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Wp(C) 1583/2014 1 IN THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) W.P.(C) No. 1583/2014 PETITIONERS: 1. Dharampal Satyapal Ltd., A company incorporated under the provisions of the Companies Act, 1956, having its registered office situated at S.P. Mukherjee Road, New Delhi and having its factory at 39, Bamunimaidan Industrial Estate, Bamunimaidan, Guwahati, Assam, represented by its authorized representative, namely, Sri Shantanu Kumar Sarma, son of Sri Tarak Chandra Sarma, resident of Christian Basti, G.S. Road, Guwahati-781005, District- Kamrup (Metro), Assam. 2. Sri Chander Kant Sharma, Son of Shri Kishori Lal Sharma, Resident of House No.74, Asiad Village Complex, New Delhi-49. By Advocates : Mr. D.K. Mishra, Sr. Advocate, Mr. S. Pathak, Mr. A.K. Sharma, Mr. M. More, Ms. B. Sharma. RESPONDENTS: 1. State of Assam, Represented by the Chief Secretary, Govt. of Assam, Dispur, Guwahati-6. 2. Union of India, Represented through the Secretary, Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, ‘C’ Wing, New Delhi- 110001. By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt. 2 W.P.(C) No. 1824/2014 PETITIONERS: 1. M/s Surendra Enterprises, Transport Chowk, Kaimganj, District- Farukhabad (U.P.), (Prop. Sri Surendra Kumar Agarwal). 2. M/s Ravindra & Company, Railway Road, Kaimganj, District- Farukhabad (U.P.), (A registered partnership firm represented through its partner Sri Surendra Kumar Agarwal). By Advocates : Mr. D.K. Mishra, Sr. Advocate, Mr. B. Prasad, Ms. P. Baruah. RESPONDENTS: 1. State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6. 2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006, Assam. 3. Union of India, (represented by the Secretary, Health and Family Welfare Department), New Delhi. By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt. W.P.(C) No. 1996/2014 PETITIONERS: 1. M/s Ganapati Tobacco Store, (Proprietor:- Ghanshyam Ladha), a proprietorial concern having its principal place of business at Marwaripatty, Jorhat-785001, Assam, duly represented by its proprietor- Sri Ghanshyam Ladha, son of Chaganlal Ladha, a resident of Marwari Patty, Jorhat-785001, Assam. 3 2. M/s Laduram Champalal, (Proprietor:- Manoharlal Bothra), a proprietorial concern having its principal place of business at Chamber Road, Tinsukia-786125, Assam, duly represented by its proprietor- Sri Manoharlal Bothra, son of late Motilal Bothra, a resident of Chamber Road, Tinsukia-786125, Assam. 3. M/s L.C. Store, (Proprietor:- Ganeshmal Bothra), a proprietorial concern having its principal place of business at Siding Bazar, Tinsukia-786125, Assam, duly represented by its proprietor- Sri Ganeshmal Bothra, son of late Laduram Bothra, a resident of Siding Bazar, Tinsukia-786125, Assam. 4. M/s Shree Vijaylaxmi Enterprise, (Proprietor:- Jethmal Shyam Sukha), a proprietorial concern having its principal place of business at Samser Ali Building, Thana Chariali, Golaghat, Assam, duly represented by its proprietor. 5. M/s Sitaram Kothari, (Proprietor:- Sri Sitaram Kothari), a proprietorial concern having its principal place of business at Old Jail Road, Golaghat, Assam, duly represented by its proprietor. 6. M/s H.B. Enterprise, (Proprietor:- Mrs. Saroj Devi Karnani), a proprietorial concern having its principal place of business at Marwaripatty, Jorhat, Assam , duly represented by its proprietor. 7. M/s Jain Tobacco Store, (Proprietor:- Padam Chand Jain), a proprietorial concern having its principal place of business at Chamber Road, Tinsukia, Assam, duly represented by its proprietor. 8. M/s Dungarmal Kishalal, (Proprietor:- Mahesh Kumar Jaju), a proprietorial concern having its principal place of business at Siding Bazar, Tinsukia, Assam, duly represented by its proprietor. 9. M/s Zubair Ahmed Khan, (Proprietor:- Subair Ahmed Khan), a proprietorial concern having its principal place of business at Coal Road, Dibrugarh, Assam, duly represented by its proprietor. 10. M/s Siwlal Panalal, (Proprietor:- Panalal Sharma), a proprietorial concern having its principal place of business at A.T. Road, Dibrugarh, Assam, duly represented by its proprietor. 11. M/s Subhkaran Dindayal, A partnership firm duly registered under the Indian Partnership Act, 1932 having its principal place of business and office at New State Bank of India, New Amolapatty, Golaghat-785621, Assam, duly represented by 4 one of its partners- Sri Subhkaran Pareek, a resident of Old SBI, Amolapatty, Golaghat-785621, Assam. 