IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 30.01.2018 DELIVERED ON : 26.04.2018
CORAM
The HON'BLE MS.INDIRA BANERJEE, CHIEF JUSTICE AND The HON'BLE MR.JUSTICE ABDUL QUDDHOSE
W.P.No.19335 of 2017
J.Anbazhagan Member of Legislative Assembly Chepauk – Triplicane Assembly Constituency 25, Mahalakshmi Street T.Nagar, Chennai-17. .. Petitioner
Vs.
1 The Union of India rep. by its Secretary to the Government Ministry of Home Affairs Government of India North Block, Cabinet Secretariat Raisina Hill, New Delhi – 110 001.
2 The Secretary to the Government Ministry of Personnel Public Grievances and Pensions, Government of India South Block, Raisina Hill New Delhi - 110 001.
3 The Secretary to the Govt. Ministry of Health and Family Welfare Government of India Nirman Bhawan C Wing New Delhi - 110 001.
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4 The Central Vigilance Commissioner Central Vigilance Commission Satarkata Bhavan A Block GPO Complex, INA New Delhi - 110 023.
5 The Chairman Board of Central Excise and Customs Department of Revenue Ministry of Finance Government of India North Block New Delhi - 110 001.
6 The Director General of Vigilance Customs and Central Excise Headquarters Office, 1st and 2nd Floor Samrat Hotel Kautilya Marg Chanakyapuri New Delhi - 110 021.
7 The Principal Director of Income Tax (Investigation) Ayakar Bhavan Nungambakkam Chennai-34.
8 The State of Tamilnadu rep. by its Chief Secretary to Government Government of Tamilnadu Fort St. George Secretariat Chennai-9.
9 The Home Secretary cum State Vigilance Commissioner Government of Tamilnadu Fort St. George Secretariat Chennai-9.
10 The Director General of Police Tamilnadu Radhakrishnan Salai Chennai-4
11 The Commissioner of Food Safety and Drug Administration Fort St. George, Chennai-9.
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12 The Central Bureau of Investigation Rep. by its Director Plot No.5B 6th Floor CGO Complex Lodhi Road, Jawaharlal Nehru Stadium Marg New Delhi - 110 003.
13 The Joint Director Central Bureau of Investigation Shastri Nagar, Adayar, Chennai-20. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for issuance of a writ of Mandamus directing the respondents to constitute a Special investigation Team to be headed by a Retired Judge of this court with the officials drawn from CBI and other departments to be named by this court, take all steps to seize, eradicate the banned items, more particularly Gutkha and Pan Masala containing tobacco and/or nicotine as per the Gazette Notification dated 23.5.2015 of the 11th Respondent and in consonance with the directions of the Supreme Court, including registering of the petitioner's complaint dated 11.7.2017 by the 12th and 13th respondents and investigate the involvement of State and Central Government Officials and public servants in the manufacture and sale and distribution of Gutkha and pan masala containing tobacco and/or nicotine in State of Tamil Nadu and to monitor the same till filing of a final report before the competent Court within a stipulated time.
For Petitioner : Mr.P.Wilson Senior Counsel for Mr.R.Neelakandan
For Respondents : Mr.Venkatasamy Babu SCGSC for respondents 1 to 4
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Mr.V.Sundareswaran SCGSC for respondents 5 and 6
Mr.G.Rajagopalan Additional Solicitor General assisted by Mr.A.P.Srinivas, SCGSC for 7th respondent
Mr.R.Vijaynarayan Advocate General assisted by Mr.T.N.Rajagopalan Government Pleader (incharge) for respondents 8 and 10
Mr.P.H.Arvindh Pandian Additional Advocate General II assisted by Mr.C.V.Shailendhran for 9th respondent
Mr.S.R.Rajagopal Addl. Advocate General-IX Assisted by Mr.M.Elumalai for 11th respondent
ORDER
Ms.INDIRA BANERJEE, CHIEF JUSTICE
This writ petition under Article 226 of the Constitution of India,
filed in public interest by a Member of the Legislative Assembly in the
State of Tamil Nadu, elected from the Chepauk-Triplicane Legislative
Assembly Constituency, is directed against the illegal manufacture and
sale of chewable forms of tobacco like Gutkha and Pan Masala, which
are believed to cause life threatening and/or fatal ailments such as
cancer, inter alia, in the State of Tamil Nadu. http://www.judis.nic.in ( 5 )
2. The Food Safety and Standards Act, 2006, hereinafter
referred to as “the Food Safety Act”, has been enacted to consolidate
the laws relating to food and to establish the Food Safety and
Standards Authority of India for laying down science based standards
for articles of food and to regulate their manufacture, storage,
distribution, sale and import, to ensure availability of safe and
wholesome food for human consumption and for matters connected
therewith or incidental thereto.
3. Some of the relevant provisions of the Food Safety Act are set
out herein below for convenience:
“Section 3. Definitions. (1) In this Act, unless the context otherwise requires, –
(a) “adulterant” means any material which is or could be employed for making the food unsafe or sub-standard or mis-branded or containing extraneous matter;
(b) “advertisement” means any audio or visual publicity, representation or pronouncement made by means of any light, sound, smoke, gas, print, electronic media, internet or website and includes through any notice, circular, label, wrapper, invoice or other documents; .... (e) “Commissioner of Food Safety” means the
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Commissioner of Food Safety appointed under section 30; ....
(i) “extraneous matter” means any matter contained in an article of food which may be carried from the raw materials, packaging materials or process systems used for its manufacture or which is added to it, but such matter does not render such article of food unsafe;
(j) “Food” means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances:
Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;
(k) “food additive” means any substance not normally consumed as a food by itself or used as a typical ingredient of the food, whether or not it has nutritive value, the
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intentional addition of which to food for a technological (including organoleptic) purpose in the manufacture, processing, preparation, treatment, packing, packaging, transport or holding of such food results, or may be reasonably expected to result (directly or indirectly), in it or its by-products becoming a component of or otherwise affecting the characteristics of such food but does not include “contaminants” or substances added to food for maintaining or improving nutritional qualities;
(l) “Food Analyst” means an analyst appointed under section45;
(m) “Food Authority” means the Food Safety and Standards Authority of India established under section 4;
(n) “Food business” means any undertaking, whether for profit or not and whether public or private, carrying out any of the activities related to any stage of manufacture, processing, packaging, storage, transportation, distribution of food, import and includes food services, catering services, sale of food or food ingredients;
(o) “food business operator” in relation to food business means a person by whom the business is carried on or owned and is responsible for ensuring the compliance of this Act, rules and regulations made thereunder; .... (q) “food safety” means assurance that food is acceptable for human consumption according to its intended use;
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(r) “food safety audit” means a systematic and functionally independent examination of food safety measures adopted by manufacturing units to determine whether such measures and related results meet with objectives of food safety and the claims made in that behalf;
(s) “Food Safety Management System” means the adoption Good Manufacturing Practices, Good Hygienic Practices, Hazard Analysis and Critical Control Point and such other practices as may be specified by regulation, for the food business;
(t) “Food Safety Officer” means an officer appointed under section 37;
(u) “hazard” means a biological, chemical or physical agent in, or condition of, food with the potential to cause an adverse health effect; ..... (y) “ingredient” means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form; .... (zc) “manufacture” means a process or adoption or any treatment for conversion of ingredients into an article of food, which includes any sub-process, incidental or ancillary to the manufacture of an article of food;
(zd) “manufacturer” means a person engaged in the business of manufacturing any article of food for sale and includes any person who obtains such article from another
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person and packs and labels it for sale or only labels it for such purposes;
(zm) “risk”, in relation to any article of food, means the probability of an adverse effect on the health of consumers of such food and the severity of that effect, consequential to a food hazard;
(zn) “risk analysis”, in relation to any article of food, means a process consisting of three components, i.e. risk assessment, risk management and risk communication;
(zo) “risk assessment” means a scientifically based process consisting of the following steps : (i) hazard identification,(ii) hazard characterisation; (iii) exposure assessment, and (iv) risk characterisation;
(zp) “risk communication” means the interactive exchange of information and opinions throughout the risk analysis process concerning risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, industry, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions;
(zq) “risk management” means the process, distinct from risk assessment, of evaluating policy alternatives, in consultation with all interested parties considering risk assessment and other factors relevant for the protection of health of consumers and for the promotion of fair trade
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practices, and, if needed, selecting appropriate prevention and control options;
(zr) “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;
(zz) “unsafe food” means an article of food whose nature, substance or quality is so affected as to render it injurious to health :— (i) by the article itself, or its package thereof, which is composed, whether wholly or in part, of poisonous or deleterious substance; or (ii) by the article consisting, wholly or in part, of any filthy, putrid, rotten, decomposed or diseased animal substance or vegetable substance; or (iii) by virtue of its unhygienic processing or the presence in that article of any harmful substance; or (iv) by the substitution of any inferior or cheaper substance whether wholly or in part; or (v) by addition of a substance directly or as an ingredient which is not permitted; or (vi) by the abstraction, wholly or in part, of any of its constituents; or (vii) by the article being so coloured, flavoured or
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coated, powdered or polished, as to damage or conceal the article or to make it appear better or of greater value than it really is; or (viii) by the presence of any colouring matter or preservatives other than that specified in respect thereof; or (ix) by the article having been infected or infested with worms, weevils, or insects; or (x) by virtue of its being prepared, packed or kept under insanitary conditions; or (xi) by virtue of its being mis-branded or sub- standard or food containing extraneous matter; or (xii) by virtue of containing pesticides and other contaminants in excess of quantities specified by regulations.
Section 4. Establishment of Food Safety and Standards Authority of India. (1) The Central Government shall, by notification, establish a body to be known as the Food Safety and Standards Authority of India to exercise the powers conferred on, and to perform the functions assigned to, it under this Act. (2) The Food Authority shall be a body corporate by the name aforesaid, having perpetual succession and a seal with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.
Section 11. Central Advisory Committee. (1) The Food Authority shall, by notification, establish a
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Committee to be known as the Central Advisory Committee.
Section 12. Functions of Central Advisory Committee. (1) The Central Advisory Committee shall ensure close cooperation between the Food Authority and the enforcement agencies and organisations operating in the field of food. (2) The Central Advisory Committee shall advise the Food Authority on – (a) ..... (b) ..... (c) identifying potential risks, (d) ...... (e) such other functions as may be specified by regulations.
