Telangana High CourtMohammed Shoukat Ali vs The State Of Telangana on 30 November, 2021Author:Satish Chandra SharmaBench:Satish Chandra Sharma,A.Rajasheker ReddyTHE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA\n                         AND\n     THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY\n\n WP.Nos. 19928, 20022, 21277, 21314, 21344, 21352, 21362, 21523, 21545,\n 21547, 21555, 21569, 21831, 21886, 21899, 21914, 21939, 22297, 22310,\n 22322, 22325, 22330, 22333, 22349, 22369, 22376, 22388, 22390, 22392,\n 22416. 22423, 22425, 22432, 22447, 22480, 22482, 22498, 22507, 22560,\n 22569, 22573, 22586, 22635, 22708, 22728, 22732, 22762, 22764, 22785,\n 22808, 22846, 22850, 22868, 22895, 22897, 22898, 22930, 22941, 22969,\n 22983, 23000, 23036, 23058, 23069, 23128, 23132, 23182, 23186, 23209,\n 23257, 23284, 23286, 23292, 23321, 23350, 23358, 23476, 23490, 23528,\n 23599, 23629, 23633, 23802, 24088, 24273, 24285, 24467, 24475, 24591,\n 24698, 24927, 24929, 25049, 25073, 25074, 25083, 25114, 25124, 25131,\n 25203, 25206, 25267, 25272, 25305, 25472, 25558, 25702, 25713, 25740,\n 25898, 25905, 25933, 25984, 26196, 26368, 26467, 26570, 26618, 26738,\n  26972, 27044, 27138, 27279, 27364, 27406, 27459, 28100 and 28704 of\n                                 2021\n\n\nCOMMON ORDER:(Per the Hon'ble the Chief Justice Satish Chandra Sharma)\n\n\n(1)   Regard being had to the similitude in the controversy\n\ninvolved in the present cases, the writ petitions were\n\nanalogously heard and by a common order, they are being\n\ndisposed of by this Court.(2)   Facts of the Writ Petition No.19928 of 2021 are\n\nnarrated hereunder.The    petitioner     before       this     Court,       which        is    a\n\nproprietorship firm engaged in the business of wholesale\n\ndistribution and retailing of chewing/chewable tobacco\n\nproducts and cigarettes, has filed this present writ\n\npetition being aggrieved by the Notification No.505/FSS-\n\n1/2021, dated 06.01.2021 issued by the respondent\n\nNo.3/Commissioner of Food Safety, Telangana in exercise\n\nof powers conferred underSection 30of the Food Safety\n\nand Standards Act, 2006 (hereinafter called 'FSS Act22006'). The petitioner has challenged the impugned\n\nNotification on the ground that it is illegal, arbitrary,\n\nunconstitutional, ultra vires theCigarettes and Other\n\nTobacco Products (Prohibition     of Advertisement and\n\nRegulation of Trade and Commerce, Production, Supply\n\nand Distribution) Act, 2003(hereinafter called, 'COTPA\n\n2003') and is in violation of principles of natural justice\n\nand is also in violation ofArticles 14and19(1)(g)of the\n\nConstitution of India.(3)   The learned counsel for the petitioner stated before\n\nthis Court that the petitioner's business is broadly\n\nconcerned with pure tobacco and scented tobacco, which\n\nare marketed under the brand names Phoolchap (pure\n\ntobacco) and VI Tobacco (scented tobacco).\n\n\n(4)   In the other connected matters, the petitioners are\n\ncarrying on the business either of wholesale distribution\n\nor sale of pan masala mixed with tobacco and other allied\n\nproducts. The petitioners' contention is that the COTPA\n\n2003 is a central legislation dealing exclusively with\n\ntobacco industry, traceable to Entry 52, List I of the\n\nSeventh Schedule of the Constitution of India and it\n\nprovides a comprehensive legislation which governs the\n\nlaw on tobacco products and is occupying the field. It has3been stated that the COTPA 2003 deals with tobacco\n\nproducts and therefore, the products mentioned in the\n\nimpugned Notification issued underFSS Act2006 are\n\ncovered in the list of products specified in the Schedule of\n\nCOTPA 2003.(5)   The petitioners further contended that the legislative\n\npolicy in respect of tobacco products as evident from the\n\nprovisions of COTPA 2003 is not to impose a complete ban\n\non tobacco products and it certainly regulates and\n\nimposes restrictions on the trade and business with\n\nrespect to advertising the products, smoking in public\n\nplaces   and   pictorial   warnings   on   the   ill-effects   of\n\nconsuming tobacco on packaging material of those\n\nproducts etc. It has been further contended that the\n\nlegislative policy is to permit trade and business in\n\ntobacco products subject to reasonable restrictions. It has\n\nbeen further contended that the country's taxing statutes\n\nalso permit trade and business in tobacco products and\n\ntax is levied under theCentral Goods and Services Tax\n\nAct, 2017. Meaning thereby, the statute does not prohibit\n\ntrade and business in tobacco products at all.\n\n\n(6)   The petitioners further contended that theFSS Act2006 is an Act that regulates food standards and the4production, distribution and consumption of food. It is a\n\ngeneral law that covers all aspects pertaining to food\n\nsafety, traceable to Entry 18 ofList III of the Seventh\n\nSchedule of the Constitution of India and the FSS Act2006 does not define 'tobacco products' nor it provides\n\nany power for prohibition in the trade and business of\n\nsuch products. It has been further contended that COTPA\n\n2003 being a special law pertaining to subject matter of\n\n'tobacco products' and 'tobacco industry' that overrides\n\ntheFSS Act2006 which is a general law pertaining to\n\n'food    products   and     food   safety'   and   therefore,   the\n\nprovisions of theFSS Act2006 cannot impinge or\n\nencroach upon any subject matter, that is exclusively\n\ngoverned by the COTPA 2003.(7)     The   petitioners    further     contended     that     the\n\nRegulations made under theFSS Act2006 cannot travel\n\nbeyond the field covered by theFSS Act2006 and they\n\ncannot encroach upon the areas covered by the COTPA\n\n2003. It has been further contended that in exercise of\n\npowers conferred underSection 92of the FSS Act 2006,\n\nthe Food Safety and Standards Authority of India has\n\nissued Regulations titled 'the Food Safety and Standards\n\n(Prohibition and Restrictions on Sales) Regulations, 2011\n\n(hereinafter called, 'Food Safety Regulations, 2011'). The5Regulation 2.3.4 of the said Regulations provides that\n\ntobacco and nicotine shall not be used as ingredients in\n\nany food stuffs and that the tobacco per se is not treated\n\nas food and therefore, theFSS Act2006 nor the Food\n\nSafety Regulations, 2011 framed thereunder empowers\n\nthe Authorities to impose a ban in respect of trade and\n\nbusiness of tobacco.(8)    The petitioners further contended that the impugned\n\nNotification is ultra vires theFSS Act2006 and is also\n\ncontrary to COTPA 2003. It has been further contended\n\nthat under the Food Safety and Standards (Food Products\n\nStandards and Food Additives) Regulations, 2011, 'pan\n\nmasala' is defined underRegulation 2.11.5 as 'the food\n\ngenerally taken as such or in conjunction with pan'. It\n\nlists out the substances that pan masala should be free\n\nfrom. The treatment of pure pan masala as food under the\n\nRegulations only implies that except to the extent\n\nspecifically covered under the special law COTPA 2003,\n\nthe provisions of theFSS Act2006 and Rules/Regulations\n\nmade thereunder govern pan masala. Insofar as the pan\n\nmasala in combination with tobacco finds place in the\n\nSchedule of COTPA 2003 and the said product is outside\n\nthe reach of the provisions of theFSS Act2006. It has\n\nbeen    further   contended   that   the   tobacco   products6mentioned in the impugned Notification are exclusively\n\nregulated by the COTPA 2003, they are not all covered by\n\ntheFSS Act2006 and therefore, the impugned Notification\n\nis ultra vires theFSS Act2006 and the COTPA 2003.\n\n\n(9)    The    petitioners   further    contended    that    the\n\nrespondent No.3/Commissioner of Food Safety, Telangana\n\nis    jurisdictionally   incompetent   to   issue   any    such\n\nNotification in exercise of powers conferred underSection\n\n30(2)of the FSS Act 2006 as the products mentioned in\n\nthe Notification are not covered by theFSS Act2006 and\n\nthey are covered under the Schedule appended to the\n\nCOTPA 2003. It has been further contended that the\n\nimpugned Notification deprives the petitioners and other\n\nconnected persons of their valuable rights guaranteed\n\nunderArticle 19(1)(g)of the Constitution of India.\n\n\n(10) The petitioners further contended that earlier also,\n\nsuch Notifications were issued by the State Government\n\nand this Court has quashed the criminal proceedings by\n\npassing a detailed Judgment in Criminal Petition No.3731\n\nof 2018 and batch, vide Judgment dated 27.08.2018 and\n\ntherefore, no criminal proceedings can be initiated against\n\nthe petitioners and against other persons who are involved\n\nin the trade of pan masala/tobacco. Reference has also7been made to other Judgments delivered by the High\n\nCourt of Andhra Pradesh in Criminal Petition No.5421 of\n\n2019 and batch decided on 18.12.2019. The petitioners\n\nstated that apprehending criminal action on the basis of\n\nthe Notification which is void ab initio, the petitioners\n\napproached this Court by filing a writ petition underArticle 226of the Constitution of India seeking protection\n\nof the fundamental rights guaranteed underArticles 14,\n\n19(1)(g)and21of the Constitution of India. It has been\n\nfurther   contended    that   in   earlier   years,   similar\n\nNotifications were issued by the State Government and\n\nthe interim orders have been granted in all matters.\n\nHowever, as the validity of the Notifications was only for a\n\nperiod of one year, the Notifications expired by afflux of\n\ntime.(11) The petitioners have raised various grounds before\n\nthis Court for setting aside the impugned Notification.\n\n\n(12) It has been contended by the learned counsel for the\n\npetitioners that the COTPA 2003 is a comprehensive code\n\nand a special law dealing with all aspects of the tobacco\n\nproducts and tobacco industry, whereas theFSS Act2006\n\ndeals with the broad area of food safety and standards.The FSS Act2006 even though enacted subsequent to the8COTPA 2003 does not either expressly or impliedly seek to\n\noverride the COTPA 2003. Therefore, the application of the\n\nwell settled principle that special law prevails over general\n\nlaw, even if the general law is subsequent, the COTPA\n\n2003 will prevail over theFSS Act2006 when it comes to\n\nregulation of tobacco products. Thus, the power conferred\n\nunderSection 30(2)of the FSS Act 2006 does not extend\n\nto prohibit the tobacco products, which is the sole\n\nprerogative of the COTPA 2003.(13) It has been further contended that the Rules,\n\nRegulations and Notifications should not only conform to\n\nthe parent statute but also shall not be contrary to any\n\nother statute since subordinate legislation cannot violate a\n\nplenary legislation. The impugned Notification in banning\n\ntrade or business in tobacco products, imposes a\n\nprohibition   which   is   beyond   the   limited   extent   of\n\nprohibition imposed underSection 6of the COTPA 2003\n\n(i.e., sale to persons under 18 years of age and in an area\n\nwithin 100 yards of an educational institution).