Delhi HC lifts ban on manufacture, sale of gutkha, pan masala

The petitioners contended that the notifications issued by Delhi government’s Food Safety Commissioner were arbitrary and ultra vires the Food Safety and Standard Act (FSSA) and are violative of their fundamental rights.

New Delhi: The Delhi high court has lifted the ban on the manufacture, storage, distribution or sale of gutka, pan masala, flavoured tobacco and other such products in the national capital, saying that it was issued in a “mechanical manner” and the authorities exceeded the powers vested in them.

The petitioners had challenged various notifications issued by the Delhi government which prohibited the manufacture, storage, distribution, or sale of gutka, pan masala, flavoured/scented tobacco. (HT Photo)

Quashing the ban notifications issued by the Delhi government’s Food Safety Commissioner between 2015 to 2021, justice Gaurang Kanth said that even though he was conscious of the harmful effects and various diseases caused by the use of tobacco, both smokeless and smoking, the question of law cannot be decided merely based on public consciousness and sentiments.

“In addition to the ill-effects of smokeless tobacco pointed out by the respondents, this court is of the view that tobacco, in any form is injurious to public health and this court accordingly condemns and discourages the use of any form of tobacco. Public health is one of the most important parts of society and therefore, it is necessary to take all steps to preserve the same in all possible manners,” the judge said in his ruling passed on Tuesday. The order was uploaded on the court website on Wednesday.

The petitioners had challenged various notifications issued by the Delhi government which prohibited the manufacture, storage, distribution, or sale of gutka, pan masala, flavoured/scented tobacco, and similar products in the interest of the public health for a period of one year throughout Delhi.

The petitioners contended that the notifications were arbitrary and ultra vires the Food Safety and Standard Act (FSSA) and are violative of their fundamental rights.

In its ruling, the high court held that the Food Safety Commissioner can issue prohibition orders only in emergent circumstances after giving an opportunity of being heard to the concerned food operator.

“The impugned notifications, however, have been issued by respondent no.1 (commissioner of food safety) year after year in a mechanical manner without following the general principles laid down under Section 18 and 30(2)(a) of the FSSA, which is a clear abuse of the powers conferred upon him under the FSSA,” it said.

The petitioners argued that the authorities are purporting to ban an artificially created sub-category of tobacco, namely ‘smokeless tobacco’ which includes chewing tobacco, pan masala, gutkha, etc., and other scheduled tobacco products listed under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply, and Distribution) Act, 2003 (COTPA).

The high court said the classification sought to be created between smokeless and smoking tobacco for justifying the issuance of the notifications is clearly violative of Article 14 of the Constitution.

“This court is of the considered view that while issuing the notifications, the Food Safety Commissioner exceeded its power and authority in contravention of the powers vested in him under the FSSA and therefore, the said impugned notifications are hereby quashed and set aside. The present writ petitions are allowed,” the court said.

The high court said it has never been the intention of Parliament to impose an absolute ban on the manufacture, sale, distribution, and storage of tobacco or tobacco products. However, the intention of the Parliament is to regulate the trade and commerce of tobacco and tobacco products in accordance with the COTPA, a Central Act that deals with the tobacco industry.

WHAT DID THE GOVT COUNSEL SAID DURING THE ARGUMENTS