AVINASH Vs. UNION OF INDIA

JUDGEMENT

(1.) PETITIONER is an NGO registered under the Societies Registration Act, 1860 and Dr. Harish Bhalla, a leading de-addiction expert in India is its Honorary secretary. The petitioner has filed this writ petition as a Public Interest Litigation making a grievance that although tobacco directly and indirectly kills 2,800 people everyday and to prevent such death, Parliament has enacted the Cigarettes and other Tobacco Product (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (for short 'the act') the respondents are not enforcing its provisions and as a consequence, the number of deaths on account of smoking of cigarettes has increased substantially. The petitioner has stated that the Central Government has not yet issued a gazette notification prescribing the permissible level of nicotine and tar contents in tobacco products and has also not taken steps for recognizing laboratories for testing the nicotine, tar and other contents in cigarettes and other tobacco products despite clear provisions in this regard in Sections 7 and 11 of the Act. The petitioner has therefore prayed that the Central Government be directed to enforce a Product Regulation Policy so as to regulate the toxicity and carcinogenicity of all tobacco products, which includes a fixed level of tar, nicotine and carbon monoxide and to constitute and grant recognition to the testing laboratories for nicotine and tar contents in cigarettes and other tobacco products as per Section 11 of the Act. The petitioner has also prayed that the Government be directed to enforce a taxation policy so as to control the toxicity levels in tobacco products and levy higher taxes on products having higher toxicity level.

(2.) WHEN the hearing of the writ petition was taken up on merits, mr. Vivek Tankha, learned Senior Counsel for the petitioner, brought to the notice of the Court the provisions of Section 7 of the Act which puts restrictions on the trade and commerce in, and production, supply and distribution of cigarettes and other tobacco products. He submitted that sub-section (5) of Section 7 of the Act states that no person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco product unless every package of cigarettes or any other tobacco product produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be, on any other tobacco product along with the maximum permissible limits thereof, and the Proviso to sub-section (5) of Section 7 states that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under the Act. He submitted that the language of sub-section (5) of Section 7 of the Act is thus clear that even where the maximum permissible quantity of nicotine and tar contents is not prescribed by the rules, the package of cigarettes or any other tobacco product must disclose on its label the nicotine and tar contents so that the consumer buying the package of cigarettes or any other tobacco product knows exactly the nicotine and tar contents of the cigarettes or any other tobacco product that he is going to buy for consumption. He further submitted that the Act received the assent of the President on 18-5-2003 and although more than five years have passed thereafter, sub section (5) of Section 7 of the Act has not been enforced and as a consequence the entire object of the Act has been frustrated and the number of deaths on account of consumption of cigarettes and other tobacco products are increasing in the country every year. He submitted that the Court should issue appropriate directions so that the nicotine and tar contents are displayed on the label of the package of cigarettes or any other tobacco product. He submitted that the Court should also direct the Central Government to frame the Rules prescribing the maximum permissible quantity of nicotine and tar contents under sub-section (5) of Section 7 of the Act and to establish and recognise laboratories for testing of such products. He cited the decision in Hindustan Coca-Cola Beverages (P)Ltd. Vs. Santosh Mittal and others, (2005) 5 SCC 771 in which the order passed by the Division Bench of the High Court of Rajasthan issuing directions to Pepsi company and Coca-Cola and other manufacturers of beverages and soft drinks to disclose the composition and contents of the product including the presence of pesticides and chemicals on the bottle, package or container, as the case may be, was not interfered with by the Supreme Court.

(3.) MISS Anjali Banerjee, learned Counsel for the respondent No. 1, on the other hand, submitted that sub-section (3) of Section 1 of the Act provides for appointment of different dates for bringing into force the different provisions of the Act. She submitted relying on the return filed by the respondent No. 1 that the provisions of the Act are being enforced in a phased manner as and when the infrastructure for their enforcement is available and thereafter, the rules are being framed. Regarding enforcement of sub-section (5) of Section 7 of the Act, she submitted that there is little institutional capacity to test the nicotine and tar contents and hence, the Central Government is actively engaged in the process of building capacity in the country by setting up Regional/referral laboratory facilities for testing tar and nicotine contents in all forms of tobacco products. She also submitted that the Central Government is also in the process of taking technical assistance from the Centre for Disease Control, Atlanta USA, which is a World Class institution having necessary technical expertise. Relying on paragraph 4 of the return filed on behalf of the respondent No. 1 she submitted that the rules for implementation of Section 7 of the Act will be framed only after the laboratory facilities are in place, otherwise enforcement of the rules will not be possible. She submitted that the intention of the Central Government is to discourage the use and consumption of tobacco products in any form and quantity by creating a general awareness of the ill effects of tobacco products amongst smokers and non-smokers and by enacting stringent laws to this effect, which will reduce the demand for tobacco products and thereby its supply and will eventually eradicate the menace caused by the consumption of tobacco products.