Copy of PIL for complete ban on tobacco products

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No-2367 of 2014 (PIL-Civil)

Amitabh Thakur and another                                                 Petitioners

Versus

Union of India and others                                                         Respondents

INDEX

S No	Description of documents relied upon		Page No
		From	To
1.	List of Dates and Events (separate)	Separate
2.	Memo of Writ Petition
3.	Annexure No 1 Copy of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003
4.	Annexure No 2 Copy of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004
5.	Photo Identity of the petitioner
6.	Affidavit

 Lucknow                                                 (Amitabh Thakur)(Dr Nutan Thakur)
Dated-      20/03/2014                                                  Petitioners in Person                                                                                                      # 94155-34526

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- 2367 of 2014 (PIL-Civil)

Amitabh Thakur and another                                                 Petitioners

Versus

Union of India and others                                                         Respondents

                             LIST OF DATES AND EVENTS

S No               Date                                                   Event                       

1.     2003                                                       The Cigarettes and Other Tobacco
                                                                  Products (Prohibition of
                                                                  Advertisement and Regulation of
                                                                  Trade and Commerce, Production,
                                                                  Supply and Distribution) Act passed

Tobacco and tobacco products have extremely bad and ruinous health hazards as explained in great details in the writ petition. These products reduce life expectancy. Taking its ill-effects into consideration, the Parliament promulgated the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Tobacco Act, for short) and various associated Rules. The Tobacco Act is discriminatory in various manners as explained in details in the Writ petition and hence violative of Article 14. The Tobacco Act is also violative of Article 21 of the Constitution as illustrated in great details in the Petition. Due to the extreme health hazards and bodily ill-effects including causation of serious diseases and reduction in life expectancy, all such sections of the Tobacco Act and the associated Rules which permit any kind of production, manufacture, sale, import etc of cigarette, tobacco and tobacco products in any manner, need to be declared ultra vires immediately in the larger public interest and for public health and public safety whose interest needs to be saved immediately through the intervention of this Hon’ble Court.

Hence this Writ Petition.       

         

Lucknow                                                 (Amitabh Thakur)(Dr Nutan Thakur)
Dated-      20/03/2014                                                  Petitioners in Person                                                                                                      # 94155-34526

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No- 2367 of 2014 (PIL-Civil)

1.     Amitabh Thakur, aged about 45 years, s/o Sri T N Thakur r/o 5/426, Viram Khand, Gomti Nagar, Lucknow

2.     Dr Nutan Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand, Gomti Nagar, Lucknow--------                                                                                                                      Petitioners

Versus

Union of India through Secretary, Ministry of Health and Family Welfare, Government of India, New Delhi   -------             Respondent

Writ Petition under Article 226 of the Constitution of India

To,

The Hon’ble Chief Justice and His other Hon’ble companion Judges of the aforesaid Court:

The humble petition of the above named petitioner most respectfully begs to submit as under:

1.     That by means of this petition, the petitioners are invoking the extra ordinary jurisdiction of this Hon’ble Court vested with it through Article 226 of the Constitution to file this Public Interest Litigation (PIL) with a prayer to issue a writ in the nature of Mandamus thereby directing the respondent, Union of India through Secretary, Ministry of Health and Family Welfare and all its instrumentalities not to give effects to certain sections of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Tobacco Act, for short) (as provided in Appendix No 1) which provide for any kind of restricted sale of  Cigarettes and Other Tobacco Products presented in the Schedule of the Tobacco Act as being violative of Article 14 and 21 of the Constitution of India and to declare the same as Ultra-vires to the provisions of the Constitution. The petitioners accordingly pray before this Hon’ble Court to kindly issue a writ of mandamus to the concerned Respondents to completely ban any kind of sale, purchase, making, preparation, manufacturing, import etc of cigarette, tobacco and tobacco products presented in the Schedule of the Tobacco Act in light of the various facts enumerated in this PIL.

The petitioners declare that they have not filed any other Writ petition before the Hon’ble Supreme Court and this Hon’ble Court either at Allahabad or its Lucknow bench pertaining to the subject matter and/ or for the relief prayed for in the instant writ petition. It is further declared that in respect of the same subject, no caveat notice has been received by the petitioners. They also declare that to the best of their knowledge and their search, there is no pronouncement as regards the prayer being presented through this Writ Petition either by the Hon’ble Supreme Court or this Hon’ble Court

2.     That this is a Public Interest Litigation (PIL) being filed for safeguarding the lives of millions of people who die and/or suffer serious health hazards as a result of smoking or because of being passive smokers. 

3.     That this being a PIL, in pursuance of Rule 1, subrule (3A) of Chapter XXII of the Allahabad High Court Rules 1952 the petitioner finds it relevant to present some facts regarding their own credibility. The petitioner No 1, Amitabh Thakur is an IPS officer also engaged in various social causes including the cause of transparency and accountability in public life, including the Right to Information along with issues related with Human Rights. He is filing this PIL purely in his personal capacity. He is a government servant but at the same time a responsible citizen of India and he files this PIL owing his duty as an individual towards the public.  To the best of his knowledge and reading of the conduct rules applicable to him as an IPS officer, he understands that he does not violate any of these rules but is only presenting a PIL where the intervention of this Hon’ble Court would lead to much public benefit.  Though not exactly required as per the Conduct rules, he is also presenting the information as regards filing of this PIL to his superior officers, for the sake of transparency. Petitioner No 2, Dr Nutan Thakur, is wife of petitioner No 1 and is a well-known and nationally recognized social activist who wants to genuinely and positively contribute to the society in all possible ways. She works primarily in the field of transparency and accountability in governance, Human Rights and assisting in the enforcement of Rule of law. The petitioners have nothing against them so as to mar their credibility in filing this PIL. 

The matter being presented here is for safeguarding the lives of millions of people who die and/or get serious health hazards due to tobacco and tobacco products. 

In pursuance of the above Rule, the petitioners state on oath that the public cause they are seeking to espouse through this Writ Petition is as regards lives of millions of people getting adversely affected by tobacco and tobacco products. The petitioners again put it on oath that they are not filing this PIL for any ulterior motive save the stated one nor have they received a single penny through any backdoor activity while filing this PIL. They state on oath that they has no personal or private interest in the matter and as far as they know there is no authoritative pronouncement by the Hon’ble Supreme Court or this Hon’ble High Court on the specific questions raised here.  They put it on oath that the result of the Litigation will not lead to any undue gain to them or anyone associated with them or any undue loss to any person, body of persons or to the State but would result in better governance

4.     That coming to the matter of the PIL, Tobacco is a plant within the genus Nicotiana of the Solanaceae (nightshade) family. There are more than 70 species of tobacco. Products manufactured from dried tobacco leaves include cigars, cigarettes, snuff, pipe tobacco, chewing tobacco and flavored shisha tobacco. Other uses of tobacco include plant bioengineering and ornamentals, while chemical components of tobacco are used in some pesticides and medications. For consumption, tobacco most commonly appears in the forms of smoking, chewing, snuffing, or dipping tobacco

5.     That an estimated 1.1 billion people, and up to 1/3 of the adult population, use tobacco in some form. Rates of smoking have leveled off or declined in developed countries, but continue to rise in developing countries.

