Salahuddin Panhwar , J.--By this common judgment, we are going to dispose of above titled Constituti onal Petitions.
C.P. No, D-343/2017 prays as that:--
(a) to direct Respondents No, 1 to 10 and their subordinates, police including all SHOs working within their supervision, all Choki Incharge under supervision of SHOs' and all police posts and also police pacts and lower officials of police to provide legal and .lawful protection to the J.A. CHAHLIY A MASALA Company , its employees, distributors, authorized agents, worker-s, labors and transporters.
(b) To direct Respondents No, 2 to 10 to pass oral as well as written direction to all concerned officials working in their supervision not to interrupt, not harass, not demand illegal gratification, not stop form distributing, selling, transporting and not to create undue harassment and illegal demands form 'the said employees, distributors, authorized agents, workers, labors and transporters J.A. CHAHLIY A MASALA company .
2. Petitioner states that he is running a company namely J.A. CHAHLIY A MASALA registered with Trade Mark Registry , Karachi, having registration certificate issued by that authority; such registration is for the purpose of manufacturing and selling of Chahliya masala, sweet toffee, bubblegum, chocolate, pan masala and all other confectionary items included in class 30 of Trade Mark Registry; petitioner's company is carrying a lawful business and their rights to run such business are guaranteed under the Constitution, petitioner , being registered with FBR, paying all applicable government taxes; that petitioner's company has authorize d agents all over Sindh and is transporting the goods all over Sindh specially to Tando Allahyar ; Districts Hyderabad; Matyari, Shaheed Benazirabad, Sanghar , Mirpurkhas, Tando Muhammad Khan and Thatta engaging labourers and being source of livelihood for sellers, contractors, shop owners all over the province; that during business activities such as distribution, selling and transporting of their products from one District to another , different police officials/of ficers of various Districts working under supervision of SSPs' as Defendants No, 2 to 10, demand illegal gratification from subordinate staff, sellers, distributors and authorized agents of the petitioner's company and threatened to disallow transportation from one district to another in case their demand is not fulfilled hence business activities of petitioner's company are seriously suf fering with resultant financial losses, hence this petition.
3. CP No, D-1075/2017 seeks:--
(a) To direct Respondents No, 6 and 7 to take strict action against sellers, suppliers /and manufacturers of cheap liquor and gutka in the District Tando Allahyar, register cases against all those individuals who are openly involved in this hazardows business in different areas of the District and submit detail report before this Court within a month.
(b) To direct Respondent No, 7 to take strict action against private respondents who are confirmed involved in manufacturing, known manufacturer and sellers of gutka and cheap liquor and have destroyed the established manufacturing units in the district.
(c) To direct Respondent No, 3 to provid e details on the laws/legislation enacted or drafted for prevention and elimination of this hazardous business which as af fected our youth and society .
(d) To direct Respondent No, 8 to submit a comprehensive report on how many people have lost their lives or have suffered mouth cancer and other diseases due to consumption of gutka, toxic liquor .
(e) To direct Respondents No, 9 and 10 to furnish compete report in this Court showing measures and actions taken against police officers who support gutka and cheap liquor business and receive illegal gratification from them in return of running their illegal business.
4. Petitioner in his petition submitted that he is law abiding citizen and member of Right Now Pakistan, an NGO, working volunteer in Tando Allahyar District, having passion to work against social evils; that petitioner has learnt that cheap liquor is being sold openly with support of police and further that gutka which is another poisonous material is also being sold in almost every nook and corner of the said district and thousands of youth and the people of other age groups including women are being affected by the diseases; that unfortunate aspect of all this is that such illegal activities are being done under auspices of police and other state institutions that are generating hundreds of thousands of rupees illegally from this hazardous business; that despite loss of precious lives every year due to consumption of toxic and haza rdous materials, gutka, etc there is lack of action by police. It is stated by the petitioner that any perpetrators involved in this business are doing business without any fear as if at all they are booked, they are tried under Sections 269, 270, etc. of the PPC which carry lesser sentence and fines and there is no particular legislation in petitioner's knowledge which has been enacted to curb this menace. It is stated by petitioner that he, from time to time, moved complaints to respondents but all in vain. That petitioner filed an application bearing No, 2/2014 before the Court of District & Sessions Judge, Tando Allahyar , in response to that application police falsely claimed that present petitioner is habitual criminal and involved in many criminal cases; that sale of cheap poisonous liquor , gutka and other toxic materials apparently target health. The Petitioner recently moved a complaint to authorities pointing out the centers and sellers of drugs as well as gutka and mainpuri, he was called by police and such statement was recorded but no action was taken against this illegal business, hence this petition.
