The Calcutta High Court has noted that both the State and Central Governments earn huge revenues from the sale of tobacco products that are lawfully sold in this country.
A single-judge bench of Justice Rajasekhar Mantha allowed use of hookah in restaurants and bars in the State.
The office of the Commissioner of Police, Kolkata has handed over to the High Court a list of 17 cases registered against various members of the petitioners (National Restaurant Association of India and others) for violation of Section 20(2) of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003. The Central Government has framed rules thereunder.
The State Government has not framed any rules as on date. In the absence of any rules under the aforesaid statute neither the Kolkata Municipal Corporation nor the Bidhannagar Municipal Corporation can pass orders against use of hookahs in bars and restaurants having a valid licence. The said bars and restaurants are, however, required to strictly comply with the provisions of the COTP Act 2003, other applicable statutes and the rules framed thereunder, observed the High Court.
Further, the High Court observed that the issue of use of hookahs and the attempt to regulate the same, came to be considered by the Supreme Court in the case of Narinder S. Chadha and Ors. Vs. Municipal Corporation of Greater Mumbai and Ors. reported in (2014) 15 SCC 689 paragraphs 18 to 22.
Jaydip Kar, Senior Counsel for the petitioner, submitted that his clients are strictly complying with the rules and regulations of the aforesaid COTP Act 2003 and other applicable statues and rules. They only permit use of tobacco, nicotine and herbal products in the hookahs.
Since there is no law banning the use of tobacco, nicotine and herbal products in bars and restaurants, subject to the rules and regulations thereunder, neither the Kolkata Municipal Corporation nor the Bidhannagar Municipal Corporation can restrict the use of hookahs, held the High Court.
The High Court cannot ignore the fact that both the State and Central Government earn huge revenues from sale of tobacco products that are lawfully sold in this country.
“The question of separate trade license for promoting the use of hookahs for a restaurant or bar does not and cannot arise. Any direction contrary to the above, issued by the Kolkata Municipal Corporation or the Bidhannagar Municipal Corporation is illegal and bad in law”
-observed the Bench.
While disposing the petition, the Bench clarified that the aforesaid order, however, shall not prevent either the Bidhannagar Police or the Kolkata Police for ensuring that other laws are not violated by the restaurant and bar owners.