Holding

Section 7(iv) of the Prevention of Food Adulteration Act does not grant an independent, permanent power to State Food (Health) Authorities; such authority can only issue temporary bans in emergent situations and the power to prohibit articles injurious to health rests exclusively with the Central Government under Section 23, rendering the state notifications ultra vires, unconstitutional and void.

Summary

The appellants, manufacturers of pan masala and gutka, challenged state notifications issued under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 that prohibited the manufacture, sale, storage and distribution of these products in the interest of public health. The questions before the Supreme Court were whether a state Food (Health) Authority had the power to impose such a ban, whether Section 7(iv) is an independent source of power or must be read down to a transient emergency power, whether the ban conflicted with the central Cigarettes and Other Tobacco Products Act, 2003, and whether the notifications violated Articles 14 and 19(1)(g) of the Constitution and the principles of natural justice. The Court held that the power to prohibit articles injurious to health resides exclusively with the Central Government under Section 23 of the 1954 Act, and that Section 7(iv) only confers a limited, temporary power to deal with emergent situations, making the state notifications ultra‑vires. Consequently, the notifications were declared void, unconstitutional and unenforceable, and the appeals and writ petition were allowed. The decision reaffirmed the need to read statutes harmoniously, respect the hierarchy of central and state powers, and observe procedural fairness before restricting fundamental rights.

Issues considered

Whether the State Food (Health) Authority has power under Section 7(iv) of the Prevention of Food Adulteration Act, 1954 to prohibit manufacture, sale, storage or distribution of pan masala and gutka.
Whether Section 7(iv) is an independent source of power or must be read down to a transient emergency power subject to Section 24 rules.
Whether the power to prohibit such articles lies exclusively with the Central Government under Section 23 of the 1954 Act.
Whether the state notifications conflict with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.
Whether the notifications violate Articles 14 and 19(1)(g) of the Constitution of India.
Whether the principles of natural justice, particularly the right to be heard, were complied with in issuing the notifications.

Legislation cited

Additional Duties of Excise (Goods of Special Importance) Act, 1957
Central Sales Tax Act, 1956s. 14(ix)
Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
Constitution of Indias. Article 14, s. Article 19(1)(g)
Maharashtra Prevention of Food Adulteration Rules, 1962
Prevention of Food Adulteration Act, 1954s. 2(1a), s. 23, s. 24, s. 7(iv)

Subjects

Prevention of Food Adulteration ActSection 7(iv)State vs Central legislative competenceFundamental rightsArticle 14Article 19(1)(g)Natural justiceUltra viresAdministrative lawTobacco regulationCigarettes and Other Tobacco Products Act 2003Res extra commerciumStatutory interpretationDoctrine of implied repealSpecial vs general lawEmergency powersLicensingPublic healthReasonable restriction

Judgment

GODAWAT PAN MASALA PRODUCTS LP. LTD. AND ANR. A
v.
UNION OF INDIA AND ORS.

AUGUST 2, 2004

[K.G. BALAKRISHNAN AND B.N. SRIKRISHNA, JJ.] B
Prevention ofFood Adulteration Act, 1954-Sections 2((1a), 7(iv), 23
and 24-Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production,
Supply and Distribution) Act, 2003-Constitution of India, 1950-Articles C
c 14 and 19(J)(g)-Ban on Gutka and Pan Masala-By Notifications ofState
Government-Tobacco products covered by subsequent Act of 2003-
0ther tobacco products not banned-Opportunity of being heard not given
to the affected persons before issuing Notifications-Ban challenged-
High Court upheld validity ofNotifications-On appeal held; Notifications D
are ultra vires the Act and void and violative ofArticles 14 and 19(1)(g)
of Constitution and violative of Principles of Natural Justice-The State
Authorities had no power to prohibit the manufacture, sale, storage or
distribution of the articles-Such power lies with Central Government
under Rules framed under Section 23-2003 Act dealing with the articles
being directly in conflict with the Act and being a special act and of later E
origin overrides the provisions of the Act with regard to power to prohibit
the articles-Power of State is descernible under Section 24(2) and is of
transient nature-Rules made under Section 24 are subservient to Rules
derivable under Section 23-Notification is unreasonable and excessive in
nature-Maharashtra Prevention ofFood Adulteration Rules, 1962-Goa, F
Daman and Diu Prevention of Food Adulteration Rules, 1982.

Interpretation of statutes :

Legislative intent of statute-Ascertainment of-Held: Should be G
ascertained not merely by construing a particular clause but the scheme
of the entire statute.

Administrative Law :

Principles of Natural Justice-Compliance-Need for-In case of H
239
240 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A conditional legislation-Held, compliance of the principles is necessary in
such cases.

Various State Governments issued Notifications u/s 7(iv) of
Prevention of Food Adulteration Act, 1954 by which manufacture,
B sale, storage and distribution of Pan Masala and Gutka were banned
for different periods in the interest of public healtil. Appellants-
manufactures of Pan Malala and Gutka, challenged the Notifications.
Different High Courts upheld the validity of the Notifications. Hence,
the present appeals. Some Associations and Co-operative Societies of
arecanut growers and some manufacturers and sellers of Pan Malasa
C and Gutka filed Writ Petition in this Court challenging another
Notification issued u/s 7(iv) of the Act to the same effect.

Appellants/Petitioners contended that State Government did not
have power to issue an order of Prohibition as the power to declare
D a substance as injurious to health lies only with the Central Government
under Section 23 of the Act; that sinire the manufacture of the product
is undertaken under a licence issued by Central Government, it is not
open to State Government to prohibit the manufacture by au
administrative order so long as terms of licence and conditions
E stipulated in the statute are not violated; that power of State Government
to frame rules under Section 24 is extremely narrow and limited to the
field not covered by Section 23; that Section 7 is not declaratory of the
power of any authority, but merely of the consequences of certain acts;
that the Act is concerned with the prevention of adulterated articles
of food and not intended to prohibit any article used as food or
F otherwise; that Notification issued by State of Maharashtra operates
extra territorially, and, to that extent, is ultra vires of the powers of
the State; that by enacting Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003 (Act 34 of 2003)
G Parliament has evinced its intention to occupy whole field with regard
to tobacco products; that while Central legislation prohibits the sale
of tobacco only to persons below 18 years of age, the wholesale ban
by the Notification is without any qualification; that in conflict between
powers exercisable under two central statutes dealing with the same
H subject, the later enactment would prevail as the later enactment
GODA WAT PAN MASALA PRODUCTS LP. LTD. v. U.O.l. 241
would be deemed to have impliedly repealed the previous one; Act 34 A
of 2003 being a special law intended to deal with tobacco and its
products, and the 1954 Act being a general law, the special law will
displace the general law to the extent of inconsistency; that Notification
was unreasonable and excessive restriction on the Fundamental Right
to carry on trade or business guaranteed under Article 19(1 )(g) of the B
Constitution; that if Section 7(iv) is construed as giving the authority
to ban the articles of food, even if not adulterated, it would be ultra
vires the legislative competence of Parliament; that if the provisions of
Section 7(iv) are not read down as conferring powers on the Authority
to deal with emergent situations the Section would be conferring''
arbitrary powers on the Authority and would be procedurally unfair; C
that business of Pan Masala and Gutka being recognized as legitimate
by other statute, Section 7(iv) enabling the Authority by a Notification
to bring to standstill a business, would have to be held to be arbitrary,
unfair and an abridgment of fundamental rights guaranteed under
Article 14 of the Constitution; that Pan Masala or Gutka does not D
amount to 'food' within meaning of its definition u/s 2(v) of the Act;
that principle of natural justice was violated as the parties were not
given opportunity of being heard before issuing the Notification; and
that Pan Masala or Gutka are not res extra commercium.

State contended that Section 7(iv) is not an independent source E
of power; that constitutional validity of Section 7(iv) was never in
dang.~r as it could be supported on the doctrine of pith and substance;
that all provisions of a statute have to be read harmoniously and any
interpretation has to be ex visceribus actus is trite doctrine of construction
of statute,;; that the impugned act was a legislative act and not F
administrative act, therefore the question of giving a hearing before
taking a policy decision to ban Pan Masala did not arise.

Allowing the appeals and writ petitions, the Court

HELD 1.1. The impugned Notifications are ultra vires the G
Prevention of Food Adulteration Act, 1954 and, hence, bad in law. The
State Food (Health) Authority has no power to prohibit the manufacture
for sale, storage, sale or distribution of any article, whether used as an
article or adjunct thereto or not used as food. Such a power can only
arise as a result of wider policy decision and emanate from
Parliamentary legislation or, at least, by exercise of the powers by the H
242 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A Central Government by ·framing rules under Section 23 of the Act.
(290-D; 289-H; 290-AJ

1.2. Section 7(iv) of the Act is not an independent source of power
for the State Authority. The source of power of the state Food (Health)
Authority is located only in the valid Rules made in exercise of the
B power under Section 24 of the Act by the State Government, to the
extent permitted thereunrler. The power of the Food (Health) Authority
under the Rules is only of transitory nature and intended to deal with
local emergencies and can last only for a short period while such
emergency lasts. This conclusion is also supported by the legislative
C history prior to the amendment by Act 49 of 1964, in clause (iv) of
Section 7 the words used were "with a view to preventing the outbreak
or spread of infections diseases." The powers of banning an article of
food or an article used as ingredient of food, on the ground that it is
injurious to health, belongs appropriately to the Central Government
to be exercised in accordance with the Rules made under Section 23
D of the Act, particularly, sub-section (lA)(f). (289-D-G)
1.3. The expression "for the time being" used in clause (iv) of
Section 7 of the Act is significant and indicates the transient nature of
the power that is conferred on the Food (Health) Authority under the
E Rules to ban or otherwise take any o~her appropriate action in relation
to an article of food even if it be "in the interest of public health."
[266-D-E)

Pukhraj Jain v. Padma Kashyap and Anr., (1990) 2 SCC 431 and
Jivendra Nath Kaul v. Collector/District Magistrate and Anr., [1992) 3,
F sec s16, referred to.
1.4. Clause (iv) of Section 7 and clause (c) of sub-section (1) of
Section IO of the Act and their interplay unmistakably suggest that
the power conferred on the Food (Health) Authority and the food
inspector, being derived from the Rules made in exercise of the
G powers exercised under Section 24 of the Act are necessarily subservienit
to the powers derivable from the Rules made under Section 23 of the
Act. Hence, neither the Food (Health) Authority, nor the food inspectv•r
can be said to have such power which could be available to nie
Central Government by prescription of a rule in exercise of power
H under Section 23(1A)(f). [267-H; 268-A-B(
GODA WAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. 243

State of Orissa v. MA. Tulloch and Co., (1964] 4 SCR 461; UP. A
State Electricity Board and Ors. v. Hari Shanker Jain and Ors., (1979] l
SCR 355; Gujarat State Cooperative Land Development Bank Ltd. v. P.R.
Manded and Ors., (1979] 2 SCR 1023; The LIC of India v. D.J. Bahadur
and Ors., (1981] l SCR 1083; Jain Ink Manufacturing Co. v. LIC ofIndia
and Anr., (1981] l SCR 498; Prof Sumer Chand v. Union of India and B
Ors., (1994] l SCC 64 and Allahabad Bank v. Canara Bank and Anr.,
(2000) 4 sec 406, relied on.

Gandhi Irwin Salt Manufacturers Association v. The Government of
Tamil Nadu, (1996) Madras 109, disapproved.

Deep Chand v. The State of UP. and Ors, [1959) Supp. 2 SCR; Ch.
c
Tika Ramji and Ors. v. The State of UP.· and Ors., [1956) SCR 393;
Zaverbhai Amaidas v. The State of Bombay, (1955] l SCR 799 and Vijay
Kumar Sharma and Ors. v. State of Karnataka and Ors., (1990) 2 SCC
562, referred to.
D
1.5. If the provisions of Section 7(iv) of the Act are not read down
as conferring powers on the authority to deal with an emergent
situation, the Section would be conferring arbitrary powers on the
Authority and would be procedurally unfair. This is particularly so in
the face of the statutory provision under which licences have already E
been granted to the manufacturers of Pan Masala and Gutka for
manufacture of the articles. There is already a provision in the
statutory scheme for cancellation and suspension of a licence. Without
going through such procedure, the power in the State Authority to
suddenly bring out the result of cancellation or suspension of the
licence, without procedural safeguards, would certainly be arbitrary F
and liable to be hit by Article 14 of the Constitution of India. For this
reason also, the power under Section 7(iv) needs to be read down as
conferring powers on the authority only to deal with an emergent
situation. [279-C-E]
G
State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr.,
(1978] 1SCR641; B.R. Enterprises and Ors. v. Staie of UP. and Ors.,
(1999] 9 SCC 700 and State of A.P. v. Natural Thermal Power Corpn.
Ltd. and Ors., [2002] 5 SCC 203, referred to.