\n\n\n(14) It has been further contended that if any prohibition\n\non the trade or business of tobacco products is to be\n\nimposed in addition to what is covered underSection 6of\n\nthe COTPA 2003, the same can be done only by an9amendment to the COTPA 2003. However, by issuing the\n\nimpugned    Notification,   the   respondent    No.3/the\n\nCommissioner of Food Safety has added a new head of\n\nprohibition which is otherwise absent in the COTPA 2003,\n\nwhich has been done under the garb of exercising power\n\nunderSection 30of the FSS Act 2006. It is nothing but\n\ndoing an act indirectly which is not permissible directly\n\nandRegulation 2.3.4 of the Food Safety Regulations, 2011\n\ndoes not empower the respondent No.3/Commissioner of\n\nFood Safety to ban the products covered under the COTPA\n\n2003. It has been further contended that theFSS Act2006 cannot encroach upon the field covered by the\n\nCOTPA 2003 and therefore, the Regulations made under\n\ntheFSS Act2006 cannot do the same, hence the\n\nprohibition underRegulation 2.3.4 can extend to any food\n\nwhich is consumed, except the products specifically\n\ncovered under the COTPA 2003. It has been further\n\nargued that the exercise of power underSection 30of the\n\nFSS Act 2006 and theRegulation 2.3.4 of the Food Safety\n\nRegulations, 2011 amounts to colourable exercise of\n\npower, which is impermissible. It has been further\n\ncontended thatRegulation 2.3.4 of the Food Safety\n\nRegulations, 2011 does not cover chewing tobacco. The\n\nsaid Regulation makes a dichotomy between 'tobacco' on10one hand and 'food products' on the other hand, which\n\nimplies that chewing/chewable tobacco products were\n\nnever intended to be covered under the Food Safety\n\nRegulations, 2011. Thus, by no stretch of imagination, the\n\nimpugned Notification covers chewing/chewable tobacco\n\nproducts. The issuance of the impugned Notification is a\n\ncomplete non-application of mind and the same violates\n\ntheArticle 14of the Constitution of India.\n\n\n(15) The petitioners further contended that since the\n\nimpugned Notification is ultra vires theFSS Act2006 and\n\nthe   COTPA    2003,   the   restriction   imposed   on   the\n\npetitioners' rights to carry on trade and business in\n\nchewing/chewable tobacco products has no legal basis.\n\nMeaning thereby, the prohibition imposed is without\n\nbacking of law as mandated underArticle 19(6)of the\n\nConstitution of India. Thus, the prohibition imposed by\n\nvirtue of the impugned Notification is in violation of the\n\npetitioners' fundamental right to carry out trade and\n\nbusiness underArticle 19(1)(g)of the Constitution of\n\nIndia. The petitioners further contended thatSection 6of\n\nthe COTPA 2003 imposes a complete ban in respect of\n\nextremely vulnerable or important subjects (i.e., to protect\n\nindividuals under the age of 18 years and students and\n\nprotect individuals from the harm of passive smoking), it11imposes less onerous restrictions on the rest of the\n\nsubjects limited to the manner in which tobacco products\n\nare   advertised.   The   very    fact   that   the   respondent\n\nNo.5/Union of India enacted the COTPA 2003 where\n\nprohibition is not imposed but restrictions are imposed on\n\nvarious facets of the trade in tobacco implies that there\n\nare less intrusive measures than complete prohibition.\n\nUnmindful of this well thought out legislative scheme and\n\nintent, the respondent No.3/the Commissioner of Food\n\nSafety has imposed a wholesale ban on trade/business in\n\ntobacco products. This does not stand the test of\n\nproportionality and as such, it is not a reasonable\n\nrestriction within the meaning ofArticle 19(6)of the\n\nConstitution of India.(16) The petitioners further contended that by virtue of\n\nthe impugned Notification, the petitioners and other\n\nconnected persons face an imminent threat of criminal\n\nproceedings being initiated by the Authorities concerned\n\nand are being arrested as is obvious from the various\n\ncases foisted in the earlier years against them and other\n\npersons under the garb of implementation of similar\n\nNotifications. Even the entities and persons to whom the\n\npetitioners supply its products also face a threat. This is a\n\ndirect infringement on the right to liberty guaranteed12underArticle 21of the Constitution of India. The\n\npetitioners further contended that a complete ban on\n\ntrade and business adversely affects the livelihood of the\n\npetitioners and other connected persons.\n\n\n(17) The petitioners further contended that the impugned\n\nNotification was issued without asking for the views of the\n\npersons engaged in the trade or business of the tobacco\n\nproducts and it is mandatory to grant opportunity of\n\nhearing to the affected stakeholders before passing an\n\nadministrative order. Therefore, the issuance of the\n\nimpugned Notification violates the principles of natural\n\njustice. The petitioners further contended thatSection 31of the FSS Act 2006 mandates every food business\n\noperator to obtain a license, such a requirement is not\n\nmade applicable for the persons carrying on business in\n\nthe products covered under the COTPA 2003. In fact, the\n\nsame was clarified by the respondent No.6/Food Safety\n\nand Standard Authority of India by its letter dated\n\n10.10.2012 to a query raised by a person engaged in the\n\ntrade of such products in Delhi. Similar clarification has\n\nalso been issued by the Food Safety Authority of\n\nUttarakhand. The petitioners further contended that while\n\nthe   Food   Safety   Regulations,   2011   provide   safety\n\nstandards with respect to every type of food extending13even to pan masala, they are absolutely silent in respect of\n\nchewing/chewable       tobacco      products    in    which     the\n\npetitioners are engaged in. No standards for labelling or\n\npackaging chewing tobacco products are set out. Thus, it\n\nis   crystal   clear   that   those    products      were     never\n\ncontemplated within the meaning of 'food' under theFSS\n\nAct2006. Thus, the Regulation making Authority under\n\ntheFSS Act2006 itself does not treat the above products\n\nas falling within the meaning of 'food'.(18) The petitioners further contended that interpretingSection 30(2)(a)of the FSS Act 2006, the power to issue a\n\nNotification such as the impugned Notification would lead\n\nto a paradoxical situation where the respondent No.3/the\n\nCommissioner of Food Safety can issue a Notification in\n\none area of the State and not in another, with respect to\n\ntobacco products, which is otherwise permitted. Similarly,\n\nthe Commissioner of Food Safety of one State may issue a\n\nNotification banning tobacco products while that of\n\nanother State may not and this situation exists in case of\n\nchewing/chewable       tobacco      products.   The    State     of\n\nTelangana has issued the impugned Notification extending\n\nthe ban to chewing tobacco and pure tobacco products,\n\nwhereas the State of Karnataka and several other States\n\nhave not issued similar Notifications. The petitioners14further contended that the non-obstante clause underSection 89of the FSS Act 2006 does not enable the\n\nauthorities   under   the   said    statute   to   override   the\n\nprovisions of the COTPA 2003, since it is settled law that\n\neven a non-obstante clause in a subsequent general law\n\ncannot override a prior special law. The petitioners further\n\ncontended that the prohibition that can be imposed underSection 30(2)(a)of the FSS Act 2006 can be for a\n\nmaximum period of one year. This itself reflects that the\n\npower therein was given to be exercised under some\n\nemergent extraordinary circumstances and not in a\n\nroutine   manner.     However,     the   respondent    No.3/the\n\nCommissioner of Food Safety, Telangana by repeatedly\n\nissuing those Notifications year after year and ensuring\n\nthat a product is banned in perpetually, is nothing but\n\nabusing the power conferred on it and it also amounts to\n\ncolourable exercise of power.(19) The petitioners have further contended that various\n\nwrit petitions have been decided by different High Courts\n\nand the matter is pending before the Hon'ble Supreme\n\nCourt and as the Hon'ble Supreme Court is seized of the\n\nissue, the present petitions be decided after Judgment is\n\ndelivered by the Hon'ble Supreme Court. However, the fact\n\nremains that in respect of the impugned Notification, no15writ petition is pending before the Hon'ble Supreme Court\n\nand no order has been brought to the notice of this Court\n\nrestraining this Court to decide the issue. On the\n\ncontrary, there is an order passed by the Hon'ble Supreme\n\nCourt in S.L.P.Nos.4879 and 5743 of 2021, dated\n\n11.05.2021, directing this Court to decide the matters at\n\nan early date.(20) The learned counsel for the petitioners have placed\n\nreliance upon the following Judgments in respect of the\n\ncontentions canvassed on behalf of the petitioners in the\n\npresent petition as well as other connected matters.Ch.Tika Ramji v. State of U.P.1,State of Madras v. Gannon\n\nDunkerley2,Calcutta Gas Company Limited v. State of West\n\nBengal3,Ramavatar   Budhaiprasad   v.   Assistant   Sales   Tax\n\nOfficer,Akola4, Kannan Devan Hills Produce Company Limited\n\nv. State of Kerala5,Shah Ashu Jaiwant v. State of Maharashtra6,Ishwari Khetan Sugar Mills (Private) Limited v. State of U.P.7,D.C.Wadhwa v. State of Bihar8, Collector of Central Excise,\n\nBombay-I v. M/s.Parle Exports9, India Cement Limited v. State\n\nof Tamil Nadu10,Synthetics & Chemicals Limited v. Stateof11956 SCR 39321959 SCR 37931962 Supp (3) SCR 14(1962) 1 SCR 2795(1972) 2 SCC 2186(1976) 2 SCC 997(1980) 4 SCC 1368(1987) 1 SCC 3789(1989) 1 SCC 34510(1990) 1 SCC 1216U.P.11, State of Andhra Pradesh v. McDowell & Co.,12,SIEL\n\nLimited v. Union of India13,ITC Limited v. Agricultural Produce\n\nMarket Committee14,S.Samuel, M.D., Harrisons Malayalam v.\n\nUnion of India15, Gulati & Co., v. Commissioner of Sales Tax16,\n\nandDharampal Satyapal Limited v. State of Assam17.\n\n\n(21) The respondent No.3/Commissioner of Food Safety,\n\nTelangana has filed a detailed counter affidavit and it has\n\nbeen stated that the petitioners are engaged in the\n\nwholesale business of the products like chewing tobacco.\n\nThe products contain pure tobacco, flavoured tobacco and\n\nscented tobacco. It has been stated that the chewing\n\ntobacco products flavoured with some spices such as\n\ncardamom, menthol, clove etc., includes scented tobacco.