All India Cafe and Sheesha Association vs State of M.P. and Others

S.C. Sharma, J.—Regard being had to the similar controversy involved in the bunch of cases, they were heard analogously together with the consent of the learned Counsel for the parties and by a common order all the aforesaid writ petitions are being disposed of. Facts of Writ Petition No. 4506/2011 are narrated, as under:-- Petitioner/association, namely All India Cafe and Sheesha Association through its President, has filed the present petition initially challenging order dated 18-5-2011 and 21-7-2011 passed by the Additional District Magistrate, Indore under the provisions of Section 144 of the Code of Criminal Procedure, 1973, by which the District Magistrate has imposed a ban on smoking of hukka in the restaurants in question. Contention of the petitioner is that the petitioner/association is a society formed by persons associated with the operation of business Cafe and Sheesha Lounges and they have obtained necessary permission from the Municipal Corporation to run restaurants. It has also been stated that at present there are about 16 members in the association who are operating Cafe and Sheesha Lounges in the city of Indore. The petitioners have enclosed Annexure P-1 collectively, which are licenses granted by Municipal Corporation, Indore for running restaurants. One such license enclosed at Page 23 is valid up to 31-3-2011. The petitioners have further stated that they are carrying out their lawful business, after obtaining lawful permission and they are also maintaining proper health and hygiene facilities an quality product are being served for consumption of the consumers manufactured by the reputed companies, duly approved by the authorities/labs after testing it. The petitioners have further stated that Cafe and Sheesha Lounges are providing service to their consumers by offering refreshment, coffee, food and also by providing them hukka (a device to facilitate smoking and flavored smoking). The same is being offered to them in the form of Sheesha, but in reality the tobacco content in the said product remains minimal and contains more herbal flavours than nicotine. The petitioners have also stated that they are following the prescribed norms as provided under the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003, and therefore, by no stretch of imagination, the impugned orders could have been passed. The petitioner/association have further stated that various news items were published in local dailies against their business and based upon the news-paper reports, the District Magistrate has taken action against the Cafe and Sheesha Lounges in the township of Indore. It has also been stated that safer hukka smoking is provided through a water-filtered glass bowl, which acts as a barrier for most harmful substances of tobacco. The petitioners have also stated that they have submitted various representations to the authorities against the threats, which were received by them in respect of closure of their business and the some of the representations dated 28-12-2010 are on record as Annexure P-3 and Annexure P-4. The petitioners'' contention is that the Additional District Magistrate without there being any material on record has passed the impugned order dated 18-5-2011 by which a ban has been imposed in respect of hukka bars/Sheesha Lounges/Sheesha Cafes in the township of Indore. Learned Counsel for the petitioner has vehemently argued before this Court that the order dated 18-5-2011 passed u/s 144 of the Code of Criminal Procedure was valid for a period of two months, as provided u/s 144 itself. However, another order dated 21-7-2011 was issued again for a period of two months and now finally another order has been issued on 26-9-2011. The learned Counsel for the petitioners has vehemently argued before this Court that in case an order has to be issued u/s 144 of the Code of Criminal Procedure, 1973 for a period of more than two months, it is only the State Government, who is competent to pass an order, as provided u/s 144 (4) of the Code of Criminal Procedure. His contention is that the continuance of order passed u/s 144 beyond the period of two months is not within the domain of the District Magistrate, and thereafter, the impugned orders passed subsequently on 21-7-2011 and 26-9-2011 deserve to be quashed on this ground alone. Learned Counsel for the petitioners has also vehemently argued before this Court that the District Magistrate was not having any material to form an opinion as provided u/s 144 of the Code of Criminal Procedure. He has simply and mechanically followed the observations made by the Chief Medical & Health Officer and newspaper clippings. He has slapped the order upon the petitioners u/s 144 of the Code of Criminal Procedure. Learned Counsel has vehemently argued that in the absence of any material and in the absence of any subjective satisfaction of the District Magistrate, the impugned order dated 18-5-2011, 21-7-2011 and 26-9-2011 deserve to be quashed. Lastly, he has submitted before this Court that the petitioner association as well as all restaurant owners, who are at present running hukka bars/sheesha lounges/sheesha cafes are ready to abide with the provisions of the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and Prohibition of Smoking in Public Places Rules, 2008 and therefore, the impugned orders deserve to be set aside.

