Saturday 13 August 2022

Whether tobacco and tobacco products are food as per food safety Act?

 33. We are not in agreement with Sanjay Anjay Stores (supra) upon which reliance has been placed by Mr. Bhangde, learned Senior Counsel for the petitioners, which holds that tobacco and tobacco products do not fall within the definition of ‘food’, as occurring in Section 3(j) of the FSSA, as the same gives a restrictive meaning to the word ‘food’, which is not permissible in light of the wider and comprehensive meaning given to the word in the definition. Section 3(j) of the FSSA, defines ‘food’ as under:

“3 (j) “Food” means any substance, whether processed, partially processed or unprocessed, which is intended for human consumption and includes primary food to the extent defined in clause (zk), genetically modified or engineered food or food containing such ingredients, infant food, packaged drinking water, alcoholic drink, chewing gum, and any substance, including water used into the food during its manufacture, preparation or treatment but does not include any animal feed, live animals unless they are prepared or processed for placing on the market for human consumption, plants, prior to harvesting, drugs and medicinal products, cosmetics, narcotic or psychotropic substances.

Provided that the Central Government may declare, by notification in the Official Gazette, any other article as food for the purposes of this Act having regards to its use, nature, substance or quality;

(y) “ingredient” means any substance, including a food additive used in the manufacture or preparation of food and present in the final product, possibly in a modified form;

(zk) “primary food” means an article of food, being a produce of agriculture or horticulture or animal husbandry and dairying or aquaculture in its natural form, resulting from the growing, raising, cultivation, picking, harvesting, collection or catching in the hands of a person other than a farmer or fisherman.”

34. The above definitions, clearly indicate that the provisions of the FSSA, do not intend to put any restrictive definition on the word ‘food’, rather it is otherwise, as indicated by use of the expressions ‘means any substance’, ‘containing such ingredients’, and widest possible scope and ambit has been been given to the word. It is also material to note that the definition of ‘food’, does not in any manner make it dependent upon its nutritional value nor that such substance can be consumed or digested in the stomach. No such position is reflected from a plain reading of the word ‘food’ as defined in Section 3(j). This is clearly fortified from the fact that even chewing gum, has been included in the definition of the word ‘food’. It is axiomatic, that chewing gum is not ingested but is only chewed for the juices/flavor it is laced with and then thrown out. Same is the case with tobacco and tobacco products, including Pan Masala, which are used for the juices they generate, in conjunction with saliva in the mouth, when chewed, which juices are ingested and the residue, thrown out. Thus no distinction could have been made in Sanjay Anjay Stores (supra) on the basis of nutritional value or ingestion, as the same is absent in Section 3(j) of the FSSA itself. Sri. Jaganath Enterprises (supra), which also takes a view that tobacco and tobacco products are not included in the definition of the word ‘food’, as defined in Section 3(j) of the FSSA and that COPTA holds the field, placing reliance upon Sanjay Anjay Stores (supra) is of no assistance to the petitioners, for the reasons stated above.

 In the instant matter, as already discussed, the definition of ‘Food’, as occurring in Section 3(j) of the FSSA, is not a restrictive one but is of wide amplitude, and itself takes into its compass, tobacco and tobacco products, and therefore the Court is not reading something which is not there in the definition.

In the High Court of Bombay(Bench Nagpur)

(Before Sunil B. Shukre and Avinash G. Gharote, JJ.)

Mohammad Yamin Naeem Mohammad and Others  Vs  State of Maharashtra, 

Criminal Writ Petition No. 543/2020

Decided on January 9, 2021, 

Citation: 2021 SCC OnLine Bom 26 : 2021 Cri LJ 1811 : (2021) 2 AIR Bom R (Cri) 69, MANU/MH/0024/2021.
Read full Judgment here: Click here
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