A single bench of judges Justice G Jayachandran in his order he also noted that the manufacturer of the prohibited tobacco was liable to prosecution and could not claim ignorance of how the product entered the prohibited place.

“The manufacturer of the prohibited product is liable to prosecution because their product, which is a nicotine chewing tobacco, is a food and the Supreme Court of Justice, by its interim order dated 25.04.2023, has given liberty to the respondent (manufacturers of chewed). ) to seek redress in the appropriate forum if they have a case where their acts or operations are not covered by the Notice issued under section 30(2) of the FSS Act“, the court said.

The court noted that under Section 109 of the Bharatiya Sakshya Adhiniyam 2023, when any fact was within the particular knowledge of any person, the burden of proving the fact was on that person.

The court thus observed that the manufacturer of the tobacco product had to disclose the manufacturing details of its products, to whom the products were sold, etc. and when the manufacturer chooses to remain silent, it leads to a legal presumption that the product was knowingly distributed in a state where a ban existed.

The court was hearing a plea by Jaiswal Products, tobacco manufacturer Hans Chhap against proceedings before Judicial Magistrate Katpadi on a complaint by the Food Safety Officer under Section 52(i) and 63 of the Food Safety and Standards Act, 2006 against the manufacturer. and seller.

It was alleged that the Food Safety Officer with jurisdiction over Vellore district inspected the shop of one G Mohan where it was found that banned tobacco Hans Chhap was being stocked by the shop owner without any purchase invoice. The samples were extracted and tested by the State Laboratory, where it was found to contain nicotine, an unsafe food. Based on this, the complaint was filed and was taken into the file by the Judicial Magistrate.

The petitioner manufacturing company claimed that it is a registered manufacturer under the Excise Act and the GST Act and has varied in the trade of tobacco. It was contended that tobacco would not fall within the definition of “food” for invoking the provisions of the Food Safety and Standards Act and therefore the action of the Food Safety Officer was baseless and without legal sanction.

It was further contended that though a notification was issued banning the tobacco products, that notification was stayed by the Delhi High Court and therefore on the date of seizure and complaint there was no ban. It was further argued that the manufacturer’s product was tobacco and would be covered under the COTPA Act instead of the Food Safety Act and therefore if it was not mixed with any food product, the manufacturer could not be held liable for manufacturing unsafe food. It was also argued that there is no material to show that the manufacturer has directly or knowingly sold the products in a state where it is prohibited.

The Additional Solicitor General appearing for the State argued that being a manufacturer, they were bound to explain how their products reached Tamil Nadu. He also pointed out that huge quantities of banned products found in Tamil Nadu could not be construed as being sold or transported without the connivance of the manufacturer and anything to the contrary had to be proved by the manufacturer.

The high court then noted that the state of Tamil Nadu had issued a prohibition order in 2013 as per the directions of the Supreme Court and this notification was renewed every year. The court also noted that the Government of India, though the Department of Health and Family Welfare has reinforced the need to ban chewing tobacco products.

The high court also noted that in its earlier decisions, it has held that tobacco with or without additives is a food product under the Act.

The court also noted that, in this case, the manufacturer, after issuing the notice of presentation of the case, did not disclose any information about the manufacture and sale of the tobacco products that he had exclusively. The court thus held that the manufacturer could prove its case before the court by producing documents to prove that they did not sell products to dealers in Tamil Nadu.

Thus, the court was not inclined to annul the procedure and rejected the plea.

Case Title: M/s Jaiswal Products vs State of Tamil Nadu

Counsel for Petitioner: Mr.D.Saikumaran and Mr.Goutham Raj

Advocate for Respondent: Mr.P.Kumaresan, AAG-VII Asst.by Mr.S.Udaya Kumar Govt.Advocate (Crl.Side)

Reference: 2024 LiveLaw (Mad) 418

Case no: Crl.OPNo.1698 of 2023