Reply has been filed on behalf of the State of Madhya Pradesh. Shri Bhuvan Deshmukh, learned Government Advocate appearing with Shri Alok Kumar Singh, Additional District Magistrate on behalf of the State of Madhya Pradesh submits that the impugned orders do not warrant any interference. He has vehemently argued before this Court that the members of the petitioner association were running hukka bars/sheesha lounges/hukka centres and on each and every table of it, hukka was being provided to the customers. He has vehemently argued before this Court that Rules of 2008 known as "Prohibition of Smoking in Public Places Rules, 2008" prohibits smoking at public place. Restaurant is certainly a public place, as defined under Rule 2 (b) of the Smoke Free Rules, 2008. He has further argued before this Court that by virtue of provisions of Prohibition of Smoking in Public Places Rules, 2008, Rule 3(1) (c), no ashtrays, matches, lighters or other things designed to facilitate smoking can be provided at public place and as hukka is certainly a device to facilitate smoking cannot be provided in a public place; meaning thereby, that on each and every table in a restaurant, placing a hukka or any other device to facilitate smoking is not at all permissible in the eye of law. He has further argued before this Court that after taking into account the overall situation that the smoking with the aid of hukka in a restaurant is harmful and dangerous to human life, birth and safety and further after taking into account the entire material on record, the District Magistrate has rightly passed the order dated 18-5-2011. He has further vehemently argued before this Court that the District Magistrate is competent to pass order u/s 144 of the Code of Criminal Procedure for a period of two months. He has also stated that the District Magistrate has not extended the period of order dated 18-5-2011 for a period of further two months. On the contrary, fresh order dated 21-7-2011 has been passed, keeping in view the material available before the District Magistrate. He has further argued before this Court that last order dated 26-9-2011 has again been passed by the District Magistrate based upon his subjective satisfaction and on the basis of the material available before him, and therefore, it is not a case where an order has been passed for a period of six months. He has argued that in case the order is required to be passed for a period of more than two months, it is certainly the State Government, who has to pass necessary orders, as provided u/s 144 (4) of the Code of Criminal Procedure. His contention is that all the petitions deserve to be dismissed as the order dated 26-9-2011 has been passed, based upon the subjective satisfaction of the District Magistrate, on the basis of material placed before him. Learned Government Advocate for the respondent/ State has also argued before this Court that after conducting raid on hukka bars, material product used for smoking was sent for chemical analysis. The Public Analyst, State Food Laboratory has vide his report dated 24-8-2011 (Annexure R-6) has informed to the Chief Medical & Health Officer, Indore that those substances/products, which are being used for smoking in hukka, were containing nicotine. Percentage of nicotine found in the products is also mentioned in the report dated 24-8-2011 submitted by the Public Analyst, State Food Laboratory. Learned Government Advocate has vehemently argued before this Court that the report submitted by the Public Analyst, State Food Laboratory establishes that the tobacco in some quantity was being used in each and every substances/products which were being used for smoking in hukka bars/sheesha lounges. He has argued before this Court that such type of smoking in a public place is not permissible, keeping in view the Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and the Rules, 2008 framed thereunder. He has also drawn attention of this Court towards the interim order dated 13-7-2011 passed by the Division Bench of Bombay High Court in the case of Crusade Against Tobacco (A Branch of the Neli Charitable Trust) and others Vs. Union of India and others, in Public Interest Litigation No. 111/2010. His contention is that in the light of the order passed by the Division Bench of Bombay High Court in the aforesaid case, the question of granting permission to Sheesha lounges/hukka bars does not arise. He has further argued before this Court that keeping in view the totality of the facts and circumstances of the case, the orders passed by the District Magistrate do not warrant any interference and the writ petitions deserve to be dismissed.

