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Dhariwal Industries Ltd. and Anr. Vs. Union of India (UOI) and Ors.

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  • Decided on : Sep-18-2002

LegalCrystal Citation : legalcrystal.com/367013

Court : Mumbai

Reported in : 2003(2)BomCR698

Judge : R.M. Lodha and ;D.B. Bhosale, JJ.

Subject : Constitution;Food Adulteration

Decided On : Sep-18-2002

Acts : Prevention of Food Adulteration Act, 1954 - Sections 7, 23 and 23(1A); Prevention of Food Adulteration Rules, 1955 - Rules 32 and 42(3); Constitution of India - Articles 14, 19(1), 19(6), 21, 300A and 301 to 304; Code of Civil Procedure (CPC) , 1908 - Sections 20

Case Number : Writ Petition Nos. 1982, 2001, 2002, 2024, 2251 of 2002

Appellant : Dhariwal Industries Ltd. and Anr.

Respondent : Union of India (UOI) and Ors.

Advocate for Appellant : S.G. Aney, Sr. Counsel and ;Vineet Naik, ;Satish Shah and ;Vatsal Mehta, Advs., i/b., ;Bhaishanker Kanga and ;Girdharlal, Advs. in W.P. No. 2001/2002, ;F. Devitre, Sr. Counsel and ;Vatsal Mehta, Adv.,

Advocate for Respondent : Jyoti Pawar and ;D.A. Dubey, Advs. in W.P. Nos. 2001, 2002 and 2024/2002 for Respondent No. 1 and in W.P. Nos. 1982 and 2251/2002 for Respondent 3, ;G.E. Vahanvati, A.G., ;A. Kalyanram and ;R.M. Hakee

Disposition : Writ petition dismissed

Excerpt:
AND WHEREAS the said section 7 further prohibits any person for manufacture for sale, or store, sell or distribute any article of food, the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health under Clause (iv) of said section 7; AND WHEREAS the Food (Health) Authority of the State of Maharashtra, as stated above is satisfied that, the consumption of any article of food, containing tobacco or not containing tobacco, commonly known as 'GUTKA' or 'PAN MASALA' by whatever name called, is injurious to health; Chaudhary, Indian Council of Medical Research, New Delhi is also relied upon by the State Government and Food (Health) Authority which records-Human studies on Pan Masala tobacco like mixtures and limited studies of Pan Masala containing tobacco suggest that Pan Masala is likely to be carcinogenic. ) has from time to time considered various reports of expert groups on adverse effects of Gutka/chewing tobacco and the Committee in its 42nd meeting has strongly recommended that use of chewing tobacco in Pan Masala/Gutka or as an ingredient in any food item should be prohibited as consumption of these articles is definitely injurious to public health. directed gutka manufactures not to sponsor religious functions like Ganpati, Navratri festival and issued appeal to print media e. It is submitted in the said counter affidavit that the Central Committee for food standards, a statutory committee of experts, constituted under the provisions of section 3 of the Act of 1954 has recommended the imposition of a total ban on use of chewing tobacco in Pan Masala/Gutka or as an ingredient in food items in view of their adverse affects. Being aware of the ill effects of Pan Masala containing tobacco/gutka/chewing tobacco, as well as other tobacco products, the Central Government has stated that it has been taking appropriate steps from time to time to discourage their consumption and restrict their sale. The method of analysis is not well founded and to the conception of Hitech Analytical Works, there is no method of detection prevailing at present, whereby in any given item, magnesium carbonate as component itself can be found. Bobde would urge that the nature and extent of the power given to the Food (Health) Authority in the interest of public health is narrow and can be exercised in emergent situation which endangers public health like preventing outbreak or spread of infectious diseases. He started by saying that well settled principles relating to the matters pertaining to public health should be kept in mind by the Court while approaching such matters. State of Gujarat and another, 1989CriLJ889 ,wherein it was observed that the object and the purpose of the Act of 1954 are to suppress a social and economic mischief an evil which attempts to poison for monetary gains, the very sources of sustenance of life and the well being of the community. He submitted that the language of the statute like Prevention of Food Adulteration Act, 1954 should be construed which would suppress the mischief, advance the remedy, promote its object, prevent its subtle erosion and foil its artful circumvention. ) (i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative; We need not over-emphasise that the demarcation of legislature fields under the entries is not like watertight compartments and it happens sometimes that such legislative fields overlap. A slight transgression, if at all it can be said, by Parliament by enacting the provision like section 7(iv) concerning public health in the Central Act like Prevention of Food Adulteration cannot be said to be beyond legislative competence of the Parliament outside the legislative field of the Parliament in relation to subjects covered under List III. It is intended to suppress a social and economic mischief-an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well being of the community. It is well-settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. It has already been noted by us that it is always open to legislature to deal with the incidental and ancillary matters to make legislation effective and while enacting the law concerning the prevention of food adulteration if the Parliament has provided for a power to the Food (Health) Authority to prohibit the sale of article of foods for the time being in the interest of public health, at best such law concerning public health is incidental entrenchment which cannot be labelled exceeding the power of the Parliament. The aforesaid discussion squarely answers question (iii) as well. One of the incidental questions that arose before the Apex Court was whether reasonable restriction under Article 19(6) of the Constitution can be placed only by act of legislature or by subordinate legislation as well. (b) The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. No one has the right to carry on any trade or occupation or business which is inherently vicious and pernicious and is condemned by all civilised societies. According to this study, five common popular brands of Pan Masala showed the presence of polyaromatic hydrocarbons, nitrosamines and toxic metals like lead, cadmium and nickel. 'A Comparative Clinico-Pathological Study of Oral sub-mucous fibrosis in Habitual Chewers of Pan Masala and Betelquid',suggests that habitual chewing of Pan Masala are more prone to oral fibrosis in comparison to users of betel quid as the betel leaf is known to be rich in beta carotene and hydroxychavicol which have the capacity to quench free radicals that are mutagenic. On the basis of literatures/studies available so far on adverse effects of consumption of Pan Masala containing tobacco/gutka/chewing tobacco, the experts strongly recommended that use of chewing tobacco in pan masala/gutka or as an ingredient in any food item or as such, should be prohibited as consumption of these articles is definitely injurious to public health. Chaudhary has stated as well that the Central Committee for Food Standards, a Statutory Committee of experts, constituted under the provision of section 3 of the Act of 1954 to advise the Central and State Government on the matters arising out of the administration of the said Act, has recommended the imposition of total ban on use of chewing tobacco ingredients in pan masala/gutka or as an ingredient of food item, or as such, in view of their adverse effects. A restriction which is commensurate with the need of time in helping good of public health or prevent danger to public health cannot be said to be unreasonable even though it goes to the extent of extinguishment of the individual's property or may cause hardship in individual cases. If health is wealth then good public health is national wealth and to preserve and protect national wealth in the nature of good public health is the obligation and responsibility of State. There is no doubt that right to life enshrined under Article 21 is the most precious fundamental right and permits a citizen to live he likes and eat what he chooses but in the very scheme of the Constitution such individual right must be subordinate to the public good. In a State, for the people, of the people and by the people, an individual right to choose must yield to the public good. We, accordingly, hold that there is nothing like an absolute right under Article 21 to make even a wrong choice which ultimately may affect and have impact on the society or a State as a whole. The challenge to the impugned order dated 23-7-2002 under Article 14 on the ground that other injurious articles like tobacco and cigarettes have not been prohibited, suffice it to say, that merely because it would have been better for the State to prohibit or ban other articles of food which are pernicious or injurious to health and which have not been banned cannot invalidate the impugned order dated 23-7-2002 and plea of discrimination shall not be available on that count. Besides that as we have already noted the activity of trade or business in the articles of food like Pan Masala and Gutka which are vicious, pernicious and injurious cannot be claimed as a matter of legal right. 39. We fail to appreciate how Article 304 has been pressed in service. Sibal, learned Senior Counsel, submitted that the conditions of licences are set out therein and once those conditions are satisfied, the authority prescribed under the Act of 1954 has an obligation to grant a licence. , as he then was) of Madras High Court in Gandhi Irwin Salt Manufactures Association (supra). In paragraphs 50, 57, 58 and 60 the learned Single Judge observed thus :50. In clear terms of section 7, the sale of edible common salt other than iodised salt is prohibited with effect on and from 1st January, 1995. The argument of the learned Counsel for the petitioners advanced at one stage that the impugned notification could have been issued for the time being limiting to a particular period, in the absence of limiting the period for which the prohibition was imposed, it was bad, no more remained available in; The Division Bench of Madras High Court negatived the contention advanced by the appellants/petitioners therein that section 107(a) of the Tamil Nadu Public Health Act, 1959 prescribed the conditions under which the sale of food can be undertaken or in the manner in which the food is prepared or stored and so long as these conditions are satisfied, there can be no ban of sale of common salt and the Act and the rules framed thereunder. ' After amendment in the year 1965, the present provision reads, any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health'.If the expression 'in the interest of public health' is to be construed narrowly as was sought to be conveyed to mean preventing the outbreak of an epidemic or spread of infectious disease beyond emergent situation which endangers public health, the very purpose of amendment in the year 1965 in section 7(iv) shall be defeated. The Parliament by the amendment in the year 1965 in a way expanded the power of State (Health) authority to prohibit the sale of any article of food, which is for the time being in the interest of public health by substituting the expression, with a view to preventing the outbreak or spread of infectious diseases'.What has been done specifically and expressly by the Parliament in using the expression 'in the interest of public health' after amendment in section 7(iv) cannot be negated by confining the said expression to cover situation like outbreak or spread of infectious diseases or emergent situation in public health. In other words, once the sale of an article of food is prohibited by Food (Health) Authority under section 7(iv), it is open to such authority to ban manufacture of such article of food as well. In the beginning of section 7 the expression 'manufacture for sale, or store, or distribute' having already been used, it was unnecessary to use in Clause (iv) the expression, manufacture or store or distribute'.We need not overemphasise that the central concept of the statute like the Prevention of Food Adulteration Act is to prevent the public health from serious hazards by adulteration of foodstuffs. In this view of the expression 'for the time being',if the Food (Health) Authority has exercised its power prohibiting sale of articles of food like pan masala and Gutka in the interest of public health for five years, it cannot be said to be inconsistent with the statutory expression 'for the time being'.Incidentally we may observe that in the case before Madras High Court banning sale of edible common salt other than iodised, initially the notification did not mention the period but later on the said notification was amended and ban order of sale of edible common salt other than iodised salt was made effective for a period of five years from 1-1-1995 to 31-12-1999. The ban of five years was not found to be in contravention of section 7(iv). The other contention that since under section 23(1)(f) the sale of pan masala and gutka can be regulated and, therefore, the power of prohibition under section 7(iv) cannot be exercised, we need not repeat since we have already observed above t (iv) We hold that the power of State Food (Health) Authority under section 7(iv) is statutory, absolute to the extent provided therein and independent of the power conferred on Central Government under section 23(1-A)(f). (v) The power conferred on Food (Health) Authority under section 7(iv) provides for prohibiting the sale of an article of food for the time being in the interest of public health which includes power to prohibit manufacture, storage or distribution as well in such articles of food.

Judgment:

R.M. Lodha, J.

1. On 23-7-2002 the Commissioner, Food and Drug Administration and Food (Health) Authority for the State of Maharashtra issued an order prohibiting for a period of 5 years with effect from 1-8-2002 the sale of Gutka and Pan Masala containing tobacco or not containing tobacco by whatever name called, in the State of Maharashtra and, accordingly, 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. The order was issued by Food (Health) Authority for the State of Maharashtra in the exercise of powers conferred by Clause (iv) of section 7 of the Prevention of Food Adulteration Act, 1954. The order dated 23rd July 2002 reads thus:

'COMMISSIONER, FOOD AND DRUG ADMINISTRATION



AND FOOD (HEALTH) AUTHORITY, MAHARASHTRA STATE

Bandra Kurla Complex, Bandra (East),

Mumbai 400 051.

Dated the 23rd July, 2002.



ORDER

PREVENTION OF FOOD ADULTERATION ACT, 1954.

No. PFA/NOTIFICATION/574-2002/7. WHEREAS Rule 42(zzz) of the Prevention of Food Adulteration Rules, 1955, framed under the Prevention of Food Adulteration Act, 1954 (37 of 1954) (hereinafter referred to as 'the said Act'), provides that every package of chewing tobacco shall bear a label to the effect that 'chewing of tobacco is injurious to health';

AND WHEREAS Rule 42(zzz)(3) of the Prevention of Food Adulteration Rules, 1955, provides that every package of PAN MASALA and advertisement relating thereto, shall carry the warning namely 'chewing of Pan Masala may be injurious to health';



AND WHEREAS consumption of preparations containing tobacco or not containing tobacco commonly known as 'GUTKA' or 'PAN MASALA', by whatever name called are injurious to health.

AND WHEREAS school going children and college students easily fall victim to the consumption of 'GUTKA' and 'PAN MASALA', containing tobacco or not containing tobacco and there is apparent of their getting addicted to these harmful food articles;

AND WHEREAS it is necessary, in the interest of public health, to take immediate effective measures to prevent the general public from being addicted to 'GUTKA' or 'PAN MASALA', containing tobacco or not containing tobacco.

