VISHNU PACKAGING Vs. UNION OF INDIA

JUDGEMENT

(1.) Since common point is involved in all these matters, for the sake of convenience, they are being disposed of by this common judgment. The point involved in Writ Petition No. 1355 of 2011 is taken as a basis for the purpose of deciding all these matters. Mr. Hidayatullah, learned Senior Counsel, has advanced arguments in Writ Petition No. 1355 of 2011. The learned counsel appearing for the petitioners in other matters has adopted the argument of Mr. Hidayatullah.

(2.) So far as Writ Petition No. 1355 of 2011 is concerned, the petitioners are manufacturers of pan masala, gutka and other allied items. The petitioners appointed dealers and vendors/pan shop owners who sell the products manufactured by the petitioners. The grievance of the petitioners is that the respondents have collected samples of the products in purported exercise of powers under Rule 12 of the Prevention of Food Adulteration Rules, 1955 (hereinafter "the Rules"). According to the petitioners, they have appointed consignment agents and have entered into consignment agreements with such consignment agents. As per the consignment agreement, the petitioners would send the products to the consignment agent for sale and the goods lying with the consignment agent in the consignment account would continue to vest in the manufacturer i.e. the petitioners till it was sold. It is the case of the petitioners that on the basis of the consignment agreement dated 1st April, 2010, the petitioners forwarded the products to one M/s. Shakir Forwarding Services, Bhivandi for onward carriage to the dealers in Mumbai. In the purported exercise of powers under the Prevention of Food Adulteration Act, 1954 (hereinafter "the PFA Act") and the Rules framed thereunder, respondent No. 4 took samples for the purpose of finding out as to whether the article in question is adulterated or not. A notice was also issued under Section 14A of the said PFA Act to M/s. M. Shakir Forwarding Services. According to the petitioners, on 11th June, 2011, respondent No.3 purported to seize a consignment of goods belonging to the petitioners from one Shailesh Shivprasad Gupta, who is another consignment agent of the petitioners. Similar seizure also took place from another consignment agent of the petitioners viz. Milan Dhansukhlal Supariwala and the seizure was effected by respondent No.3. The initiation of launching prosecution is under challenge at the instance of the petitioners on the ground that prior to the year 2003, the manufacture of gutka and pan masala containing tobacco was governed by the provisions of the said PFA Act and the said Rules. However, in the year 2003, the Union of India came with a legislation viz. The Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter "the Tobacco Act, 2003). The Tobacco Act, 2003 deals with cigarette, cigar, cheroots, beedis, cigarette, tobacco, pipe tobacco, hookah tobacco, chewing gutka, snuff, pan masala or any other chewing material containing tobacco as one of its ingredients (by whatever name called) gutka and tooth powder containing tobacco. According to the petitioners, in view of the enactment of Tobacco Act, 2003, all the aforesaid products which contain tobacco are taken out from the purview of the said PFA Act and the said Rules and put under the purview and administration of the Tobacco Act, 2003.

(3.) The principal grievance on the part of the petitioners is that since special enactment has been enacted by the Parliament dealing with tobacco and tobacco products, the said PFA Act is not applicable. The action on the part of the respondents regarding seizing the material of the petitioners and launching prosecution on the ground that it violates the said PFA Act and the said Rules is without authority of law as, according to the petitioners, the said PFA Act has no application and, therefore, the said Rules framed under the said PFA Act has also no application. In view thereof, the initiation of proceedings against the petitioners in this behalf i.e. under the said PFA Act and the said Rules is without authority of law. It is prayed that an appropriate writ, order or direction may be issued for quashing all actions taken by the respondents under the said PFA Act, the said Rules and under the Maharashtra Prevention of Food Adulteration Rules, 1962 (hereinafter "the Rules of 1962") in so far as they relate to the tobacco products scheduled under the Tobacco Act, 2003 as being ultra vires the powers under the said PFA Act, the said Rules and the Rules of 1962 as the same is in conflict with Tobacco Act, 2003 and, therefore, the same are unconstitutional, ultra vires, illegal and null and void. It is also prayed that the respondents may be restrained from proceeding further in any manner under the said PFA Act, under the said Rules and under the said Rules of 1962 in so far as it relates to the tobacco products scheduled under the Tobacco Act, 2003 are concerned. It is also prayed that the respondents may be directed to withdraw all the proceedings initiated under the said PFA Act, the said Rules and the Rules of 1962. It is further prayed that the respondents may be directed not to initiate any punitive/penal/criminal action in any manner whatsoever against the petitioners and/or their servants, agents, retailers, employees, dealers, etc. under the provisions of the said PFA Act, the said Rules and the Rules of 1962. The cause of action for filing these proceedings is obviously because the respondents initiated proceedings against the petitioners under the said PFA Act and the said Rules in connection with the subject matter i.e. gutka/pan masala.