Shri Anand Agrawal, learned Counsel appearing for respondent No. 7/Indore Municipal Corporation, vehemently argued before this Court that the petitioners are, in fact, permitting young people to smoke by providing hukka on each and every table in restaurants. He has further argued before this Court that the Bombay High Court in an interim order passed in the case of Crusade Against Tobacco (A Branch of the Neli Charitable Trust) (supra), has dealt with the provisions of the COPTA and the Rules of 2008 framed thereunder. He has argued before this Court that hukka smoking cannot be permitted in a restaurant/Sheesha Lounges, as prayed by the petitioners. Learned Counsel for the Municipal Corporation has further contended that the provisions of the Act of 2003 and Rules of 2008, as considered by the Division Bench of Bombay High Court in their interim order dated 13-7-2011 are being considered by the Indore Municipal Corporation. He has also informed that the Indore Municipal Corporation is also taking appropriate steps to incorporate certain conditions, which have been incorporated by the Bombay Municipal Corporation in respect of smoking and the matter has already been placed before the Mayor-in-Council and on similar lines, general conditions of license in respect of the restaurants/hotels and other places are being incorporated. His contention is that by no stretch of imagination, smoking can be permitted as prayed by the petitioners and the impugned orders passed by the District Magistrate are based upon material available before him, do not warrant any interference. He has prayed for dismissal of all the writ petitions. Learned Counsel for the Indore Municipal Corporation has also brought to the notice of this Court that the licenses enclosed along with the writ petitions are expired licenses and at present no licenses have been issued, and therefore, the petitioners are not at all entitled even to operate a restaurant. He has prayed for dismissal of all the writ petitions.

Heard learned Counsel for the parties and perused the record.

The matter is being disposed of at motion hearing stage with the consent of the learned Counsel for the parties.

In the present case, the petitioner/association, who is representing the cause of Cafe and Sheesha owners in the township of Indore has filed this present petition initially being aggrieved by the order dated 18-5-2011 passed by the Additional District Magistrate, Indore imposing restriction in respect of smoking hukka. This Court has carefully gone through the order dated 18-5-2011 and the order only imposes a ban by prohibiting smoking in hukka bars/Sheesha Lounges and the aforesaid order was valid only for a period of two months and the same has come to an end. Another order was issued on 21-7-2011 and the validity of the same has also come to an end. The third order was issued on 26-9-2011 and the material on the basis of which the order has been issued and on the basis of which, the District Magistrate has formed his opinion, has been brought to my notice by Shri Alok Kumar Singh, Additional District Magistrate. Section 144 of the Code of Criminal Procedure reads as under:-

Power to issue order in urgent cases of nuisance or apprehended danger.-

(1) In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material fact of the case and served in the manner provided by Section 134, direct any person to abstain from it certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting it particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof:

Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any, affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate Subordinate to him or by his predecessor-in-office.

(6) The State Government may either on its own motion or on the application of any person aggrieved, rescind or alter an order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may, be shall afford to the applicant an early, opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part he or is shall record in writing the reasons for so doing.

Section 144 of the Code of Criminal Procedure empowers the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate, especially empowered by the State Government to pass an appropriate order, directing any person to abstain from certain act or the conduct or to take certain order with respect to certain property in his possession or under his management, if such Magistrate is of the opinion that such direction is likely to prevent, or tends to prevent, obstruction, annoyance of injury to any person lawfully employed, or danger to human life, substantiated in the present case. Sheesha Lounges/Hukka Bars are providing hukka (a device designed to facilitate smoking) on each and every table and as per the report of the Public Analyst, material, which is being used in the hukka is certainly containing nicotine. It goes beyond saying that hukka is harmful to human life and creates danger to human life and health. As many as 9 lakhs people are dying on account of tobacco related cancers in this country. This Court has carefully gone through the material produced before the District Magistrate and the decision of the District Magistrate was justified in forming the opinion, based on the material, which was placed before him, by passing an appropriate order u/s 144 of the Code of Criminal Procedure, 1973, thereby closing down hukka smoking activities in Sheesha Bars/Sheesha Lounges/Hukka Centres. Learned Counsel for the petitioners has placed heavy reliance upon the judgment delivered by the Apex Court in the case of Acharya Jagdishwaranand Avadhuta and Others Vs. Commissioner of Police, Calcutta and Another, and his contention is that prohibitory order can be passed for a maximum period of six months; that too, by the State Government as provided u/s 144 of the Code of Criminal Procedure and as held by the Apex Court in the case of Acharya Jagdishwaranand Avadhuta (supra). This Court has carefully gone through the aforesaid judgment relied upon by the learned Counsel for the petitioners and the controversy involved in the aforesaid case was altogether different. In the aforesaid case, Anand Margis, were objecting to the order passed by the Commissioner of Police, Calcutta in respect of performance of Tandva Dance by Anand Margis in a procession or at public places and the Apex Court in those particular circumstances in Paragraph 14 has held, as under:-

It is the petitioner''s definite case that the prohibitory orders u/s 144 of the Code are being repeated at regular intervals from August, 1979. Copies of several prohibitory orders made from time to time have been produced before us and it is not the case of the respondents that such repetitive prohibitory orders have not been made. The order u/s 144 of the Code made in March, 1982 has also been challenged on the ground that the material facts of the case have not been stated. Section 144 of the Code, as far as relevant, provides:-

(i) In cases, where in the opinion of a District Magistrate, a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct...

