M/S.999 Pan Masala vs. The State Of Andhra Pradesh

It is the case of the Writ Petitioners that they are the registered proprietary firms and registered with GST authority, engaged inter alia in the wholesale and retail distribution of chewing tobacco products and certain non-tobacco products like pan masala, supari, etc. The chewing tobacco products, as far as the Writ Petitioners’ business is concerned, are broadly pure tobacco, flavoured tobacco and scented tobacco. (b) By virtue of Notification No.318/FSSA/AP/2014-20, dated 08.01.2020 issued by respondent No.3 under Section 30 (2) (a) of the Food Safety and Standards Act, 2006 (for brevity ‘the FSSA, 2006’), banning all chewing tobacco products, the business of Writ Petitioners was declared as illegal and they were forced to suspend their business temporarily for the time being. Aggrieved of the said Notification, the Writ Petitioners filed Writ Petition No.23548 of 2020 before this Court and obtained Stay order. (c) Despite there is clear position of law, 1st respondent, without application of mind, issued impugned Notification. The power conferred on 1st respondent under Section 30 (2) of the FSSA, 2006 is limited and does not empower to ban products covered the FSSA, 2006. The said Notification was impugned in Writ Petition No.16118 of 2020 and batch before this Court and the same are pending. (d) This Court vide Order dated 27.08.2018 in Criminal Petition No.3731 of 2018 and batch, quashed several criminal proceedings initiated against the persons/entities engaged in dealing with tobacco products that are covered in the impugned Notification under the garb of enforcing similar Notifications in the past. Hence, the Writ Petition.

When the matter came up for hearing, it is submitted by learned counsel for the Writ Petitioners and, acceded to, by the learned Assistant Government Pleader for Health, Medical and Family Welfare Department and Commissioner of Food Safety, representing respondent No.1, that the subject matter of the present Writ Petition is squarely covered by the Common Order passed by the Division Bench of this Court in Writ Petition No.30185 of 2022 and batch, dated 24.03.2023, wherein, it was held as under: (paragraph Nos.34, 35 & 36) “34. In view of the above discussion, the legal position is abundantly clear that the COTPA, 2003 is a special Act specifically dealing with Tobacco and Tobacco products by including Pan Masala or any chewing material having Tobacco as one of its ingredients by whatever name called. The FSSA, 2006 being a general Act, provides that it is an Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage, distribution, sale and import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto. Thus, the FSSA, 2006 deals with food as defined under Section 3 (j) of the said Act, whereas Tobacco and Tobacco products are covered under the COPTA, 2003. Since Godawat Pan Masala Products I.P. Ltd.1 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 juri iction to issue the impugned notification.

Ex Consequenti, it is declared that the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor having any juri iction 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. 1 (2004) 7 SCC 68. 36. As a further consequence, the respondents are directed not to interfere with the lawful day-to-day business activities of the writ petitioners with regard to Tobacco products.”

In view of the Common Order passed by the Division Bench of this Court in Writ Petition No.30185 of 2022 and batch dated 24.03.2023 and for the reasons mentioned therein, this Writ Petition also deserves to be allowed.

Accordingly, the Writ Petition is allowed, directing the respondents not to interfere with the lawful day-to-day business activities of the Writ Petitioners in regard to tobacco products and not to take coercive action against the Writ Petitioners under the provisions of the Food Safety and Standards Act, 2006/the Food Safety and Standards Regulation, 2011. There shall be no order as to costs of the Writ Petition. As a sequel thereto, the miscellaneous applications, if any, pending in this Writ Petition, shall stand closed.