6.     That as per Media Center report on Tobacco by the World Health Organization (WHO), which is the directing and coordinating authority for health within the United Nations system and is responsible for providing leadership on global health matters, shaping the health research agenda, setting norms and standards, articulating evidence-based policy options, providing technical support to countries and monitoring and assessing health trends, of which India is also a member -“Tobacco kills up to half of its users. Tobacco kills nearly 6 million people each year. More than five million of those deaths are the result of direct tobacco use while more than 600 000 are the result of non-smokers being exposed to second-hand smoke. Unless urgent action is taken, the annual death toll could rise to more than eight million by 2030. Nearly 80% of the world's one billion smokers live in low- and middle-income countries. Consumption of tobacco products is increasing globally, though it is decreasing in some high-income and upper middle-income countries.”

7.     That WHO says-“Leading cause of death, illness and impoverishment- The tobacco epidemic is one of the biggest public health threats the world has ever faced, killing nearly six million people a year. More than five million of those deaths are the result of direct tobacco use while more than 600 000 are the result of non-smokers being exposed to second-hand smoke. Approximately one person dies every six seconds due to tobacco, accounting for one in 10 adult deaths. Up to half of current users will eventually die of a tobacco-related disease. Nearly 80% of the more than one billion smokers worldwide live in low- and middle-income countries, where the burden of tobacco-related illness and death is heaviest. Tobacco users who die prematurely deprive their families of income, raise the cost of health care and hinder economic development. In some countries, children from poor households are frequently employed in tobacco farming to provide family income. These children are especially vulnerable to "green tobacco sickness", which is caused by the nicotine that is absorbed through the skin from the handling of wet tobacco leaves.”

8.     That WHO also says about tobacco-“Gradual killer-Because there is a lag of several years between when people start using tobacco and when their health suffers, the epidemic of tobacco-related disease and death has just begun. Tobacco caused 100 million deaths in the 20th century. If current trends continue, it may cause one billion deaths in the 21st century. Unchecked, tobacco-related deaths will increase to more than eight million per year by 2030. More than 80% of those deaths will be in low- and middle-income countries.”

9.     That WHO says-“Second-hand smoke kills- Second-hand smoke is the smoke that fills restaurants, offices or other enclosed spaces when people burn tobacco products such as cigarettes, bidis and water pipes. There are more than 4000 chemicals in tobacco smoke, of which at least 250 are known to be harmful and more than 50 are known to cause cancer.  There is no safe level of exposure to second-hand tobacco smoke- In adults, second-hand smoke causes serious cardiovascular and respiratory diseases, including coronary heart disease and lung cancer. In infants, it causes sudden death. In pregnant women, it causes low birth weight, Almost half of children regularly breathe air polluted by tobacco smoke in public places, Over 40% of children have at least one smoking parent, Second-hand smoke causes more than 600 000 premature deaths per year, In 2004, children accounted for 28% of the deaths attributable to second-hand smoke.

10.                       That WHO Report on the Global Tobacco Epidemic 2008: The MPOWER Package Geneva: World Health Organization (ISBN 92-4-159628-7) says- “Tobacco is the single most preventable cause of death in the world today. This year, tobacco will kill more than five million people – more than tuberculosis, HIV/AIDS and malaria combined. By 2030, the death toll will exceed eight million a year. Unless urgent action is taken tobacco could kill one billion people during this century”

11.                       That it also says-“Tobacco is the only legal consumer product that can harm everyone exposed to it – and it kills up to half of those who use it as intended. Yet, tobacco use is common throughout the world due to low prices, aggressive and widespread marketing, lack of awareness about its dangers, and inconsistent public policies against its use. Most of tobacco’s damage to health does not become evident until years or even decades after the onset of use. So, while tobacco use is rising globally, the epidemic of tobacco-related disease and death has just begun.”

12.                       That a combined reading of the above WHO report along with that of Mr Vainio H "Is passive smoking increasing cancer risk?" in Scand J Work Environ Health (June 1987- 13 (3): 193–6) and Mr Nichter M and Mr Cartwright E  "Saving the Children for the Tobacco Industry" in Medical Anthropology Quarterly (1991- 5(3): 236–56) says that tobacco use leads most commonly to diseases affecting the heart, liver and lungs, with smoking being a major risk factor for heart attacks, strokes, chronic obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), and cancer (particularly lung cancer, cancers of the larynx and mouth, and pancreatic cancer). It also causes peripheral vascular disease and hypertension. The effects depend on the number of years that a person smokes and on how much the person smokes. Starting smoking earlier in life and smoking cigarettes higher in tar increases the risk of these diseases. Also, environmental tobacco smoke, or secondhand smoke, has been shown to cause adverse health effects in people of all ages. Cigarettes sold in underdeveloped countries tend to have higher tar content, and are less likely to be filtered, potentially increasing vulnerability to tobacco-related disease in these regions

13.                       That the United States Centers for Disease Control and Prevention (CDC, for short) is the national public health institute of the United States. The CDC is a federal agency under the Department of Health and Human Services. Its main goal is to protect public health and safety through the control and prevention of disease, injury, and disability. CDC describes tobacco use as "the single most important preventable risk to human health in developed countries and an important cause of premature death worldwide” as stated in "Nicotine: A Powerful Addiction" by CDC.

14.                       That smoke contains several carcinogenic pyrolytic products that bind to DNA and cause many genetic mutations. There are more than 45 known or suspected chemical carcinogens in cigarette smoke Tobacco also contains nicotine, which is a highly addictive psychoactive drug, as stated by Mr Fowles J and Mr Dybing E in "Application of toxicological risk assessment principles to the chemical constituents of cigarette smoke" in Tob Control ((December 2003-12 (4): 424).  When tobacco is smoked, nicotine causes physical and psychological dependency. Tobacco use is a significant factor in miscarriages among pregnant smokers, and it contributes to a number of other threats to the health of the fetus such as premature births and low birth weight and increases by 1.4 to 3 times the chance for Sudden Infant Death Syndrome (SIDS) as has been stated in "The health consequences of involuntary exposure to tobacco smoke: a report of the Surgeon General" by U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, National Center for Chronic Disease Prevention and Health Promotion, Office on Smoking and Health (2006-(PDF). Atlanta, U.S., page 93). The result of scientific studies done in neonatal rats seems to indicate that exposure to cigarette smoke in the womb may reduce the fetal brain's ability to recognize hypoxic conditions, thus increasing the chance of accidental asphyxiation as has been found by Mr Pendlebury Jd, W. R.; Mr Wilson, R. J. A.; Ms Bano, S.; Mr Lumb, K. J.; Mr Schneider, J. M.; Mr Hasan, S. U. in "Respiratory Control in Neonatal Rats Exposed to Prenatal Cigarette Smoke" in American Journal of Respiratory and Critical Care Medicine ((2008)-177 (11): 1255–1261). Incidence of impotence is approximately 85 percent higher in male smokers compared to non-smokers and is a key factor causing erectile dysfunction (ED), a fact brought forth in separate studies by Mr Peate I in "The effects of smoking on the reproductive health of men" in British journal of nursing (Mark Allen Publishing)( (2005)- 14 (7): 362–366) and Mr Korenman, S. G. in "Epidemiology of Erectile Dysfunction" by Endocrine ((2004)-23 (2–3): 087–092). Thus as can be easily seen, each of the above facts are based on definite scientific studies and are not based on any kind of naïve assumptions

