A division bench of the Delhi High Court Monday set aside a single judge’s order, which had quashed notifications issued by the Commissioner of (Food Safety), Delhi government, prohibiting the manufacture, distribution or sale of gutka, pan masala, chewing tobacco and similar products containing tobacco in the national capital.
On September 23, 2022, the HC had passed a judgment in a batch of pleas challenging the notifications with the argument that they were arbitrary and ultra vires the Food Safety and Standards Act 2006 (FSSA) and regulations. The pleas further stated that the Commissioner of Food Safety was not empowered under the FSSA, or the rules and regulations made thereunder, to impose such a prohibition on manufacture, storage, distribution or sale of chewing tobacco since the same is a scheduled product under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act (COTPA), and cannot, in any manner, be construed as “food” under the FSSA.
A division bench of Chief Justice Satish Chandra Sharma and Justice Yashwant Varma, in its 176-page judgment, while allowing the appeals moved by Delhi Government and Union Ministry of Health and Family Welfare, held: “We find ourselves unable to sustain the impugned judgment rendered by the learned Judge. These appeals shall consequently stand allowed. The impugned judgment and order dated 23 September 2022 shall stand set aside”.
Perusing through the provisions of COTPA, the bench observed that while it does adopt measures regulating smoking of cigarettes and consumption of tobacco products in public places, its provisions neither comprehensively control nor regulate all aspects relating to those scheduled products.
“No statute can be construed or understood as legislating upon a subject or conferring a right which is neither spoken of nor engraved therein. Tested on the aforesaid precepts, it is manifest that while scheduled products falling under COTPA are regulated and controlled by its individual provisions, it would be wholly incorrect to understand the said enactment as being an all encompassing and comprehensive legislation pertaining thereto,” the bench said.
It also observed that the single judge had “erred in failing to notice and appreciate the nature and the extent of the control which was taken over by COTPA”. The bench also said that the judge had ignored the “indubitable fact” that the notifications issued by a State authority had, in fact, been “promulgated in exercise of powers conferred under FSSA, a Parliamentary legislation”.
“The learned Single Judge while dealing with the question of a perceived conflict between COTPA and FSSA clearly appears to have trodden down an incorrect path while holding that FSSA constitutes a general legislation and therefore must yield to COTPA…what was sought to be regulated and controlled was chewing tobacco, gutka and pan masala and tobacco sold as a mixture or in a combination package. The question which thus principally arose was whether the aforesaid articles could be termed as food and thus regulated under FSSA. Rather than conferring attention and restricting its unerring scrutiny on the aforesaid aspect, the learned Single Judge appears to have comprehended the principal question to be whether tobacco could be labelled as food. We are of the considered view that the same was not a question which even remotely arose for consideration,” the bench noted.
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The bench further noted that the notifications proposed to ban not raw or pure tobacco but tobacco when mixed with other ingredients and additives. The bench held that the notifications essentially sought to regulate a food article and the single judge appeared to have “misconstrued the scope and intent of those notifications as being one directly aimed at regulating tobacco” as in fact the FSSA does not even deal with raw tobacco or pure tobacco.
The single judge had held that the intention of regulation 2.3.4 of the Food Safety Standards (Prohibition of Sale) Regulations 2011 is not to prohibit but restrict the use of tobacco or nicotine as ingredients in any food product. The judge had stated that notifications by the commissioner had been issued “year after year in a mechanical manner without following the general principles laid down” under the FSSA, which is a “clear abuse of the powers”. On this, the bench held that the said regulation embodies a power to prohibit a particular food article as well as regulate the nature of additives which may be permitted to be added in food articles, further ruling that the prohibitory order could not have been bound by “prescriptions of time” since the embodiment of regulation 2.3.4 is “permanent in character”.
It also noted that the notifications were issued bearing in mind the large number of users of “smokeless tobacco” evidenced from scientific reports which were “essentially policy imperatives”. The power of judicial review does not extend to policy decision unless it is shown that the policy is “wholly erroneous, capricious, or arbitrary,” the court said.
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