1.6. A decision for banning an article of food or an article H
244 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A containing any ingredient of food injurious to health can only arise as
a result of broadly considered policy. If such a power be conceded in
favour ofa local Authority like the Food (Health) Authority, paradoxical
results would arise. The same article could be considered injurious to
public health in one local area, but not so in another. The constitution
B of the provision of the statute must not be such as to result in such
absurd or paradoxical consequences. Hence, for this reason also, the
power of the State (Health) Authority is a limited power to be
exercised locally for temporary duration. (284-B-Cj

1.7. It cannot be said that the power of the state Food (Health)
C Authority is much wider and could extend even to articles which may
not amount to food or ingredients of food, or even if they are not
injurious to health, as long as the test of "in the interest of public
health" is satisfied. (284-E-F)

D 1.8. Court cannot conceive of such wide ranging power vested in
a local Authority without there being sufficient guidelines as to the
manner of deciding the policy and implementing it elucidated in the
statute itself. There is no indication in the Act as to how the order made
by the Food (Health) Authority would be brought into force. This is
a pointer to the fact that the orders made by the Food (Health)
E Authority are only transitory and intended to deal with emergent local
situations. (284-F-G; 286-G-Hj

1.9. The purpose of the Act, as its title suggests, is to prevent
adulteration of food. Any attempt to travel beyond these parameters
F must necessarily be looked at askance by the Court. (286-E ·Fl

Dineshchandara Jamnadas Gandhi v. State of Gujarat, [19891 1 SCC
420, relied on.

1.10. The words "in the interest of public health" used in clause
G (iv) of Section 7 of the Act cannot operate as an incantation or mantra
to get over all the constitutional difficulties posited. In any event, the
collocation of the words in the statutory scheme suggests not a matter
of policy, but a matter of implementation of policy. For this reason also
the impugned Notification must fail. [281-C-D]

H I. I I. The statute must be read as a whole and one provision of
GODA WAT PAN MASALA PRODUCTS J.P. LTD. v. U.O.l. 245
the Act should be construed with reference to other provisions of the A
same Act so as to make a consistent, harmonious enactment of the
whole statute. The Court must ascertain the intention of the legislature
by directing its attention not merely to the clauses to be construed, but
also to the scheme of the entire statute. The attempt must be to
eliminate conflict and to harmonise the different parts of the statute B
for it cannot be assumed that Parliament had given by one hand what
it took away by the other. [265-G-H; 266-A)

Commissioner of Income Tax v. Hindustan Bulk Carriers, [2003] 3
SCC 57; C.lT. Central, Calcutta v. National Taj Traders, [1980) 2 SCR
277 and O.P. Sing/a and Anr. v. Union of India and Ors., [1984) 4 SCC C
450, relied on.

1.12. Undoubtedly, if Section 7(iv) is read in isolation, it gives the
impression that this is an independent source of power, not subject
to any !imitation other than the guideline "in the interest of public D
health". But, when the scheme of the Prevention of Food Adulteration
Act is analysed in the light of its preamble and the Statement of Objects
and Reasons, it becomes clear that there is no independent source of
power under Section 7(iv) . Had it been so, there was no need for the
rule making power of the State Government under Section 24(2)(a) to
define the powers and duties of the Food (Health) Authority or local E
authority and Local (Health) Authority under the Act. The interplay
of Sections 23(1A)(f) and 24(2)(a) read with the existing Rules in the
different States, even after the amendment of Section 7(iv) by Act 49
of 1964, leads to conclude that it cannot be said that all provisions of
a statute have to be read harmoniously; that any interpretation has to F
be ex visceribus actus, is a trite doctrine of construction of statutes.
[274-G; 275-A-C]

1.13. The power of the State under Section 7(iv) of the Act is
statutory; absolute to the extent provided therein and limited to the
extent indicated by Section 23(1A) of the Act. When a contingency G
envisaged by Rule 3 of Maharashtra Prevention of Food Adulteration
Rules, 1962, and corresponding Rule in Goa, Daman and Diu Prevention
of Food Adulteration Rules, 1982, or one similar thereto, arises and
it becomes necessary for the Food (Health) Authority to take immediate
steps, the Food (Health) Authority is empowered to prohibit "for the H
246 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A time being" the concerned injurious article and to take any appropriate
step "in the interest of public health". (274-G; 275-A-8)

1.14. The provisions of the Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and Commerce,
B Production, Supply and Distribution) Act, 2003 (Act 34 of 2003) are
directly in conflict with the provisions of Section 7(iv) of the Prevention
of Food Adulteration Act, 1954. The former Act is a special Act
intended to deal with tobacco and tobacco products particularly, while
the latter enactment is a general enactment. Thus, Act 34 of 2003 being
a special Act, and of later origin, overrides the provisions of Section
C 7(iv) of the Prevention of Food Adulteration Act, 1954 with regard to
the power to prohibit the sale or manufacture of tobacco products
which are listed in the Schedule to Act 34 of 2003. [290-8-D)

1.15. There is a plethora oflegislation dealing with tobacco products,
D gutka and pan masala and the fact that licences have been issued to the
appellants to manufacture the concerned articles, which does not lead
to the conclusion that the trade or business in the concerned articles is
an activity which is "criminal in propensity, immoral, obnoxious,
injurious to the health of general public" or that the ban is a result of
E 'public expediency and public morality'. (282-D-E]

2.1. The impugned Notification is certainly an administrative act
and not a legislative act. Inasmuch as by an executive act the manufacture
for sale, storage, sale or distribution of the concerned article has been
banned so as to interfere with the fundamental rights of the appellants
F guaranteed under Articles 14 and 19 of the Constitution of India, the
impugned Notification is illegal and unconstitutional. (281-8-C]

Maneka Gandhi v. Union of India, (1978] 1 SCC 248; Kanti Lal
Babula/ v. HC. Patel, (1968] l SCR 735; Ajay Hasia and Ors. v. Khalid
Mujib Sehravardi and Ors., (1981] 1 SCC 722 and Delhi Transport
G Corporation v. D.T.C. Mazdoor Congress and Ors., (1991) Supp. 1 sec
600, followed.

Mis. Dwarka Prasad Laxmi Narain v. State of UP. and Ors., (1954)
SCR 803 and B.B. Rajwanshi v. State of UP. and Ors., [1988] 2 SCC
H 415, referred to.
GODAWAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. 247
2.2. It is permissible under Article 19(6) to impose a reasonable A
restriction "in the interest of gene1 al public". Assuming that such a
restriction can be imposed, even if by legislation intended to prohibit
manufacture, sale or storage of articles harmful or injurious to health,
the restriction has to be commensurate with the danger posed. On a
conspectus of the facts, Court cannot uphold the prohibition imposed B
by the impugned Notification as a restriction which can pass the rest
of reasonableness under Article 19(6) of Constitution of India for two
reasons. First, there is no demonstrated danger to the public health by
magnesium carbonate by consumption of Rajnigandha pan masala;
secondly, even if there were, the prohibition could only have extended C
to pan masala containing magnesium carbonate and could not be wider
than that. (273-F-H; 274-A)

2.3. The States did not ban chewing tobacco or other tobacco
products which contain almost cent per cent tobacco, but they banned
the sale of gutka which contains only about 6 per cent of tobacco and D
pan masala, which contains no tobacco whatsoever, even accepting on
the correctness of the material presented. Further, th~ literature
produced by the States indicates that pan masala is addictive amongst
children and, therefore, likely to be injurious to their health in the long
run. Assuming this to be true, the restriction could only have been on E
sale to under-aged persons and not by way of a total ban. The
impugned Notification is violative of the fundamental right of the
appellants guaranteed under Article 19(l)(g), both because it is
unreasonable and also because it is excessive in nature. A contrast with
the provisions of the Act 34 of 2003 in this regard would drive home
the point. The impugned Notification fails on the test of reasonable F
restriction. (275-H; 276-A-C; 277-AJ

Mohd. Faruk v. State of Madhya Pradesh and Ors., (1970] 1 SCR
156, relied on.

3. It cannot be said that the substance banned by the impugned G
Notification is treated as res extra commercium. In the first place, the
gamut of legislation enacted in this country which deals with tobacco
does not suggest that Parliament has ever treated it as an article
res extra commercium, nor has Parliament attempted to ban its use
absolutely. The legislative policy, if any, seems to be to the contrary. H
248 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A In any event, whether an article is to be prohibited as res extra
commercium is a matter of legislative policy and must arise out of an
Act of legislature and not by a mere Notification issued by an executive
Authority. (278-F; 279-A-B)

Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors,,
B (19951 1 sec 574, referred to.
4. It cannot be said that pan masala or gutka does not amount
to "food" within the meaning of definition in Section 2(v) of the Act.
(283-C]

C P.K. Tejani v. MR. Dange, AIR (1974) SC 228, referred to.

C.A. Nos. 12746-747of1996 dated 6th November, 2003 decided by
Supreme Court, distinguishe.d.

5.1. It cannot be said that because the Notification is generally
D intended, it is necessarily a legislative act and therefore there was no
question of complying with principles of natural justice. If that were
so, then every executive act could masquerade as a legislative act and
escape the procedural mechanism of fair play and natural justice.
(288-B-C]

E 5.2. Conditional legislation can be broadly classified into three
categories: (l) when the legislature has completed its task of enacting
a statute, the entire superstructure of the legislation is ready but its
future applicability to a given area is left to the subjective satisfaction
of the delegate (2) where the delegate has to decide whether and under
F what circumstances a legislation which has already come into force is to
be partially withdrawn from operation in a given area or in given cases
so as not to be applicable to a given class of persons who are otherwise
admittedly governed by the Act; (3) where the exercise of conditional
legislation would depend upon satisfaction of the delegate on obj_~ctive
facts placed by one class of persons seeking benefit of such an exercise
G with a view to deprive the rival class of persons who otherwise might
have already got statutory benefits under the Act and who are likely to
lose the existing benefit because of exercise of such a power of the
delegate. In the third type of cases the satisfaction of the delegate must
necessarily be based on objective considerations and, irrespective of
H whether the exercise of such power is judicial or quasi-judicial function,
GODA WAT PAN MASALA PRODUCTS LP. LTD. v. U.0.1. 249

still it has to be treated to be one which requires objective consideration A
of relevant factual data pressed into service by one side, which could be
rebutted by the other side, who would be adversely affected if such
exercise of power is undertaken by the delegate. (288-D-G; 289-A-B]

Union of India and Anr. v. Cynamide India Ltd. and Anr., [1987] 2
sec 720; State of Tamil Nadu v. K Sabanayagam and Anr., (1998] 1 sec B
318 and Tulsipur Sugar Co. Ltd. v. The Notification Area Committee Tutsi
Pur, (1980] 2 SCC 295, referred to.

5.3. Even if the impugned Notification falls into the last of the
above category of cases, whatever the material the Foods (Health) C
Authority had, before taking a decision on articles in question, ought
to have been presented to the appellants who are likely to be affected
by the ban order. The principle of natural justice requires that they
should have been given an opportunity of meeting such facts. This has
not been done in the present case. For this reason also, the notification D
is bad in law. (289-B-C]

6. There is a distinction between "making law" and "commencement
of the operation of an Act" and a situation of conflict can arise even
when a law has been made and not brought into force. (272-EJ
E
Pt. Rishikesh and Anr. v. Sa/ma Begum, (1995] 4 SCC 718, relied
on.

P.N. Krishna Lal and Ors. v. Government of Kera/a and Anr., 11995]
Supp. 2 SCC 187, cited.
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4674 of
1998.

From the Judgment and Order dated 18/19.9.2002 of the Bombay
High Court in W.P. No. 2024/2002. •·-
G
WITH

Civil Appeal Nos. 4677/2004, 4676/2004, 4675/2004, 4678/2004,
4679/2004.

AND H
250 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A Writ Petition (C) No. 173 of 2003.

Shanti Bhushan, J. Bhushan, R.F. Nirrnan, Kapil Sibal, Anil B.
Diwan, S.K, Pathak, Ms. S. Pathak, Ejaz Maqbool, Ms. Indu Malhotra, Ms.
D. Vishwanathan, N. Talwar, D. Krishnan, Ms. V. Bhargava, Ms. Nina
B Gupta, Ms. Bina Gupta, S. Parekh, K. Javeri, Fatek, Lalit Chauhan, P.D.
Gupta, Pramod Dayal, P. Sharma, K.R. Nagaraja, Ms. E.R. Sumathy, K.
Vijayan, A.P. Jain, Mrs. Savita Aggarwal, Hari and Punit D. Tyagi for the
Appellants.