Section 13. Scientific Panels. (1) The Food Authority shall establish scientific panels, which shall consist of independent scientific experts. (2) The Scientific Panel shall invite the relevant industry and consumer representatives in its deliberations. (3) Without prejudice to the provisions of sub-section (1), the Food Authority may establish as many Scientific Panels as it considers necessary in addition to the Panels on: (a) food additives, flavourings, processing aids and materials in contact with food; (b) pesticides and antibiotics residues; (c) genetically modified organisms and foods; (d) functional foods, nutraceuticals, dietetic products and other similar products;
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(e) biological hazards; (f) contaminants in the food chain; (g) labelling; and (h) method of sampling and analysis.
Section 14. Scientific Committee. (1) The Food Authority shall constitute Scientific Committee which shall consist of the Chairpersons of the Scientific Panels and six independent scientific experts not belonging or affiliated to any of the Scientific Panels. (2) The Scientific Committee shall be responsible for providing the scientific opinions to the Food Authority, and shall have the powers, where necessary, of organising public hearings.
Section 16. Duties and functions of Food Authority. (1) It shall be the duty of the Food Authority to regulate and monitor the manufacture, processing, distribution, sale and import of food so as to ensure safe and wholesome food. (2) Without prejudice to the provisions of sub-section (1),the Food Authority may by regulations specify – (a) the standards and guidelines in relation to articles of food and specifying an appropriate system for enforcing various standards notified under this Act; .... (d) the procedure and the enforcement of quality control in relation to any article of food imported into India;
(3) The Food Authority shall also –
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(a) provide scientific advice and technical support to the Central Government and the State Governments in matters of framing the policy and rules in areas which have a direct or indirect bearing on food safety and nutrition; (b) search, collect, collate, analyse and summarise relevant scientific and technical data particularly relating to – (i) food consumption and the exposure of individuals to risks related to the consumption of food; (ii) incidence and prevalence of biological risk; (iii) contaminants in food; (iv) residues of various contaminants; (v) identification of emerging risks;
(4) .... (5) The Food Authority may from time to time give such directions, on matters relating to food safety and standards, to the Commissioner of Food Safety, who shall be bound by such directions while exercising his powers under this Act;
Section 18. General principles to be followed in Administration of Act. The Central Government, the State Governments, the Food Authority and other agencies, as the case may be, while implementing the provisions of this Act shall be guided by the following principles namely:- (1) (a) endeavour to achieve an appropriate level of protection of human life and health and the
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protection of consumer’s interests, including fair practices in all kinds of food trade with reference to food safety standards and practices; .. (f) in cases where there are reasonable grounds to suspect that a food may present a risk for human health, then, depending on the nature, seriousness and extent of that risk, the Food Authority and the Commissioner of Food Safety shall take appropriate steps to inform the general public of the nature of the risk to health, identifying to the fullest extent possible the food or type of food, the risk that it may present, and the measures which are taken or about to be taken to prevent, reduce or eliminate that risk; and (g) where any food which fails to comply with food safety requirements is part of a batch, lot or consignment of food of the same class or description, it shall be presumed until the contrary is proved, that all of the food in that batch, lot or consignment fails to comply with those requirements.
(2) The Food Authority shall, while framing regulations or specifying standards under this Act– ..... (f) ensure prevention of – (i) fraudulent, deceptive or unfair trade practices which may mislead or harm the consumer; and (ii) unsafe or contaminated or sub-standard food.
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Section 19. Use of food additive or processing aid No article of food shall contain any food additive or processing aid unless it is in accordance with the provisions of this Act and regulations made thereunder. Explanation.– For the purposes of this section, “processing aid” means any substance or material, not including apparatus or utensils, and not consumed as a food ingredient by itself, used in the processing of raw materials, foods or its ingredients to fulfil a certain technological purpose during treatment or processing and which may result in the non-intentional but unavoidable presence of residues or derivatives in the final product.
Section 29. Authorities responsible for enforcement of Act. (1) The Food Authority and the State Food Safety Authorities shall be responsible for the enforcement of this Act. (2) The Food Authority and the State Food Safety Authorities shall monitor and verify that the relevant requirements of law are fulfilled by food business operators at all stages of food business. (3) The authorities shall maintain a system of control and other activities as appropriate to the circumstances, including public communication on food safety and risk, food safety surveillance and other monitoring activities covering all stages of food business. (4) The Food Safety Officers shall enforce and execute within their area the provisions of this Act with respect to which the duty is not imposed expressly or by necessary implication on some other authority.
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Section 30. Commissioner of Food Safety of the State. (1) The State Government shall appoint the Commissioner of Food Safety for the State for efficient implementation of food safety and standards and other requirements laid down under this Act and the rules and regulations made thereunder. (2) The Commissioner of Food Safety shall perform all or any of the following functions, namely:– (a) prohibit in the interest of public health, the manufacture, storage, distribution or sale of any article of food, either in the whole of the State or any area or part thereof for such period, not exceeding one year, as may be specified in the order notified in this behalf in the Official Gazette; .... (e) sanction prosecution for offences punishable with imprisonment under this Act;
Section 34. Emergency prohibition notices and orders. (1) If the Designated Officer is satisfied that the health risk condition exists with respect to any food business, he may, after a notice served on the food business operator (in this Act referred to as an ‘emergency prohibition notice”), apply to the Commissioner of Food Safety for imposing the prohibition. (2) If the Commissioner of Food Safety is satisfied, on the application of such an officer, that the health risk condition exists with respect to any food business, he shall, by an order, impose the prohibition. (3) The Designated Officer shall not apply for an emergency
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prohibition order unless, at least one day before the date of the application, he has served notice on the food business operator of the business of his intention to apply for the order.
Section 38. Powers of Food Safety Officer. (1) The Food Safety Officer may – (a) take a sample – (i) of any food, or any substance, which appears to him to be intended for sale, or to have been sold for human consumption; or (ii) of any article of food or substance which is found by him on or in any such premises; which he has reason to believe that it may be required as evidence in proceedings under any of the provisions of this Act or of the regulations or orders made thereunder; or (b) seize any article of food which appears to the Food Safety Officer to be in contravention of this Act or the regulations made thereunder;
Section 41. Power of search, seizure, investigation, prosecution and procedure thereof (1) Notwithstanding anything contained in sub-section (2) of section 31, the Food Safety Officer may search any place, seize any article of food or adulterant, if there is a reasonable doubt about them being involved in commission of any offence relating to food, and shall thereafter inform the Designated Officer of the actions taken by him in writing: Provided that no search shall be deemed to be irregular by
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reason only of the fact that witnesses for the search are not inhabitants of the locality in which the place searched is situated. (2) Save as in this Act otherwise expressly provided, provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to search, seizure, summon, investigation and prosecution, shall apply, as far as may be, to all action taken by the Food Safety Officer under this Act.
Section 49. General provisions relating to penalty. While adjudging the quantum of penalty under this Chapter, the Adjudicating Officer or the Tribunal, as the case may be, shall have due regard to the following:- (a) The amount of gain or unfair advantage, wherever quantifiable, made as a result of the contravention, (b) The Amount of loss caused or likely to cause to any person as a result of the contravention, (c) The repetitive nature of the contravention, (d) Whether the contravention is without his knowledge, and (e) Any other relevant factor,
Section 54. Penalty for food containing extraneous matter. Any person whether by himself or by any other person on his behalf manufactures for sale or stores or sells or distributes or imports any article of food for human consumption containing extraneous matter, shall be liable to a penalty which may extend to one lakh rupees.
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Section 55. Penalty for failure to comply with the directions of Food Safety Officer. If a food business operator or importer without reasonable ground, fails to comply with the requirements of this Act or the rules or regulations or orders issued thereunder, as directed by the Food Safety Officer, he shall be liable to a penalty which may extend to two lakh rupees.
Section 57. Penalty for possessing adulterant. (1) Subject to the provisions of this chapter, if any person who whether by himself or by any other person on his behalf, imports or manufactures for sale, or stores, sells or distribute any adulterant shall be liable – (i) where such adulterant is not injurious to health, to a penalty not exceeding two lakh rupees; (ii) where such adulterant is injurious to health, to a penalty not exceeding ten lakh rupees. (2) In a proceeding under sub-section (1), it shall not be a defence that the accused was holding such adulterant on behalf of any other person.
Section 59. Punishment for unsafe food. Any person who, whether by himself or by any other person on his behalf, manufactures for sale or stores or sells or distributes or imports any article of food for human consumption which is unsafe, shall be punishable,– (i) where such failure or contravention does not result in injury, with imprisonment for a term which may extend to six months and also with fine which may extend to one lakh rupees; (ii) where such failure or contravention results in a
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non-grievous injury, with imprisonment for a term which may extend to one year and also with fine which may extend to three lakh rupees; (iii) where such failure or contravention results in a grievous injury, with imprisonment for a term which may extend to six years and also with fine which may extend to five lakh rupees; (iv) where such failure or contravention results in death, with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and also with fine which shall not be less than ten lakh Rupees.
Section 92. Power of Food Authority to make regulations. (1) The Food Authority may, with the previous approval of the Central Government and after previous publication, by notification, make regulations consistent with this Act and the rules made thereunder to carry out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely:- (a) to (d) .... (e) notifying standards and guidelines in relation to articles of food meant for human consumption under sub-section (2) of section 16.”
4. According to the petitioner, India enjoys the dubious
distinction of being the oral cancer capital of the world due to the high http://www.judis.nic.in ( 22 )
use of smoke free tobacco or chewable tobacco. The use of chewable
tobacco is particularly prevalent amongst the younger generation and
their addiction to it ruins their health and even causes death at a
young age. The petitioner submitted that Gutkha and Tobacco are
highly addictive and is one of the leading causes of oral cancer and
other periodontal ailments.
5. According to the petitioner, the Global Adult Tobacco Survey –
India functioning under the Ministry of Health and Family Welfare, has,
in its Fact Sheet of 2009-2010, recorded the fact that 23.6% of the
people are using smoke free tobacco and 34.6% of the people in the
age group of above 15 years were addicted to the use of tobacco in
one form or the other. As per the Global Adult Tobacco Report, an
estimated 20.6 Crore Indians are habitual consumers of this harmful
product which poses a grave health risk, particularly to the younger
generation.
6. In exercise of power conferred by Section 92 of the Food
Safety Act, the Central Government has framed the Food Safety and
Standards (Prohibition and Restriction on sales) Regulations, 2011
(hereinafter referred to as "the 2011 Regulations").