5. It is material to add here that during hearing of the above petition an order was passed on 18.8.2017 which included "In our view that type of business canno t be continued with protection of police and it appears that some of the relevant officers of food department that cannot be ruled out are involved and they have patronized the business.
Mr. Aurangzeb Talpur Advocate further contends that Sindh Government has enacted law with regard to complete ban on these type of hazardous food items Accordingly DIGP Hyderabad is hereby directed to launch a campaign against all the factories and shop keepers who are selling hazardous food in the name of Chahliya with various brands and Mr. Jhamat Jethanand, Senior Counsel was appointed to assist the Court as amicus curie as the issue involved was serious in nature.
It were the consequence(s) of the above order as well follow-up order(s) in above matter which resulted into appearance of the intervener for his impleading as one of the parties as he (interve ner) claimed to have suffered in consequence to order(s) passed in above matter .
6. The petitioner in CP No, 343/2017 has contended that petitioner is engaged in a lawful trade; paying all taxes therefore was/is entitled for continuity of his business. activities without any hurdle but the officials, particularly police, does interfere; that his business, being lawful, requires guarantee provided by the Article 18 of the Constitution.
7. On the other hand, the petitioner in CP No, 1075/2017 argued that the business of selling Gutkha, Mainpuri as well tobacco pan masalas are hazardous/injurious to health hence cannot be termed as lawful trade. He even referred to photographs attached with petition so as to show the effects of use of such Gutkha, Mainpuri and Tobacco Pan Masalas; he also submitted a copy of bill for Prohibition of preparation, Manufacturing, Storage, Sale and Use of Gutka and mainpuri in Sindh Province, processed for its approval. He lasted while praying that complete ban is required on such illegal activity .
8. The learned counsel for the intervener claimed that he is a manufacturer of Dry Tobacco Pan Masala under Trademark; operating in the name and style of M/s New Farooq Products; is a recognized manufacturer of Tobacco product by Pakistan Tobacco Board as their name is listed on Page IV, 26 and 40 of Tobacco Statistical Bulletin Volume 40-41. He added that CP. No, D-343 of 2017 was against harassment of police officials in business product i,e, J. A. Chahliya Masala hence issue of tobacco Pan Masala was never before this Court but in consequences to order of this Court dated 18.8.2017 and regularly paying all the taxes, duties, cess/ fee imposed under various laws on him and his business; registered under the Factories Act, 1934; is an active member of Chamber of Commerce and Industry , Hyderabad; registered with Employees Old Age Benefits Institution and Sindh Employees Social Security Institution; has invested huge amounts in setting up his state of art manufacturing unit for manufacturing of chewing tobacco products. He has also imported machinery parts from abroad for the purpose of setting up the unit; was also successful in exporting its quality Chewing Tobacco via United Arabs Emirates to other countries with permission of Pakistan Tobacco Board and other concerned departments; had also filed Civil Suit No, 521 of 2013 against the Secretary Home Department, Police Officers and Director General Excise and Taxation and on 23.04.2013, the Honourable High Court was pleased to grant restraining order against the defendants therein from interfering in the manufacturing and lawful business of the present Intervener . In last it was claimed that tobacco is not food and gave references to number of well-known dictionaries in support of his such contention. Section 2 (9) of the Pure Food Ordinance, 1960 defines 'food' yet this definition does not cover chewing tobacco since chewing tobacco' is a non-nutritious edible item. It is chewed and then spitted out, not taken into stomach. It is no food. The case of Abdul Razzak and Co. vs A.C. Customs (PLD 1993 Karachi 227) was referred for definition of "food". He also referred to judgments of India Courts whereby such like product was not included in food. The Section 2 (e)
Tobacco Vend Act, 1958 recognizes chewing tobacco as a form of manufactured tobacco. The Article 9 of the Constitution secures liberty of a person in all forms. It is the right of a person to enjoy freedoms and facilities provided in life with the limits prescribed by law; production or consumption of tobacco is recognized by laws as lawful and thus comes within the limits prescribed by law. Its consumption only affects the person consuming it and does not extend to people surrounding him. Prohibiting such an act will be in breach of this Article and thus unconstitutional hence this Court cannot ban manufacturing of chewable tobacco unless there is clear legislation to impose ban over it. Reliance was made to case of Arshad Mehmood (PLD 2005 SC 193) and Adeel-ur -Rehman (2005 SCMR 1). It was added that judiciary cannot assume the role of legislature. Reliance was made on the cases of Rahimud Din v. Sabahuddin (2016 MLD 20) and MQM v. Province of Sindh (2014 CLC 335). The bad effects of smoking were also highlighted as well of other articles including soft-drink etc which however are not prohibited.