Mrs. K. Amareshwari, A.N.S. Nadkarni, Adv. Gen. for State of Goa,
C U.U. Lalit, A. Pednekar, S.S. Shinde, A. Singh, P. Keswani, Mukesh K.
Giri, R.K. Rathore, Ms. Pinky Anand, Ajay Sharma, D.S. Mahra, B.
Ramana Murthy, G. Prabhakar, Mrs. Anil Katiyar, R.K. Adsure, Dhruv
Mehta, M. Choudhary and Ms. Shalini Gupta for the Respondents.

The Judgment of the Court was delivered by
D
SRIKRISHNA, J. : Leave granted in the special leave petitions and
the writ petition is admitted.

These appeals and writ petition arise from different areas and, though
E marginally differing on facts, raise substantially similar issues oflaw. They
can, therefore, be conveniently disposed of by a common judgment.

The common issue raised for consideration of this Court in all these
cases is the validity of notifications issued by the Food (Health) Authority
under Section 7(iv) of the Prevention of Food Adulteration Act, 1954
F (hereinafter referred to as the 'Act') by which the manufacture, sale,
storage and distribution of pan masala and gutka (pan masala containing
tobacco) were banned for different periods. We shall take the facts in the
civil appeal arising out of special leave petition No. 24449 of 2002 as
typical
.. 1,· , .
of the cases.

Facts :

Civil Appeal arising out of SLP (C) No. 24449 of 2002.

The appellants manufacture gutka within the state of Maharashtra,
H which is stored in convenient godowns and sold both within and outside
GODAWATPAN MASALA PRODUCTS l.P. LTD. v. U.0.1. [SRIKRISHNA, J.) 251

the state of Maharashtra. By a notification dated 23rd July, 2002 issued A
by the Commissioner, Food and Drug Administration and Food (Health)
Authority for the State of Maharashtra, the manufacture, sale, storage and
distribution of pan masala and gutka (pan masala containing tobacco) were
banned for a period of five years with effect from I st August, 2002. The
appellants challenged the validity of this notification by a writ petition No. B
2024 of 2002 before the High Court of Judicature at Bombay. By its
judgment dated I 8th/19th September, 2002, the division bench of the
Bombay High Court dismissed the writ petition upholding the validity of
the notification. Aggrieved thereby, the appellants challenge the said
judgment by the present appeal.
c
Writ Petition No. 173 of 2003 :

Petitioners Nos. I to 5 are associations and cooperative societies of
arecanut growers, petitioners No. 6 and 7 are engaged in the manufacture
and sale of pan masala and gutka in the State of Karnataka. They are D
aggrieved by a notification dated 27th February, 2002, issued by the
competent officer appointed as Food (Health) Authority for the State of
Andhra Pradesh under Section 7(iv) of the Act, by which the sale of all
brands of pan masala (containing tobacco) and chewing tobacco/zarda/
khaini under any brand name was prohibited "in the interest of public
health" in the entire state of Andhra Pradesh with immediate effect. E
The petitioners also challenge another notification dated 19th
November, 2001 issued by the Director for Public Health and Preventive
Medicine and State Food (Health) Authority, Government of Tamil Nadu,
under Section 7(iv) of the Act directing that no person shall himself or by p
any person on his behalf, manufacture of sale or store, sell or distribute:
(I) chewing tobacco; (ii) pan masala; (iii) gutka, containing tobacco in any
form or any other ingredients injurious to health, under what~ver name or
description in the State of Tamil Nadu. This notification is purpo1ted to
have been issued in the "interest of public health", for a period of five yeal1; G
with effect on and from 19th November, 200 I.

The third notification which is challenged in the writ petition is the
notification dated 23th July, 2002 issued by the Commissioner offood and
Drug Administration and Food (Health) Authority for the State of
Maharashtra. By the said notification, issued purportedly in exercise of the H
252 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A powers under Section 7(iv) of the Act, "in the interest of public health'',
the sale of gutka and pan masala, containing tobacco or not containing
tobacco, is prohibited for a period of five years effective from I st August,
2002. The notification directs that "no person shall himself or any person
on his behalf, shall manufacture for sale or store, sell or distribute gutka
B or pan masala, containing tobacco or not containing tobacco, by whatevi:r
name called.

He fourth notification challenged in the writ petition is the notification
dated 24th January, 2003 issued by the Directorate of Food and Drugs
Administration and Food (Health) Authority for the State of Goa. By this
C notification, purportedly issued under Section 7(iv) of the Act, the "sale
of gutka and pan masala, containing tobacco or not containing tobacco, by
whatever name called," is prohibited within the state of Goa and it is
directed that "no person shall himself or any person on his behalf, shaiil
manufacture for sale or store, sell or distribute gutka or pan masala
D containing tobacco or not containing tobacco, by whatever name called".
The prohibition in the notification is made effective from 26th January,
2003.

All the four notification are under challenge.

E Civil Appeals arising out of S.L.P. Nos. 23635102, 24292102. 533103,
834103 and 2186103

The appellants are engaged, inter alia, in the manufacture and trade
of pan masala and gutka, pan masala containing tobacco and other allied
F tobacco products. They sell their products all over India including Stat·e
of Mahanishtra. They have a wide network of dealers through whom their
products are sold to the public at large in the state of Maharashtra. They
also have operating depots in the state of Maharashtra. The appellants
challenge the notification dated 23rd July, 2002, issued by the Commissioner,
Food and Drtig Administration and Food (Health) Authority for the stat1e
G ofMahat.l~'htrn,,The High Court by its common judgment dated 18th/I 9th
September, 2002 negatived the challenge.

Civil Appeal arising out of S.L.P. No. 24292 of 2002

H The appellant cany on the business of manufacture and sale of pan
GODA WAT PAN MASALA PRODUCTS 1.P. LTD. v. U.OJ. (SRIKRISHNA, J.) 253

masala, gutka and other tobacco related items. Aggrieved by the notification A
dated 19th February, 2002 issued by the Food (Health) Authority, State of
Andhra Pradesh, prohibiting the sale of pan masala under any brand name
with a emblem of gutka, containing tobacco, within the state of Andhra
Pradesh, with immediate effect, and the notification dated 27th February,
2002 issued by the same authority which prohibited the sale of all brands B
of pan masala containing tobacco and chewing tobacco/zarda/kliaini under
any brand name in the entire State of Andhra Pradesh, with immediate
effect, the appellant challenged the validity of both notifications before the
High Court of Andhra Pradesh. The divisions bench of the High Court by
its judgment dated 16th August, 2002 dismissed the writ petition. Being C
aggrieved thereby, the appellant is before this Court.

Core Issue:

These appeals and the writ petition raise the common· issue as to the
power of the Food (Health) Authority to issue an order of prohibition, D
whether permanently or quasi-permanently, under Section 7(iv) of the Act.

Challenge:

The broad ground of challenge formulated by the appellants/petitioners
are as under : E
I. The Act vests the power to declare a substance as injurious to
health only with the Central Government under Section 23 of
the Act and no such power is vested with the State Government.

2. Each of the manufacturers has bee issued a licence to manufacture
F
the banned product by the Central Government under the
provisions of the Act. As long as the conditions stipulated in
the licence are fulfilled, and there is no violation of the terms
of the licence or the provisions of the concerned statute, it is not
open to the state Government, by·any administrative order, to G
prohibit the manufacture of the concerned product undertaken
under a licence issued by the Central Government.

3. The power of the State Government to frame rules under Section
24 of the Act is extremely narrow and limited to the field which H
254 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A is not covered by Section 23, the exclusive domain of the
Central Government.

4. The Act is concerned with the prevention of adulterated articles
of food and not intended to prohibit any article used as food or
otherwise.
B
5. The impugned notification dated 23rd July, 2002, issued by the
State of Maharashtra operates extra territorially, and, to that
extent, is ultra vires of the powers of the State.

C 6. By enacting the Cigarettes and other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003,
(Act 34 of 2003), Parliament has evinced its intent to occupy
the whole field with regard to prohibition of advertisement and
regulation of trade and commerce, production, supply and
D distribution of tobacco products. While the central legislation
prohibits the sale of tobacco products only to persons below age
of 18 years, the impugned notification purports to impose a
wholesale ban without any qualification. Thus, there is a conflict
between the powers exercisable under two central statutes
E dealing with the same subject and, therefore, provisions of the
Act 34 of 2003 must prevail.

Legal provisions :

F In order to appreciate the contentions of the learned counsel, it will
be necessary to briefly notice the relevant provisions of the Act. As the
preamble of the Act indicates, "it is an Act to make provision for the
prevention ofadulteration of food." Section 2(ia) defines what is 'adulterated
food'. Broadly speaking, the definition covers situations where a food
article is sub-standard, or contains injurious ingredients or has become
G injurious to health by reason of packing or keeping under unsanitary
conditions or having become contaminated or is otherwise not fit for
consumption. The definition also extends to cases of articles which fall
below the prescribed standards of purity or quality. The Act also deals with
misbranding of food articles, which is not of concern to us for the present.
H For the purpose of administration of the Act, any urban or rural area may
GODAWATPAN MASALA PRODUCTS J.P. LID. v. U.0.1. [SRIKRISHNA, J.) 255

be declared by the Central Government or the State Government by a A
notification to be a 'local area' for the purpose of the Act In relation to
such local area, an officer is appointed by the Central Government or the
State Government by notification in the Official Gazette to be in-charge
of the Health administration in such area with such designation as specified
therein and such officer is defined to be a 'Local (Health) Authority' by B
Section 2(viiia). Section 2(vi) defines 'Food (Health) Authori~' as the
Director of Medical and Health Services or the Chief Officer in-charge of
Health administration in a State, by whatever designation he is known, and
includes any officer empowered by the Central Government or the State
Government, by notification in the Official Gazette, to exercise the powers C
and perform the duties of the Food (Health) Authority under the Act
with respect to such local area as may be specified in the notification.
Section 7, upon which most of the arguments turn, needs to be noticed.
Section 7 reads as under :

"7. Prohibitions of manufacture, sale, etc., of certain articles, D
food.- No person shall himself or by any person on his behalf
manufacture for sale, or store, sell or distribute -

(i) any adulterated food;

(ii) any misbranded food; E

(iii) any article of food for the sale of which a licence is
prescribed, except in accordance with the conditions of the
licence;
F
(iv) any article of food the sale of which is for the time being
prohibited by the Food (Health) Authority in the interest of public
health;

(v) any article of food in contravention of any other provision G
of this Act or of any rule made thereunder; or

(vi) any adulterant.

Explanation. - For the purposes of this section, a person shall
be deemed to store any adiili~~t~d food or misbranded food or H
256 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A any article of food referred to in clause (iii) or clause (iv) or clause
(v) if he stores such food for the manufacture therefrom of any
article of food for sale."

Section 22A empowers the Central Government to give such directions as
B it may deem necessary to a State Government regarding the implementation
of the Act. Section 23 empowers the Central Government to make rules
to carry out the provisions of the Act. In particular, and without prejudice
to the generality of the. rule making power, the power of the Central
Government includes the one in clause (f). Section 24 of the Act is the
section which grants rule making power to the State Government. The State
C Government may, after consultation with the Committee, and subject to the
condition of previous publication, thereunder make rules for the purpose
of giving effect to the provisions of the Act in matters not falling within
the purview of section 23. Sub-section (2) of Section 24 grants power to
the State Government to make rules with regard to the powers and duties
D of the different authorities under the Act. Prescription of forms of licences
for the manufacture for sale, storage, sale and distribution of articles of
food, the conditions subject to which such licences may be issued and the
fees payable therefor, analysis ofany article of food or matter and provision
for further delegation of power by the State Government to the Food
E (Health) Authority or the subordinate authorities are the matters covered
within this delegated power.

Part IX of the Prevention offood Adulteration Rules, 1955 {hereinafter
referred to as the 'Rules') deals with the conditions for sale and licence.
Rules 49 and 50 lay down detailed conditions applicable to different types
F of licences granted for manufacturing of different products used as food
articles.

In Appendix B there is prescription of definitions and standards of
quality of different food articles. Of relevance to us is paragraph A.30
G which deals with pan masala. Paragraph A.30 reads thus :
"A.30 PAN MASALA means the food generally taken as such or
in conjunction with pan, it may contain -

Betelnut, lime, coconut, catechu, saffron, cardamon, dry fruits
H mulathi, sabermusa, other aromatic herbs and spices, sugar,
GODA WAT P_AN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 257

glycerine, glucose, permitted natural colour, menthol and non- A
prohibited flavours.