AND WHEREAS Clause (iv) of section 7 of the said Act empowers the Food (Health) Authority to prohibit the sale of any article of food in the interest of public health;

AND WHEREAS the said section 7 further prohibits any person for manufacture for sale, or store, sell or distribute any article of food, the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health under Clause (iv) of said section 7;

AND WHEREAS the Food (Health) Authority of the State of Maharashtra, as stated above is satisfied that, the consumption of any article of food, containing tobacco or not containing tobacco, commonly known as 'GUTKA' or 'PAN MASALA' by whatever name called, is injurious to health; and it is necessary in the interest of public health, to prohibit the sale of article of food containing tobacco or not containing tobacco commonly known as 'GUTKA' or 'PAN MASALA' by whatever name called under Clause (iv) of said section 7; NOW, THEREFORE, I, B.B. SHARMA, Commissioner of Food and Drug Administration, State of Maharashtra and Food (Health) Authority for the State of Maharashtra, in exercise of the powers conferred by Clause (iv) of section 7 of the Prevention of Food Adulteration Act, 1954 (37 of 1954), hereby in the interest of public health, prohibit for a period of five years with effect from the 1st August 2002, the sale of 'GUTKA' and 'PAN MASALA', containing tobacco or not containing tobacco, by whatever name called, in the State of Maharashtra, and accordingly direct 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, for a period of five years with effect from the 1st August, 2002.

B.B. SHARMA,

Commissioner

Food and Drug Administration and

Food (Health) Authority for the

State of Maharashtra.'

2. The aforesaid order dated 23rd July, 2002 is under challenge in this group of five writ petitions. The petitioners in Writ Petition No. 2001/2002, 2002/2002, 2024/2002 and 2251/2002 are manufacturers of Gutka or Pan Masala by different names and the petitioner in Writ Petition No. 1982/2002 is a trader who deals with the trade is Pan Masala and Gutka.

3. For the sake of brevity and convenience, we shall refer to the pleadings in Writ Petition No. 2001/2002. The first petitioner in this writ petition is engaged in the manufacture of Gutka and Pan Masala which are sold under the brand name 'Manikchand'. The second petitioner is managing director of first petitioner company. They are in the business of manufacture of Gutka and Pan Masala since 1990. They commenced business after obtaining requisite licences under various Acts including under the Prevention of Food and Adulteration Act, 1954 (for short, 'Act of 1954') for manufacture, sale, storage and distribution of Pan Masala, Mukhwas and Gutka. The first petitioner has also obtained registration under Factories Act, followed by registration under Central and State Sales Tax as also under the Central Excise Act. In the writ petition, the petitioners have set out the information about the ingredients of Pan Masala. Accordingly Pan Masala manufactured by the first petitioner contain supari (82.67%); kattha (catechu) (8.72%); lime (3.25%), cardamom (elaichi) (3.41%); permitted flavours (1.05%) and menthol (.89%). The Pan Masala manufactured by the first petitioner does not contain any tobacco nor does it contain any prohibited ingredients. The petitioners have averred that all the ingredients contained in the pan masala are permitted to be sold individually and do not react chemically with each other when mixed. Gutka manufactured by the first petitioner consist of the ingredients viz; supari (77.05%), chewing tobacco (5.90%), kattha (9.11%), lime (2.14%), cardamom (Elaichi) (2.81%), quiwam (tobacco extract) (0.93%), saffron (0.026%), menthol (0.63%), permitted spices (.134%) and flavours (1.256%). It is submitted by the petitioners that all the ingredients in Gutka manufactured by the petitioners do not react chemically with each other when mixed. The first petitioner has three plants located at Ghodnadi (near Pune, (Maharashtra), Baroda (Gujarat) and Hyderabad (Andhra Pradesh) for manufacture of Pan Masala and Gutka. According to the petitioners, the total investment in plant and machinery in these three plants is around Rs. 40 crores and the first petitioner employs a total of 900 persons. The annual turnover of the business of the first petitioner as on 31-3-2002 is Rs. 344 crores. The first petitioner is said to have a network of about 300 wholesale and retail dealers and consignee agents throughout the country and the products manufactured by the first petitioner are sold throughout the country by lacs of small retailers. The first petitioner claims to have paid for the financial year ending 31-3-2002 a sum of Rs. 119 crores towards Central Excise; Rs. 7 crores towards Income tax; Rs. 2.80 crores towards octroi and for the year 2001-2002 the first petitioner claims to have earned foreign exchange around Rs. 40 crores from exports of Gutka. It is averred that first petitioner spends around Rs. 1 crore for buying tobacco from farmers from Gujarat; Rs. 42 crores for buying supari from farmers from Karnataka and Assam; Rs. 20 crores for purchase of kattha from farmers from Himachal Pradesh and Uttar Pradesh; Rs. 8 crores for purchase of cardamom from farmers in Tamil Nadu; Rs. 1.36 crores for purchase of menthol from farmers in Uttar Pradesh; Rs. 4 crores for purchase of saffron from farmers in Jammu and Kashmir and Rs. 31 crores for purchase of permitted flavours from Uttar Pradesh and Orissa. The petitioners say that the tobacco used for making Gutka is different from the tobacco used in the manufacture of cigarettes and cigars and such tobacco cannot be used to make smoking tobacco. Challenge to the order dated 23-7-2002 issued by the State (Health) Authority for the State of Maharashtra in exercise of the powers under section 7(iv) of the Act of 1954 is on diverse grounds which we shall deal with little later after we complete the pleadings.

4. On behalf of the respondents No. 2 and 3 an affidavit in reply has been filed by Shri Shrikant Sadashiv Shrikhande, Joint Commissioner, Food and Drugs Administration, Mumbai. Dealing with the ingredients contained in Gutka and Pan Masala it is set out that Gutka and Pan Masala samples have been found to contain 2% to 5% of magnesium carbonate and consumption of Gutka and Pan Masala in people addicted to Gutka/Pan Masala ranges from 5 to 50 sachets of 2 gms. each per day. The daily intake thus ranges from 10 gm to 100 gm which means consumption per person ranges from 200 mg. to 500 mg and 2000 to 5000 mg. of magnesium carbonate per day. It is submitted that as these persons are habituated to Gutka and Pan Masala, they continue to consume large quantity of magnesium carbonate for years together leading to acute hypomagnesaemia to dangerous and fatal levels which ultimately leads to hypotension and cardiac arrest. According to the affidavit in reply, excessive intake of magnesium carbonate through Gutka and Pan Masala increases magnesium level in body. In this connection, reliance is placed on Martindale Extract Pharmacopia, 31st edition, wherein an extract on adverse effects of magnesium carbonate has been noted to the effect. hypomagnesaemia may lead to nausea, vomitting, flushing of skin, thirst, hypotension, due to peripheral vasodilation, drowsiness, confusion, loss of tendon refluxes, due to neuromuscular blockade, muscle weakness, respiratory depression, cardiac arrhythmias, coma and cardiac arrest. The reply affidavit also provides for scientific data on Carcinogenic effect of Pan Masala and Gutka. According to which Pan Masala containing tobacco and Gutka are hazardous to health and its health hazards are likely to be similar to those of conventionally chewed tobacco, mainly sub-mucous fibrosis and oral cancers as per the paper submitted by Indian Council of Medical Research. The Expert Committee in its meeting held on 23-9-1997 was of the view that incubation period of the disease caused by Pan Masala containing tobacco is likely to be shorter than after the use of conventionally used betel quid with tobacco. Relying upon the study conducted by A.K. Sharma and others, Department of Nephrology, Monilek Hospital and Research Centre, Jaipur, it is submitted that Pan Masala intake causes increase in pulse and blood pressure. The study conducted by Ramchandani A.G. and others, Tata Memorial Centre, Parel, Mumbai on mice for evaluation of carcinogenic/co-carcinogenic activity of common chewing product Pan Masala has also been relied upon and based on the findings in the said study, it is indicated that habitual Pan Masala use may exert carcinogenic and co-carcinogenic influence. The conclusion arrived at in the study conducted by K. Chaudhary, Indian Council of Medical Research, New Delhi is also relied upon by the State Government and Food (Health) Authority which records-Human studies on Pan Masala tobacco like mixtures and limited studies of Pan Masala containing tobacco suggest that Pan Masala is likely to be carcinogenic. Yet another study conducted by Soma Babu and others, National Institute of Nutrition and Government Dental College and Hospital, Hyderabad has been referred to and their conclusion that habitual chewing of Pan Masala and Gutka is associated with the earlier presentation of oral sub-mucous fibrosis than betel quid use is put forth. The stand of the State Government and the Food (Health) Authority, thus, is, that the consumption of magnesium carbonate and tobacco which exists in Pan Masala and Gutka is more harmful than the tobacco consumed by itself. Referring to Rule 32 of the Prevention of Food Adulteration Rules, 1955, which provides that every packet of food shall contain a label and shall inter alia, contain names of ingredients used in the product in descending order of the composition by weight or volume, it is stated that none of the labels of Pan Masala or Gutka manufactured in the State of Maharashtra, and sold and distributed in the State of Maharashtra display the name Magnesium Carbonate as one of the ingredients and there has been wholesale violation of Prevention of Food Adulteration Act and the Rules framed thereunder. It is submitted that the State Government had to launch huge prosecutions all over the State of Maharashtra because on analysis of Pan Masala, it was found that the product contained Magnesium Carbonate. As regards Gutka, it is submitted that there are no standards or specifications under the Act of 1954 and the Rules framed thereunder. The percentage of tobacco in gutka is as high as 6% and in addition thereto it contains tobacco extract to the extent of almost 1%. According to World Health Organisation (W.H.O.), India has one of the highest rates of oral cancer in the world and the rates are still increasing. This disproportionate incident of oral cancer has been related to the high consumption of substances which contain the tobacco. Only 20% of the total tobacco consumed in India is in the form of cigarettes and about 40% in the form of beedis, while remaining 40% is consumed as chewing tobacco, pan masala, snuff, gutka, masheri etc. It is submitted by the State Government and the Food (Health) Authority that the habit of chewing Gutka has a high degree of social acceptability and aggressive marketing indulged by most of the manufacturers has resulted in attracting persons for use and consumption of these harmful substances specially in younger generations; people who would not dream of smoking have started consuming several packets of Pan Masala every day without being aware of dangers involved. More and more younger generation is being introduced into this habit. As a different measure, on 17-2-2000 the State Government imposed partial ban on the sale of Gutka and similar products within distance of 100 mts. from schools and educational institutions. The partial ban vide notification dated 17-2-2000 did not have desired effect and, therefore, in order to make Pan Masala and Gutka unavailable, a complete ban on manufacture, sale and distribution within the State of Maharashtra has been imposed for a period of five years w.e.f. 1-8-2002. The Central Committee for Food Standards (C.C.F.S.) has from time to time considered various reports of expert groups on adverse effects of Gutka/chewing tobacco and the Committee in its 42nd meeting has strongly recommended that use of chewing tobacco in Pan Masala/Gutka or as an ingredient in any food item should be prohibited as consumption of these articles is definitely injurious to public health. When the partial ban was imposed on 17-2-2000, the State Government also moved the Central Government to impose total ban on production, distribution and sale of Gutka throughout India. The State Government has also taken steps to inform public of the seriousness of the issue of chewing of Gutka and Pan Masala by making public aware of health hazards of Gutka; directed gutka manufactures not to sponsor religious functions like Ganpati, Navratri festival and issued appeal to print media e.g. newspapers, magazines not to take up advertisement of Gutka. It is submitted that though the State Government would be losing vast amount of money as revenue but since they are concerned with public health and safety and having found that Pan Masala and Gutka are harmful to the consumers, the decision was taken to ban Pan Masala and Gutka. Along with the reply affidavit, 22 public analyst reports on Gutka have been annexed and so also the articles and medical reports on ill-effects of Pan Masala and Gutka.

5. A counter affidavit has also been filed on behalf of the Union of India in Writ Petition No. 2024/2002 through Shri J. S. Chaudhary, Deputy Secretary in the Department of Health, Ministry of Health and Family Welfare, Government of India. It is submitted in the said counter affidavit that the Central Committee for food standards, a statutory committee of experts, constituted under the provisions of section 3 of the Act of 1954 has recommended the imposition of a total ban on use of chewing tobacco in Pan Masala/Gutka or as an ingredient in food items in view of their adverse affects. The recommendation of the Central Committee for food standards was processed and various concerned Ministries related to this issue were consulted but some of them expressed reservation as an immediate ban because of large implications for tobacco growers and those involved in the manufacture/production and sale of tobacco and tobacco products and other ensuing consequences. Being aware of the ill effects of Pan Masala containing tobacco/gutka/chewing tobacco, as well as other tobacco products, the Central Government has stated that it has been taking appropriate steps from time to time to discourage their consumption and restrict their sale. The Central Government has been adopting a strategy of first moderating and discouraging the consumption of different kinds of tobacco products and is engaged in addressing this issue in a phased manner taking into consideration various related factors. The steps so far taken by the Central Government to discourage the consumption/use of such products, considering their adverse effects have been stated which inter alia include statutory warning on the labels of the packets containing chewing tobacco, pan masala and supari and such warnings are also mandatory in the advertisements relating to pan masala and supari. Advertisements of all tobacco products including Gutka have been banned on Doordarshan and All India Radio with effect from 1990 and advertisement of tobacco products on cable television is also banned under the Cable TV Regulation Act. A Bill 'The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001' has been introduced in the Rajya Sabha on 7-3-2001. The bill so introduced in the Parliament on 7-3-2001 was referred to the Standing Committee on 12-3-2001 and the Standing Committee has submitted its report in December 2001 which is under consideration. It is, however, submitted by the Central Government that the recommendations of the Parliament Standing Committee do not cover a proposal for ban on sale of Gutka. However, referring to the power of the State Food (Health) Authorities to prohibit the sale of Pan Masala containing tobacco/gutka/chewing tobacco under the Act of 1954, it is submitted that the State Food (Health) Authorities have independent power to prohibit the sale of any article of food in the interest of public health. Some States have already done it and the Government of India is not opposed to such initiatives of the State Governments. It is the stand of the Central Government that under Clause (iv) of section 7 of the Act of 1954, the Food (Health) Authority, Maharashtra is the lawful authority to prohibit the sale of any article of food in the interest of public health within the local area of the State of Maharashtra for the period as deemed necessary and the Act of 1954 does not lay any restriction on the power of the State Food (Health) Authority on this aspect.