It has been the contention of Mr. Tarkunde that the right to make the order is conditioned upon it being a written one and the material facts of the case being stated. Some High Courts have taken the view that this is a positive requirement and the validity of the order depends upon compliance of this provision. In our opinion, it is not necessary to go into this question as Counsel for the respondents conceded that this is one of the requirements of the provision and if the power has to be exercised it should be exercised in the manner provided on pain of invalidating for non-compliance. There is currently in force a prohibitory order in the same terms and hence the question cannot be said to be academic. The other aspect, viz., the propriety of repetitive prohibitory orders is, however, to our mind a serious matter and since long arguments have been advanced we propose to deal with it. In this case, as a fact from October, 1979 till 1982 at the interval of almost two months orders u/s 144 (1) of the Code have been made from time to time. It is not disputed before us that the power conferred under this section is intended for immediate prevention of breach of peace or speedy remedy. An order made under this section is to remain valid for two months from the date of its making as provided in sub-section (4) of Section 144. The proviso to sub-section (4) authorises the State Government in case it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot, or any affray, to direct by notification that an order made by a Magistrate may remain in force for a further period not exceeding six months from the date on which the order made by the Magistrate would have; but for such order, expired. The effect of the proviso, therefore, is that the State Government would be entitled to give the prohibitory order an additional term of life but that would be limited to six months beyond the two months'' period in terms of sub-section (4) of Section 144 of the Code. Several decisions of different High Courts have rightly taken the view that it is not legitimate to go on making successive orders after earlier orders have lapsed by efflux of time. A Full Bench consisting of the entire Court of 12 Judges in Gopi Mohun Mullick Vs. Taramoni Chowdhrani, , examining the provisions of Section 518 of the Code of 1861 (corresponding to present Section 144) took the view that such an action was beyond the Magistrate''s powers. Making of successive orders was disapproved by the Division Bench of the Calcutta High Court in Bishessur Chuckerbutty and Another Vs. Emperor, Similar view was taken in Swaminatha Mudaliar Vs. Gopalakrishna Naidu, ); Taturam Sahu Vs. The State of Orissa, ; Sri Ram Das Gaur Vs. The City Magistrate, Varanasi, and Ram Narain Sah and Another Vs. Parmeshwar Prasad Sah and Others, . We have no doubt that the ratio of these decisions represents a correct statement of the legal position. The proviso to sub-section (4) of Section 144, which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order u/s 144 of the Code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants, steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of Code. It is relevant to advert to the decision of this Court in Babulal Parate Vs. State of Maharashtra and Others, where the vires of Section 144 of the Code was challenged. Upholding the provision, this Court observed:-

Public order has to be maintained in advance in order to ensure it and, therefore, it is competent to a Legislature to pass a law permitting an Appropriate Authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order....." It was again emphasized (at P. 891 of AIR):-

But, it is difficult to say that on anticipatory action taken by such an authority in an emergency where danger to public order is genuinely apprehended is anything other than an action done in the discharge of the duty to maintain order...

This Court had, therefore, appropriately stressed upon the feature that the provision of Section 144 of the Code was intended to meet an emergency. This postulates a situation temporary in character and, therefore, the duration of an order u/s 144 of the Code could never have been intended to be semi-permanent in character.