9. Mr. Jhumat Jethanand advocate/Amicus Curiae contends that all the sachets/pa ckets containing `adultered food' as defined in Section 2(1)(i) to (vii) of the Pure Food Ordinance, 1960; definition of `food' u/S. 2(9)(i) to (v) and explanation of Pure Food Ordinance, 1960 covers any article used as Food or Drink for human consumption other than drugs and includes substances, matters, chewing gum and other products of the like nature described in sub- clause (i) to (v) of sub-Section 2(9). Under the explanation the article shall not cease to be "Food" if it is capable of being used as medicine. Material placed in the above petitions shows that above articles Gutka etc. contain tobacco, Betel Nuts, Lime, Water, Saffron flavours etc., put in plastic Sachets/packets is sold in market without any restriction for no other purpose but for human consumption/chewing and mostly purchased by children of tender age without knowing the dangerous effects hence all the articles under different name of Gutka Manpuri, Dry Tobacco, Pan Masala etc. is tendered for human consumption/chewing are cove red by the definition of "Food".
There is complete mechanism under the Pure Food Ordinance, 1960 to bring the offenders before the Court of law and get them punished. The record shows that the provisions of Sections 12 and 21, Sections 7 to 11 and 18 and Sections 3 to 6 and 13 are being violated with immunity through the connivance of police and ignorance or lack of knowledge or interest by the local authorities as defined u/S. 2(15), Pure Food Ordinance, 1960. There is a complete failure of performance of duty by local authority u/S. 15 of the Ordinance, 1960. There is' failure by Public Analyst and Inspector u/S. -14 and 16 respectively . Material including the pleadings and documents produced by the intervener show that the entire business of manufacturer , storage and sale of above products is claimed without any license under any law including Section 11 of Pure Food-Ordinance, 1960. Contentions of the intervener that their products are governed under Tobacco Laws are not correct. Intervener himself has admitted that his products contain only 10% of Tobacco the remaining material in the product is Betal nuts, Lime, Water, Saffron, flavours etc. It is admitted that the packet of interveners contain warning with regard health and not to be used by person under 18 years of age; the very warning on the products proves that it is injurious to health. There is no guarantee if the sachet will not be having Fungus, Silica, Coloform bacteria after some time and there is no date of manufacture or expiry on the sachets. Comparison of the sale product with cigarette or alcohol is out of place as both these items are used mostly by adults while the product of intervener is admittedly being used by the children of tender age and have cursed irreparable injury to the nation. Tobacco when used for sniff or smokin g is not food but when it is used for chewing purpose or consumption it is food. The Indian decision, quoted on behalf of interveners beside being irrelevant does not show if the exercise conducted by this Court, the reports of officials and the uncontroverted analysis declaring Gutka etc injurious to health and not fit for human consumption, were available before that Court passing the said decision. Complete ban on manufacture, sale and storage of Gutka etc will not in an manner interfere with the legal business and/or right of human begin to take pan masala etc. The business of all the ingredients used in Gutka etc is not being prohibited. All the items in their original pure shape are available in market. Anyone can purchase arid prepare pan masala for himself but not for sale. He referred the case laws reported as PLD 2009 Lahore 22; 2012 MLD 636; 2012 P.Cr.L.J. 1075; PLD 1978 SC 220; - PLD 2006 Ki 479; PLD 2004 SC 271; PLD 2004SC 482; PLD 1994 SC 102 & 693; 1994 SCMR 2061 and PLD 2001 SC 149. He lasted while submitting that that this Court is competent to issue appropriate directions even for making legislation.