\n\nThis also includes edible perfumes and therefore, as per\n\ntheFSS Act2006, the spices and other edible perfumes\n\nadded to the chewing tobacco comes under the definition\n\nof 'food'. It has been stated that the law of the land is very\n\nclear and theFSS Act2006 read with Regulations framed\n\nthereunder provides that no food product shall contain\n\ntobacco and nicotine as ingredient. The stand of the\n\nrespondent No.3 is that the petitioner while obtaining GST11(1990) 1 SCC 10912(1996) 3 SCC 70913(1998) 7 SCC 2614(2002) 9 SCC 23215(2004) 1 SCC 25616(2014) 14 SCC 28617(2018) 2 Gauhati Law Reports 16817number and GST certificate has stated that he is doing\n\nbusiness to sell unmanufactured tobacco, refuse tobacco,\n\nnot stem or strippe, flue cured Virginia tobacco, but the\n\npetitioner is selling chewing tobacco products flavoured\n\nwith some spices, such as cardamom, menthol, clove etc.,\n\nscented tobacco comprising edible perfumes. In the other\n\nwrit petitions, the petitioners are dealing with gutka or\n\npan masala, which certainly contain tobacco.(22) It has been further stated that the Hon'ble Supreme\n\nCourt in the case of Ankur Gutka v. Indian Asthma Care\n\nSociety    (SLP    No.16308    of     2007,   vide   order   dated\n\n07.12.2010) has directed the learned Solicitor General of\n\nIndia     to   instruct   concerned    Ministries    to   approach\n\nNational Institute of Public Health to undertake a\n\ncomprehensive analysis and study of contents of gutka,\n\ntobacco, pan masala and similar articles manufactured in\n\nthe country and harmful affects on human health. The\n\nMinistry of Health and Family Welfare, in the light of the\n\ndirections issued by the Hon'ble Supreme Court, in\n\nconsultation with the National Institute of Health and\n\nFamily Welfare (NIHFW) constituted a Committee of\n\nTechnical Experts and submitted a Report on the contents\n\nof gutka, tobacco, pan masala and other similar articles\n\nmanufactured in the country as well as in respect of18Areca-Nut or Betel Quid or Supari. The Report includes\n\nthe harmful affect on human body. As per the Report\n\nsubmitted by NIHFW, the term 'smokeless tobacco'\n\nincludes   large    variety    of   commercially       or       non-\n\ncommercially     available    products    and    mixtures       that\n\ncontain tobacco as the principal constituent and are used\n\neither orally (through the mouth) or nasally (through the\n\nnose) without combustion. As per the Report, three forms\n\nof smokeless tobacco, which are commonly used in India\n\nare as under:-(1) Tobacco alone (with aroma and flavourings) - e.g.\n        Creamy or dry snuff, Gudakhu, Gul, Mishri, Red\n        tooth power.(2) Betel quid with tobacco (includes areca nut, slaked\n        lime, catechu and tobacco with spices) - e.g. Gutkha.(3) Tobacco with other components (lime, sodium\n        bicarbonate, ash) - e.g. Khaini, Zarda, Maras,\n        Naswar.(23) The respondent No.3 has further stated that as per\n\nthe NIHFW Health Report, there are as many as 3095\n\nchemical components in smokeless tobacco products and\n\nout of them, 28 are proven carcinogen. The major and\n\nmost abundant group of carcinogens is the tobacco -specific N-nitrosamines (TSNA) and no safe level of this\n\nchemical has been ascribed so far. The other carcinogens\n\nreportedly present in smokeless tobacco include volatile\n\nN-nitrosamines, certain volatile aldehydes, poly-nuclear19aromatic hydrocarbons, certain lactones, urethane, metals\n\nand radioactive polonium. The Report also reveals that\n\nhigh level of Nitrosamines is present in the branded\n\nIndian    smokeless        tobacco        products.   The    Laboratory\n\nReports     also     establish     that     the    smokeless    tobacco\n\navailable in India contains substantive quantities of two\n\npotent carcinogens (nitrosamines and benzo-a-pyrene)\n\nand heavy metals. The presence of high levels of heavy\n\nmetals (Lead, Cadmium, Chromium, Arsenic and Nickel)\n\nis also reported. The Report establishes that the tobacco\n\nand      other     tobacco     related       products       cause   oral,\n\nesophageal,        stomach,      pancreatic,       throat    and    renal\n\ncancers. It also causes periodontal diseases, hypertension\n\nand cardiovascular diseases, nervous system diseases,\n\nmetabolic        abnormalities.    It      also   affects   reproductive\n\norgans in men and women and is also responsible for pre-\n\nterm and low birth babies. The Expert Committee in its\n\nReport dated 23.09.1997 recommended prohibition of\n\nconsumption of pan masala/gutka/chewing tobacco as\n\nthe ingredient in any food items as they are injurious to\n\npublic    health     and     the   Central        Committee    of   Food\n\nStandards in its Meeting dated 26th and 27th of November,\n\n1997 unanimously resolved to ban use of chewing tobacco\n\nin pan masala/gutka. It has been further stated that20Global Audit Tobacco Survey of India is the Global\n\nStandard for systematic monitoring of audit tobacco use\n\n(smoking and smokeless) in the country and the survey\n\nconducted in the year 2016-17 by the International\n\nInstitute for Population Sciences (IIPS), Mumbai reveals\n\nthat almost 27 crores of adults in India used tobacco in\n\nsome form or the other. Among them, 20 crores use only\n\nsmokeless tobacco products.(24) It has been brought to the notice of this Court that\n\ntobacco is a prominent risk factor for 6 to 8 leading\n\ncauses     of     death     and   almost     40%     of   the   Non\n\nCommunicable          Diseases     (NCD)      including     cancers,\n\ncardiovascular diseases and lung disorders are directly\n\nattributable to tobacco use. The number of deaths every\n\nyear in India which is attributable to tobacco use is\n\nalmost 14 lakhs and 50% of cancers in males and 20%\n\ncancers in females can be directly attributed to tobacco\n\nuse   (ICMR       Study).   According   to    the   World     Health\n\nOrganization       (WHO)      Global    Report      on      "Tobacco\n\nAttributable Mortality, 2012", 7% of all deaths (for ages 30\n\nand over) in India are attributable to tobacco use. It has\n\nbeen further brought to the notice of this Court that a\n\nstudy    titled    "Economic      Burden     of   Tobacco    Related\n\nDiseases in India" (2014) commissioned by the Ministry of21Health and Family Welfare, the total economic costs\n\nattributable to tobacco use from all diseases in India in\n\nthe year 2011 for persons aged 35 to 69 years amounted\n\nto Rs.1,04,500/- crores. The estimated cost was 1.16% of\n\nthe GDP and was 12% more than the combined state and\n\ncentral government expenditures on health in 2011-12.\n\n\n(25) The respondent No.3 further stated that theFSS Act2006 is enacted with the objective to consolidate the laws\n\nrelating to food and for laying down standards for articles\n\nof food and to regulate their manufacture, storage,\n\ndistribution, sale and import, to ensure availability of safe\n\nand wholesome food for human consumption and for\n\nmatters connected therewith or incidental thereto. The\n\nrespondent No.3 has dealt with the salient provisions of\n\ntheFSS Act2006 and the definition of the word 'food' is\n\ndefined underSection 3(j)of the FSS Act 2006. It has been\n\nfurther stated that the Gutkas including tobacco and\n\ntobacco certainly fall within the definition of 'food' as it is\n\nintended for human consumption. It has been further\n\nstated that the Hon'ble Supreme Court in the case ofState\n\nof Tamil Nadu v. R.Krishnamurthy18has held that a product\n\nbe classified as 'food' in case it is used for human\n\nconsumption or in preparing human food.The respondent18(1980) 1 SCC 16722No.3 has further brought to the notice of this Court that\n\nthe Hon'ble Supreme Court in the case ofGodawat Pan\n\nMasala Products I.P., Limited v. Union of India19has held that\n\ngutka, pan masala and supari are food articles.Further,\n\nthe Allahabad High Court in the case of Manohar Lal v.\n\nState of U.P., (Criminal Revision No.318 of 1982) and in the\n\ncase ofKhedan Lal and Sons v. State of U.P.,20relying on the\n\ndecision of the Hon'ble Supreme Court in the case ofR.Krishnamurthy(supra), has held that 'chewing tobacco' is\n\nan article of food.(26) The respondent No.3 has further stated that the\n\nFood Safety Regulations, 2011 was notified on 01.08.2011\n\nin exercise of powers conferred underSection 92read withSection 26of the FSS Act 2006 andRegulation 2.3.4 of\n\nthe Food Safety Regulations, 2011 prohibit the use of\n\ntobacco and nicotine in all food products. It has been\n\nfurther stated that theFSS Act2006 also defines the word\n\n'ingredient' and 'food additive' and tobacco is certainly an\n\nadditive, which is commonly sold under various brand\n\nnames.(27) The respondent No.3 has brought to the notice of\n\nthis        Court      that   the   Hon'ble   Supreme   Court   in19(2004) 7 SCC 68201980 CriLJ 134623S.L.P.No.16308 of 2007, vide order dated 03.04.2013\n\ndirected   the   Secretaries,    Health     Department        of     all\n\nStates/Union     Territories    to   file   affidavits   of        total\n\ncompliance of the ban imposed on manufacturing and\n\nsale of gutka and pan masala with tobacco and/or\n\nnicotine. It has been further stated that in the light of the\n\naforesaid order passed by the Hon'ble Supreme Court, all\n\nthe State Governments/Union Territories have issued\n\nnecessary orders/Notifications underRegulation 2.3.4 or\n\nunderSection 30of the FSS Act 2006 banning the sale of\n\ngutka and pan masala (containing tobacco or nicotine).\n\n\n(28) The respondent No.3 has further stated that in order\n\nto circumvent the ban on the sale of gutka, the\n\nmanufacturers are selling pan masala (without tobacco)\n\nwith flavoured chewing tobacco in separate sachets but\n\noften conjoint and sold together by the same vendors from\n\nthe same premises, so that consumers can buy the pan\n\nmasala and flavoured chewing tobacco and mix them both\n\nand consume the same. It has been further stated that\n\ninstead of earlier 'ready to consume mixes', chewing\n\ntobacco companies are selling gutka in twin packs to be\n\nmixed as one. Reference has also been drawn towards the\n\norder passed by the Hon'ble Supreme Court in the case of\n\nCentral Areca-nut Marketing Corporation v. Union of India24(Transfer Case Civil No.1 of 2010, dated 23.09.2016)\n\ndirecting the Authorities to ensure total ban and its\n\ncompliance on manufacturing and sale of gutka and pan\n\nmasala with tobacco and/or nicotine. The respondents\n\nhave further stated that in the light of the Order passed\n\nby   the   Hon'ble   Supreme       Court,     the   letter   dated\n\n05.12.2016    was    issued   by    the     Ministry   of    Health\n\nrequesting all the State Governments/Union Territories to\n\npass necessary orders to ensure that the Order passed by\n\nthe Hon'ble Supreme Court has been complied with.\n\n\n(29) The respondent No.3 has further stated that the\n\nCOTPA 2003 is an Act enacted to discourage the use of\n\ntobacco with great emphasis on protection of children and\n\nyoung people from being addicted to the use of tobacco\n\nand prohibits smoking in public places, sale of tobacco\n\nproducts to minors and within 100 yards of any\n\neducational institution, direct and indirect advertisement,\n\npromotion and sponsorship of tobacco products and\n\nmandates display of pictorial health warnings on tobacco\n\nproduct packages. The respondent No.3 has further stated\n\nthat the petitioners' arguments on the subject that there\n\nis a conflict between the COTPA 2003 and theFSS Act2006 is misconstrued and they occupy different fields\n\naltogether.The respondent No.3 has placed reliance upon25the judgments of the Hon'ble Supreme Court inAjay\n\nKumar Banerjee v. Umed Singh21,Khoday Distilleries Limited v.