TMI Blog2018 (11) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... rt would not hesitate to step in. The unabated sale of gutkha and other forms of chewable tobacco adversely affecting the health of the community is a matter which calls for interference of this Court. It is well settled that the endeavour of the Court should be to harmonize two Acts seemingly in conflict. Of course, in this case there does not appear to be any conflict between COTA and the Food Safety Act. COTA is in addition to and not in derogation of other laws relating to food products. There is no non obstante clause in COTA which excludes the operation of other Acts. Considering the harmful effects of consumption of chewable tobacco, such as gutkha, which leads to fatal ailments such as cancer, this court cannot shut its eyes to the malaise of illegal manufacture and sale of gutkha within the jurisdiction of this High Court, i.e., the State of Tamil Nadu and the Union territory of Puducherry - The illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco is an organized crime which has inter-State ramifications. It involves breach of Central Laws, including Central Excise Laws and the Income Tax Laws, apart from the Food Safety Act, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 26-4-2018 - Indira Banerjee, CJ and Abdul Quddhose, J. Shri P. Wilson, Senior Counsel, for the Petitioner. Shri Venkatasamy Babu, V. Sundareswaran, A.P. Srinivas, SCGSCs, G. Rajagopalan, Additional Solicitor General, R. Vijaynarayan, Advocate General, T.N. Rajagopalan, Government Pleader (incharge), P.H. Arvindh Pandian, Additional Advocate General II, C.V. Shailendhran, S.R. Rajagopal Addl. Advocate General-IX and M. Elumalai, for the Respondent. ORDER [Order per : Indira Banerjee, CJ]. - This writ petition under Article 226 of the Constitution of India, filed in public interest by a Member of the Legislative Assembly in the State of Tamil Nadu, elected from the Chepauk-Triplicane Legislative Assembly Constituency, is directed against the illegal manufacture and sale of chewable forms of tobacco like Gutkha and Pan Masala, which are believed to cause life threatening and/or fatal ailments such as cancer, inter alia, in the State of Tamil Nadu. 2. The Food Safety and Standards Act, 2006, hereinafter referred to as the Food Safety Act , has been enacted to consolidate the laws relating to food and to establish the Food Safety and Standards Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value, the intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment; packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include contaminants or substances added to food for maintaining or improving nutritional qualities; (l) Food Analyst means an analyst appointed under Section 45; (m) Food Authority means the Food Safety and Standards Authority of India established under Section 4; (n) Food business means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients; (o) food business operator in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessors, risk managers, consumers, industry, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions; (zq) risk management means the process, distinct from risk assessment, of evaluating policy alternatives, in consultation with all interested parties considering risk assessment and other factors relevant for the protection of health of consumers and for the promotion of fair trade practices, and, if needed, selecting appropriate prevention and control options; (zr) sale with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sate, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article; (zz) unsafe food means an article of food whose nature, substance or quality is so affected as to render it injurious to health :- (i) by the article itself, or its package thereof, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) identifying potential risks, (d) .. (e) such other functions as may be specified by regulations. Section 13. Scientific Panels. - (1) The Food Authority shall establish scientific panels, which shall consist of independent scientific experts. (2) The Scientific Panel shall invite the relevant industry and consumer representatives in its deliberations. (3) Without prejudice to the provisions of sub-section (1), the Food Authority may establish as many Scientific Panels as it considers necessary in addition to the Panels on : (a) food additives, flavourings, processing aids and materials in contact with food; (b) pesticides and antibiotics residues; (c) genetically modified organisms and foods; (d) functional foods, nutraceuticals, dietetic products and other similar products; (e) biological hazards; (f) contaminants in the food chain; (g) labelling; and (h) method of sampling and analysis. Section 14. Scientific Committee . - (1) The Food Authority shall constitute Scientific Committee which shall consist of the Chairpersons of the Scientific Panels and six independent scientific experts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk; and (g) where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements. (2) The Food Authority shall, while framing regulations or specifying standards under this Act - . (f) ensure prevention of - (i) fraudulent, deceptive or unfair trade practices which may mislead or harm the consumer; and (ii) unsafe or contaminated or sub-standard food. Section 19. Use of food additive or processing aid. - No article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an emergency prohibition notice ), apply to the Commissioner of Food Safety for imposing the prohibition. (2) If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition. (3) The Designated Officer shall not apply for an emergency prohibition order unless, at least one day before the date of the application, he has served notice on the food business operator of the business of his intention to apply for the order. Section 38. Powers of Food Safety Officer . - (1) The Food Safety Officer may - (a) take a sample - (i) of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or (ii) of any article of food or substance which is found by him on or in any such premises; which he has reason to believe that it may be required as evidence in proceedings under any of the provisions of this Act or of the regulations or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two lakh rupees. Section 57. Penalty for possessing adulterant . - (1) Subject to the provisions of this chapter, if any person who whether by himself or by any other person on his behalf, imports or manufactures for sale, or stores, sells or distribute any adulterant shall be liable - (i) where such adulterant is not injurious to health, to a penalty not exceeding two lakh rupees; (ii) where such adulterant is injurious to health, to a penalty not exceeding ten lakh rupees. (2) In a proceeding under sub-section (1), it shall not be a defence that the accused was holding such adulterant on behalf of any other person. Section 59. Punishment for unsafe food . - Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable, - (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees; (ii) where such failure or contravention results in a non-grievous injury, with imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on Sales) Regulations, 2011 (hereinafter referred to as the 2011 Regulations ). 7. Regulation 2.3 prohibits and/or restricts the sale of certain food products. Regulation 2.3.4 provides 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 . There is a ban on use of tobacco and nicotine as ingredients in any food item as they are injurious to health. 8. After the 2011 Regulations were framed, the Secretary, Ministry of Health and Family Welfare, circulated a Letter No. DO. No. P. 16012/12/11- Part I, dated 27-8-2012 to the Chief Secretaries of all States and Union territories, calling upon them to ban the sale of Gutkha and Pan Masala with tobacco and/or nicotine. On receipt of the said letter, the States and Union territories issued notifications under the 2011 Regulations imposing ban on the sale of gutkha and pan masala with tobacco and/or nicotine. 9. It is stated that various writ petitions were filed in different High Courts challenging the 2011 Regulations banning the sale of Gutkha and Pan Masala. Pursuant to transfer applications, the writ petitions were transferre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Food Safety Act, the State Government issued a formal gazette notification in the Tamil Nadu Government Gazette on 23-5-2015 prohibiting the manufacture, storage, distribution or sale of Gutkha and Pan Masala and any other food products containing tobacco or nicotine as ingredients in the whole of Tamil Nadu for a period of one year from 23-5-2015. By further notifications published in the Tamil Nadu Gazette on 23-5-2016 and 23-5-2017 respectively, the prohibition on manufacture, storage, transport, sale or distribution of Gutkha, Pan Masala, Chewing Tobacco and any other food products containing tobacco or nicotine as ingredients, has been extended by further periods of one year with effect from 23-5-2016 and 23-5-2017 respectively. 14. It is the case of the petitioner that notwithstanding the provisions of the Food Safety Act and the 2011 Regulations, as well as the orders of the Supreme Court, as also the gazette notifications dated 23-5-2015, 23-5-2016 and 23-5-2017 gutkha is being sold with impunity in the open market. 15. On 21-5-2017, a news item appeared in the Chennai edition of the Times of India under the caption Gutka freely available in Tamil Nadu despite ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Mr. Rajendran, amounting to ₹ 6 lakhs, made on 21-4-2016, 20-5-2016 and 20-6-2016 respectively; monthly cash payment to an advocate, Mr. Arul of approximately ₹ 4 lakhs; and monthly cash payment to another officer of the Centre. 19. Our attention has also been drawn to a news report in the website edition of The Hindu of 27th and 28th June, 2017, reporting that the income-tax probe unearthed payment of bribes as stated above. 20. Mr. P. Wilson appearing on behalf of the petitioner submits that Gutkha is also manufactured in States other than Tamil Nadu. It is brought into Tamil Nadu from other States as well. Therefore, a fair, impartial, concerted investigation is absolutely necessary. 21. Mr. Wilson has made allegations of connivance of top officials of the State Government, including a Minister, as also officials of the Central Excise Department and other departments. 