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7. Regulation 2.3 prohibits and/or restricts the sale of certain
food products. Regulation 2.3.4 provides "product not to contain any
substance which may be injurious to health: Tobacco and nicotine shall
not be used as ingredients in any food products" . There is a ban on
use of tobacco and nicotine as ingredients in any food item as they are
injurious to health.
8. After the 2011 Regulations were framed, the Secretary,
Ministry of Health and Family Welfare, circulated a letter
No.DO.No.P.16012/12/11-Part I, dated 27.8.2012 to the Chief
Secretaries of all States and Union Territories, calling upon them to
ban the sale of Gutkha and Pan Masala with tobacco and/or nicotine.
On receipt of the said letter, the States and Union Territories issued
notifications under the 2011 Regulations imposing ban on the sale of
gutkha and pan masala with tobacco and/or nicotine.
9. It is stated that various writ petitions were filed in different
High Courts challenging the 2011 Regulations banning the sale of
Gutkha and Pan Masala. Pursuant to transfer applications, the writ
petitions were transferred to the Supreme Court and heard together by
the Supreme Court along with some Special Leave Petitions from
orders of High Court. One of writ petitions Central Arecanut Marketing
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Corporation and others v. Union of India and others, was heard along
with numerous writ petitions transferred to the Supreme Court and
Special Leave Petitions on 1.9.2016, 7.9.2016, 15.9.2016, 16.9.2016,
20.9.2016 and 21.9.2016. The Supreme Court also appointed an
amicus curiae.
10. After hearing the amicus curiae and upon consideration of its
earlier orders, the Supreme Court passed an order dated 23.9.2016 in
Central Arecanut Marketing Corporation, supra, heard along with other
transferred writ petitions and Special Leave Petitions. The order dated
23.9.2016 of the Supreme Court is set out herein below for
convenience:
“Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations, 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006. In view of the above, the concerned statutory authorities are directed to comply with the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of http://www.judis.nic.in ( 25 )
the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine." 11. The Supreme Court also directed all Chief Secretaries of
States and Administrators of Union Territories to issue notifications to
ban the sale of gutkha and pan masala. Thereafter, by a letter dated
23.9.2016, the Secretary, Ministry of Health and Family Welfare,
Government of India, requested all States and Union Territories to
comply with the ban of gutkha.
12. The right to health is undoubtedly an important ingredient of
the right to life guaranteed under Article 21 of the Constitution of
India, as liberally interpreted by the Supreme Court. The Directive
Principles of State Policy and in particular Article 47 casts a duty on the
State to improve public health and to endeavour to prohibit
consumption of intoxicating substances which are injurious to health.
13. In exercise of power conferred by Section 30(2)(a) of the
Food Safety Act, the State Government issued a formal gazette
notification in the Tamil Nadu Government Gazette on 23.5.2015
prohibiting the manufacture, storage, distribution or sale of Gutkha
and Pan Masala and any other food products containing tobacco or
nicotine as ingredients in the whole of Tamil Nadu for a period of one
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year from 23.5.2015. By further notifications published in the Tamil
Nadu Gazette on 23.5.2016 and 23.5.2017 respectively, the
prohibition on manufacture, storage, transport, sale or distribution of
Gutkha, Pan Masala, Chewing Tobacco and any other food products
containing tobacco or nicotine as ingredients, has been extended by
further periods of one year with effect from 23.5.2016 and 23.5.2017
respectively.
14. It is the case of the petitioner that notwithstanding the
provisions of the Food Safety Act and the 2011 Regulations, as well as
the orders of the Supreme Court, as also the gazette notifications
dated 23.5.2015, 23.5.2016 and 23.5.2017 gutkha is being sold with
impunity in the open market.
15. On 21.5.2017, a news item appeared in the Chennai edition
of the Times of India under the caption “Gutka freely available in Tamil
Nadu despite ban: Study”. As per the said report, an estimated 28.64
lakh people aged 15 years and above in Tamil Nadu use tobacco in
some form. Even though the tobacco prevalence rate in Tamil Nadu
had come down from 16% in 2009-10 to 5.2% in 2015-2016, tobacco
related cancers continue to remain high.
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16. A series of raids were conducted by the Income Tax
Department in Chennai on 8.7.2016. It is alleged that several
incriminating documents were recovered in course of such raids,
including accounts in the form of a ledger maintained by a lady
accountant of the company selling gutkha under the name and style of
"MDM Brand".
17. It appears that shortly after the raids, one
Mr.B.R.Balakrishnan, Principal Director of Income Tax (Investigation),
addressed a letter dated 11.8.2016 to the Chief Secretary of the State
of Tamil Nadu (Respondent No.8) and to the Director General of Police
(Respondent No.10) informing them that the Investigation Wing of the
Income Tax Department had carried out a search on the persons
involved in manufacture and sale of “MDM Brand” of Gutkha in Chennai
on 8.7.2016. In the said letter, it was stated that in course of search
it had been found that accounts were being maintained at the
residence of a lady accountant of the concern, and the accounts as
also statements of Mr.Madhava Rao, one of the main partners of the
Gutkha manufacturer, revealed payments to various persons
connected to the State Government. The Respondent Nos.8 and 10
were requested to take necessary action.
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18. Mr.P.Wilson appearing on behalf of the petitioner submits
that the enclosures to the said letter, which recorded the examination
of Mr.Madhava Rao, the main partner of the Gutkha Manufacturer
selling the MDM Brand, reveals monthly cash payments to the tune of
Rs.14 lakhs to the Health Minister of Tamil Nadu for a period of three
months; monthly payments of approximately Rs.2 lakhs to an official
of the Central Excise Department, through one Mr.Nandakumar;
monthly cash payments of approximately Rs.10 lakhs to Assistant
Commissioner of Police of Red Hills region, through Mr.Rajendran;
cash payments to Councillors of the Chennai Corporation of
approximately Rs.14 lakhs per month; monthly cash payments to
officials of Food Safety Department of about Rs.7 lakhs; monthly cash
payments to the then Commissioner of Police, Chennai City, through
Mr.Rajendran, amounting to Rs.6 lakhs, made on 21.4.2016,
20.5.2016 and 20.6.2016 respectively; monthly cash payment to an
advocate, Mr.Arul of approximately Rs.4 lakhs; and monthly cash
payment to another officer of the Centre.
19. Our attention has also been drawn to a news report in the
website edition of The Hindu of 27th and 28th June, 2017, reporting that
the Income Tax probe unearthed payment of bribes as stated above.
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20. Mr.P.Wilson appearing on behalf of the petitioner submits
that Gutkha is also manufactured in States other than Tamil Nadu. It
is brought into Tamil Nadu from other States as well. Therefore, a fair,
impartial, concerted investigation is absolutely necessary.
21. Mr.Wilson has made allegations of connivance of top officials
of the State Government, including a Minister, as also officials of the
Central Excise Department and other departments.
22. Mr.P.Wilson argued that in blatant violation of the ban
imposed by the Government of Tamil Nadu vide notification dated
23.5.2015, which has been extended from time to time, and the orders
of the Supreme Court, several manufacturers manufactured gutkha not
only within the State of Tamil Nadu, but also imported the same from
other States and were actively selling gutkha with tobacco and/or
nicotine within the State.
23. Mr.Wilson submitted that the tobacco mafia was flourishing
under the umbrella of protection of several high dignitaries,
bureaucrats, Central Excise Officials and other officials of the Central
Government and of various State Governments, including the
Government of Tamil Nadu.
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24. Mr.Wilson argued that since the sale of gutkha in Tamil Nadu
was ruining the health of its citizens, particularly the youngsters, the
petitioner had raised this issue on the floor of the assembly. The
petitioner had also made a representation dated 11.7.2017 to the
respondents requesting that the investigation into the gutkha scam be
handed over to the Central Bureau of Investigation, hereinafter
referred to as “the CBI”, and a complaint be registered into the above
issue and the matter be investigated.
25. Mr.Wilson submitted that the raids conducted by the Income
Tax Department on 8.7.2016 at the premises of the gutkha
manufacturer trading under the name and style of "MBM Brand" and at
other places connected to the company in Chennai, on a tip-off of tax
evasion to the tune of Rs.250 Crores, led to the seizure of several
documents, including a ledger account maintained by the accountant of
the said company, namely one Yogeshwari. The said ledger accounts
seized by the Income Tax Department reflect payments to various high
officials both of the State Government and the Central Government as
also to Councillors of Chennai Corporation, officials of the Food Safety
Department and others, and even to an advocate.
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26. In the sworn statement dated 9.7.2016 recorded by the
Income Tax Department of the said Mr.Madhava Rao, partner of the
said company selling gutkha under the “MDM brand”, had corroborated
the entries in the ledger accounts and admitted that bribe money had
indeed been paid to the persons mentioned in the ledger. Mr.Wilson
emphatically argued that there were materials which, prima facie,
show offer and receipt of bribes. There appears to be substance in the
argument.
27. In the counter affidavit of the Income Tax Department dated
11.1.2018, it is stated that the letter dated 11.8.2016 addressed to
the then Chief Secretary was handed over in person to the then Chief
Secretary along with the relevant annexures, including copies of the
seized materials, documents and sworn statements, evidencing the
payment of bribes to various officials connected to the State
Government.
28. The Income Tax Department, as pointed out by Mr.Wilson,
has in its counter affidavit also corroborated the statement of
Mr.Madhava Rao regarding payment of bribes to a Minister, the then
Commissioner of Police, Central Excise officials and various other
officials through intermediaries during the period between 1.4.2016
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and 6.7.2016.
29. As pointed out by Mr.Wilson, the counter affidavit reveals
that the letter of the Principal Director of Income Tax dated 11.8.2016
was handed over to the then Director General of Police through a
Special Messenger from the Income Tax Department, for which the
Income Tax Department has an acknowledgment.
30. According to Mr.Wilson, the Chief Secretary has filed a
counter affidavit in another proceeding before the Madurai Bench of
the Madras High Court stating that the entire file pertaining to this
letter is not found and no communication has been received from the
Income Tax Department.
31. The Income Tax Department has in its counter affidavit
stated that the original of the letter dated 11.8.2016 delivered to the
Director General of Police was found almost a year later in the
residence of the former Chief Minister, Veda Nilayam in Poes Garden,
Chennai, in the room occupied by Mrs.V.K.Sasikala, who has later been
convicted and imprisoned in a corruption case. The letter was found
and seized during another search and seizure conducted by the
Income Tax Department on 17.11.2017.
