Dealing only with unmanufactured tobacco does not violate the legal provisions of the Food Safety and Standards Act: Madras HC

The Madras High Court, while allowing a written petition, found that since the petitioners were dealing only with unmanufactured tobacco, they had not breached any of the legal provisions of the Food Safety and Standards Act 2006.

Judge GR Swaminathan declared –

“The state has monopolized the privilege of selling alcohol. The government of Tamil Nadu generates huge revenue through the sale of alcohol. Tamil Nadu State Marketing Corporation (TASMAC), a wholly state-owned company , has thousands of outlets across the state The state’s argument anchored on Section 47 is like the devil quoting scripture or the pot calling the black kettle I don’t dismiss this statement for the sake of fantasy.Nicotine is inherent in tobacco and its content in the tobacco leaf has not increased due to spraying jaggery water.Regulation 2.3.4 only states that tobacco and nicotine must not be used as an ingredient in food products.Since the petitioners deal only with unmanufactured tobacco, they have not breached any of the legal provisions.

Lawyer V. Raghavachari appeared on behalf of the petitioner and Additional General Counsel R Baskaran appeared for the respondent.

Brief facts of the case –

The petitioners were dealing with unmanufactured tobacco. The nature of the trade involved buying tobacco leaves from farmers, spraying jaggery water on them, cutting them into small pieces and packing them. It has been alleged by the Department of Food Safety and Drug Administration that the raw tobacco leaves have been subjected to the manufacturing process for human consumption. They therefore adopted the impugned ordinances prohibiting their sale.

The cellars where the articles were kept were sealed after taking samples. According to the department, raw tobacco undergoes a fundamental change as a result of the liquor process and emerges as a distinct product that renders the same edible.

The Department argued that such a process adopted by the Petitioner is prohibited under Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sale) Regulations 2011.

Accordingly, the petitioners filed the motion for an order in the High Court.

The Court noted –

“I went through the test reports from the respondents. A simple look at these would reveal that due to the sprinkling of jaggery water there was no change in the nicotine content. .Jaggery water is sprayed only to ensure that the leaf does not become brittle.In other words, the nicotine content of tobacco remains the same before and after the liquor process.Nicotine is inherent in the product himself. It’s not like the petitioners added nicotine as an ingredient in the food product. The state didn’t ban the cultivation of tobacco like it did in the case of Ganja.”

The Court, while relying on the case of Pachiappa Chettiar v Madras State (1963) 2 MLJ 71 further contended that the petitioners only deal with unmanufactured tobacco and that they have not mixed the same in any food product.

The High Court, having heard the State’s assertion that tobacco consumption is injurious to public health, further observed –

“The above assertion by the state would have impressed me if the state had applied Section 47 in its entirety. Unfortunately, it did not.”

Accordingly, the Court granted the motions in writ and set aside the impugned orders.

Case Title – M/s ES Mydeen and Co. v. The Designated Officer and other

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