22. Mr. P. Wilson argued that in blatant violation of the ban imposed by the Government of Tamil Nadu vide notification dated 23-5-2015, which has been extended from time to time, and the orders of the Supreme Court, several manufacturers manufactured gutkha not only within the State of T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding copies of the seized materials, documents and sworn statements, evidencing the payment of bribes to various officials connected to the State Government. 28. The Income Tax Department, as pointed out by Mr. Wilson, has in its counter-affidavit also corroborated the statement of Mr. Madhava Rao regarding payment of bribes to a Minister, the then Commissioner of Police, Central Excise officials and various other officials through intermediaries during the period between 1-4-2016 and 6-7-2016. 29. As pointed out by Mr. Wilson, the counter-affidavit reveals that the letter of the Principal Director of Income Tax dated 11-8-2016 was handed over to the then Director General of Police through a Special Messenger from the Income Tax Department, for which the Income Tax Department has an acknowledgement. 30. According to Mr. Wilson, the Chief Secretary has filed a counter-affidavit in another proceeding before the Madurai Bench of the Madras High Court stating that the entire file pertaining to this letter is not found and no communication has been received from the Income Tax Department. 31. The Income Tax Department has in its counter-affidavit stated that the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als of different departments under the Central and State Governments in the manufacture, illegal import and sale of gutkha and other forms of chewable tobacco calls for a thorough investigation, when there is correspondence in this regard in Government files. 37. The question is whether this Court should constitute a Special Investigation Team to investigate into the involvement of State and Central Government officials and public servants in the manufacture, sale and distribution of gutkha and pan masala containing tobacco and/or nicotine in the State of Tamil Nadu, as prayed for in the writ petition. 38. The separation of powers between the Legislature, the Executive and the Judiciary being a basic feature of the Constitution of India, this Court is not inclined to take over the executive function of investigation into the illegal manufacture, sale and distribution of gutkha, and other chewable forms of tobacco by constituting a Committee. 39. Mr. Wilson argued that in a public interest litigation of this kind, where the attention of this Court had been drawn to an illegality involving different States and different authorities, it was open to this Court to mould the rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary, Minor Irrigation and Rural Engineering and Services UP v. Sahngoo Ram Arya and another, reported in (2002) 5 SCC 521; (iii) T.C. Thangaraj v. V. Engammal, reported in (2011) 12 SCC 328); (iv) State of Punjab v. Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770; and (v) K.V. Rajendran v. Superintendent of Police, reported in (2013) 12 SCC 480. 45. The Learned Advocate General argued that the pleadings in the affidavit in support of the writ petition were lacking any material particulars. Although oral arguments had been addressed to the effect that the case had inter-State ramifications and that two Central Excise Officers were involved, no material was placed to support the submission that investigation by Central Bureau of Investigation was required. 46. The Learned Advocate General also referred to the Vigilance Manual to buttress his argument that, as per the Manual, it was only the State Agency which was to investigate into cases which are essentially and substantially against the servants of the State Government or matters concerning the State Government irrespective of the fact that certain employees of the Central Government were inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that this proposition finds support from the judgment of the Supreme Court in State of Karnataka v. All India Manufacturers Organization and Others, reported in (2006) 4 SCC 683. 52. The Learned Advocate General submitted that the petitioner was mainly relying upon certain entries in the books of account of a Gutkha dealer and statements made by the dealer. The evidentiary value of these documents/statements had already been examined in detail by the earlier Division Bench, which relied on the judgment of the Supreme Court in Common Cause v. Union of India, reported in 2017 (1) SCALE 573. 53. The Learned Advocate General emphatically argued that it was not open to the petitioner to re-urge these issues before a Coordinate Bench. No materials had been placed and no arguments advanced to show that Directorate of Vigilance and Anti-Corruption under the supervision of the Vigilance Commissioner was not proceeding with proper investigation. 