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SC directs Telangana HC to take up plea against banning of tobacco products

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New Delhi, May 12 (ILNS): The Supreme Court on Tuesday has directed the Telangana High Court to take up the plea challenging the Notification dated 06.01.2021 issued by the State of Telengana under Section 30 of the Food, Safety and Standards Act, 2006 which bans all chewing/chewable tobacco products, claiming that the same is contrary to the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of the Trade and Commerce, Production Supply and Distribution) Act, 2003.

A two-judge Bench of Justice Vineet Saran and Justice Dinesh Maheshwari heard the civil appeal related to food safety and standards act, 2006 wherein the said notification dated 6.1.2021 was challenged by the appellant that is Venkateswara traders. The appeal was filed by the M/S Sri Venketeshwara General Agencies which had previously challenged the said notification before the Telangana HC but the Court disposed off the plea with a direction to the Petitioner to move to The Apex Court as the Top Court seized of the similar matter. 

But when the matter was filed before the Supreme Court, the Court has noted that the issue which is before it, is different from the issue which was raised before the Telanagana High Court. Therefore, the Supreme Court held, “We are not satisfied that the issue involved in the pending transferred case before this Court is the same as the one involved in the present petitions. It is also not disputed that the earlier writ petitions before the High Court relating to the similar /identica.”

The Apex Court directed, “In our view, the High Court ought to have entertained the Writ Petition on merits and passed necessary orders. Accordingly, we quash the orders dated 17.02.2021 and 15.03.2021 passed by the High Court and remit the matters back to the High Court with a request that the matters be taken up, heard and decided at an early date.”

The Court further directed that, “The learned counsel for the petitioners is permitted to make a mention for taking up the matters before the Vacation Bench. Since the life of the Notification, which is under challenge, is only one year, the High Court is requested to decide the matter finally or pass necessary interim order, if found proper, within 10 days of taking up.”

During the hearing Senior Advocate Mukul Rohatgi, counsel for Venkateswara traders made submission that the state has kept the matter in abeyance for period of 11 years by saying that the High Court cannot deal with the matter since the matter is pending before supreme court. He also submitted that raw tobacco is not food it is governed by COPA(Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production,Supply and Distribution) Act, 2003. 

Mukul Rohatgi further said that the “High court is on vacation ,my lord,  Kindly direct the high court to take up the matter as early as possible. Respondent for the state, Sweena Nair appeared and argued before the court that similar matter is pending before the High Court. State further read the provision of food regulation act before the presiding bench. Mukul Rohatgi counsel for the Venkateswara traders stated that I am a dealer of raw tobacco and it grows all over the country. 

Justice Dinesh Maheshwari asked from the counsel of state then why the matter is not been taken up by the High Court if the particular Notification is similar to the previous notification. The presided Bench also observed the fact that “In our view, the issue before this Court in the aforesaid matter is different from the issue involved in the present petitions.”

On the basis of contentions of appellant and respondent, the bench passed order dated 11.05.2021 “in our view, the High Court ought to have entertained the Writ Petition on merits and passed necessary orders. Accordingly, we quash the orders dated 17.02.2021 and 15.03.2021 passed by the High Court and remit the matters back to the High Court with a request that the matters be taken up, heard and decided at an early date.

Since the life of the Notification, which is under challenge, is only one year, the High Court is requested to decide the matter finally or pass necessary interim order, if found proper, within 10 days of taking up.”

It is stated in the said orders that this court has, vide order dated 23.09.2016, passed certain directions because of which, the matter concerning the issue of chewing/chewable tabacco would also be covered.

The apex court vide order 3.05.2021 inclined to issue notice on the appeal of. Venkateswara Traders to the State of Telangana and directed to tag the present matter along with SLP (C ) No. 4879 of 2021.  Since the impugned orders are same passed by High Court in different Writ Petitions and both the matters contains same fact in issue, so both appeals were heard together.

The Hon’ble High Court of Telangana dismissed the petition holding that Supreme Court is seized of the aforesaid issue, we decline to entertain the present petition. It is for the petitioner to approach the Supreme Court for appropriate orders, if it is aggrieved by the Notification dated 06.01.2021. Sri Venkateswara Traders  challenged the said Notification dated 06.01.2021 issued by the State of Telangana under Section 30 of the Food Safety and Standards Act, 2006 which bans all chewing/chewable tobacco products, and claims that the same is contrary to the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production,Supply and Distribution) Act, 2003.

The State submitted that the issue challenging the notification dated 6.1.2021 is already pending before the apex court in Transfer Petition Case of year 2010. Venkateshwara must approach the apex court for appropriate orders , in light of directions issued by apex court on 23.09.2016 in the aforementioned case which is compliance of the regulations framed under section 92 read with section 26 of Food Safety and Standards Act 2006, regard to ban on sale of Guthka , Pan Masala (Excludes tobacco) with flavoured chewing tobacco etc.

Section 30 of Food Safety and Standards Act, 2006 –

Commissioner of Food Safety of the State.  

(1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder. (2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:– (a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette; (b) carry out survey of the industrial units engaged in the manufacture or processing of food in the State to find out compliance by such units of the standards notified by the Food Authority for various articles of food; (c) conduct or organise training programmes for the personnel of the office of the Commissioner of Food Safety and, on a wider scale, for different segments of food chain for generating awareness on food safety; (d) ensure an efficient and uniform implementation of the standards and other requirements as specified and also ensure a high standard of objectivity, accountability, practicability, transparency and credibility; (e) sanction prosecution for offences punishable with imprisonment under this Act; (f) such other functions as the State Government may, in consultation with the Food Authority, prescribe. (3) The Commissioner of Food Safety may, by Order, delegate, subject to such conditions and restrictions as may be specified in the Order, such of his powers and functions under this Act(except the power to appoint Designated Officer, Food Safety Officer and Food Analyst) as he may deem necessary or expedient to any officer subordinate to him. (ILNS)KR/KY 

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