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32. Mr.Wilson questioned why a secret letter addressed by the
Income Tax Department to the Director General of Police was lying in
the residence of the former Chief Minister even after her demise on
15.12.2016, when a new Chief Minister had taken charge on the same
day.
33. Mr.Wilson argued that ordinarily all confidential and official
files circulated to the residence of a Chief Minister are taken back after
the Chief Minister demits office or passes away. The fact that the
Director General of Police left the letter of the Income Tax Department
in the custody of Mrs.Sasikala points to the fact that the official records
pertaining to the gutkha scam and the letter written by the Income
Tax Department to the Director General of Police to take action on the
allegations of bribery of the top officials, bureaucrats and Ministers
was sought to be swept under the carpet to protect the corrupt. It is
doubtful whether the attention of the then Chief Minister, who is no
more, was even drawn to the said letter.
34. Mr.Wilson argued that there was further prima facie material
suggesting involvement of top police officials, referring to a letter
addressed by the subsequent Commissioner of Police, Mr.George, to
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the Home Secretary. The letter of the successor Commissioner of
Police itself is, according to Mr.Wilson, enough prima facie material to
grant the relief sought in this writ petition.
35. Mr.Wilson argued that, as per the letter, the Commissioner
of Police had been receiving intelligence reports about the illegal sale
of banned products like gutkha and pan masala in the city. Though he
had ordered raids, he had come to know that several police officers,
including officers at the senior level, were involved. The letter of
Mr.George corroborates the existence of a factory manufacturing
gutkha within the jurisdiction of the Red Hills Police Station.
36. There can be hardly any doubt that allegations of
connivance of top officials of different departments under the Central
and State Governments in the manufacture, illegal import and sale of
gutkha and other forms of chewable tobacco calls for a thorough
investigation, when there is correspondence in this regard in
government files.
37. The question is whether this Court should constitute a
Special Investigation Team to investigate into the involvement of State
and Central Government officials and public servants in the
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manufacture, sale and distribution of gutkha and pan masala
containing tobacco and/or nicotine in the State of Tamil Nadu, as
prayed for in the writ petition.
38. The separation of powers between the Legislature, the
Executive and the Judiciary being a basic feature of the Constitution of
India, this Court is not inclined to take over the executive function of
investigation into the illegal manufacture, sale and distribution of
gutkha, and other chewable forms of tobacco by constituting a
Committee.
39. Mr.Wilson argued that in a public interest litigation of this
kind, where the attention of this Court had been drawn to an illegality
involving different States and different authorities, it was open to this
Court to mould the relief and to direct the CBI to take over the
investigation into the illegal manufacture, sale and distribution of
gutkha and pan masala containing tobacco and/or nicotine and other
forms of chewable tobacco, as also the connivance and/or involvement
of officials of the Central and State Governments, public functionaries
as well as others in such manufacture, distribution and sale.
40. Opposing the prayer for transfer of investigation from the
Vigilance and Anti Corruption Department of the Government of Tamil
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Nadu to the Central Bureau of Investigation, the learned Advocate
General, Mr.Vijaynarayan, appearing on behalf of the State of Tamil
Nadu submitted that the power of the Court under Article 226 of the
Constitution of India to transfer any investigation to the Central
Bureau of Investigation had to be exercised judiciously and sparingly,
only where the facts and circumstances of the case demanded that the
case should be investigated by the Central Bureau of Investigation.
41. The learned Advocate General argued that while exercising
this power, the Court had to examine materials on record, including
the case diary or status report furnished by the investigating agency of
the State, to decide whether the investigation had to be transferred to
Central Bureau of Investigation.
42. The learned Advocate General argued that the Court ought
not to transfer the investigation to the CBI unless it came to a strong
prima facie conclusion that a deliberate attempt was being made to
either derail or stultify the investigation in order to favour high officials
of the State, who were in a position to influence the cause of
investigation.
43. The learned Advocate General submitted that investigation is
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proceeding on the right line and every effort is being made by the
Directorate of Vigilance and Anti Corruption to investigate the case
properly. There was, thus, no reason not to allow the Directorate of
Vigilance and Anti Corruption to continue to investigate the complaint.
44. In support of the proposition propounded by the learned
Advocate General that the power to transfer investigation to Central
Bureau of Investigation should be used very judiciously and after
perusal of relevant materials, the learned Advocate General cited:
(i) State of West Bengal v. Committee for Protection of Democratic Rights, reported in (2010) 3 SCC 571; (ii) Secretary, Minor Irrigation and Rural Engineering and Services UP v. Sahngoo Ram Arya and another, reported in (2002) 5 SCC 521; (iii) T.C.Thangaraj v. V.Engammal, reported in (2011) 12 SCC 328; (iv) State of Punjab v. Davinder Pal Singh Bhullar, reported in (2011) 14 SCC 770; and (v) K.V.Rajendran v. Superintendent of Police, reported in (2013) 12 SCC 480.
45. The learned Advocate General argued that the pleadings in
the affidavit in support of the writ petition were lacking any material
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particulars. Although oral arguments had been addressed to the effect
that the case had inter-state ramifications and that two Central Excise
Officers were involved, no material was placed to support the
submission that investigation by Central Bureau of Investigation was
required.
46. The learned Advocate General also referred to the Vigilance
Manual to buttress his argument that, as per the Manual, it was only
the State Agency which was to investigate into cases which are
essentially and substantially against the servants of the State
Government or matters concerning the State Government irrespective
of the fact that certain employees of the Central Government were
involved as co-accused. In such cases, the Central Bureau of
Investigation would be involved and would render necessary assistance
to the State Agency in completing the investigation.
47. The learned Advocate General emphatically argued that the
question of whether investigation should be transferred to the Central
Bureau of Investigation or not was covered by a decision of a Co-
ordinate Bench of this Court dated 28.7.2017 in W.P.(MD) No.12482
of 2017 (K.Kathiresan v. Union of India and others), where a similar
prayer for investigation by Central Bureau of Investigation was not
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allowed, after analysis of the same documents, namely, letter of
Income Tax Department dated 11.8.2016 and the letter of the then
Commissioner of Police dated 22.12.2016.
48. The learned Advocate General argued that after
consideration of the aforesaid materials and analysis thereof, the
Division Bench took the view that investigation by Central Bureau of
Investigation was not required; that the post of Vigilance
Commissioner should be a completely independent post and separated
from the Government; that a person of independence and integrity
should be appointed to the said post; and that he should personally
monitor investigation by the Directorate of Vigilance and Anti
Corruption.
49. The Division Bench finally directed the Directorate of
Vigilance and Anti Corruption to constitute a Special Team and conduct
an enquiry under his personal supervision and to take orders only from
the Vigilance Commissioner. The Directorate of Vigilance and Anti
Corruption was directed not to share materials collected during the
enquiry with any public servant. The Division Bench further directed
that there should not be any kind of interference by the political
executives, public servants and more particularly, the Director General
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of Police, the Minister concerned or any other officers against whom
allegations had been made.
50. The learned Advocate General also referred to an earlier
order of the Division Bench dated 27.1.2017 in W.P.No.1846 of 2017
(T.Vincent v. The Director of CBI and others), where the prayer for CBI
investigation was rejected.
51. The learned Advocate General argued that a judgment
rendered in a public interest litigation binds each member of the public
and it was, therefore, not open to another Bench to take a different
view. The learned Advocate General submitted that this proposition
finds support from the judgment of the Supreme Court in State of
Karnataka v. All India Manufacturers Organization and others, reported
in (2006) 4 SCC 683.
52. The learned Advocate General submitted that the petitioner
was mainly relying upon certain entries in the books of accounts of a
Gutkha dealer and statements made by the dealer. The evidentiary
value of these documents/statements had already been examined in
detail by the earlier Division Bench, which relied on the judgment of
the Supreme Court in Common Cause v. Union of India, reported in
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2017 (1) SCALE 573.
53. The learned Advocate General emphatically argued that it
was not open to the petitioner to re-urge these issues before a co-
ordinate bench. No materials had been placed and no arguments
advanced to show that Directorate of Vigilance and Anti Corruption
under the supervision of the Vigilance Commissioner was not
proceeding with proper investigation.
54. Mr.S.R.Rajagopalan, learned Additional Advocate General
appearing on behalf of the 11th respondent argued that considering the
ill-effects of tobacco on the health of the general public, the
Government of Tamil Nadu banned the sale of chewing tobacco, pan
masala containing tobacco or nicotine and gutkha in public interest for
a period of five years with effect from 19.11.2001 by issuing a
notification in exercise of the powers conferred by Clause (iv) of
Section 7 of the Prevention of Food Adulteration Act, 1954. The
aforesaid notification was challenged by filing writ petitions in this
Court.
55. The Prevention of Food Adulteration Act, 1954 was repealed
and replaced by the Food Safety and Standards Act, 2006. In
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invocation of the powers conferred under the said Act, notification
being G.O.No.II(2)/HFW/391(a)/2013 was issued on 23.5.2013
prohibiting manufacture, storage, distribution or sale of gutkha, pan
masala and any other food products containing tobacco or nicotine as
ingredients by whatever name it was available in the market. The said
notification was issued for a period of one year and the same was
extended annually and in the notification issued on 23.5.2017 for the
first time chewing tobacco was included and the said notification is due
to expire with effect from 23.5.2018.
56. Mr.S.R.Rajagopalan submitted that the writ petitioner was
seeking constitution of a Special Investigation Team headed by a
Retired High Court Judge and officials drawn from the Central Bureau
of Investigation and other departments to take steps to eradicate the
banned items as per the notification dated 23.5.2017 and for
registering of a case based on the complaint alleged to have been
made on 11.7.2017.
57. Mr.S.R.Rajagopalan argued that the relief sought for was not
maintainable as there is already a Committee constituted for the same
and there was no allegation in the writ petition that they were not
discharging their duties effectively of eradicating the banned items.
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58. Mr.S.R.Rajagopalan submitted that the writ petition is
politically motivated and not in public interest. The petitioner has
made bald allegations to stigmatize the officials of the 11th respondent.
59. Mr.S.R.Rajagopalan submitted that the manufacturers of
gutkha and other forms of chewable tobacco were governed by the
provisions of the Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production,
Supply and Distribution) Act, 2003, hereinafter referred to as “the
COTA”.
