WP(C).Nos.13580/2012, 16496/2012, 21854/2012 - Kerala High Court (Ernakulam)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **THURSDAY, THE 20TH DAY OF DECEMBER 2012/29TH AGRAHAYANA 1934** ## **WP(C).No. 13580 of 2012 (V)** **----------------------------------------** ## **PETITIONER(S) : ---------------------------** **1. JOSHY K.V., AGED 49 YEARS, S/O. THE LATE K.V. VELAYUDHAN, KATTUNGUAL HOUSE, KATTOOR.P.O., ILLIKKAD, IRINJALAKKUDA, THRISSUR DISTRICT-PIN-680 702.** **2. NOUSHAD.N., AGED 37 YEARS, S/O.NOOR MUHAMMED, RAINBOW SHOPPING COMPLEX, XXVI 560/A4,MS WARD, ALAPPUZHA-688 001.** **3. A. VENKITACHALAM,AGED 59 YEARS, TOBACCO MERCHANT, MARKET, ALUVA, RESIDING AT GOKULAM, 20/250C, BYE-PASS, ALUVA-683 101.** ## **BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE BY ADVS. SRI.S.K.PREMRAJ SRI.C.S.MANU** ## **RESPONDENT(S) :** **---------------------------** ## **1. STATE OF KERALA, REP. BY THE SECRETARY TO THE DEPARTMENT OF HEALTH AND WELFARE,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. THE COMMISSIONER OF FOOD SAFETY, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM-695 001.** **3. THE DISTRICT FOOD INSPECTOR & DESIGNATED OFFICER, OFFICE OF THE DISTRICT FOOD INSPECTOR, PALAKKAD-678 001.** **4. THE POLICE CHIEF & DIRECTOR GENERAL OF POLICE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001.** **sts** **2/-** **-2-** ## **WP(C)NO.13580/2012** ## *** ADDL.R5 IS IMPLEADED** - **R5: KERALA VOLUNTARY HEALTH SERVICES A REGISTERED NON-PROFIT VOLUNTARY CO-ORDINATING AGENCY HAVING REGISTERED NO.S-69/1971** **MULLANKUZHY, COLLECTORATE PO., KOTTAYAM, REPRESENTED BY IT'S EXECUTIVE OFFICER SAJU V. ITTY.** ***ADDL.R5 IS IMPLEADED AS PER ORDER DATED 26.06.2012 IN IA.8558/2012.** **R1 TO R4 BY GOVERNMENT PLEADER SRI. TOM.K.THOMAS ADDL.R5 BY ADV. SRI.SHAJI P.CHALY** **SMT.K.S.SUMITHA SMT.K.JASMIN BABY SRI.R.SANJITH SMT.LIJITTA G.MATHEW** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-11-2012, ALONG WITH WPC.NO. 16496/2012 AND WPC. NO.21854/2012, THE COURT ON 20-12-2012 DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.13580/2012** **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXT.P1 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE 1ST PETITIONER ISSUED UNDER THE KVAT ACT, 2003. EXT.P2 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE 2ND PETITIONER ISSUED UNDER THE KVAT ACT, 2003.** **EXT.P3 TRUE COPY OF THE CERTIFICATE OF REGISTRATION OF THE 3RD PETITIONER ISSUED UNDER THE KVAT ACT, 2003.** - **EXT.P4 TRUE COPIES OF THE INVOICES (8NOS.) ISSUED BY M/S. JAISWAL PRODUCTS, G-82 PREET VIHAR DELHI-110092 TO THE PETITIONER.** - **EXT.P5 TRUE COPIES OF THE INVOICES (2NOS) ISSUED BY M/S. MURARILAL HARISHCHANDRA JAISWAL (P) LTD., 6043, NAYA BANS, DELHI-110 006 TO THE 2ND PETITIONER.** - **EXT.P6 TRUE COPIES OF THE INVOICES (2NOS) ISSUED BY M/S. MURARILAL HARISHCHANDRA JAISWAL (P) LTD., 6043, NAYA BANS, DELHI-110006 TO THE 3RD PETITIONER.** - **EXT.P7 TRUE COPY OF THE LETTER DATED 6-6-2012 ISSUED BY ASSOCIATED ROAD CARRIERS, SHADARA, DELHI TO THE PETITIONERS 2 AND 3** - **EXT.P8 TRUE COPY OF THE LETTER BEARING NO. 1106/2012/DFI/PKD DATED 2-62012 ISSUED BY DISTRICT FOOD INSPECTOR, PALAKKAD TO THE 2ND RESPONDENT.** - **EXT.P9 TRUE COPY OF THE ORDER DATED 22-5-2012 ISSUED BY THE 2ND RESPONDENT UNDER SECTION 30 (2) OF THE FOOD SAFETY AND STANDARDS ACT, 2006.** - **EXT.P10 TRUE COPY OF THE JUDGMENT DATED 22-12-2011 IN CRL.M.C. NO. 1360 OF 2011 PASSED BY THE HON'BLE HIGH COURT OF DELHI.** ## **RESPONDENTS' EXHIBITS : NIL** **/TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **A.M.SHAFFIQUE, J * * * * * * * * * * * * *** W.P.C.Nos.13580, 16496 & 21854 of 2012 ---------------------------------------- Dated this the 20[th] day of December 2012 ## **J U D G M E N T** These writ petitions arise out of the common issue relating to “chewing tobacco” and the steps taken by the official respondents in preventing the supply and sale of the said products in the State of Kerala as violating the provisions of Food Safety and Standards Act, 2006 (hereinafter referred to as the FSS Act) and hence decided by a common judgment. 