6. We are informed that the affidavit of Shri J.S. Chaudhory filed on behalf of the Central Government is to be treated common in all the five writ petitions. Rejoinder has been filed by the petitioners in Writ Petition No. 2001/2002 and they have reiterated the case set up in the writ petition. Along with the rejoinder the petitioners have placed on record the report of Hitech Analytical Works based on analysis of Gutka and Pan Masala manufactured by the first petitioner in the light of the affidavit filed on behalf of the State Government. The thrust of the report submitted by Hitech Analytical Works annexed with the rejoinder is that the statement made in the affidavit of the State Government that Gutka and Pan Masala have been found 2% to 5% of magnesium carbonate do not appear to be based on any scientific module of analysis or analytical study. The method of analysis is not well founded and to the conception of Hitech Analytical Works, there is no method of detection prevailing at present, whereby in any given item, magnesium carbonate as component itself can be found.

7. On behalf of the petitioners, Mr. Kapil Sibal, learned Senior Counsel led the arguments. The learned Senior Counsel argued that assuming, but not admitting, that the exercise of power by the State Food Health Authority under section 7(iv) of the Act of 1954 is a valid exercise of power, the manufacture or sale of Gutka and Pan Masala outside the territorial limits of the State of Maharashtra cannot be prescribed. His submission is that the expression 'manufacture for sale' or other expressions used in section 7(iv) relating to storage or distribution relate to such activities within the State of Maharashtra and the notification dated 23-7-2002 prescribing the manufacture, storage, distribution and sale of articles of food viz. Gutka and Pan Masala cannot have extra-territorial effect. The learned Senior Counsel submitted that there is no power in section 7 which enables the State Food (Health) Authority to prescribe manufacture per se of an article of food, since for the purpose of the Act of 1954, a licence to manufacture is granted under a parliamentary legislation which vests the State Government with no authority to prescribe manufacturing. To buttress his argument Mr. Sibal, learned Senior Counsel referred to the notification prohibiting the sale of Pan Masala and Gutka within the State of Andhra Pradesh. The learned Senior Counsel submitted that the notification did not include the expression 'manufacture' but merely prohibited in the interest of public health the sale of Pan Masala under any brand name with an emblem of Gutka which contains tobacco in the entire State of Andhra Pradesh. He submitted that this would suggest that in exercise of power under section 7(iv) merely sale of any article of food in the interest of public health can be prohibited and no more and that such prohibition can only relate to the territories within the State in respect of which the notification has been issued. Similarly, the learned Senior Counsel referred to the notification dated 19-11-2001 issued by the Food (Health) Authority, Tamil Nadu under section 7(iv) and he submitted that the notification was read to mean that the prohibition therein was only restricted to sale within the territories of State of Tamil Nadu. The learned Senior Counsel, then, contended that when licensed article of food is manufactured for sale, then the Food (Health) Authority cannot exercise power under section 7(iv) to prohibit such article of food on the ground of adverse consequences to public health. The submission is that section 7(iii) indicts any person from manufacturing for sale any article of food contrary to the conditions of the licence. The learned Senior Counsel invited our attention to Entry A-30 in the Appendix B of Rule 5 of Rules of 1955 and also Rule 50 which sets out the conditions of licence. The submission of learned Senior Counsel is that the Court must read section 7(iii) and section 7(iv) together harmoniously to give effect to both provisions. As regards Pan Masala, referring to section 23(1-A)(f), Mr. Sibal, learned Senior Counsel submitted that the said section vests in the Central Government the power to prohibit: (i) the sale of any substance which may be injurious to health when used as food; (ii) restrict in any manner the use of the said substance as an ingredient in the manufacture of any article of food; and (iii) regulate by issue of licence for manufacture or sale of any articles of food and, thus, State (Health) Authority could not have issued order in regard to Pan Masala. The learned Senior Counsel by referring to section 24 urged that the said section vests power in the State Government to make rules in respect of the matters not falling within the purview of section 23 and, therefore, no rules can be framed by the State Government in respect of an article of food which can be the subject matter of licence under the Rules of 1955 or in respect of substance which may be injurious to health when used as food or any substance used as an ingredient in the manufacture of any article of food. In substance, the submission was that the executive power of the State Government or any authority under it cannot be exercised in respect of the matters in which the State Legislative Authority is prohibited from framing rules. Mr. Sibal also contended that Pan Masala and Gutka have been prohibited by the Food (Health) Authority on the ground that it is not in the interest of public health and not that the said articles of food are per se injurious to health. According to the learned Senior Counsel, the conclusion that it is not in the interest of public health is wrong based on the consumption or consumption habits of the consumer which cannot be reasonable basis for prohibiting the manufacture and sale of products. He submitted that long years of consumption, frequency of consumption and the tendency of being addicted, cannot be a reasonable basis for prohibition of such products. His contention is that there is hardly any manufactured food for human consumption which does not have any deleterious long term effects on human health based on pattern of consumption. The learned Senior Counsel urged that it would be unreasonable to use the pattern of consumption in respect of individuals and make such pattern rational basis for an order of prohibition in respect of article of food, the assumption being the human activity in respect of consumption cannot be controlled through prohibition and that the only reasonable exercise of power in regard to article of foods for consumption is regulation and dissemination of information in that regard. The learned Senior Counsel also contended that prohibition to manufacture for sale of Gutka and Pan Masala as an article of food is violative of Article 19(1)(g) of the Constitution of India. He disputed the power of the State Government to prohibit trade or business in a particular entity, but submitted that the burden is on the State Government to prove that the fundamental right to business is not being unreasonably restricted. He would urge that facts reflected in the affidavits of the Union of India and the State Government demonstrate that the prohibition is based on an erroneous assumption of facts. The learned Senior Counsel also submitted that since the power under section 7(iv) must be exercised for declaration to be valid, only with the territories of State of Maharashtra, any other interpretation of the notification dated 23-7-2002 will have extra-territorial effect and would be per se violative of freedom of inter-state business guaranteed under combined reading of Articles 301 and 304 of the Constitution of India.

8. Mr. V.A. Bobde, learned Senior Counsel appearing for the petitioners in Writ Petition No. 2251/2002 adopted the submissions of Mr. Kapil Sibal and additionally submitted that section 7, particularly Clause (iv) thereof does not confer by itself power to prohibit as such. The submission of the learned Senior Counsel is that for its operation, section 7(iv) of the Act of 1954 depends upon the valid exercise of power lodged in the Food (Health) Authority by some law other than section 7. It may be law framed under Entry 6, of list II, in the interest of public health or it may be any other provision of the Central Act or Rules under Entries 18 and 33 of List III. In this connection, he invited our attention to the language used in section 7(iv) in contrast with the language of section 10(1)(c) and 23(1-A)(f). He also referred to Entries 6, 26 and 27 of list II and Entries 18 and 33 of List III. Mr. Bobde contended that it would be unreasonable, as a matter of statutory construction, to take the view that Parliament provided for prohibition on the manufacture and sale of the items, specified in section 7 and in the very same section, empowered the State Food (Health) Authority to prohibit the sale of any particular foodstuff. According to him, to take the view that Parliament provided for a power in the Central Government to prohibit manufacture of foodstuff by Rules under section 23(1-A)(f) framed in consultation with Central Committee for food standards and placed before Parliament, denied the State Government power by section 24, but at the same time vested an absolute, unguided, unbridled and uncanalised power in the Food (Health) Authority to prohibit the sale of any item of food whatsoever. Referring to Rules 42(zzz) and 42(zzz)(3), Mr. Bobde, submitted that the policy of the Central Government is to discourage consumption of chewing tobacco and Pan Masala but not to prohibit manufacture and sale of those articles. Mr. Bobde would urge that the nature and extent of the power given to the Food (Health) Authority in the interest of public health is narrow and can be exercised in emergent situation which endangers public health like preventing outbreak or spread of infectious diseases. He contended that if section 7(iv) is interpreted as conferring power in Food (Health) Authority to prohibit the sale of any article of food in the interest of public health, it would be ultra vires the competence of Parliament since subject is covered by Entry 6, List II.

9. Mr. S.G. Aney, learned Senior Counsel appearing for the petitioners in Writ Petitions 2001/2002 and 2002/2002 adopted the arguments of Mr. Kapil Sibal and Mr. V.A. Bobde and in addition thereto submitted that assuming that the exercise of the power by the Food (Health) Authority is legitimate and permissible then section 7(iv) of the Act of 1954 is itself unconstitutional for diverse reasons: (i) it travels beyond the scope of the Act, the object of the Act being prevention of adulteration of the food; (ii) lack of legislative competence; (iii) even otherwise discriminatory and violative of Articles 14, 19(1)(g) and 21. According to Mr. Aney, the right to choose must be read to be a part and parcel of right to life under Part III of the Constitution of India. The learned Senior Counsel submitted that if it is assumed that the impugned notification can be protected by construing it to be reasonable restriction to fundamental right, then it is submitted that in order to be a valid reasonable restriction, it must be in the form of legislation and the impugned notification is not even law within the meaning of Article 13 of the Constitution. The order dated 23-7-2002 issued by the Food (Health) Authority was also challenged being ultra vires Article 300-A as in view of Mr.. Aney, the impugned order amounts to deprivation of property without due process. The learned Senior Counsel also submitted that the impugned order dated 23-7-2002 is ultra vires Articles 301, 302 and 304 of Constitution of India.

10. Mr. Hari, the learned Counsel appearing for petitioner in Writ Petition No. 1982/2002 heavily relied upon section 23 of the Act of 1954. He submitted that the Central Government after consultation with the Committee or in case of certain exigent circumstances without prior consultation under section 23 make Rules to prohibit the manufacture, sale, distribution or storage of food article if it is found to be injurious for consumption as a food. Sub-section (2) of section 23, contends Mr. Hari, makes mandatory for Central Government to lay, as soon as may be, after it is made, before each House of Parliament, when in session for a total period of 30 days or as provided in the Clause, and where both the Houses agree in making any modification in the Rule or both Houses agree that the Rule should not be made, the Rule shall thereafter have effect, only in such modified form or be of no effect, as the case may be. Thus, according to Mr. Hari, Act of 1954 provides that the Rule making powers under the Act lie only with both the Houses of Parliament and not even with the Central Government. He would urge that section 23 cannot be held to be subservient to section 7(iv). Where the rules made by Central Government are subject to approval/disapproval of the Parliament, it would be far fetched to reach a conclusion that the scheme of the Act provides or intends to suggest that the powers of the Food (Health) Authority could be regarded as unfettered, unrestricted and unguided. The expression 'for the time being' occurring in section 7(iv), according to Mr. Hari, necessarily refers and relates to essential transitory period of time as would be required to remedy an emergent situation and it could be a few days or so depending upon the efficiency and capability of the local administration to remedy the situation in a given set of circumstances. He contends that the prohibition for a period of five years amounts to closure of industry and signing of death warrant of an industry, which has been carrying on a business activity in a lawful manner for decades complying with necessary provisions of the Act under which they operate.

