|Name of The Case||Ghodawat Pan Masala Products and Ors. v Union of India|
|Citation||(2004) 7 SCC 68 (Supreme Court)|
|Year of The Case||2004|
|Appellant||Ghodawat Pan Masala Products I.P. Ltd. & Anr.|
|Respondent||Union of India & Ors.|
|Bench/ Judges||K.G. Balakrishnan & B.N. Srikrishna.|
|Acts Involved||Prevention of Food Adulteration Act, 1954 Act 34 of 2003|
|Important Sections||Sec 7(iv), sec 23, sec 24, sec of Prevention of Food Adulteration Act, 1954 Sec 6 of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003|
Food is one of the basic necessities for sustenance of life. Pure, fresh, and healthy diet is most essential for the health of the people. It is often said that community health is national wealth. Adulteration simply means the action of making something poorer in quality by the addition of another substance.
Pan masala and Gutka are seriously injurious to health. Among humans, it is a leading cause of oral submucous fibrosis that often progresses to oral cancer. They are very harmful substance affecting almost all organ systems. They are cheap in cost and easily available in all sections of India.
In the present case of “Ghodawat Pan Masala Products and Ors. v. Union of India”[i], a state had issued the notification banning the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) by the Food (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954. The validity of said Notifications was challenged by the respective manufacturing and selling companies of Pan masala and Gutka.
- By a notification dated 19th November, 2001 issued by the Director for Public Health and Preventive Medicine and State Food (Health) Authority, Government of Tamil Nadu, under Section 7(iv) of the Act directing that no person shall himself or by any person on his behalf, manufacture for sale or store, sell or distribute: (i) chewing tobacco; (ii) pan masala; (iii) gutka, containing tobacco in any form or any other ingredients injurious to health, under whatever name or description in the State of Tamil Nadu. The petitioners also challenged this notification.
- By a notification dated 23rd July, 2002 issued by the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra, the manufacture, sale, storage and distribution of pan masala and gutka (pan masala containing tobacco) were banned for a period of five years with effect from 1st August, 2002.
- By the notification dated 19th February 2002 issued by the Food (Health) Authority, State of Andhra Pradesh, prohibiting the sale of pan masala under any brand name with an emblem of gutka, containing tobacco, within the state of Andhra Pradesh, with immediate effect
By another notification dated 27th February, 2002, issued by the same Authority for the State of Andhra Pradesh under Section 7(iv) of the Act, by which the sale of all brands of pan masala (containing tobacco) and chewing tobacco/ zarda/ khaini under any brand name was prohibited “in the interest of public health” in the entire state of Andhra Pradesh with immediate effect.
- By notification dated 24th January, 2003 issued by the Directorate of Food and Drugs Administration and Food (Health) Authority for the State of Goa under Section 7(iv) of the Act, the “sale of gutka and pan masala, containing tobacco or not containing tobacco, by whatever name called,” is prohibited within the state of Goa and it is directed that “no person shall himself or any person on his behalf, shall manufacture for sale or store, sell or distribute gutka or pan masala, containing tobacco or not containing tobacco, by whatever name called.”
Above all the notifications by four states were challenged by appellants before respective high courts. The high Courts in their judgments dismissed the writ petition upholding the validity of the notification.
Being aggrieved thereby, the appellants filed the appeal before the supreme court of India.
- These appeals and writ petition arise from different areas and marginally differing on facts. But the issue raised substantially similar issues of law.
Civil Appeal arising out of SLP(C) No. 24449 of 2002 The appellants manufacture gutka within the state of Maharashtra, which is stored in convenient godowns and sold both within and outside the state of Maharashtra.
Petitioners Nos. 1 to 5 are associations and cooperative societies of arecanut growers, petitioners Nos. 6 and 7 are engaged in the manufacture and sale of pan masala and gutka in the State of Karnataka.
Civil Appeal arising out of SLP No. 24292 of 2002 The appellant carry on the business of manufacture and sale of pan masala, gutka and other tobacco related items.
Civil Appeals arising out of S.L.P. Nos. 23635/02, 24292/02, 533/03, 834/03 and 2186/03 The appellants are engaged, inter alia, in the manufacture and trade of pan masala and gutka, pan masala containing tobacco and other allied tobacco products. They sell their products all over India including State of Maharashtra. They have a wide network of dealers through whom their products are sold to the public at large in the state of Maharashtra. They also have operating depots in the state of Maharashtra.
- Prevention of Food Adulteration Act, 1954 was amended by Act 49 of 1964. Prior to the amendment with effect from 1st March 1965, clause (iv) of Section 7 read as under: “Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority with a view to preventing the outbreak or spread of infectious diseases.” After the Amendment “with a view to preventing the outbreak or spread of infectious diseases” replaced with “in the interest of public health”.
- Whether sec 7(iv) of Prevention of Food Adulteration act,1954 is independent source of power or not?
- Whether the impugned notifications issued by state Food (Health) Authority under sec 7(iv) of Prevention of Food Adulteration act,1954 are valid or not?