54. Mr. S.R. Rajagopalan, Learned Additional Advocate General appearing on behalf of the 11th respondent argued that considering the ill-effects of tobacco on the health of the general public, the Government of Tamil Nadu banned the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in W.P. No. 21 of 2017, (Jayavilas Tobacco Traders LLP v. The Designated Officer, The Food Safety and Drugs Control Department), Mr. Rajagopalan submitted that this Court has held that tobacco is not a food product and the Food Safety Act has no application to Tobacco. 61. In Jayavilas Tobacco Traders, supra, the Single Bench of this Court relying on an order dated 27-4-2015 in Crl. O.P. (MD) No. 5505 of 2015, (Manufacturer, M/s. Tejram Dharam Paul, Maurmandi, Bhatinda District, Punjab and Another v. The Food Safety Inspector, Ambasamudram), had set aside an order dated 24-11-2016 passed under the Food Safety Act implicating the petitioner in that case of alleged offences under the Food Safety Act, inter alia, holding that gutkha and pan masala were not food under the Food Safety Act, but tobacco products covered by the COTA. 62. Mr. Rajagopalan also referred to the order dated 27-4-2015 in M/s. Tejram Dharam Paul, supra, where the Madurai Bench of this Court held : 4. The only submission made by the Learned Counsel for the petitioners is that the sale of tobacco would not attract the provisions of the enactment. He further submits that as per Rule 2.3.4 of the Foo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prevention of Corruption Act, 1988, and the existence of provisions in the Code of Criminal Procedure empowering the Courts of first instance to exercise a certain degree of control over ongoing investigations. 66. In exercise of power under Article 226 of the Constitution of India, the Court can entertain a petition in public interest whenever its attention is drawn to any injustice or patent illegality. In a public interest litigation, the common rule of locus standi is relaxed and any public spirited citizen can approach this Court to seek redress on behalf of the public in general or any specific group. 67. The Court is constitutionally bound to protect the fundamental rights of the people. If issues of public importance and infringement of fundamental and other basic rights of a large number of people are raised, the Court would be duty bound to pass necessary orders. Whenever injustice is meted out, the Court would not hesitate to step in. The unabated sale of gutkha and other forms of chewable tobacco adversely affecting the health of the community is a matter which calls for interference of this Court. 68. Private disputes are not allowed to be agitated as a publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tobacco intended for human consumption. 73. The Food Safety Act is a statute enacted after COTA. The definition of Food in Section 3(j) of the Food Safety Act is different from the definition of food in the Prevention of Food Adulteration Act, 1954, which was as follows : Section 2. Definitions. - In this Act unless the context otherwise requires, - . (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 used in the composition or preparation of, human food, (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. 74. Under the Food Safety Act, food means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption. It includes primary food to the extent defined in clause (zk), that is an article of food being a produce of agriculture or horticulture or animal husbandry and dairying or aquacultu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atinda District, Punjab and Another v. The Food Safety Inspector, Ambasamudram), dated 27-4-2015. 80. In Dhariwal Industries Limited and Another v. State of Maharashtra and Others, reported in (2013) 1 Mah LJ 461, a Single Bench of the Bombay High Court held : 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, 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 definition of food in the Act of 2006 specifically includes chewing-gum and any substance used into the food during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance which goes into the mouth for human consumption is sufficient to be covered by definition of food ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take action against those carrying on, aiding, abetting or otherwise in connivance with the illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco. 85. It is not necessary for us to adjudicate the correctness of the allegations made by the petitioner with regard to the involvement of the persons named in the petition. However, there are enough materials which substantiate the case of the petitioner that illegal business of manufacture and sale of gutkha and other forms of chewable tobacco spreads over different States in the country, including Tamil Nadu, which would perhaps not be possible but for the involvement of different officials and functionaries of the Central Government and different State Governments, including the State of Tamil Nadu. The manufacture and illegal sale requires thorough investigation. 