It shall be free fi:om added coaltar colouring matter, and any other
· ingredient injurious to health.

It shall also conform to the following standards, namely :
B

Total ash~Not more than 8.0 per cent by '!"eight (on dry basis).

Ash insoluble in dilute hydrochloric acid. Not more than 0.5 per
cent by weight (on dry basis)." . · C
Significantly, in this specification of standard the prescription is that
· the article is "free from ad~ed coaltar cQ!ouring matter, and any other
ingredient injurious to health". It is also required to conform to the
prescribed standard with regard to total ash. D
As far as the rules made by the State Government are concerned, the
· Maharashtra Prevention of Food Adulteration Rules, 1962 and the Goa,
Daman ai}d Diu Prevention of Food Adulteration Rules, 1982 may be
notice. The relevant Goa rules are as under :
E
"3. Powers and duties of Food (Health) Authority :

(1) The Director of Health Services for the Union Territory of
Goa, Damari and Diu being the Chief Officer in charge of the
Health Administration in the Union Territory shall be the Food F
(Health) Authority.

(2) The Food. (Health) Authority shall be responsible for the
general superintendence of the administration and enforcement of
the Act:
G
(3) The Food (Health) Authority shal!1 for the purpose of giving
effect to the provisions of the Act, have control over the Public
Health Laboratories maintained by the Government and Local
Authorities and Local (Health) Authorities, Licensing Authorities,
the Public Analyst and Food Inspectors appointed under the Act. H
258 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A (4) The Food (Health) Authority may give to a Local (Health)
Authority such directions as he may consider necessary in regard
to any matter connected with the enforcement of the Act and the
Rules made thereunder and the Local (Health) Authority shall
comply with such directions.

B (5) The Food (Health) Authority whenever called upon to do so
shall advise the Government in matters relating to the administration
and enforcement of the Act.

(6)(a) If the Union Territory or any part thereof is visited by, or
C threatened with any outbreak of any infectious diseases, the Food
(Health) Authority shall ascertain the cause of such outbreak of
the infectious disease.

(b) If in the opinion of the Food (Health) Authority the outbreak
of any infectious disease is due to any article of food, the Food
D (Health) Authority shall take such measures as it shall deem
necessary to prevent the outbreak of such disease or the spread
thereof.

(7) The Food (Health) Authority may issue from time to time
E guidelines for the efficient working of the Act.

(8) The Food (Health) Authority may from time to time issue
guidelines to the Public Analyst for efficient working of the Act.

(9) The Food (Health) Authority may also have powers to
F inspect, control and superintend the operation of other functionaries
working under the Act viz. Licensing Authority, Local Authority
etc. etc.

4. Powers and duties of Local (Health) Authority :

G (I) Subject to the provisions of sub-rule (3), the J,.ocal (Health)
Authority shall be responsible for the proper day to day
administration and enforcement of the Act and the Rules within
its jurisdiction.

H (2) The Local (Health) Authority or Health Officer/Medical
GODA WAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 259

Officer authorised by it shall be the Licence Authority for local A
area concerned.

(3) The Local (Health) Authority or Health Officer/Medical
Officer/Food Inspector authorised by it shall have powers to
inspect all the establishments engaged in the manufacture, for sale
or for distribution of articles of food in respect of which a licence B
is required under the Act and the Rules:

5. Licences :

(!) Any person desiring for the manufacture for sale, for the C
storage, for the sale or for the distribution of articles of food in
respect of which a licence is required under Rule 48A and Rule
50 of the Central Rules, shall apply for a licence in Form A to
the Licensing Authority concerned.

(2) Any person desiring for the manufacture for sale, for the D
storage, for the sale or for the distribution of articles of food in
a mobile van shall apply in Form B to the Licensing Authority
and if such mobile van is to move in any one or more than one
local area to the Local (Health) Authority, District of Goa.

(3) The applicant shall furnish in the application in Form A E
detailed information regarding location of the business premises
which are intended for the manufacture for sale, for the storage,
for the sale or for the distribution of any article of food and in
Form B the details about the locality in which, the mobile van is
intended to be moved and its registration number issued by the F
Road Transport Authority.

(4) On receipt of such application, the Licensing Authority shall,
if on inspecting the said premises is satisfied that the premises are
free from sanitary defects and are in proper hygienic conditions G
and the applicant complies with other conditions for holding
licence, grant the applicant a licence in From as specified below
on payment of fees laid down in the Schedule appended to the
rules.

(i) Form 'C' in respect of any premises: H
260 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A (ii) Form 'D' in respect of any mobile van.

(iii) Form 'E' in respect of any temporary stall.

(5) If the information furnished in the application appears to be
incorrect or incomplete or if the prescribed fee has not .been paid,
B the Licensing Authority shall make such enquiry as he considers
necessary and after giving the appli.:ant an opportunity of proving
the correctness and completeness of the information so furnished,
may if he is satisfied that the applicant is eligible for the licence
applied for grant or renew the licence .
•
c (6) If the articles of food are manufactured, stored or exhibited
for sale at different premises situated in more than one local area,
separate applications shall be made and a separate licence shall
be issued in respect of such premises not falling within the same
local area.
D
Provided that the itinerant vendors who hive no specified place
of business, shall be licensed to conduct business in a particular
area within the jurisdiction of the Licensing Authority.

(7) The licensee shall abide by the provisions of the Act and
E the Rules made thereunder and the conditions of licence granted
to him.

6. Fees for grant and renewal of licences :

F The fees to be paid for the grant or renewal of licence shall be
as specified in the Scheduled appended to the Rules.

7. Validity of licence :

A licence granted under these rules shall be valid for the period
G beginning on the date of its issue and ending on 31st day of
March, next following.

8. Renewal of licences :

A licence granted under the rules may be renewed by the
H Licensing authority on an application made in that behalf, thirty
GODA WAT PAN MASALA PRODUCTS J.P. LTD. v. U.O.l. [SRIKRISHNA, J.] 261

days before the day on which such licence is due to expire and A
on payment of fees specified in the Schedule.

Provided that, if the application for renewal is made after the
expiry of the licence but not later than one month from the date
of such expiry, the licence may be renewed only on payment of B
a fee equal to one and halftimes of the fee payable for the renewal
of the licence.

9. Conditions for grant or renewal of licences :

The Licensing Authority shall not grant or renew the licence until C
such officer as may be specified by him by general or special order
has inspected the place in respect of which the licence for grant
or renewal is applied for and has recommended the grant or
renewal of the licence. The Licensing Authority shall however use
his own judgment in granting/renewal or licences." D

Rule 13 deals with the circumstances under which the Licensing
Authority may by order in writing refuse to grant or renew a licence. Rule
14 prescribes the procedure for cancellation or suspension of the validity
of a licence. Rule 15 gives a right to appeal to any person aggrieved by E
an order of the Licensing Authority passed under rule 13 or rule 14.

The relevant rules of the Maharashtra Prevention ofFood Adulter~tion
Rules, 1962 are as under :

"3. Food (Health) Authority and its powers and duties -
F

(I) The Director of Public Health for the State of Maharashtra
being the Chief Officer-in-charge of the Health Administration in
the State of Maharashtra shall be the Food (Health) Authority
(hereinafter referred to as the authority)~ G
(2) The authority shall be responsible for the general
superintendence of the administration and enforcement of the Act.

H
262 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A (6)(a) If the State or any part thereof is visited by, or threatened
with an outbreak of any infectious disease, the authority shall
ascertain the cause of such outbreak of the infectious disease.

(b) If in the opinion of the authority and the outbreak of any
infectious disease is due to any article of food, the authority shall
B take such measures as it shall deem necessary to prevent the
outbreak of such disease or the spread thereof."

Rule 5 deals with licences and the manner of suspension or cancellation
of licences.
c
Submissions :

Ex visceribus actus :

The first contention urged on behalf of the appellants is that Section
D 7 of the Act is not declaratory of the power of any authority, but merely
of the consequences of certain acts. The section :;rohibits the manufacture
for sale, store or distribution of (i) any adulterated food; (ii) any misbranded
food; (iii) any article of food for the sale of which a licence is prescribed,
except in accordance with the conditions of the licence: (iv) any article of
E food the sale of which is for the time being prohibited by the Food (Health)
Authority in the interest of public health; (v) any article of food in
contravention of any other provision of this Act or of any rule made
thereunder; or (vi) any adulterant. Although, Section 2(vi) defines as to
who is a Food (Health) Authority, there is no corresponding provision in
F the Act which delineates the powers of the Food (Health) Authority. On
the other hand, Section 24(2) of the Act empowers the State Government
to "define the powers and duties of the Food (Health) Authority, local
authority and Local (Health) Authority under this Act". The source of the
powers of the Food (Health) Authority is to be found only under the rules,
if any, made under Section 24(2) of the Act, subject to the restriction that
G it can be made only "for the purpose of giving effect to the provisions of
this Act in matters not falling within the purview of Section 23".

Learned counsel for the appellants contend that in view of the nature
of the limitations placed on the State Government's power under Section
H 24( I), a reading of Sections 23 and 24 would lead to the irresistible
GODA WAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 263

conclusion that the powers exercisable by the State Government under A
Section 24 can only be in the field not occupied by Section 23. As we have
already noticed, Section 23(1A)(f) empowers the Central Government to
prescribe rules for prohibiting the sale or defining the conditions of sale
of any substance which may be "injurious to health" when used as food
or restricting in any manner its use as an ingredient in the manufacture of B
any article of food or regulating by the issue of licences the manufacture
for sale of any article of food. Learned counsel, therefore, contend that the
power of the Food (Health) Authority has to be necessarily found under
the rules made by the State Government and subject to the limitation that
they cannot operate in the field covered by Section 23. Since Section
23(1 a)(f) empowers the Central Government to make rules for prohibition C
of any substance which may be injurious to health, it is contended that the
state Food (Health) Authority is denuded of such power.

There appears to be merit in the contentions of the appellants, Rule
3 of the Maharashtra Prevention of food Adulteration Ruws, 1962 and the D
corresponding rule in the Goa, Daman & Diu Prevention of Food
Adulteration Rules, 1982 suggest that the power given to the Food (Health)
Authority is only a pro tern power to deal with an emergent situation, such
as outbreak of any infections disease, which may be due to any article of
food. In such a contingency, the Food (Health) Authority is empowered E
to take all such action as it deemed necessary to ascertain the cause of such
infectious disease and to prevent the outbreak of such disease or the spread
thereof. Certainly, such power would include the power to ban "for the time
being" the sale of such injurious articles of food. Hence, correspondingiy
Section 7(iv) of the Act provides that no person shall manufacture for sale,
or store, sell or distribute "any article of food the sale of which is for the F
time being prohibited by the Food (Health) Authority in the interest of
public health." In other words, when a contingency envisaged by Rule 3,
or one similar thereto, arises and it becomes necessary for the Food
(Health) Authority to take immediate steps, the Food (Health) Authority
is empowered to prohibit 'for the time being" the concerned injurious G
article and to take any appropriate step "in the interest of public health''.

On the collocation of the statutory provisions, we are unable to accept
the contention of the learned counsel for the States that clause (f) of Section
7 of the Act is an independent source of power. This conclusion of ours H
264 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A is also supported by the legislative history. Prior to the amendment by Act
49 of 1964, with effect from 1.3.1965, clause (iv) of Section 7 read as
under:

"Any article of food the sale of which is for the time being
prohibited by the Food (Health) Authority with a·view to preventing
B the outbreak or spread of infectious diseases."

Learned counsel for the State Governments contend that as a result
of the amendment and the substitution of the words "in the interest of
public health" for the words "with a view to preventing the outbreak or
C spread of infectious diseases", the legislature has expanded the power of
Food (Health) Authority so that it can act to prohibit the sale of ally article,
the only limitation being that the power exercised is "in the interest of
public health". It is not possible for us to accept this submission. It is,
undoubtedly, true that the intention of Parliament in bringing forth the
D amendment to clause (iv) of Section 7 was to expand the area ofoperation
of the said clause. As originally intended, it was to operate only in the event
of a contingency aimed at preventing t)ie outbreak or spread of infectious
diseases. This certainly was restricted. There could be several situations in
which there may not be any apprehension of outbreak or ~pread af
E infectious diseases and yet it may oecome necessary for the Food (Health)
Authority to act by taking appropriate steps to control a situation which
has arisen. It is with this view that the prohibition in clause (iv) of Section
7 of the Act was expanded to apply to such contingencies also.

