Godawat Pan Masala Products Private Ltd. v. Union of India

AUTHOR: NAVEENA K, CHETTINAD SCHOOL OF LAW

ABSTRACT / HEADNOTE

The case involved writ petitons and appeals the all of the case has be issued the same issue with different state.The main issue was the validity of notification issued by Food (Health) Authority under the Prevention of food adulteration act 1954.Banning of panamasal and gutka tobacco products for diferent period in various states.The appeal has been filed by the appeallants after the dismissal of case in Highcourt of Judicature of BombayThe Supreme Court admitted the special leave petitions and the writ petition and decided to hear them together due to the similarity of the legal issues involved.Further it was decided that the State food authority has no longer power,the order has been quashed,it is violating the art 19,14 is being unconstitutional and the act is ultravires works beyond the power.The impunged notification has been  cancelled.The COTPA act 2003 prevails over the Prevention of food adulteration act 1954.

Keywords: Food (Health) Authority, Prevention of food adulteration act 1954,Panmasla gutka, Ban, public health, Writ petition, Validity, Highcourt of Judicature of Bombay.

CASE DETAILS

Judgement Cause TitleGhodawat Pan Masala Products and Ors. V Union of India
Case NumberAppeal (civil) 4674/2004
Judgement Date02/08/2004
CourtSupreme Court Of India
QuorumK.G. Balakrishnan, B.N. Srikrishna
AuthorGauri Fatangare
Citation(2004)7SCC 68
Legal Provisions InvolvedSec7(iv),Sec23,Sec24- Prevention of Food Adulteration Act,1954. Sec 6 – Cigarettes and Other Tobacco Products (prohibition of Advertisement and Regulation of Trade and Commerce,Production supply and Distribution)Act 2003.

INTRODUCTION

Food is most essential to human and its should be fresh,pure and healthy without any adulteration.Pan masala & Gutka are very bad to people using ,it causes cancer and they are very harmful substances which affect all the organs of the body.cheap in cost high risk factor.

In the case “Godawat Pan Masala Products & Ors v. UOI ”.State had issued the notification on 23rd July to banning the manufactures, sales,storage and distribution of pan masala and gutkas by the Food health Authority under Sec 7 (iv) of Prevention of food Adulteration. act 1954.The validity of  notification been challenged by the manufacturing and selling companies of Pan masala and Gutka[i]. 4 states had challenged the notification -Tamilnadu,Maharashtra,Andhra Pradesh ,&Goa:

  1. By Notification dated  19th Nov,2001 issued by Director for Public Health and Preventive Medicine and State Food (Health) Authority ,Govt of  Tamilnadu, under sec 7(iv) of act that no person shall himself or by 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 of description in the State of TN. The petitioner also challenged the notification.
  2. By Notification dated 23rd July,2002 issued by the Commissioner , Food and Drug Administration and Food (Health) Authority for State of Maharastra,the manufactures, sales, storages and distribution of Pan masala and gutka were banned period of  5 years effect from 1st Aug, 2002.
  3. By notification dated 19th Feb 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.
  4. By another notification dated 27th Feb 2002,  issued by same authority of State of AP under Sec 7(iv) of the Act, sale of all brands of pan masala containing tobacco and chewing tobacco /zarda/khaini under any brand name is prohibited.
  5. 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.”

Those above all 4 states notifications were challenged by appellants before high courts.The high courts had given the Judgments, that dismissed the WP upholding checking the validity of the notification. So being the aggrieved party these appellants filed the appeal before the Supreme Court of India.

BACKGROUND OF THE JUDGEMENT

Sec 7( iv) of the act is not an independent source of power of the state authority. The  power of banning the food articles used as ingredient of food, on the ground that is injurious to health , belongs appropriately to the Central Government to be exercised in accordance with rules made under Sec 23 of the act ,sub section (1A)(f).

The power of food (Health) Authority under the rules is only of transitory nature and intended to deal with local emergencies and can last only for shirt period with emergency cases lasts.