\n\nState of Karnataka22,P.N.Krishnalal v. State of Kerala23,S.Prakash v. K.M.Kurian24,Allahabad Bank v. Canara Bank25,\n\nand Kerala Bar Hotels Association v. State of Kerala (Civil Appeal\n\nNo.4157 of 2015, dated 29.12.2015), Centre forPublic Interest\n\nLitigation v. Union of India (W.P. (C) No.681of 2004, dated\n\n22.10.2013), State of Maharastra v. Sayyed Subhan (Criminal\n\nNo.1195 of 2018, dated 20.09.2018), the         High Court of\n\nJharkhand at Ranchi in the case of Fariyaad Foundation v.\n\nGovernment of Jharkhand (W.P. (PIL) No.954 of 2019), the\n\nHigh Court of Madhya Pradesh, Indore Bench in the case\n\nof Amarchand Upadhyay v. Union of India (W.P.No.10998 of\n\n2012), the High Court of Patna in the case of Lal Babu\n\nYadav v. the State of Bihar (WP (Civil) No.10297 of 2012,\n\ndated 10.07.2012) and the High Court of Bombay in the\n\ncase of M/s.DhariwalIndustries Limited v. the State of\n\nMaharashtra (W.P.No.1631of 2012 and other connected\n\nmatters).(30) The respondent No.3 in the light of the various\n\nJudgments of the Hon'ble Supreme Court and some High\n\nCourtsreferred abovehas stated that the Notification\n\nissued by the State Government has been issued strictly21AIR 1984 SC 113022(1995) 1 SCC 574231995 Supp (2) SCC 18724AIR 1999 SC 209425AIR 2000 SC 153526in consonance with the statutory provisions governing the\n\nfield under theFSS Act2006 and the gutka containing\n\ntobacco and tobacco are great thereat to the public health.\n\nIt is having a grave negative impact on public health and\n\ntherefore, the State Government has rightly imposed\n\nreasonable restrictions in the matter of manufacture,\n\ndistribution, storage, transport and sale of gutka or pan\n\nmasala,   which   contains    tobacco   and   nicotine   as\n\ningredients and chewing tobacco products like chap\n\ntobacco, khaini, kharra, scented/flavoured tobacco. The\n\nrespondent No.3 has further stated that the petitioners\n\nhave not been able to make out any case before this Court\n\nand the restriction imposed by the State is a reasonable\n\nrestriction and does not warrant any interference.\n\n\n(31) The respondent No.6/Food Safety and Standards\n\nAuthority of India has also filed a detailed counter\n\naffidavit and it has been stated that theFSS Act2006 was\n\nenacted by the Parliament for laying down scientifically\n\nbased standards for articles of food and to regulate their\n\nmanufacture, storage, distribution, sale and import and to\n\nensure availability of safe and wholesome food for human\n\nconsumption. It has been further stated thatSection 92of\n\nthe FSS Act 2006 empowers the authority to make\n\nregulations with the previous approval of the Central27Government and after previous publication to carry out\n\nthe objects of theFSS Act2006 and in exercise of powers\n\nconferred,   the   Authority    notified   the   Food   Safety\n\nRegulations, 2011. The Regulations provide for prohibition\n\nand restrictions on sale of certain products. It has been\n\nfurther stated that as per the Food Safety Regulations,\n\n2011, the product should not contain any substance\n\nwhich is injurious to health and tobacco and nicotine\n\nshall not be used as an ingredient in any food product and\n\ntherefore, as reasonable restrictions have been imposed in\n\nthe interest of public at large, the question of interference\n\nby this Court in respect of the impugned Notification does\n\nnot arise. It has been further stated that the Food Safety\n\nRegulations, 2011 have been issued in accordance with\n\nlaw in exercise of powers conferred underSection 92read\n\nwithSection 16of the FSS Act 2006 and the Regulations\n\nprovide for no anti-caking agent shall be used in any food\n\nexcept where anti-caking agent is specifically permitted.\n\nAs per the Food Safety Regulations, 2011 use of anti-\n\ncaking agent in pan masala is not permitted.\n\n\n(32) The respondent No.6 has also stated that as per the\n\nmandate ofSection 89of the FSS Act 2006, the Act has\n\nthe overriding effect on all legislations including the\n\nCOTPA 2003 and the former takes precedence over the28latter Act. The respondent No.6 has alsoplaced reliance\n\nuponthe definition clause, which defines 'food' and it has\n\nbeen argued vehemently that pan masala with tobacco\n\nand tobacco certainly fall under the definition of 'food' as\n\nthey      are         intended   for   human   consumption.The\n\nrespondent No.6 has alsoplaced reliance uponthe\n\nJudgments of the Hon'ble Supreme Court in the case ofP.K.Tejani v. M.R.Dange26,R.Krishnamurthy(supra), Krishan\n\nGopal Sharma v. Government of NCT of Delhi27, Godawat Pan\n\nMasala Products I.P. Limited (supra), Laxmikant v. Union of\n\nIndia28 and the Judgment of the High Court of Kerala in\n\nW.P.No.12352 of 2012 and other connected matters.\n\n\n\n(33) The respondent No.6 has also brought to the notice\n\nof this Court that Minutes of the Expert Committee\n\nconstituted by the Ministry of Health and Family Welfare\n\nwhich has recommended a complete ban on gutka\n\ncontaining tobacco/tobacco products/tobacco. It has been\n\nstated that large number of people are dying out of cancer\n\nand the action taken by the State Government is in\n\nconsonance with the directions issued by the Hon'ble\n\nSupreme Court from time to time. Therefore, a prayer has\n\nbeen made for dismissal of the writ petitions.26(1974) 1 SCC 16727(1996) 4 SCC 51328(1997) 4 SCC 73929(34) Heard the learned counsel for the parties and\n\nperused the record. The writ petitions are being disposed\n\nof at admission stage with the consent of the parties.\n\n\n(35) The petitioners before this Court are aggrieved by\n\nNotification        No.505/FSS-1/2021,                dated   06.01.2021\n\nissued by the respondent No.3/Commissioner of Food\n\nSafety, Telangana in exercise of powers conferred underSection 30of the FSS Act 2006. The Notification dated\n\n06.01.2021 is reproduced as under:-"GOVERNMENT OF TELANGANA\n                      Office of the Commissioner of Food Safety,\n                     Directorate Institute of Preventive Medicine,\n               Public Health Labs, Food (Health) Administration,\n                                 Telangana State, Narayanaguda,\n                                            Hyderabad - 500 029.Food   Safety    and   Standards       - Imposition of\n                                        Act,   2006\n    prohibitionu/s 30(2)of the said Act on manufacture,\n    storage, distribution, transportation and sale of\n    Gutka/Pan masala which contains tobacco and nicotine\n    as ingredients and Chewing Tobacco products like chop\n    tobacco, pure tobacco, Khaini, Kharra, Scented\n    tobacco/Flavoured tobacco or by whatever name locally it\n    is called packed in sachets/pouches/package in the entire\n    State of Telangana - Orders - Issued.Ref: 1.Food Safety and Standards Act, 2006.2. Regulations 2.3.4 of FSS (Prohibition and\n                    Restriction on Sales) Regulations 2011.3. G.O.Ms.No.01 of Health, Medical & Family\n                    Welfare (C2) Dept., dated 04.01.2016.***\n           The Government of India has enactedFood Safety\n    and Standards Act2006(FSS Act) to regulate and monitor\n    the    manufacturing,        processing,      packing,    storage,\n    transport, distribution, sale of any food or food ingredient,\n    so as to ensure availability of safe and wholesome food for\n    human consumption.30Whereassection 3(1)(j)of FSS Act 2006 defines that\n"Food" means any substance, whether processed, partially\nprocessed or unprocessed, which is intended for human\nconsumption and includes primary food, to the extent\ndefined in clause 3 (ZK) genetically modified or engineered\nfood or food containing such ingredients, infant food,\npackaged drinking water, alcoholic drink, chewing gum,\nand any substance, including water used into the food\nduring its manufacture, preparation or treatment but does\nnot include any animal feed, live animals unless they are\nprepared or processed for placing on the market for\nhuman consumption, plants prior to harvesting, drugs\nand    medicinal      products,      cosmetics,    narcotic   or\npsychotropic substances.The Hon'ble Supreme Court of India inGodawat Pan\nMasala v. UoI(2004) 7 SCC 68, while dealing case on\nprohibition on sale of Gutka in the States on 02.08.2004\nvide Civil Appeal No.4674 of 2004 (SLP (C) No.24449 of\n2002) held that Gutka or panmasala having tobacco or\nnicotine are food items. Gutka/Panmasala which contain\ntobacco and nicotine as ingredients and Chewing Tobacco\nproducts like Chap Tobacco, Pure Tobacco, Khaini,\nKharra, Scented Tobacco/Flavoured Tobacco packed in\npouches/sachets/containers etc., or by whatever name it\nis called inherently falls within the definition of "food" as\ndefined underSection 3(1)(j)of the FSS Act, 2006.Scientific Reports/opinions of ICMR (Indian Council\nof Medical Research) and NIHFW (National Institute of\nHealth and Family Welfare) demonstrate the extremely\nharmful effects of consumption of Gutka/ Panmasala/\nChewing Tobacco such as Cancers (Oral) pre-malignant\nlesions/conditions)     -    Oesophageal    Cancer,    Stomach\nCancer, Pancreatic Cancer, Throat (pharynx and larynx)\ncancer, renal cancer, Non cancerous - deterioration of\nOral-dental   health,       Hypertension    &     Cardiovascular31diseases, Consumption of such products is injurious to\nhealth.As persection 18(1)(a)of the FSS Act 2006, it is the\nGovernment's endeavour to achieve an appropriate level of\nprotection of human life and health.Whereas regulation 2.3.4 of FSS (Prohibition and\nrestriction on sales) Regulations 2011 made under theFSS Act2006 mandates that tobacco and nicotine shall\nnot be used as ingredients in any food products.Whereas the Commissioner of Food Safety has the\npower coupled with duty to prohibit in the interest of\npublic health, the manufacture, storage, transportation,\ndistribution, sale of any articles of food, either in whole of\nthe state or any area or part thereof for such period, not\nexceeding one year as per clause (a) of sub-section (2) ofSection 30of FSS Act, 2006.Accordingly    the    following   notification    will   be\npublished in the Extraordinary issue of the Telangana\nState Gazette.NOTIFICATION\n\n\n      Notification No.505/FSS-1/2021 : In exercise of the\npowers conferred under clause (a) of Sub-section (2) ofSection 30of Food Safety and Standards Act, 2006 read\nwith 2.3.4 of Food Safety and Standards (Prohibition and\nRestriction on Sales) Regulation 2011 and in the interest\nof public health, the Commissioner of Food Safety,\nTelangana    State   hereby     prohibits   the    manufacture,\nstorage,    distribution,   transportation        and   sale   of\nGuitka/Pan masala which contains tobacco and nicotine,\nas ingredients and chewing Tobacco products like chap\nTobacco,    Pure     tobacco,    Khaini,    Kharra,     Scented\ntobacco/flavoured tobacco packed in pouches/sachets/\ncontainers etc., or by whatever name it is called in the32entire State of Telangana for a period of one year with\n    effect from 10th January, 2021."