60. Citing a judgment and order dated 9.6.2017 of a Single
Bench of this Court in W.P.No.21 of 2017 (Jayavilas Tobacco Traders
LLP v. The Designated Officer, The Food Safety and Drugs Control
Department), Mr.Rajagopalan submitted that this Court has held that
tobacco is not a food product and the Food Safety Act has no
application to Tobacco.
61. In Jayavilas Tobacco Traders, supra, the Single Bench of this
Court relying on an order dated 27.04.2015 in Crl.O.P.(MD) No.5505
of 2015 [Manufacturer, M/s.Tejram Dharam Paul, Maurmandi,
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Bhatinda District, Punjab and another v. The Food Safety Inspector,
Ambasamudram], had set aside an order dated 24.11.2016 passed
under the Food Safety Act implicating the petitioner in that case of
alleged offences under the Food Safety Act, inter alia, holding that
gutkha and pan masala were not food under the Food Safety Act, but
tobacco products covered by the COTA.
62. Mr.Rajagopalan also referred to the order dated 27.04.2015
in M/s.Tejram Dharam Paul, supra, where the Madurai Bench of this
Court held:
"4.The only submission made by the learned counsel for the petitioners is that the sale of tobacco would not attract the provisions of the enactment. He further submits that as per Rule 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations Act, 2011, tobacco shall not be used as ingredients in any food products. As the tobacco does not come within the purview of the food product, the provisions will not apply. Moreover, when the allegation itself is that it has been sold in packet as tobacco.
7.Considering the very same issue with respect to the petitioners, the High Court of Kerala was pleased to hold while dealing with the very same provisions in the following manner:
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'30.Having found that chewing tobacco is not a food product as defined under the FSS Act, I am of the view that the writ petitions are only to be allowed as follows:
i)That tobacco or tobacco products are not food as defined under Section 3(j) of the FSS Act and it is not a food product as specified in the Regulation 2.3.4 of the Regulations. ii)Tobacco and tobacco products are to be manufactured and sold strictly in accordance with the provisions of the CTP Act and the Rules framed thereunder. iii)The respondents have no right take any action against tobacco or tobacco products by virtue of Government Order dated 22.05.2012 (Ext.P9 in W.P.C.No.13580 of 2012).'”
63. Mr.Arvind Pandian, learned Additional Advocate General
appearing on behalf of the ninth respondent adopted the arguments
made by the learned Advocate General and further argued that this
Court should not entertain a politically motivated writ petition filed by a
member of a rival political party.
64. In support of his submission, Mr.Pandian cited the judgment
of the Supreme Court in Kunga Nima Lepcha and others v. State of
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Sikkim and others, reported in (2010) 4 SCC 513, where the Supreme
Court held that public interest litigation filed by individual members of
a political party itself raises an apprehension that the litigation was an
outcome of political rivalry and the Court should not be turned into an
instrument of such partisan considerations.
65. The judgment in Kunga Nima Lepcha, supra, cited by
Mr.Pandian, is clearly distinguishable on facts. In the aforesaid
decision, the allegations of corruption made by so-called public interest
litigants of a rival political party were only levelled against the Chief
Minister. In rejecting the writ petition, the Supreme Court took note of
the alternative remedy available to the petitioner under the Prevention
of Corruption Act, 1988, and the existence of provisions in the Code of
Criminal Procedure empowering the Courts of first instance to exercise
a certain degree of control over ongoing investigations.
66. In exercise of power under Article 226 of the Constitution of
India, the Court can entertain a petition in public interest whenever its
attention is drawn to any injustice or patent illegality. In a public
interest litigation, the common rule of locus standi is relaxed and any
public spirited citizen can approach this Court to seek redress on
behalf of the public in general or any specific group.
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67. The Court is constitutionally bound to protect the
fundamental rights of the people. If issues of public importance and
infringement of fundamental and other basic rights of a large number
of people are raised, the Court would be duty bound to pass necessary
orders. Whenever injustice is meted out, the Court would not hesitate
to step in. The unabated sale of gutkha and other forms of chewable
tobacco adversely affecting the health of the community is a matter
which calls for interference of this Court.
68. Private disputes are not allowed to be agitated as a public
interest litigation. However, as held by the Supreme Court in
Guruvayur Devaswom Managing Committee and another v. C.K.Rajan
and others, reported in (2003) 7 SCC 546, in an appropriate case,
even though the petitioner might have moved the Court in his private
interest and for redressal of personal grievances, the Court might, if it
deems necessary, cause an enquiry into the complaint before it, in
furtherance of the public interest and for the ends of justice.
69. In this case, though the public interest litigant is a member
of the Dravida Munnetra Kazhagam, a political opponent of the ruling
political party in power in the State of Tamil Nadu, he has sought
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investigation into the illegal Gutkha business operating through several
States, including Tamil Nadu, and involving different functionaries
cutting across political parties of different States. This Court cannot
shut its eyes to the illegality.
70. As held by the Supreme Court in K.Anbazhagan v.
Superintendent of Police and others, reported in (2004) 3 SCC 767
cited by Mr.Wilson, in a democracy, the political opponents play an
important role. They are the watchdogs of the Government in power.
They are the mouthpiece to ventilate the grievances of the public at
large, if genuinely and unbiasedly projected. Political opponents are
vitally interested party in the running of the Government or in the
administration of criminal justice in the State. A petition filed by such
persons cannot be brushed aside on the allegation of political vendetta,
if otherwise, it is genuine and raises a reasonable apprehension of
likelihood of bias in the dispensation of criminal justice system.
71. “Food” is defined in Section 3(j) of the Food Safety Act to
mean any substance, whether processed, partially processed or
unprocessed, which is intended for human consumption and includes
genetically modified or engineered food, but does not include animal
feed, live animals, unless they are prepared or processed for
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placing in the market for human consumption, plants prior to
harvesting, drugs and medicinal products, cosmetics, narcotic or
psychotropic substances.
72. The definition of “food” which includes any substance
whether processed, partially processed or unprocessed, which is
intended for human consumption, and even includes chewing gum, is
clearly wide enough to include gutkha and other forms of chewable
tobacco intended for human consumption.
73. The Food Safety Act is a statute enacted after COTA. The
definition of “Food” in Section 3(j) of the Food Safety Act is different
from the definition of food in the Prevention of Food Adulteration Act,
1954, which was as follows:
“Section 2. Definitions: - In this Act unless the context otherwise requires,- .... (v) “Food” means any article used as food or drink for human consumption other than drugs and water and includes, (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
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(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.”
74. Under the Food Safety Act, food means any substance,
whether processed, partially processed or unprocessed, which is
intended for human consumption. It includes primary food to the
extent defined in clause (zk), that is an article of food being a produce
of agriculture or horticulture or animal husbandry and dairying or
aquaculture in its natural form resulting from the growing, raising,
cultivation, picking, harvesting, collection or catching in the hands of a
person other than a farmer or fisherman. It also includes genetically
modified or engineered food or food containing such ingredients, infant
food, packaged drinking water, alcoholic drink, chewing gum, and any
substance, including water, used into the food during its manufacture,
preparation or treatment. What is excluded is animal feed, live
animals unless they are prepared or processed for placing on the
market for human consumption, plants prior to harvesting, drugs and
medicinal products, cosmetics, narcotic or psychotropic substances.
75. Significantly, in Godawat Pan Masala Products I.P. Ltd. and
another v. Union of India and others, reported in (2004) 7 SCC 68, the
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Supreme Court observed:
“6. .... Thus, the Act 34 of 2003 being a special Act, and of later origin, overrides the provisions of Section 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to the power to prohibit the sale or manufacture of tobacco products which are listed in the Schedule to the Act 34 of 2003.”
76. The Prevention of Food Adulteration Act, 1954 has been
repealed and replaced by the Food Safety Act. The definition of “food”
in Section 3(j) of the Food Safety Act is different from and far more
expansive than the definition of “food” in Section 2(v) of the
Prevention of Food Adulteration Act. Further, the Food Safety Act has
been enacted after the COTA.
77. The judgment of the Supreme Court in Godawat Pan Masala
Products I.P. Ltd., supra, rendered in the context of the Prevention of
Food Adulteration Act, 1954 will not have application in the facts and
circumstances of the instant case.
78. It appears that in Jayavilas Tobacco Traders LLP v. The
Designated Officer, The Food Safety and Drugs Control Department,
(W.P.No.21 of 2017, dated 9.6.2017), Duraiswamy,J. referred to and
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followed the judgment of the Supreme Court in Godawat Pan Masala
Products I.P. Ltd., supra. It is on that ground that the notifications
impugned were held to be void.
79. With the greatest of respect, we are unable to agree with the
Single Bench decision of Duraiswamy,J. in Jayavilas Tobacco Traders
LLP, supra, and and the decision of the Madurai Bench in Crl.O.P.(MD)
No.5505 of 2015 [Manufacturer, M/s.Tejram Dharam Paul, Maurmandi,
Bhatinda District, Punjab and another v. The Food Safety Inspector,
Ambasamudram] dated 27.04.2015.
80. In Dhariwal Industries Limited and another v. State of
Maharashtra and others, reported in (2013) 1 Mah LJ 461, a Single
Bench of the Bombay High Court held:
"19. While the definition in the 1954 Act excluded drugs and water, the definition in the Food Safety Act, 2006 excludes animal feed, live animals, plants prior to harvesting, drugs and medicinal products, cosmetic, narcotic and psychotropic substance. Obviously, gutka and pan masala do not fall in any of these excluded categories. The expression "any substance which is intended for human consumption" in FSS Act, 2006 is also wider than the expression "any article used as food or drink for human consumption" in PFA Act,
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1954. It is also pertinent to note that the definition of food in the Act of 2006 specifically includes "chewing- gum" and any substance used into the food during its manufacture, preparation or treatment. Hence, even if gutka or pan masala were not to be ingested inside the digestive system, any substance which goes into the mouth for human consumption is sufficient to be covered by definition of food just as chewing-gum may be kept in the mouth for some time and thereafter thrown out. Similarly gutka containing tobacco may be chewed for some time and then thrown out. Even if it does not enter into the digestive system, it would be covered by the definition of "food" which is in the widest possible terms. The definition of "food" under section 2(v) of the PFA Act was narrower than the definition of food under Food Safety Act, still the Supreme Court in Ghodawat case held that pan masala and gutka were "food" within the meaning of PFA Act. The very fact that the petitioners themselves had obtained licences under the PFA Act and have also obtained licences under the Food Safety Act, 2006 is sufficient to estop them from raising the contention that gutka and pan masala do not fall within the definition of "food" under the Food Safety Act, 2006."