- Whether the Food (Health) Authority in the state has the power of prohibiting the manufacture for sale, or storage, sale, or distribution of any article assuming it to be injurious to health or not?
- Whether act Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 prevails over the Prevention of Food Adulteration act,1954 or not?
Prevention of Food Adulteration Act, 1954
- Section 2(ia) defines what is ‘adulterated food’. Broadly speaking, the definition covers situations where a food article is sub-standard or contains injurious ingredients or has become injurious to health by reason of packing or keeping under unsanitary conditions or having become contaminated or is otherwise not fit for consumption. The definition also extends to cases of articles which fall below the prescribed standards of purity or quality.
- 7. Prohibitions of manufacture, sale, etc., of certain articles of food. – No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute (i) any adulterated food; (ii) any misbranded food; (iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence; (iv) any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health; (v) any article of food in contravention of any other provision of this Act or of any rule made thereunder; or (vi) any adulterant.
- Section 22A empowers the Central Government to give such directions as it may deem necessary to a State Government regarding the implementation of the Act.
- Section 23 empowers the Central Government to make rules to carry out the provisions of the Act. In particular, and without prejudice to the generality of the rule making power, the power of the Central Government includes the one in clause (f).
- Section 24 of the Act is the section which grants rule making power to the State Government. The State Government may, after consultation with the Committee, and subject to the condition of previous publication, thereunder make rules for the purpose of giving effect to the provisions of the Act in matters not falling within the purview of section 23. In particular, Sub section (2) of Section 24 grants power to the State Government to make rules with regard to the powers and duties of the different authorities under the Act.
Prevention of Food Adulteration Rules, 1955
- Part IX of the Prevention of Food Adulteration Rules, 1955 (hereinafter referred to as the ‘Rules’) deals with the conditions for sale and licence. Rules 49 and 50 lay down detailed conditions applicable to different types of licences granted for manufacturing of different products used as food articles.
- In Appendix B there is prescription of definitions and standards of quality of different food articles. In particular, paragraph A.30 deals with pan masala. Paragraph A.30 reads thus:
“A.30 PAN MASALA means the food generally taken as such or in conjunction with pan, it may contain Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits mulathi, sabermusa, other aromatic herbs and spices, sugar, glycerine, glucose, permitted natural colours, menthol and non- prohibited flavours. It shall be free from added coaltar colouring matter, and any other ingredient injurious to health. It shall also conform to the following standards, namely: – Total ash. -Not more than 8.0 per cent by weight (on dry basis). Ash insoluble in dilute hydrochloric acid. -Not more than 0.5 per cent by weight (on dry basis).”
Arguments on behalf of appellants/ petitioners
- Section 7 of the Act is not declaratory of the power of any authority, but merely of the consequences of certain acts. Although, Section 2(vi) defines as to who is a Food (Health) Authority, there is no corresponding provision in the Act which delineates the powers of the Food (Health) Authority.
- Section 24(2) of the Act empowers the State Government but only the in matters not falling within the scope of Section 23. Since Section 23(1A) (f) empowers the Central Government to make rules for prohibition of any substance which may be injurious to health, it is contended that the state Food (Health) Authority is denuded of such power. After reading of Sections 23 and 24 together it would lead to conclusion that the powers exercisable by the State Government under Section 24 can only be in the field not occupied by Section 23. Therefore, the state Food (Health) Authority cannot prohibit the sale or defining the conditions of sale of any substance which may be injurious to health.
- Rule 3 of the Maharashtra Prevention of Food Adulteration Rules, 1962 and the corresponding rule in the Goa, Daman & Diu Prevention of Food Adulteration Rules, 1982 suggest that the power given to the Food (Health) Authority is only to deal with an emergent situation, such as outbreak of any infectious disease, which may be due to any article of food. In such a situation, the Food (Health) Authority is empowered to take all such action as it deemed necessary to ascertain the cause of such infectious disease and to prevent the outbreak of such disease or the spread thereof.
Hence, if we read the sec 7(iv) and rule 3 together, in a situation envisaged by Rule 3 arises, it becomes necessary for the Food (Health) Authority to take immediate steps, the Food (Health) Authority is empowered to prohibit “for the time being” the concerned injurious article and to take any appropriate step “in the interest of public health”.
- The expression “for the time being” used in clause (iv) of Section 7 of the Act is significant and indicates the transient nature of the power that is conferred on the Food (Health) Authority under the rules to ban or otherwise take any other appropriate action in relation to an article of food even if it be “in the interest of public health”
- Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Act 34 of 2003) occupies the whole field of tobacco and tobacco products and does not completely ban the sale of ‘tobacco products’ except to the person under age of eighteen years.
- Impugned notification is violative of the fundamental rights guaranteed under Article 19(1)(g) as it is excessively restrictive in nature. While the notification seeks to ban pan masala which does not include tobacco, it does not at the same time ban tobacco in any form.
- If the provisions of Section 7(iv) of the Act are not read down as conferring powers on the authority to deal with an emergent situation, the section would be conferring arbitrary powers on the authority and would be procedurally unfair. Without going through the statutory procedure, the power in the state authority to suddenly bring out the result of cancellation or suspension of the licence, without procedural safeguards, would certainly be arbitrary and liable to be hit by Article 14 of the Constitution of India.