The impunged notification had been act of Ultravires and it is bad in law,the notification is held to be unconstitutional and void abridging the Fundamental Rights of the appellants guaranteed under Art 14 and Art 19 of the Indian Constitution.

In the decisions of Supreme court Central Government only ban the food either by parliamentary under the Prevention of Food Adulteration Act,1954 (food act).The court found that states do not have the power to ban even if the states invoke the provisions of the food act.The court quashed the order of Highcourts, the Supreme court also maintained that it could not agree with petitioners contentions that pan masala and gutka are not food.

FACTS OF THE CASE

The case involve multiple appeals and WP these all petitions were arises in different areas or states but all the issues were raises the similar legal issues,banning of manufacturing , selling,storages, distributing of panmasala and gutka (containing tobocco products) by the Food ( health ) Authority in the different states for the different periods.

Civil Appeal arising out of SLP(C) No. 24449 of 2002. In one instance, the appellants (Godawat Pan Masala Products I.P. Ltd. & Anr.) challenged a notification issued by the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra. The notification issues in the date of 23rd July,2002 banned the manufactures,sales,storages distribution of  pan masala and gutka products, for the period of five years, this taken into effect from Aug 1st,2002. then the appellant filed the WP in high court of Bombay,it has been dismissed. The appeal has been filed in the Supreme court against the decisions of high court.

In another instances,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 had been challenged. 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.

The petitioners also challenged notifications issued by the Director for Public Health and Preventive Medicine and State Food (Health) Authority, Government of Tamil Nadu, and the Directorate of Food and Drugs Administration and Food (Health) Authority for the State of Goa.

LEGAL ISSUES RAISED

  1. Whether sec 7(iv) of the Prevention of Food Adulteration Act 1954 has as independent source of power or not?
  2. Whether the notifications issued by the Food (Health) Authority under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 is valid or not in all the cases?
  3. Whether the Food (health) Authority of the State has the power to banned the manufactures,sale, storages,distribution of food articles injurious to health or not?
  4. Whether the COTPA 2003 act prevails over the Prevention of food adulteration act ,1954 or not?

PETITIONER/ APPELLANT’S ARGUMENTS

The counsels for Petitioner / Appellant submitted that the validity of the notification issued by Food(health) Authority under sec 7(iv) is challenged, said they have no declaratory power. The appellant contended that the notifications of banning of the manufacture,sale,storage,and distribution of panmasala and gutka is violated their rights,and cause of business.In due of notification the appellant business and their live hood were affected  by the ban of panmasala and facing of financial loss.

Although the special act dealing tobacco COTPO act 2003 act does not ban the tobacco products completely, there is restriction place below the age of 18 years it should not be sale.

 The cancel of license is arbitrary an procedurally unfair, The State Food (health) Authority does not confer the powers.The Central government has its whole power and procedure establish in law.

RESPONDENT’S ARGUMENTS

The counsels for Respondent submitted that Sec 7 of the act is an independent source of power. “In the interest of public health”the State Authority had banned in the view of preventing the outbreaking or spread of infectious diseases.The respondent contented that the notification were issued after considering scientific evidence and expert opinions regarding the adverse health effects of consuming pan masala.The respondent emphasized that the act of banning is necessary to protect the health risk associated with these products.

The matter of public health are essentially matters of policy decision,legislative or administrative, are well planned and executed in the greater interest of public health by the Government and the court should not interfere with such policy matters.

RELATED LEGAL PROVISIONS

  1. Sec 7 (iv) Prevention of Food Adulteration act 1954-In the interest of pubic, this section gives power to the Food (health) Authority to prohibit the food articles deemed to be unsafe and harmful.
    1. Sec 22 A Prevention of Food Adulteration act 1954- The Central Government may give such directions as it may deem necessary to a State Government regarding the carrying into execution of all or any of the provisions of this Act and the State Government shall comply with such directions
    1. Sec 23 Prevention of Food Adulteration act 1954- The central government has power to make rules,it has a power to declare any substances which is injurious to health.
    1. Sec 24 Prevention of Food Adulteration act 1954 -The State Government may, after consultation with the Committee and subject to the condition of previous publication, make rules for the purpose of giving effect to the provisions of this Act in matters not falling within the purview of section 23.
    1. The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Act 34 of 2003) – This central legislation regulates the advertisement, trade, production, supply, and distribution of tobacco products.