2. W.P.C.No.13580 of 2012 is filed by Dealers of Tobacco Products, who alleges that while transporting chewing tobacco from Delhi, the vehicles were intercepted at the Excise Check Post at Valayar on 02/06/2012 on the allegation that the sale of panmasala is prohibited in the State of Kerala. Though they had represented that the ban of panmasala does not apply to chewing tobacco, the goods are not permitted to be brought to State of Kerala. It is their contention that though the Government had W.P.C.Nos.13580 of 2012 & conn.cases 2 passed Ext.P9 order banning the manufacture, storage, sale or distribution of gutkha and panmasala containing tobacco or nicotine as ingredients in pursuance of Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations 2011 (hereinafter referred to as the Regulations of 2011), the said prohibition does not apply to chewing tobacco and therefore it is not open for the respondents to prohibit the import of chewing tobacco to State of Kerala from any other State in the Country. Ext.P9 is extracted hereunder: ## “OFFICE OF THE COMMISSIONER OF FOOD SAFETY, ## KERALA, THIRUVANANTHAPURAM No.A/1327/2012/CFS Dated, Thiruvananthapuram, 22.05.2012 ## **ORDER** WHEREAS, regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 made by the Food Safety and Standards Authority of India in exercise of the powers conferred by clause (i) of sub-section (2) of section 92 of the Food Safety and Standards Act, 2006 (Central Act 34 of 2006) read with section 26 thereof, prohibits articles of food in which tobacco and W.P.C.Nos.13580 of 2012 & conn.cases 3 nicotine are used as ingredients, as they are injurious to health; AND WHEREAS, gutkha and panmasala are articles of food in which tobacco and nicotine are widely used as ingredients now-a-days, AND WHEREAS, it is expedient to prohibit gutkha and panmasala in the State of Kerala, being food products in which tobacco and nicotine are widely used as ingredients; AND WHEREAS the Commissioner of Food Safety of the State is empowered under Section 30 of the Food Safety and Standards Act, 2006 to prohibit in the interest of public health, the manufacture, storage distribution or sale of any article of food in the whole of State. NOW, THEREFORE, in pursuance of regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011, the manufacture, the storage, the sale or the distribution of gutkha and panmasala containing tobacco or nicotine as ingredients, by whatsoever name it is available in the market, is hereby prohibited in the State of Kerala in the interest of Public Health.” W.P.C.Nos.13580 of 2012 4 & conn.cases 3. Petitioner therefore seeks a direction to the respondents to permit the petitioners to bring the articles covered by Exts.P4, P5 and P6 series to their respective shops for trade and for a declaration that the flavoured chewing tobacco is not banned in the State of Kerala under any law in force. 4. W.P.C.No.16496 of 2012 is filed by a manufacturer of tobacco products under the brand name of Khaini and Cool lip Filter Khaini. They also contend that chewing tobacco is not an article banned in Kerala and the respondents are not permitting the sale of such article pursuant to the order banning gutkha and panmasala containing nicotine and tobacco by virtue of Government Order in terms of Regulation 2.3.4 of Regulations 2011. According to them, the product is permissible to be sold subject to the restrictions imposed under the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as CTP Act) and there is no ban on the sale of the said products and the ban of gutkha and panmasala containing tobacco or nicotine cannot be W.P.C.Nos.13580 of 2012 5 & conn.cases used as a reason for not permitting tobacco products for being stored and they seek for a declaration for permission to sell the said products within the State of Kerala and further for a declaration that the products are not banned in the State of Kerala. 5. W.P.C.No.21854 of 2011 is filed by a wholesale dealer of tobacco products under the brand name Hans khaini, Madhu Khaini, Chaini Khaini and Cool Khaini. He has also taken identical contentions as that of other petitioners and challenges the action of the official respondents in not permitting the import of tobacco products to the State of Kerala or sale of the same on the basis of the Government Order banning gutkha and panmasala containing tobacco and nicotine as ingredients. 6. The 2[nd] respondent has filed a counter affidavit in W.P.C.No.13580 of 2012. A voluntary organization has filed I.A No.8558 of 2012 for impleading as additional 5[th] respondent which is already allowed. Second respondent has filed a counter affidavit in W.P.C.No.16496 of 2012 and adopted the same contention as in W.P.C.No.21854 of 2012 by filing a memo. W.P.C.Nos.13580 of 2012 6 & conn.cases 7. Common contention urged by the 2[nd] respondent in the counter affidavit is that the petitioners were trying to transport banned products under the name flavoured chewing tobacco. According to them, the products which are sought to be transported come within the prohibition imposed as per order dated 22/05/2012 whereby gutkha and panmasala containing tobacco and nicotine has been banned. According to them, when it is an admitted fact the product contains lime, aromatic substances and added flavours, it is not 100% tobacco products and the petitioners cannot take shelter under the CTP Act. It is the contention that the ban issued by the Government in respect of gutkha and panmasala containing nicotine and tobacco is not with reference to any particular brand name and even if the same is available in the market in any other name, the ban clearly applies. They also contend that chewing tobacco brought by the petitioner is a food item coming within the purview of FSS Act and when it is an admitted fact that it contains tobacco the prohibition applies. 