SAI TRADERS Vs. STATE OF GOA

JUDGEMENT

(1.) Since common questions of law and facts arise in both the petitions, they were heard together and are being disposed of by this common judgment.

(2.) The Goa Public Health Act, 1985, hereinafter called as "the Health Act" has been amended by the Public Health (Amendment) Act, 2005, hereinafter called as "the amendment Act". The petitioners challenge the amendment Act, on the ground that the same encroaches upon the legislation by the parliament i. e. the Cigarettes and other Tobacco products (Prohibition of Advertisement and regulation of Trade and Commerce, production, Supply and Distribution) Act, 2003, hereinafter called as "the Tobacco Act", and prevention of Food Adulteration Act, 1954, hereinafter called as "food Adulteration Act" which relate to Entry Nos. 33 and 18 respectively of Concurrent List and considering the Entry no. 52 of Union List read with declaration under section 2 of the Tobacco Act, the entire tobacco industry comes under the control of Union and occupies the field, which excludes the jurisdiction of the Stare to legislate on the subject of tobacco, and therefore, to that extent the Amendment Act is ultra vires for want of legislative competence.

(3.) Prior to enforcement of the amendment Act, on 8th November, 2004, the governor of Goa had promulgated Public health (Second Amendment) Ordinance, 2004, for short "the said Ordinance". By the said ordinance, section 2 of Goa Daman and Diu public Health Act, 1985, hereinafter called as "the Health Act', was sought to be amended by substituting the Clause (10) of section 2, providing definition of 'injurious food' and adding Clause (c) , further adding Clause (30-A) to section 2 defining the word "sale", and inserting a new Chapter IX-A concerning 'articles injurious to public health' containing sections 87-A to 87-L. The changes, which were sought to be incorporated by the said Ordinance, have been replaced and introduced in the Health act by virtue of the Amendment Act. Meanwhile, on 20th December, 2004, the respondents issued an order and six notifications; one of the notifications was issued in exercise of powers conferred by section 87-A of the said Act, prohibiting consumption, manufacture, sale and distribution of any article of food containing tobacco in the entire State of Goa with immediate effect. Another notification was issued to declare any article of food containing tobacco to be injurious food for the purpose of Chapter IX-A of the said Act. Under four other notifications, the officials attached to combined Food and Drugs laboratory under Directorate and Food and drugs Administration were declared to be a public Analyst under the said Act and certain other officials were authorised for the purpose of implementation of the said Act. The amendment Act was published in Official gazette of Government of Goa on 16th March, 2005 and the implementation thereof commenced from 2nd October, 2005. Consequent thereto, the authorities under the health Act conducted raids and seized and confiscated the products containing tobacco including gutka in the State of Goa.