Court No. - 46 Case :- PUBLIC INTEREST LITIGATION (PIL) No. - 19126 of 2012 Petitioner :- Indian Dental Association U.P. State And Another Respondent :- State Of U.P. And Another Petitioner Counsel :- Vishnu Behari Tewari Respondent Counsel :- C.S.C. Hon'ble Amar Saran,J. Hon'ble Anurag Kumar,J. We have heard Sri Vishnu Behari Tewari, learned counsel for the petitioners and Sri M.S. Pipersenia, the learned Standing Counsel. This Petition in Public Interest has been filed by the "Indian Dental Association," Uttar Pradesh State Branch and Dr. Anil Kumar Mehrotra, who was an ex-Assistant Professor in J.K. Cancer Institute, Kanpur. The said petitioners have been working for creating awareness about the health hazards of gutka and pan masala in causing oral cancer. Gutka has been reported to be highly carcinogenic as it contains both tobacco and areca nut. According to a study conducted by the Indian Council of Medical Research and the WHO, South East Asian Regional Office, New Delhi, 2001, 80% of gutka or pan masala with tobacco users are below 40 years. It is widely causing oral precancer in the age group of 15 – 34 years and below. Adolescents are susceptible to the influence of pan masala and gutka advertisements that are surrogate ads for gutka. They respond by chewing both pan masala and gutka. According to the 'Salaam Bombay Foundation' there are teenagers who consume 5 to 15 packets of gutka daily. Street children and some adults have been known to consume 30 packets a day. By a rough estimate, which appeared in the 'Times of India' (online), 'Kids getting addicted to tobacco,' 2008, Jan.17, about 5 million children in India, under the age of 15 years are addicted to gutka. Apart from oral cancer it also causes Oral Submucous fibrosis (OSF) and is also a risk for stroke and cardiac disease. India has the highest prevalence of oral cancer globally. Article 47 of the Constitution of India casts the primary duty on the State to improve public health and specifically to prohibit consumption of items which are injurious to health except permitting use of drinks or intoxicating drugs for medicinal purposes. It is further pointed out that the Food Safety and Standards (Prohibition and Restriction on Sales) Regulation 2011 (hereinafter "the Food Safety Regulations") have been introduced with effect from 5.8.2011 by the Food Safety and Standards Authority of India (for short the "Food Authority") in exercise of powers conferred under clause (l) of sub section (2) of section 92 read with section 26 of the Food Safety and Standards Act, 2006, (hereinafter the Food Safety Act). Specifically Regulation 2.3.4. provides as follows: "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". In this context, it is pointed out that the Madhya Pradesh government is the first government which has issued a ban on gutka products with effect from 1.4.2012 under a new law pursuant to the aforesaid regulation 2.3.4 banning Gutka and pan masala products which contain tobacco. The M.P. Food Secretary has also called for initiating action under the rules against all those indulging in sale and manufacture of Gutka products containing tobacco and nicotine. Learned Standing Counsel however contended that the petitioner has filed an impleadment application before the Hon'be Supreme Court in Special Leave Petition no. 16308 of 2007, Ankur Gutka v Indian Asthma Care Society and others and until the said petition is decided by the Apex Court, this Court should not pass any orders in the matter. In this regard it was submitted by the petitioners' Counsel that during the pendency of the aforesaid Special Leave Petition No. 16308 of 2007 (a reference to which is made in paragraph 14 of the petition), the Central government (Food Authority) has issued Regulations (specifically Regulation 2.3.4) which bans the use of tobacco as an ingredient in any food product, and after the decision of the M.P. Government to enforce the said regulation in Madhya Pradesh, a new cause of action has arisen which has impelled the petitioner to file the present pro-bono petition for espousing this important public cause. Learned Counsel further clarified that earlier the Apex Court in "Godawat Pan Masala Products I.P. Ltd. And another vs. Union of India and others", AIR 2004 SC 4057 has held that Food (Health) Authorities at the State government levels do not have powers under under Section 7(iv) to prohibit the sale of any foodstuff, or ingredient of a food article in the public interest. The Supreme Court observed in the aforesaid law report that that the rules whereby the State Government has issued the said notifications were only pro tem powers to deal with emergent situations for a limited period. It was further observed that the power of banning an article of food or an article used as an ingredient of food, on the ground that it is injurious to health belongs appropriately to the Central Government to be exercised in accordance with the Rules made under section 23 (1A)(f) of the Act and not with the State Health Authority under Section 24 of the Act and the State Food (Health) Authority has no power to prohibit the manufacture for sale, storage, sale or distribution of any article, whether used as an article or adjunct thereto or not used as food. The State Food ( Health) Authority have only a limited power of issuing an order of prohibition for a short term while they investigate local problems and take appropriate measures to control an emergent situation, for example when there was an outbreak of an infectious diseases epidemic. In an earlier petition, Civil Misc. Writ Petition No. 29820 of 2007, Dr. Anil Kumar Mehrotra vs. Union of India and others this Court had directed the petitioner by its order dated 9.7.2009 to represent to the Central government, which as per the law laid down in Godawat alone had the powers under Rule 23(1A)(f) of the Prevention of Food Adulteration Act to ban an article of food, and the petitioner was advised to represent to the Central Government to take a decision on banning Gutka, which the Central government was directed to decide within a period of three months. However, it was pointed out that subsequent to the introduction of Food Safety and Standards (Prohibition and Restrictions On Sales) Regulations 2011, under the Food Safety and Standards Act, 2006 (which has replaced the Prevention of Food Adulteration Act, 1954), and specifically after the introduction of Regulation 2.3.4 on 5.8.2011 by the Food Authority of India in exercise of its power under sections 16(1) and 16(2a) read with sections 26 and 92 of the Food Safety Act which enable the Central Government to frame standards and guidelines in relation to food items, and to put in place a system for enforcement of the Act, now the objections in 'Godawat' to the ban on the use of tobacco and nicotine in food items on the ground that the earlier notifications were issued by State governments and not by the Central government, stand automatically removed, providing a fresh cause of action to the petitioner. It may be mentioned that in paragraph 4 of the "Statement of Objects and Reasons" accompanying the Bill to the Food Safety and Standards Act, 2006 the need for an integrated food law has been emphasized. Amongst its main objectives is to "fix food standards and regulate/ monitor the manufacturing, import, processing, distribution and sale of food, so as to ensure safe tenant wholesome food for the people. The food authority will be assisted by Scientific Committees and Panels in fixing Standards and by a Central Advisory Committee in prioritization of the work. The enforcement of the legislation will be through the State Commissioner for Food Safety, his officers and Panchayati Raj/ Municipal bodies." Furthermore it was submitted that the Regulation prohibiting addition of tobacco or nicotine as an ingredient of any food article which were issued by the Central Government on 5.8.11 would prevail over the earlier statute which also partly dealt with the same subject: viz. the "Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003. For all these reasons the U.P. State Government may now consider the appropriateness of restricting the consumption, sale and distribution of tobacco and nicotine in food products on the same lines as the M.P. Government or The Chief Secretary, U.P. may through the appropriate Secretary show cause before this Court by the next date fixed as to why such a direction imposing the aforesaid restrictions may not be issued by this Court for enforcement of Regulation 2.3.4 prohibiting the use of tobacco and nicotine as an ingredient in any food product. List this case on 23.5.2012. It will be open to the manufacturers of these products to move intervention applications for clarifying their positions on the next date. Order Date :- 23.4.2012 .