8. Heard Sri.N.N.Sugunapalan, Sri.Joseph Kodianthara and Sri.Vijaya Bhanu learned senior Counsel appearing on behalf W.P.C.Nos.13580 of 2012 & conn.cases 7 of petitioners and also Sri.Tom K.Thomas, Special Government Pleader and Adv.Shaji P. Chaly appearing on behalf of additional 5[th] respondent in W.P.C.No.13580 of 2012. 9. The learned senior counsel appearing for petitioners rely upon the provisions of CTP Act in order to contend that when the manufacture and sale of tobacco products is determined by the provisions of the CTP Act, it is not a food as defined under the FSS Act. It is therefore their argument that chewing tobacco which is mentioned as item No.6 in the Schedule to CTP Act is controlled by the provisions of CTP Act and the Rules thereunder alone and the ban imposed on gutkha and panmasala containing tobacco and nicotine cannot be imposed on tobacco or tobacco products. 10. Reference to CTP Act would indicate the following: - (i) The preamble to the Act indicates as under: - “An Act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.” W.P.C.Nos.13580 of 2012 & conn.cases 8 (ii) Section 3(p) defines tobacco products as under: 3. Definitions.—In this Act, unless the context otherwise requires,— (p) “tobacco products” means the products specified in the Schedule. (iii) Section 6 prohibits sale of tobacco products to any person who is under 18 years of age and an area within a radius of 100 yards of any educational institution. Section 6 reads as under. ## **6. Prohibition on sale of cigarette or other tobacco products to a person below the age of eighteen years and in particular area** .— No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product— (a) to any person who is under eighteen years of age, and (b) in an area within a radius of one hundred yards of any educational institution. (iv) Section 7 imposes restriction on trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products which reads as under: ## **7. Restrictions on trade and commerce in,** **and production, supply and distribution of cigarettes and other tobacco products** .— W.P.C.Nos.13580 of 2012 & conn.cases 9 (1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label,[1] ~~[~~ such specified warning including a pictorial warning as may be prescribed]. (2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning. (3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning. (4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration. W.P.C.Nos.13580 of 2012 10 & conn.cases (5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible limits thereof : Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act. (v) Section 12 gives the power to any police officer not below the rank of Sub Inspector or any Officer of State Food or Drug Administration to enter, search and conduct seizure of materials manufactured or sold in violation of the provisions of the Act which reads as under; **12. Power of entry and search** .—(1) Any police officer, not below the rank of a subinspector or any officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of Sub-Inspector of Police, authorised by the W.P.C.Nos.13580 of 2012 & conn.cases 11 Central Government or by the State Government may, if he has any reason to suspect that any provision of this Act has been, or is being, contravened, enter and search in the manner prescribed, at any reasonable time, any factory, building, business premises or any other place, (a) where any trade or commerce in cigarettes or any other tobacco products is carried on or cigarettes or any other tobacco products are produced, supplied or distributed; or (b) where any advertisement of the cigarettes or any other tobacco products has been or is being made. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to every search and seizure made under this Act. (vi) Section 22 imposes the punishment for contravening any provisions under Section 5 of the Act which reads as under: **22. Punishment for advertisement of cigarettes and tobacco products** .—Whoever contravenes the provision of Section 5 shall, on conviction, be punishable— (a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one W.P.C.Nos.13580 of 2012 12 & conn.cases ## thousand rupees or with both, and (b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees. (vii) Section 24 further imposes a punishment for sale of such products contravening Section 6 of the Act which reads as under: ## **24. Punishment for sale of cigarettes or any other tobacco products in certain places or to persons below the age of eighteen years** . (1) Any person who contravenes the provisions of Section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees. (2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973 (2 of 1974). (viii) By virtue of Section 31, the Central Government is given power to make rules. 