It is unfortunate that, despite the amendment made in clause (iv) of
F Section 7 of the Act, (by Act 49 of 1964) the rule have not been
correspondingly updated. Going strictly by the state rules, which actually
determinate the extent of the power of the Food (Health) Authority, it
appears to us that the arguments of the State Governments that this
amendment was intended to give a carte blanche to the Food (Health)
G Authority cannot be accepted. On the contrary, the construction canvassed
by the appellants appears to be more reasonable. We are inclined to the
view that the power of the state authority, which is discernible under
Section 24(2)(a) read with the state rules, operates only for a temporary
period during which an emergent situation exists which needs to be
H controlkd. It is not possible to accept the State Governments' contention
GODA WAT PAN MASALA PRODUCTS J.P. LID. v. U.0.1. [SRIKRISHNA, J.] 265

that clause (iv) of Section 7 of the Act is an independent provision which A
clothes the Food .(Health) Authority with the power to issue an order of
ban for a long period.

Mr. Lalit, learned counsel for the state of Maharashtra, took us
through the affidavit filed by the state Government and the voluminous B
data presented therein by the state to indicate that gutka and pan masala
are addictive and, in the long run, deleterious to human health. He also
referred to certain scientific reports on the subject by the Nationa~
Toxicology Centre, an International Agency for Research on Cancer, part
of the World Health Organisation, and so on. In our view, it is not necessary
to make any pronouncement thereupon. Even if we accept that the C
scientific data supports the view that chewing of pan masala with or
without tobacco is injurious to health, the question which remains to be
answered is whether the Food (Health) Authority in the state has the power
• of prohibiting the manufacture for sale, or storage, sale or distribution of
any article assuming it to be injurious to health. A contrast of the powers D
of the Central Government with those of the state Government, with
particular reference to the power of the Central Governme.nt to make rules
to prohibit the manufacture, sale and distribution of such article which are
injurious to health when used as food, enumerated in clause (f) of sub-
section (IA) of Section 23 of the Act, leads us to believe that, even E
assuming that gutka and tobacco products are injurious to health, the power.
of their prohibition is only vested with the Central Government and not
with the state Food (Health) Authorities. The State (Food) Health authorities
have only a limited power of issuing an order of prohibition for a short
term while they investigate local problems and take appropriate measures
to control the situation. Beyond that, the state authorities have no power F
as urged by the learned counsel for the state Governments and as accepted
in the impugned judgment of the Bombay High Court.

It is an accepted canon of Construction of Statutes that a statute must
be read as a whole and one provision of the Act should be construed with G
reference to other provisions of the same Act so as to make a consistent,
harmonious enactment of the whole statute. The court must ascertain the
intention of the legislature by directing its attention not merely to the
clauses to be construed, but to the scheme of the entire statute. The attempt
must be to eliminate conflict and to harmonise the different. parts of the H
266 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A statute for it cannot be assumed that Parliament had given by one hand what
it took away by the other. (See in this connection Commissioner ofIncome
Tax v. Hindustan Bulk Carriers 1 and C.LT. Central, Calcutta v. National
Taj Traders 2• This Court in O.P. Sing/a and Anr v. Union of India and
Ors. 3, (vide para 17), said : "However, it is well recognised that, when a
B rule or a section is a part of an integral scheme, it should not be considered
or construed in isolation. One must have regard to the scheme of the
fasciculus of the rules or sections in order to determine the true meaning
of any one or more of them. An isolated consideration of a provision leads
to the risk of some other inter-related provision becoming otiose or devoid
C of meaning."
Against the background of these principles, it is not possible to agree
with the view taken by the High Court that Section 7(iv) of the Act is an
independent source of power of such amplitude as held. In our view, the
power of the state under Section 7(iv) of the Act is statutory; absolute to
D the extent provided therein, and limited to the extent indicated by Section
23(1A) of the Act.

Learned counsel for the appellants urged that the expression "for the
time being" used in clause (iv) of Section 7 of the Act is significant and
E indicates the transient nature of the power that is conferred on the Food
(Health) Authority under the rules to ban or otherwise take any other
appropriate action in relation to an article of food even if it be "in the
interest of public health". This too lends support to their contention
Learned counsel for the state of Maharashta and the learned Advocate
General for the state of Goa relied on the judgments of this Court in
F Pukhraj Jain v. Padma Kashyap and Anr. 4 and Jivendra Nath Kaul v.
Collector/District Magistrate and Anr. 5 to contend that the expression "for
the time being" would suggest the time period for which the order is in
force and not necessarily the transient nature of the order. Even if this be

G [2003) 3 sec 57 at paragraphs 18-20.

2. (1980) 2 SCR at p. 277.

3. [19841 4 sec 450.

4. [1990) 2 sec 43 I.

H 5. [19921 3 sec 576.
GODAWAT PAN MASALA PRODUCTS 1.P. LTD. v. U.0.1. [SR!KRISHNA, J.] 267

correct, the fact still remains that the state authority has no power to make A
an order of prohibition, either of a permanent nature or enduring for such
a Jong time as to be deemed to be permanent.

Contemporanea expositio :

The appellants point out that, despite the amendment having been B
made in the year 1964, even the state of Maharashtra kept on corresponding
with the Central Government to suggest that it was necessary to carry out
an amendment in the Jaw to enable it to permanently ban the article
concerned. Reliance is placed on pp. 152-154, Vol. II of S.L.P. No. 834
of 2003, the annexure to the counter affidavit filed by F.K. Pandey on C
behalfofthe Government of India, Particular reference is made to the letter
dated I st August, 1997 from the Commissioner, Food and Drug
Administration and Food (Health) Authority to the Secretary, Medical
Education and Drug Department, Mumbai about the ill-effects of gutka and
requesting the state Government to amend the Maharashtra Prevention of D
Food Adulteration Rules and also to make a request to the Central
Government to amend the Prevention of Food Adulteration Act so as to
enable the State of Maharashtra to exercise the powers of a permanent ban.
While this may not be really conclusive, it certainly indicates the manner
of the state authority viewing its powers and the rules under which it was
exercising the power. The court can certainly take into account this E
situation on the doctrine of Contemporanea expositio.

It is significant that, while dealing with the powers of food inspector
under Section I 0( I)( c) of the Act, the Act provides that a food inspector
shall have power, with the previous approval of the Local (Health) F
Authority having jurisdiction in the local area concerned, or with the
previous approval o(the Food (Health) Authority, to prohibit the sale of
any article of food in the interest of public health. Secondly, this clause
does not inClude the phrase "for the time being". If the arguments of the
learned counsel for the state Governments were to prevail, then this G
provision would give to the food inspector, a lower authority in the
hierarchy, an extraordinary power of banning permanently- which power
can only be the result of a policy decision to be taken at the highest level
of the state Government. In our view, it is not possible to interpret these
clauses disparately or disjunctively. Clause (iv) of Section 7 and clause (c) H
268 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A of sub-section(!) of Section 10 of the Act and their interplay unmistakably
suggest that the power conferred oh the Food (Health) Authority and the
food inspector, being derived from the Rules made in exercise of the
powers exercised under Section 24 of the Act are necessarily subservienf
to the powers derivable from the rules made under Section 23 of the Act.
B Hence, neither the Food (Health) Authority, nor the food inspector can be
said to have such power which could be available to the Central Government
by prescription of a rule in exercise of power under Section 23(1A)(f).

Reliance was placed by the respondents on the decision of a learned
Single Judge in Gandhi Irwin Salt Manufacturers Association v. The
C Government of Tamil Nadu 6• Having perused the judgment, we are unable
to approve of it. We notice that neither the interplay between Sections 23
and 24, nor the question as to whether Section 24 can be the source of
power, is discussed or decided therein.

D Conflict with Central Act 34 of 2003 :
Mr. Nariman, learned counsel appeared for the appellants in the
appeals arising out of SLP Nos. 23635 of 2002 and 533 of 2003, attacked
the judgment of the Bombay High Court from a different perspective. He
contends that the Cigarettes and Other Tobacco Products (Prohibition of
E Advertisement and Regulation of Trade .and Commerce, Production,
Supply and Distribution) Act, 2003, (Act 34 of 2003), referable to entry
52, List I and entry 18, List III to the Seventh Schedule of the Constitution
oflndia, now occupies the entire field in relation to tobacco. The preamble
to the Act 34 of 2003 reads as under :
F
"An Act to prohibit the advertisement of, and to provide for the
regulation of trade and commerce in, and production, supply and
distribution of, cigarettes and other tobacco products and for
matters connected therewith to incidental thereto".

G The Statement of Objects and Reasons accompanying the Bill reads
as under :

"I. Tobacco is universally regarded as one of the major public

H 6. AIR (1996) Madras !09.
GODAWAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 269

health hazards and is responsible directly or indirectly for an A
estimated eight lakh deaths annually in the country. It has also
been found that treatment of tobacco related diseases and the loss
of productivity caused therein cost the country almost Rs. 13,500
crore annually, which more than offsets all the benefits accruing
in the form of revenue and employment generated by tobacco B
industry. The need for a comprehensive legislation to prohibit
advertising and regulation of production, supply and distribution
of cigarettes and tobacco products was recommended by the
Parliamentary Committee on Subordinate Legislation (Tenth Lok
Sabha) and a number of points suggested by the Committee on
Subordinate Legislation have been incorporated in the Bill. C
2. The proposed Bill seeks to put total ban on advertising of
cigarettes and other tobacco products and to prohibit sponsorship
of sports and cultural events either directly or indirectly as well
as sale of tobacco products to minors. It also proposes to make D
rules for the purpose of prescribing the contents ofthe specified
warnings, the languages in which they are to be displayed, as well
as displaying the quantities of nicotine and tar contents of these
products. For the effective implementation of the proposed
legislation, provisions have been proposed for compounding E
minor offences and making punishments for offences by companies
more stringent. The objective of the proposed enactment is to
reduce the exposure of people to tobacco smoke (passive smoking)
and to prevent the sale of tobacco products to minors and to
protect them from be.coming victims of misleading advertisements. F
This will result in a healthier life style and the protection of the
right to life enshrined in the Constitution. The proposed legislation
further seeks to implement Article 4 7 of the Constitution which,
inter alia, requires the State to endeavour to improve public health
of the people.
G
3. The Bill seeks to achieve the aforesaid objects."

The aforesaid internal evidence in the statute, by reason of the
preamble, and the external .evidence in the Statement of Objects and
Reasons, indicate that Parliament has evinced its intention to bring out a H
270 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A comprehensive enactment to deal with tobacco and tobacco products.
However, the provisions of the statute do not suggest that Parliament had
considered it to be expedient to ban tobacco or tobacco products in public
interest or to protect public health. Act 34 of 2003 passed by Parliament
does not totally ban the manufacture of tobacco or tobacco products.
B Section 6 merely prohibits sale of cigarettes and tobacco products to a
person under the age of eighteen years. There are stringent provisions made
in the Act containing the prohibition of advertisement of cigarettes and
tobacco products. Section 3(p) defines the expression "tobacco products"
as the products specified in the Schedule. Entry 8 of the Schedule to the
C Act reads "pan masala or any chewing material having tobacco as one of
its ingredients (by whatever name called)." Thus, pan masala or any
chewing material having tobacco is also one of the products in respect of
which the Act could have imposed total prohibition, if Parliament was so
minded. On the other hand, there is only conditional prohibition of these
products against sale to persons under eighteen years of age.
D
Against this backdrop of Act 34 of 2003, learned counsel contended
that inasmuch as Act 34 of 2003 occupies the whole field of tobacco and
tobacco products and does not completely ban the sale of 'tobacco
products' except to under aged persons, while the impugned notification
E expressly bans manufacture or sale to any person of the very same product
(viz. pan masala and gutka), there is legislative repugnancy which calls for
resolution. Reliance was placed on the judgment of this Court in Deep
Chand v. The State of UP. and Ors. 7 wherein this Court considered the
constitutional validity of a state enactment. This Court's earlier judgment
in Ch. Tika Ramji & Ors. v. The State of U.P. & Ors. 8 and Zaverbhai
F Amaidas v. The State ofBombay9 were approved and the test ofrepugnancy
was formulated thus :

"Repugnancy between two statutes may thus be ascertained on the
basis of the following three principles :

G (I) Whether there is direct conflict between the two provisions;

7. [19.'l9] Supp. 2 SCR

8. [ 1956] SCR 393

H 9. [1955] 1 SCR 799
GODA WAT PAN MASALA PRODUCTS I.P. LID. v. U.0.1. [SRIKRISHNA, J.] /.71

(2) Whether Parliament intended to lay down an exhaustive code A
in respect of the subject matter replacing the Act of the State
Legislature; and

(3) Whether the law made by Parliament and the law made by
the State Legislature occupy the same filed."
B
Learned counsel contended that when two legislations referable to the
same legislative authority are inconsistent with each other, then the later
enactment is deemed to have impliedly repealed the previous one and
referred to the observations of this Court in State of Orissa v. MA. Tulloch
and Co. w.
c
"The entire theory underlying implied repeals is that there is no
need for the later enactment to state in express terms that an earlier
enactment has been repealed by using any particular set of words
or form of drafting but that if the legislative intent to supersede
the earlier law in manifested by the enactment of the provisions D
as to effect such supersession, then there is in law a repeal
notwithstanding the absence of the word 'repeal' in the later
statute. Now, if the legislative intent to supersede the earlier law
is the basis upon which the doctrine of implied repeal is founded
could there be any incongruity in attributing to the later legislation E
the same intent which s.6 presumes where the word 'repeal' is
expressly used. So far as statutory construction is concerned, it is
one of the cardinal principles of the law that there is no distinction
or difference between an express provision and a provision which
is necessarily implied, for it is only the form that differs in the
two cases and there is no difference in intention or in substance." F

The learned counsel relied on Vijay Kumar Sharma & Ors. v. State
of Karnataka and Ors. 11 • The observation of this Court in the majority
judgment of this Court is that if the later legislation is on the same subject
and the legislative intent is to occupy the whole field, then the later G
legislation prevails.

