Manufacturer of Prohibited Tobacco Product Defined as ‘Food’ May be Sued Under Food Safety and Standards Act: Madras High Court

single judge bench Justice G Jayachandran In his decision, it was also stated that the producer of banned tobacco could be prosecuted and could not claim that he did not know how the product got into the prohibited place.

“The manufacturer of the banned product will face prosecution because its product, which is chewing tobacco with nicotine, is food and the Supreme Court granted freedom to the defendant (chewing tobacco manufacturers) with its interim decision dated 25.04.2023. ) to seek rectification before the appropriate forum if they have a case that their actions or dealings do not fall within the ambit of the Notification issued under Section 30(2) of the FSS Act.” said the court.

The court noted that under Article 109 of the Bharatiya Sakshya Adhiniyam 2023, where any fact is specifically within the knowledge of any person, the burden of proving the fact lies on that person.

Therefore, the court found that the tobacco product manufacturer had to ask for details regarding the manufacturing of its products, to whom the products were sold, etc. If the manufacturer is expected to disclose the information and chooses to remain silent, it means that the product was knowingly distributed in a country where it is prohibited.

The court was hearing a plea filed by Hans Chhap Tobacco manufacturer Jaiswal Products against the case before the Katpadi Judicial Magistrate based on the complaint filed by the Food Safety Officer against the manufacturer under Sections 52(i) and 63 of the Food Safety and Standards Act, 2006. and seller.

It was alleged that the Food Safety Officer having jurisdiction in Vellore District inspected one G Mohan’s store and found that the banned Hans Chha Tobacco was stocked by the store owner without any purchase invoice. Samples were taken and tested by the State Laboratory; Here it was found to contain nicotine, which is an unsafe food. Based on this, a complaint was filed, which was filed by the Criminal Judgeship of Peace.

The petitioner manufacturing company has stated that it is a registered manufacturer under the Excise Act and the GST Act and has made changes in tobacco business. It was claimed that according to the provisions of the Food Safety and Standards Law, tobacco would not fall within the definition of “Food”, therefore the action of the Food Safety officer was unfounded and not based on legal sanction.

It was also claimed that although the notification regarding the ban of tobacco products was issued, this notification was stayed by the Delhi High Court, therefore, there was no ban on the date of seizure and complaint. It was also argued that the manufacturer’s product was tobacco and would fall under the COTPA Act rather than the Food Safety Act, so as long as it was not mixed with any food product, the manufacturer could not be charged with allegedly producing unsafe food. It was also alleged that there was no material to show that the manufacturer had directly or knowingly sold the products in a State where they were prohibited.

The State’s Additional Solicitor General argued that since they are manufacturers, they have to disclose how their products reach Tamil Nadu. It also stated that the large quantity of banned products found in Tamil Nadu cannot be construed as being sold or transported without the consent of the manufacturer and the contrary must be proven by the manufacturer.

The apex court then noted that the State of Tamil Nadu had passed a prohibitory order in 2013 as per the directions of the Supreme Court and this notification was renewed every year. The court also noted that the Government of India, Department of Health and Family Welfare has reinforced the need to ban chewing tobacco products.

The high court also noted that in its previous decisions, it had ruled that tobacco, with or without additives, was a food product within the scope of the Law.

The court also noted that in the present case the manufacturer, after the issue of the reasoned notice, did not disclose any information known only to him about the production and sale of tobacco products. Therefore, the court held that the manufacturer could prove its case before the trial court by submitting documents to prove that it did not sell products to dealers in Tamil Nadu.

The court was therefore not inclined to quash the trial and rejected the defence.

Case Title: M/s Jaiswal Products – State of Tamil Nadu

Counsel for the Petitioner: Mr. D.Saikumaran and Mr. L.Goutham Raj

Respondent Counsel: Mr. P.Kumaresan, AAG-VII Asst., Mr. S.Udaya Kumar Government Advocate (Crl.Side)

Quote: 2024 LiveLaw (Mad) 418

Case No: Crl.OPNo.1698, 2023