11. Mr. Goolam Vahanvati, learned Advocate General meticulously responded to each and every submission advanced by the learned Senior Counsel and Counsel appearing for the petitioners. He started by saying that well settled principles relating to the matters pertaining to public health should be kept in mind by the Court while approaching such matters. Relying upon Vincent Panikurlanara v. Union of India, : [1987]2SCR468 , the learned Advocate General submitted that attending to public health is of the highest priority perhaps the one at the top. He invited our attention to the observations made by the Apex Court in Dineshchandra Jamnadas Gandhi v. State of Gujarat and another, : 1989CriLJ889 , wherein it was observed that the object and the purpose of the Act of 1954 are to suppress a social and economic mischief an evil which attempts to poison for monetary gains, the very sources of sustenance of life and the well being of the community. He submitted that the language of the statute like Prevention of Food Adulteration Act, 1954 should be construed which would suppress the mischief, advance the remedy, promote its object, prevent its subtle erosion and foil its artful circumvention. Mr. Vahanvati referred to the Division Bench judgment of this Court in Lucy D'Souza v. State of Goa, : AIR1990Bom355 , wherein it was held that the matters of public health are matters of policy and should be left to the State. Relying upon the case of Pyrali K. Tejan v. Mahadeo Ramchandra Dange and others, : 1974CriLJ313 , the learned Advocate General would submit that public health is an aspect of social legislation and this being the domain of State policy, such matters do not deserve to be interfered with by the Court. Responding to the various contentions raised by the learned Senior Counsel and the learned Counsel for the petitioners, the learned Advocate General submitted that once the sale of an article of food is prohibited then every aspect of injunction contained in the first part of section 7 automatically comes into force. According to him, once sale of an article of food is prohibited not only can there be no sale but there can also be no manufacture for sale, storage or distribution. He submitted that it was entirely open for a State to say that it would prohibit the sale of an article of food in the State, the result of which may be that such an article of food cannot be manufactured for sale, stored or distributed in the State. The learned Advocate General submitted that section 7(iv) confers plenary power on the Food (Health) Authority, the exercise of which is done in the interest of public health but it is independent of the rule making power of the Central Government. He submitted that section 7(iv) has been invoked in several cases to prohibit the sale of articles of food which are otherwise licenced for manufacture. In this regard, he relied upon the judgment of the learned Single Judge of Madras High Court in the case of Gandhi Irwin Salt . and others v. State of Karnataka and others, : (1995)1SCC574 . He also pressed into service the concept of res extra commercium applied by the Apex Court in Khoday Distilleries (supra). According to this concept, citizens are not entitled to carry on business and trade activities which are immoral and criminal and the articles of goods which are obnoxious and injurious to health, safety and welfare of the general public. In response to the submission of Mr. V.A. Bobde that section 7(iv) does not by itself confer power on the Food (Health) Authority and the operation of section 7(iv) presupposes and requires the existence of conferment of power under State law referable to Entry 6 of list II, the learned Advocate General submitted that many a time, legislation though purporting to deal with a subject in one list, touches also on the subject in another list and the different provision of the enactment may be closely interconnected. He would urge that section 7(iv) by itself confers a power on the Food (Health) Authority and when the act itself confers a power statutorily, exercise of such power cannot be said to be beyond jurisdiction of authority concerned. Moreover, the learned Advocate General submitted that the very essence and foundation of adulteration of foodstuffs is public health; public health by itself may be a general concept but adulterated foodstuffs have a direct and inextricable bearing on public health. He submitted that the expression 'public health' does not deserve to be given restricted meaning rather the 'public health', must be given wider meaning in the manner which would suppress, mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention. As regards the challenge to the order being violative of Articles 301 and 304 of the Constitution of India, the learned Advocate General submitted that Article 301 has no application to trading and commercial activity unless such activity is lawful and further Article 301 has no application to an activity in relation to goods which are res extra commercium. Article 302 recognises the authority of Parliament to impose reasonable restriction on inter-state trade or commerce as may be required in the public interest. Section 7 and an order passed thereunder do not really deal with inter-state trade or commerce. It is the power of each State to protect its own subjects. The learned Advocate General submitted that in so far as Article 304 is concerned, it has no application as it is only applicable to the legislature of the State. The Prevention of Food Adulteration Act is an Act passed by the Parliament. The learned Advocate General also submitted that section 7(iv) cannot be said to give uncanalised or unguided power to the Food (Health) Authority. According to him, it is not violative of Article 14 of the Constitution as there is full and complete guidance from the words 'in the interest of public health' and 'adulteration of food'. While meeting the argument that a licence under the Rules of 1955 is property and that property cannot be taken away except in accordance with law, and by following the principles of natural justice, the learned Advocate General submitted that power of Food (Health) Authority to ban an article of food flows from section 7(iv) itself, and is, therefore, backed by authority of law. It cannot , therefore, be said that there is deprivation of property without authority of law. The contention advanced on behalf of the petitioners that the impugned order prevents Gutka on a different footing inasmuch as cigarettes which are far more injurious to health have not been banned and that the impugned notification will not achieve the desired purpose as it is still open for persons to buy the individual ingredient in the open market, which have not yet been banned, the learned Advocate General submitted that it is never an answer to a valid exercise of power that something else should also have been done. According to him, public health is a matter of policy and in such matters policy is left to the persons entitled to formulate it and enforce it. The policy can never be struck down on the ground that something more ought to have been done or that it could have been done differently. The submission on behalf of the petitioners that impugned notification is violative of Article 21 since the right to life postulates complete freedom including the freedom to choose, the learned Advocate General submitted that there is no such right available in our society and it is absurd to suggest that every person has a right to consume deleterious substances or even poisonous foods and that society had nothing to do with it. This is too simplistic an approach. Persons who destroy their own selves ultimately impact society and its organisation for the simple reason that as and when they fall ill, or even dangerously ill, they take recourse to the public health system which is maintained and supported by society and Government and, therefore, to suggest that there is an absolute right to make even a wrong choice is misconceived. Lastly, the learned Advocate General submitted that the expression 'for the time being' shows that it refers to indefinite state of facts which may vary from time to time. In this connection, he relied upon the case of Ellison v. Thomas, 1862(31) L.J.Ch. 867, wherein it was held that the general sense of the phrase 'for the time being' being that of time indefinite. He also submitted that in the case of ban on non-iodised edible salt in Tamil Nadu, it was initially without a limit of time but later the notification was amended and the ban was for a period of five years and nothing wrong was found with the notification.

12. From the submissions advanced before us, the following questions mainly and substantially arise for our consideration and determination:--

(i) Is section 7(iv) ultra vires for the reasons; (a) lack of legislative competence; (b) violative of Article 14 having no guidelines and that it gives uncanalised and unbridled power to Food (Health) Authority; (c) violative of Article 19(1)(g) and (d) violative of Article 21?

(ii) Is impugned order dated 23-7-2002 issued by Food (Health) Authority violative of Articles 14, 19(1)(g), 21, 300-A, 301 and 304 of the Constitution of India?

(iii) Does section 7(iv) by itself not confer power on Food (Health) Authority and operation of section 7(iv) pre-supposes and requires the existence or conferment of a power under a State law referable to Entry 6 of List II of Schedule VII of Constitution?

(iv) Whether in respect of product Pan Masala, the Food (Health) Authority has no power whatsoever to issue an order of prohibition under section 7(iv)? In other words, has the Food (Health) Authority no power to prohibit the sale of any article of food under section 7(iv) when section 23 confers power on the Central Government only to prohibit the sale of any substance injurious to health when used as a food?

(v) If it is held that section 7(iv) confers power on the Food (Health) Authority, is it only the sale of an article of food which can be prohibited and not its manufacture for sale outside the State of Maharashtra?

13. For due consideration of the aforesaid questions, the survey of the relevant provisions of the Act of 1954 and the Rules of 1955 shall be of use and help. The Act of 1954 was enacted by the Parliament for Prevention of Adulteration of Food. Section 2, inter alia, defines food, Food (Health) Authority, Local Health Authority, manufacture and sale. Section 2(v) defines 'food' thus:

'2(v) 'food means any article used as food or drink for human consumption other than drugs and water and incudes---

(a) any article which ordinarily enters into, or is used in the composition or preparation of, human food,

(b) any flavouring matter or condiments, and

(c) any other article which the Central Government may, having regard to its use, nature, substance or quality, declare by notification in the Official Gazette, as food for the purposes of this Act;

Section 2(vi) defines 'Food Health Authority' as follows:

'(vi) 'Food (Health) Authority means the Director of Medical and Health Services or the Chief Officer in-charge of Health administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under this Act with respect to such local area as may be specified in the notification;'Section 2(viii-a) defines 'Local Health Authority' in relation to local area thus :

'(viii-a) 'Local (Health) Authority'. In relation to a local area, means the officer appointed by the Central Government or the State Government, by notification in the Official Gazette, to be in-charge of health administration in such area with such designation as may be specified therein:'Section 2(viii-b) defines 'manufacture' which reads thus:

'(viii-b) 'manufacture' includes any process incidental or ancillary to the manufacture of an article of food;'.Section 2(xiii) defines 'sale' in the following manner :

'(xiii) 'sale' with its grammatical variations and cognate expressions, means the sale of any article of food, whether for cash or on credit or by way of exchange and whether by wholesale or retail, for human consumption or use, or for analysis, and includes an agreement for sale, an offer for sale, the exposing for sale or having in possession for sale of any such article, and includes also an attempt to sell any such article;'.Section 7 which provides for prohibition of manufacture, sale etc. of certain articles of food reads thus :

7. Prohibitions of manufacture, sale, etc., of certain articles of food.---No person shall himself or by any person on his behalf manufacture for sale, or store, sell or distribute---

(i) any adulterated food;

(ii) any misbranded food;

(iii) any article of food for the sale of which a licence is prescribed, except in accordance with the conditions of the licence;

(iv) Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health;

(v) any article of food in contravention of any other provision of this Act or of any Rule made thereunder; or

(vi) any adulterant.

Section 16 provides for penalties.

The power of Central Government to make rules is provided in section 23. Since this section was referred to many a time during the course of arguments, we deem it fit to reproduce the entire section 23 which reads thus:

'23. Power of the Central Government to make Rules.---(1) The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act.

Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said Rules.

(1-A) (In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:---)

(a) Specifying the articles of food or classes of food for the import of which a licence is required and prescribing the form and conditions of such licence, the authority empowered to issue the same (the fees payable therefor the deposit of any sum as security for the performance of the conditions of the licence and the circumstances under which such licence or security may be cancelled or forfeited;

(b) defining the standards of quality for, and fixing the limits of variability permissible in respect of, any article of food;

(c) laying down special provisions for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, specify in this behalf including registration of the premises where they are manufactured, maintenance of the premises in a sanitary condition and maintenance of the healthy state of human beings associated with the production, distribution and sale of such article or class of articles;

(d) restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article (or to preventing adulteration);

(e) defining the qualifications, powers and duties of food inspectors and public analyst;

(ee) defining the laboratories where samples of articles of food or adulterants may be analysed by public analysis under this Act;

(f) Prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food.

(g) defining the conditions of sale or conditions for licence of sale of any article of food in the interest of public health;

(h) specifying the manner in which containers for samples of food purchased for analysis shall be sealed up or fastened up;

((hh) defining the methods of analysis;)

(i) specifying a list of permissible preservatives, other than common salt and sugar, which alone shall be used in preserved fruits, vegetables or their products or any other article of food as well as the maximum amounts of each preservative;

(j) specifying the colouring matter and the maximum quantities thereof which may be used in any article of food;

(k) providing for the exemption from this Act or of any requirements contained therein and subject to such conditions, if any, as may be specified, of any article or class of articles of food;

(l) prohibiting or regulating the manufacture, transport or sale of any article known to be used an adulterant of food;

(m) prohibiting or regulating---

(i) the addition of any water, or other diluents or adulterant to any article of food;

(ii) the abstraction of any ingredient from any article of food;

(iii) the sale of any article of food to which such addition or from which such abstraction has been made or which has been otherwise artificially treated;

(iv) the mixing of two or more articles of food which are similar in nature or appearance;

(n) providing for the destruction of such articles of food as are not in accordance with the provisions of this Act or of the Rules made thereunder.

(2) Every rule made by the Central Government under this Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days (which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid) both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule)'

Section 24 provides for power of the State Government to make rules which reads thus:

'24. Power of the State Government to make Rules.---(1) 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.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may---

(a) define the powers and duties of the Food (Health) Authority, (Local Authority and Local (Health) Authority under this Act); (***)

(b) prescribe the forms of licences for the manufacture for sale, for the storage, for the sale and for the distribution of article of foods or any specified article of food or class or articles of food, the form of application for such licences, the conditions subject to which such licences may be issued, the authority empowered to issue the same, (the fees payable therefor, the deposit of any sum as security for the performance of the conditions of the licences and the circumstances under which such licences or security (may be suspended, cancelled or forfeited);

(c) direct a fee to be paid for analysing any article of food or for any matter for which a fee may be prescribed under this Act;

(d) direct that the whole or any part of the fines imposed under this Act shall be paid to a local authority on realisation;

(e) provide for the delegation of the powers and functions conferred by this Act on the State Government or the Food (Health) Authority to subordinate authorities or to local authorities.

(3) All Rules made by the State Governments under this Act, shall, as soon as possible after they are made, be laid before the respective State Legislatures.'

14. The Rules viz., Prevention of Food Adulteration Rules, 1955 were framed by the Central Government in exercise of its powers under section 23. Rule 5 provides for standards of qualities of the various articles of food specified in Appendix B.

Rule 42 provides for form of labels and Clause (zzz) of the said Rules reads thus:

'42(zzz) Every package of chewing tobacco shall bear the following label, namely:---

----------------------------------------------------Chewing of tobacco is injurious to health---------------------------------------------------- Rule 42(zzz)(3) reads thus:

'42(zzz)(3) every package of Pan Masala and advertisement relating thereto, shall carry the following warning, namely:---

-----------------------------------------------------------Chewing of Pan Masala may be injurious to health-----------------------------------------------------------Conditions for licence are provided in Rule 50.Appendix B under Rule 5 provides for definitions and standards of quality and Entry A-30 of the Appendix B deals with the Pan Masala which reads thus:

'A. 30 PAN MASALA means the food generally taken as such or in conjunction with pan, it may contain---

Betelnut, lime, coconut, catechu, saffron, cardamom, dry fruits mulathi, sabermusa, other aromatic herbs and spices, sugar, glycerine, glucose, permitted natural colours, menthol and non-prohibited flavours.

It shall be free from added coaltar colouring matter, (***) and any other ingredient injurious to health

It shall also conform to the following standards, namely---

Total ash.---Not more than 8.0 per cent by weight (on dry basis).

Ash. Insoluble in dilute hydrochloric acid.---Not more than 0.5 per cent by weight (on dry basis).'

15. Having noted the relevant provision of the Act and the Rules, now we advert to the questions that arise for our consideration.