It is submitted that a reading of the Act 34 of 2003 clearly suggests

10. [1964] 4 SCR 461 at page 483.

11. [1990] 2 sec 562 at page 585. H
272 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.
A that it is a special law intended to deal with tobacco and its product. The
Prevention of Food Adulteration Act, 1954 is a general law dealing with
adulteration of food articles and a tobacco product is incidentally referred
to in the said law in the context of prevention of adulteration. In case of
conflict between a special law and a general law, even if both are enacted
B by the same legislative authority, the special law must displace the general
law to the extent of inconsistency. The operation of the maxim generalia
specialibus non deorgant has been approved and applied by this Court in
such situations. (See in this connection : U.P. State Electricity Board and
Ors. v. Hari Shanker Jain & 01'5. 12, Gujarat State Cooperative Land
Development Bank Ltd. v. P.R. Manded and Ors. 13, The LIC of India v.
C D.J Bahadur & Ors. 14, Jain Ink Manufacturing Co. v. LIC of India &
Anr. 15, Prof Sumer Chand v. Union of India and Ors. 16, and Allahabad
Bank v. Canara Bank & Anr. 17)

Respondents contend that inasmuch as Act 34 of2003, though passed
D by Parliament, and assented to by the President, is not brought into force
by the Central Government by notification, the question of conflict with
the provisions of the Act does not arise. We need not consider this
contention since Act 34 of 2003 has now been bought into force w.e.f.
!st May, 2004. In any event, as pointed out in Pt. Rishikesh and Another
E v. Sa/ma Begum 18 · there is distinction between "making law" and
"cqmmencement of the operation of an Act" and a situation of conflict can
arise even when a law has been made and not brought into force.

Articles 14 and 19 of the Constitution of India :

F Mr. Shanti Bhushan, learned counsel for the appellant in SLP No.
2186 of2003, urged that the said appellant manufactures Rajnigandha pan

12. [1979] I SCR 355 at p. 364.

13. (1979] 2 SCR 1023 at p, 1034.

G 14. [1981] I SCR 1083 at p. 1127.
15. [1918] SCR 498 at 504.

16. f1994J 1 sec 64 at pp. 68, 69.

17. 120001 4 sec 406 at pp. 426, 427.

H 18. [1995] 4 sec 11s
•
GODA WAT PAN MASALA PRODUCTS LP.LTD. v. U.0.1. [SRIKRISHNA, J.] 273

masala which contains no tobacco. Though there might be arecanut in it, A
there is no trace of magnesium carbonate in the product. Assuming that
traces of magnesium carbonate were to be formed during consumption of
t~e product along with lime, the exercise of power should have been
~estricted to banning pan masala containing magnesium carbonate and not
wholesale banning of pan masala, irrespective of the content of magnesium B
carbonate.
,, The learned counse 1 contended that the order made under
Section 7(iv) of the Act is bad for it is an unreasonable and excessive
restriction on the Fundamental Right to carry on trade or business
guaranteed under Article 19(1)(g) of the Constitution oflndia. The learned
co~nsel highlighted the unreasonableness by reference to the provisions of C
the Act and the Rules and the specific situation contemplated in Appendix
B at Paragraph A.25.02.0 l, which gives the definition and standards of
quality with reference to chewing gum and bubble gum, for which
magnesium carbonate, inter alia, is a permitted ingredient. He therefore
contends that magnesium carbonate is not per se injurious to health for
otherwise it would never have been permitted in any article of food. There D
is no material on the basis of which it can be demonstrated that the very
same magnesium carbonate would become injurious to health if it arises
on account of mixing of traces of magnesium in arecanut and carbonate
in lime. According to the learned counsel, this is a clear case of non-
application of mind, notwithstanding the medical research papers and data E
made available in the affidavit filed by the State Government.

We are unable to discern as to how the very same magnesium
carbonate would become injurious as a result of combined chewing of
arecanut and lime, particularly when it is not the case of the state
Government that Rajnigandha pan masala itself contains magnesium F
carbonate. It is permissible under Article 19(6) to impose a reasonable
restriction "in the interest of general public". Assuming that such a
restriction can be imposed, even if by legislation intended to prohibit
manufacture, sale or storage of articles harmful or injurious to health, the
restriction has to be commensurate with the danger posed. On a conspectus G
of the facts, we are unable to uphold the prohibition imposed by the
impugned notification as a restriction which can pass the test of
reasonableness under Article 19(6) of the Constitution of India for two
reasons. First, there is no demonstrated danger to the public health by
magnesium carbonate by consumption ofRajnigandha pan masala; secondly, H
274 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A even ifthere were, the prohibition could only have extended to pan masala
containing magnesium carbonate and could not be wider than that.

Learned counsel for the appellants urge that if Section 7(iv) is
construed in the manner as contended by the State, then it would become
B unconstitutional. It is contended that if Section 7(iv) is construed as giving
the authority to ban articles of food, even though not adulterated, then the
sweep of the section would go out of entry 18 of List III of the Constitution
of India. ("adulteration of foodstuffs and other goods") and intrude into
the domain of entry 6 of List II ("public health and sa!litation; hospitals
and dispensaries") which is the exclusive domain of the state Government.
C If the court were to read Section 7(iv) in the manner suggested by the
States, then it would be ultra vires the legislative competence of Parliament.
It is the duty of the court to attempt to read every legislation in such manner
as to uphold its constitutional validity. The learned counsel contend that
in order to uphold the legislative competence of the provisions of the Act,
D the sweep of Section 7(iv) must be confined to the domain of 'adulteration
of food stuffs and other articles' without entering into the domain of
"public health". Reading down the statute in order to upheld its constitutional
validity is a device well known to the constitutional courts. (See in this
connection State of Karnataka and Anr. v. Shri Ranganatha Reddy &
E Anr. 19, B.R. Enterprises and Ors. v. State of UP. and Ors. 20 and State of
UP. v. National Thermal Power Corpn. Ltd. and Ors. 21 ).

Mr. Lalit, learned counsel for the States, however, supported the
findings of the division bench of the Bombay High Comt that the
constitutional validity of Section 7(iv) was never in danger as it could be
F supported on the doctrine of pith and substance. He contends that in pith
and substance the Prevention of Food Adulteration Act, 1954 deals with
the subject ofadulteration, though, incidentally, by reason of Section 7(iv)
it may make an incursion into the domain of "public health" which is the
exclusive province of the State legislature. This contention appears to have
G been accepted by the impugned judgment of the High Court of Bombay.
Jn fact, the High Court goes to the extent of saying that the power of the
Food (Health) Authority under Section 7(iv) is much wider than the power

19. (1978] 1 SCR 641 at pp. 662, 663.
20. [1999] 9 sec 100 at p. 766.
H 21. 120021 s sec 203 at para 31.
GODA WAT PAN MASALA PRODUCTS LP. LTD. v. U.O.l. [SRIKRISHNA, J.] 275

of the Central Government under the Rules made under Section 23(1A)(f) A
on the reasoning that while the power of the Central Government under
a rule made under Section 23(1A)(f) extends of the prohibition of the sale
of "any substance which may be injurious to health when used as food or
as an ingredient in the manufacture of any article of food" there is no such
restriction under Section 7(iv) which is posited as an independent source B
of power. It is urged that by exercise of the power invested in the Food
(Health) Authority under clause (iv) of Section 7, any article, irrespective
of whether it is used as food or as an ingredient in the manufacture of any
article of food, may be prohibited as long as the prohibition is "in the
interest of public health".
c
We find it difficult to agreed with the submissions of Mr. Lal it. That
all provisions of a statute have to be read harmoniously and any interpretation
as to be ex visceribus actus, is a trite doctrine of construction of statute.
Undoubtedly, if Section 7(iv) is read in isolation, it gives the impression
that this is an independent source of power, not subject to any limitation D
other than the guideline "in the interest of public health". But, when the
scheme of the Prevention ofFood Adulteration Act is analysed in the light
of its preamble and the Statement of Objects and Reasons, it becomes clear
that there is no independent source of power under Section 7(iv). Had it
been so, there was no need need for the rule making power of the State
Government under Section 24(2)(a) to define the powers anc! duties of the E
Food (Health) Authority or local authority and Local (Health) Authority
under the Act. The interplay of sections 23(1A)(f) and 24(2)(a) read with
the existing rules in the different states, even after the amendment of
Section 7(iv) by the Act 49of1964, leads us to conclude that the contention
of the states in this regard cannot be accepted. F
Learned counsel for the appellants contend that the impugned
notification is violative of the fundamental rights guaranteed under Article
19(1 )(g) as it is excessively restrictive in nature. While the notification
seeks to' ban pan masala which does not include tobacco, it does not at the
same time ban tobacco in any form. The literature produced by the State G
of Maharashtra before the High Court suggested, undoubtedly, that
consumption of tobacco in any form was injurious to health, but that
consumption of pan masala was likely to be addictive and lead to hyper-
mag.nesia. Strangely, the States did not ban chewing tobacco or other
tobacco products which contain almost cent per cent tobacco, but they H
276 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A banned the sale of gutka which contains only about 6 per cent of tobacco
and pan masala, which contains no tobacco whatsoever, even accepting on
the correctness of the material presented. Further, the literature produced
by the State indicates that pan masala is addictive amongst children and,
therefore, likely to be injurious to their health in ti1e long run. Assuming
B this to be true, the restriction could only have been on sale to under-aged
persons and not by way of a total ban. Thus, in our view, the impugned
notification is violative of the fundamental right of the appellants guaranteed
under Article 19(1 )(g), both because it is unreasonable and also because
it is excessive in nature. A contrast with the provisions of the Act 34 of
C 2003 in this regard would drive home the point.
While dealing with the nature of a reasonable restnct1on on the
fundamental rights under Article 19( I )(g), this Court observed in Mohd.
Faruk v. State of Madhya Pradesh and Ors. 22 as under :

D "The impugned notification, though technically within the
competence of the State of Government, directly infringes the
fundamental right of the petitioner guaranteed by Art. 19( I )(g),
and may be upheld only if it be established that it seeks to impose
reasonable restrictions in the interest of the general public and a
less drastic restriction will not ensure the interest of the general
E public. The Court must in considering the validity of the impugned
law imposing a prohibition on the carrying on of a business or
profession, attempt an evaluation of its direct and immediate
impact upon the fundamental rights of the citizens affected
thereby and the larger public interest sought to be ensured in the
F light of the object sought to be achieved, the necessity to restrict
the citizen's freedom, the inherent pernicious nature of the act
prohibited or its capacity or tenancy to be harmful to be general
public, the possibility of achieving the object by imposing a less
drastic restraint, and in the absence of exceptional situations such
G as the prevalence of a state of emergency - natural or local - or
the necessity to maintain essential supplies, or the necessity to stop
activities inherently dangerous, the existence of a machinery to
satisfy the administrative authority that no case for imposing the
restriction is made out or that a less drastic restriction may ensure
H 22. [1970] I SCR 156 at p. 161.
GODA WAT PAN MASALA PRODUCTS I.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 277

the object intended to be achieved." A
The impugned notification fails on this test of reasonable restriction.

Res extra commercium :

Appellants next contend that the assumption of the High Court that B
pan masala or gutka is res extra commercium is wholly incorrect.

