CRL OP/25633/2026 of V.Sona Ram Vs The State Rep. by, The Food Safety Officer(i/c) on 29 October 2026

ORDER

This petition has been filed to quash the proceedings in STC.No.1125 of 2018 pending on the file of the Judicial Magistrate, Sathyamangalam, Erode District, thereby taken cognizance for the offences punishable under Sections 58 and 59(1) of the Food Safety and Standards Act,2006.

2. The case of the prosecution is that the petitioner/accused is the sole proprietor of M/s.Poornima Agency, and is a Food Business Operator who has obtained the mandatory Food Safety Licence under Section 31 of the Food Safety and Standards Act,2006 (hereinafter “the FSS Act”). Whileso on 26.06.2018, an inspection was conducted and lifted a food sample of “Cool Lip” (Tabbaq) consisting of six packets and the sample was forwarded to the Food Analyst. As per the report dated 10.07.2018, the sample was declared as “unsafe” within the meaning of 3(1) (zz) of the FSS Act and it is prohibited under Section 26(2)(iv) of the Act, Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011, (hereinafter “the Regulations) and the Notification dated 23.05.2018 issued by the Commissioner of Food Safety, since the samples contained nicotine to the extent of 0.36%. Upon receipt of the

analytical report, the petitioner/accused was issued a show-cause-notice and on the filing of complaint, it has been taken cognizance by the trial Court.

3. The learned counsel appearing for the petitioner/accused submitted that the product called “Cool Lip” is an unadulterated pure tobacco explicitly governed by the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COPTA). The sample which was taken by the Inspection authority is a tobacco product falling under Regulation 2.12 with the warning label prescribed under the COPTA. Therefore, it is a tobacco product and the complainant cannot treat this product as an “unsafe food”. The statutory definition of “food” under Section 3(1)(j) cannot be stretched to criminalise the sale of tobacco products under penal Section 59(i) of the Act. He further submitted that the notification dated 23.05.2018 was issued by the Commissioner of Food Safety and thereby, power was delegated to the Commissioner under Section 30(2)(a) of the FSS Act and issued a temporary statutory bans which cannot be converted into a tool to bypass COPTA regulations. Further, the notification issued under Section 30(2)(a) cannot override parent statutes as per the decision of the Hon’ble Division Bench of this Court. He also relied upon the judgment passed by the Division Bench of this Court in W.A.No.2093 of 2018 dated 20.01.2023. Based on the judgment of the Division Bench of this Court, subsequent contempt petition has been quashed by this Court.

4. On a perusal of the counter affidavit filed by the 1st respondent/complainant and also the submissions made by the learned counsel on either side, it would reveal that as per the Food Analyst report dated 13.07.2018, the sample which was lifted from the petitioner/accused shop as unsafe. So, it is within the meaning of 3(1) (zz) of the FSS Act and it is prohibited under Section Section 26(2)(iv) of the Act, Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011, the notification dated 23.05.2018 issued by the Commissioner of Food Safety. The Hon’ble Division Bench of this Court held that the successive notifications issued by the Commissioner of Food Safety relying upon Regulation 2.3.4 of the Food Safety and Standards (Prohibition and Restrictions on Sales) Regulation, 2011, are not within the powers of the Commissioner and the Commissioner, Food Safety has exceeded his power in issuing such successive notifications and quashed the notification on that ground. However, the said order was challenged before the Hon’ble Supreme Court, which stayed the operation of the relevant portion of the order, namely, paragraph 13.

5. It is relevant to extract the order dated 03.09.2024 passed by this Court in Crl.O.P No.1698 of 2023, which reads as follows:

26. At the same time, the Hon-ble Division Bench has expressed its doubt regarding power of the executive to issue Notification periodically imposing an almost permanent ban on tobacco product with nicotine used as an ingredient to any food product. Therefore, quashed the ban Notification on the ground that it is in excessive power conferred under Section 30(2)(a) of the Food Safety and Standards Act.

27. This portion of the Hon-ble Division Bench order is stayed by the Hon-ble Supreme Court in State of Tamil Nadu v. Jayavilas Tabacco Traders LLP & Anr in Special Leave to Appeal (C)Nos. 5140~5142 of 2023, dated 25.04.2023.

28. For ease reference, the relevant portion of the Hon-ble Division Bench of this Court and the interim order of the Hon-ble Supreme Court is extracted below:~

(i) Designated Officer, the Food Safety and Drugs Control Dept. Office of the Food Safety and Standard Authority vs. Jayavilas Tobacco Traders LLP rep.by its Partner, Mr.A.Prabaharan reported in [2023/MHC/259], “13. We are therefore constrained to conclude that the successive notifications issued by the Commissioner of Food Safety relying upon Regulation 2.3.4 are not within the powers of the Commissioner and the Commissioner, Food Safety has exceeded its powers in issuing such successive notifications. We therefore quash the notifications on the ground that they are in excess of the powers of the Commissioner, Food Safety.“

(ii) State of Tamil Nadu v. Jayavilas Tabacco Traders LLP & Anr in Special Leave to Appeal (C)Nos. 5140~5142 of 2023, dated 25.04.2023,

“we are of the view that the petitioner has made out a case for the grant of interim relief. There will be a stay of the impugned judgment dated 20.01.2023 insofar as it is contained in paragraph 13 of the impugned judgment. We, however, would make it clear that in case the respondents have a case that their acts or operations are not covered by the notification issued under Section 30(2)(a) of the Food Safety and Standards Act, 2006, they may seek redress in the appropriate forum.“

29. Two Division Bench of this Court in (1) J.Anbazhagan case (cited supra) and (2) The Designated Officer, the Food Safety & Drugs Control Department (cited supra), had consistently held that the tobacco with or without any additives is a “food product“ as defined under Section 3(j) of Food Safety and Standards Act.

6. The sample which was seized from the petitioner’s shop is a processed tobacco product intended for human consumption and therefore, consequently falls within the definition of “food” under Section 3(1)(j) of the Act. Regulation 2.3.4 of the Regulations prohibits the use of tobacco and nicotine as ingredients in any food product, as they are injuries to health. As per the report of the Food Analyst Laboratory,the sample contains nicotine at 0.36% , which, in a sample weighing 352.8 grams, works out to approximately 1.270 grams of nicotine. Nicotine is a highly addictive substance and its consumption is injurious to health,

which is precisely why the law prohibits its use as an ingredient in food products. Further, the reference in the analysis report to Regulation 2.12 does not take the product out of the Act. Therefore, the Food Business Operator is fully responsible for the safety of a proprietory food intended for human consumption. Further, the Food Safety and Standards Authority of India, by its order dated 27.03.2026, reiterated the Regulation 2.3.4 and it stipulates the tobacco and nicotine shall not be used as ingredients in any food products, and that the food product containing tobacco or nicotine as ingredients, including gutkha and pan masala with tobacco or nicotine are prohibited. The said order further requests all Commissioners of Food Safety to ensure compliance with the order of the Hon’ble Supreme Court dated 23.09.2016 and to issue or renew annually the notifications under Section 30(2)(a) of the FSS Act prohibiting such products. Accordingly, the Commissioner of Food Safety, Tamil Nadu has recently issued the Notification dated 23.05.2026 thereby prohibited the tobacco and nicotine as ingredients in food. Therefore, the complaint satisfies the essential ingredients to attract the offences punishable under Sections 58 and 59(1) of the Act.

7. In view of the above, this Court is not inclined to quash the proceedings in STC.No.1125 of 2018 on the file of the Judicial Magistrate,Sathyamangalam, Erode District.

8. Accordingly, this Criminal Original Petition stands dismissed. The trial Court is directed to complete the trial within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petitions are closed. 26-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No Uma To

1. The Judicial Magistrate, Sathyamangalam, Erode District

2. The Food Safety Officer(i/c) Code No.418, Sathyamangalam Municipality and Block, Tamil Nadu Food Safety and Drug Administration Department, Erode District.

3. The Designated Officer Tamil Nadu Food Safety and Drug Administration Department, Office of the Deputy Director of Health Services(GH Compound), Erode.

4. The Public Prosecutor High Court of Madras.

G.K.ILANTHIRAIYAN J. Uma CRL OP No. 25633 of 2026 and CRL MP Nos. 16994 and 16996 of 2026 26-10-2026