Case Law Details
S. Harichandran Secretary Vs Commissioner of Police (Madras High Court)
The petitioner filed a Criminal Original Petition seeking a direction restraining the police from harassing the petitioner and the staff in connection with the operation of the restaurant-cum-bar “The Thief” at Nungambakkam, Chennai, where herbal hookah services were also provided. The petitioner stated that the restaurant was being operated after obtaining the required licences and that a separate earmarked smoking area had been created for serving herbal flavour hookah without any tobacco or nicotine content. According to the petitioner, the police were repeatedly interfering with the business and directing closure of the establishment on the allegation that tobacco products were being sold.
The petitioner contended that serving and smoking herbal hookah was neither banned nor prohibited under any law and undertook that no tobacco or nicotine products would be used within the premises.
The respondents submitted that they were not interfering with the restaurant business but were concerned about the serving of tobacco and nicotine products through hookah bars. They contended that if the petitioner claimed that the products used did not contain tobacco or nicotine, the petitioner had to establish the same before the competent authorities, particularly the Food Safety and Standards Authority of India (FSSAI).
The High Court observed that the petitioner’s claim that the herbal hookah products did not contain tobacco or nicotine could not be accepted merely on oral submissions. Whether the products actually contained tobacco or nicotine was a matter requiring expert determination and could not be decided by the Court.
The Court noted that the State Government had introduced Section 4-A into the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA Act) through L.A. Bill No. 57 of 2022, prohibiting hookah bars. The Court held that the question whether the petitioner’s hookah contained tobacco or nicotine had to be determined by the competent authority.
The Court further observed that, having regard to the COTPA Act and the Food Safety and Standards Act, 2006, if the hookah product contained tobacco with nicotine, it would be governed by the COTPA Act. Further, inhalation of smoke derived from products other than tobacco containing nicotine would also fall within the definition of “food” under Section 2(za) of the Food Safety and Standards Act. Therefore, if the petitioner intended to operate an enclosed herbal hookah zone, the petitioner had to establish that the activity did not take place in a public place, including a restaurant, and did not fall within the prohibition under the COTPA Act.
The Court held that the petitioner could not use tobacco or any product containing nicotine in view of the prohibition under Section 4-A of the COTPA Act. If the petitioner proposed to use products claimed to be herbal and free from nicotine, compliance with the provisions of the Food Safety and Standards Act, 2006 was required.
Accordingly, the Court directed the petitioner to approach the FSSAI authorities and furnish details of all ingredients used in preparing the hookah products. The Food Safety Officer was directed to draw samples and send them for laboratory testing. If the authorities were satisfied that the products did not contain tobacco or nicotine, the petitioner would be at liberty to continue the hookah business.
With regard to the restaurant business, the Court directed that the police should not interfere with its operation. However, it clarified that the police remained at liberty to take action if any illegal activities were found to be carried on at the petitioner’s premises.
The Criminal Original Petition was disposed of with the above directions.
FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT
This Criminal Original Petition has been filed to direct the respondents not to harass the petitioner and their staff in relation to the running of their Restaurant cum Bar premise namely “The Thief” along with Herbal Hookah services (without any content or trace of Tobacco and Nicotine) at No.50 (150), Kodambakkam High Road, Dr.MGR Salai, Nungambakkam, Chennai – 600 034.
2. It is the case of the petitioner that he is running a restaurant under the name and style of “The Thief” after obtaining required licenses. It is further stated that a separate earmarked smoking area has been provided for serving herbal flavour hookah without any content or trace of Tobacco or Nicotine. According to the petitioner, the respondents are frequently interfering with the petitioner’s business and are also directing the petitioner to close down their restaurant contending that the petitioner is selling tobacco products. Hence, the present petition has been filed.
3. Learned counsel for the petitioner would submit that serving and smoking of herbal hookahs is not banned or prohibited under any law and the same is permissible. The learned counsel would also submit that the petitioner undertakes that no Tobacco or Nicotine products would be used within the subject premises.
4. Whereas, the learned Additional Public Prosecutor appearing for the respondents would submit that the respondents are not disturbing the petitioner’s business, but they are only concerned about serving of Tobacco and Nicotine product by way of hookah bars. If the petitioner is of the view that their products do not contain any Tobacco or Nicotine, it is for the petitioner to satisfy the competent authorities, particularly the Food Safety and Standards Authority of India (FSSAI).
5. Though the petitioner states that they are not using any Tobacco or Nicotine products in the earmarked smoking area for serving herbal flavour hookah, the question as to whether the so-called herbal products, as claimed by the petitioner, contain Tobacco or Nicotine or not, can only be determined by the experts and not by this Court. This Court cannot proceed merely on the basis of oral submissions.
6. It is relevant to note that, by way of amendment brought by the State Government under L.A.Bill No.57 of 2022, Section 4-A was introduced to Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (“COTPA Act” for brevity), which prohibits hookah bars. Therefore, whether the petitioner’s hookah contains Tobacco or Nicotine or not, is an issue that has to be determined by the competent authority.
7. On considering the provisions of the COTPA Act and Food Safety and Standards Act, 2006, if the product used in the hookah is Tobacco containing Nicotine, it will fall under the COTPA Act. Further, the inhalation of smoke derived from any product other than Tobacco containing Nicotine, will also fall within the definition of “food” under Section 2(za) of the Food Safety and Standards Act. Therefore, if at all the petitioner wants to run an enclosed zone for herbal hookah, first of all, he has to satisfy that his trade is not in a public place which includes restaurant and does not fall within the prohibition under COTPA Act.
8. The petitioner cannot use Tobacco or any product containing Nicotine in view of the prohibition under Section 4-A of the COTPA Act, and in case, if he wants to use any product other than that containing Nicotine and claims it to be a herbal product, the same must be in satisfaction with the provisions of Food Safety and Standards Act, 2006.
9. Therefore, the petitioner is directed to approach the FSSAI Authorities and place before them all the ingredients used in the preparation of hookah in the petitioner’s premises. The Food Safety Officer may draw samples and send them to the laboratory for testing. If the authorities are satisfied that the products used by the petitioner in their hookah do not contain any Tobacco or Nicotine, the petitioner is at liberty to continue his business in respect of running of the hookah bar.
10. Insofar as the running of the restaurant is concerned, the respondents shall not interfere with the petitioner’s business. However, it is made clear that the respondents Police are always at liberty to take action, if any illegal activities are found to be carried on in the petitioner’s premises.
11. With the above directions, this Criminal Original Petition stands disposed of.
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