In the present case, it is true that initially an order dated 18-5-2011 was passed and a subsequent order was passed on 21-7-2011. The fact remains that a third order has been passed on 26-9-2011 based upon fresh material brought to the notice of the District Magistrate. The report of the Public Analyst is also on record and the same establishes that nicotine was being used in Hookas provided by hukka bars, and therefore, this Court is of the considered opinion that provisions of Section 144 of the Code of Criminal Procedure are certainly applicable in the present case. The impugned order dated 26-9-2011 passed by the District Magistrate is valid for a period of two months. The same has been passed, based upon the fresh material available with the District Magistrate, and therefore, the question of setting it aside on the grounds raised by the learned Counsel for the petitioner does not arise. Learned Counsel for the petitioner has also placed reliance upon the judgment delivered by the Orissa High Court in the case of Sri Dhirendranath Swain Vs. Hadi Raul, , and his contention is that no prohibitory order can be passed u/s 144 (1) of the Code of Criminal Procedure after two months from the date of initiating of proceedings u/s 144. This Court has carefully gone through the aforesaid judgment also and in the present case, prohibitory order has been passed only on 26-9-2011, based upon material available before the District Magistrate, that too, after his subjective satisfaction, and therefore, the judgment relied upon by the learned Counsel for the petitioner is of no help to the petitioners. Learned Counsel has also relied upon the judgment delivered by Gauhati High Court in the case of Premoda Medhi and Another Vs. Gauhati Roller Flour Mills Ltd. and Another, , and his contention is that ex parte order passed u/s 144 requires stating of urgency reasons for passing such order. He has further argued that mere statement that the Magistrate was satisfied about breach of peace and there was possibility of breach of peace will not be sufficient to exercise powers conferred u/s 144. This Court has carefully gone through the aforesaid judgment and in the present case, there was enough material before the District Magistrate to pass an appropriate order u/s 144 of the Code of Criminal Procedure, 1973 and keeping in view the totality of the circumstances, this Court is of the considered opinion that the impugned order dated 29-9-2011 does not warrant any interference. Learned Counsel for the petitioner has vehemently argued before this Court that smoking can certainly be permitted in a place reserved in restaurant known as smoking area or space. It is needless to mention that Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 read with provisions of the Prohibition of Smoking in Public Places Rules, 2008 provide for smoking area or space. The petitioners are duty bound to follow the statutory provision as contained in COPTA and Rules, 2008.

Resultantly, this Court does not find any reason to interfere with the impugned orders dated 18-5-2011, 21-7-2011 and the order dated 26-9-2011 passed by the Additional District Magistrate, Indore. It is needless to mention that the respondents shall also ensure the implementation of the statutory provisions of the COPTA as well as Rules, 2008 framed thereunder in respect of the restaurants, hotels and other public places in the township of Indore as well as in the State of Madhya Pradesh.

In India, tobacco contributes 56.40% and 44.90% cancers in man and woman, respectively. The total number of tobacco related deaths are about nine lakhs per year. India has the largest number of cancer cases in the world, which are on account of consumption of tobacco. Tobacco smoking results in chronic lung diseases. Death rate in tuberculosis on account of tobacco smoking is very high in the country. A large number of teen-agers, who use tobacco, are eventually killed by it; meaning thereby, it is a great evil existing in the society. Smoking is not only confined to tobacco smoking, but devices meant for consumption of tobacco are used for smoking/consuming other drugs and other intoxicating stuff. The tobacco in India is consumed by way of Bidis, Cigarettes, Cigars, Cheroots, Chuttas, Reverse Chutta Smoking, Dhumti, Reverse Dhumti Smoking, Pipe, Hooklis, Chillum and Hookah. Thus, hookah is also a device to smoke tobacco. In order to control tobacco smoking, Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (hereinafter referred to as ''COPTA'') was enacted and Rules were framed thereunder, including the Prohibition of Smoking in Public Places Rules, 2008. Section 4 of the COPTA provides that 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 will be made. "Public Place" is defined u/s 3 (1) of the Act of 2003 and the same reads as under:-

"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.

Section 3 (n) defines "smoking" as under:-

"smoking", means smoking of tobacco in any form whether in the form of cigarette, cigar, bidis or otherwise with the aid of a pipe, wrapper or any other instruments.

"Tobacco products" is defined u/s 3 (p) as the products specified in the Schedule to the Act, which includes various tobacco products including cigar tobacco, pipe tobacco and hukka tobacco. It is thus clear that smoking in public place including restaurant is prohibited by the Legislature and only exception is made as far as restaurant is concerned that smoking is permissible in separate smoking area or space in a restaurant having seating capacity of 30 persons or more. The Smoke Free Rules, 2008 define "restaurant" in Rule 2 (b) as under:-

(b) "restaurant" shall mean any place to which the public has access and where any kind of food or drink is supplied for consumption on the premises by any person by way of business for consideration monetary or otherwise and shall include the open space surrounding such premises and includes-

(i) refreshment rooms, banquet halls, discotheques, canteen, coffee house, pubs, bars, airport lounge, and the like.