16. Re: (i) and (iii)

The first aspect we consider is whether section 7(iv) is ultra vires for want of legislative competence. The submission on behalf of the petitioners in this regard is that the Prevention of Food Adulteration Act has been legislated by Parliament under Entry 18, List III of VII Schedule and, therefore, it is an enactment for the Prevention of Food Adulteration. Such Act cannot legislate empowering ban on any item generally on the ground of public health. That is possible only by legislation by law enacted by State Legislature under Entry 6 of List II, VII Schedule.

17. List III of VII Schedule is concurrent list and Entry 18 reads, 'Adulteration of foodstuffs and other goods'. In contrast to this entry, our attention is invited to Entry 6 of List II-State List which provides for public health and sanitation; hospitals and dispensaries. Mr. Bobde, learned Senior Counsel appearing for one of the petitioners also invited our attention to Entry 33 of List III, concurrent list to urge that section 23 of the Act of 1954 is enacted in exercise of the powers under Entry 23.

18. In State of Rajasthan v. G. Chawla and another, : 1959CriLJ660 , the Constitution Bench of the Apex Court was dealing with the constitutional validity of the Ajmar (Sound Amplifiers Control) Act, 1952. The challenge to the said Act was based on the ground that the said Act was enacted by Ajmar Legislative Assembly in exercise of the powers conferred on the State Legislature under section 21 of the Government of Part C States Act, 1951 and therefore, ultra vires the State legislature. The Apex Court referred to Entry No. 31 of the Union List and Entries 1 and 6 of the State List and applying the dictum of Lord Selborne in Queen-Empress v. Burah, 1878(3) A.C. 889 observed thus :

' ........... the legislatures in our Country possess plenary powers of legislation. This is so even after the division of legislative powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as Entries in the List conferring respectively powers on them. These Entries, it has been ruled on many an occasion, though meant to be mutually exclusive are sometimes not really so. They occasionally overlap, and are to be regarded as enumeration simplex of broad categories. Where in an organic instrument such enumerated powers of legislation exist and there is a conflict between rival lists, it is necessary to examine the impugned legislation in its pith and substance, and only if that pith and substance falls substantially within an Entry or Entries conferring legislative power, is the legislation valid, a slight transgression upon a rival list, notwithstanding.'

The Apex Court referred to the judgment of the Federal Court in Subramanyam Chetiar v. Muthuswamy Goundan and noted thus :

'It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely interwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this list or in that.'

The Apex Court went on to observe that the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter which can be said to be reasonably included in the power given.

In paragraph 13 of the report, the Apex Court observed thus :

'(13) The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquility, and thus falls substantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the entry in the Union List, even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication. As Lathen, C.J., pointed out in (Bank of New South Wales v. The Commonwealth), 1948(76) C.L.R. 1 :'A power to make laws with respect to a subject matter is a power to make laws which in reality and substance are laws upon law should refer to the subject matter or apply to the subject matter : for example, income-tax laws apply to clergymen and to hotel-keepers as members of the public; but no one would describe an income-tax law as being, for that reason, a law with respect to clergymen or hotel-keepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or banking.'

19. Applying the aforesaid principles concerning the enactment of Act of 1954, no doubt is left that though the Parliament has enacted the Act of 1954 by exercising its power under Entry 18 of List III of VII Schedule and while doing so if it has incidentally touched upon a matter which is also covered under Entry 6 of List II of VII Schedule, it cannot be said, much less rightly, that such part of enactment is beyond legislative competence. The entire subject matter of Act of 1954 substantially, if not wholly, pertains to the subject matter in the interest of public providing for prevention of food adulteration which necessarily is nothing but a matter largely relating to public health. We need not over-emphasise that the demarcation of legislature fields under the entries is not like watertight compartments and it happens sometimes that such legislative fields overlap. Incidental trenching does not take away the legislative competence. A slight transgression, if at all it can be said, by Parliament by enacting the provision like section 7(iv) concerning public health in the Central Act like Prevention of Food Adulteration cannot be said to be beyond legislative competence of the Parliament outside the legislative field of the Parliament in relation to subjects covered under List III.

20. In Dineshchandra Gandhi v. State of Gujarat and another, : 1989CriLJ889 , the Apex Court highlighted the object and purpose of the Act of 1954 and made the following observations :

'16. The object and the purpose of the Act are to eliminate to danger to human life from the sale of unwholesome articles of food. The legislation is on the topic 'Adulteration of Food Stuffs and other Goods' (Entry 18 List III Seventh Schedule). It is enacted to curb the widespread evil of food adulteration and is a legislative measure for social defence. It is intended to suppress a social and economic mischief-an evil which attempts to poison, for monetary gains, the very sources of sustenance of life and the well being of the community. The evil of adulteration of food and its effects on the health of the community are assuming alarming proportions. The offence of adulteration is a socio-economic offence. In Municipal Corporation of Delhi v. Kacheroo Mal Sarkaria, : 1976CriLJ336 , J said :

The Act has been enacted to curb and remedy the widespread evil of food adulteration, and to ensure the sale of wholesome food to the people. It is well-settled that wherever possible, without unreasonable stretching or straining, the language of such a statute should be construed in a manner which would suppress the mischief, advance the remedy, promote its object, prevent its subtle evasion and foil its artful circumvention.'

21. That being the object and the purpose of the Act of 1954, the challenge to the enactment of section 7(iv) beyond legislative competence of the Parliament on the ground that the subject matter squarely and exclusively falls within the competence of the State Legislature under Entry 6 of List II of VII Schedule can hardly be accepted. We find substance in the submission of the learned Advocate General that the very essence and foundation of adulteration of food stuffs is public health and that public health by itself may be a general concept but adulterated foodstuffs have a direct and inextricable bearing on public health.

22. Reference to unreported judgment of Madras High Court in Mhd. Sultan v. State of Tamil Nadu, W.P. 22877/2001 decided on 21-12-2001 shall not be out of place here. The learned Single Judge observed therein thus:

'23. The contention to the effect that the notification was issued in the interest of public health and as such could have been exercised only under the State Act and not by exercising the power under Central Act framed under concurrent list to ban particular item, which was being used all over the country, within the State of Tamil nadu only through prima facie attractive, is not tenable. Even though the Act is a Central Act passed in respect of an Entry in the concurrent list, there is no embargo on any statutory authority to pass an order contemplated under the Act for being implemented within a particular area or within a particular State. Validity of the provisions contained in section 7(iv) has not been challenged in any of the writ petitions on the ground that such provision is beyond the legislative competence. Even though possibly the State Government could have framed a statutory law by exercising jurisdiction under the State list containing 'Public Health', there is no bar for the Health Authority to exercise the power under section 7(iv) which may be applicable to a particular State. In this context, it has to be noticed that even a Health Inspector with concurrence of the local authority can take appropriate action under section 10 of the Act and such order issued would have applicability only within the particular local area. When the Act itself conferred the power statutorily, exercise of such power cannot be said to be beyond the jurisdiction of the authority concerned.'

23. We, therefore, have no hesitation in holding that section 7(iv) of the Act of 1954 cannot be said to suffer from the vice of legislative competence. It has already been noted by us that it is always open to legislature to deal with the incidental and ancillary matters to make legislation effective and while enacting the law concerning the prevention of food adulteration if the Parliament has provided for a power to the Food (Health) Authority to prohibit the sale of article of foods for the time being in the interest of public health, at best such law concerning public health is incidental entrenchment which cannot be labelled exceeding the power of the Parliament. The aforesaid discussion squarely answers question (iii) as well. Section 7(iv) by itself can not be said to be inoperative unless there is State law referable to Entry 6 of List II of VII Schedule. The power given to Food (Health) Authority under section 7(iv) by the Parliament is absolute, in a sense plenary and independent of the rule making power of the Central Government under section 23 of the Act of 1954. Though Mr. Bobde, learned Senior Counsel sought to urge that when Parliament intended to confer power under the Act of 1954 it used appropriate language and provided the mode and manner of its exercise and in this connection he referred to section 23(1-A)(f) and section 10(1)(c), we are unable to accept the submission of the learned Senior Counsel that these provisions are instances of conferral power by Parliament and section 7(iv) is not. We do not find any justification in holding that section 7(iv) does not confer power on Food (Health) Authority by itself and that it is dependent on valid law other than section 7(iv).

24. Validity of section 7(iv) was also sought to be challenged being violative of Article 14 having no guidelines and thereby giving uncanalised and unbridled power to Food (Health) Authority. That is not fair reading of section 7(iv). It would be seen from plain reading of section 7(iv) that guidelines are provided in the section itself and the purpose, of course, stated therein. The Food (Health) Authority can only prohibit any article of food for sale, in the interest of public health for the time being. Thus, the guideline and the purpose are provided in the section itself as the power is exercisable in the interest of public health and for the time being. The interest of public health is specific guidance to the State Food (Health) Authority in the exercise of the power banning article of food for sale. The Parliament itself has provided the guidelines in section 7(iv) for the exercise of the power by the Food (Health) Authority and, therefore, we do not find any merit in the contention that section 7(iv) provides no guidelines and rather gives un-restricted, unbridled and uncanalised power to the Food (Health) Authority. Besides that be it noted that the power has been given by the Parliament to a very Senior Officer and statutory authority i.e. Food (Health) Authority. Under section 2(vi) Food (Health) Authority means the Director of Medical and Health Services or the Chief Officer in-charge of Health Administration in a State, by whatever designation he is known, and includes any officer empowered by the Central Government or the State Government, by notification in the Official Gazette, to exercise the powers and perform the duties of the Food (Health) Authority under the Act of 1954. Section 7(iv) therefore, cannot be said to suffer from vice of Article 14.

25. Mr. Kapil Sibal, learned Senior Counsel submitted that the prohibition of Gutka and Pan Masala is based on erroneous assumption of fact: (i) the assumption that manufacturer use magnesium carbonate in the manufacture of Gutka and Pan Masala is factually incorrect; (ii) the tobacco is included in the manufacture of Pan Masala which is based on some of the reports referred to in the affidavit of the State Government when Entry A-35 does not envisage the use of tobacco and this aspect is lost sight of. According to the learned Senior Counsel, the conclusion that manufacture for sale of these articles of food is not in the interest of public health is based merely on assumption in respect of consumption patterns of individuals which is not correct. He would urge that all these factors would make the exercise of power of prohibition in respect of Gutka and Pan Masala unreasonable and violative of Article 19(1)(g).

Mr. Bobde, learned Senior Counsel in this regard would submit that the power to prohibit manufacture and sale of any foodstuff is drastic and interferes with the fundamental right under Article 19(1)(g) to carry on trade or business. According to him, not only are the rights of manufacturers and traders affected, the rights of raw-material suppliers are affected. For instance, he submitted that in the case of tobacco products, tobacco growers in the country are affected.

Mr. Aney, learned Senior Counsel, while dealing with this aspect urged that section 7(iv) cannot be read as a reasonable restriction under Article 19(6) and, therefore, since the prohibition interferes with citizen's right to freedom of carrying trade or business, section 7(iv) is violative of Article 19(1)(g).

26. Having given our thoughtful and anxious consideration to this aspect, we may at the outset observe that the right rather fundamental right conferred under Article 19(1)(g) is not an absolute right and can always be curtailed in accord with Article 19(6). It is always open for the State to restrict the right of freedom in trade and business if the trade and business is in respect of dangerous or obnoxious items or articles of food which are not in the welfare of general public. The State can in the constitutional scheme of things restrict trade or business in the goods which are inherently harmful or involve health hazard. In Khoday Distilleries Ltd. and others v. State of Karnataka and others, : (1995)1SCC574 , the Apex Court was seized with the question whether the appellants/petitioners therein had fundamental right to carry on business in liquor. The rival contentions advanced before the Apex Court were that there was no fundamental right to trade or business in liquor, and that the State has power to regulate the trade or business by placing restrictions on such trading or business in the interest of general public even to the extent of prohibiting completely such business or trade. One of the incidental questions that arose before the Apex Court was whether reasonable restriction under Article 19(6) of the Constitution can be placed only by act of legislature or by subordinate legislation as well. The Apex Court with reference to Article 19(1)(g) read with Article 19(6) summarised the legal position in paragraph 60 of the report which reads thus:

'60. We may now summarise the law on the subject as culled from the aforesaid decisions.

(a) The rights protected by Article 19(1) are not absolute but qualified. The qualifications are stated in Clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said qualifications. Even the rights guaranteed under the Constitutions of the other civilized countries are not absolute but are read subject to the implied limitations on them. Those implied limitations are made explicit by Clauses (2) to (6) of Article 19 of our Constitution.

(b) The right to practise any profession or to carry on any occupation, trade or business does not extend to practising a profession or carrying on an occupation, trade or business which is inherently vicious and pernicious, and is condemned by all civilised societies. It does not entitle citizens to carry on trade or business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public i.e. res extra commercium, (outside commerce). There cannot be business in crime.

(c) Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium being inherently harmful. A citizen has, therefore, no fundamental right to do trade or business in liquor. Hence the trade or business in liquor can be completely prohibited.

(d) Article 47 of the Constitution considers intoxicating drinks and drugs as injurious to health and impeding the raising of level of nutrition and the standard of living of the people and improvement of the public health. It, therefore, ordains the State to bring about prohibition of the consumption of intoxicating drinks which obviously include liquor, except for medicinal purposes. Article 47 is one of the directive principles which is fundamental in the governance of the country. The State has, therefore, the power to completely prohibit the manufacture, sale, possession, distribution and consumption of potable liquor as a beverage, both because it is inherently a dangerous article of consumption and also because of the directive principle contained in Article 47, except when it is used and consumed for medicinal purposes.