(36) The      petitioners        have       challenged   the    impugned\n\nNotification        on     the    ground         that    it    is    illegal,\n\nunconstitutional and ultra vires the COTPA 2003 and is\n\nalso in violation of natural justice and fair play. The\n\nundisputed facts of the case reveal that the Notification\n\nimposes prohibition of manufacture, storage, distribution,\n\ntransportation and sale of gutka/pan masala which\n\ncontains tobacco and nicotine as ingredients and chewing\n\ntobacco products like chap tobacco, pure tobacco, khaini,\n\nkharra, scented tobacco/flavoured tobacco or by whatever\n\nname locally it is called, packed in sachets/pouches/\n\npackages in the entire State of Telangana. Meaning\n\nthereby,      the        sachets/pouches          containing        scented\n\ntobacco/tobacco and/or pan masala, which contain\n\ntobacco and nicotine are the subject matter of the\n\nNotification.(37) It is an undisputed fact that the tobacco is the main\n\ncause of cancer and the statistics pertaining to tobacco\n\nrelated mortality and cancer are detailed as under:-"Global\n              According     to   the    World   Health   Organisation\n    (WHO), tobacco kills more than 8 million people each year.More than 7 million of those deaths are the result of direct33tobacco use while around 1.2 million are the result of non-\nsmokers being exposed to second-hand smoke.\n\n\nNational- According to the National Health Mission under\nthe Ministry of Health and Family Welfare, Government of\nIndia, mortality due to tobacco in India is established at\nupwards of 13.5 lakhs (Report on Global Adult Tobacco\nSurvey GAT 2, 2016-17). If the current trend continues\nand effective steps are not taken to control tobacco\nconsumption, it is estimated that by the year 2020,\ntobacco use will account for 13% of all deaths in India\nevery year.- According to Cancer Statistics, 2020: Report for\nNational Cancer Registry Programmes, India, based on\npopulation-based cancer registries (PBCR) data, almost\none-third of the cancers were known to be associated with\nthe use of tobacco in India. India State-level Disease\nBurden Initiative cancer collaborators estimated that\ntobacco use was the highest contributing risk factor for\ncancer in India.- Available estimates in India show that smoking-\nattributable annual deaths were about 930,000, while the\nsmokeless tobacco (SLT) attributable annual deaths were\nabout 350,000, together accounting for about 12,80,000\ndeaths per year or approximately 3500 deaths every day.\n(According to Jha P, Jacob B, Gajalakshmi V et al, A\nNationally Representative Case-Control Study of Smoking\nand Death in India. New England Journal of Medicine,\n2008; 358 and Sinha DN, Palipudi KM, Gupta PC, et al.\nSmokeless tobacco use: a meta-analysis of risk and\nattributable mortality estimates for India. Indian J Cancer.\n2014; 51 Suppl 1: S73-77).- As per the WHO Global Report (2012) on "Mortality\nattributable to tobacco', 7% of all deaths (for ages 30 and\nover) in India are attributable to tobacco.34Telangana-        The     age   adjusted    mortality     rate   (AAMR)     of\n    Hyderabad District - reported for 2014-16 - is 4.8 per\n    100,00 males and 2.0 per 100,000 females. Also, the\n    relative proportion of cancer sites associated with the use\n    of Tobacco in Hyderabad is 42.2% in males and 13.5% in\n    females. (According to ICMR-NCDIR, Report on Sites of\n    Cancer Associated with Tobacco use in India-Findings\n    from the National Cancer Registry Programme, 2021,\n    Bengaluru, India)-        As per ICMR-NCDIR, Profile of Cancer and Related\n    factors - Telangana (2021), the prevalence of current\n    tobacco use (smoking and/or smokeless) in adults over 15\n    years of age (for 2016) is as follows:Total - 17.8%          Males - 25.9%         Females - 9.8%"National Family Health Survey - 5 (2019-2021)-        The recent survey conducted by NFHS-5 reveals\n    that the tobacco usage among males across India was\n    38%, in rural areas accounting for 42.7% of users. The\n    urban users of tobacco among men and women accounted\n    for 28.8% and 5.4% respectively. The usage of tobacco is\n    resulting in various kinds of cancers like breast cancers,\n    cervical cancers and cancers of other organs.(38) The relevant statutory provisions under theFSS Act2006, which are necessary for proper adjudication of the\n\npresent writ petitions, are reproduced as under:-"3    (i)   "extraneous      matter"     means     any    matter\n    contained in an article of food which may be carried from\n    the raw materials, packaging materials or process systems\n    used for its manufacture or which is added to it, but such\n    matter does not render such article of food unsafe;3     (j)   "food"   means        any    substance,      whether\n    processed, partially processed or unprocessed, which is35intended for human consumption and includes primary\nfood, to the extent defined in clause 3 (ZK) genetically\nmodified or engineered food or food containing such\ningredients,   infant    food,    packaged      drinking    water,\nalcoholic   drink,   chewing     gum,    and    any    substance,\nincluding water used into the food during its manufacture,\npreparation or treatment but does not include any animal\nfeed, live animals unless they are prepared or processed\nfor placing on the market for human consumption, plants\nprior to harvesting, drugs and medicinal products,\ncosmetics, narcotic or psychotropic substances.Provided that the Central Government may declare,\nby notification in the Official Gazette, any other article as\nfood for the purposes of this Act having regards to its use,\nnature, substance or quality.3 (k) "food additive" means any substance not\nnormally consumed as a food by itself or used as a typical\ningredient of the food, whether or not it has nutritive\nvalue, the intentional additional of which to food for a\ntechnological (including organoleptic) purpose in the\nmanufacture, processing, preparation, treatment, packing,\npackaging, transport or holding of such food results, or\nmay   be    reasonably    expected      to   result   (directly   or\nindirectly), in it or its by-products becoming a component\nof or otherwise affecting the characteristics of such food\nbut does not include "contaminants" or substances added\nto food for maintaining or improving nutritional qualities;3 (y) "ingredient" means any substance, including a\nfood additive used in the manufacture or preparation of\nfood and present in the Final product, possibly in a\nmodified form;3 (zc) "manufacture" means a process or adoption or\nany treatment for conversion of ingredients into an article\nof food, which includes any sub-process, incidental or\nancillary to the manufacture of an article of food;363 (zd) "manufacturer" means a person engaged in\nthe business of manufacturing any article of food for sale\nand includes any person who obtains such article from\nanother person and packs and labels it for sale or only\nlabels it for such purposes;3 (zk) "primary food" means an article of food, being\na produce of agriculture or horticulture or animal\nhusbandry and dairying or aquaculture in its natural\nform, resulting from the growing, raising, cultivation,\npicking, harvesting, collection or catching in the hands of\na person other than a farmer or fisherman;16 (1) Duties and functions of Food Authority.- (1) It shall\n\nbe the duty of the Food Authority to regulate and monitor\nthe manufacture, processing, distribution, sale and import\nof food so as to ensure safe and wholesome food.18(1)(a) General principles to be followed in administration\nof Act.- The Central Government, the State Governments,\n\nthe Food Authority and other agencies, as the case may\nbe, while implementing the provisions of this Act shall be\nguided by the following principles, namely.-(1) (a) endeavour to achieve an appropriate level of\nprotection of human life and health and the protection of\nconsumers' interests, including fair practices in all kinds\nof food trade with reference to food safety standards and\npractices;26.    Responsibilities   of   the   food   business   operator.-(1) Every food business operator shall ensure that the\narticles of food satisfy the requirements of this Act and the\nrules and regulations made thereunder at all stages of\nproduction, processing, import, distribution and sale\nwithin the businesses under his control.(2) No food business operator shall himself or by an\nperson on his behalf manufacture, store, sell or distribute\nany article of food -(i) which is unsafe;37(ii) to (v) xxxxx30. Commissioner of Food Safety of the State.- (1) The\n\nState Government shall appoint the Commissioner of Food\nSafety for the State for efficient implementation of food\nsafety and standards and other requirements laid down\nunder this Act and the rules and regulations made\nthereunder.(2) The Commissioner of Food Safety shall perform\nall or any of the following functions, namely:-(a)     prohibit in the interest of public health, the\n              manufacture, storage, distribution or sale of\n              any article of food, either in the whole of the\n              State or any area or part thereof for such\n              period, not exceeding one year, as may be\n              specified in the order notified in this behalf\n              in the Official Gazette;(b)     carry out survey of the industrial units\n              engaged in the manufacture or processing of\n              food in the State to find out compliance by\n              such units of the standards notified by the\n              Food Authority for various articles of food;(c)    conduct or organise training programmes for\n              the    personnel          of   the   office      of    theCommissioner of Food Safety and, on a wider\n              scale, for different segments of food chain for\n              generating awareness on food safety;(d)    ensure        an         efficient   and         uniform\n              implementation of the standards and other\n              requirements as specified and also ensure a\n              high standard of objectivity, accountability,\n              practicability, transparency and credibility;(e)    sanction prosecution for offences punishable\n              with imprisonment under this Act;(f)    such        other    functions       as    the        State\n              Government may, in consultation with the\n              Food Authority, prescribe.38(3) The Commissioner of food Safety may, by Order,\ndelegate, subject to such conditions and restrictions as\nmay be specified in the Order, such of his powers and\nfunctions under this Act (except the power to appoint\nDesignated Officer, Food Safety Officer and Food Analyst)\nas he may deem necessary or expedient to any officer\nsubordinate to him.97. Repeal and savings.