Responding to the gutkha manufacturers’ petition challenging the constitutional validity of the one-year ban imposed on gutkha and paan masala, the state government said that the ban is in the larger interest of the public.
The Food and Drugs Administration (FDA) had, on July 19, issued a notification under the Food Safety and Standards Act (FS&S) banning all paan masala products containing tobacco, nicotine or magnesium carbonate for a year. Gutkha manufacturers such as Dhariwal Industries, Ghodawat Pan Masala (India), Rajnandini Foods, SDD Agencies and Hira Enterprises have approached the Bombay high court (HC) challenging the ban.
The manufacturers said that in the Ghodawat Pan Masala (India) case, in 2002, the Supreme Court (SC) had held that the powers of prohibition under the Prevention of Food Adulteration (PFA) Act are not available to ban the manufacture and sale of tobacco products listed under the Cigarettes and Other Tobacco Products Act (COTPA) of 2003. As the ban seeks to prohibit trade of a tradable product, it is in violation of their fundamental right to trade, claimed manufacturers.
The affidavit filed by Kamlesh Sankhe, joint commissioner, food, FDA, on behalf of the state government, said that gutkha is a food product covered under the provisions of the FS&S Act of 2006. Referring to the same case, the state maintained that the SC, too, had held that gutkha is a food product. The apex court had also held that since the FS&S Act has been enacted by Parliament, it will prevail over the provisions of the COTPA.
The notification imposing a ban on gutkha puts reasonable restriction in the interest of public health and cannot be termed as a violation of the fundamental rights of the manufacturers, the affidavit said.
In the affidavit, the state also cited the ill effects of tobacco addiction and high intake of magnesium carbonate through various gutkha products.