Tobacco Mixed With ‘Gutkha’ & ‘Pan Masala’ Can Be Prohibited By State Till Final Decision Of Supreme Court: Madras High Court

The Madras High Court has held that till a final decision is taken by the Supreme Court, the State can restrict, prohibit, and seize the tobacco mixed with ‘gutkha’ and ‘pan masala’, for which there is a total ban.

The Court held thus in a Writ Petition filed against the Notification issued by the State published in the Tamil Nadu Government Gazette, in exercise of power conferred under Clause (i) to Sub-Section (2) of Section 92 read with Section 26 of the Food Safety and Standards Act, 2006 (FSSA).

A Single Bench of Justice N. Anand Venkatesh observed, “In the light of the above, till a final decision is taken by the Expert Committee, wherever the unmanufactured tobacco is stored, sold or transported by the petitioner, the same shall not be interfered with by the respondents. However, if tobacco is mixed along with gutkha and pan masala, for which, there is a total ban, the same can be restricted, prohibited and seized and further action can be initiated. This interim arrangement has to continue till the larger issue is dealt with by the Hon’ble Apex Court and a final judgment is rendered and till the Expert Committee submits its report to the Ministry of Health and Family Welfare.”

The Bench said that the intimation issued by the Director (Regulatory Compliance), Food Safety and Standards Authority of India (FSSAI), the Commissioner of Food Safety and Drug Administration Department of the Government of Tamil Nadu cannot proceed further to take any action regarding analysis/enforcement of tobacco or chewing tobacco.

Senior Advocate V. Raghavachari appeared for the Petitioner while AAG P. Kumaresan appeared for the Respondents.

Factual Background

The Writ Petition challenged the Notification issued by the State under Clause (i) to Sub-Section (2) of Section 92 read with Section 26 of the FSSA and the consequential Order passed by the Food Safety Officer and the communication which was confirmed by the Designated Officer/Appellate Authority by proceedings under Section 47(4) of the Act read with the Food Safety and Standards (Prohibition and Restriction on Sales) Regulations, 2011.

The Petitioner was in the business of sale of chewing tobacco and its grievance was that the Respondents are treating raw tobacco as a banned food product and accordingly, the same was sent for chemical analysis. It was reported that it contained nicotine to an extent of 0.47% and on that basis, the Food Safety Officer concluded that the Petitioner’s chewing cut tobacco leaves are unsafe for human consumption and injurious to health. Being aggrieved by this, the Petitioner filed an Appeal before the Appellate Authority, which dismissed the same and confirmed the report of the food analyst as legally maintainable and sustainable. Hence, the Petitioner approached the High Court.

Reasoning

The High Court after hearing the contentions of the counsel, noted, “Another reasoning that has been given is that if chewing tobacco alone is banned without a similar ban on smoking tobacco, it will only discriminate between the two classes of players indulged in the manufacture of two products with the same ingredient. That apart, there is no ban on production, manufacture, position, sale, transportation, etc. on smoking tobacco whereas there is a ban when it comes to chewing tobacco. It has, therefore, been held that it is clearly discriminatory and it is more so since tobacco, in both the forms, is injurious and harmful to health.”

The Court emphasised that a Court must speak in one voice and it must be univocal and therefore, when there is a binding precedent, a Single Judge, who may have a different view/opinion, cannot proceed to express his opinion in the Judgment and the Single Judge is bound by the decision rendered by the Division Bench.

“There are two Division Bench judgments and one judgment of the learned Single Judge of this Court, which have consistently held that tobacco will come within the definition of the word ‘food’ under Section 3(j) of the Act. Hence, as a Single Judge, this Court must fall in line. Ultimately, the matters have reached the Hon’ble Apex Court and this Court has to await the final decision that will be taken by the Hon’ble Apex Court on this issue”, it added.

The Court further remarked that it cannot interfere with the impugned Notification issued by the State, which has been published in the Government Gazette.

“It is relevant to take note of the regulatory that has been issued by the Food Safety and Standards Authority of India dated 09.1.2023. In this regulatory, the Commissioner of Food Safety & Drug Administration Department, Government of Tamil Nadu has been informed that an Expert Committee constituted under the Ministry of Health and Family Welfare is considering this issue regarding enforcement of tobacco/chewing tobacco under the Act and it was directed to withhold any further action regarding analysis/enforcement of tobacco or chewing tobacco until further orders in the matter. It is also informed before this Court that no opinion has been given by the Expert Committee so far”, it also noted.

Accordingly, the High Court disposed of the Writ Petition.

Cause Title- M/s. Rathinam Enterprises v. The State of Tamil Nadu & Ors. (Neutral Citation: 2025:MHC:1580)

Appearance:

Petitioner: Senior Advocate V. Raghavachari and Advocate R. Veeramani.

Respondents: AAG P. Kumaresan and GA E. Sundaram.

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