86. In the counter-affidavit of the fifth and sixth respondents, it is stated that ingredients/formula used for manufacture of chewable tobacco was found to have been prepared by persons from Delhi. As trade in gutkha and other forms of chewable tobacco is spread over and/or passes through several States and there is a strong likelih ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate, not being a Union territory the powers and jurisdiction of member of the Delhi Special Police Establishment for the investigation of any offences or classes of offences specified in notification under Section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the function of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in-charge of a police station in that area and when so exercising such powers, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... along with State Government servants and other persons; cases in which the interests of the Central Government are involved; cases relating to breaches of Central Laws with the enforcement of which the Government of India is particularly concerned; cases of a serious nature when committed by organized gangs or professional criminals. 92. The illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco is an organized crime which has inter-State ramifications. It involves breach of Central Laws, including Central Excise Laws and the Income Tax Laws, apart from the Food Safety Act, which in itself is a Central Law, which the Central Government and the State Governments are obliged to enforce. 93. In States, cases which are substantially and essentially against the Central Government employees or concern the affairs of the Central Government are to be investigated by the CBI, even though certain employees of the State Government might also be involved. The State police or the State Anti-Corruption Bureau or the Vigilance set up render assistance to the CBI during the investigation and prosecution involving employees of the State. 94. However, cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a statutory notification to the repealed Prevention of Food Adulteration Act would have to be construed as reference to the Food Safety Act by virtue of Section 8 of the General Clauses Act, 1897. There can, therefore, be no doubt that CBI has the power to investigate into the illegal manufacture, distribution and sale of gutkha and other forms of chewable tobacco. 100. In our view, there is no conflict between investigation by the State Police, the Anti-Corruption or Vigilance set up of the State and the CBI which supplement and co-ordinate each other s work in certain spheres. Moreover, investigation can be made over to the CBI even after charge sheet has been filed, as held by the Supreme Court in Bharati Tamang v. Union of India and Others, reported in (2013) 14 SCC 578. Any CBI investigation would necessarily require co-operation of the State Police and the Anti-Corruption or Vigilance set up of the State. The CBI might, if it deems necessary, interact with the officers of the State and the Anti-Corruption or Vigilance set up in relation to investigation. 101. In our considered view, the handing over of investigation to CBI only ensures a co-ordinated investigation, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 1994 Suppl (1) SCC 143, the Supreme Court held that when there were accusations against the local police personnel, it would be desirable in the larger interest of justice to entrust the investigation to CBI forthwith so as to assure investigation credibility. 107. We are unable to accept the submission made by the Learned Advocate General and by Learned Counsel appearing on behalf of the other State respondents that we should refrain from referring the investigation to CBI because of the earlier orders of Co-ordinate Benches of this Court, referred to above. 108. It is well settled that principles of res judicata apply to writ proceedings. The proposition has been enunciated and re-enunciated by the Supreme Court. Reference may be made to G.K. Dudani v. S.D. Sharma, reported in 1986 Supp SCC 239 : AIR 1986 SC 1455. 109. The principles of res judicata are, however, attracted only when an issue directly and substantially in issue in later proceedings had been directly and substantially in issue in earlier proceedings between the same parties or between parties under whom they or any of them had been litigating under the same title, in a Court competent to try such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the same cause. It is also based on the public policy that there should be an end to the same litigation. The purpose of the doctrine is that once a matter has been determined in an earlier proceeding, it should not be open to the parties to reagitate the matter again and again. 113. In State of Karnataka v. All India Manufacturers Organization and Others, supra, the Supreme Court clearly held that res judicata applies to public interest litigation as long as it is shown that the previous litigation was in public interest and not by way of private grievance and the previous litigation was a bona fide litigation in respect of a right which was common and agitated in common with others. As long as the litigation is bona fide, the judgment would be a judgment in rem which would bind the public at large and bar any member of the public from coming forward to raise the same issue. 