The concept of res extra commercium was expounded in the
Constitutional Bench of this Court in Khoday Distilleries Ltd. and Ors. v.
State of Karnataka and Ors. 23 thus : C
"58. We also do not see any merit in the argument that there are
more harmful substances like tobacco, the consumption of which
is not prohibited and hence there is no justification for prohibiting
the business in potable alcohol. What articles and goods should
be allowed to be produced, possessed, sold and consumed is to D
be left to the judgment of the legislative and the executive
wisdom. Things which are not considered harmful today, may be
considered so tomorrow in the light of the fresh medical evidence.
It requires research and education to convince the society of the
harmful effects of the products before a consensus is reached to E
ban its consumption. Alcohol has since long been known all over
the would to have had harmful effects on the health of the
individual and the welfare of the society. Even long before the
Constitution was framed, it was one of the major items on the
agenda of the society to ban or at least to regulate, its consumption. F
That is why it found place in Article 4 7 of the Constitution. It is
only in recent years that medical research has brought to the fore
the fatal link between smoking and consumption of tobacco and
cancer, cardiac diseases and deterioration and tuberculosis. There
is a sizeable movement all over the world including in this country G
to educate people about the dangerous effect of tobacco on
individual's health. The society may, in course ohime, think of
prohibiting its production and consumption as in the case of
alcohol. There may be more such dangerous products, the harmful

23. [1995] I SCC 574 at paras 58 & 60(b). H
278 SUPREME COURT REPORTS [2004) SUPP. 3 S.C.R.

A effects of which are today unknown. But merely because their
production and consumption is not today banned, does not mean
that products like alcohol which are proved hannful, should not
be banned.

B
60(b ). The right to practise any profession or to carry on any
occupation, trade or business does not extend to practising a
profession or carrying on an occupation, trade or business which
is inherently vicious and pernicious, and is condemned by all
C civilised societies. It does not entitle citizens to carry on trade or
business in activities which are immoral and criminal and in
articles or goods which are obnoxious and injurious to health,
safety and welfare of the general public, i.e., res extra commercium,
(outside commerce). There cannot be business in crime."

D Is the consumption of pan masala or gutka (containing tobacco), or
for that matter tobacco itself, considerecl so inherently or viciously
dangerous to health, and, if so, is there any legislative policy to totally ban
its use in the country? In the face of Act 34 of 2003, the answer must be
in the negative. It is difficult to accept the contention that the substance
E banned by the impugned notification is treated as res extra commercium.
In the first place, the gamut of legislation enacted in this country which
deals with tobacco does not suggest that Parliament has ever treated it as
an article res extra commercium, nor has Parliament attempted to ban its
use absolutely. The Industries (Development and Regulations) Act, 1951
F merely imposed licensing regulation on tobacco products under item 38(1)
of the First Schedule. The Central Sales Tax Act, 1956 in Section 14(ix)
prescribes the rates for Central Sales Tax. Additional Duties of Excise
(Goods of Special Importance) Act, 1957 prescribes the additional duty
leviable on tobacco produces. The Tobacco Board Act, 1975 established
a Tobacco Board for development of tobacco industries in the country.
G Even the latest Act, i.e. the Cigarettes and Other Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and Commerce,
Production, Supply and Distribution) Act, 2003, does not ban the sale of
tobacco products listed in the Schedule except to minors. Further, we find
that in the tariff schedule of the Central Sales Tax Act, there are several
H entries which deal with tobacco and also pan masala. In the face of these
GODAWATPAN MASALA PRODUCTS I.P. LTD. v. U.O.I. [SRIKRISHNA, J.] 279

legislative measures seeking to levy restrictions and control the manufacture A
and sale of tobacco and its allied products as well as pan masala, it is not
possible to accept that the article itself has been treated as res extra
commercium. The legislative policy, if any, seems to be to the contrary.
In any event, whether an article is to be prohibited as res extra commercium
is a matter or legislative policy and must arise out of an Act of legislature B
and not by a mere notification issued by an executive authority.

Need to read down :

There is also merit in the contentiori of the appellants that if the
provisions of Section 7(iv) of the Act are not read down as conferring C
powers on the authority to deal with an emergent situation, the section
would be conferring arbitrary powers on the authority and would be
procedurally unfair. This is particularly so in the face of the statutory
provision under which licences have already been granted to the
manufactures of pan masala and gutka for manufacture of the articles. D
There is already a provision in the statutory scheme for cancellation and
suspension of a licence. Without going through such procedure, the power
in the state authority to suddenly bring out the result of cancellation or
suspension of.the licence, without procedural safeguards, words certainly
be arbitrary and liable to be hit by Article 14 of the Constitution of India.
For this reason also, the power under Section 7(iv) needs to be read down E
as conferring powers on the authority only to deal with an emergent
situation.

There has been some argument at the Bar as to whether the impugned
notification is the result of an executive act or a legislative act. We have p
already indicated that, in our view, Section 7(iv) is not independent source
of power. The notification can only be issued by the authority the source
of whose power must be located elsewhere. Section 7(iv) merely indicates
the consequence which would flow if a valid notification is issued. It is,
therefore, not necessary for us to go into the niceties between an executive G
and a legislative act.

Mr. Anil Divan, learned counsel appearing for one of the appellants,
pointed out that the Central Sales Tax Act by Section 14(ix) recognises
gutka as a legitimate article of interstate trade or interstate sale. So is pan
masala recognised as such a legitimate article of interstate sale. The learned H
280 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A counsel relied on Mis. Dwarka Prasad Laxmi Narain v. The State of U.P.
and Ors. 24 to contend that a law or order which confers arbitrary or
uncontrolled power on the executive in the matter of regulating trade or
commerce in normally available commodities must be held to be
unreasonable. (See also in this connection the observations of this Court
B in B.B. Rajwanshi v. State of U.P. and Ors. 15 ).
Learned counsel highlighted the observations of this Court in Maneka
Gandhi v. Union of India 16 and contended that irrespective of whether the
power to issue the impugned notification is a legislative power or an
executive power, it must pass the test of fairness in procedure. Any
C provision of law which enables to an authority by a notification to bring
to standstill a business, which is otherwise permitted by law, must be held
to be arbitrary, unfair and an abridgment of the fundamental rights
guaranteed under Article 14 of the Constitution. (See also in this connection
Kanti Lal Babula/ v. HC. Patef21, Ajay Hasia and Ors. v. Khalid .Mujib
D Sehravardi and Ors. 28 and Delhi Transport Corporation v. D. T. C. Mazdoor
Congress and Ors.19)

It is in the light of these authorities that we are required to adjudge
the constitutionality of the interpretation put on Section 7(iv).

E Learned counsel for the States, however, urge that the impugned
notification is a legislative act and not an administrative act. Thus,
according to them, there is no question of giving a hearing before taking
a policy decision to ban the manufacture for sale, storage, sale and
distribution of pan masala and gutka.
F
We are unable to accept the contention of the State. In our view, the
scheme of the Act suggests that a decision to ban an article injurious to
health, when used as food or as an ingredient in the manufacture of any

24. [1954) SCR 803.
G
25. [1988) 2 sec 413 at para 11.
26. [1978) I SCC 248 at para 7, 8.

27. [1968] 1 SCR 735 at pp. 739-740.
28. [1981) 1 sec 122.

H 29. [1991) Supp. 1 SCC 500 at para 202.
GODAWAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 281

article of food, can only be the result of broader policy. Hence, this larger A
power appears to have been located only in the Central Government under
Section 23(1A)(f) and no.tin the state Food (Health) Authority. As we have
already pointed out, the power of the state Food (Health) Authority is only
transitory in nature and designed. to deal with local emergencies. In our
considered view, the impugned notification is certainly an administrative B
act and not a legislative act. Inasmuch as by an executive act the
manufacture of sale, storage, sale or distribution of the concerned article
has been banned so as to interfere with the fundamental rights of the
appellants guaranteed under Articles 14 and 19 of the Constitution oflndia,
the impugned notification is illegal and unconstitutional.
c
We are unable to accept that the words "in the interest of public
health" used in clause (iv) of Section 7 of the Act can operate as an
incantation or mantra to get over all the constitutional difficulties posited.
In any event, the collocation of the words in the statutory scheme suggests
not a matter of policy, but a matter of implementation of policy. For this D
reason also, we are of the view that the impugned notification must fail.

The learned Advocate General for the State of Goa contended that
in the State of Goa, apart form the impugned notification dated 24 January,
2003, there is a subsequent notification dated 7th April, 2003 which is not
impugned by the appellants. Reliance is placed on a judgment of the E
division bench of the Bombay High Court in Vaman Raghunath .Fallary
& Sons and Ors. v. State of Goa and Ors. 30 The division bench in the said
decision seems to have been overwhelmed by the material produced with
regard to the hazardous nature of pan masala with tobacco and taken the
view that the State Government was justified in taking a decision to ban F
tobacco products within the realm of such policy decision. The division
bench has not addressed itself to any of the sections of the Act which decide
the powers. The learned Advocate General for the State for Goa contends
that matters of public health are essentially matters of policy decision,
legislative or administrative, planned and executed in the greater interest G
of public health by the Government and the court should not interfere with
such policy matters. He relied on the observations of P.N Krishna Lal and
Ors. v. Govt. of Kera/a and Anr. 31 wherein this Court said:

30. W.P. No. 131 of [2003] decided on 3.6.2003 per Rebello and Hardas, JJ.
31. [1995] Supp. 2 sec 187 H
282 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A "24. The raison d'etre of the State being the welfare of the
members of the society, the whole purpose of the creation of the
State would be to maintain order, health and morality by suitable
legislation and proper administration. The State has the power to
prohibit trade or business which are illegal, immoral or injurious
to the health and welfare of people. No one has the right to carry
B
on any trade or occupation or business which is inherently vicious
and pernicious and is condemned by all civilized societies.
Equally no one could claim entitlement to carry on any trade or
business or any activities which are criminal and immoral or in
any articles of goods which are obnoxious and injurious to the
c safety and health of general public. There is no inherent right in
crime. Prohibition of trade of business of noxious or dangerous
substances or goods by law is in the interest of society welfare."

There is a plethora of legislation dealing with tobacco products, gutka
D and pan masala and the fact that licences have been issued to the appellants
to manufacture the concerned articles, which does not lead to the conclusion
that the trade or business in the concerned articles is an activity which is
"criminal in propensity, immoral, obnoxious, injurious to the health of
general public" or that the ban is a result of 'public expediency and public
E morality'.

Is it food?

Mr. Nagaraja, learned counsel appearing for the petitioners in writ
F petition No. 173 of 2003, raised a further contention that pan masala or
gutka which is the subject matter of the impugned notification does not
amount to food within the meaning of its definition in Section 2(v) of the
Act. Section 2(v) of the Act read as under :

"2. (v) "food" means any article used as food or drink for human
G consumption other than drugs and water and includes-

(a) any article which ordinarily enters into, or is used in the
composition or preparation of, human food,

H (b) any flavouring matter or condiments, and

,I
GODAWATPAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 283

(c) any other article which the Central Government may, having A
regard to its use, nature, substance or quality, declare, by notification
in the Official Gazette, as food for the purposes of this Act."

- In his submission, the expression "food" as defined in the Lexicon
could only be "a substance taken into the body to maintain life and B
growth". No one in his right mind would consider that pan masala or gutka
would be consumed for maintenance and development of health of human
being. In P.K. Tejani v. MR. Dange32 , this Court held that the word "food"
is a very general tenns and applies to all that is eaten by men for
nourishment and takes in also subsidiaries. Since pan masala, gutka or
supari are eaten for taste and nourishment, they are all food within the C
meaning of Section 2(v) of the Act.

The learned counsel relied on a judgment of a division bench of this
Court in C.A. No. 12746-12747 ofl996 (decided on 6th November, 2003).
In our view, this judgment is of no aid to us. In the first place, this judgment D
arises under the provisions of the Essential Commodities Act, 1955, read
with the Tamil Nadu Scheduled Articles (Prescription of Standards) Order,
1977 and the notification dated 9th June, 197&, issued by the Central
Government which laid down certain specifications "in relation to
foodstuffs". The question that arose before the Court was whether tea is E
'foodstuff' within the meaning of the said legislation. The division bench
of this Court came to the conclusion that 'tea' is not food as it is not
understood as 'food' or 'foodstuff' either in common parlance or by the
opinion of lexicographers. We are unable to derive much help from this
judgment for the reason that we are not concerned with tea. It is not
possible to extrapolate the reasoning of this judgment pertaining to tea into F
the realm of pan masala and gutka. In any event, the judgment in Tejani
(supra) was judgment of the Constitutional Bench which does not seem to
have been noticed.