- (1) With effect from such date\n\nas the Central Government may appoint in this behalf, the\nenactment and orders specified in the Second Schedule\nshall stand repealed:Provided that such repeal shall not affect-(i)      the previous operations of the enactment\n                and orders under repeal or anything duly\n                done or suffered thereunder; or(ii)     any right, privilege, obligation or liability\n                acquired, accrued or incurred under any of\n                the enactment or Orders under repeal; or(iii)    any     penalty,    forfeiture         or    punishment\n                incurred     in     respect       of        any     offences\n                committed     against       the        enactment        and\n                Orders under repeal; or(iv)     any investigation or remedy in respect of any\n                such penalty, forfeiture or punishment and\n                any such investigation, legal proceedings or\n                remedy may be instituted, continued or\n                enforced and any such penalty, forfeiture or\n                punishment may be imposed, as if this Act\n                had not been passed:(2) If there is any other law for the time being in force in\nany State, corresponding to this Act, the same shall upon\nthe commencement of this Act, stand repealed and in\nsuch case, the provisions ofsection 6of the General\nClauses Act, 1897 (10 of 1897) shall apply as if such\nprovisions of the State law had been repealed.\n (3) Notwithstanding the repeal of the aforesaid enactment\nand   Orders,     the    licenses       issued    under           any   such39enactment or Order, which are in force on the date of\n      commencement of this Act, shall continue to be in force\n      till the date of their expiry for all purposes, as if they had\n      been issued under the provisions of this Act or the rules\n      or regulations made thereunder.(4) Notwithstanding anything contained in any other law\n      for the time being in force, no court shall take cognizance\n      of an offence under the repealed Act or Orders after the\n      expiry of a period of three years from the date of the\n      commencement of this Act."(39) The aforesaid statutory provisions make it very clear\n\nthat 'food' as defined underSection 3(j)of FSS Act 2006,\n\nmeans      any    substance,      whether      processed,     partially\n\nprocessed or unprocessed, which is intended for human\n\nconsumption and includes primary food, to the extent\n\ndefined in clause 3 (ZK) genetically modified or engineered\n\nfood or food containing such ingredients, infant food,\n\npackaged drinking water, alcoholic drink, chewing gum,\n\nand any substance, including water used into the food\n\nduring its manufacture, preparation or treatment but does\n\nnot include any animal feed, live animals unless they are\n\nprepared or processed for placing on the market for\n\nhuman consumption, plants prior to harvesting, drugs\n\nand      medicinal      products,       cosmetics,      narcotic       or\n\npsychotropic substances. Keeping in view the aforesaid\n\ndefinition of 'food', which is a very wide and exhaustive\n\ndefinition and includes any substance whether processed,40partially processed or unprocessed, which is intended for\n\nhuman       consumption,        certainly    includes          smokeless\n\ntobacco products like gutka, pan masala, kharra, khaini\n\nor    any     other       similar        product        like    chewing\n\ntobacco/flavoured tobacco within the definition of 'food'\n\nunder theFSS Act2006.(40) The     Hon'ble      Supreme        Court     in    the    case   ofR.Krishnamurthy(supra) has held that all that is required\n\nto classify a product as 'food' is that it has to be used\n\ncommonly for human consumption or in preparation of\n\nhuman food.Not only this, the Hon'ble Supreme Court in\n\nthe case ofGodawat Pan Masala Products(supra) has held\n\nthat gutka, pan masala and supari as food articles.The\n\nAllahabad High Court in the case of Manohar Lal v. State of\n\nU.P., (Criminal Revision No.318 of 1982) and in the case ofKhedan Lal and Sons(supra) has held that 'chewing tobacco'\n\nis an article of food.(41) The Food Safety Regulations, 2011 was notified on\n\n01.08.2011 in exercise of powers conferred underSection\n\n92read withSection 26of the FSS Act 2006 andRegulation    2.3.4      of   the   said    Regulations        expressly\n\nprohibits use of tobacco and nicotine in all food products\n\nand the same is reproduced as under.41"2.3.4 Product not to contain any substance which\n    may be injurious to health: Tobacco and nicotine shall not\n    be used as ingredients in any food products."(42) Not only this, theFSS Act2006 defined 'ingredient'\n\nand 'food additive' and therefore, gutka/pan masala\n\nwhich contains tobacco and other kinds of tobacco\n\nproducts like chap tobacco, pure tobacco, khaini, kharra,\n\nscented tobacco or flavoured tobacco do fall within the\n\ndefinition of 'food'.(43) The Hon'ble Supreme Court in S.L.P. No.16308 of\n\n2007, dated 03.04.2013 has passed the following order."Ms. Indira Jaisingh, learned Additional Solicitor\n    General invited the Court's attention to notifications\n    issued    by    the    Government       of   23   States    and   the\n    Administrators        of    5   Union   Territories   for   imposing\n    complete ban on Gutkha and Pan Masala with tobacco\n    and/or nicotine and then stated that notwithstanding the\n    ban, the manufacturers have devised a subterfuge for\n    selling Gutkha and Pan Masala in separate pouches and\n    in this manner the ban is being flouted.Ms. Indira Jaisingh also placed before the Court\n    xerox    copy    of        D.P.No.P.16012/12/11-Part        I   dated\n    27.08.2012 sent by the Special Secretary, Ministry of\n    Health and Family Welfare, Government of India to the\n    Chief Secretaries of all the States except the States of\n    Madhya Pradesh, Kerala, Bihar, Rajasthan, Maharashtra,\n    Haryana, Chattisgarh and Jharkhand and submitted that\n    the Court may call upon the remaining States and Union\n    Territories to issue necessary notifications.42In view of the statement made by the learned\n    Additional Solicitor General, we order issue of notice to the\n    Chief Secretaries of the States and the Administrators of\n    the Union Territories which have so far not issued\n    notification in terms of 2006 Act to apprise this Court with\n    the reasons as to why they have not taken action\n    pursuant to letter dated 27.08.2012.We also direct the Secretaries, Health Department of\n    all the 23 States and 5 Union Territories to file their\n    affidavits within four weeks on the issue of total\n    compliance of the ban imposed on manufacturing and sale\n    of Gutkha and Pan Masala with tobacco and/or nicotine.Put up on 03.05.2013.The Registry is directed to send copies of this order\n    to the Chief Secretaries and the Secretaries, Health\n    Department    as    also   the    Administrators   of   Union\n    Territories, Secretaries of the Central and State Pollution\n    Control Board. Copies be also sent to the Commissioners\n    of 9 Municipal Corporations named hereinabove. The\n    copies of order be sent by fax within four days from\n    today."(44) The aforesaid order makes it very clear that the\n\nSecretaries,   Health     Department        of   all   States/Union\n\nTerritories were directed to report compliance of complete\n\nban in respect of manufacturing and sale of gutka and\n\npan masala with tobacco and/or nicotine.\n\n\n(45) Various States and Union Territories have issued\n\nnecessary orders/notifications underRegulation 2.3.4 of\n\nthe Food Safety Regulations, 2011 read withSection 30of43theFSS Act2006 banning sale of gutka and pan masala\n\n(containing tobacco or nicotine). It is unfortunate that in\n\nspite of issuance of such notifications, in order to\n\ncircumvent the ban of sale of gutka, the manufacturers\n\nare selling pan masala (without tobacco) with flavoured\n\nchewing tobacco in separate sachets and they are sold\n\ntogether by the same vendor in the same premises so that\n\nthe consumer can buy pan masala and the flavoured\n\nchewing tobacco, mix them and consume them. They are\n\nbeing sold in twin packs to be mixed as one.\n\n\n(46) Learned counsel for the petitioners has argued before\n\nthis Court that there is a conflict between the COTPA\n\n2003 and theFSS Act2006 and no impugned Notification\n\ncould have been issued under theFSS Act2006. The\n\narguments canvassed by the learned counsel for the\n\npetitioners are misplaced. The COTPA 2003 has been\n\nenacted   with   an     aim   and    object   to   prohibit   the\n\nadvertisement of, and to provide for the regulation of trade\n\nand   commerce        in,   and     production,    supply     and\n\ndistribution of, cigarettes and other tobacco products with\n\nan aim to discourage the use or consumption of tobacco.\n\nThe object for theFSS Act2006 is to ensure safe and\n\nwholesome food for the people. The primary concern and\n\npurpose of theFSS Act2006 is that promotion of public44health and protection of the right to life of the citizens of\n\nthe country and the purpose, aim and the object of the\n\nFood Safety Regulations, 2011 is to ensure safety/health\n\nof citizens of this country by prohibiting any article of food\n\nwhich are injurious to the health of general public. It is an\n\nundisputed fact that tobacco products which are subject\n\nmatter of the impugned Notification are injurious to\n\ngeneral health of the public.(47) Learned counsel for the petitioners have argued\n\nbefore this Court that there is a conflict between theFSS\n\nAct2006 and COTPA 2003.Section 89of the FSS Act\n\n2006 makes it very clear that it has overriding effect of all\n\nthe legislations including the COTPA 2003.The FSS Act2006 has been enacted later to the COTPA 2003 and\n\ntherefore, theFSS Act2006 will prevail over the COTPA\n\n2003. The law laid on the aforesaid issue is no longer res\n\nintegra. The Hon'ble Supreme Court inAllahabad Bank(supra),Anay Kumar Banerjee(supra) andS.Prakash(supra)\n\nhas held as under:-"a. Where two Central Acts appear to be seemingly\n    in conflict with each other, the endeavour of Court should\n    be to harmonize the two Acts seemingly in conflict.b. Where there is a direct conflict (repugnancy)\n    between two special Acts, both being special laws, the\n    following rules shall apply:(i) The later Act will prevail over the earlier Act.45(ii) If there is a provision in one of the Acts giving\n           overriding effect then that Act will prevail.(iii) A later Act, even if it is a general Act, can prevail\n           over an earlier special Act, in the case of a\n           repugnancy if there is no express provision to the\n           contrary in the earlier special Act."