A division Bench of the High Court (HC) led by Chief Justice Prashant Kumar Mishra on Friday ruled that the Commissioner of Food Safety (CoFS) of Andhra Pradesh has no jurisdiction to issue a notification for prohibiting the manufacture, storage, distribution, transportation and sale of chewing tobacco (gutka, pan masala etc.) containing tobacco and nicotine as ingredients.
Citing the Supreme Court judgement in Godawat Pan Masala case wherein it has been held that gutka or pan masala cannot be considered as food, the HC said the CoFS is neither authorised nor has the jurisdiction to issue the impugned notification under the Food Safety and Standards Act (FSSA) of 2006 and the proposed regulation of above products falls in the purview of the Cigarettes and Other Tobacco Products Act (COTPA), 2003 which is a special Act dealing with tobacco and its products.
The HC was disposing of a batch of writ petitions filed by Dwarapudi Sivarama Reddy and other distributors of gutka, in which they challenged a notification issued by the CoFS mainly on the ground that the Central Government is collecting excise duty on tobacco products under the Central Excise Act, 1944 and that tobacco and related products are regulated under the COTPA, 2003 in respect of prohibition of their advertisement, prohibition on sale to minors and consumption in public places.
Therefore, the petitioners insisted that tobacco is not a food product and the State government is not empowered to issue a notification seeking to impose a ban on manufacture and sale of gutka and pan masala. In the Sugandhi Snuff King case, the Delhi HC quashed a similar notification.
The judgement in Godawat Pan Masala Products I.P. Ltd. v/s Union of India clearly stated that the power to ban an article of food or an article used as ingredient of food on the ground that it is injurious to health belongs to the Central government and the State Food (Health) Authority has no power in that regard. If the State Food Authority intended to have such a power, it can only arise as a result of wider policy decisions and emanate from Parliamentary legislation related to the COTPA, 2003.
Also, the HC said the Government of India had clarified that zarda, khaini etc., are pure tobacco products and are not covered under the FSSA, 2006, and cigarettes, cigars, cheroots, beedis, tobacco, pipe tobacco, chewing tobacco, snuff, pan masala, gutka etc, are all included in the meaning of tobacco as per the COTPA, 2003.
Consequently, the court ordered that the respondents should release the seized products belonging to the petitioners and not take coercive action against them under the provisions of FSSA, 2006 against the licensed businesses.
