SC lifts ban on Gutka sale, says Centre should bring law

Upholding the challenge filed by manufacturers, a bench comprising Justice K.G. Balakrishnan and Justice B.N. Srikrishna ruled that the provision cited by the states concerned, Section 7(4) of the Prevention of Food Adulteration Act, 1954, did not authorise them to prohibit gutka or pan masala.

Section 7(4) says nobody can make or sell ‘‘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’’.

Two years ago, Maharashtra and other states invoked this provision to ban gutka and pan masala as the Food Health Authority mentioned in it is none other than the director general of the medical and health services of each state.

And those states put a time limit on the ban — for instance, five years in Maharashtra — as Section 7(4) talks only in terms of a prohibition in force ‘‘for the time being’’.

But today’s judgment delivered by Justice Srikrishna held that, under Section 23 of the same Act, the Centre alone was vested with the power the products.

One of the 14 powers conferred on the Centre by Section 23 is to issue a notification ‘‘prohibiting the sale or defining the conditions of sale or any substance, which may be injurious to health when used as food’’.

Further, Section 24 of the Act makes it clear that the state’s rule-making power is limited to ‘‘matters not falling within the purview of Section 23.’’

In other words, the law forbids the states to assume powers that are entrusted to the Centre. Given the clear demarcation of powers, the court said the states could not derive any power to ban gutka or pan masala from Section 7(4) of the Prevention of Food Adulteration Act.

Thus, if the court was forced to lift the ban today in states like Maharashtra, it is because the Centre has so far been reluctant to exercise its power to prohibit gutka and pan masala.