81. We agree with the view of the learned Single Bench of the
Bombay High Court that gutkha and pan masala are food within the
meaning of the Food Safety Act. Gutkha also being a tobacco product
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might be governed by the provisions of the COTA. COTA deals with
regulation of cigarettes or other tobacco products. The Food Safety
Act is not in conflict with the provisions of COTA in any manner. COTA
does not deal with adulteration, though it may remotely touch upon
misbranding.
82. It is well settled that the endeavour of the Court should be to
harmonize two Acts seemingly in conflict. Of course, in this case there
does not appear to be any conflict between COTA and the Food Safety
Act. COTA is in addition to and not in derogation of other laws relating
to food products. There is no non obstante clause in COTA which
excludes the operation of other Acts.
83. Considering the harmful effects of consumption of chewable
tobacco, such as gutkha, which leads to fatal ailments such as cancer,
this court cannot shut its eyes to the malaise of illegal manufacture
and sale of gutkha within the jurisdiction of this High Court, i.e., the
State of Tamil Nadu and the Union Territory of Puducherry.
84. There can be no doubt that a high level, fair and impartial
enquiry should be conducted to effectively stop illegal manufacture,
distribution and sale of gutkha and other forms of chewable tobacco in
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contravention of the provisions of the 2011 Regulations and the
various notifications, referred to above, and also to identify and take
action against those carrying on, aiding, abetting or otherwise in
connivance with the illegal manufacture, distribution and sale of
gutkha and other forms of chewable tobacco.
85. It is not necessary for us to adjudicate the correctness of the
allegations made by the petitioner with regard to the involvement of
the persons named in the petition. However, there are enough
materials which substantiate the case of the petitioner that illegal
business of manufacture and sale of gutkha and other forms of
chewable tobacco spreads over different States in the country,
including Tamil Nadu, which would perhaps not be possible but for the
involvement of different officials and functionaries of the Central
Government and different State Governments, including the State of
Tamil Nadu. The manufacture and illegal sale requires thorough
investigation.
86. In the counter affidavit of the fifth and sixth respondents, it
is stated that ingredients/formula used for manufacture of chewable
tobacco was found to have been prepared by persons from Delhi. As
trade in gutkha and other forms of chewable tobacco is spread over
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and/or passes through several States and there is a strong likelihood
of involvement of high dignitaries and/or officials – both of the Central
Government and the State Government and various others, we feel
that the investigation should be carried out by a centralized agency.
87. As we have already observed above, we are not inclined to
take over the investigation into illegal manufacture, distribution and
sale of gutkha and other forms of chewing tobacco by constituting a
Committee as prayed for by the petitioner. However, in a public
interest litigation, the proceedings are not strictly speaking adversarial
in nature and this Court has ample power to mould the relief. The
question is whether we should, having regard to the nature of the
complaint to which our notice has been drawn by the petitioner as also
the Income Tax authorities, refer the investigation to the CBI.
88. The CBI derives its power to investigate from the Delhi
Special Police Establishment Act, 1946, hereinafter referred to as “the
DSPE Act”. Some of the relevant provisions of the DSPE Act are set
out herein below for convenience:
“Section 3. Offences to be investigated by special police establishment. The Central Government may, by
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notification in the Official Gazette, specify the offences or classes of offences which are to be investigated by the Delhi Special Police Establishment.
Section 4. Superintendence and administration of Special Police Establishment. (1) The Superintendence of the Delhi Special Police Establishment insofar as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988), shall vest in the Commission. (2) Save as otherwise provided in sub-section (1), the superintendence of the said police establishment in all other matters shall vest in the Central Government. (3) The administration of the said police establishment shall vest in an officer appointed in this behalf by the Central Government (hereinafter referred to as the Director) who shall exercise in respect of that police establishment such of the powers exercisable by an Inspector-General of Police in respect of the police force in a State as the Central Government may specify in this behalf.
Section 5. Extension of powers and jurisdiction of special police establishment to other areas- (1) The Central Government may by order extend to any area (including Railways areas), in a State, not being a Union territory the powers and jurisdiction of member of the Delhi Special Police Establishment for
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the investigation of any offences or classes of offences specified in notification under section 3. (2) When by an order under sub-section (1) the powers and jurisdiction of members of the said police establishment are extended to any such area, a member thereof may, subject to any orders which the Central Government may make in this behalf, discharge the function of a police officer in that area and shall, while so discharging such functions, be deemed to be a member of a police force of that area and be vested with the powers, functions and privileges and be subject to the liabilities of a police officer belonging to that police force. (3) Where any such order under sub-section (1) is made in relation to any area, then, without prejudice to the provisions of sub-section (2) any member of the Delhi Special Police Establishment of or above the rank of Sub-Inspector may subject to any orders which the Central Government may make in this behalf, exercise the powers of the officer in charge of a police station in that area and when so exercising such powers, shall be deemed to be an officer in charge of a police station discharging the functions of such an officer within the limits of his station.
Section 6. Consent of State Government to exercise of powers and jurisdiction.- Nothing contained in section 5 shall be deemed to enable any member of the Delhi Special Police Establishment to exercise powers and
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jurisdiction in any area in a State, not being a Union Territory or railways area, without the consent of the Government of that State.
Section 6A. Approval of Central Government to conduct inquiry or investigation.- (1) The Delhi Special Police Establishment shall not conduct any enquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act,1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to (a) the employees of the Central Government of the Level of Joint Secretary and above ;and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government Companies, Societies and local Authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in sub-section (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to section 7 of the Prevention of Corruption Act, 1988 (49 of 1988)”
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89. The CBI is empowered to investigate offences or classes of
offences as are notified by the Central Government under Section 3 of
the DSPE Act. Even if any one of the offences alleged, particularly the
main offence, is included in the list of offences notified under Section 3
of the DSPE Act, the CBI might be directed to take up the
investigation.
90. The Central Government might by order extend to any area,
besides Union Territories, the powers and jurisdiction of the CBI for
investigation of any offences or classes of offences specified in a
notification under Section 3 of the DSPE Act, subject to the consent of
the concerned Government of the concerned States under Section 6 of
the DSPE Act.
91. The CBI can investigate cases in which public servants under
the control of the Central Government are involved either themselves
or along with State Government servants and other persons; cases in
which the interests of the Central Government are involved; cases
relating to breaches of Central Laws with the enforcement of which the
Government of India is particularly concerned; cases of a serious
nature when committed by organized gangs or professional criminals.
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92. The illegal manufacture, distribution and sale of gutkha and
other forms of chewable tobacco is an organized crime which has inter-
state ramifications. It involves breach of Central Laws, including
Central Excise Laws and the Income Tax Laws, apart from the Food
Safety Act, which in itself is a Central Law, which the Central
Government and the State Governments are obliged to enforce.
93. In States, cases which are substantially and essentially
against the Central Government employees or concern the affairs of
the Central Government are to be investigated by the CBI, even
though certain employees of the State Government might also be
involved. The State police or the State Anti-Corruption Bureau or the
Vigilance set up render assistance to the CBI during the investigation
and prosecution involving employees of the State.
94. However, cases which are essentially and substantially
against the State Government employees or in respect of matters
concerning the State Government are generally investigated by the
State police, even though certain employees of the Central
Government might be involved as co-accused.
95. In addition to cases involving Central Government
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employees, the CBI might investigate cases in which the interest of the
Central Government is involved, particularly, those in which public
servants are concerned; cases relating to breaches of Central laws
with the enforcement of which the Government of India is concerned;
cases of crime committed by organized gang or professional criminals
having ramifications in several States and other cases having inter-
state and international ramifications being investigated by several
agencies, where it is considered necessary that a single investigating
agency should be incharge of the investigation.
96. Thus, while cases of crimes such as misappropriation,
cheating, theft or even murder if committed by a Central Government
employee, may have to be dealt with by the State police, organized
crime or an illegality having inter-state ramifications involving officials
of different State Governments and the Central Government would
have to be investigated by the CBI.
97. The underhand dealings in gutkha, pan masala and other
forms of chewable tobacco involving, inter alia, officials of the Central
and different State Governments has inter-state ramifications and
should, therefore, be investigated by the CBI. The counter affidavit of
the fifth and sixth respondents also indicates that the Director General
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of Central Excise Intelligence and the Additional Director General of
Central Excise Intelligence have been requested to examine the case
of complicity of Central Excise officials in the illegal manufacture,
distribution and sale of gutkha and other forms of chewable tobacco
from the vigilance angle.
98. Notifications issued by the Central Government under
Section 3 of the DSPE Act enable the CBI to enquire and investigate
into offences punishable under different provisions of the Indian Penal
Code, the Central Excise Act, the Income Tax Act, the Prevention of
Corruption Act and the Prevention of Food Adulteration Act, 1954.
99. The Prevention of Food Adulteration Act having repealed and
replaced by the Food Safety Act, any reference in a statutory
notification to the repealed Prevention of Food Adulteration Act would
have to be construed as reference to the Food Safety Act by virtue of
Section 8 of the General Clauses Act, 1897. There can, therefore, be
no doubt that CBI has the power to investigate into the illegal
manufacture, distribution and sale of gutkha and other forms of
chewable tobacco.
100. In our view, there is no conflict between investigation by
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the State Police, the Anti Corruption or Vigilance set up of the State
and the CBI which supplement and co-ordinate each other's work in
certain spheres. Moreover, investigation can be made over to the CBI
even after charge sheet has been filed, as held by the Supreme Court
in Bharati Tamang v. Union of India and others, reported in (2013) 14
SCC 578. Any CBI investigation would necessarily require cooperation
of the State Police and the Anti Corruption or Vigilance set up of the
State. The CBI might, if it deems necessary, interact with the officers
of the State and the Anti Corruption or Vigilance set up in relation to
investigation.
101. In our considered view, the handing over of investigation to
CBI only ensures a co-ordinated investigation, particularly in specified
categories of serious offences having ramifications in more than one
State. It neither casts any aspersion on the mode and manner of
investigation conducted by the State Police or the State Vigilance
authorities nor does it necessarily reflect any finding even prima facie
of interference of any constitutional authority or any high official of the
State Government in such investigation.