114. In T. Vincent v. Director, Central Bureau of Investigation and Others, supra, the writ petition was moved by a lawyer seeking writ of mandamus directing the CBI to investigate into allegations of corruption and to investigate, prosecute and ferret out the truth regarding the connivance of seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In the context of the challenge to the appointment of Shri T.K. Rajendran as Director General of Police for a further period of two years, it was contended by the petitioner that any enquiry against Shri Rajendran by the Directorate of Vigilance and Anti-Corruption would not be a fair one, as the Vigilance Commissioner, who was the controlling authority, and Shri T.K. Rajendran were working together in the Home Department. The enquiry should, therefore, be entrusted to the CBI. 120. In the context of the issue before the Division Bench, which was the legality of appointment of Shri T.K. Rajendran, the Court discussed the submissions made on behalf of the State with regard to his credentials and also to the order of this Court in the case of T. Vincent, supra, doubting the bona fides of Shri T. Vincent in initiating a public interest litigation seeking enquiry against high police officials. 121. As observed above, principles of res judicata could apply to a public interest litigation. In the case of a public interest litigation, the public interest litigant has no individual cause, he represents the public. The fact that the writ petitioner in a subsequent writ petition may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure. 127. In Committee for Protection of Democratic Rights, supra, the Constitution Bench laid great emphasis on instilling of faith of the public at large in the investigating agency investigating into a complaint. In this case, the serious allegations of corruption against high police officials in relation to illegal business in gutkha and other forms of chewable tobacco, supported by communications from Government officials erode the faith of the people in investigation by the police. 128. The writ petition before us is not an inter-party dispute, but a public interest litigation and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Part III of the Constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but for any other purpose . 133. In Dwarka Nath v. ITO, reported in AIR 1966 SC 81, the Supreme Court held that Article 226 is couched in comprehensive phraseology and it ex facie confers a wide power on the High Court to reach injustice wherever it is found. This article enables the High Courts to mould the reliefs to meet the peculiar and extraordinary circumstances of the case. 134. In Nilabati Behera v. State of Orissa, reported in (1993) 2 SCC 746, Dr. A.S. Anand, J. held : 35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e High Court under Article 226 of the Constitution of India to direct investigation by the CBI is to be exercised sparingly, cautiously and in exceptional situations, and an order directing CBI investigation is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police, as argued by the Learned Advocate General. The proposition finds support from the judgments of the Supreme Court in T.C. Thangaraj v. V. Engammal and Others, reported in (2011) 12 SCC 328 (Para 10); K.V. Rajendran v. Superintendent of Police, CBCID, reported in (2013) 12 SCC 480 (Paras 13 and 17); Mithilesh Kumar Singh v. State of Rajasthan, reported in (2015) 9 SCC 795 (Paras 12 and 22); State of West Bengal and Others v. Committee for Protection of Democratic Rights, West Bengal and Others, reported in (2010) 3 SCC 571 (Para 70); State of Punjab v. Davinder Pal Singh Bhullar and Others, reported in (2011) 14 SCC 770 (Para 75); and Secretary, Minor Irrigation Rural Engineering Services, U.P. and Others v. Sahngoo Ram Arya and Another, reported in (2002) 5 SCC 521 (Para 6). 140. There can, however, be no cast iron formula for directing transfer of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bited food items containing tobacco and nicotine such as gutkha. 142. Investigation by a centralized agency like the CBI would be more comprehensive and cover all aspects of the illegal manufacture, import, supply, distribution and sale of banned chewable tobacco items, including the detection of all those involved in such illegal import, manufacture, supply, distribution and sale, as also the detection of corruption and complicity of public servants and/or Government servants in this regard. As observed above, there is no conflict between CBI investigation and investigation by the State machinery. Investigation can be carried out more effectively with the CBI and the Vigilance Department working in cooperation. 143. The underground gutkha business is a crime against society which needs to be curbed. We, therefore, deem it appropriate to direct the CBI to investigate into all aspects of the offence of illegal manufacture, import, supply, distribution and sale of gutkha and other forms of chewable tobacco which are banned in the State of Tamil Nadu and the Union territory of Puducherry, including detection of and action against those involved in the offence as aforesaid, wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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