The Madras High Court hearing the Tamil Nadu government’s argument against tobacco anchored around Article 47 said it is like the devil quoting scripture or pot calling the kettle black when it is raising huge revenue through liquor sale via Tamil Nadu State Marketing Corporation (Tasmac) outlets.

Justice GR Swaminathan said so in his recent order on a petition filed by ES Mydeen and Co, which sought the quashing of an order issued by the Designated Officer (Thanjavur District) of Tamil Nadu Food Safety respondents in October 2021 to stop selling raw tobacco, and sealing godowns. He quashed the department’s order.

Arguing for the respondents, the Additional Advocate General said by removing dust and sand, spraying the tobacco leaves with jaggery water and cutting them into small pieces, there is an element of manufacture. Food Safety and Standards (Prohibition and Restrictions on Sales) Regulations, 2011 mandates that nicotine shall not be used as an ingredient in any food product. In this case, test reports have indicated that nicotine is present in the sample, which is why, the officials proceeded to issue the impugned orders and notices.

After going through the respondent’s test reports, Justice Swaminathan said that on account of the sprinkling of jaggery water, there has been no change in the nicotine content. Jaggery water is sprayed only to ensure that the leaf does not turn brittle, and the nicotine content in the tobacco remains the same before and after the liquoring process.

Nicotine is inherent in the product itself. It is not as if the petitioner has added nicotine as an ingredient in the product. The State has not prohibited the cultivation of tobacco as it has done in the case of Ganja. There is also a Central Tobacco Research Institute located in Vedasandur, Dindigul, which trains tobacco farmers regarding cultivation.

“Applying the ratio laid down by the Division Bench in Pachiappa Chettiar case, I hold that the petitioners are dealing only with unmanufactured tobacco and that they have not been mixing the same in any food product,” the order said.

State monopoly

The AAG would contend that consumption of tobacco is causing serious health hazards and that it is injurious to public health and that this Court should not lose sight of Article 21 of the Constitution while considering the case.

“The above contention of the State would have impressed me if the State had enforced Article 47 in its totality. Unfortunately, that is not the case. The State has monopolised the privilege of selling liquor. The government of Tamil Nadu is raising huge revenue through liquor sales. Tasmac, a government-owned company, has thousands of retail outlets throughout the State,” the order said.

“Regulation 2.3.4 only mandates that tobacco and nicotine shall not be used as ingredients in any food products. Since the petitioners are dealing only with unmanufactured tobacco, they have not breached any of the statutory provisions,” the order added