Siva Nagasai Cool Drinks And General Stores vs. The State Of A.P

Held

The Court allowed the writ petition in terms of a common order dated 24.03.2023 passed in W.P.No.30185 of 2021 and batch. The reasoning adopted by the Division Bench in the cited order was that the Cigarette and Other Tobacco Products Act (COTPA), 2003, is a special Act specifically dealing with tobacco and tobacco products, including pan masala or any chewing material with tobacco. The Food Safety and Standards Act (FSSA), 2006, is a general Act concerning food. Consequently, tobacco products cannot be considered 'food' under the FSSA, 2006. Therefore, the Commissioner of Food Safety, Andhra Pradesh, was neither authorized nor had jurisdiction to issue the impugned notification under Section 30(2)(a) of the FSSA, 2006. The Court declared the Commissioner's lack of authority and jurisdiction to issue such a notification. As a consequence, the respondents were directed not to interfere with the lawful day-to-day business activities of the writ petitioners concerning tobacco products. Seizures made under the impugned notifications or FSSA were held to be bad in law, and seized products were to be released. No further coercive action could be taken under FSSA against licensed businesses. The writ petitions were allowed to the extent indicated.

Facts

The petitioner, Siva Nagasai Cool Drinks And General Stores, filed a writ petition challenging a notification dated 06.11.2021 issued by the respondents. The petitioner sought to declare the notification illegal, arbitrary, and without jurisdiction, and to prevent the respondents from interfering with their business of producing, distributing, transporting, and selling tobacco products like khaini and gutka, for which they possess requisite licenses and pay GST. The petition also sought to prevent the registration of cases related to this business. The matter was listed for dismissal due to the absence of the petitioner's representation on previous and current hearing dates. The Government Pleader for the respondents submitted that similar challenges to notifications have been decided by a Division Bench of the High Court.

Key Issues

1. Whether the notification dated 06.11.2021, issued by the Commissioner of Food Safety, Andhra Pradesh, prohibiting the manufacture, storage, distribution, transportation, and sale of Gutka/Pan Masala containing Tobacco and Nicotine, and Chewing Tobacco products, is without jurisdiction and in violation of the principles of natural justice and constitutional provisions (Articles 19(1)(g) and 21)? Petitioner's contention: The petitioner argued that their business of selling tobacco products is lawful, covered under the Cigarette and Other Tobacco Products Act (COTPA), and they hold the necessary licenses and pay GST. They contended that the impugned notification is illegal, arbitrary, and issued without jurisdiction, violating their fundamental rights. Respondent's contention: The Government Pleader relied on a common order passed by a Division Bench of the High Court in W.P.No.30185 of 2021 and batch, which dealt with similar notifications. The Division Bench held that COTPA, 2003, is a special Act for tobacco products, while the Food Safety and Standards Act (FSSA), 2006, is a general Act dealing with food. Therefore, the Commissioner of Food Safety lacks the jurisdiction to issue such a notification concerning tobacco products.