10. We have heard the arguments of the respective sides; learned amicus curie as well have gone through the available record.
Before going deep into the matter it is necessary to make certain things' facts clear in view of the specific plea of Intervener that orders of this Court were consequences of suo-mota exercise. There were two petitions, pending before this Court; through one JA Chahliya, claiming its business of 'JA Chahliya Masala' to be lawful, prayed for on order to restrain officials from interfering in such business activities not limited to any District but whole Sindh province as shall stand evident from para-7 of petition which reads as.: "07. That, the said petitioner is transporting the goods all over the Sindh especially to Tando Allahyar , District Hyderabad, District Matyari, District Shaheed Benazirbad. " therefore, challenge of Intervener that matter was confined to "Tando Allahyar District' only was/is entirely misconceived. The order dated 18.8.2017 was in consequence to a report issued by Public Analyst Food Analysis Laboratory Hyderabad bearing No, DHO/T AR/ Gen:/4018/19 dated 10.8.2017 which reads as: "Opinion The above samples of tobacco powder form Chahliya Masala, Lime Water, Betel Nuts, Chahaliya Masala (for sale) contains lime, catechu, tobacco, etc as their ingredients; these ingredien ts are not food items. These are all injurious to health. Hence samples does not recommend for human consumption within the meaning of Section
(5) of Pure Food Ordinance, 1960 and also contravenes the provision of Rule (11) of Sindh Pure Foods Rules, 1965, with respect to the test performed."
The issue prima facie involved sale of hazardous articles, offered for human consumption hence Article-9 of the Constitution directly became involved. The word life is not limited to mere breathing but demands much more from the State which includes an action by the State to remove all threats likely to abridge such guarantee. The petitioner (CP No, 343 of 2017) was insisting issuance of instructions while claiming sale of declared hazardous articles as lawful trade while in petitioner , (CP No, 1075/2017) was seeking direction for action against all involved in hazardous business. In either petitions the issue of hazardous effects on 'LIFE' of public at large was involved hence as per the case of M.Q.M. & Others v. Province of Sindh & Ors (2014 CLC 335) relied by learned counsel for the Intervener himself, this Court can issue any appropriate directions for enforcement of a fundamental right.
Relevant portion thereof is reproduced hereunder: "57. When a right is safeguarded by a Constitutional guarantee is called 'fundamental right' because by doing so it has been placed beyond the power of any organ of the State, whether , Executive or Legislative to act in violation of it. Such a right cannot be taken away , suspended or abridged. The fundamental rights are natural rights which are personal to the individual as a citizen of a free and civilized community . The essential characteristic of fundamental rights is that they impose limitations, express or implied, on public authorities, interfering with their exercise. It is the duty of the Court to protect Fundamental Rights granted in the Costitution. Article 199 of the Constitution empowers this Court to issue any appropriate directions for the enforce ment of Fundamental Rights conferred by the Constitution. The superior Courts time and again pronounced that any law which is inconsistent and in contravention of fundamental rights or which took away or abridged such rights, is void, to the extent of such contravention. Paramountcy of fundamen tal right is recognized by the Constitution limiting the powers of State organs to the extent that what had been conferred by the Constitution is fundamental rights, could not be taken away or abridged by the State. What had been guaranteed by the Constitution is a fundamental right could not be annihilated or taken away in the garb of reasonable restrictions. The infringement of fundamental rights can be in many ways."
Therefore, this Court passed a general order thereby directing the DIGP Hyderabad, Mirpurkhas and Shaheed Benazirabad to launch a campaign agains t all the factories and shop keepers who are selling hazardous food in the name of `Chahliya' with various brands. It was further made clear by choosing specific and clear words as: "... Such campaigns should however be not a formality but should be strictly in accordance with law and procedure thereby assuring that every single guilty of contravention of any law, costing serious damaging effect upon health and nation even , receives his due. If such items are not otherwise declared as injurious or in contravention of any law the requisite testing /chemical examination be got done first so as to prevent such campaign being exploited on plea of any prejudice to guarantee which law otherwise requires."
