DHARMENDRA KANSAL Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this Public Interest Litigation, petitioner is seeking enforcement of Sub -Section (5) of Section 7 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 "Act"), insofar as cigarettes are concerned. It is also seeking true implementation of the enforced provisions of the Act. In the petition, it has been stated that the petitioner has not been able to collect necessary particulars regarding other tobacco products and, as such, confines prayer relating to cigarettes only in the petition. Petitioner sought for and obtained leave of this Court, which was granted on 21st March, 2014, to re -approach this Court in relation to other tobacco products when necessary particulars are collected. Similarly, petitioner prayed for and obtained leave under Order I Rule 8 of the Code of Civil Procedure in relation to wholesale distributors of cigarette manufacturers. In the petition, it has been contended that respondent Nos. 3, 4, 5, 6 and 7 are the only cigarette manufacturers in India and the petitioner has not been able to gather, whether there is any other manufacturer of cigarettes in India.

(2.) THE petition was moved upon notice to respondent Nos. 1 and 2, namely, Union of India and the State of Uttarakhand. By an order dated 21st March, 2014, the remaining respondents were noticed. The notice was returnable on 22nd April, 2014. By that time, respondent No. 1 was directed to file an affidavit indicating what steps it has taken to ascertain the maximum permissible quantity of nicotine and tar in cigarettes after the Act came into force on 25th February, 2004. Respondent No. 2 was also directed to file an affidavit indicating, whether tobacco cultivation is carried out in the State and whether there is any cigarette manufacturing unit in the State. Respondent No. 2 was also asked to indicate in the affidavit, whether it has any data pertaining to cigarette / tobacco related deaths in the State and, if such data is available, to furnish the same. Before the returnable date, respondent Nos. 2 to 7 were served and, on the returnable date, respondent Nos. 3, 4 and 5 entered appearance. On that date, respondent Nos. 2 to 7 were asked to file affidavits indicating what steps, if any, they have taken to assist the Union of India for earmarking the limits of nicotine and tar in cigarettes. Respondent No. 1 was granted extension of time to file affidavit, as was sought for on 21st March, 2014. Publication, pursuant to the leave granted under Order I Rule 8, was also recorded on the returnable date. However, no one appeared on that date pursuant to the publication so made. At the same time, leave was granted for filing affidavits to support or to oppose the petition. The hearing of the petition was fixed on 27th May, 2014. On 27th May, 2014, respondent No. 1 filed an affidavit in Court. On that date, respondent No. 2 also filed an affidavit in Court. Prior thereto, respondent No. 3 had filed an affidavit with an Application for condonation of delay in filing the same.

(3.) IN the affidavit filed by respondent No. 1, it has been stated that the provisions of the Act pertaining to depiction of tar and nicotine contents with maximum permissible limit on tobacco product package have not been notified primarily due to (i) lack of institutional capacity to test nicotine and tar contents of the tobacco products; and (ii) there is no internationally accepted standard on whether there is any safe or any maximum permissible limit for tar and nicotine contents in tobacco products. In addition thereto, it has been stated that the mandate of Section 7(5) of the Act is contrary to the guidelines of the World Health Organisation Framework Convention on Tobacco Control (FCTC) that cautions all member parties from displaying any quantitative statements on tobacco product packaging and labelling and, hence, it is imperative that the said Section should be deleted. The said affidavit has been affirmed by an Under Secretary of Ministry of Health and Family Welfare, New Delhi. It has been suggested in the said affidavit that there is scientific evidence that: