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Thursday, July 19, 2018

SC quashes ban on hookah imposed through local laws

Says additional conditions like total ban on tobacco not in sync with the law

Written by Utkarsh Anand | New Delhi | Published: December 9, 2014 1:46:28 am

The Supreme Court on Monday quashed a ban on smoking hookah and providing tobacco to persons who are not minors in the states where the prohibition was clamped through local laws.

A bench of Justices Ranjan Gogoi and Rohinton F Nariman, deciding together the three separate appeals from Maharashtra, Gujarat and Tamil Nadu, held that authorities concerned could not issue orders of absolute ban on tobacco and smoking hookah.

The bench relied on the provisions of the Cigarettes and other Tobacco Products, the Prohibition of Smoking in Public Places Rules and the Regulation of Trade and Commerce Act to conclude that additional conditions like a ban on hookah or a complete ban on tobacco was not in sync with the law.

“It will be noticed that Section 6 of the Cigarettes Act permits the sale of cigarettes and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licensed by the Municipal Corporation would amount to adding another exception which would be impermissible in law,” held the bench. It decided three appeals arising from the 2011 orders of the HCs of three states.

The bench quashed a portion of the circular by the Municipal Corporation of Greater Mumbai which prohibited a hotel owner with a valid licence to keep or sell or provide any tobacco or tobacco related products on the licensed premises. It further set aside the stipulation that hookah or any other apparatus shall not be used in designated smoking areas.

The court underlined that definition of smoking under the Cigarettes Act included smoking of tobacco in any form, with the aid of a pipe, wrapper, or any other instrument, “which would obviously include a Hookah.”

In the Madras HC judgment, a 2011 notice by the municipal body was upheld by the HC.

The bench held that this notice was obviously ultra vires the relevant Acts and Rules since it prevented hotel owners from providing tobacco to persons who are not minors.

The third appeal arose from the Gujarat High Court, which prohibited hotels and restaurants from providing the facility of hookah and banned such bars. The bench set aside this judgment, holding a ban could not be clamped in contravention to a law, which was clear on the subject.

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