(48) The     Hon'ble      Supreme        Court     in    the    case     ofR.Krishnamurthy(supra) has held as under:-"7. According to the definition of "food" which we\n    have extracted above, for the purposes of the Act, any\n    article used as food or drink for human consumption and\n    any article which ordinarily enters into or is used in the\n    composition or preparation of human food is "food". It is\n    not necessary that it is intended for human consumption\n    or for preparation of human food. It is also irrelevant that\n    it is described or exhibited as intended for some other use.\n    It is enough if the article is generally or commonly used\n    for human consumption or in the preparation of human\n    food. It is notorious that there are, unfortunately, in our\n    vast country, large segments of population, who, living as\n    they do, far beneath ordinary subsistence level, are ready\n    to consume that which may otherwise be thought as not\n    fit for human consumption. In order to keep body and\n    soul together, they are often tempted to buy and use as\n    food, articles which are adulterated and even unfit for\n    human consumption but which are sold at inviting prices,\n    under the pretence or without pretence that they are\n    intended to be used for purposes other than human\n    consumption. It is to prevent the exploitation and self-\n    destruction of these poor, ignorant and illiterate persons\n    that the definition of "food" is couched in such terms as\n    not to take into account whether an article is intended for\n    human consumption or not. In order to be "food" for the\n    purposes of the Act, an article need not be "fit" for human\n    consumption; it need not be described or exhibited as\n    intended for human consumption; it may even be46otherwise described or exhibited; it need not even be\n    necessarily intended for human consumption; it is enough\n    if   it   is   generally   or   commonly   used     for   human\n    consumption or in the preparation of human food. Where\n    an article is generally or commonly not used for human\n    consumption or in the preparation of human food but for\n    some other purpose, notwithstanding that it may be\n    capable of being used, on rare occasions, for human\n    consumption or in the preparation of human food, it may\n    be said, depending on the facts and circumstances of the\n    case, that it is not "food". In such a case the question\n    whether it is intended for human consumption or in the\n    preparation of human food may become material. But\n    where the article is one which is generally or commonly\n    used for human consumption or in the preparation of\n    human food, there can be no question but that the article\n    is "food". Gingerly oil, mixed or not with groundnut oil or\n    some other oil, whether described or exhibited as an\n    article of food for human consumption or as an article for\n    external use only is "food" within the meaning of the\n    definition contained inSection 2(v)of the Act."(49) Keeping in view the aforesaid definition, the articles\n\nmentioned in the impugned Notification are certainly\n\nincluded within the definition of 'food' and this Court does\n\nnot find any reason to interfere with the impugned\n\nNotification.(50) Learned counsel for the petitioners has placed heavy\n\nreliance upon the Judgment delivered in the case ofGodawat Pan Masala Products(supra). However, the said\n\nJudgment was delivered prior to enactment of theFSS Act472006         and        the   Regulations         made         thereunder.         The\n\ndefinition         of     'food'    under      thePrevention      of    Food\n\nAdulteration Act, 1954and theFSS Act2006 are\n\nreproduced as under:-"Definition of 'food' under thePrevention of Food\n    Adulteration Act, 1954:2(v) "food" means any article used as food or drink\n    for human consumption other than drugs and water and\n    includes-(a)              any article which ordinarily enters into, or is\n                        used in the composition or preparation of,\n                        human food,(b)              any flavouring matter or condiments, and(c)              any    other    article        which      the   Central\n                        Government may, having regard to its use,\n                        nature,    substance      or   quality,    declare,   by\n                        notification in the Official Gazette, as food for\n                        the purposes of this Act.Definition of 'food' under theFSS Act2006:-"3 (j) any substance, whether processed, partially\n    processed or unprocessed, which is intended for human\n    consumption and includes primary food, to the extent\n    defined in clause 3 (ZK) genetically modified or engineered\n    food or food containing such ingredients, infant food,\n    packaged drinking water, alcoholic drink, chewing gum,\n    and any substance, including water used into the food\n    during its manufacture, preparation or treatment but does\n    not include any animal feed, live animals unless they are\n    prepared or processed for placing on the market for\n    human consumption, plants prior to harvesting, drugs\n    and        medicinal          products,    cosmetics,         narcotic    or\n    psychotropic substances;Provided that the Central Government may declare,\n    by notification in the Official Gazette, any other article as48food for the purposes of this Act having regards to its use,\n       nature, substance or quality."(51)    The definition of 'food' under theFSS Act2006 is a\n\nvery wide and exhaustive definition and as per the\n\ndefinition under theFSS Act2006, any substance, which\n\nis intended for human consumption is included in the\n\ndefinition of 'food'. Not only this, even in the case ofGodawat Pan Masala Products(supra), the Hon'ble Supreme\n\nCourt has held that pan masala or gutka to be covered\n\nunder the definition of 'food'. However, only on a limited\n\nissue of jurisdiction, it was held that the power of\n\nprohibition is only vested with the Central Government\n\nand not with the State Food and Health Authorities. The\n\ndefinition of 'food' has witnessed a sea change and\n\nkeeping in viewSection 89of the FSS Act 2006, as theFSS Act2006 is having overriding effect over the other\n\nstatutes, the respondent No.3/ Commissioner of Food\n\nSafety, Telangana was well within his competence to issue\n\nthe impugned Notification banning the food items which\n\nare subject matter of the Notification.The Hon'ble\n\nSupreme Court in the case of Laxmikant (supra), held as\n\nunder:-"10. Therefore, the International Conference held\n       in collaboration with the World Health Organisation was of\n       the opinion that the ban on use of tobacco in toothpaste\n       and toothpowder should totally be imposed since it is49prone to cancer. Under these circumstances, the view\n    taken    by   the   Government     of   India   imposing   total\n    prohibition on the use of tobacco in the preparation of\n    toothpowder and toothpaste is well justified in the public\n    interest covered byArticle 19(6)of the Constitution,\n    though it offends the right to carry on trade guaranteed\n    underArticle 19(1)of the Constitution. The imposition of\n    total ban is in the public interest."(52) In the aforesaid case, total ban on use of tobacco in\n\ntoothpaste and toothpowder was upheld by the Hon'ble\n\nSupreme Court even though offended the right to carry on\n\ntrade guaranteed underArticle 19(1)of the Constitution of\n\nIndia as the imposition of ban was on public interest.\n\n\n(53) The matter relating to imposition of restrictions on\n\nsale of pan masala containing tobacco and other tobacco\n\nproducts was considered by the Bombay High Court in the\n\ncase of M/s.DhariwalIndustries Limited(supra). A prayer\n\nwas also made to declareRegulation 2.3.4 andRegulation\n\n3.1.7 of the Food Safety Regulations, 2011 as ultra vires\n\nand a prayer was also made for granting an interim relief.\n\nVarious grounds were raised before the Division Bench of\n\nthe Bombay High Court for grant of stay and the Bombay\n\nHigh Court in paragraph 61 has held as under:-"61. After taking into consideration the provisions ofPrevention of Food Adulteration Act, 1954and the Rules\n    thereunder,Food Safety and Standard Act, 2006, the\n    Regulations made thereunder, the Cigarettes Act, 2003,\n    the judgment of the Supreme Court in Ghodawat case and50the material on record, and after considering the rival\n        submissions and the decisions cited at the Bar, we are of\n        the view that this is not a fit case for granting any of the\n        interim reliefs prayed for by the petitioners. Hence, prayer\n        for interim stay against the implementation of the\n        impugned statutory order dated 19th July 2021 issued by\n        the Food Safety Commissioner, Maharashtra State in\n        public interest in exercise of the power conferred bySection 30(2)(a)of the Food Safety and Standards Act,\n        2006 is rejected."(54) No interim relief was granted in respect of the\n\nRegulations. Challenges were made throughout India and\n\nvarious orders have been passed by the State of Telangana\n\nby which a prayer for grant of interim relief was rejected.\n\nThe Bombay High Court in its recent Judgment in the\n\ncase ofMohammad Yamin Naeem Mohammad v. State of\n\nMaharashtra29, in similar circumstances, has exhaustively\n\ndealt with legislative competence of the State and the\n\nrestrictions imposed by the State Government. Paragraphs\n\n40 to 45 of the said Judgment are reproduced as under:-"40. A lot has been said about COPTA, holding the\n        field as against the FSSA. In this regard, it is material to\n        note, that COPTA was enacted on 18/5/2003, in whichSection 3 (p)defines "tobacco products" to mean the\n        products specified in the schedule. The schedule at Serial\n        No. 8, specifies Pan Masala or any chewing material\n        having tobacco as one of its ingredients (by whatever\n        named called) and at Serial No. 8 specifies Gutkha. To\n        understand basic difference between the provisions of\n        COPTA and FSSA, it is necessary to consider what is292021 SCC OnLine Bom 2651contemplated bySections 5,6and7of COTPA, which for\nready reference are reproduced as under:--5. Prohibition of advertisement of cigarettes and other\ntobacco products.-(1) No person engaged in, or purported to be engaged in\nthe production, supply or distribution of cigarettes or any\nother tobacco products shall advertise and no person\nhaving control over a medium shall cause to be advertised\ncigarettes or any other tobacco products through that\nmedium         and   no       person        shall   take    part    in   any\nadvertisement which directly or indirectly suggests or\npromotes the use or consumption of cigarettes or any\nother tobacco products.