11. The Schedule to the Act includes various products including chewing tobacco, panmasala and gutkha. Along with W.P.C.Nos.13580 of 2012 13 & conn.cases panmasala it is also mentioned that any chewing material having tobacco as one of its ingredients (by whatever name called) is also included as part of the Schedule coming under Section 3 (p) of the Act. 12. Therefore it is not in dispute that the provisions of CTP Act applies with reference to manufacture and sale of tobacco products which apparently includes chewing tobacco as well. But the argument of the respondents is that though restrictions are imposed under the CTP Act in relation to Tobacco products, the same does not mean that FSS Act, has no application if Tobacco products are used as “Food” as defined in the FSS Act, as FSS Act is in addition to and not in derogation of any law. 13. Then the question is whether chewing tobacco is a “food” as defined under the FSS Act. ## (i) **Preamble** An Act to consolidate the laws relating to food and to establish the Food Safety and Standards Authority of India for laying down science based standards for articles of food and to regulate their manufacture, storage,distribution, sale and W.P.C.Nos.13580 of 2012 & conn.cases 14 import, to ensure availability of safe and wholesome food for human consumption and for matters connected therewith or incidental thereto (ii) The definition of food under FSS Act is as under: **3. Definitions** .—(1) In this Act, unless the context otherwise requires,— (j) “food” means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances: Provided that the Central Government may declare, by notification in the Official Gazette, W.P.C.Nos.13580 of 2012 15 & conn.cases any other article as food for the purposes of this Act having regards to its use, nature, substance or quality; 14. Senior Counsel Sri.Joseph Kodianthara referred to the provisions in the Central Excise notification to contend that“chewing tobacco” is considered as a separate item and therefore it cannot be equated with Panmasala or Gutkha which are again treated as distinct items as per Central Excise Notification. The argument is that going by any law on the point chewing tobacco is classified as a distinct item and cannot be equated with Panmasala which is another distinct item or Gutkha which is another distinct item. Therefore according the learned counsel unless Tobacco or Tobacco products are specifically described in the FSS Act as a Food Product, the supply and sale cannot be prohibited or regulated in the State of Kerala, and at any rate Ext.P9 has no application to such products. 15. It is further contended by the learned senior counsel in so far as the FSS Act is concerned the schedule to the Act prescribes standards for Panmasala whereas there is no such entry in the FSS Act or the Rules framed thereunder in relation W.P.C.Nos.13580 of 2012 & conn.cases 16 to chewing tobacco. 16. Learned counsel also referred to judgment of Delhi High Court in **Ram Babu Rastogi & Ors. v. State Through Food Inspector (PFA), Government of NCT of Delhi** [Crl.M.C.No.1360 of 2011] to contend that chewing tobacco is not a 'food product' and a Division Bench of Madras High Court in **Dharampal Satyapal Ltd. v. Commercial Tax Officer, Coimbatore** [2009 (243) ELT 179] in order to contend that the above products are treated as distinct and different items. 17. On the other hand, the Sri.Tom K.Thomas Special Government Pleader argued that it is admitted by the petitioners that the tobacco which they are manufacturing contains other food items and the packet is printed with vegetarian logo as applicable to food items which is a mandatory declaration under FSS Act and the labelling regulations. 18. It is also argued that as per Section 3(j) of the FSS Act the definition clause clearly indicates that it is an inclusive decision. Any substance which is “intended for human consumption and includes various types of food articles including chewing gum, alcoholic drink etc. which also indicates that W.P.C.Nos.13580 of 2012 17 & conn.cases though certain type of items are not treated as food, if it is intended for human consumption it becomes food as defined under Section 3(j) of the Act and for that reason it is open for the authorities to take action by way of seizure or preventing the sale of the said product. 19. Learned counsel also relied upon the constitution bench judgment in **Pyarali K.Tejani v. Mahadeo Ramchandra Dange** [(1974)1 SCC 167] especially paragraph 14 to highlight the definition of food which reads as under: **“14** . We now proceed to consider the bold bid made by the appellant to convince the Court that supari is not an article of food and, as such, the admixture of any sweetener cannot attract the penal provisions at all. He who runs and reads the definition in Section 2(v) of the Act will answer back that supari is food. The lexicographic learning, pharmacopic erudition, the ancient medical literature and extracts of encyclopaedias pressed before us with great industry are worthy of a more substantial submission. Indeed, learned Counsel treated us to an extensive study to make out that supari was not a food but a drug. He explained the botany of betal nut, drew our attention to Dr Nandkarni's Indian Materia Medica, W.P.C.Nos.13580 of 2012 & conn.cases 18 invited us to great Susruta's reference to this aromatic stimulant, in a valiant endeavour to persuade us to hold that supari was more medicinal than edible. We are here concerned with a law regulating adulteration of food which affects the common people in their millions and their health. We are dealing with a commodity which is consumed by the ordinary man in houses, hotels, marriage parties and even routinely. In the field of legal interpretation, dictionary scholarship and precedent-based connotations cannot become a universal guide or semantic tyrant, oblivious of the social context subject of legislation and object of the law. The meaning of common words relating to common articles consumed by the common people, available commonly and contained in a statute intended to protect the community generally, must be gathered from the common sense understanding of the word. The Act defines “food” very widely as covering any article used as food and every component which enters into it, and even flavouring matter and condiments. It is commonplace knowledge that the word “food” is a very general term and applies to all that is eaten by men for nourishment and takes in subsidiaries. Is supari eaten with relish by men for taste and nourishment? It is. And so it is food. Without tarrying further on this unusual argument we W.P.C.Nos.13580 of 2012 19 & conn.cases hold that supari is food within the meaning of Section 2(v) of the Act” _._ ## **Krishan Gopal Sharma v. Govt. of N.C.T.of Delhi** [1996 (4) SCC 513] is also relied upon, wherein the Supreme Court had held as under: “The pan masala and the mouth freshner are undoubtedly within the meaning of ‘food’ under Section 2(v) of the Prevention of Food Adulteration Act. ‘Food’ under the said Act has been defined very widely”. 20. Sri.Shaji.P.Chaly appearing for the additional 5[th] respondent while supporting the argument of the learned Special Government Pleader further contends that the provisions of the Act clearly mandates that a food item shall not contain tobacco. Even if tobacco is also an item classified under the CTP Act it does not mean that it will not be a food item as long as it is used for chewing by the consumers which clearly indicates that despite being scheduled under the CTP Act it is also used as a food item containing tobacco and hence the ban imposed by the Govt. under regulation 2.3.4 applies. W.P.C.Nos.13580 of 2012 20 & conn.cases 21. Having heard the learned counsel on either side the question to be considered is whether “chewing tobacco” manufactured or dealt with by the petitioners can be prohibited from being brought into Kerala or from selling the same as if it is a”food” as defined under the FSS Act. 22. It is not in dispute that the official respondents have relied upon Ext.P9 order to prevent chewing tobacco to be brought into State of Kerala where there is a ban on supply and sale of gutkha and panmasala “containing nicotine or tobacco” by whatever name called. Therefore irrespective of the name of the product or brand name of the product, if it is panmasala or gutkha, the ban applies. Gutkha admittedly contains tobacco. In respect of panmasala, the ban is only if it contains tobacco or nicotine. The question here is whether tobacco by itself with some additives like lime or other flavouring substances can be prevented from being brought to State of Kerala or can be seized by the official respondents under the guise of the aforesaid ban. 23. Regulation 2.3.4 under which the aforesaid ban has been created reads as under: W.P.C.Nos.13580 of 2012 21 & conn.cases “2.3.4: Product not to contain any substance which may be injurious to health: tobacco and nicotine shall not be used as ingredients in any food products .” 