15.                       That what the above facts mean is that tobacco and tobacco related products are definitely a killer in every possible manner and are clearly bad for health for the actual consumers as well as for the passive smokers

16.                       That similarly, based on various scientific studies, it has been concluded that tobacco use most commonly leads to diseases affecting the heart and lungs and will most commonly affect areas such as hands or feet with first signs of smoking related health issues showing up as numbness, with smoking being a major risk factor for heart attacks, Chronic Obstructive Pulmonary Disease (COPD), emphysema, and cancer, particularly lung cancer, cancers of the larynx and mouth, and pancreatic cancer. Overall life expectancy is also reduced in long term smokers, with estimates ranging from 10 to 17.9 years fewer than nonsmokers. About one half of long term male smokers will die of illness due to smoking. The association of smoking with lung cancer is strongest, both in the public perception and etiologically. Among male smokers, the lifetime risk of developing lung cancer is 17.2%; among female smokers, the risk is 11.6%. This risk is significantly lower in nonsmokers: 1.3% in men and 1.4% in women. If one looks at men who continue to smoke tobacco, the risk increases to one in six. Historically, lung cancer was considered to be a rare disease prior to World War I and was perceived as something most physicians would never see during their career. With the postwar rise in popularity of cigarette smoking came a virtual epidemic of lung cancer. A person's increased risk of contracting disease is directly proportional to the length of time that a person continues to smoke as well as the amount smoked. However, if someone stops smoking, then these chances gradually decrease as the damage to their body is repaired. A year after quitting, the risk of contracting heart disease is half that of a continuing smoker. The health risks of smoking are not uniform across all smokers. Risks vary according to amount of tobacco smoked, with those who smoke more at greater risk. Smoking so-called "light" cigarettes does not reduce the risk.

17.                       That it has also been brought forth through scientific studies that male and female smokers lose an average of 13.2 and 14.5 years of life, respectively. Each cigarette that is smoked is estimated to shorten life by an average of 11 minutes. According to the results of a 50 year study of 34,486 male British doctors, at least half of all lifelong smokers die earlier as a result of smoking. Smokers are three times as likely to die before the age of 60 or 70 unlike non-smokers. In the United States, cigarette smoking and exposure to tobacco smoke accounts for roughly one in five, or at least 443,000 premature deaths annually.  To put this into context, ABC's Mr Peter Jennings famously reported that in the US alone, tobacco kills the equivalent of three jumbo jets full of people crashing every day, with no survivors. On a worldwide basis, this equates to a single jumbo jet every hour.

18.                       That the primary risks of tobacco usage include many forms of cancer, particularly lung cancer, kidney cancer, cancer of the larynx and head and neck, breast cancer, bladder cancer, cancer of the esophagus,  cancer of the pancreas and stomach cancer.  There is some evidence suggesting a small increased risk of myeloid leukaemia, squamous cell sinonasal cancer, liver cancer, colorectal cancer, cancers of the gallbladder, the adrenal gland, the small intestine, and various childhood cancers. Recent studies have established a stronger relationship between tobacco smoke, including secondhand smoke, and cervical cancer in women.  The risk of dying from lung cancer before age 65 is 52.1% for a male smoker and 91.9% for a female smoker, in the absence of competing causes of death. The corresponding estimates for lifelong nonsmokers are a 1.1% probability of dying from lung cancer before age 85 for a man of European descent, and a 0.8% probability for a woman.

19.                       That in smoking, long term exposure to compounds found in the smoke (e.g., carbon monoxide and cyanide) are believed to be responsible for pulmonary damage and for loss of elasticity in the alveoli, leading to emphysema and COPD. Chronic obstructive pulmonary disease (COPD) caused by smoking, is a permanent, incurable (often terminal) reduction of pulmonary capacity characterised by shortness of breath, wheezing, persistent cough with sputum, and damage to the lungs, including emphysema and chronic bronchitis. The carcinogen acrolein and its derivatives also contribute to the chronic inflammation present in COPD.

20.                       That similarly, scientific studies say that inhalation of tobacco smoke causes several immediate responses within the heart and blood vessels. Within one minute the heart rate begins to rise, increasing by as much as 30 percent during the first 10 minutes of smoking. Carbon monoxide in tobacco smoke exerts its negative effects by reducing the blood’s ability to carry oxygen. Both of these conditions can become permanent with prolonged use of cigarettes. Smoking also increases the chance of heart disease, stroke, atherosclerosis, and peripheral vascular disease. Several ingredients of tobacco lead to the narrowing of blood vessels, increasing the likelihood of a blockage, and thus a heart attack or stroke. According to a study by an international team of researchers, people under 40 are five times more likely to have a heart attack if they smoke. Recent research by American biologists has shown that cigarette smoke also influences the process of cell division in the cardiac muscle and changes the heart's shape. The usage of tobacco has also been linked to Buerger's disease (thromboangiitis obliterans) the acute inflammation and thrombosis (clotting) of arteries and veins of the hands and feet. Although cigarette smoking causes a greater increase of the risk of cancer than cigar smoking, cigar smokers still have an increased risk for many health problems, including cancer, when compared to non-smokers As for second-hand smoke, the NIH study points to the large amount of smoke generated by one cigar, saying "cigars can contribute substantial amounts of tobacco smoke to the indoor environment; and, when large numbers of cigar smokers congregate together in a cigar smoking event, the amount of ETS [i.e. second-hand smoke] produced is sufficient to be a health concern for those regularly required to work in those environments."

21.                       That as per various scientific studies, smoking tends to increase blood cholesterol levels. Furthermore, the ratio of high-density lipoprotein (the "good" cholesterol) to low-density lipoprotein (the "bad" cholesterol) tends to be lower in smokers compared to non-smokers. Smoking also raises the levels of fibrinogen and increases platelet production (both involved in blood clotting) which makes the blood viscous. Carbon monoxide binds to haemoglobin (the oxygen-carrying component in red blood cells), resulting in a much stabler complex than haemoglobin bound with oxygen or carbon dioxide—the result is permanent loss of blood cell functionality. Blood cells are naturally recycled after a certain period of time, allowing for the creation of new, functional erythrocytes. However, if carbon monoxide exposure reaches a certain point before they can be recycled, hypoxia (and later death) occurs. All these factors make smokers more at risk of developing various forms of arteriosclerosis. As the arteriosclerosis progresses, blood flows less easily through rigid and narrowed blood vessels, making the blood more likely to form a thrombosis (clot). Sudden blockage of a blood vessel may lead to an infarction (stroke). However, it is also worth noting that the effects of smoking on the heart may be more subtle. These conditions may develop gradually given the smoking-healing cycle (the human body heals itself between periods of smoking), and therefore a smoker may develop less significant disorders such as worsening or maintenance of unpleasant dermatological conditions, e.g. eczema, due to reduced blood supply. Smoking also increases blood pressure and weakens blood vessels

22.                       That the petitioners have not presented the exact details and sources of each of the above-mentioned findings on the presumption that they would not possibly be disputed as regards the extremely adverse effects of tobacco and tobacco products on human beings, but they can certainly produce much more details if so directed or needed.

23.                       That taking into account all the above-mentioned factors and the ill-effects of tobacco etc, the Parliament passed the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Tobacco Act, for short) which is “an act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto”. A copy of the Tobacco Act is being presented here as Annexure No 1.