(2) No person, for any direct or indirect pecuniary benefit,\nshall--(a)     display, cause to display, or permit or\n                 authorise to display any advertisement of\n                 cigarettes or any other tobacco product; or(b)     sell or cause to sell, or permit or authorise to\n                 sell     a    film    or      video     tape   containing\n                 advertisement of cigarettes or any other\n                 tobacco product; or(c)     distribute, cause to distribute, or permit or\n                 authorise to distribute to the public any\n                 leaflet, hand-bill or document which is or\n                 which        contains         an      advertisement      of\n                 cigarettes or any other tobacco product; or(d)     erect, exhibit, fix or retain upon or over any\n                 land, building, wall, hoarding, frame, post or\n                 structure or upon or in any vehicle or shall\n                 display in any manner whatsoever in any\n                 place any advertisement of cigarettes or any\n                 other tobacco product:Provided that this sub-section shall not apply in\n relation to--(a)     an advertisement of cigarettes or any other\n                 tobacco       product         in   or     on   a   package52containing cigarettes or any other tobacco\n                product;(b)     advertisement of cigarettes or any other\n                tobacco product which is displayed at the\n                entrance or inside a warehouse or a shop\n                where cigarettes and any other tobacco\n                products are offered for distribution or sale.\n (3) No person, shall, under a contract or otherwise\npromote or agree to promote the use or consumption of--(a)     cigarettes or any other tobacco product; or(b)     any trade mark or brand name of cigarettes\n                or any other tobacco product in exchange for\n                a sponsorship, gift, prize or scholarship\n                given or agreed to be given by another\n                person.6. Prohibition on sale of cigarette or other tobacco products\nto a person below the age of eighteen years and in particular\narea.-No person shall sell, offer for sale, or permit sale of,\n\ncigarette or any other tobacco product- (a) to any person\nwho is under eighteen years of age, and (b) in an area\nwithin a radius of one hundred yards of any educational\ninstitution.7. Restrictions on trade and commerce in, and production,\nsupply and distribution of cigarettes and other tobacco products.-\n  (1) No person shall, directly or indirectly, produce,\n  supply or distribute cigarettes or any other tobacco\n  products unless every package of cigarettes or any\n  other       tobacco     products   produced,     supplied    or\n  distributed by him bears thereon, or on its label [such\n  specified warning including a pictorial warning as may\n  be prescribed.(2)   No person shall carry on trade or commerce in\n  cigarettes or any other tobacco products unless every\n  package of cigarettes or any other tobacco products\n  sold, supplied or distributed by him bears thereon, or\n  on its label, the specified warning.(3) No person shall import cigarettes or any other\n  tobacco products for distribution or supply for a53valuable consideration or for sale in India unless every\n  package of cigarettes or any other tobacco products so\n  imported by him bears thereon, or on its label, the\n  specified warning.(4) The specified warning shall appear on not less than\n  one of the largest panels of the package in which\n  cigarettes or any other tobacco products have been\n  packed for distribution, sale or supply for a valuable\n  consideration.(5) No person shall, directly or indirectly, produce,\n  supply or distribute cigarettes or any other tobacco\n  products unless every package of cigarettes or any\n  other        tobacco   products    produced,     supplied   or\n  distributed by him indicates thereon, or on its label, the\n  nicotine and tar contents on each cigarette or as the\n  case may be on other tobacco products along with the\n  maximum permissible limits thereof:Provided that the nicotine and tar contents shall not\n exceed the maximum permissible quantity thereof as\n may be prescribed by rules made under this Act.41. It would thus be apparent thatSection 5deals with\nprohibition of advertisement of cigarettes and other\ntobacco products;Section 6deals with prohibition on sale\nto person below the age of 18 years and in particular area;Section 7deals with restrictions on trade and commerce\nin, production, supply and distribution of cigarettes and\nother products, unless every package bears the specified\nwarning;Section 8provides the manner in which specified\nwarning shall be made;Section 9provides the language of\nthe warning;Section 10provides size of letters and figures\nof the warning;Section 11provides the testing laboratory\nfor nicotine and tar contents;Section 13provides for the\npower     to    seize,   whereasSection   14provides   for\nconfiscation;Section 15speaks of an option to pay cost in\nlieu of confiscation;Section 17provides for adjudication;Section 18provides for an opportunity based upon the54principles of natural justice;Section 18provides for an\nappeal. The other provisions provide for punishment and\nforfeiture. What is material to be noted is that COPTA has\nnot been given any overriding effect upon any other law,\nholding the field or which may be enacted. The regulatory\nmechanism in COPTA is restricted to ensuring that the\nsale, storage, distribution, of cigarettes and other tobacco\nproducts is not without the warning label and is to\npersons above the restricted age and to discourage the use\nof tobacco. COPTA does not deal with the long term effects\nof smoking and consumption of tobacco and other\nproducts on the health of citizens.42. As against this, the FSSA is a more comprehensive\nAct, dealing with the larger issue of Safety and Standards\nof Food in the country and in view ofRegulation 2.3.4,\nprohibiting use of tobacco and nicotine as ingredients in\nany food products in the Food Safety and Standards\n(Prohibition and Restrictions On Sales) Regulations, 2011;\nby including Pan Masala inRegulation 2.11.5, Anti-caking\nagents inRegulation 3.1.7 in the Food Safety and\nStandards (Food Products Standards and Food Additives)\nRegulations, 2011, has included tobacco and tobacco\nproducts, including Gutkha and Pan Masala within the\ndefinition of food as enumerated inSection 3 (j)of the\nFSSA.43.In fact, inRaju Laxman Pachapure v. The State of\nKarnataka, [(2012) 2 FAC 378] itself, relied upon by\nMr. Bhangde, learned Senior Counsel for the petitioners,\nthe Court, while considering the provisions of thePrevention of Food Adulteration Act, 1954, the harbinger\nof the FSSA, in juxtaposition with those of COPTA, placing\nreliance   upon     the    judgment     inGodawat      Pan\nMasala(supra) noticed the difference between the two\nenactments, as under:"25. It is true the Apex Court inGodawat Pan\n Masala's case held that mere traces of magnesium55carbonate formed during consumption of product along\n with lime cannot be banned, but in the instant case\n anticaking agent viz., magnesium carbonate is not\n found during consumption but the analytical report\n discloses that magnesium carbonate is contained in the\n very sample which, in our considered opinion may be\n either externally added or present in the raw materials.\n Whatsoever the case may be, the report discloses that\n there is usage of anticaking agent viz., magnesium\n carbonate in the food article in question namely gutka.\n That apart Supreme Court in the very same decision\n held that the provisions of PFA Rules framed and\n directions issued thereunder cannot be said as not\n applicable merely because licence is contemplated for\n manufacture of gutka under the Cigarettes and other\n Tobacco Products (Prohibition of Trade and Commerce,\n Production, Supply and Distribution) Act, 2003.The\n PFA   Actwas      legislated    for    the   prevention    of\n adulteration of food whereas Cigarettes and other\n Tobacco Products (Prohibition of Trade and Commerce,\n Production, Supply and Distribution) Act, 2003 is\n intended to prohibit advertising and to regulate the\n trade and as such there is no conflict between the\n legislative objects between the two enactments."(emphasis supplied)44.Section     89of   the     FSSA    being   material    is\nreproduced as under:"89. Overriding effect of this Act over all other food related\n laws.-- The provisions of this Act shall have effect\n\n notwithstanding       anything       inconsistent     therewith\n contained in any other law for the time being in force or\n in any instrument having effect by virtue of any law\n other than this Act."(emphasis supplied)45. It is thus material to note thatSection 89of the\nFSSA, gives the provisions of the FSSA, an overriding56effect on all other food related laws. Once it is held that\n    tobacco and other products, fall within the definition of\n    food as enumerated inSection 3 (j)of the FSSA, the\n    overriding effect ofSection 89of the FSSA, would make\n    the FSSA hold the field instead of COPTA. Joshy\n    K.V. v. State of Kerala, Rep. by the Secretary to the\n    Department of Health and Welfare, Government Secretariat,\n    Thiruvananthapuram [(2013) 1 KLJ 428], Omkar Agency,\n    through itsProprietor v. the Food Safety and Standards\n    Authority of India[2016 SCC OnLine Pat 9231] and Sanjay\n    Anjay Stores v. the Union of India, [2017 SCC OnLine Cal\n    16323], which take a contrary view, according to us, do\n    not lay down the correct law.(55) The Division Bench of the Bombay High Court has\n\ndealt with all the issues, similar to the issues raised in the\n\npresent writ petitions. In the considered opinion of this\n\nCourt, the question of interference by this Court in\n\nrespect of Notification which is bound to save human lives\n\ncannot be faulted with in any manner. The entire globe is\n\nfacing COVID-19 pandemic and the death rate on account\n\nof gutka/pan masala and other tobacco products is more\n\nthan the deaths which are taking place on account of\n\npandemic. The people are suffering from cancer and other\n\ndiseases and the restriction imposed is in larger public\n\ninterest and is a reasonable restriction and in no way\n\noffends the right to carry on trade guaranteed under the\n\nConstitution.57(56) In the light of the aforesaid, this Court does not find\n\nany reason to interfere with the impugned Notification and\n\nresultantly,    the    writ   petitions     are   dismissed.\n\nMiscellaneous petitions, if any pending, shall stand\n\ndismissed. There shall be no order as to costs._____________________________\n                               SATISH CHANDRA SHARMA, CJ\n\n\n\n                                   __________________________\n                                    A.RAJASHEKER REDDY, J\n\n\n30.11.2021\nPln\n\nNote: LR copy be marked.(By Order)\n      Pln