(e) For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19(6) or even otherwise.

(f) For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and limitations on the trade or business in potable liquor can again be both under Article 19(6) or otherwise. The restrictions and limitations can extend to the State carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licences to do trade or business in the same, to others.

(g) When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business.

(h) The State can adopt any mode of selling the licences for trade or business with a view to maximise its revenue so long as the method adopted is not discriminatory.

(i) The State can carry on trade or business in potable liquor notwithstanding that it is an intoxicating drink and Article 47 enjoins it to prohibit its consumption. When the State carries on such business, it does so to restrict and regulate production, supply and consumption of liquor which is also an aspect of reasonable restriction in the interest of general public. The State cannot on that account be said to be carrying on an illegitimate business.

(j) The mere fact that the State levies taxes or fees on the production, sale and income derived from potable liquor whether the production, sale or income is legitimate, does not make the State a party to the said activities. The power of the State to raise revenue by levying taxes and fees should not be confused with the power of the State to prohibit or regulate the trade or business in question. The State exercises its two different powers on such occasions. Hence the mere fact that the State levies taxes and fees on trade or business in liquor or income derived from it, does not make the right to carry on trade or business in liquor a fundamental right, or even a legal right when such trade or business is completely prohibited.

(k) The State cannot prohibit trade or business in medicinal and toilet preparations containing liquor or alcohol. The State can, however, under Article 19(6) place reasonable restrictions on the right to trade or business in the same in the interests of general public.

(l) Likewise, the State cannot prohibit trade or business in industrial alcohol which is not used as a beverage but used legitimately for industrial purposes. The State, however, can place reasonable restrictions on the said trade or business in the interests of the general public under Article 19(6) of the Constitution.

(m) The restrictions placed on the trade or business in industrial alcohol or in medicinal and toilet preparations containing liquor or alcohol may also be for the purposes of preventing their abuse or diversion for use as or in beverage.'

27. In yet another judgment in P.N. Krishna Lal and others v. Government of Kerala and another, : 1994(5)SCALE1 , in paragraph 24 of the report, the Apex Court observed thus:

'24. The revision d'etre of the State being the welfare of the members of the society, the whole purpose of the creation of the State would be to maintain order, health and morality by suitable legislation and proper administration. The State has the power to prohibit trade or business which are illegal, immoral or injurious to the health and welfare of the people. No one has the right to carry on any trade or occupation or business which is inherently vicious and pernicious and is condemned by all civilised societies. Equally no one could claim entitlement to carry on any trade or business or any activities which are criminal and immoral or in any articles of goods which are obnoxious and injurious to the safety and health of general public. There is no inherent right in crime. Prohibition of trade of business of noxious or dangerous substances or goods by law is in the interest or society welfare.'

The Apex Court went on to observe in paragraph 28 that no civilised society would countenance that a citizen has a fundamental right to trade or business in activities which are criminal in propensity, immoral, obnoxious and injurious to health, safety and welfare of the general public. It was emphasised that there was no inherent right in a citizen to conduct business or trade in adulterated intoxicated liquor by retail or wholesale. Paragraph 28 of the report reads thus:

'28. No civilised society, therefore, would countenance that a citizen has a fundamental right to trade or business in activities which are criminal in propensity, immoral, obnoxious and injurious to health, safety and welfare of the general public. It is, therefore, a question of public expedience and public morality that the State is fully competent to regulate the business in liquor or intoxicating drug to mitigate its evil or to suppress it in its entirety. There is no inherent right in a citizen to conduct business or trade in adulterated intoxicated liquor by retail or wholesale. It is, therefore, obvious that dealing in liquor inherently precious or dangerous goods which endangers the community or subversive of morale, is within the legislative competence under the Act. The State has thereby the power to prohibit trade or business which is injurious to the health and welfare of the public and the elimination and exclusion from the business is inherent in the nature of liquor business. The power of the legislature to evolve the policy and its competence to raise presumptive evidence should be considered from this scenario.

28. Before we deal with this aspect further, let us see the studies carried out in respect of Pan Masala and Gutka. Along with affidavit in reply filed on behalf of respondents No. 2 and 3, some studies and papers have been placed on record. In the paper entitled 'Homodynamic Effects of Pan Masala in Healthy Volunteers' by A.K. Sharma, R. Gupta, H.P. Gupta, A.K. Singh, Pan Masala has been noted comprising of areca nut (Areca catechu), slaked lime (Ca(OH)2), catechu (Acacia catechu) and condiments (cloves, nutmeg, cardamom, etc.) and it was found that Pan Masala has alkaloids because of areca content. These alkaloids produce carcinogenic nitrosamines in presence of nitrites present in saliva. It is suggested that the carcinogenic effects of Pan Masala have been investigated and frequent intake of the pan masala every day can lead to initial periodic rise in blood pressure and ultimately lead to sustained hypertension. The finding is that Pan Masala consumption poses significant long-term cardiovascular risk.

29. In the paper, 'Health Hazards of Pan Masala with Tobacco', written by Dr. Kishore Chaudhary, discussion is made in respect of three types of Pan Masala which are available in the market: (i) plain pan masala, (ii) sweet pan masala and (iii) pan masala containing tobacco. According to this study, five common popular brands of Pan Masala showed the presence of polyaromatic hydrocarbons, nitrosamines and toxic metals like lead, cadmium and nickel. Analysis of four brands of plain Pan Masala and three brands of Pan Masala with tobacco showed presence of polyaromatic hydrocarbons and residual pesticides with a wide range from product to product. Some studies on its in-vitro mutagenic and genotoxic evaluation, and few animal studies have been reported and study of predaceous lesions in humans, have suggested that tobacco use is considered to be the main etiological agent for oral leukoplakia-oral sub-mucous fibrosis has long been suspected to be associated with areca nut chewing. Oral sub-mucous fibrosis is a chronic disease of the oral mucosa characterized by inflammation and progressive fibrosis of the lamina propria and deeper connective tissues. Habitual chewing of betel quid plays a major role in the etiology of the disease. 'A Comparative Clinico-Pathological Study of Oral sub-mucous fibrosis in Habitual Chewers of Pan Masala and Betelquid', suggests that habitual chewing of Pan Masala are more prone to oral fibrosis in comparison to users of betel quid as the betel leaf is known to be rich in beta carotene and hydroxychavicol which have the capacity to quench free radicals that are mutagenic. The report of Hitech Analytical Works relied upon by the petitioners, however, suggests that there is no scientific module of analysis or analytical study in respect of Pan Masala and Gutka.

30. It is true that there is no conclusive finding that Pan Masala without tobacco is carcinogenic by itself but the available studies and material leave no manner of doubt that intake of Pan Masala particularly frequent intake over the days can lead to significant cardiovascular risks. Besides that various reports by the public analysts placed on record in respect of the Pan Masala without tobacco do show that almost every Pan Masala available in market, contain magnesium carbonate to the extent ranging from 2% to 5%. On the basis of the excessive intake of magnesium carbonate, the user adversely suffers from hypomagnesaemia which may lead to hypotension and cardiac arrest. The available material and studies conducted so far, thus, would lead to reasonable belief that Pan Masala may affect adversely and seriously the health of the user. This view finds support from the fact that even Rule 42(zzz)(3) prescribes that every packet of Pan Masala and advertisement thereto shall carry the warning, 'chewing of Pan Masala may be injurious to health'.

31. As regards Gutka, it is indisputably an article of food comprising of Pan Masala with chewing tobacco and tobacco extract. There cannot be and is not any doubt that chewing of tobacco is injurious to health. Rule 42(zzz) provides that every packet of chewing tobacco shall bear the label, 'chewing of tobacco is injurious to health'. The Central Committee for Food Standards in its meeting held on 26th and 27th November, 1997 (page 204 of the reply affidavit filed on behalf of the respondents No. 2 and 3) observed thus:

'On the basis of literatures/studies available so far on adverse effects of consumption of Pan Masala containing tobacco/gutka/chewing tobacco, the experts strongly recommended that use of chewing tobacco in pan masala/gutka or as an ingredient in any food item or as such, should be prohibited as consumption of these articles is definitely injurious to public health.'

32. The Central Government in its reply affidavit through Shri J.S. Chaudhary has stated as well that the Central Committee for Food Standards, a Statutory Committee of experts, constituted under the provision of section 3 of the Act of 1954 to advise the Central and State Government on the matters arising out of the administration of the said Act, has recommended the imposition of total ban on use of chewing tobacco ingredients in pan masala/gutka or as an ingredient of food item, or as such, in view of their adverse effects. It is true that the recommendation of the Statutory Committee of experts as noted above, has not been fully accepted by the Central Government as some of the Ministries of the Central Government expressed reservation on the question of immediate ban because large number of tobacco growers and those involved in manufacture/production and sale of tobacco and tobacco products and other ensuing consequences, yet it can be said without hesitation that Gutka having chewing tobacco as an article of food is injurious to health and has adverse effect on the user.

33. An article of food which is injurious to health or may impair the health of the constant user or lead to affect public health or which may involve health hazard, trade or business therein, cannot be claimed as a matter of right. A restriction which is commensurate with the need of time in helping good of public health or prevent danger to public health cannot be said to be unreasonable even though it goes to the extent of extinguishment of the individual's property or may cause hardship in individual cases. In the case of dangerous, noxious, vicious or pernicious trade such as Pan Masala and Gutka the prohibition thereof is for social welfare and in the interest of public health. Article 47 of the Constitution of India ordains the State to raise the level of nutrition and the standard of living and to improve public health. Prohibition of Pan Masala and Gutka which erodes public health would definitely result in improvement of public health. If health is wealth then good public health is national wealth and to preserve and protect national wealth in the nature of good public health is the obligation and responsibility of State. The restriction that may be imposed on articles of food in the interest of public health on the trade and business of Gutka and Pan Masala, thus, cannot be said to be unreasonable or violative of Article 19(1)(g) of the Constitution. The challenge to the vires of section 7(iv) with the touchstone of Article 19(1)(g) is devoid of merit and is overruled.

34. Mr. Aney learned Senior Counsel would urge that section 7(iv) is ultra vires being violative of Article 21 of the Constitution. The submission of Mr. Aney is that prohibition of Pan Masala and Gutka interferes with the right to life to the extent that it affects the individual's right to use tobacco for personal ends. The learned Senior Counsel submitted that the right to choose must be read to be a part and parcel of right to life under Part III of Constitution. In this connection Mr. Aney relied upon 'The Constitution Reflection of a changing nation' by Margot C.J. Mabie and Lord Dennings speech titled 'Freedom under the law' in the first Hamlyn Lectures. We are afraid, the submission of Mr. Aney cannot be accepted. There is no doubt that right to life enshrined under Article 21 is the most precious fundamental right and permits a citizen to live he likes and eat what he chooses but in the very scheme of the Constitution such individual right must be subordinate to the public good. In a State, for the people, of the people and by the people, an individual right to choose must yield to the public good. A welfare State cannot be a mute spectator to the erosion of public health by permitting its subjects to use and consume article of food which is harmful or injurious to health or that may adversely affect them. The learned Advocate General was right in submitting that the suggestion that every person has a right to consume deleterious substances or even poisonous foods and that society had nothing to do with it, is a too simplistic an approach to be accepted. Persons who destroy their own selves ultimately impact society and its organisation for as and when they fall ill, (and even dangerously ill) they take recourse to the public health system which is maintained and supported by society and Government. As it is we have a poor public health system and, therefore, prevention is better than cure. We, accordingly, hold that there is nothing like an absolute right under Article 21 to make even a wrong choice which ultimately may affect and have impact on the society or a State as a whole.

Re: (ii).

35. Now we turn to the second question whether the impugned order dated 23-7-2002 issued by Food (Health) Authority is violative of Articles 14, 19(1)(g), 21, 300-A, 301 and 304 of the Constitution. For the reasons for which we have negatived the contention of the petitioners that section 7(iv) is ultra vires being violative of Articles 14, 19(1)(g) and 21, the challenge to the impugned order being violative of these articles cannot be accepted. The challenge to the impugned order dated 23-7-2002 under Article 14 on the ground that other injurious articles like tobacco and cigarettes have not been prohibited, suffice it to say, that merely because it would have been better for the State to prohibit or ban other articles of food which are pernicious or injurious to health and which have not been banned cannot invalidate the impugned order dated 23-7-2002 and plea of discrimination shall not be available on that count. Public health is always a matter of policy in the governance of the subjects and such policy cannot be assailed under Article 14 on the ground that the articles of food which are injurious or harmful to health, have been left or have been treated differently. We are benefited by the observation made by the Constitution Bench of the Apex Court in Khoday Distilleries Ltd. (cited supra) where, as a matter of fact, the argument was advanced that tobacco being harmful, obnoxious and injurious to health has not been prohibited, while the potable liquor was and that argument was not accepted. In our considered view, the impugned order banning Pan Masala and Gutka in the order dated 23-7-2002 cannot be said to suffer from vice of Article 14.

