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Supreme Court stays Madras high court order which quashed the ban on chewing tobacco in Tamil Nadu

The supreme court on Tuesday stayed the madras high court judgement which quashed the government ban on the sale of gutka, pan masala and other tobacco products in Tamil Nadu.

The apex court bench comprising justices KM Joseph and BV Nagarathna, was hearing an appeal filed by the state against the madras high court judgement of January 2023. The Madras high court had held that notification issued by state government authority can only impose a temporary ban on tobacco and tobacco products. Imposing a permanent ban by issuing successive notifications would amount to conferring a power that was not provided in the law. Therefore, it set aside the notification based on the observation that the state commissioner had exceeded his powers.

Senior Advocate Kapil Sibal appearing for the State of Tamil Nadu stated that Section 30 of the FSSA confers power on the State Government (Commissioner of Food Safety) to prohibit the manufacture, storage, distribution or sale of any food article in the whole State in the interest of public health. He said health is a state subject and the state government has every right to take care of the health of its citizens. He emphasised that the prohibition imposed by the state was on a food article that causes cancer. “It is a public health concern and my duty is to protect people of the state,” he said. 

Senior Advocate Abhishek Manu Singhvi, appearing for one of the respondents, argued that the power for such an absolute ban lay with Parliament alone, and not the State legislature.

“Chewing tobacco is admittedly not food. It is a paradox, but it is not ingested but taken for flavour in the mouth and then spit out. As to the act of mixing with pan masala which may or may not produce gutka, there is no allegation that we are mixing. I am a manufacturer and supplier. You cannot punish those who produce, by trying to regulate mixing. Lordships cannot allow circumvention and mockery.”

The supreme court bench stayed the high court judgement for three months after hearing all parties. The court said, “We are of the view that the petitioners have made out a case to stay the impugned judgment as to paragraph 13. Stay is for a period of three months”. The court also clarified that the manufacturers (respondents) may seek redressal at an appropriate forum if they have a case that their acts are not covered by the notifications in question. 

Written by- Shagun Behal

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