102. This Court is unable to accept the submission of the learned
Advocate General that it would be necessary for this Court to examine
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case records or the status report submitted by the investigating
agency of the State to decide whether investigation should be made
over to the CBI. The finding of any deliberate attempt to stultify or
derail investigation by the State investigating agency, is also not a
condition precedent for transfer of investigation to the CBI. We do not
deem it necessary to go into the question of whether the State Police
have done all that they ought to have done. The fact remains that
underhand business in banned gutkha and other forms of chewable
tobacco is going on unabated.
103. The proposition that transfer of investigation to CBI does
not depend on finding of inadequacy in the investigation carried out by
the State Police finds support from the judgment of the Supreme Court
in Subrata Chattoraj v. Union of India and others, reported in (2014) 8
SCC 768.
104. It is well settled that justice should not only be done, but
manifestly be seen to have been done. Justice is delivered not just by
the Courts which adjudicate disputes and exercise powers of judicial
review, but also by the Executive which administers the law. A fair
and impartial investigation is an essential ingredient of delivery of
justice and investigation should not only be fair and impartial, it should
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manifestly be seen to be fair and impartial.
105. Serious allegations, inter alia, against high police officials
with regard to their complicity and connivance in the illegal business in
gutkha and other forms of chewable tobacco, is likely to give rise to
doubts in the minds of the general public with regard to the fairness,
impartiality and/or efficacy of the investigation. It is, therefore,
desirable that the investigation be made over to an independent
agency like the CBI.
106. In R.S.Sodhi, Advocate v. State of West Bengal and
others, reported in 1994 Suppl (1) SCC 143, the Supreme Court held
that when there were accusations against the local police personnel, it
would be desirable in the larger interest of justice to entrust the
investigation to CBI forthwith so as to assure investigation credibility.
107. We are unable to accept the submission made by the
learned Advocate General and by learned counsel appearing on behalf
of the other State respondents that we should refrain from referring
the investigation to CBI because of the earlier orders of Co-ordinate
Benches of this Court, referred to above.
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108. It is well settled that principles of res judicata apply to writ
proceedings. The proposition has been enunciated and re-enunciated
by the Supreme Court. Reference may be made to G.K. Dudani v.
S.D. Sharma, reported in 1986 Supp SCC 239 : AIR 1986 SC 1455.
109. The principles of res judicata are, however, attracted only
when an issue directly and substantially in issue in later proceedings
had been directly and substantially in issue in earlier proceedings
between the same parties or between parties under whom they or any
of them had been litigating under the same title, in a Court competent
to try such proceedings, and had been heard and finally decided by
such Court.
110. Even though successive public interest litigations may be
filed by different public spirited citizens, the same question cannot be
re-agitated again and again. The petitioner, in a public interest
litigation, does not fight for a personal cause, but for a cause which is
in public interest. Once an issue has finally been adjudicated, the
same issue cannot be reagitated again and again, as there has to be
finality to litigation. However, to attract the principle of res judicata,
the issue which is directly and substantially in issue in a later
proceeding should have directly and substantially been in issue in an
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earlier proceeding which had been heard and finally decided.
111. In Rural Litigation and Entitlement Kendra v. State of U.P.,
reported in AIR 1988 SC 2187, the Supreme held:
“16. The writ petitions before us are not inter-partes disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court. Even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of res judicata. As we have already pointed out when the order of 12-3-1985, was made, no reference to the Forest (Conservation) Act of 1980 had been done. We are of the view that leaving the question open for examination in future would lead to unnecessary multiplicity of proceedings and would be against the interests of society. It is meet and proper as also in the interest of the parties that the entire question is taken into account at this stage.”
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112. In State of Karnataka v. All India Manufacturers
Organization and others, supra, cited by the learned Advocate General,
the Supreme Court held that res judicata is a doctrine based on the
larger public interest and is founded on the maxim nemo debet bis
vexari pro una et eadem causa, i.e., no one ought to be twice vexed
for one and the same cause. It is also based on the public policy that
there should be an end to the same litigation. The purpose of the
doctrine is that once a matter has been determined in an earlier
proceeding, it should not be open to the parties to reagitate the matter
again and again.
113. In State of Karnataka v. All India Manufactures
Organization and others, supra, the Supreme Court clearly held that
res judicata applies to public interest litigation as long as it is shown
that the previous litigation was in public interest and not by way of
private grievance and the previous litigation was a bona fide litigation
in respect of a right which was common and agitated in common with
others. As long as the litigation is bonafide, the judgment would be a
judgment in rem which would bind the public at large and bar any
member of the public from coming forward to raise the same issue.
114. In T.Vincent v. Director, Central Bureau of Investigation
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and others, supra, the writ petition was moved by a lawyer seeking
writ of mandamus directing the CBI to investigate into allegations of
corruption and to investigate, prosecute and ferret out the truth
regarding the connivance of senior police officers as raised by the
Commissioner of Police, Chennai, in his letter dated 22.12.2016. The
thrust of the writ petition was against the connivance of senior police
officers in the sale of banned substances of gutkha and pan masala.
The Court doubted the bonafides of the petitioner in filing the petition
and declined to intervene.
115. In K.Kathiresan v. Union of India and others, (Order dated
28.7.2017 in W.P.(MD) No.12482 of 2017), the writ petition was
directed against an order dated 30.6.2017 appointing
Shri.T.K.Rajendran, IPS as Director General of Police of the State of
Tamil Nadu.
116. From the judgment and order of K.K.Sasidharan and
G.R.Swaminathan, JJ. in K.Kathiresan, supra, it is patently clear that
the writ petition was directed against the extension of the service of
Shri T.K.Rajendran for a period of two years with effect from 1.7.2017,
on the date of his superannuation, ignoring the claims of several
competent officers belonging to the Indian Police Service. The
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petitioner questioned the appointment of an allegedly tainted officer as
Director General of Police. In the context of the challenge to the
appointment of Shri T.K.Rajendran as Director General of Police, the
petitioner referred to the search conducted by the Income Tax
department which allegedly revealed materials indicating that money
had been paid to Shri T.K.Rajendran, when he was the Commissioner
of Police, Chennai.
117. From the summary of the submissions as recorded by
K.K.Sasidharan and G.R.Swaminathan, JJ., it is evident that it was the
case of the petitioner that Shri T.K.Rajendran had been given
extension of service in a routine and casual manner without forwarding
the incriminating documents seized by the Income Tax department to
the Union Public Service Commission. The Union Public Service
Commission did not, therefore, have occasion to consider the
documents which could adversely reflect on the integrity of Shri
T.K.Rajendran and his consequential ineligibility for appointment to the
sensitive post of Director General of Police.
118. In the writ petition, it was also argued that names of two
other police officers senior to Shri T.K.Rajendran were also included in
the panel. Though the officers were more competent than Shri
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T.K.Rajendran, the Government wrongly forwarded the name of Shri
T.K.Rajendran for extraneous reasons.
119. In the context of the challenge to the appointment of Shri
T.K.Rajendran as Director General of Police for a further period of two
years, it was contended by the petitioner that any enquiry against Shri
Rajendran by the Directorate of Vigilance and Anti-Corruption would
not be a fair one, as the Vigilance Commissioner, who was the
controlling authority, and Shri T.K.Rajendran were working together in
the Home Department. The enquiry should, therefore, be entrusted to
the CBI.
120. In the context of the issue before the Division Bench, which
was the legality of appointment of Shri T.K.Rajendran, the Court
discussed the submissions made on behalf of the State with regard to
his credentials and also to the order of this Court in the case of
T.Vincent, supra, doubting the bonafides of Shri T.Vincent in initiating
a public interest litigation seeking enquiry against high police officials.
121. As observed above, principles of res judicata could apply to
a public interest litigation. In the case of a public interest litigation, the
public interest litigant has no individual cause, he represents the
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public. The fact that the writ petitioner in a subsequent writ petition
may be a different individual is immaterial. However, the issue which
is directly and substantially in issue in the subsequent writ petition
should have directly and substantially been in issue in an earlier public
interest litigation filed bonafide, and the issue should have been heard
and finally decided by the Court.
122. As stated above, in T.Vincent, supra, a writ petition seeking
investigation against police officials was rejected as not bonafide and
in Kathiresan, supra, a writ petition questioning the appointment
and/or extension of service of Shri T.K.Rajendran was rejected.
123. The separation of powers between the Judiciary, the
Executive and the Legislature does not immunize illegality from judicial
scrutiny. To put it differently, separation of powers cannot curtail the
power of judicial review conferred on the constitutional courts, where
fundamental rights are sought to be abrogated or abridged or illegality
perpetuated.
124. Section 6 of the DSPE Act, which provides that nothing
contained in Section 5 shall be deemed to enable any member of the
Delhi Special Police Establishment to exercise powers and jurisdiction
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in any area in a State, without the consent of the Government of that
State, cannot apply to a case where investigation is transferred to the
CBI by the Court.
125. Similarly, Section 6A of the DSPE Act, which provides that
the Delhi Special Police Establishment shall not conduct any enquiry or
investigation into any offence alleged to have been committed under
the Prevention of Corruption Act, 1988 except with the previous
approval of the Central Government where such allegation relates to
employees of the Central Government of the level of Joint Secretary
and above and officers appointed by the Central Government in
Corporation, etc., would also not apply to investigation under orders of
Court in exercise of its power of judicial review.
126. In State of West Bengal v. Committee for Protection of
Democratic Rights, supra, the Supreme Court held:
(vii) When the Special Police Act itself provides that subject to the consent by the State, CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State police, the Court can also exercise its constitutional power of judicial review and direct CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the http://www.judis.nic.in ( 75 )
Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as restriction on the powers of the constitutional courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure.”
127. In Committee for Protection of Democratic Rights, supra,
the Constitution Bench laid great emphasis on instilling of faith of the
public at large in the investigating agency investigating into a
complaint. In this case, the serious allegations of corruption against
high police officials in relation to illegal business in gutkha and other
forms of chewable tobacco, supported by communications from
government officials erode the faith of the people in investigation by
the police.
128. The writ petition before us is not an inter-party dispute, but
a public interest litigation and the controversy is whether surreptitious
trade in gutkha and other chewable forms of tobacco should be
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procedural technicalities.
129. In Dinubhai Boghabhai Solanki v. State of Gujarat and
others, reported in (2014) 4 SCC 626, the Supreme Court held that in
a writ petition seeking impartial investigation, the accused was not
entitled to opportunity of hearing as a matter of course. Fair, impartial
and independent investigation by the law enforcement agency was
imperative.