12. M/s Meghraj Bhawarlal, A partnership firm duly registered under the Indian Partnership Act, 1932 having its principal place of business and office at Chamber Road, Tinsukia, Assam, duly represented by one of its partners- Rajendra Kumar Lunawat, son of late Chunilal Lunawat. By Advocates : Mr. D.K. Mishra, Senior Advocate, Mr. S.K. Kejriwal, Ms. S. Kejriwal. RESPONDENTS: 1. State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6. 2. Secretary, Govt. of Assam, Health & Family Welfare Department, Dispur, Guwahati-6. 3. Deputy Secretary, Govt. of Assam, Health & Family Welfare Department, Dispur, Guwahati-6. 4. Union of India, Represented by its Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, C-Wing, New Delhi-110001. By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt. W.P.(C) No. 2382/2014 PETITIONER: J.M. Agarwal Tobacco Company, Noniumganj, Kaimganj, 209502, District- Farrukhabad, U.P., A registered partnership firm represented through its authorized representative Sri Prakash Gupta. By Advocates : Mr.D.K. Mishra, Senior Advocate, Mr. S. Pathak. 5 RESPONDENTS: 1. State of Assam, Represented by the Chief Secretary to the Govt. of Assam, Dispur, Guwahati-6. 2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006, Assam. 3. Union of India, (Represented by the Secretary, Health & Family Welfare Department), New Delhi. By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt. PIL No. 17/2015 PETITIONER: Sri Ravindra Nath, Son of late Jagnarayan Ram, R/o RVC Campus, PO- Vill- Akajan, Via Silapathar, District- Dhemaji, Pin-787059. By Advocates : Mr. S. Dutta, Sr. Advocate, Mr. J. Roy, Mr. P. Hazarika, Miss. S. Kakati, Mr. S. Borthakur. RESPONDENTS: 1. State of Assam, Represented by the Chief Secretary, Govt. of Assam, Dispur, Guwahati-6. 2. Commissioner and Secretary, Health & Family Welfare Department, Dispur, Guwahati-781006. 6 3. Union of India, (Represented by the Secretary, Health & Family Welfare Department), New Delhi. By Advocates: Mr. D. Saikia, Sr. Addl. Advocate General, Assam, Mr. B. Gogoi, SC, Health Deptt. BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN HON’BLE MR. JUSTICE PARAN KUMAR PHUKAN Dates of hearing : 23-05-2017, 30-05-2017, 01-06-2017, 20-06-2017, 20-07-2017, 27-07-2017, 17-08-2017 & 24-08-2017. Date of Judgment : 27.10.2017 JUDGMENT & ORDER (Ujjal Bhuyan, J) In WP(C) Nos.1583/2014, 1824/2014, 1996/2014 and 2382/2014, petitioners have challenged the constitutional validity of the Assam Health (Prohibition of Manufacturing, Advertisement, Trade, Storage, Distribution, Sale and Consumption of Zarda, Gutka, Pan Masala, etc containing Tobacco and/or Nicotine) Act, 2013 and have sought for striking down of the same as being unconstitutional and void. On the other hand, petitioner in PIL No.17/2015 seeks a direction to the State respondents to implement the provisions of the said Act in its letter and spirit. 2. We have heard Mr. D.K. Mishra, learned Senior counsel, Mr. S. Pathak, Mr. A.K. Sharma and Mr. B. Prasad, learned counsel for the petitioners in the writ petitions, Mr. S. Dutta, learned Senior counsel and Mr. J. Roy, learned counsel for the PIL petitioner and Mr. D. Saikia, learned Senior Additional Advocate General, Assam assisted by Mr. B. Gogoi, learned Standing Counsel, Health Department for the respondents. 3. Mr. Mishra, learned Senior counsel, leading the arguments on behalf of the petitioners in the four writ petitions, had in the course of the hearing, highlighted the facts in WP(C) No.1583/2014 as the lead case. Accordingly, WP(C) No.1583/2014 is being taken up as the lead case. 7 4. In this case, petitioner is M/s. Dharampal Satyapal Limited, a company incorporated under the Companies Act, 1956, having its registered office at New Delhi and one of its factories at Bamunimaidam Industrial Estate, Guwahati. M/s. Dharampal Satyapal Limited (petitioner company hereinafter) is engaged in the business of manufacturing and sale of Pan Masala (without tobacco), Gutka, Chewing Tobacco including Zafrani Zarda, etc which are industrial produce and are subject to excise duty. Union Parliament enacted the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short, COTPA) and the Tobacco Board Act, 1975. COTPA has been enacted as a comprehensive law on tobacco products in public interest and to protect public health taking into account the mandate of Article 47 of the Constitution of India and other international obligations. COTPA covers all tobacco products including smoking and smokeless tobacco. While advertisement is prohibited; production, supply, distribution, trade and commerce in cigarettes and other tobacco products are regulated. 5. Notwithstanding the presence of COTPA,
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