Sambuddha Chakrabarti, J. - (1.) This Writ Petition is directed against an order dated June 19, 2017 issued by the Commissioner, Food Safety i.e. respondent No. 5. The said order which has been annexed to the Writ Petition as Annexure P-4 inter alia says that whereas Regu. 2.3.4 of the Food Safety and Standards (Prohibition and Restriction on Sale), Regulation 2011 (the Regulation, in short) made by the Food Safety and Standards Authority of India in exercise of the powers conferred by Section 92(2)(1) of Food Safety and Standards Act, 2006 (the Act, for short) read with Section 26 thereof, provides that products are not to contain any substance which may be injurious to health and tobacco and nicotine shall not be used as ingredient in any food products and whereas Gutka, Zarda, Pan Masala are articles of food in which tobacco and nicotine are widely used as ingredients and whereas under Section 30 of the said Act the Commissioner is empowered to prohibit the manufacture, storage, distribution or sale of any article of food in the whole of the State/Union Territory, the respondent no. 5 prohibited the manufacture, storage, distribution and sale in all forms of processed/flavoured/scented chewing tobacco, whether going by the name of form of Gutka, Pan Masala, Zarda packed or unpacked/loose etc. which contains tobacco and/or nicotine as ingredient in the entire Union Territory of Andaman and Nicobar Islands for a period of one year with immediate effect in the interest of Public Health.
(2.) The petitioner has challenged the said notification primarily on the ground that the same is violative of the fundamental rights guaranteed by the Constitution of India and ultra vires the provisions of the Act. One of the grounds of challenge is also that the notification violates the provisions of Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA, for short).
(3.) The case of the petitioner in short is that the product that the petitioner manufactures and exports comes under Serial Nos. 6 and 8 of Schedule 1 appended to COTPA, 2003 and has been included under the UT-GST Act to be taxed @28%. COTPA is a comprehensive piece of legislation on tobacco products. Section 3(k) of the same legislation defines production as almost every variety of tobacco product. In furtherance to the purpose of enactment of COTPA, 2003 various regulations have been promulgated by the Central Government from time to time but the items as mentioned in the notification have not found place in any of such regulations.;