R. Nikhil vs. The State Of Telengana Rep. By Its Principal. Secretary

Facts

The petitioner, R. Nikhil, operating M/S. KNIKKS CLUB, filed a writ petition challenging the interference by respondents (State of Telangana, Police Commissioners, Secunderabad Cantonment Board) with his business of serving flavored hookahs. The petitioner claims to have a license for his coffee shop/restaurant and offers hookah to customers above 18 years, with proof of age taken. He asserts compliance with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, including providing a separate smoking area as per Section 4, given his seating capacity. The petitioner argues that the respondents' actions are illegal, arbitrary, and infringe upon his fundamental rights, causing irreparable damage and harassment. He relies on previous High Court orders and Supreme Court judgments, including Narlnder S. Chadha, which he believes permit hookah consumption in designated smoking zones by adults.

Held

The Court held that while the police have the power to regulate smoking in public places under Section 4 of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, their interference must be balanced and directed only towards statutory violations. The Court acknowledged that restaurants obtaining trade licenses might convert into hookah parlours, but emphasized that Section 4 mandates a separate place for smoking, and no other service should be allowed in that area. If a restaurant is solely operating as a hookah centre based on a restaurant permit, authorities have the right to cancel the license. The Court found that police have the authority under Section 12 of the Act to inspect premises and monitor activities to ensure compliance with the Act and rules, especially concerning the potential for drug addiction among youth visiting hookah parlours. However, the Court cautioned that police cannot harass business owners under the guise of inspection without following due procedure. The petitioner was directed to exclusively earmark a separate area with appropriate enclosure for hookah smoking, and to inform the Station House Officer about this designated area for surveillance. The Court disposed of the writ petition with these directions.

Key Issues

1. Whether the action of the respondents in banning and interfering with the petitioner's business of serving flavored hookahs, without reference to any rule, law, or regulation, is illegal, arbitrary, and 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 (the Act)? Petitioner's arguments: The petitioner contends that he holds all necessary licenses (GST, Sales Tax, Food, Trade, Labour) and has complied with legal requirements, including providing a separate smoking area as mandated by Section 4 of the Act for establishments with over 30 seats. He argues that the respondents' interference is unwarranted and amounts to harassment, citing previous High Court judgments that prohibit police from inconveniencing lawful businesses and relying on the Supreme Court's decision in Narlnder S. Chadha, which permits hookah consumption by adults in designated smoking zones. Respondents' arguments: The Government Pleader for Home argues that while Section 4 of the Act allows for separate smoking areas, many establishments are converting into hookah-only places, particularly allowing youngsters to smoke. They assert that if restaurants are primarily used for hookah smoking, licensing authorities and police have the power to investigate and even cancel licenses. The respondents also highlight Section 12 of the Act, empowering police to inspect premises if there's suspicion of contravention, and express concern about school and college-going children becoming drug addicts through hookah parlours, necessitating police monitoring for public interest.