130. In Narender G.Goel v. State of Maharashtra, reported in
(2009) 6 SCC 65, the Supreme Court held:
“11. It is well settled that the accused has no right to be heard at the stage of investigation. The prosecution will however have to prove its case at the trial when the accused will have full opportunity to rebut/question the validity and authenticity of the prosecution case. In Sri Bhagwan Samardha Sreepada Vallabha Venkata Vishwanandha Maharaj v. State of A.P. [(1999) 5 SCC 740 : 1999 SCC (Cri) 1047] this Court observed: (SCC p. 743, para 11) “11. … There is nothing in Section 173(8) to suggest that the court is obliged to hear the accused before any such direction is made. Casting of any such obligation on the court would only result in encumbering the court with the burden of searching for all the potential accused to be afforded with the opportunity of being heard.”'
131. As held by the Supreme Court in Committee for Protection
of Democratic Rights, supra, our Constitution is a living and organic
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document. It cannot remain static and must grow with the nation. The
constitutional provisions have to be construed broadly and liberally
having regard to the changed circumstances and the needs of time and
polity.
132. The powers of judicial review conferred on the High Court
under Article 226 are wide in scope. The High Courts are empowered
to issue directions, orders or writs to any person or authority, including
any Government to enforce fundamental rights and, “for any other
purpose”. It is manifest from the difference in the phraseology of
Articles 32 and 226 of the Constitution that there is a marked
difference in the nature and purpose of the right conferred by these
two articles. Whereas the right guaranteed by Article 32 can be
exercised only for the enforcement of fundamental rights conferred by
Part III of the Constitution, the right conferred by Article 226 can be
exercised not only for the enforcement of fundamental rights, but “for
any other purpose”.
133. In Dwarka Nath v ITO, reported in AIR 1966 SC 81, the
Supreme Court held that Article 226 is couched in comprehensive
phraseology and it ex facie confers a wide power on the High Court to
reach injustice wherever it is found. This article enables the High
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Courts to mould the reliefs to meet the peculiar and extraordinary
circumstances of the case.
134. In Nilabati Behera v. State of Orissa, reported in (1993) 2
SCC 746, Dr.A.S.Anand, J. held:
“35. This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer in accordance with law — through appropriate proceedings. ...”
135. In Tirupati Balaji Developers (P) Ltd. v. State of Bihar,
reported in (2004) 5 SCC 1, the Supreme Court held:
“8. Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts, both are courts of record. The High Court is not a court
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“subordinate” to the Supreme Court. In a way the canvas of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of the Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as Presidential elections or inter-State disputes which the Constitution does not envisage being heard and determined by High Courts.”
136. Article 21 of the Constitution of India has been given a wide
interpretation by the Supreme Court and would, in our view, include
the Right to Health. When a grave risk is posed to the health of
citizens by reason of prevalent illegality, this Court cannot be a mute
Spectator.
137. When the DSPE Act itself provides that CBI can take up
investigation in relation to a crime which was otherwise within the
jurisdiction of the State Police, the Court can also exercise its
constitutional power of judicial review and direct CBI to take up
investigation within the jurisdiction of the State. The power of the
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High Court under Article 226 of the Constitution of India cannot be
taken away, curtailed or diluted by Section 6 of the Delhi Special Police
Establishment Act, as observed by a Constitution Bench of the
Supreme Court in Committee for Protection of Democratic Rights,
supra.
138. None can dispute the power of the High Court under Article
226 of the Constitution of India to direct an inquiry by CBI, as held by
the Supreme Court in Secretary, Minor Irrigation & Rural Engineering
Services, U.P. and others v. Sahngoo Ram Arya and another, reported
in (2002) 5 SCC 521.
139. It is true that the power of the High Court under Article 226
of the Constitution of India to direct investigation by the CBI is to be
exercised sparingly, cautiously and in exceptional situations, and an
order directing CBI investigation is not to be passed as a matter of
routine or merely because a party has levelled some allegations
against the local police, as argued by the learned Advocate General.
The proposition finds support from the judgments of the Supreme
Court in T.C.Thangaraj v. V.Engammal and others, reported in (2011)
12 SCC 328 (Para 10); K.V.Rajendran v. Superintendent of Police,
CBCID, reported in (2013) 12 SCC 480 (Paras 13 and 17); Mithilesh
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Kumar Singh v. State of Rajasthan, reported in (2015) 9 SCC 795
(Paras 12 and 22); State of West Bengal and others v. Committee
for Protection of Democratic Rights, West Bengal and others,
reported in (2010) 3 SCC 571 (Para 70); State of Punjab v.
Davinder Pal Singh Bhullar and others, reported in (2011) 14 SCC
770 (Para 75); and Secretary, Minor Irrigation & Rural Engineering
Services, U.P. and others v. Sahngoo Ram Arya and another,
reported in (2002) 5 SCC 521 (Para 6).
140. There can, however, be no cast iron formula for directing
transfer of investigation to the CBI. The Court would have to take a
decision taking into account the facts and circumstances of the
case. Prima facie materials of the commission of an offence, the
gravity of the offence, the effect of the offence on the people in
general would be relevant factors for deciding whether CBI
investigation should be ordered. Surreptitious manufacture, import
distribution and sale of prohibited items such as gutkha and other
forms of chewable tobacco which adversely impacts the health of
the people, including in particular the young, and has inter-State
ramifications is certainly a fit case to be transferred for investigation
to a centralized agency like the CBI, more so, when there are
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serious allegations of connivance of different officials of the Central
and different State Government, including top police officials of the
State of Tamil Nadu.
141. As observed by K.K.Sasidharan and
G.R.Swaminathan,JJ. in K.Kathiresan, supra, the Vigilance
Commission headed by the Vigilance Commissioner has extensive
powers to curb corruption and initiate action against government
servants and servants of public sector undertakings for acceptance
of illegal gratification and matters incidental thereto. The State
Vigilance Commission might enquire into allegations of corruption
against officials of the State Government. The State Vigilance
Commission might also conduct a detailed enquiry to fix the
responsibility for the loss of the file containing incriminating
materials handed over to the then Chief Secretary by the Principal
Director of Income Tax (Investigation) on 12.8.2016 and ensure
that the guilty are brought to book and appropriate action taken in
accordance with law. However, investigation by the Vigilance
department is from the angle of vigilance. The aim is to detect
corruption. The power of the Vigilance Commission to investigate
would not extend to an enquiry into the modus operandi of the
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gutkha mafia, the mode and manner of import from other States,
distribution and sale of gutkha and other chewable forms of
tobacco, and detection of the sources of supply. Enquiry by the
Vigilance Department would not unearth secret storage and
manufacturing units. Nor would such investigation be able to detect
incidents of illegal import, supply and sale or nab those actually
manufacturing, supplying, importing, selling or otherwise dealing
with prohibited food items containing tobacco and nicotine such as
gutkha.
142. Investigation by a centralized agency like the CBI would
be more comprehensive and cover all aspects of the illegal
manufacture, import, supply, distribution and sale of banned
chewable tobacco items, including the detection of all those
involved in such illegal import, manufacture, supply, distribution
and sale, as also the detection of corruption and complicity of public
servants and/or government servants in this regard. As observed
above, there is no conflict between CBI investigation and
investigation by the State machinery. Investigation can be carried
out more effectively with the CBI and the Vigilance Department
working in cooperation.
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143. The underground gutkha business is a crime against
society which needs to be curbed. We, therefore, deem it
appropriate to direct the CBI to investigate into all aspects of the
offence of illegal manufacture, import, supply, distribution and sale
of gutkha and other forms of chewable tobacco which are banned in
the State of Tamil Nadu and the Union Territory of Puducherry,
including detection of and action against those involved in the
offence as aforesaid, whether directly or indirectly, by aiding
abetting the offence or interfering with attempts to curb the
offence.
144. This order is, in our view, not only imperative to stop the
menace of the surreptitious sale of gutkha and chewable forms of
tobacco which pose a health hazard to people in general and in
particular the youth and to punish the guilty, but also to instil faith
of the people in the fairness and impartiality of the investigation.
We see no reason for the State to view the entrustment of
investigation to the CBI as an affront to the efficiency or efficacy of
its own investigation system and we make it absolutely clear that
this direction is not to be construed as any definite finding of this
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Court of the complicity of any constitutional functionary or of any
specific official of the State Government.
145. The writ petition is disposed of accordingly. No costs.
Consequently, W.M.P.No.20849 of 2017 is closed.
(I.B., CJ.) (A.Q., J.)
Index : Yes Internet : Yes bbr/sasi
To: 1 The Secretary to the Government Union of India Ministry of Home Affairs Government of India North Block, Cabinet Secretariat Raisina Hill, New Delhi – 110 001.
2 The Secretary to the Government Ministry of Personnel Public Grievances and Pensions, Government of India South Block, Raisina Hill New Delhi - 110 001.
3 The Secretary to the Government Ministry of Health and Family Welfare Government of India Nirman Bhawan C Wing New Delhi - 110 001.
4 The Central Vigilance Commissioner Central Vigilance Commission Satarkata Bhavan A Block GPO Complex, INA New Delhi - 110 023. http://www.judis.nic.in ( 86 )
5 The Chairman Board of Central Excise and Customs Department of Revenue Ministry of Finance Government of India North Block New Delhi - 110 001.
6 The Director General of Vigilance Customs and Central Excise Headquarters Office, 1st and 2nd Floor Samrat Hotel Kautilya Marg Chanakyapuri New Delhi - 110 021.
7 The Principal Director of Income Tax (Investigation) Ayakar Bhavan Nungambakkam Chennai-34.
8 The State of Tamilnadu rep. by its Chief Secretary to Government Government of Tamilnadu Fort St. George Secretariat Chennai-9.
9 The Home Secretary cum State Vigilance Commissioner Government of Tamilnadu Fort St. George Secretariat Chennai-9.
10 The Director General of Police Tamilnadu Radhakrishnan Salai Chennai-4
11 The Commissioner of Food Safety and Drug Administration Fort St. George, Chennai-9.
12 The Central Bureau of Investigation Rep. by its Director Plot No.5B 6th Floor CGO Complex Lodhi Road, Jawaharlal Nehru Stadium Marg New Delhi - 110 003.
http://www.judis.nic.in ( 87 )
13 The Joint Director Central Bureau of Investigation Shastri Nagar, Adayar, Chennai-20.
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THE HON'BLE CHIEF JUSTICE AND ABDUL QUDDHOSE.J
(sasi)
W.P.No.19335 of 2017
26.04.2018
http://www.judis.nic.in