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2016 DIGILAW 288 (JK)

SYED KHURSHID AHMAD v. UNION OF INDIA

2016-05-24

ALI MOHAMMAD MAGREY, N.PAUL VASANTHAKUMAR

body2016
JUDGMENT : N. Paul Vasanthakumar, J. This public interest litigation is filed by the petitioner, who is a professor in SKTMS-Medical College, Srinagar with expertise in the field of Microbiology. He believes that smoking is the unnecessary menace in the society and has to be curbed by every possible method. In this cast' the petitioner is seeking indulgence of this Court for issuing directions, directing the respondents to ensure implementation of Cigarettes and other Tobacco Products (Packaging and Labeling) (Amendment) Rules, 2014 in letter and spirit and for direction to ban sale of cigarettes and other tobacco products not having 85% principal space covered with pictorial and cover textual health warnings. As per the petitioner, the Global Adult Tobacco Survey-India (GATS-2010) conducted in the age group of 15-years and above over 35% of the adult population consumes tobacco in some form or the other and majority of them are illiterate or semi-literate. Young persons in India in the age group of 13-15 years consume tobacco as per the survey of Global Youth Tobacco Survey, 2009. Considering the dangers of tobacco use, the Act called the Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 was enacted for the purpose to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to implement improvement of public health provided under Article 47 of the Constitution of India. For implementing the said Act the Government vide GSR No. 727, dated 15.10.2014 notified the Cigarettes and other Tobacco products (Packaging and Labeling) (Amendment) Rules, 2014 with effect from 01.04.2015 and the said rules mandated that 85% of the principal display area of each tobacco product should cover pictorial/textual health warning. A Committee on Subordinate Legislation 16th Lok Sabha on examination of the Cigarettes and other Tobacco products (Packaging and Labeling) (Amendment) Rules, 2014, submitted its interim report on 18.03.2015 recommending to keep in abeyance the implementation of the Rules of 2014 till the Committee finalize the examination of the subject and present its report. Consequently the Central Government issued a corrigendum, GSR No. 228(E), dated 26.03.2015 and kept in abeyance the implementation of 2014 Rules. In supersession of the said corrigendum, another notification was issued in on 28.09.2015, giving effect to the date of enforcement of the Rules with effect from 01.04.2016. Consequently the Central Government issued a corrigendum, GSR No. 228(E), dated 26.03.2015 and kept in abeyance the implementation of 2014 Rules. In supersession of the said corrigendum, another notification was issued in on 28.09.2015, giving effect to the date of enforcement of the Rules with effect from 01.04.2016. According to the said Rules, specified health warning shall cover at least 85% of the principal display area of the package of which 60% shall cover pictorial health warning and 25% shall cover textual health warning and shall be positioned on the top edge of the package. 2. According to the petitioner, in spite of the said amendment, the cigarette packets without such pictorial and cover textual health warnings are sold bearing manufacturing date beyond 01.04.2016. The learned counsel also showed some of the cigarette packets manufactured in April/May, 201.6 without 85% of space occupying the pictorial and cover textual health warning and hence the petition was filed with the above said prayer. 3. Mr. D.C. Raina, the learned Advocate General, raised a preliminary objection, stating that before filing the writ petition the petitioner has not sent any representation before the respondents and as per the Public Interest Litigation Rules framed by this Court, particularly Rule 24(7), before filing a Public Interest Litigation, the petitioner must send a representation to the concerned authority for taking remedial action. 4. In answer to the said submission the learned counsel appearing for the petitioner submits that in the very same rule 24(7) of the Public Interest Litigation Rules, it is stated that in urgent cases the petition can be allowed to be filed without any such representation by giving prior notice of filing of petition to the concerned authority or their standing counsel, and the writ petition was filed after serving copies to the learned counsel representing the State/concerned respondents, therefore, the petition is maintainable. 5. 5. The very issue was already considered by a Division bench of this Court in the decision reported in : 2015 (4) JKJ 511 [HC] (Y.V. Sharma and Anr v. Union of India and Ors), wherein a similar objection raised regarding the maintainability of the writ petition before approaching the authority concerned was considered and it is held that in exceptional cases, Public Interest Litigation can be allowed to be filed without approaching the concerned authority if a copy of the writ petition is served on the counsel representing the authority concerned. Hence the said objection of the learned Advocate General cannot be accepted and this Court is of the view that since the petitioner is seeking enforcement of Rule which was given effect to from 01.04.2016 making it mandatory to have pictorial/textual health warning of ill effects of tobacco use on the packages covering 85% of principal display, which was issued considering the public interest/public health, there is an urgency to move this writ petition. Therefore, the writ petition was directed to be registered and taken on file. 6. When the petition was posted in 10.05.2016 the learned Assistant Solicitor General of India took notice on behalf of respondent No. 1 and learned Government Advocate was directed to take notice with the learned Advocate General who was also present in the Court and the respective counsels were directed to get instructions regarding the prayer made in the writ petition within two weeks and the matter was directed to be listed today. 7. The learned Advocate General on going through the prayer mack; with reference to the rules mandating that 85% of package area should display the pictorial/textual health warning, submitted that the rule is bound to be implemented not only by the Tobacco Product manufacturing companies but also by the persons selling the tobacco products. The learned counsel appearing for respondent No. 1 also submitted that Rules having been made mandatory, strict implementation is required to ensure public health. 8. The learned counsel appearing for respondent No. 1 also submitted that Rules having been made mandatory, strict implementation is required to ensure public health. 8. In the light of the said submissions made and having regard to the notification issued, stating that specified health warning shall cover at least 85% of the principal area on each package, of which 60% shall cover pictorial health warning and 25% shall cover textual health warning and shall be positioned on the top edge of the package, the same is bound to be; implemented by the Tobacco Product Manufacturers as well as the persons who are selling the tobacco products either wholesale or on retail. Hence the writ petition is allowed with a direction to the respondents to ensure implementation of the Cigarettes and other Tobacco products (Packaging and Labelling), Amendment Rules, 20.14 and ban the sale of cigarettes and other tobacco products not having 85% specified health warning and such of those tobacco products which are not satisfying the rule, have to be seized and destroyed. It is made clear that such of those tobacco products which have been manufactured prior to the implementation of the said Rule, namely, 01.04.2016 be allowed to be sold without any disturbance till the; stocks possessed by the sellers are sold out.