Definition of "public place" defined in Section 3 (1) is further expanded by Rule 2 (d) by including the places such as work places, shopping malls and cinema halls. Smoking area or space mentioned in the proviso to Section 4 of the Act is defined in Rule 2 (e) as under:-

"(e) "smoking area or space" mentioned in the proviso to Section 4 of the Act shall mean a separately ventilated smoking room that:-

(i) is physically separated and surrounded by full height walls on all four sides;

(ii) has an entrance with an automatically closing door normally kept in closed position;

(iii) has an air flow system, as specified in Schedule I;

(iv) has negative air pressure in comparison with the remainder of the building.

Rule 3 imposes a duty upon the owner and manager of a public place including restaurant to ensure that no person smokes in the public place which would include a restaurant. Rule 3 (1) (c) also contains the following prohibition:-

No ashtrays, matches, lighters or other things designed to facilitate smoking are provided in the public place.

Rule 4 further provides that the owner/manager of the restaurant having seating capacity of thirty persons or more may provide for a smoking area or space as defined in Rule 2 (e); while sub-rule (2) of Rule 4 provides that space shall not be established at the entrance or exit of the restaurant, hotel and airport and shall be distinctively marked as "Smoking Area" in English and one Indian language, as applicable. Sub-rule (3) Rule 4 reads as under:-

(3) A smoking area or space shall be used only for the purpose of smoking and no other service(s) shall be allowed.

It is noteworthy to mention that the Government of India has issued a circular in exercise of powers conferred under COPTA and the Rules framed thereunder. The circular/letter DO No. P-16011/5/08-PH, which appears to have been issued in the year 2008, has been relied upon by the Counsel for the hukka bar owners as well as by the Division Bench of the Bombay High Court. The circular/ letter gives various clarifications in response to the representation made by the Federation of Hotels and Restaurants Association of India, New Delhi. Some of the clarifications, which are relevant for the purpose of the present petition are as under:-

(d) As per the provisions of the Act restaurants and hotels are to be smoke free. It is only by way of exception a provision has been made that hotels with 30 rooms and more or restaurants with 30 or more seating capacity may create smoking area or space. The specifications of such ''smoking area or space'' are prescribed under the Rules so that the air from the smoking area or space do not mix with the air or the rest of the building so as to protect the public from the ill effects of second hand smoking.

(e) The Rule 3 (1) (c), does not prescribe ban on sale of tobacco products, it only require that no items (lighter, ashtray, matches etc.) should be placed in a manner that facilitates smoking.

(g) As per the provisions of the hotels and restaurants are included under the definition of public place and as such nobody shall smoke in these places. It is only by way of exception a provision has been made that hotels with 30 room and more or restaurants with 30 or more seating capacity may create smoking area or space.

(h) As per the provision of the Act, only the hotels with 30 rooms and more or restaurants with 30 or more seating capacity and the airports may have a smoking area or space and not any smaller restaurants or hotels. It has been stipulated that the said smoking area or space shall not be established at the entrance or exit so as to ensure that people (non-smokers) are not forced to pass through the smoking area or space.

(i) For the effective implementation of the Act, it has been provided that no services shall be allowed in the ''smoking area or space''. However, services in the rooms designated as ''smoking room'' are not prohibited.

It is contended on the basis of the above circular/letter that services in rooms designated as ''smoking room'' are not prohibited. Hence, the other services are also permissible in the smoking area of the restaurant.

It is pertinent to note that a Pubic Interest Litigation was preferred before the High Court of Judicature at Bombay and the Bombay High Court has passed an interim order in PIL No. 111/2010 on 13-7-2011. The Bombay High Court has dealt with the circular issued by Government of India. In the aforesaid case, a condition was imposed by the Municipal Corporation of Greater Mumbai vide its circular dated 1-7-2001 for incorporation of Condition Nos. 35 to 37 to the General Conditions in respect of licenses, eating house licenses and those conditions were subjected to judicial scrutiny before a Divisional Bench. The Division Bench by its interim order dated 13-7-2011 has repelled the challenge of the restaurant/hotel owners against the circular dated 1-7-2011 and has held that similar conditions ought to have been incorporated by the Corporations and Municipal Councils in other region of the State. The Bombay High Court in Paragraphs 11 to 18 has held as under:-

Having heard the learned Counsel for the parties, we see no merit in the submissions/contentions raised on behalf of the private respondents running restaurants with hukka bars. The COPTA is a Central enactment made pursuant to the resolution passed by the 39th World Health Assembly on 15 May, 1986 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. Article 47 of the Constitution of India enjoins the State to achieve improvement of public health in general. The Statement of Objects and Reasons of COPTA recognizes the fact that 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. The COPTA is enacted to achieve healthier life-style and the protection of life enshrined in the Constitution and seeks to improve public health. Section 2 reads thus:-

Declaration as to expediency of control by the Union.-- It is hereby declared that, it is expedient in the public interest that the Union should take under its control the tobacco industry.