24.                       That the preamble of the Act makes the need for tobacco control strategies plans for legislation and other effective measures for protecting the citizens from its adverse impact in the public interest and to protect the public health, to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution

25.                       That section 3(b) of the Tobacco Act defines cigarette, 3(n) defines smoking and section 3(p) talks of “tobacco products” as the products specified in the Schedule of the Tobacco Act. Section 4 prohibits smoking in any public place, while section 5 (1) prohibits advertisement of cigarettes or any other tobacco products directly or indirectly. Section 6 of the Act completely restricts sale etc of these product— (a) to any person who is under eighteen years of age, and (b) in an area within a radius of one hundred yards of any educational institution. Section 7 says puts certain restrictions on persons who produce, supply, distribute, carry on trade or commerce,  import cigarettes or any other tobacco products so that every package of these cigarettes or any other tobacco products shall have specified warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed in a particular manner. Section 8, 9 and 10 of the Act provide further facts and specifications about this specific warning

26.                       That the Central Government made the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, production, Supply and Distribution) Rules, 2004 (Tobacco Rules, for short) amended through the Amendment Rules of 2005.  Rule 4(2) of these Rules talks of warning that - (i) Tobacco Causes Cancer, or (ii) Tobacco Kills” while Rule 4(6) is as regards every cinema and television programmes shall display tobacco products or their use, to have warning that “Smoking Causes Cancer” or “Smoking Kills” for smoking form of tobacco use and “Tobacco causes cancer” or “Tobacco Kills” for chewing and other form of tobacco. A copy of the Tobacco Rules is being attached as Annexure No 2.

27.                       That the Government of India has also promulgated the Prohibition on sale of Cigarettes and other Tobacco Products around Educational Institutions Rules, 2004

28.                       That in Murli S. Deora vs Union Of India And Ors (AIR 2002 SC 40, 2002 (1) ALD 88 SC), the Hon’ble Supreme Court said-“statement of objects and reason of (The) Cigarettes (Regulation of Production. Supply and Distribution) Act. 1975, inter alia, provides, "Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis, certain diseases of the heart and arteries caner of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc. are also reported to be among the ill-effects of cigarette smoking. 4. Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, provides, "Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500/- crores annually which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco industry"

29.                       That from the above scientific studies, the Act passed by the Indian Parliament and the various Rules enacted by the Government of India, it is very clear that tobacco and tobacco products are universally and undoubtedly considered to be extremely ruinous, dangerous, harmful and bad for health. Each of the scientific studies made at international level, whose results are mentioned in some details in the above Paras make it very clear that smoking has its ill-effects in so many various ways, leading to various extremely serious diseases, to an extent that the average life of the smoker gets reduced vis-à-vis a non-smoker. The same is being stated and strongly reiterated through the various Indian Acts and Rules promulgated in this regards, where not only warning like ‘smoking causes cancer’ and ‘smoking kills’ have become mandatory, these products are prohibited to be sold to people below 18 years or to areas near educational institutions.

30.                       That all the above facts clearly establish that use of tobacco and tobacco products has not only extremely dangerous health hazards, it is dangerous and detrimental to life, per se

31.                       That at the same time, to the best of the petitioners’ knowledge there is no single study that says that use of these products is dangerous only to children below 18 and not to persons above this age. In fact, all results point to the contrary that these products are dangerous to all in sufficiently huge measures. What it means is that putting the ban on sale and/or use of these products only for those below 18 is clearly arbitrary and improper and is also discriminatory against every person above the age of 18, because such age-bar has no meaning due to almost equally adverse impact of these products on every person.

32.                       That the discriminatory nature of this age-bar becomes all the more apparent when it is seen that various scientific studies have clearly established that smoking by pregnant women has extremely hazardous impact on the infant as well, but the Tobacco Act has banned only sale to people below 18 and not even to pregnant women, thereby putting the life of the infant in extreme dangers due to the ill-effects of tobacco products which discriminates these infants from those whose mother and/or father do not smoke or use tobacco products

33.                       That similarly while section 6 bans sale to persons below 18 or near educational institutions, it does not protect children below 18 in their houses from second-hand smoking or being passive smoker because they are also liable to get exposed to smoking by their parents, other family-members above 18 or any other person above 18 who uses these tobacco products through smoking etc in the house and the poor, helpless children have to act as second-hand smokers. Thus, this ban on sale below 18 only serves a limited purpose and is also discriminatory against every such child who does not live completely in educational institutions where sale of these products is completely banned but live in their houses along with their parents and/or other family members

34.                       That the ban near educational institution is again discriminatory to many such young students above 18 who do not get saved under these provisions of law because they do not completely live in educational instructions, vis-à-vis those students who are permanent residents of these educational institutions and are thus safe under the legal provisions of the Tobacco Act

35.                       That other than being discriminatory, the provisions of the Tobacco Act which permit restricted sale, manufacture, import etc of tobacco and tobacco products also goes against the provisions of Article 21 (Protection of life and personal liberty- No person shall be deprived of his life or personal liberty except according to procedure established by law)

36.                       That it has been established through innumerable judgements of the Hon’ble Supreme Court that Article 21 mandatorily imposes the duty on the State to save the life of its citizen through all reasonable means and measures

37.                       That an important aspect related with right to life came up in Smt. Gian Kaur vs The State Of Punjab (Equivalent citations: 1996 AIR 946, 1996 SCC (2) 648), where the five-member bench of Hon’ble Supreme Court discussed about the inclusion of the `right to die' within the ambit of Article 21 of the Constitution,

38.                       That here the Hon’ble Supreme Court said-“When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the 'right to life' under Article 21. The significant aspect of 'sanctity of life' is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can extinction of life' be read to be included in protection of life'. Whatever may be the philosophy of permitting a person to extinguish his life by committing suicide, we find it difficult to construe Article 21 to include within it the right to die' as a part of the fundamental right guaranteed therein. 'Right to life' is a natural right embodied in Article 21 but suicide is an unnatural termination or extinction of life and, therefore, incompatible and inconsistent with the concept of right to life'”

39.                       That the Hon’ble Supreme Court said-“The right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life.”

40.                       That hence the Hon’ble Supreme Court declared section 309 IPC as regards attempt to commit suicide and section 306 I.P.C about abetment of suicide as being constitutionally valid.

41.                       That the doctrine of Parens Patriae (father of the country) which implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves, as explained by the Constitution Bench decision of the Hon’ble Supreme Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36) as being “the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector” also requires that right to live with dignity for every infant in mother’s womb and every student and/or child living in his home with parents etc needs to be saved by the State as its sovereign duty. In fact, this doctrine of Parens Patriae can also be logically and correctly stretched to include all smokers, even above 18, because these people are also clearly persons with specific disability where they know for sure that they are consuming/inhaling poison but their mental makeup and their body dependence makes them deliberately ignore this fact and continue smoking even at the cost of their own health and life. Thus even smokers above 18 need to be treated as people who are unable to look after themselves in this particular regards because they fully know through all kinds of non-stop advertisements and government efforts that they are slowly killing themselves but are mentally unable to act firmly. Thus, in all these cases the State naturally gets the duty to look after the interest of all these smokers and to go for complete ban of these tobacco products, which naturally makes restricted sale of these products ultra-vires to Article 21 of the Constitution.

