Hookah Bars | Food Safety Dept, Municipal Corporations Cannot Issue Licences; Police Can Enforce COTPA: Allahabad High Court

The Allahabad High Court has held that neither the Food Safety and Drug Administration nor the Municipal Corporation has jurisdiction to issue licences for or otherwise regulate hookah bars in Uttar Pradesh.

The bench, however, clarified that the police are empowered under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 to search, seize, confiscate and impose penalties on establishments contravening it.

The bench of Justice Shekhar B. Saraf and Justice Abdhesh Kumar Chaudhary held

“One need not join issue with this argument as it is clear that FSSA deals only with food for human consumption for nutritional value and includes the primary food, while tobacco products are neither consumed for nutritional value nor is a primary food. Furthermore, the municipal corporation does not contain any provision to issue a separate hookah license, hence, we are of the view that authorities working under the municipal corporation have no jurisdiction with regard to regulating the operation of hookah bars.”

Over fifty establishments holding food service restaurant licences under the Food Safety and Standards Act, 2006 complained that the police were preventing them from running hookah bars in the dedicated smoking spaces in their premises.

The grievance followed a police raid and a preventive order under Section 133 CrPC passed by the Additional Commissioner of Police, recording that hookah bars were operating without licence and that hookah was being served to minors.

Petitioners submitted that the licensing scheme under Section 31 of the 2006 Act requires licences only of food business operators, confining Food Safety Officers to food-related activities within an eating establishment, and that a smoking space is an ancillary facility governed by tobacco-specific legislation rather than municipal licensing statutes.

Insistence by municipal authorities on a separate hookah licence, they argued, has no statutory foundation and is a colourable exercise of power, and both sets of authorities had admitted their want of jurisdiction in their counter affidavits.

On the police, it was submitted that the power of search under Section 12 of the 2003 Act arises only where an officer not below the rank of Sub-Inspector records a reason to suspect that a specific offence has been committed, so that a raid cannot rest merely on the existence of a smoking area.

The Court agreed on jurisdiction, and rejected the submission on police powers outright.

“The provisions of COTPA especially sections 12, 13, 15 clearly demonstrates the power granted to the police authorities to ensure compliance of the mandate of section 4 and such compliance would include the power to search, seize, confiscate and impose penalty upon the establishments for disobeying the mandate therein.”

It recorded that some of the raids had found hookah tobacco being consumed in open spaces within the precincts of the establishments, and hookah being served to minors in complete disregard of Section 6 of the Act, which forbids the sale of tobacco products to persons under eighteen.

Setting out the principles that emerged, the Court recorded:

“Food and Safety Department as well as Municipal Corporation lacks jurisdiction to issue licenses for regulating hookah bars in the State of Uttar Pradesh.”

Having also held that the service of hookah within a Designated Smoking Area is absolutely prohibited under Rule 4(3) of the Prohibition of Smoking in Public Places Rules, 2008 as amended in 2017, the Court dismissed all the writ petitions and directed that a copy of the judgment be sent to the Chief Secretary and the Director General of Police.

Case Title - M/s Aftek Foods and Beverages Pvt. Ltd. Thru. Auth. Signatory Vishnu Kumar Gupta and another vS. State of U.P. Thru. Addl. Chief Secy. Deptt. of Food Safety and Drug Admin. U.P. Lko. and others