JUDGMENT : 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 & 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. 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. 4. It is the contention of the petitioner that at no point of time Parliament did ever contemplate absolute prohibition on the production, trade and commerce of tobacco products within the country, except certain reasonable restrictions in the form of Regulations. 5. Since COTPA is a special legislation the notification under challenge must be held to be ultra vires, bad in law, unconstitutional as violative of the fundamental right of the citizen. 6. The petitioner further contends that almost an identical notification was issued earlier in the year 2013 but realising the mistake the same was withdrawn, but inspite of it in the year 2017 the respondent no. 5 in violation of the powers conferred upon him and acting beyond his competence had issued the said order prohibiting manufacture, storage, distribution and sale of all forms of processed/flavoured/scented chewing tobacco whether going by the name or form of Gutka, Paan Masala, Zarda which is packed and unpacked/loose etc. which contains tobacco and/or nicotine as ingredient for a period of one year in the interest of public health in the entire Union Territory of Andaman and Nicobar Islands. 7. The respondent nos. 1, 2 and 5 have contested this Writ Petition by filing an Affidavit-in-Opposition. According to the answering respondents Pan Masala is a standardised food article in terms of the concerned Regulation. The definition of Food as provided in the relevant Act sufficiently includes chewing tobacco, Pan Masala and Gutkha. Regu. 2.3.4 of the Regulation provides that the products are not to contain any substance which may be injurious to health. 8. The further contention of the respondents is that tobacco products may be governed by COTPA. However, they come within the definition of Food under Section 3(1)(j) of the Act. Regu. 2.3.4 of the Regulation provides that the products are not to contain any substance which may be injurious to health. 8. The further contention of the respondents is that tobacco products may be governed by COTPA. However, they come within the definition of Food under Section 3(1)(j) of the Act. The respondents referred to a Judgment of the Supreme Court wherein it has been observed that since pan masala, gutkha or supari are eaten for taste and nourishment, they all are food within the meaning of Section 2(v) of the Prevention of Food Adulteration Act. As such, the Supreme Court had held that gutkha products are food products containing tobacco and nicotine and their manufacture, sale or storage are not permitted by law. 9. The respondents have denied the allegation that the impugned notification is violative of the fundamental rights or ultra vires the Act or COTPA. They have prayed for dismissal of the Writ Petition. 10. It may be mentioned that an identical notification was issued by the Commissioner of Food Safety, Government of West Bengal on September 29, 2014. The same was the subject matter of challenge in WP No. 1001 of 2014 and WP No. 1244 of 2014. A learned Single Judge of this Court by an elaborate Judgment and Order dated November 01, 2017 had held that the Regulations did not empower the Commissioner, Food Safety to issue the impugned notification and he did not have the authority or jurisdiction to issue any such notification in respect of the said products. Both the Writ Petitions were allowed. 11. Mr. Saha, learned Advocate for the petitioner, has drawn my attention to a Division Bench Judgment of Gauhati High Court of October 27, 2007 where in a large number of Writ Petitions challenging a similar notification the Division Bench held that the constitutionality of the act of the respondents could not be accepted and the Writ petitions were allowed. 12. Again a similar notification came to be examined before a Division Bench of the Patna High Court in a series of cases where also by a Judgment and order dated July 19, 2016 the impugned notification was set aside and quashed. The Division Bench had held that Regu. 12. Again a similar notification came to be examined before a Division Bench of the Patna High Court in a series of cases where also by a Judgment and order dated July 19, 2016 the impugned notification was set aside and quashed. The Division Bench had held that Regu. 2.3.4 of the Regulation must yield to COTPA and the order of the Commissioner was not only arbitrarily made but was made beyond the scope of the powers conferred by the Food Act. 13. The submission of Mr. Mandal was absolutely in line with the stand of the respondents in the Affidavit-in-opposition. Mr. Mandal referred to the definition of Food in Prevention of Food Adulteration Act in support of his contention that gutkha, pan masala, zarda all qualify for food within the meaning of the said Act. He has relied on the case of Godawat Pan Masala v. Union of India, reported in (2004) 7 SCC 68 to contend that if such products are food the respondent no. 5 definitely has the authority to issue the notification. 14. Mr. Mandal argues that even if these products do not come within the purview of the relevant Act, Regu.2.3.4 of the Regulation definitely empowers the respondent no. 5 to issue the notification. 15. Mr. Mandal has further submitted that the definition of Food in Section 3(1)(j) of the concerned Act contains a proviso to the effect that over and above the products which have been mentioned in the said subsection the Central Government may declare by notification in the official gazette any other article as food for the purpose of this Act having regard to use nature, substance or quality. He submits further that the Regulation is an exercise of the power under Section 3(1)(j) of the Act. 16. A learned single judge of this court in connection with the cases referred to above had negatived similar contentions as not sustainable. I have perused the order and respectfully agree not only with the conclusion reached by the learned Single Judge but also with the process of ratiocination by which the conclusion was reached. Neither do I find any reason to take any view contrary to the one taken in the Judgment of the Calcutta High Court. The submission of Mr. Mandal is not sufficient to dislodge any of the findings in those two writ petitions. 17. Neither do I find any reason to take any view contrary to the one taken in the Judgment of the Calcutta High Court. The submission of Mr. Mandal is not sufficient to dislodge any of the findings in those two writ petitions. 17. The respondents cannot obtain a mileage by referring to the case of Godawat (supra) as that judgment clearly goes against their contention. In Para 77.6 of the judgment the Supreme Court had held that the provisions of COTPA are directly in conflict with Section 7(iv) of the Prevention of Adulteration Act. While COTPA is a special Act intended to deal with tobacco and tobacco products the latter act is a general enactment. Therefore, the special Act must override the provision of Section 7(iv) of the Prevention of Food Adulteration Act with regard to the power to prohibit the sale or manufacture of tobacco product which are listed in Schedule 2 of the COTPA. 18. I cannot but respectfully agree with the learned Single Judge of this Court that even if the definition of the word ‘food’ in the Act is very wide a tobacco product cannot be understood to be covered by the said definition. The judgment has very aptly distinguished between a food product and a tobacco product. 19. It has to be borne in mind that Parliament did not enact any legislation altogether banning the trade and commerce of tobacco or tobacco products in any form. The means by which it sought to regulate their use and sale was the enactment of COTPA, 2003. 20. Mr. Mandal's submission that the Regulation is in the nature of a notification is on the face of it not sustainable. The Regulation was promulgated in exercise of the power under Section 92 of the Act. It is not a notification as referred to in Section 3(1)(j) of the Act. The effort to justify the impugned notification on the ground that the Regulation is a notification must be deemed to be inherently lacking in substance. That the Regulation was a delegated piece of legislation goes without saying. Even if Regu. 2.3.4 of the said Regulations brings the relevant products within the meaning of Food, it cannot supersede the parent Act under which the Regulation was promulgated. That the Regulation was a delegated piece of legislation goes without saying. Even if Regu. 2.3.4 of the said Regulations brings the relevant products within the meaning of Food, it cannot supersede the parent Act under which the Regulation was promulgated. I also agree with the learned Judge that trade and commerce of the tobacco products can be regulated only to the extent permitted by COTPA. 21. The only conclusion is that the Regulation does not empower the respondent no. 5 to issue the notification impugned in the Writ Petition. He lacks competence under the Act to issue the said notification in respect of the products contained therein. The notification impugned is set aside and quashed. 22. The Writ Petition is allowed. 23. There shall be no order as to costs. 24. Urgent certified photocopy of this order, if applied for, be given to the parties upon compliance of necessary formalities.