VAMAN RAGHUNATH FALLARY Vs. STATE OF GOA

JUDGEMENT

(1.) RULE. Respondents waive service. Heard forthwith.

(2.) THE principal issue as raised in the petition by the petitioners before its amendment was that Notification dated 24th January 2003, issued on behalf of the State of Goa, under the provisions of the Prevention of Food Adulteration Act, 1954, (hereinafter referred to as 'the Act'), did not apply to the substance known as 'Khaini' and applies only to 'Gutka' and 'Pan Masala'. During the pendency of the petition, the State of Goa has issued a second Notification dated 7th April 2003. By an amendment, that Notification is also sought to be challenged on the grounds which we will advert to later on.

(3.) ON behalf of the respondents, S.N. Tripathi, working as Director in the Office of the respondent no. 2, has filed an affidavit. It is his contention that by Notification, dated 24th January 2003, the respondent no. 1 has prohibited the sale of Gutka and Pan Masala containing tobacco or not containing tobacco by whatever name called with further directions. It is set out that the Notification was issued in the interest of public health and to prevent especially the school and college going students apart from general public from falling prey to and/or being addicted by these harmful food articles. It has specially set out that consumption of 'Gutka' and 'Pan Masala' can lead to a dreadful disease known as oral submucous fibrosis (OSF). OSF it is pointed out is a pre-cancerous condition linked with use of smokeless tobacco products. OSF leads to stiffening of the mouth and is more difficult to treat than cancer. An individual suffering from OSF is 400 times more prone to develop oral cancer than any normal person. It is then pointed out that studies have been conducted by experts and found that the use of indigenous tobacco products like snuff, zarda, khaini etc., have resulted in India recording the highest number of oral cancer caused in the world. The ill-effects on health on the members of the public by consumption of Gutka and Pan Masala have reached alarming proportions. It is then pointed out that attending to public health is one of the highest priorities and it is with this view in mind that the Notification was issued. Reliance has been placed on a study conducted by the Indian Council of Medical Research wherein it is shown that every year there are 1.6 lakh new oral cancer cases, 4.5 million cardio-vascular diseases cases and 3.9 million cases of chronic obstructive pulmonary diseases which have been identified as a result of tobacco use. Reference is then made to Article 47 of the Constitution of India which casts a duty on the State to raise the level of nutrition and the standard of living and to improve public health, it being one of the primary duties of the State. It is in these circumstances and considering the obligation cast on the State to ensure the creation and sustaining of conditions, congenial to good health, that the State has issued the Notification prohibiting Gutka and Pan Masala products containing tobacco or not containing tobacco in larger public interest. It is specifically denied that 'Khaini' is neither 'Gutka' nor 'Pan Masala'. It is pointed out that 'Pan Masala' with tobacco have been marketed under several brand names and the most popular amongst them is 'Gutka'. It is then pointed out that the brand 'Madhu Chaap Khaini' has also ingredients amongst them tobacco flakes as contained in 'Gutka' and hence the sale of 'Khaini' comes within the purview of Notification issued on 24th January 2003. It is then pointed out that under these circumstances the relief as prayed for cannot be granted. It is further contended that it is a policy decision of the State and when the issue involves public health, this Court should not extend any reliefs as prayed for by the petitioners.