LUCKNOW: The Lucknow Bench of the Allahabad High Court on Tuesday ruled that restaurants, cafes and other public places cannot serve hookah to customers even in designated smoking areas, holding that the practice is prohibited under the Cigarettes and Other Tobacco Products Act, 2003 (COTPA) and the Prohibition of Smoking in Public Places Rules, 2008.
Dismissing the main petition and all connected petitions, a division bench comprising Justice Shekhar B Saraf and Justice AK Chaudhary held that a designated smoking area was only a limited exception to the ban on smoking in public places and did not permit any service to be provided there.
The petitioners had sought permission for restaurants with valid food establishment licences to serve hookah in designated smoking areas and protection from police interference in their business.
The bench noted that following a 2017 amendment to the Rules, the expression “any other service” was replaced with “any service”, making it clear that preparing a hookah, filling it with tobacco, placing coal on it, delivering it to a customer or replacing the coal would amount to providing a service.
The petitioners had argued that if a ready-to-use hookah was handed over to a customer who then operated it himself, the activity should be treated as renting out an apparatus rather than providing a service. The bench rejected the plea, observing that the element of service was inherent in the preparation and operation of a hookah. The mere fact that the customer operated the hookah himself did not alter the legal character of the activity, it said.
The court also clarified that the Food Safety Department and municipal authorities had no power to issue separate licences for operating hookah bars. Police authorities, however, have the power under COTPA to conduct searches, seize articles and take penal action to ensure compliance with the statutory restrictions.
The bench observed that the fundamental right of non-smokers to breathe clean air in public places outweighs the right to carry on a business involving prohibited smoking activities. It held that operating hookah bars and serving hookah in restaurants amounted to a violation of the applicable statutory provisions.
The court directed that a copy of its judgment be sent to the Uttar Pradesh chief secretary and director general of police for necessary compliance.