An eating house, which is called a restaurant, is declared to be a public place. Section 3 (n) reads thus:-

"smoking", means smoking of tobacco in any form whether in the form of cigarettes, cigar, bidis or otherwise with the aid of a pipe, wrapper or any other instruments.

Section 4 imposes a prohibition on smoking in any public place and the proviso thereto has carved out an exception whereby a separate provision for smoking area or space can be made in certain specified hotels/restaurants. The entire premises of a hotel or a restaurant referred to in the proviso continue to be a "public place" and "smoking area or space" defined under Rule 2 (e) is essentially a part of such public place. This is also clear from Rule 4. Rule 3 casts a statutory obligation on person in-charge of the affairs of public place and sub-rule (3) of Rule 4 prohibits any other services being allowed in a smoking area or space. Sub-rule (4) of Rule 4 again carves out an exception in respect of a hotel having 30 rooms or more. Considering the scheme of the Act and the Rules, it is not possible to accept the submission that the "smoking area or space" cannot be considered to be a "public place". As discussed above, proviso to Section 4 is in the nature of exception and there is nothing in the said section or Rule 2 (e), which would warrant the interpretation advanced on behalf of the private respondents.

If such interpretation is accepted, it would also not be in consonance with the settled norms of interpretation of Statute. An exception cannot be interpreted in the manner which will defeat the substantive statutory provisions.

It is also not possible to accept the submission that prohibition contained in Rule 3 (1) (c) is not applicable in a "smoking area or space" within a restaurant/hotel and the contention that there is no prohibition against supplying ashtray, matches, lighters or other things designed to facilitate smoking in such smoking area or space. This argument cannot be accepted since it would defeat the legislative intent. The definition of the word "smoking" includes "any other instruments" and tobacco products defined in Section 2 (p) read with the Schedule includes hookah tobacco. The "smoking area or space" within a public place, which is an exception carved out, is thus in the nature of a concession which has been given to an individual and cannot be construed to be conferring any right on the Owner, Proprietor, Manager, Supervisor or Person-in-Charge of any restaurant or hotel. It was also sought to be contended that in view of Rule 4 (4), since "services" are allowed to be provided in specified separate smoking rooms in a hotel, there is no justification for prohibiting such "services" in a "smoking area or space" in a restaurant or a hotel. This argument clearly overlooks that Rule 4 (4) deals with only "separate smoking rooms", which cannot be equated with a "smoking area or space". The articles mentioned in Rule 3 (1) (c) are those "designed to facilitate smoking" and cannot be termed as "services" as contemplated by Rule 4 (3). Rule 4 (3) imposes blanket restriction against providing any services in "smoking area or space" and such a restriction will obviously apply to such smoking area or space in a restaurant or in hotel.

The submission made on behalf of the private respondents on the basis of instrument (i) is also misconceived. All that this instruction means is that the prohibition against providing any services in a smoking area or space does not apply to smoking rooms in a hotel. That is to say, in a smoking room in a hotel, food and beverages may be provided by way of room services, but such services cannot be provided in the smoking area/space in a restaurant.

The rationale underlying instruction (i) is obvious. A smoking room in a hotel may be occupied by the guest for one day or several days. Such a guest can not be denied food and beverages by way of room service or other services like laundry service or entertainment through television watching in the smoking room in a hotel.

On the other hand, the customer in a restaurant, who is otherwise not allowed to smoke in any public place including a restaurant [Section 3 (1)] is merely given a concession to smoke in a separate area or space called smoking area or smoking space in the restaurant. He may smoke one cigarette or more in the smoking area, but the rule making authority, in consonance with the legislative object as emerging from the Preamble and the Statement of Objects and reasons for the Act, does not want to encourage the customer in the restaurant to spend long hours in the smoking area of the restaurant. He would be encouraged to spend long hours in the smoking area if he were to be provided with services like food and beverages there or were to be provided other services like entertainment through television watching in the smoking area.