36. As regards the challenge to the order issued by the Food (Health) Authority under Article 300-A, at the outset we may observe that by such prohibitory order there is no deprivation of property under section 300-A as such. Firstly right to carry on the trade or business in an article of food which is injurious or harmful to health is not absolute right but a defeasible right. Moreover, what is provided under Article 300-A is that no person shall be deprived of his property save by authority of law. Even if it be assumed for arguments sake that by the impugned order the petitioners shall be deprived of the licences which are deemed to be property, such deprivation is definitely by authority of law. The order dated 23-7-2002 passed by the Food (Health) Authority is an order having sanction of law and is 'law' within the meaning of Article 13(3) of the Constitution of India. We, accordingly, find no merit in the submission of Mr. Aney, learned Senior Counsel, that the impugned order dated 23-7-2002 is violative of Article 300-A. We have already dealt with this aspect while considering the validity of section 7(iv) with the touchstone of Article 19(1)(g) and 19(6) and, therefore, refrain from burdening our judgment further while considering challenge to the order with reference to Article 300-A.

37. The impugned order dated 23-7-2002 passed by the Food (Health) Authority has also been assailed being in violation of Articles 301 and 304 of the Constitution of India. The submission to that effect is that as the impugned order affects inter-state trade and commerce, it can only be done by law; Prevention of Food Adulteration Act is a law enacted by Parliament and if the State of Maharashtra wanted to impose a restriction on inter-state trade, it could so: (a) in public interest, (b) by law made by State legislature and (c) with previous sanction of President of India.

38. The order dated 23-7-2002 cannot be said to be violative of Article 301 of the Constitution of India. By prohibiting the manufacture for sale of Pan Masala and Gutka in the State of Maharashtra for a period of five years, the Food (Health) Authority has not put restriction directly on inter-state trade and business of Gutka and Pan Masala. If it has resulted so, it is only incidental, indirect and remote. Besides that as we have already noted the activity of trade or business in the articles of food like Pan Masala and Gutka which are vicious, pernicious and injurious cannot be claimed as a matter of legal right. The doctrine res extra commercium comes into play and for activity in the goods which is res extra commercium, Article 301 has no application. In State of Bombay v. R.M.D. Chamarbaugwala, : [1957]1SCR874 , the Supreme Court observed that the real purpose of Article 19(1)(g) could not possibly have been to guarantee or declare the freedom of gambling. Gambling activities, observed Supreme Court, from their very nature and in essence are extra commercium although the external forms, formalities and instruments of trade may be employed, but they are not protected either by Article 19(1)(g) or Article 301 of the Constitution. The Supreme Court held therein that the protection offered by Article 301 does not extend to an activity which is res extra commercium. Article 301 does not comprehend the freedom for trade and commerce inter-state in respect of the goods or articles of food which erode the public health or injurious to public health or results in social evil. In Khoday Distilleries Ltd. (supra), legal position has been stated to the effect that State can impose limitations and restrictions on the trade or business in a potable liquor as a beverage which restrictions are in nature different from those, imposed on the trade or the business in legitimate activities and goods and articles which are res commercium.

39. We fail to appreciate how Article 304 has been pressed in service. We are not dealing with the law enacted by State legislature restricting on trade, commerce and the inter course amongst States. While considering the order dated 23-7-2002 issued by Food (Health) Authority under section 7(iv) of the Act of 1954, Article 304 hardly has any application.

Re: (iv)

40. Now we deal with the question whether in respect of the product Pan Masala, the Food (Health) Authority has any power to issue an order of prohibition under section 7(iv). The submission of Mr. Kapil Sibal, learned Senior Counsel for the petitioners, before us is that Food (Health) Authority has no power to prohibit the sale of any article of food under section 7(iv) when section 23 confers power only on the Central Government to prohibit the sale of any substance injurious to health when used as food. Mr. Sibal would contend that section 7(iii) indicts any person from manufacturing for sale any article of food contrary to the conditions of the licence, in terms of which the authority to manufacture for sale has been granted. Pan Masala is one such item referred to at Entry A-30 in Appendix B of Rule 5 of the Rules of 1955. Referring to Rule 50, Mr. Sibal, learned Senior Counsel, submitted that the conditions of licences are set out therein and once those conditions are satisfied, the authority prescribed under the Act of 1954 has an obligation to grant a licence. According to him, the legislative presumption is that the manufacture for sale of an article of food licensed under the Rules of 1955 carries with it that the sale of such article of food is not injurious to public health for otherwise the article of food would not have been included in the appendix. In this context Mr. Sibal referred to section 23(1-A)(f), which, according to him, vests in the Central Government the power to prohibit: (i) the sale of any substance which may be injurious to health when used as food; (ii) restrict in any manner the use of the said substance as ingredients in the manufacture of any article of food and (iii) regulate by issue of licence for manufacture or sale of any articles of food. He, thus, submitted that in so far as the Pan Masala is concerned, the manufacture thereof being under licence pursuant to the conditions attached to it cannot be subject matter of any prohibition by Food (Health) Authority.

41. The learned Advocate General, per contra, relied upon the judgment of the learned Single Judge of Madras High Court in Gandhi Irwin Salt Manufacturers Association and etc. v. The Government of Tamil Nadu and etc., : AIR1996Mad109 , the judgment of the Division Bench of the Madras High Court in the appeals arising from the aforesaid judgment titled T.T.U.E. Vivaparigal Sangam v. Secretary to Government, Public Health Department, Madras & others, : AIR1996Mad459 and the unreported judgment of Madras High Court in M.N.A. Mohammad Sultan & Sons v. State of Tamil Nadu, decided on 21-12-2001 in Writ Petition No. 22877/2001 and submitted that the power conferred on the Food (Health) Authority is statutory, the exercise of which is independent of the rule making power of the Central Government under section 23 of the Act.

42. We have already noted section 23 above. Section 23 empowers the Central Government to make Rules, after consultation with the Committee constituted under section 3 of the Act and previous publication by notification in the Official Gazette for carrying out the provisions of the Act. Proviso appended to sub-section (1) of section 23 provides that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said Rules. Sub-section (1-A) of section 23 provide for matters, inter alia for which rules may be framed by the Central Government. Clause (b) thereof provides for defining the standards of quality for, and fixing the limits of variability permissible in respect of any article of food; Clause (c) provides for laying down special provision for imposing rigorous control over the production, distribution and sale of any article or class of articles of food which the Central Government may, by notification in the Official Gazette, may specify in this behalf; Clause (d) provides for restricting the packing and labelling of any article of food and the design of any such package or label with a view to preventing the public or the purchaser being deceived or misled as to the character, quality or quantity of the article or preventing adulteration and Clause (f) provides for making rules concerning prohibiting the sale or defining the conditions of sale of any substance which may be injurious to health when used as food or restricting in any manner its use as an ingredient in the manufacture of any article of food or regulating by the issue of licences the manufacture or sale of any article of food. Sub-section (2) of section 23 provides that every rule made by the Central Government under the Act shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions aforesaid and if both the Houses agree in making any modification in the rule or both House agree that the rule should not be made, in that event the rule shall have effect only in such modified form or shall be of no effect as the case may be. In our considered view, section 23(1-A)(f) which empowers the Central Government to make rules concerning (i) sale of any substance which may be injurious to health when used as food; (ii) restrict in any manner the use of the said substance as an ingredient in the manufacture of any article of food and (iii) regulate by issue of licence for manufacture or sale of any article of food is quite separate, distinct and does not affect or impinge upon the power of the Food (Health) Authority under section 7(iv) to prohibit an article of food for sale in the interest of public health for the time being-such power of Food (Health) Authority being absolute to that extent. Besides the rule making power given to the Central Government under section 23, the Parliament in the very nature, object and purpose for which the Act of 1954 was enacted empowered the Food (Health) Authority to prohibit any article of food for sale for the time being in the interest of public health. The power given to Food (Health) Authority under section 7(iv) by the Parliament in essence is absolute to the extent given and not subject to section 23(1-A)(f). In a given fact situation sometimes the power conferred on the Food (Health) Authority under section 7(iv) may overlap the power of Central Government under section 23(1)(f) but that does not make the power of the Food (Health) Authority under section 7(iv) conditional upon the exercise of power by Central Government or by State law. We are fortified in our view by the judgment of the learned Single Judge (Shivraj Patil, J., as he then was) of Madras High Court in Gandhi Irwin Salt Manufactures Association (supra). In paragraphs 50, 57, 58 and 60 the learned Single Judge observed thus :

'50. In clear terms of section 7, the sale of edible common salt other than iodised salt is prohibited with effect on and from 1st January, 1995. The argument of the learned Counsel for the petitioners advanced at one stage that the impugned notification could have been issued for the time being limiting to a particular period, in the absence of limiting the period for which the prohibition was imposed, it was bad, no more remained available in; view of the amendment issued to the said notification No. VI/(2)/208/94 dated 29-8-1994 by amended notification No. VI/(2)/13(a)/95 (R.No. 5896/PFA.S1-91) dated 12-1-1995 by the second respondent-Director of Public Health and Preventive Medicine and State Food (Health) Authority, published in the Tamil Nadu Government Gazette Extraordinary dated 12-1-1995 limiting the period of prohibition between the period from 1st January, 1995 to 31st December, 1999.

57. The validity of section 7 of the Act is not questioned in these writ petitions. When the impugned notification is issued by the competent authority prohibiting the sale of non-iodised salt in the interest of the public health under section 7(iv) of the Act, it is to be held as valid. Most of the States in the country have issued similar notifications under section 7(iv) of the Act.

58. Now, the question to be considered is whether the impugned notification issued under the Act relating to the subject in Entry 18 in the concurrent list (List III of 7th Schedule to the Constitution) is in conflict in any way with the legislations enacted under Entry 58 of the union list. In my opinion, the provisions of the 1944 Act or 1953 Act relating to Entry 58 in the first list are in no way conflicting or inconsistent with section 7(iv) of the Act under which the impugned notification is issued. The three Acts operate in their respective fields. The notification issued is one under the Prevention of Food Adulteration Act, 1954. That is the subject relating to which there is a specific entry in Entry 18 in List III.

60. As already stated above, manufacture, sale and distribution of common salt is not prohibited under the impugned notification. What is prohibited is only sale of non-iodised edible common salt other than iodised salt in the State. The manufacture, sale and distribution of common salt, even though is recognised, under the Central Excise and Salt Act, and Salt Cess Act, is only for the purpose of those Acts, even if the Rules permit under the Act allowing the use of common salt. Under the impugned notification there is no blanket or total ban for use of common salt for other non-edible purposes. Under the circumstances when under the impugned notification, some restriction is placed on the sale of edible common salt other than the iodised salt, it cannot be said to be either unreasonable or arbitrary. In other words the impugned notification is neither violative of Article 14 or 19(1)(g) of the Constitution. The argument on the ground of legitimate expectation has also to be rejected. When the statute permits issuing of the impugned notification there cannot be any legitimate expectation against the interest of the public health in the State.'

Gandhi Irwin Salt Manufactures Association was a case where the members of the said Association were carrying on manufacture of common edible salt for decades. The Food (Health) Authority of Government of Tamil Nadu issued the order banning sale of edible common salt other than iodised salt. The said order was impugned before the learned Single Judge on diverse grounds. It was held by the learned Single Judge that section 7(iv) confers a specific statutory power to prohibit the sale of an article of food in the interest of public health. It was further held that section 7(iv) confers a plenary power and such statutory power is independent of the rule making power. In paragraph 66 the learned Single Judge observed, 'The impugned notification is not a mere executive order or an instruction, but is one issued under a statutory provision viz. Section 7(iv) of the Act and under the authority of that provision conferred on the Food (Health) Authority concerned. Hence, the attack on the impugned order that it is only an executive order and cannot override the other statutory provision, except by instruction is untenable'.

43. The aforesaid judgment of the learned Single Judge was carried in appeal before the Division Bench in T.T.U.E. Vivaparigal Sangam v. Secretary to Government, Public Health Department Madras & others : AIR1996Mad459 and the Division Bench in paragraph 15 of the said report observed thus :

'15. We are of the opinion that though learned Senior Counsel has enumerated the above points in pith and substance, the only argument that has to be countenanced is whether section 7 of the Act enables the Director of Public Health to ban the sale of edible common salt other than iodised salt in the manner in which it has been done. This is because section 7 of the Act does authorise the Food Health Authority to prohibit the sale of any article of food. As rightly pointed out by learned Single Judge, salt is an article of food within the meaning of section 2(iv) of the Act and Food Health Authority means the Director of Medical and Health Services or Chief Officer-in-charge of Health Administration in the State by whatever designation he is known and includes any officer empowered by notification in the Official Gazettee to exercise the powers and performing the duties of the Food Health Authority under the Act. In this view of the matter, the first point deserves no consideration. Second and fourth points do not at all advance the case of appellants because the fact that conditions are prescribed for granting licence for preparation of food and sale of the same and the fact that standards are prescribed for the manufacture of edible common salt do not impede the competent authorities to exercise their power under section 7(iv) of the Act for prohibiting the sale of any article of food in the interest of the public. So far as the material available for the imposition of the ban, we have already referred to the surveys made by the authorities and as rightly pointed out by learned Judge the Government need not wait till the entire State becomes endemic to iodine deficiency disorders. The argument based on the field of legislation relating to manufacture, supply and distribution of salt by Union Agencies or other Agencies, being occupied by the Central Government, does not convey any meaning because both the enactments are enacted by the Parliament. Therefore, with reference to Entry 18 of List III, it is only Central Government which has enacted the Prevention of Food Adulteration Act, 1954 and within the scope of the said Act, it is certainly open to the Government to prohibit the sale of any article of food in the interest of public health.'

