modification of the regulations has been made by the Parliament. We are, therefore, of the prima facie view that the Regula .....

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o on a large scale, unlike gutka where the petitioners and other manufacturers add sweetening additives to make tobacco palatable. It is because of this sweetening additives which contain magnesium carbonate and other ingredients injurious to health that a large number of school children, college students and adults get addicted to gutka and pan masala. 40. As regards law on the subject, the following principle laid down by the Constitution Bench of the Supreme Court in Sakhawat Ali v. State of .....

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manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution. 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 consumpti .....

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220 (Para 7), the Supreme Court made the following observations:- (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 busi .....

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he nature of the business is, therefore, an important element in deciding the reasonableness 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, requi .....

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ls, which it weakens, and in the self-abasement 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 parti .....

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nner 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. These observations have our entire concurrence and they completely negative the contention raised on behalf of the petitioner. 42. We find considerable substance in the submission of the learned Advocate G .....

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to find out whether it forms part of 98% or the remaining 2%. 43. In a catena of decisions, the Supreme Court has held that the Court should take into account not only the material on record but should also take 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 Supreme Court dealt with the contravention of the provisions of Preve .....

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assive 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 substance and the Indian official view seems to be that without more information on the mechanism of bladder cancer induction in rats by the cyclamate-saccharin mixture we have to follow the example of the United States. No risks can be taken where millions of people an .....

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al hazards and the Central Government, after consultation with a high-powered technical body, has prohibited the use of saccharin and cyclamates. 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, .....

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ental right of the citizen and judicial review must halt at the frontiers. The court cannot re-weigh 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 cann .....

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lt with the contention that some of the prize chits schemes were innocuous and they were not required to be banned. The Supreme Court repelled that 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 round the c .....

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he legislature cannot easily make meticulous exceptions and has to proceed on broad categorisations, not singular individualisations. (Emphasis supplied) Contention (vi): Are Principles of Natural Justice to be followed while exercising powers under section 30(2)(a) of Food Safety Act? 45. The learned counsel for the petitioners have then submitted that since the Food Safety Commissioner had issued the impugned order dated 19 July 2012 in exercise of his administrative powers under section 30(2) .....

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fore, also the impugned order is required to be struck down and stayed till final disposal of the petitions. 46. The submission is misconceived. The Food Safety Act of 2006 admittedly empowers the Food Authority of India to lay down the standards of 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 the interest of public h .....

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duties, upon the State or officers and authorities thereof. The Food Safety Commissioner, Maharashtra State exercising his powers under section 30(2)(a), is thus a delegate of Parliament. Delegation of the legislative power by the Parliament to the officer of the State Government holding the rank equivalent to Secretary to the State Government is clearly permissible. There are sufficient guidelines in the Act as to in which circumstances these powers may be exercised. As already indicated above .....

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an administrative power, in our view, the principles to be applied are laid down by the Supreme Court in Union of India and another 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 Act or an Administrative Act:- Legislation indicates the future course of action. Legislative act is a creation or promulgation of general rule of con .....

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there from, there could be no doubt that the impugned order dated 19 July 2012 is a legislative order issued by the Food Safety 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. 48. 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 Cen .....

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on 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. 49. Even otherwise, assuming that the statutory order dated 19 July 2012 were t .....

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udice to the petitioners inasmuch 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 50. 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 r .....

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radesh (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 res .....

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ered 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 .....

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urse throughout the territory of India. The Supreme Court then referred to the following pertinent observations in Automobile Transport, AIR 1962 SC 1406 wherein Das, J. observed- Even textually, we must ascertain the true meaning of the word 'free' occurring in Art. 301. From what burdens or restrictions is the freedom assured? This is a question of vital importance even in the matter of construction... The conception of freedom of trade in a community regulated by law presupposes some .....

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le 301. The rule of law, for functional purpose, must run close to the rule of life. 53. 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 authori .....

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ouse of Parliament and no modification was made by Parliament) and as a result the petitioners manufacturing pan masala or gutka in violation of the said statutory regulations are prohibited from manufacturing, storing, distributing or selling gutka or pan masala within the State of Maharashtra, it cannot be said that any restriction is imposed on the free flow of trade, commerce and intercourse within the territory of India, which is not authorised by Parliament. 54. The impugned statutory regu .....

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e consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. (Emphasis supplied) 55. The voluminous reports and material placed by the respondents as 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. 56. We may, .....

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ourts, 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. 57. We .....

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