It, therefore, stands to reason that the rule making authority, which prohibits person-in-charge of public places including restaurants as defined in the Section 3 (1) from providing devices like lighter which facilitate smoking and which prohibits a restaurants owner from providing any services to the customers in the smoking area of the restaurant, could not be attributed the intention to permit the restaurant owner to provide gadgets like hookas in the smoking area of the restaurant. Hooka is more than a device that facilitates smoking. Hooka is the gadget through which the person smokes. Providing a gadget like hooka to young boys and girls with impressionable minds is not merely facilitating them to smoke, but indeed encouraging and even exciting them to smoke. However, exciting the service may be, it falls within the mischief of sub-rule (3) of Rule 4.

The last submission that the impugned conditions are violative of Article 19 of the Constitution of India, need not detain us long since the impugned conditions provide what is mandated by the Central Statute and Rules and are in the nature of reasonable restrictions. Article 19 (1)(g) permits imposition of a reasonable restriction on the ground of protection of the interests of the general public. Article 47 of the Constitution contains a Directive Principle of the State Policy and provides that the State shall regard the improvement of public health as amongst its primary duties. While considering the effect of the Directive Principles contained in Part IV of the Constitution of India, particularly in the context of principles of interpretation of a statute, in case of 1978 (37) FLR 280 (SC) the Hon''ble Supreme Court has observed thus:-

The mandate of Article 37 of the Constitution is that while the Directive Principles of State Policy shall not be enforceable by any Court, the principles are ''nevertheless fundamental in the governance of the country'' and ''it shall be the duty of the State to apply these principles in making laws''. Addressed to Courts, what the injunction means is that while Courts are not free to direct the making of Legislation, Courts are bound to evolve, affirm and adopt principles of interpretation, which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of Judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive Principles of State Policy.

While interpreting the provisions of COPTA and the Rules framed thereunder, we must have due regard to Article 47 and the fact that the Act was enacted with the expressly stated objective of improving public health and in accordance with the resolutions passed by the WHO. Section 2 of COPTA contains declaration of expediency to enact the Act in public interest. Hence the challenge based on Article 19 is also without substance.

For the aforesaid reasons we repel the challenge levelled by the private respondents, who are running restaurants with hukka bars against the circular/letter issued on 1-7-2011, by the Mumbai Corporation, Greater Mumbai. In fact, we are of the view that similar conditions ought to be incorporated by the Municipal Corporations and Municipal Councils in other regions of the State. Counsel for the State of Maharashtra states that this shall also be done within one month from today. Stand over to 28 July, 2011.

In the present case, hukka bars/eating houses/restaurants are certainly public places, as defined under the Smoke Free Rules, 2008, and therefore, by no stretch of imagination, smoking/using a hukka, can be permitted on each and every table of restaurants in question. Rule 3 (1)(c) of the Smoke Free Rules, 2008 also casts a restriction for providing ashtray, matches, lighters or other things designed to facilitate smoking in the public places, and therefore, by no stretch of imagination, as hukka is only a device designed to facilitate smoking can be provided in the public place. However, all the owners/management of the restaurants, keeping in view the parameters provided under the Smoke Free Rules, 2008, can certainly make a provision for providing smoke area or a space, as defined in Rule 2 (e) of the Smoke Free Rules, 2008, but at the same time, the statutory provisions as contained under COPTA and the Rules framed thereunder are to be strictly followed. It is impossible to conceive that the COPTA and the Rules framed thereunder grants a permission to restaurant owners/hotel owners to provide hukka on each and every table in a restaurant, as argued by the learned Counsel. This Court is of the considered opinion that hukka cannot be provided on each and every table in a restaurant. If the restaurant or hotel owners wish to make a provision for smoking, the same has to be in consonance with the Act, 2003 and the Rules of 2008. Resultantly, no case for interference is made out in the matter and this Court is of the considered opinion that the District Magistrate was well within its domain to pass orders u/s 144 of the Code of Criminal Procedure, as smoking hukka is certainly harmful to public health and there was enough material before the District Magistrate to pass orders u/s 144 of the Code of Criminal Procedure. This Court is also of the considered opinion that even after expiry of the order passed u/s 144 of the Criminal Procedure Code, smoking or providing hukka on each and every table in a restaurant is not permissible. The authorities are directed to ensure strict compliance of Cigarettes and Other Tobacco Products (Prohibitions of Advertisement & Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 and Prohibition of Smoking in Public Places Rules, 2008 in the entire State of Madhya Pradesh, by taking appropriate action against those restaurants and hotels which are not complying with the statutory provisions, as contained in the Act and the Rules framed thereunder.

With the aforesaid observations, the writ petitions stand dismissed.

No order as to costs.