Madras HC quashes notification banning gutka, pan masala in TN

Court says FSS Act doesn’t provide for complete ban on sale of gutka products, also quashes criminal proceedings launched on the basis of the notification
Image used for representative purpose only. (File Photo| PTI)
Image used for representative purpose only. (File Photo| PTI)

CHENNAI: The Madras High Court on Wednesday quashed the notification issued by the commissioner of food safety banning the sale and manufacture of gutka and pan masala in Tamil Nadu. A division bench of Justices R Subramanian and K Kumaresh Babu, who said the notification was beyond the scope of the powers of the commissioner of food safety under Section 30(2)(a) of the Food Safety and Standards (FSS) Act, also quashed the criminal proceedings launched on the basis of the ban imposed by the notification. 

The bench said the FSS Act does not provide for complete ban on sale of gutka products. It only provides for limited power to impose a temporary ban in certain emergency situations. In 2013, the then AIADMK government imposed the ban on sale and manufacture of gutkha and pan masala products under the temporary provision in the FSS Act which was extended continuously by the commissioner of food safety by issuing periodic notifications. The court passed the order on a batch of pleas and appeals moved by manufacturers of tobacco products and the food safety department.

In 2016, the Income Tax Department had unearthed a gutka scam where kickbacks were allegedly paid to top politicians and officials by gutka manufactures to allow illegal sale. “The Parliament was alive, when it enacted FSS Act, to the perils caused by consumption of tobacco. We must also assume that the Parliament was alive to the perils caused by consumption of tobacco even when it enacted COTPA (Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003). Neither of the enactments, unfortunately, provide for a complete ban on tobacco products. While the provisions of COTPA seek to ban advertisements and regulate usage, the provisions of FSS Act do not contain any power to impose a permanent ban on tobacco products,” the court said in its order dated January 20.   

The court said if it upholds the power of the commissioner of food safety to issue successive notifications under the FSS Act, thereby imposing an almost permanent ban on a food product, it will be permitting something which was not contemplated by law and that will amount to violating the provisions of the enactment.

“We are, therefore, constrained to conclude that the successive notifications issued by the commissioner are not within their powers and they have exceeded their powers in issuing such successive notifications. 
“We, therefore, quash the notifications on the ground that they are in excess of the powers of the commissioner of food safety,” the court said.

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