The Bombay High Court partly allowed a Public Interest Litigation (PIL) and passed certain directions for implementing the various provisions of the Food Safety and Standards Act.
The Aurangabad Division Bench of Justice Vibha Kankanwadi and Justice Abhay S Waghwase heard a PIL filed with the following prayer:-
“A) To direct the respondents to constitute a Special Unit/Special Task Force in every district to stop manufacture, storage, distribution, transport or sale of tobacco and its allied products which is either flavoured, scented or mixed with any of the additives, by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
B) To direct the respondents to strictly follow the guidelines of the State Government in raiding/seizing and initiating criminal prosecution for manufacture, storage, distribution, transport or sale of tobacco and allied banned products by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
C) To direct the respondents to create helpline numbers in every districts to complain about manufacture, storage, distribution, transport or sale of tobacco which is either flavoured, scented or mixed with any of the additives by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
D) To direct the respondents to strictly follow the guidelines of the State Government issued in GR dated 29.05.2020 prohibiting consumption and spitting of tobacco, supari, pan masala, gutkha etc. in public places to prevent the spread of epidemic diseases by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
E) To direct the respondents to initiate criminal as well as departmental action against the police officers who are raiding/seizing the tobacco and allied banned products contrary to guidelines issued by the State Government by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
F) To direct the respondents to undertake strict action against erring police officers and others involved in gifting and raising funds/ money for construction of police stations/outposts including suspension, termination and initiation of criminal proceedings, by issuing a writ of mandamus, or any other appropriate writ, order or direction, as the case may be;
G) To grant any other relief to which the petitioner is entitled to;
H) To direct the State Government to increase the lab testing infrastructure and all the labs to have/obtain NABL accreditation to facilitate precise testing by issuing writ of mandamus or any other writ or directions as the case may be; I) To direct the State Government to ensure that the existing food testing laboratories are well equipped with the technical persons and testing facilities and submit its report pending hearing and final disposal of this petition.”
The Bench held that the petitioner has not produced any such evidence on record which would show that the Police Department is taking actions against the persons who are engaged in manufacture, storage, distribution, transport or sale of tobacco and its allied products only to extort money from the accused persons. It has not been brought on record by way of any complaint data or any such document which would show that there are allegations by such accused persons against the police that there was an attempt to extort money from them. If at all there is any such attempt, then they have a remedy within the four corners of law for which no directions can be issued in a public interest litigation. Rather it would be a private interest of the particular accused as no generalized statement can be made. Therefore, no relief can be given as prayed in prayer clause ‘E’ and ‘F’. The Supreme Court in Sayyed Hassan Sayyed Subhan (supra) has come to the conclusion that the police have the authority to take cognizance when the offence under Section 188, 272, 273 and 328 of the Indian Penal Code are made out.
“Now, turning towards the other prayer, certainly, Article 47 of the Constitution of India casts a duty on the State though it is the article providing for directive principles; yet, can take such actions or measures for prevention of deterioration of health of the citizens. When we speak about the other rights to every citizen, then good environment conditions and measures for the improvement of the overall health of the every citizen can be said to be included in the articles which are already governing as fundamental rights. Of course, it is with the other restrictions also and the liberties and sometimes the development may be economic of the State as well as individuals by way of providing employment may prevail over the other. Any fundamental right is not unfettered but it comes with necessary restrictions as well as corresponding duties. Under the said rights the State would be entitled to issue necessary prohibitory orders for the upkeep of the health of the general public. It is well known that the tobacco and the allied products create harmful effects on the human. It invites various diseases if consumed, in any of the other form. Here, in this petition, there is no question of challenge to any Government Resolution, but this is a case wherein issue has been raised how to implement those Government Resolutions in a better manner. The respondents have no objection for the better implementation of the various provisions of the Act and the circulars. It was, therefore, impressed upon the respondents that this is not an adversarial litigation”, the Bench observed.
