State Commissioner Of Food Safety Has No Authority To Impose Ban On Manufacture And Sale Of Gutka, Pan Masala: Andhra Pradesh High Court

The Andhra Pradesh High Court has held that Commissioner of Food Safety, Andhra Pradesh is neither authorized nor having any jurisdiction to issue the notification, prohibiting the manufacture and sale of Tobacco Pan Masala in exercise of powers under Section 30(2)(a) of the Food Safety and Standard Act, 2006 (FSSA, 2006).

The bench of Chief Justice Prashant Kumar Mishra and Justice D.V.S.S. Somayajulu said that when the ban on Tobacco and Tobacco products has not been imposed directly by the Parliament, the authorities under the FSSA, 2006, cannot do so indirectly, as it has not been intended to be done by the Parliament directly.

A batch of writ petitions were filed challenging the constitutional validity of the notifications issued by the Commissioner of Food Safety, by invoking Section 30(2)(a) of FSSA, 2006 thereby prohibiting the manufacture, storage, distribution, transportation and sale of Gutka/Pan Masala which contains Tobacco and Nicotine as ingredients and chewing tobacco products etc., within the meaning of Sections 3(m) and 3(p) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, 2003).

All the writ petitions were heard together and disposed of by the common order.

Arguments

The petitioners relied on the Supreme Court's decision in Godawat Pan Masala Products I.P. LTD. v. Union of India and others. In that case, the court held that the power to ban an article of food or an article used as an ingredient in food on the grounds of being injurious to health belongs to the Central Government. 

The petitioners submitted that the Commissioner of Food Safety has no power conferred upon them under Section 30(2)(a) of the FSSA, 2006 for issuing the impugned notification. This is because tobacco is not considered as "food" covered under the FSSA, 2006, the court was told. Instead, it is an item covered under the COTPA, 2003, which takes precedence over the FSSA, 2006, because the COTPA, 2003 is a special act, while the FSSA, 2006 is a general act, it was argued.

On the other hand, the State argued that the FSSA, 2006 is a statute relating to food enacted after repealing multiple Food Laws with the object of fixing scientific based food standards and to regulate, monitor the manufacturing, import, processing, distribution and sale of food to ensure availability of safe and wholesome food to the public.

The respondent submitted that it has issued the impugned notification by invoking Section 30 (2) of the FSSA, 2006 because Chewing Tobacco comes under the purview of “food” as Tobacco is kept in the mouth and chewed and it gets mixed with saliva into the body.

The respondents also submitted that the definition of “food” under Section 3 (j) of the FSSA, 2006, cannot be given a restricted meaning, as it encompasses any kind of food which is intended to be consumed. Therefore, Gutka and Pan Masala which contain Tobacco and Nicotine, come under the definition of “food” as per Section 3 (j) of the FSSA, the court was told

Verdict

The division bench referred to the Godawat Pan Masala Products I.P. Ltd. Case in which Supreme Court held that The State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. Such a power can only arise as a result of wider policy decision and emanate from parliamentary legislation or, at least, by exercise of the powers by the Central Government by framing rules under Section 23 of the Act, the court said.

It also referred to the judgment in ITC LTD. v. Agricultural Produce Market Committee and others, in the context of levy of tax, where the Supreme Court held that “tobacco is not a foodstuff”.

Reference was also made to the Delhi High Court judgment in the case of Sugandhi Snuff King Pvt. Ltd. and another v. Commissioner (Food Safety) Government of NCT of Delhi. The court struck down a similar notification issued by the Delhi Government.

In light of the above, the division bench said,

“Since Godawat Pan Masala Products I.P. Ltd. (case) still holds the field, Pan Masala or Gutka containing Tobacco, cannot be considered to be “food” and the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor has any jurisdiction to issue the impugned notification.”

The Court said: “It is declared that the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor having any jurisdiction to issue the impugned notification, prohibiting the manufacture, storage, distribution, transportation and sale of Gutka/Pan Masala which contains Tobacco and Nicotine as ingredients and Chewing Tobacco products, within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, in exercise of powers under Section 30(2)(a) of the FSSA, 2006.”

Case Title- Dasa Shekar v. The State of A.P.

Citation: 2023 LiveLaw (AP) 12

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