Habeeb Ahmed Al-Aqaf vs. The State Of Telangana And 3Others

Facts

The petitioner, Habeeb Ahmed Al-Saqaf, owner of Chill on Hill Lounge, filed a writ petition challenging the actions of the Station House Officer (SHO) and Sub-Inspector of Police, Abids Police Station, Hyderabad. The petitioner alleged that these police officials were interfering with his business of serving flavoured hookahs, despite him possessing necessary licenses and adhering to guidelines. He claimed to have earmarked a separate smoking area as per Section 4 of the COTPA Act and the directions of the Supreme Court in Narinder S. Chadha. The petitioner contended that this interference was illegal, arbitrary, and unconstitutional, causing him harassment and irreparable damage to his business reputation. He sought a mandamus directing the respondents not to harass him.

Held

The Court held that while the police have the power to regulate smoking in public places under Section 4 of the COTPA Act, their interference must be balanced. The Court acknowledged the petitioner's possession of trade licenses and the provision of a separate smoking area. However, it emphasized that the object of the Act is to protect public health, and restaurants obtaining trade licenses for general purposes should not solely convert into hookah parlours. The Court reiterated that at a smoking area, only smoking should be allowed, and if a restaurant primarily operates as a hookah centre, authorities can cancel its license. Police officers, not below the rank of Sub-Inspector or equivalent, are authorized to inspect premises under Section 12 of the COTPA Act to ensure compliance with the Act and Rules, including displaying statutory warnings. The Court found that police surveillance and checks are necessary, especially given the potential for other narcotic drugs being consumed under the guise of hookah parlours and the risk to youngsters. Therefore, the Court directed that police can only interfere when there is a statutory violation or illegal activity, but cannot harass individuals running hookah centres without due procedure. The petitioner was directed to exclusively earmark a separate area with appropriate enclosure for smoking hookah, and no other part of the premises should be used for this purpose. Restaurant owners providing separate smoking/hookah areas must inform the Station House Officer for surveillance, and police should not harass them without following procedure. Any high-handed action by police should be brought to the notice of higher authorities for appropriate action. The Court did not grant an absolute prohibition on police visits but emphasized the need for lawful intervention.

Key Issues

1. Whether the actions of Respondents 3 and 4 (SHO and SI, Abids Police Station) in interfering with the petitioner's business of serving flavoured hookahs, despite the petitioner following rules and guidelines, are illegal, arbitrary, and unconstitutional, contrary to the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA Act)? Petitioner's arguments: The petitioner argued that he holds all required licenses (GST, Sales Tax, Food, Trade, Labour) and has complied with the directions of the Apex Court by providing a separate smoking area as mandated by Section 4 of the COTPA Act for establishments with over 30 seats. He contended that the police interference, without any material showing violation of guidelines or Supreme Court orders, infringes his fundamental rights. He relied on a coordinate bench's order in WP No. 25439 of 2018, which, citing the Supreme Court in Narinder S. Chadha, held that consumption of hookah tobacco by persons above 18 years in a designated smoking zone cannot be stopped unless explicitly prohibited by law. Respondents' arguments: The learned Government Pleader for Home argued that while Section 4 of the COTPA Act allows for a specific smoking place, many restaurants convert their nature into hookah-only establishments, allowing youngsters to smoke hookah. He contended that if restaurants are primarily used for smoking hookah, licensing authorities and police have the power to inquire and even cancel licenses. He stated that the petitioner cannot serve hookah without complying with the Act and Rules, including displaying statutory and pictorial warnings, and that police have the power to inspect premises to ensure compliance. He also highlighted the duty of the police to monitor such activities due to the involvement of school and college-going children and the risk of drug addiction.