44. The Division Bench, thus, held that because the conditions are prescribed for granting licence for preparation of food and sale of the same and the fact that standards are prescribed for the manufacture of common edible salt do not impede the competent authority the exercise of their power under section 7(iv) of the Act of 1954 for prohibiting the sale of any article of food in the interest of the public health. The Division Bench of Madras High Court negatived the contention advanced by the appellants/petitioners therein that section 107(a) of the Tamil Nadu Public Health Act, 1959 prescribed the conditions under which the sale of food can be undertaken or in the manner in which the food is prepared or stored and so long as these conditions are satisfied, there can be no ban of sale of common salt and the Act and the rules framed thereunder. We fully agree with the view of the Madras High Court which was made with reference to the ban on edible common salt other than iodised salt and have no hesitation in holding that the power of Food (Health) Authority under section 7(iv) is not impeded in respect of the prohibition of Pan Masala merely because section 23 confers power on the Central Government to prohibit the sale of any substance injurious to health when used as food.

45. It would not be out of place to observe here that the prohibition contained in section 23(1-A)(f) relates to sale of substance which may be injurious to health if used as food whereas prohibition contemplated under section 7(iv) relates to any article of food in the interest of public health for the time being. The two concepts may intersect, but these two concepts cannot be said to have same meaning; these concepts definitely differ. The expression 'in the interest of public health' cannot be construed narrowly to mean something which is injurious to health or harmful to health only. A Food (Health) Authority may even prohibit an article of food which may not be injurious to health per se but may in his opinion be in the interest of public health. 'In the interest of public health' is an expression of wider connotation encompassing within its fold, something more than what is only injurious or pernicious to public health. Again prior to the present provision, section 7(iv) read, 'Any article of food the sale of which is for the time being prohibited by the Food (Health) Authority with a view to preventing the outbreak or spread of infectious disease.' After amendment in the year 1965, the present provision reads, 'any article of food the sale of which is for the time being prohibited by the Food (Health) Authority in the interest of public health'. If the expression 'in the interest of public health' is to be construed narrowly as was sought to be conveyed to mean preventing the outbreak of an epidemic or spread of infectious disease beyond emergent situation which endangers public health, the very purpose of amendment in the year 1965 in section 7(iv) shall be defeated. The Parliament by the amendment in the year 1965 in a way expanded the power of State (Health) authority to prohibit the sale of any article of food, which is for the time being in the interest of public health by substituting the expression, 'with a view to preventing the outbreak or spread of infectious diseases'. What has been done specifically and expressly by the Parliament in using the expression 'in the interest of public health' after amendment in section 7(iv) cannot be negated by confining the said expression to cover situation like outbreak or spread of infectious diseases or emergent situation in public health. The power given to the Food (Health) Authority statutorily by Parliament under section 7(iv) cannot be circumscribed and confined to the situation provided in section 23.

Re: (v)

46. It is time now to advert to the submission of Mr. Kapil Sibal, the learned Senior Counsel, that if it is held that section 7(iv) confers power on the Food (Health) Authority, it is only the sale of an article of food which can be prohibited and not its manufacture for sale outside State of Maharashtra. The submission of the learned Senior Counsel is that the manufacture of sale of Gutka and Pan Masala outside the territorial limits of the State of Maharashtra cannot be prescribed. This is on the footing that the expression 'manufacture for sale' or other expression used in section 7(iv) relating to storage or distribution relates to such activities within the State of Maharashtra and that the impugned notification dated 23-7-2002 prescribing the manufacture, storage, distribution and sale of Gutka and Pan Masala cannot have extra territorial effect. In this connection, he sought to derive support from the affidavit in reply filed on behalf of the Central Government wherein it is stated that under the provisions of Clause (iv) of section 7 of the Prevention of Food Adulteration Act, 1954, the Food Health Authority, Maharashtra, has the lawful authority to prohibit the sale of any article of food in the interest of public health, within the local area of the State of Maharashtra, for the period as deemed necessary. In this connection, Mr. Kapil Sibal also referred to the notification issued in the State of Andhra Pradesh prohibiting the sale of Pan Masala and Gutka within the State of Andhra Pradesh and the notification dated November 19, 2001 issued by the State of Tamil Nadu in exercise of the powers under section 7(iv) to submit that the notification issued by the State of Andhra Pradesh did not include manufacture, but merely prohibited in the interest of public health, the sale of Pan Masala under any brand name with emblem of Gutka containing tobacco. He submitted that the notification issued by Andhra Pradesh suggests that the exercise of power relatable to section 7(iv) can merely prohibit the sale of any article of food in the public interest and no more. Referring to the notification issued in the State of Tamil Nadu, the learned Senior Counsel submitted that the said notification was so interpreted by Madras High Court that the prohibition therein shall only be restricted to sale within the territories of the State of Tamil Nadu.

47. The learned Advocate General stoutly opposed the submission of Mr. Kapil Sibal in this regard and submitted that the moment the sale of article of food is prohibited, every aspect of injunction contained in first part of section 7 automatically comes into force. The submission of the learned Advocate General is that once the sale of article of food is prohibited, not only can there be no sale, but there can be no manufacture for sale, storage or distribution.

48. For proper appreciation of this contention reference to the impugned notification in this connection is necessary. The relevant part of the impugned notification reads that the sale of Gutka and Pan Masala containing tobacco and not containing tobacco by whatever name called, is prohibited for a period of five years with effect from 1-8-2002 and, accordingly, it is directed that no person shall himself or any person on his behalf shall manufacture for sale, or store, sale, or distribute Gutka or Pan Masala containing tobacco or not containing tobacco for a period of five years with effect from 1-8-2002. In other words, the Food (Health) Authority while prohibiting the sale of Gutka and Pan Masala in the interest of public health, in exercise of his powers under section 7(iv) for a period of five years effective from 1-8-2002, has consequently injuncted any person by himself or on his behalf from manufacturing for sale or storing or selling or distributing Gutka or Pan Masala containing tobacco or not containing tobacco. It is true that Clause (iv) of section 7 empowers the State (Health) Authority prohibiting any article of food for sale for the time being in the interest of public health, but Clause (iv) has to be read in conjunction with expression with which the section begins, viz., 'No person shall himself or by any person on whose behalf manufacture for sale or store, sale or distribute items.'. In the matter of trading and commercial activity, sale is the ultimate objective for which an activity is undertaken. There cannot be and shall not be a commercial activity in manufacture of a product which is not to be sold. A product or an item or for that matter an article of food is not manufactured as an activity of commerce if it is not to be sold ultimately. When section 7 which begins with the expression that no person shall himself or by any person on his behalf manufacture for sale, store, or distribute is read in conjunction with Clause (iv) which provides that any article of food the sale of which is for the time being is prohibited by the Food (Health) Authority in the interest of public, it would be apparent that prohibition of sale of an article of food necessarily includes prohibition on manufacture for sale of such article. A product which is sold is obviously first manufactured then stored or distributed and ultimately sold. Therefore, when the Parliament in Clause 7(iv) empowered the Food (Health) Authority to prohibit any article of food the sale of which is for the time being in the interest of public health, obviously, the Parliament intended such power of prohibition to include prohibition on manufacture for sale or store or distribute. In other words, once the sale of an article of food is prohibited by Food (Health) Authority under section 7(iv), it is open to such authority to ban manufacture of such article of food as well. We are benefited, in this connection, by the observations made by the Apex Court in the Khadya Peya Vikarate Malak Sangh v. The Chief Officer, Sangli Municipal Council and another, : AIR1977SC527 . The Supreme Court held that the word 'manufacturer' as defined in Clause (d) of Rule 2 of Maharashtra Prevention of Food Adulteration Rules has been used in widest possible sense. It was held that the preparation of manufacture of those articles was incidental or ancillary to the retail sale, the dominant purpose of trading activity being sale of food articles by retail. A fortiori, once ban is imposed in the public interest by Food (Health) Authority for sale of any article of food for the time being under Clause (iv) of section 7 the sale being a predominant trading activity, the authority is competent to ban manufacture, storage and distribution of such article of food too. In the beginning of section 7 the expression 'manufacture for sale, or store, or distribute' having already been used, it was unnecessary to use in Clause (iv) the expression, 'manufacture or store or distribute'. We need not overemphasise that the central concept of the statute like the Prevention of Food Adulteration Act is to prevent the public health from serious hazards by adulteration of foodstuffs. In Pyarali K. Tejani v. Mahadeo Ramchandra Dange & others, : 1974CriLJ313 , the Apex Court observed thus :

'4. ............The central concept of the statute is prevention of adulteration of food in the sombre background of escalating manoeuvres by profiteers who seek to draw dividends from the damage to the health of the people caused by trade in adulteration. The social sternness and wide sweep of the statute can be realised from the thought that an insidious host that internally erodes the vitality of a nutritionally deficient nation is, in one sense, a greater menace than a visible army of aggression at our frontiers and so the police power of the State must reach out to protect the unsuspecting community with overpowering laws against those whose activities are a serious hazard to public health.'

49. In Vincent Pankurlangara v. Union of India and others, : [1987]2SCR468 , the Apex Court observed, 'maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority perhaps the one at the top.'.

50. In Dineshchandra Jamnadas Gandhi v. State of Gujarat and another, : 1989CriLJ889 , the Apex Court ruled that the object and the purpose of the Act are to eliminate the danger to human life from the sale of unwholesome articles of food. Definitely the Act of 1954 is social defence legislation and while construing the provisions of the said Act, particularly 7(iv), the object and the purpose for which the Act has been enacted have to be kept in mind and no construction should be put either to Clause (iv) of section 7 or the power exercised under Clause (iv) by Food (Health) Authority in the interest of public health which may defeat the very purpose for which the power has been exercised. Section 7 must be read in a manner which advances the object and not in a strained manner which will nullify the object of section 7(iv) and the Act. The prohibitory order dated 23-7-2002 in respect of Pan Masala and Gutka be its manufacture, storage, distribution and sale is for State of Maharashtra and due to such prohibition if these products cannot be manufactured within the territories of State of Maharashtra, it cannot be said to have extra territorial effect. Besides that we find substance in the submission of the learned Advocate General that if the contention of the learned Senior Counsel for the petitioners that the manufacture or sale of Gutka and Pan Masala banned by the Food (Health) Authority is with reference to the territorial limits of the State of Maharashtra and cannot have extra territorial effects, it will be impossible for State Authority of Maharashtra to deal with situation where the selling of a particular article is prohibited and nevertheless it can continue to be manufactured in the State on the ground that it may be sold outside the State of Maharashtra. The submission of the learned Advocate General is not without merit in this regard that this would put the State of Maharashtra in a very difficult position for it would be almost impossible to check whether there is clandestine sale of that article within the State or not. We, accordingly, hold that the impugned order dated 23-7-2002 cannot be said to suffer from the vice that if sustained, it shall have an extra territorial effect.

51. Before we close, we may deal with two more aspects: (i) the meaning of the expression 'for the time being' and (ii) when the Act of 1954 itself provides for regulation concerning articles of food which are injurious to health, what is subject to regulation, cannot be prohibited.

52. As regards the expression 'for the time being', in our considered view, what it means in the general sense is that of time indefinite and refers to indefinite state of facts which may vary from time to time. It cannot be confined to mean few days or few months. The expression 'for the time being' in contra distinction to 'permanently' can only mean indefinite time. In this view of the expression 'for the time being', if the Food (Health) Authority has exercised its power prohibiting sale of articles of food like pan masala and Gutka in the interest of public health for five years, it cannot be said to be inconsistent with the statutory expression 'for the time being'. Incidentally we may observe that in the case before Madras High Court banning sale of edible common salt other than iodised, initially the notification did not mention the period but later on the said notification was amended and ban order of sale of edible common salt other than iodised salt was made effective for a period of five years from 1-1-1995 to 31-12-1999. The ban of five years was not found to be in contravention of section 7(iv). The other contention that since under section 23(1)(f) the sale of pan masala and gutka can be regulated and, therefore, the power of prohibition under section 7(iv) cannot be exercised, we need not repeat since we have already observed above that a statutory power conferred on a Food (Health) Authority cannot be limited or restricted or circumscribed by section 23(1-A)(f). When the prohibitory order concerning Pan Masala and Gutka is within the statutory power and in accord thereof in the interest of public health, such prohibition cannot be faulted.

53. In view of the foregoing discussion, we summarise our conclusions thus:

(i) Section 7(iv) of the Prevention of Food Adulteration Act, 1954 is intra vires and the contention that the said section 7(iv) is ultra vires for reasons: (a) lack of legislative competence; (b) violative of Article 14, having no guidelines and provide uncanalised and unbridled power to Food Health Authority; (c) violative of Article 21, is overruled.

(ii) We hold that the impugned order dated 23-7-2002 does not suffer from the vice of the discrimination under Article 14 nor it is violative of Article 19(1)(g) or Article 21 or Articles 300-A or 301 and 304 of the Constitution of India.

(iii) Section 7(iv) confers power on Food (Health) Authority to be exercised within the parameters provided therein and its operation does not presuppose and require existence of State law referable to Entry 6 of List II of VII Schedule of the Constitution of India.

(iv) We hold that the power of State Food (Health) Authority under section 7(iv) is statutory, absolute to the extent provided therein and independent of the power conferred on Central Government under section 23(1-A)(f).

(v) The power conferred on Food (Health) Authority under section 7(iv) provides for prohibiting the sale of an article of food for the time being in the interest of public health which includes power to prohibit manufacture, storage or distribution as well in such articles of food.

54. These five writ petitions are, accordingly liable to be dismissed which we order hereby with no order as to costs.

Interim orders stand discharged.

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