The division bench of Andhra Pradesh High Court comprising  Chief Justice Prashant Kumar Mishra and Justice D.V.S.S. Somayajulu said that the Commissioner of Food Safety is not authorized to issue the notification, and the same has no jurisdiction to prohibit the manufacture and sale of Tobacco Pan Masala under Section 30(2)(a) of the Food Safety and Standard Act, 2006 (FSSA, 2006).

The Court further held that until the ban on Tobacco and Tobacco products has not been imposed directly by the Parliament, the authorities under the FSSA, 2006, cannot do so indirectly, as it has not been intended to be done by the Parliament directly. 

The writ petition was filed in which, it was submitted that the Commissioner of Food Safety has no power conferred upon them under Section 30(2)(a) of the FSSA, 2006 for issuing the impugned notification. This is because tobacco is not considered as "food" covered under the FSSA, 2006, the court was told. Instead, it is an item covered under the COTPA, 2003, which takes precedence over the FSSA, 2006, because the COTPA, 2003 is a special act, while the FSSA, 2006 is a general act, it was argued.

On the other hand, the respondent submitted that the definition of “food” under Section 3 (j) of the FSSA, 2006, cannot be given a restricted meaning, as it encompasses any kind of food which is intended to be consumed. Therefore, Gutka and Pan Masala which contain Tobacco and Nicotine, come under the definition of “food” as per Section 3 (j) of the FSSA, the court was told.

The respondent further said, Chewing Tobacco comes under the purview of “food” as Tobacco is kept in the mouth and chewed and it gets mixed with saliva into the body.

Taking reference from Godawat Pan Masala Products I.P. Ltd, the bench observed - 

“It is declared that the Commissioner of Food Safety, Andhra Pradesh is neither authorized nor having any jurisdiction to issue the impugned notification, prohibiting the manufacture, storage, distribution, transportation and sale of Gutka/Pan Masala which contains Tobacco and Nicotine as ingredients and Chewing Tobacco products, within the meaning of Sections 3(m) and 3(p) of the COTPA, 2003, in exercise of powers under Section 30(2)(a) of the FSSA, 2006.”

Case Title- Dasa Shekar v. The State of A.P.