42.                       That in Pt. Parmanand Katara vs Union Of India & Ors (Equivalent citations: 1989 AIR 2039, 1989 SCR (3) 997), the Hon’ble Supreme Court said-“Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decisions has emphasised and reiterated with gradually increasing emphasis that position.”

43.                       That the above legal positions make it very clear that the State is duty bound to save the life of every citizen and is also duty bound not only as regards the citizen’s right to life but as regards his right to life with human dignity

44.                       That from the various facts stated in this PIL, it is very apparent that anyone who is using tobacco and various tobacco products is in danger of losing his life and is definitely losing his life with human dignity because no life with as many kinds of diseases as illustrated above, caused as a result of smoking, can be called a life with human dignity.

45.                       That thus tobacco and tobacco products are not only shortening human life of both active users and passive smokers, they are also coming in the way of right to life with human dignity

46.                       That as stated in the Preamble of the Tobacco Act mentioned above, it is only for these reasons that the Tobacco Act and the various Tobacco Rules were promulgated.

47.                       That thus section 5 (1) of the Tobacco Act which talks of person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products, section 6 which restricts sale etc of these products only to persons below 18 years and near any educational institution and section 7 which provides permission to produce, supply or distribute cigarettes or any other tobacco products and to carry on trade or commerce in these products or to import them etc under certain restrictions are clearly ultra-vires to Article 21 of the Constitution because any kind of sale, distribution etc of these products in any manner so as to be used by any individual is definitely and certainly being against right to life and right to life with human dignity.

48.                       That even the fact that section 7(5) talks of “the maximum permissible limits” of nicotine and tar contents as may be prescribed by rules made under the Tobacco Act does not take away the real sting of the matter because this alleged maximum permissible limit is no safe solution at all. Even with this alleged permissible limit, the dangers and the harms of these products remain to quite some extent. Such alleged permissible limits are prescribed only to reduce the ill-effects to some extent and no further. This is the reason that even after this alleged permissible limit, the manufacturers have to put the warnings like “Tobacco kills” and “Tobacco causes cancer”. These statutory warnings are not for tobacco products beyond the permissible tar and nicotine contents but exactly for such products where the manufacturers have ensured their product as being below this prescribed limit. What this means is that such alleged maximum permissible limit is almost a façade and nothing more and has thus no meaning at all. If the fact that a person can any way smoke any number of cigarettes and/or other tobacco products whereby he consumes any amount of tar and/or nicotine content much above the prescribed limit makes this kind of alleged safeguard almost completely meaningless. Hence, such prescribed limits do not mean much and do not change the real complexion of the issue in any manner.

49.                       That no State, under obligation for right to life and right to life with human dignity, which is the parens patriae, will ever allow the manufacture, sale, purchase, import etc of tobacco and tobacco products, particularly when the State itself knows fully well that “Tobacco kills” and “Tobacco causes cancer” and hence any kind of restricted sale of any nature is definitely violative of Article 21 and needs to be declared ultra-vires, considering the fact that the Government itself is fully aware of all the above facts and itself admits in no uncertain terms that tobacco kills and it causes cancer.

50.                       That this question is of much significance because the Indian Penal Code prohibits attempt to suicide and abetment to suicide as being criminal offences and the facts that have emerged as regards the use of tobacco and tobacco products bring it in the category of attempt to suicide by those who use these products and in the category of abetment to suicide by those who manufacture and sale them. Unfortunately the Government of India becomes a silent spectator of the entire episode while Article 21 along with the basic doctrine and concept of sovereignty and parens patriae warrant a much active role by the Government in not only making efforts at reducing the danger but at completely eliminating it, particularly knowing the ill-effects of the usage of tobacco and tobacco products

51.                       That it is not that the State does not completely prohibit use of various inhaling, eating and other such usable products. The Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act, for short) is based on the principle that the use of certain narcotic drugs and psychotropic substances are detrimental to life and health, which have the strong potential of damaging and destroying life forever and hence section 8 of this Act says-“Prohibition of certain operations.-No person shall (a) cultivate any coca plant or gather any portion of coca plant; or (b) cultivate the opium poppy or any cannabis plant; or (c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization”

52.                       That the facts narrated in the above Para make it very obvious that even if the harmful and detrimental effects of tobacco and tobacco products may be slightly reduced to the various products banned under the NDPS Act, but these products which have the strong potential and tendency to cause diseases affecting the heart, liver and lungs, with smoking being a major risk factor for heart attacks, strokes, chronic obstructive pulmonary disease (COPD) (including emphysema and chronic bronchitis), and cancer (particularly lung cancer, cancers of the larynx and mouth, and pancreatic cancer), peripheral vascular disease and hypertension, can never be permitted to be manufactured, sold and consumed, knowing the fact that tobacco kills and tobacco causes cancer. To the best knowledge of the petitioners, there is no single beneficial impact of any nature of these tobacco products on human body. Thus, when there is no single beneficial impact of these products and there are definite adverse impacts of these products, there can certainly not be any reason for the State to permit its sale even in any restricted manner. Hence just like the Narcotic drugs and psychotropic substances completely banned in section 8 of the NDPS Act, except for medicinal and scientific purposes, here again there is a need for complete ban of these tobacco products and so any kind of permission of restricted sale is clearly ultra vires not only to Article 14 as explained in above Para but is also against Article 21

53.                       That it is amply clear that this is a matter having much larger public interest and is a PIL in the true sense of the word. Hence, the petitioners bring this matter for consideration before this Hon’ble Court in the interest of justice, for the sake of larger public good, as explained in great details in this PIL and hence the two petitioners, in this matter of wide public importance and public concern, approach before this Hon’ble Court, being left with no other option than to approach it with this PIL to ask for certain prayers because of the reasons being stated among the Grounds as enumerated below.

54.                       That the petitioner’s photograph and Identity proof has been enclosed along with.

GROUNDS

(1)            Because tobacco and tobacco products have extremely bad and ruinous health hazards as explained in great details in above Para

(2)            Because these products reduce life expectancy

(3)            Because taking its ill-effects into consideration, the Parliament promulgated the Tobacco Act and various associated Rules

(4)            Because the Tobacco Act is discriminatory in various manners as explained in details in above Para and hence violative of Article 14

(5)            Because the Tobacco Act is also violative of Article 21 of the Constitution

(6)            Because due to the extreme health hazards and bodily ill-effects including causation of serious diseases and reduction in life expectancy, all such sections of the Tobacco Act and the Tobacco Rules which permit any kind of production, manufacture, sale, import etc of tobacco and tobacco products in any manner, need to be declared ultra vires immediately

(7)            Because the need is not restricted availability of these products but its complete ban due to the above-mentioned reasons  

(8)            Because this is a matter of extremely high public importance and is directly related with larger public health and public safety

PRAYER

Wherefore, it is most respectfully prayed that this Hon’ble Court may be pleased to-

a.      to kindly issue a Writ in the nature of Mandamus thereby directing the respondent, Union of India through Secretary, Ministry of Health and Family Welfare and all its instrumentalities not to give effects to any of the provisions of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (Tobacco Act, for short) (Appendix No 1) and the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Rules, 2004 (Tobacco Rules, for short) (Appendix No 2) which provide for any kind of restricted production, supply, distribution, sale, carrying on trade or commerce,  importing etc of cigarettes or any other tobacco products as defined in section 3(b) (for cigarette) and 3(p) (for tobacco products) of the Tobacco Act as being violative of Article 14 and 21 of the Constitution of India and to declare the same as Ultra-vires to the provisions of the Constitution.

b.     to kindly issue a writ of mandamus to the Respondent to completely ban any kind of sale, purchase, making, preparation, manufacturing, import etc of cigarettes or any other tobacco products as defined in section 3(b) (for cigarette) and 3(p) (for tobacco products) of the Tobacco Act, save except for medicinal or scientific purposes in a manner similar to that prescribed in section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985

c.      to pass any other order or directions for larger public health and public safety which this Hon’ble Court may deems fit and proper in the facts and circumstance of the present case.

