A single judge bench composed of Judge G. Jayachandran his order also stated that the manufacturer of the banned tobacco was liable to prosecution and could not claim that he did not know how the product had entered the banned place.

“The manufacturer of the banned product is liable to prosecution since its product which is a chewing tobacco with nicotine is a food and the honorable Supreme Court in its interim order dated 25.04.2023 gave freedom to the respondent (the manufacturers chewing tobacco )to seek relief before the appropriate forum if they have a case that their acts or operations are not covered by the notification issued under Section 30(2) of the FSS Act“, said the court.

The court noted that as per Section 109 of the Bharatiya Sakshya Adhiniyam 2023, where a fact was particularly known to any person, the onus of proving the fact was upon the person.

The court thus observed that the manufacturer of the tobacco product was supposed to disclose the details of the manufacturing of its products, to whom the products were sold, etc. and that when the manufacturer chooses to remain silent, it leads to a legal presumption that the product was knowingly distributed in a state where there was a ban.

The court was hearing a plea by Jaiswal Products, manufacturer of Hans Chhap Tobacco, against the proceedings initiated before the Katpadi Judicial Magistrate on the basis of a complaint filed by the Food Safety Officer under sections 52(i) and 63 of the Food Safety and Standards Act 2006 against the manufacturer. and seller.

It was alleged that the Food Safety Officer, having jurisdiction over Vellore district, had inspected the shop of one G Mohan where it was found that banned Hans Chhap tobacco was being stocked by the shop owner without any purchase invoice. Samples were collected and tested by the state laboratory where they were found to contain nicotine, a dangerous food. On this basis, a complaint was filed and placed on file by the judicial magistrate.

The petitioner manufacturing company contended that it was a registered manufacturer under the Excise Act and the GST Act and had shown discrepancy in the tobacco trade. It was argued that tobacco would not meet the definition of “food” to invoke the provisions of the Food Safety and Standards Act and therefore the action of the food safety officer was without merit. and without legal sanction.

It was further submitted that even though a notification had been issued banning tobacco products, that notification was stayed by the Delhi High Court and as on the date of seizure and complaint, there was no so no ban. It was also argued that the manufacturer’s product was tobacco and would be covered by COTPA rather than the Food Safety Act and so, unless it was mixed with a food product, the manufacturer could not be involved in the manufacturing of unsafe foods. It was also argued that there was no evidence that the manufacturer directly or knowingly sold the products in a state where doing so was prohibited.

The additional advocate general appearing for the state argued that as a manufacturer, they were required to explain how their products found their way to Tamil Nadu. He also pointed out that a huge quantity of banned products found across Tamil Nadu could not be said to be sold or transported without the connivance of the manufacturer and anything to the contrary had to be proven by the manufacturer.

The High Court further noted that the State of Tamil Nadu had issued a prohibitory order in 2013 as per the directions of the Supreme Court and this notification had been renewed every year. The court also noted that the Government of India, through its Department of Health and Family Welfare, had reinforced the need to ban chewing tobacco products.

The High Court also noted that it had, in its previous decisions, held that tobacco with or without additives was a food product within the meaning of the law.

The court also noted that in the present case, the manufacturer, after issuance of a show cause notice, had not disclosed any information about the manufacture and sale of the tobacco products of which it had exclusive knowledge. The court therefore held that the manufacturer could prove its case before the trial court by producing documents to prove that it had not sold products to dealers in Tamil Nadu.

The court was therefore not inclined to quash the proceedings and rejected the plea.

Case Title: M/s Jaiswal Products v State of Tamil Nadu

Counsel for the petitioner: Mr. D. Saikumaran and Mr. L. Goutham Raj

Counsel for the Respondent: MPKumaresan, AAG-VII Asst.by MSUdaya Kumar Govt.Advocate (Crl.Side)

Citation: 2024 LiveLaw (Mad) 418

Case No: Crl.OPNo.1698 of 2023