JUDGEMENT (RATIO DECIDENDI)

Considering all above the facts,issues raised and principle of natural justice the held that:

  • Section 7(iv) of the Act is not independence source of power for the state authority.
  • The State Food (health) Authority power mentioned in Sec 24 of the act, under that the rules are only transitory nature, can be applied on local emergencies.
  • Section 23 of the act, Central Government has a power of banning an article of food or an article used as ingredient of food, on the ground that is injurious to health, this should be exercised in accordance with rules made under sec 23(1A)(f).
  • The State Food(health)Authority has no power to banned manufacture for sale,storage,sale,or distribution of any article. Such that power can only arise as result of policy decision or from Parliamentary legislation or by exercise of the powers by the Central Government by framing rules under Sec 23 of the act.
  • The provision of COTPO Act 2003 and Prevention of Food Adulteration Act 1954 have some inconsistency and conflicts thus the special law COTPO act will prevail.
  • The notification impunged are done beyond its legal power, it is act of Ultravires , and its unconstitutional and void as abridging the fundamental right of the appellants guaranteed under Article 14 and 19 of Constitution.
  • As the result the Judgement pronounced under the division bench of Bombay High Court and Andhra Pradesh High Court was quashed,and the notification impunged are also quashed and it is unenforceable against the appellants.

CONCLUSION & COMMENTS

Panmasala and Gutka are the highly consumed and easily available and consumed in India.Intaking of this substances causes injurious to health and oral cancer.The youngsters and being addictive and influencing in use of Gutka and Panmasala.As the Judgement said that State Authorities do not have power to ban panmasala and gutka(containing or not containing tobocco). But in the view of realising the serious consequences of tobacco it is also necessary that  State Authority holds the power to ban the Pan masala at Gutka. The conflict when arise between general and special law , the special statutes will prevail.

REFERENCES

Important Cases Referred

1) U.P State Electricity Board and Ors v. Hari Shanker Jain & ors[ii]

In this it was  referred that there is conflict between Special law and General law, the  both the laws are enacted by the same legislative body.if there is conflict with special and general law the special law must prevail.The maxim applied by the court in this case generalia specialibus non derogant.

In the case of Ghodawat Pan Masala vs UOI there is the conflict between Prevention of Food Adulteration act 1954 (general law) and COTPA act 2003(special law).Therefore COTPA act 2003 is prevail over the Prevention of Food Adulteration act 1954.

2) Khoday Distilleries Ltd .And Ors v. State of Karnataka and Ors[iii]

 In this case the concept of res extra commercium was explained.By referring this case the bench concluded that Pan masala and Gutka are not res extra commercium, they are not injurious to health,safety,and welfare of the general publuc and are on trade or business in activities which are immoral and criminal.

  • State of Tamil Nadu v. K.Sabanayagam and Anr.[iv]

In this instance, it was noted that the delegate may be needed to take into account which parties may be impacted by the use of power, even when performing a legislative role.In view of this, it was decided that the appellants who would likely be impacted by the prohibition order should have received access to all relevant information possessed by the Food (Health) Authority prior to making a judgement regarding the contested notification. They should have had a chance to face these facts, according to the natural justice concept. In the current instance, this has not been done. This is another reason why the notice is invalid under the law.

Important Statutes Referred

  1. Prevention of Food Adulteration Act,1954
    1. Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 
    1. Constitution of India[v]

[i] Prevention of Food Adulteration Rules, 1955,Appendix B para A.30

[ii] 1980 AIR 65, 1979 SCR (2) 355

[iii] 1996 AIR 911, JT 1995 (9) 449

[iv]  AIR 1998 SC 344

[v] Adopted 1949 enforcement 1950