Arguments on behalf of respondent
- Clause (f) of Section 7 of the Prevention of Food Adulteration Act,1954 is an independent source of power.
- As a result of the amendment and the substitution of the words “in the interest of public health” for the words “with a view to preventing the outbreak or spread of infectious diseases”, the legislature has expanded the power of Food (Health) Authority so that it can act to prohibit the sale of any article, the only limitation being that the power exercised is “in the interest of public health”.
- The expression “for the time being” would suggest the time period for which the order is in force and not necessarily the transient nature of the order.
- Consumption of tobacco in any form was injurious to health, but that consumption of pan masala was likely to be addictive and lead to hyper- magnesia.
- The impugned notification is a legislative act and not an administrative act. Thus, according to them, there is no question of giving a hearing before taking a policy decision to ban the manufacture for sale, storage, sale, and distribution of pan masala and gutka. Matters of public health are essentially matters of policy decision, legislative or administrative, planned and executed in the greater interest of public health by the Government and the court should not interfere with such policy matters.
- O.P. Singla and Anr. v. Union of India and Ors.[ii]
In this case it was held that when a rule or a section is a part of an integral scheme, it should not be considered or construed in isolation. One must have regard to the scheme of the fasciculus of the relevant rules or sections in order to determine the true meaning of any one or more of them.
Therefore Section 7(iv) of Prevention of Food Adulteration Act, 1954. is not an independent source of power. It should be read with Prevention of Food Adulteration Rules, 1955. Bench held that the power of the state under Section 7(iv) of the Act is statutory; absolute to the extent provided therein and limited to the extent indicated by Section 23(1A) of the Act.
- U.P. State Electricity Board and Ors. v. Hari Shanker Jain & Ors[iii]
In case of conflict between a special law and a general law, even if both are enacted by the same legislative authority, the special law must prevail to the extent of inconsistency. The operation of the maxim generalia specialibus non derogant has been approved and applied by this Court in such situations. Therefore, Cigarettes and Other Tobacco Products act, 2003 must prevail over the Prevention of Food Adulteration act, 1954.
- Khoday Distilleries Ltd. And Ors. v. State of Karnataka and Ors.[iv]
In this case the concept of res extra commercium was explained. Referring this judgment, the present bench concluded that Pan masala and Gutka are not res extra commercium i.e. they are not obnoxious and injurious to health, safety and welfare of the general public and are not on trade or business in activities which are immoral and criminal.
- In State of Tamil Nadu v K. Sabanayagam and Anr.[v]
In this case it was observed that even when exercising a legislative function, the delegate may in a given case be required to consider which may be likely to be affected by the exercise of power.
Referring to this, it was held that in impugned notification, whatever the material the Food (Health) Authority had, before taking a decision on articles in question, ought to have been presented to the appellants who are likely to be affected by the ban order. The principle of natural justice requires that they should have been given an opportunity of meeting such facts. This has not been done in the present case. For this reason, also, the notification is bad in law.
Considering all the above facts and principles, the court held that:
Section 7(iv) of the Act is not an independent source of power for the state authority.
The source of power of the state Food (Health) Authority is located only under Section 24 of the Act.
The power of the Food (Health) Authority under the rules is only of transitory nature and shall deal with local emergencies.
The power of banning an article of food or an article used as ingredient of food, on the ground that it is injurious to health, belongs appropriately to the Central Government should be exercised in accordance with the rules made under Section 23(1A)(f).
The state Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale, or distribution of any article. Such a power can only arise as a result of wider policy decision or from Parliamentary legislation or by exercise of the powers by the Central Government by framing rules under Section 23 of the Act.
The provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 are directly in conflict with the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954. Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003.
The impugned notifications are done beyond its legal power also unconstitutional and void as abridging the fundamental rights of the appellants guaranteed under Articles 14 and 19 of the Constitution.
In the result, judgments of the division benches of the Bombay High Court and Andhra Pradesh High Court was quashed. The notifications impugned are also quashed as they were bad in law, void, illegal and unenforceable against the appellants/petitioners.
Gutka contains carcinogens, is considered responsible for oral cancer and other severe negative health effects. It is highly addictive and the subject of much controversy in India. Gutka and Pan masala is widely consumed and easily available in India.
However, the judgment said that state authorities do not have power to prohibit or ban Pan Masala and Gutka (containing or not containing tobacco). But in authors view after realising the serious consequences of Pan masala and Gutka, it is necessary to state governments to hold the power to ban the Pan Masala and Gutka (containing tobacco). In authors view interpretation of “in the interest of public health” under sec 7(iv) of the prevention of food adulteration, act 1954, was not totally correct.
Prevention of Food Adulteration Act, 1954
Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
[i] (2004) 7 SCC 68
[ii] 1984 AIR 1595, 1985 SCR (1) 351
[iii] 1980 AIR 65, 1979 SCR (2) 355
[iv] 1996 AIR 911, JT 1995 (9) 449
[v] AIR 1998 SC 344