Lucknow                                             (Amitabh Thakur)(Dr Nutan Thakur)
Dated-      20/03/2014                                                   Petitioner in Person                                                                                                       # 94155-34526

In the Hon’ble High Court of Judicature at Allahabad, Lucknow Bench, Lucknow

Writ petition No-              of 2014 (PIL-Civil)

Amitabh Thakur and another                                                 Petitioners

Versus

Union of India                                                                               Respondent

AFFIDAVIT

I, Nutan Thakur, aged about 40 years, w/o Sri Amitabh Thakur r/o 5/426, Viram Khand, Gomti Nagar, Lucknow, religion Hinduism, education- P Hd, D Litt profession- social activism, the deponent, do hereby solemnly affirm and state on oath as under-

1.     That the deponent is petitioner No 2 in the above noted petition and as such she is fully conversant with the facts and circumstances of the case, deposed to hereunder. She has also been authorized by petitioner No 1 to depose this affidavit before this Hon’ble Court.

2.     That the contents of the paragraphs                                                                        of the Writ petition are true to my personal knowledge,                                            based on documents and records and                                                   believed to be true or are based on legal advice.

3.     That the Annexure No 1 and 2 are the true copy of their original.

Place Lucknow                                                                  (Nutan Thakur)

Date-      20/03/2014                                                     Deponent

VERIFICATION

I, the deponent above named, do hereby verify that the contents of paragraphs 1 to 3 above this Affidavit are true and correct to my knowledge and belief. No part of it is false and nothing material has been concealed. So, help me God

Signed and verified this the                             day of                                    2014  at Lucknow

Deponent

Identification

I identify the deponent, on the basis of records produced before me, who has signed before me.

                                    Advocate

Solemnly affirmed me on                                 at                                am/pm by the deponent Nutan Thakur, who has been identified by Sri                              clerk to Sri                                                                                                                                       , Advocate, high court, Lucknow Bench, Lucknow

I have satisfied myself by examining the deponent that she understands the contents of this Affidavit which have been read over and explained to her by me

                                                                                                Oath Commissioner

Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003

 (PASSED BY THE HOUSES OF PARLIAMENT— RAJYA SABHA ON 9TH APRIL,

2003 & LOK SABHA ON 30TH APRIL, 2003)

(Act 32 of 2003)

An act to prohibit the advertisement of, and to provide for the regulation of trade and commerce in, and production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto.

WHEREAS, the Resolution passed by the 39th World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco; AND

WHEREAS, the 43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate all direct and indirect advertising, promotion and sponsorship concerning tobacco;

AND WHEREAS, it is considered expedient to enact a comprehensive law on tobacco in the public interest and to protect the public health;

AND WHEREAS, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution;

AND WHEREAS, it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto:

BE it enacted by Parliament in the Fifty-fourth Year of the Republic of India as

follows:—

1.(1) This Act may be called the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003.

(2) It extends to the whole of India.

 (3) It shall come into force on such date as the Central Government may, by notification

in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.

2. It is hereby declared that it is expedient in the public interest that the Union should take under its control the tobacco industry.

3. In this Act, unless the context otherwise requires,—

(a) “advertisement” includes any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas;

(b) “cigarette” includes,— (i) any roll of tobacco wrapped in paper or in any other substance not containing tobacco,

(ii) any roll of tobacco wrapped in any substance containing tobacco, which, by reason of its appearance, the type of tobacco used in the filter, or its packaging and labelling is likely to be offered to, or purchased by, consumers as cigarette, but does not include beedi, cheroot and cigar;

(c) “distribution” includes distribution by way of samples, whether free or otherwise;

(d) “export”, with its grammatical variations and cognate expressions, means taking out of India to a place outside India;

(e) “foreign language” means a language which is neither an Indian language nor the English language;

(f) “import”, with its grammatical variations and cognate expressions, means bringing into India from a place outside India;

(g) “Indian language” means a language specified in the Eighth Schedule to the Constitution, and includes any dialect of such language;

(h) “label” means any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package;

(i) “package” includes a wrapper, box, carton, tin or other container;

(j) “prescribed” means prescribed by rules made under this Act;

 (k) “production”, with its grammatical variations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall include— (i) packing, labelling or re-labelling, of containers; (ii) re-packing from bulk packages to retail packages; and (iii) the adoption of any other method to render the tobacco product marketable;

(l) “public place” means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centres, restaurants,public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space;

(m) “sale”, with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another, whether for cash or on credit, or by way of exchange, and whether wholesale or retail, and includes an agreement for sale, and offer for sale and exposure for sale;

(n) “smoking”, means smoking of tobacco in any form whether in the form of cigarette, cigar,

beedis or otherwise with the aid of a pipe, wrapper or any other instruments;

(o) “specified warning” means such warnings against the use of cigarettes or other tobacco products to be printed, painted or inscribed on packages of cigarettes or other tobacco products in such form and manner as may be prescribed by rules made under this Act;

(p) “tobacco products” means the products specified in the Schedule.

4. No person shall smoke in any public place:

Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.

5. (1) No person engaged in, or purported to be engaged in the production, supply or distribution of cigarettes or any other tobacco products shall advertise and no person having control over a medium shall cause to be advertised cigarettes or any other tobacco products through that medium and no person shall take part in any advertisement which directly or indirectly suggests or promotes the use or consumption of cigarettes or any other tobacco products.

(2) No person, for any direct or indirect pecuniary benefit, shall— (a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product; or (b) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or (c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or (d) erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:

Provided that this sub-section shall not apply in relation to— (a) an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;

(b) advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.

(3) No person, shall, under a contract or otherwise promote or agree to promote the use or consumption of— (a) cigarettes or any other tobacco product; or (b) any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.

6. No person shall sell, offer for sale, or permit sale of, cigarette or any other tobacco product— (a) to any person who is under eighteen years of age, and (b) in an area within a radius of one hundred yards of any educational institution.

7. (1) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him bears thereon, or on its label, the specified warning including a pictorial depiction of skull and cross bones and such other warning as may be prescribed.

(2) No person shall carry on trade or commerce in cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products sold, supplied or distributed by him bears thereon, or on its label, the specified warning.

(3) No person shall import cigarettes or any other tobacco products for distribution or supply for a valuable consideration or for sale in India unless every package of cigarettes or any other tobacco products so imported by him bears thereon, or on its label, the specified warning.

(4) The specified warning shall appear on not less than one of the largest panels of the package in which cigarettes or any other tobacco products have been packed for distribution, sale or supply for a valuable consideration.