We are, therefore, unable to agree with the contention that pan masala G
or gutka does not amount to "food" within the meaning of definition in
Section 2(v) of the Act. However, do not rest our decision solely on this
issue.

32. AIR (I 974) SC 228, a case arising under the Prevention of Food Adulteration Act, H
1954.
284 SUPREME COURT REPORTS (2004] SUPP. 3 S.C.R.

A Paradoxical consequence :
There is another reason why we are inclined to take the view that
Section ?(iv) deals with a situation of emergency with respect to the local
area. A decision for banning an article of food or an article containing any
B ingredient of food injurious to health can only arise as a result of broadly
considered policy. If such a power be conceded in favour of a local
authority like the Food (Health) Authority, paradoxical results would arise.
The same article could be considered injurious to public health in one local
area, but not so in another. In our view, the construction of the provision
of the statute must not be such as to result in such absurd or paradoxical
C consequences. Hence, for this reason also, we are of the view that the power
of the State (Health) Authority is a limited power to be exercised locally
for temporary duration.

Width of power :

D The learned counsel for the state of Maharashtra contended that the
power of the Food (Health) Authority discernible in clause (iv) of Section
7 of the Act is an independent power and much wider than the power of
the Central Government under Section 23 of the Act. He contended that
while the power of the Central Government discernible from Section
E 23(1A)(f) is restricted only to prohibiting the manufacture or sale of articles
of food or ingredients of food, the power of the state Food (Health)
Authority is much wider and could extend even to articles which may not
amount to food or ingredients of food, or even if they are not injurious to
health, as long as the test of "in the interest of public health" is satisfied.
F In our view, this is an argument of desperation. We cannot conceive
of such wide ranging vested in a local authority without there being
sufficient guidelines as to the manner of deciding the policy and
implementing it and elucidated in the statute itself. We may hasten to point
out that even the power of Central Government for making the rules under
G Section 23 is subject to the condition of consultation \vith the Central
Committee for food standards constituted under Section 23 and placing of
the rules Parliament. If the power of the Food (Health) Authority is such
as contended by the learned counsel for the state of Mahrashtra, then its
power would range sky high without any limitation whatsoever. The
H authority could ban any article, irrespective of whether it is used as food
GODAWAT PAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRIKRISHNA, J.] 285

or otherwise, and irrespective of whether it is injurious to health or A
otherwise. To take an extreme illustration, if a state Food (Health)
Authority in some local area were taken it into its head that consumption
of tea, coffee our milk is not 'in the interest of public health', it can issue
an order of absolute prohibition irrespective of whether it is injurious to
health or not. We do not think that the scheme of the Act warrants such B
an interpretation.

A reference of this Court's judgment in Dineshchandra Jamnadas
Gandhi v. State ofGujarat3 3 vide paras 16 and 17 makes it clear that the
object and the purpose of the Prevention of Food Adulteration Act, 1954
is to eliminate .the danger to human life from the sale of unwholesome C
articles of food. This Court held that the legislation of 'Adulteration of
Food Stuffs and other Goods' (entry 18 List III of the Seventh Schedule)
is enacted to curb the widespread evil of food adulteration and is a
legislative measure for social defence. This court indicated the object of
the Prevention ofFood Adulteration Act, 1954, its constitutional basis and D
its purpose in the following observations :

"16. The object and the purpose of the Act are to eliminate the
danger to human life from the sale of unwholesome articles of
food. The legislation is on the topic 'Adulteration of Food Stuffs
and other Goods'( entry 18 List III Seventh Scheme). It is enacted E
to curb the widespread evil of food adulteration and is a legislative
measure for social defence. It is intended to suppress a social and
economic mischief - an evil which attempts to poison, for
monetary gains, the very sources of sustenance of life and the
well-being of the community. The evil of adulteration of food and F
its effects on the health of the community are assuming alarming
proportions. The offence of adulteration is a socio-economic
offence. In Municipal Corporation of Delhi v. Kacheroo Mal3 4
Sarkaria, J. said :

The Act has been enacted to curb and remedy the G
widespread evil of food adulteration, and to ensure the sale
of wholesome food to the people. It is well-settled that

33. ( 1989] 1 sec 420 at p. 426
34. (1976] I SCC 412 at p. 415, para 5 H
286 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A wherever possible, without unreasonable stretching or strain-
ing, the language of such a statute should be construed in
a manner which would suppress the mischief, advance the
remedy, promote its object, prevent its subtle evasion and
foil its artful circumvention.
(emphasis supplied)
B

18. The offences under the 'Act' are really acts prohibited by the
police powers of the State in the interests of public health and
well-being. The prohibition is backed by the sanction of a penalty.
c The offences are strict statutory offences. Intention or mental state
is irrelevant. Jn Goodfellow v. Johnson 35 referring to the nature
of offences under the Food and Drugs Act, 1955, it was said :

As is well known, Section 2 of the Food and Drugs
D Act, 1955, constitutes an absolute offence. If a person sells
to the prejudice of the purchaser any food, and that includes
drink, which is not of the nature or not of the substance or
not of the quality demanded by the purchaser he shall be
guilty of an offence. The forbidden act is the selling to the
prejudice of the purchaser."
E
These observations make it clear that the purpose of the Act, as its title
suggests, is to prevent adulteration of food. Any attempt to travel beyond
these parameters must necessary be looked at askance by the court.

F There is one more facet of the impugned notification which needs
consideration. Neither Section 7(iv) of the Act, nor any other provision of
the Act or the Rules indicates the manner in which an order of prohibition
is to be notified by the Food (Health) Authority. The manner of bringing
into force the Rules made by a delegate of legislative authority would be
G indicated in the Act itself. There is no indication in the Act as to how the
order made by the Food (Health) Authority would be brought into force.
This is a pointer to the fact that the orders made by the Food (Health)
Authority are only transitory and intended to deal with emergent local
situations.

H 35. (1965) I All ER 941, 944
GODAWATPAN MASALA PRODUCTS J.P. LTD. v. U.0.1. [SRJKRISHNA, J.] 287

Natural Justice : A
Learned counsel for the State of Maharashtra cited Union ofIndia and
Anr. v. Cynamide India Ltd. and Anr. 36 (vide para 7) where this Court
observed thus :

"The third observation we wish to make is, price fixation is more B
in the nature of a legislative activity than any other. It is true that,
with the proliferation of delegated legislation, there is a tendency
for the line between legislation and administration to vanish ir.to
an illusion. Administrative, quasi-judicial decisions tend to merge
in legislative activity and, conversely, legislative activity tends to C
fade into and present an appearance of an administrative or quasi-
judicial activity. Any attempt to draw a distinct line between
legislative and administrative functions, it has been said, is
'difficult in theory and impossible in practice'. Though difficult,
it is necessary that the line must sometimes be drawn as different D
legal rights and consequences may ensue. The distinction between
the two has usually been expressed as 'one between the general
and the particular'. 'A legislative act is the creation and
promulgation of a general rule of conduct without reference to
particular cases; an administrative act is the making and issue of E
a specific direction or the application of a general rule to a
particular case in accordance with the requirements of policy'.
'Legislation is the process of formulating a general rule of conduct
without reference to particular cases and usually operating in
future; administration is the process of performing particular acts,
of issuing particular orders or of making decisions which apply F
general rules to particular cases'. It has also been said: 'Rule-
making is normally directed toward the formulation ofrequirements
having a general application to all members ofa broadly identifiable
class' while, 'adjudication, on the other hand, applies to specific
individuals or situations'. But, this is only a broad distinction, not G
necessarily always true. Administration and administrative
adjudication may also be of general application and three may be
legislation of particular application only. That is not ruled out.
Again, adjudication determines past and present facts and declares
36. (I 987] 2 sec no H
288 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A rights and liabilities while legislation indicates the future course
of action. Adjudication is detenninative of the past and the present
while legislation is indicative of the future. The object of the rule,
the reach of its application, the rights and obligations arising out
of it, its intended effect on past, present and future events, its fonn,
the manner of its promulgation are some factors which may help
B
in drawing the line between legislative and non-legislative acts."

We are, however, unable to accept the contention of the learned
counsel for the State of Maharashtra that, because the notification is
generally intended, it is necessarily a legislative act and therefore there was
C no question of complying with principles of natural justice. If that were
so, then every executive act could masquerade as a legislative act and
escape the procedural mechanism of fair play and nature justice.

In State of Tamil Nadu v. K Sabanayagam and Anr. 31 (vide para 17),
D this Court after referring to the aforesaid observations of Chinnappa Reddy,
J. in Cynamide (supra), observed that even when exercising a legislative
function, the delegate may in a given case be required to consider the view
point which may be likely to be affected by the exercise of power. This
Court pointed out that conditional legislation can be broadly classified into
E three categories: (I) when the legislative has completed its task of enacting
a statute, the entire superstructure of the legislation is ready but its future
applicability to a given area is left to the subjective satisfaction of the
delegate (as in Tulsipur Sugar Co. case 38 ) (2) where the delegate has to
decide whether and under what circumstances a legislation which has
already come into force is to be partially withdrawn from operation in a
F given area or in given cases so as not to be applicable to a given class of
persons who are otherwise admittedly governed by the Act; (3) where the
exercise of conditional legislation would depend upon satisfaction of the
delegate on objective facts placed by one class of persons seeking benefit
of such an exercise with a view to deprive the rival class of persons who
G otherwise might have already got statutory benefits under the Act and who
are likely to lose the existing benefit because of exercise of such a power
by the delegate. This Court emphasis that in the third type of cases the
satisfaction of the delegate must necessarily be based on objective
37. [1998) 1 sec 318
H 38. [1980J 2 sec 295

,_
GODA WAT PAN MASALA PRODUCTS LP.LTD. v. U.0.1. [SRJKRISHNA, J.] 289

considerations and, irrespective of whether the exercise of such power is A
judicial or quasi-judicial function, still it has to be treated to be one which
requires objective consideration of relevant factual data pressed into
service by one side, which could be rebutted by the other side, who would
be adversely affected if such exercise of power is undertaken by the

~~- B
In our view, even if the impugned notification falls into the last of
the above category of cases, whatever the material the Food (Health)
Authority had, before taking a decision on articles in question, ought to
have been presented to the appellants who are likely to be affected by the
ban order. The principle of natural justice requires that they should have C
been given an opportunity of meeting such facts. This has not been done
in the present case. For this reason also, the notification is bad in law.

Conclusion :
D
As a result of the discussions, we are of the view that:

I. Section 7(iv) of the Act is not an independent source of power
for the state authority;

2. The source of power of the state Food (Health) Authority .is E
located only in the valid rules made in exercise of the power
under Section 24 of the Act by the State Government, to the
extent permitted thereunder;

3. The power of the Food (Health) Authority under the rules is only
of transitory nature and intended to deal with local emergencies
F
and can last only for short period while such emergency lasts;

4. The power of banning an article of food or an article used as
ingredient of food, on the ground that it is injurious to health,
belongs appropriately to the Central Government to be exercised G
in accordance with the rules made under Section 23 of the Act,
particularly, sub-section (IA)(t).

..
' 5. The st~te Food (Health) Authority has no power to prohibit the
manufacture for sale, storage, sale or distribution of any article,
H
290 SUPREME COURT REPORTS [2004] SUPP. 3 S.C.R.

A whether used as an article or adjunct thereto or not used as food.
Such a power can only arise as a result of wider policy decision
and emanate from Parliamentary legislation or, at least, by
exercise of the powers by the Central Government by framing
rules under Section 23 of the Act;

B 6. The provisions of the Cigarettes and Ot:1er Tobacco Products
(Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution) Act, 2003 are
directly in conflict with the provisions of Section 7(iv) of the
Prevention of Food Adulteration Act, 1954. The former Act is
c a special Act intended to deal with tobacco and tobacco pro<lucts
particuh;ily, while the latter enactment is a general enactment.
Thus, the Act 34 of2003 being a special Act, and oflater origin,
overrides the provisions of Section 7(iv) of the Prevention of
Food Adulteration Act, 1954 with regard to the power to
D prohibit the sale or manufacture of tobacco products which are
li:;ted in the Schedule to the Act 34 of 2003;

7. The impugned notifications are ultra vires the Act and, hence,
bad in law;

E 8. The impugned notifications are unconstitutional and void as
abridging the fundamental rights of appellants guaranteed under
Articles 14 and 19 of the Constitution.

In the result, we allow the appeals and the writ petition and set aside
F the impugned judgments of the division benches of the Bombay High
Court and Andhra Pradesh High Court and quash the notifications
impugned as bad in law, void, illegal and unenforceable against the
appellants/petitioners.

No order as to costs.

K.K.T. Appeals/Petition allowed.

...