Though prohibitory orders have been issued by issuing various circulars by the Food Safety Commissioner; yet, certainly, it can be said that it has not eliminated the manufacture, storage, distribution, transport or sale of tobacco and its allied products from the State of Maharashtra. In other words, though there is circular; yet, violation of the said circulars/prohibitory orders is seen from time to time.
The Bench do not find to take the help of the data that has been produced, but certainly, taking into consideration the vast area of the State, the offences which are reported appear to be meagre. The petitioner has prayed for establishment of Special Task Force or Special Squad/Unit for carrying out the activities/prohibitions as stated in the prohibitory orders.
The Court noted that seven region wise special squads have been created, which is emerging by way of affidavit-in-reply, but it appears that those are not functional. Certainly, when such special squad/unit has been established region wise, then respondent No.1 should see that it is functional and carries the activities as per the various orders and circulars issued by Food and Drugs Administration, Maharashtra State. We would leave it to the State – respondent No.1 as to what should be the composition of the special squad. It is not necessary to direct that the State Government authorities should follow the guidelines in respect of raid and seizure. We presume that it is undertaken unless its violation is demonstrated. The third prayer is in respect of creating helpline number in every district. The helpline toll free number is already there, which appears to have been made operational under the orders of this Court. It would depend upon the public to utilize the said number.
“We need not give any further directions as only five complaints have been received on the said number. If public is not utilizing it, then we cannot force it. The only thing we can advise is that all the respondents to make that number public and periodically bring it to the attention of the public at large that such toll free number exists for them to make a complaint, if they want. Further prayer is in respect of directions to the State Government to increase the lab testing infrastructure and all the labs to have/obtain NABL accreditation to facilitate precise testing. Certainly, it is the duty of the State Government to provide proper infrastructure to an authority which has been created under an enactment. The purpose with which the Food Safety and Standards Act came into force is to be achieved, then definitely, it is for the State Government to provide proper infrastructure in the form of laboratories, that too equipped with modern technology, so that the testing is done within reasonable time and the reports are given, otherwise it is our experience that the seized articles are sent for analysis and due to the pendency those are not tested for months together and then the purpose and the evidence may get lost or it may not connect the accused with the crime. Further, taking into consideration the fact that the transport of such contraband is to be prohibited, then the check points will have to be increased and there should be better coordination between the Police Department, Regional Transport Office and the Food Authorities.”
The High Court noted that some observations were given by this Court in Vaman Raghunath Fallary and Sons and others vs. State of Goa and another [2003 SCC OnLine Bom 465]. Those are required to be borne in mind. Further, in the Three Judge Bench of the Hon’ble Supreme Court in Union of India and others vs. Unicorn Industries [(2019) 10 SCC 575] takes note of the fact that the public interest is the superior quality which can override individual equality, wherein it has been held that – The withdrawal of the exemption to the pan masala with tobacco and pan masala sans tobacco is in the larger public interest. The State could not be compelled to continue the exemption, though it was satisfied that it was not in the public interest to do so. We hope and trust that the respondents would keep in mind the said decisions.
Therefore the Court dismissed the prayer clause (B), (D), (E) and (F).
Following directions are issued to the respondents.
i) The state government is directed to make the Special Unit/Special Squad for the seven regions functional and the constitution of the squad to be decided by the State Government, which will implement the various provisions of Food Safety and Standards Act and the circulars/orders issued therein.
ii) All the respondents to make the helpline toll free number public and bring it to the notice of the public periodically, so that they can lodge report/complaint on the said toll free number.
iii) State Government may consider increasing of the number of laboratories exclusively controlled and owned by the Food and Drugs Department and further pursue the model for strengthening those three laboratories as well as upcoming laboratories of the State Government in view of the proposal of Public Private Partnership by Food and Drugs Administration, Maharashtra on 17.01.2023.
iv) The State Government to provide appropriate infrastructure including the manpower, especially the technicians and the modern machines to the existing food testing laboratories.
v) It would be appropriate to give period of six months to the State Government to take steps in respect of establishment of laboratories and the infrastructure.