(5) No person shall, directly or indirectly, produce, supply or distribute cigarettes or any other tobacco products unless every package of cigarettes or any other tobacco products produced, supplied or distributed by him indicates thereon, or on its label, the nicotine and tar contents on each cigarette or as the case may be on other tobacco products along with the maximum permissible

limits thereof: Provided that the nicotine and tar contents shall not exceed the maximum permissible quantity thereof as may be prescribed by rules made under this Act.

8. (1) The specified warning on a package of cigarettes or any other tobacco products shall be— (a) legible and prominent;  (b) conspicuous as to size and colour; (c) in such style or type of lettering as to be boldly and clearly presented in distinct contrast to any other type, lettering or graphic material used on the package or its label and shall be printed, painted or inscribed on the package in a colour which contrasts conspicuously with the background of the package or its labels.

(2) The manner in which a specified warning shall be printed, painted or inscribed on a package of cigarettes or any other tobacco products shall be such as may be specified in the rules made under this Act.

(3) Every package containing cigarettes or any other tobacco products shall be so packed as to ensure that the specified warning appearing thereon, or on its label, is, before the package is opened, visible to the consumer.

9. (1) Where the language used on a package containing cigarettes and any other tobacco products or on its label is— (a) English, the specified warning shall be expressed in the English language; (b) any Indian language or languages, the specified warning shall be expressed in such Indian language or languages; (c) both English and one or more Indian languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages; (d) partly English and partly any Indian language or languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages; (e) any foreign language, the specified warning shall be expressed in the English language; contents. (f) partly any foreign language and partly English or any Indian language or languages, the specified warning shall be expressed in the English language as well as in such Indian language or languages.

(2) No package of cigarettes or any other tobacco products or its label shall contain any matter or statement which is inconsistent with, or detracts from, the specified warning.

10. No specified warning or indication of nicotine and tar contents in cigarettes and any other tobacco products shall be deemed to be in accordance with the provisions of this Act if the height of each letter or figure, or both used on such warning and indication is less than the height as may be prescribed by rules made under this Act.

11. For purposes of testing the nicotine and tar contents in cigarettes and any other tobacco products the Central Government shall by notification in the Official Gazette grant recognition to such testing laboratory as that Government may deem necessary.

12. (1) Any police officer, not below the rank of a sub-inspector or any officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of Sub-Inspector of Police, authorised by the Central Government or by the State Government may, if he has any reason to suspect that any provision of this Act has been, or is being, contravened, enter and search in the manner prescribed, at any reasonable time, any factory, building, business premises or any other place,— (a) where any trade or commerce in cigarettes or any other tobacco products is

carried on or cigarettes or any other tobacco products are produced, supplied or distributed; or (b) where any advertisement of the cigarettes or any other tobacco products has been or is being made.

(2) The provisions of the Code of Criminal Procedure, 1973, shall apply to every search and seizure made under this Act.

13. (1) If any police officer, not below the rank of a sub-inspector or any officer of State Food or Drug Administration or any other officer, holding the equivalent rank being not below the rank of Sub-Inspector of Police, authorised by the Central Government or by the State Government, has any reason to believe that,— (a) in respect of any package of cigarettes or any other tobacco products, or

(b) in respect of any advertisement of cigarettes or any other tobacco products, the provisions of this Act have been, or are being, contravened, he may seize such package or advertisement material in the manner prescribed.

(2) No package of cigarettes or any other tobacco products or advertisement material seized under clause (a) of sub-section (1) shall be retained by the officer who seized the package or advertisement material for a period exceeding ninety days from the date of the seizure unless the approval of the District Judge, within the local limits of whose jurisdiction such seizure was made, has been obtained for such retention.

14. Any package of cigarettes or any other tobacco products or any advertisement material of cigarettes or any other tobacco products, in respect of which any provision of this Act has been or is being contravened, shall be liable to be confiscated:

Provided that, where it is established to the satisfaction of the court adjudging the confiscation that the person in whose possession, power or control any such package of cigarettes or any other tobacco products is found is not responsible for the contravention of the provisions of this Act, the Court may, instead of making an order for the confiscation of such package, make such other order authorised by this Act against the person guilty of the breach of the provisions of this Act as it may think fit.

15. (1) Whenever any confiscation of any package of cigarettes or any other tobacco products is authorised by this Act, the court adjudging it may, subject to such conditions as may be specified in the order adjudging the confiscation, give to the owner thereof an option to pay, in lieu of confiscation, costs which shall be equal to the value of the goods confiscated.

(2) On payment of the costs ordered by the court, the seized packages shall be returned to the person from whom they were seized on condition that such person shall, before making any distribution, sale or supply of such packages of cigarettes or other tobacco products, get the specified warning and indication of nicotine and tar contents incorporated on each such package.

16. No confiscation made, costs ordered to be paid under this Act shall prevent the infliction of any punishment to which the person affected thereby is liable under the

provisions of this Act or under any other law.

17. Any confiscation of cigarettes or any other tobacco products may be adjudged or costs may be ordered to be paid,— (a) without any limit, by the principal civil court of original jurisdiction within the local limits of whose jurisdiction such confiscation has been made, costs have been ordered to be paid, (b) subject to such limits as may be specified by the Central Government in this behalf, by such other court, not below a civil court having pecuniary jurisdiction exceeding rupees five thousand, as the Central Government may, by notification in the Official Gazette, authorise in this behalf.

18. (1) No order adjudging confiscation or directing payment of costs shall be made unless the owner or person in possession of the package of cigarettes or any other tobacco products has been given a notice in writing informing him of the grounds on which it is proposed to confiscate such package, and giving him a reasonable opportunity of making a representation in writing, within such reasonable time as may be specified in the notice, against the confiscation mentioned therein, and, if he so desires, of being heard personally or through a representative in the matter:

Provided that, where no such notice is given within a period of ninety days from the date of the seizure of the package of cigarettes or of any other tobacco products, such package shall be returned, after the expiry of that period, to the owner or the person from whose possession it was seized.

(2) Save as otherwise provided in sub-section (1), the provisions of the Code of Civil Procedure, 1908, shall, as far as may be, apply to every proceeding referred to in subsection (1).

19. (1) Any person, aggrieved by any decision of the court adjudging a confiscation, ordering the payment of costs, may prefer an appeal to the court to which an appeal lies from the decision of such court.

(2) The appellate court may, after giving to the appellant an opportunity of being heard, pass such order as it thinks fit confirming, modifying or reversing the decision or order appealed against or may send back the case with such directions as it may think fit for a fresh decision or adjudication, as the case may be, after taking additional evidence, if necessary:

Provided that an order enhancing any fine in lieu of confiscation or confiscating of goods of greater value shall not be made under this section unless the appellant has had an opportunity of making a representation and, if he so desires, of being heard in person or through a representative in his defence.

(3) No further appeal shall lie against the order of the court of appeal.

20. (1) Any person who produces or manufactures cigarettes or tobacco products, which do not contain, either on the package or on their label, the specified warning and the nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both, and for the second or subsequent conviction,with imprisonment for a term which may extend to five years and with fine which may extend to ten thousand rupees.

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on the package or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees.

21. (1) Whoever contravenes the provisions of section 4 shall be punishable with fine which may extend to two hundred rupees.

(2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973.

22. Whoever contravenes the provision of section 5 shall, on conviction, be punishable—

(a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and

(b) in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.

23. Where any person has been convicted under this Act for the contravention of the provision of section 5, the advertisement and the advertisement material for cigarettes and other tobacco products may be forfeited to the Government and such advertisement and advertisement material shall be disposed of in such manner as may be prescribed by rules made under this Act.