24. Therefore primarily chewing tobacco should be a food product. If it is not a food product, apparently regulation 2.3.4 does not apply. The controversy therefore is only regarding the question as to whether the products manufactured and sold by the petitioners is a food product. 25. Going by the definition, it only indicates that any substance whether processed, partially processed or unprocessed which is intended for human consumption is meant as food. Tobacco as it is cannot be treated as food and the respondents do not have such a case also. According to the respondents, the additives of lime or other substance in the tobacco makes it a food product as it is used for human consumption. According to the respondents the juice of the tobacco is consumed and therefore it becomes a food product. 26. In the normal circumstances one cannot imagine tobacco as a food item as no one consumes tobacco as it is. But, in a processed form when it is used for chewing, whether it W.P.C.Nos.13580 of 2012 22 & conn.cases becomes a food product is the question. According to the learned Government Pleader, when chewing gum and supari is included as food product, necessarily chewing tobacco also should be treated as the same. It has to be remembered that Section 3(j) of FSS Act defines food and then by virtue of a legal fiction it provides an inclusive definition of certain other items which are not generally treated as food and by virtue of that fiction certain substances like primary food as defined under Z(k) genetically modified or engineered or goods containing such ingredients, infant food, package drinking water, alcoholic drink, chewing gum and any substance including water is considered to be food. That does not by itself mean that a product not named in the inclusive definition which is not a food will become a food product unless it is shown that it is eaten with relish be men for taste or nourishment as held in **Pyarali K.Tejani** (Supra). The fact that tobacco is a product which is to be avoided is clear from the Regulation 2.3.4 itself. In fact tobacco in any food product is prohibited. This itself indicates that tobacco is not a food product. It might at best be an intoxicant, which is not used for taste or nourishment. Therefore, I am of the view that chewing W.P.C.Nos.13580 of 2012 23 & conn.cases tobacco or tobacco products are covered by the provisions of CTP Act, and FSS Act has no application to such products. I am in respectful agreement with the judgment of Delhi High Court in **Ram Babu Rastogi & Ors.** (Supra). 27. Though the learned counsel for the petitioners tried to draw distinction in respect of the chewing tobacco with reference to the provisions of Central Excise Act and the relevant provisions by which separate duty is being imposed, such items like chewing tobacco, panmasala or Gutkha, I do not think that reference to imposition of excise duty for the said items by itself will not amount to treating the said items as different or distinct, when the matter is being considered as to whether chewing tobacco is a food or not. 28. Now coming to Ext.P9 order, which imposes a ban on Gutkha and Panmasala containing tobacco or Nicotine, the said ban can have no application to tobacco or chewing tobacco or tobacco products as the case may be. From a reading of the provisions of the Act, it cannot be said that chewing tobacco or tobacco products are treated as food products and therefore there is no power under Clause 2.3.4 of the Regulations to W.P.C.Nos.13580 of 2012 24 & conn.cases impose a ban on tobacco or tobacco products, whereas the ban is confined only to Gutkha and Panmasala containing tobacco and Nicotine. 29. It is argued by the learned Special Government Pleader that Ext.P9 order is still in force and the respondents have to implement the same. It is not in dispute that the Regulation permits the Government to impose any restriction on any food product containing tobacco or Nicotine. But, it cannot prohibit the manufacture and sale of tobacco or tobacco products which cannot be considered as a “food product”. 30. Having found that chewing tobacco is not a food product as defined under the FSS Act, I am of the view that the writ petitions are only to be allowed as follows: i) That tobacco or tobacco products are not food as defined under Section 3(j) of the FSS Act and it is not a food product as specified in the Regulation 2.3.4 of the Regulations. ii) Tobacco and tobacco products are to be manufactured and sold strictly in accordance with the provisions of the CTP Act and the Rules framed thereunder. W.P.C.Nos.13580 of 2012 25 & conn.cases iii) The respondents have no right take any action against tobacco or tobacco products by virtue of Government Order dated 22/05/2012 (Ext.P9 in W.P.C.No.13580 of 2012). ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.Nos.13580 of 2012 26 & conn.cases W.P.C.Nos.13580 of 2012 27 & conn.cases