Bharati H. Dangre JUDGMENT
Bharati H. Dangre, J.
1. The tobacco epidemic is one of the biggest public health threat the world ever faced, killing 8 million and the Report of the World Health Organization dated 26/07/2019 brings out that more than 7 million of those deaths, are the result of the direct use of tobacco. Good monitoring tracks the extent and character of this tobacco epidemic and indicates how to evolve best policies to deal with this menace. The steps taken throughout the world in the form of bans imposed on tobacco advertisement and promotion, pictorial health warning and the high rate of taxes dealing with illicit trade of tobacco, has yielded some positive results.
2. The scale of human and economic tragedy that tobacco imposed is shocking. In 2003, the World Health Organization member states universally adopted the WHO Framework Convention on Tobacco Control ("WHO FCTC"), which came into force in 2005. It has currently 185 parties covering more than 90% of the world population. There is a fundamental and irreconcilable conflict between the tobacco industries' interest on the one hand and public health industries' interest on the other hand.
The present writ petition is an illustration depicting such a conflict in the form of transportation and sale of Gutka and Pan Masala, the former being a chewing tobacco, preparation made of crushed areca nut, tobacco, catechu, paraffin wax, slaked lime and sweet or savory flavourings. It contains carcinogens, which is identified to be a cause for oral cancer and other severe negative health effects. Pan Masala on the other hand, is a combination of betel leaf and areca nut and may contain tobacco. Both the aforesaid products are highly addictive in nature.
3. The primary duty of every State in terms of the Directive Principles of the State Policy as enshrined in Article 47 of the Constitution being to improve public health which implicitly includes the concept of provision of measures to be taken for prevention of deterioration of citizen's health. The Food Safety Commissioner of Food & Drug Administration, Government of Maharashtra in exercise of his power to be discharged in the form of duty under Section 30(2)(a) of the Food Safety & Standards Act, 2006 (hereinafter referred to as "the FSS Act, 2006") in order to prohibit in the interest of public health, has issued orders from time to time in exercise of said power and has identified tobacco as one of such article of food listed at Sr. No. 40 in table under sub-regulation 2.3.1 and has made tobacco, whether flavoured, scented or mixed with other ingredients such as nicotine, menthol, etc. and in terms of the Food Safety & Standards (Prohibition & Restriction on Sales) Regulations 2011 has imposed a complete prohibition for a period of one year, on the manufacture, storage, distribution, transport or sale of tobacco in whatsoever form and name being available in the market. The regime in which the present writ petition emanated had the existence of order issued by the Commissioner of Food Safety on 20/07/2018 and here we deem it appropriate to note that such notifications have been issued in the past prior to the present notification.
4. The Petitioners, who are arraigned as accused in FIR bearing No. 87 of 2019 registered with Samta Nagar Police Station on 02/03/2019 for the offences punishable under Sections 179, 188, 273 and 328 of the IPC read with Sec........