24. (1) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees.

(2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal Procedure, 1973.

25. (1) Notwithstanding anything contained in any other law for the time being in force, the Central Government or the State Government may, by notification in the Official Gazette, authorise one or more persons who shall be competent to act under this Act: Provided that the person so authorised may, if he has reasonable ground for believing that any person has committed an offence under section 4 or section 6, may detain such person unless the accused person furnishes his name and address, and otherwise satisfies the officer detaining him that he will duly answer any summons or other proceedings which may be taken against him.

(2) Any person detained under sub-section (1) shall forthwith be taken before Magistrate to be dealt with according to law.

(3) Any person committing an offence under section 4 or section 6 shall be triable for such offence in any place in which he may be or which the State Government may notify in this behalf, as well as in any other place in which he is liable to be tried under any law for the time being in force.

(4) Every notification issued under sub-sections (1) and (3) shall be published in the Official Gazette, and a copy thereof shall be exhibited for information to the public in some conspicuous place or places as the State Government may direct.

(5) Every person authorised under sub-section (1) shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code.

26. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be proceeded against and punished accordingly.

Explanation.—For the purposes of this section,— (a) “company” means a body corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.

27. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence punishable under this Act shall be bailable.

28. (1) Any offence committed under section 4 or section 6 may either before or after the institution of the prosecution be compounded by such officer authorised by Central Government or State Government and for an amount which may not exceed two hundred rupees.

(2) Where an offence has been compounded under sub-section (1), the offender, if in custody, shall be discharged and no further proceedings shall be taken against him in respect of such offence.

29. No suit, prosecution or other legal proceeding shall lie against the Central Government or any State Government or any officer of the Central Government or any State Government for anything which is in good faith done or intended to be done under this Act.

30. The Central Government, after giving by notification in the Official Gazette, not less than three months’ notice of its intention so to do, may, by like notification, add any other tobacco product in respect of which it is of opinion that advertisements are to be prohibited and its production, supply and distribution is required to be regulated under this Act, and thereupon the Schedule shall in its application to such products be deemed to be amended accordingly.

31. (1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) Without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:—

(a) specify the form and manner in which warning shall be given in respect of cigarettes or other tobacco products under clause (o) of section 3;

(b) specify the maximum permissible nicotine and tar contents in cigarettes or other tobacco products under the proviso to sub-section (5) of section 7;

(c) specify the manner in which the specified warning shall be inscribed on each package of cigarettes or other tobacco products or its label under sub-section (2) of section 8;

(d) specify the height of the letter or figure or both to be used in specified warning or to indicate the nicotine and tar contents in cigarettes or other tobacco products under section 10;

(e) provide for the manner in which entry into and search of any premises is to be conducted and the manner in which the seizure of any package of cigarettes or other tobacco products shall be made and the manner in which seizure list shall be prepared and delivered to the person from whose custody any package of cigarettes or other tobacco products has been seized;

(f) provide for any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act and every notification made under section 30 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or both Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

32. Nothing contained in this Act shall apply to any cigarette or other tobacco products or package of cigarettes or other tobacco products which is exported: Provided that nothing in this section shall be deemed to authorise the export of any package of cigarettes or other tobacco products, not containing the specified warning and indication of nicotine and tar contents to any country if the law in force in that country requires that the same or similar warning and nicotine and tar contents shall be specified

on each package of cigarettes or other tobacco products.

Explanation.—For the purpose of this section, any cigarette or other tobacco products or package of cigarettes or other tobacco products shall be deemed to be exported before the commencement of this Act, if the necessary steps for export have already been taken notwithstanding that the actual export has not taken place.

33. (1) The Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the provisions of the aforesaid Act, shall, in so far as such thing or action is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the provisions of this Act as if the said provisio

ns were in force when such thing was done or such action was taken and shall continue in force accordingly until superseded by anything done or any action taken under this Act.

THE SCHEDULE

[See section 3(p)]

1. Cigarettes

2. Cigars

3. Cheroots

4. Beedis

5. Cigarette tobacco, pipe tobacco and hookah tobacco

6. Chewing tobacco

7. Snuff

8. Pan masala or any chewing material having tobacco as one of its ingredients (by whatever name called).

9. Gutka

10. Tooth powder containing tobacco.

Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, production, Supply and Distribution) Rules, 2004

G.S.R. 137. —

In Exercise of the power conferred by section 31 of the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (34 of 2003), the Central Government hereby makes the following rules, namely: -

1. Short title and commencement.

— (1) These rules may be called the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, production, Supply and Distribution) Rules, 2004

(2) They shall come into force on the 1^st day of May, 2004

2. Definitions. — In these rules, unless the context otherwise requires,—

(a) “Act” means the Cigarettes and other Tobacco Products (Prohibition of Advertisement and Regulation of trade and Commerce, production, Supply and Distribution Act, 2003

(b) “section” means a section of the Act

(c) “open space” mentioned in Section 3(1) of the Act shall not include any places visited by the public such as open auditorium, stadium, railway station, bus stop and such other places; and

(d) words and expressions used herein and not defined in these rules but defined in the Act, shall have the meaning, respectively, assigned to them in the Act

3. Prohibition of smoking in a public place

. —(1) The owner or the manager or in charge of the affairs of a public place shall cause to be displayed prominently a board, of a minimum size of sixty centimeter by thirty centimetre in the Indian languages(s) as applicable, at least one at the entrance of the public place and one at conspicuous place(s) inside, containing the warning “No Smoking Area - Smoking here is an offence

(2) The owner or the manager or in charge of the affair of a hotel having thirty rooms or restaurants having seating capacity of thirty persons or more and the manager of the airport shall ensure that, —-

(i) The smoking and non-smoking areas are physically segregated;

(ii) The smoking area shall be located in such manner that the public is not required to pass through it in order to reach the non-smoking area; and

(iii) Each area shall contain boards indicating thereon “Smoking Area/Non-Smoking area”.

4. Prohibition of advertisement of cigarette and other tobacco products.—-

(1) The size of the board used for advertisement for cigarettes and any other tobacco products displayed at the entrance or inside a warehouse or a shop where cigarettes and any other such tobacco products are offered for distribution or sale shall not exceed ninety centimetre by sixty centimetre and number of such boards shall not exceed two.

(2) Each such board shall contain in the Indian language as applicable, one of the following warning occupying twenty-five percent, of top area of the board, namely: - (i) Tobacco Causes Cancer, or

(ii) Tobacco Kills

(3) The board referred to in sub-rule (2) shall contain only the brand name or picture of the tobacco products and no other promotional message and picture

5Prohibition of sale to minors. —(1) The owner or the manager or the Incharge of the affairs of a place where cigarettes and other tobacco products are sold shall display a board of minimum size of sixty centimetre by thirty centimetre at conspicuous place(s) containing the warning “Sales of tobacco products to a person under the age of eighteen years is a punishable offence”, in Indian language(s) applicable.

(2) The onus of proof that the buyer of the tobacco products is not a minor lies with the seller of the tobacco products. The seller,in case of doubt, may request tobacco purchaser to provide appropriate evidence of having reached eighteen years of age.
[F.No. P-16011/2/2003-PH]

BHAVANI THYAGARAHJAN, Jt. Secy