From above, it was/is never disputed that the balance was required to be maintained which otherwise is the obligation/duty of the Executing Functionaries. We, being conscious of law, would safely say that the protection of Article 18 of the Constitution is available to 'lawful trade/business' only which (lawful trade) even is subject to certain limitations hence plea of earning livelihood or dependency of number of persons in a business alone would not entitle one to get the protection of Article 18 of the Constitution. Since these pleas shall always be available for one committing a patent crime even therefore, the protection of Article 18 of the Constitution was deliberated worded in specific words whereby such protection could only be claimed if one satisfies coexistence of two conditions i.e:--
(i) business/trade must be lawful; and
(ii) person, doing it, must follow the relevant laws, regulating such business/trade; Reference may be made to the very case of Arshad Mehmood & others v. Gout of Punjab and others (PLD 2005 SC 193 ), relied by learned counsel for the Intervener wherein it is- held as:
23. It is well settled that the right of trade/business or profession under Article 18 of the Constitution is not an absolute right but so long a trade or business is lawful a citizen who is eligible to conduct the same cannot be deprived from undertaking the same, subject to law which regulates it....
We would not hesitate that fulfilling first condition is mandatory while the exception can be to second condition because a failure to follow regulations could result in bringing penal clauses into operation hence fulfilling of requirements subsequently even may satisfy second condition but lacking or deficiency of second condition cannot declared a lawful trade/business as 'unlawful' as was the ratio of case of Arshad Mehmood supra. Needless to add that mere self-imagination of being governed under a particular law alone would not turn an unlawful business into lawful.
11. As regard the plea of suo-moto jurisdiction. It would be sufficient to say that relief, sought in. Petition No, 343/2017 was specifically relating to sale of tobacco Masla as lawful therefore, this Court for an appropriate order , got the product of petitioner (CP No, 343/2017) examined. For which this Court in exceptional matter , as was before this Court, can. Reference may be made to the case of Adeel-ur-Rehman referred by counsel for Intervener wherein it is held as: "14. In the case at Serial No, 4, it was held that investigation in complicated ques tions of fact normally should be left to be done by the authorities concern ed but the High Court while exercising writ jurisdiction can take evidence or even additional evidence when such evidence is necessary ."
It was only after such report which necessitated for issuance of a general direction only to stop sale of hazardous 'injurious to health articles/items which otherwise was/is not permissible. Thus, issuance of such directions were always within four corners of the issue, involved in the petitions, therefore, the Intervener was again fell in misconception that this Court exercised suo-moto jurisdiction. Thus, the cases of Dr. Imran Khattak and Akhtar Abbas , so relied by the Intervener have got no relevancy . These were the prima facie reasons because of which the review , so filed by the Intervener , never merited any consideration.
12. Having said so, before attending the merits of the case it would be necessary to say that these petitions as well case of Intervener are relating to `Gutkhas/mainpurr and 'tobacco Masala'. The manufacturing of GUTKHAS/MAINPUR1 since has never been claimed to be lawful rather there have been notifications over complete ban on same hence this aspect does not need much discussion.
13. Now, focus remains with regard to sale of 'TOBACCO PAN MASALA' for which the Intervener also took plea that dry tobacco Masala was never before this Court. Suffice to such plea, it would be sufficient to refer the report of Public Analyst whereby the product of petitioner in C P. No, D-343/2017 was detailed to be containing almost all those articles which the product of Intervener does. Even otherwise, at no times any direction with regard to status of dry tobacco alone was issued by this Court but all the orders were confined to hazardous foods and sale thereof without their being first examination/declaration that same are safe for human consumption.
The case of present Intervener and that of petitioner (CP No, 343/2017) are almost identical though differently argued. Now , we would take every plea so raised by the Intervener .
14. It has been argued with much force that the 'tobacco Pan Masala' is not a food for which references to different dictionaries have been made. At the outset, we would not hesitate in saying that it is by now a well settled principle of law that legislature intents can always be gathered either from the expre ss language of the statute or by necessary implications. If the words of the Statute are themselves clear and unambiguous it is never necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature. Reference may be made to the case of Mumtaz Hussain v. Nasir Khan (2010 SCMR 1254 ) wherein it is held as: "9. Legislature intents can always be gathered either from the express language of the statute or by necessary implications. If the words of the Statute are themselves clear and unambiguous no more is necessary to expound those words in their natural and ordinary sense, the words themselves in such a case best declare the intentions of legislature."
It is also equally well settled principle of interpretation that the Courts are not supp osed to read into and/or delete any word but requires giving the meaning which is intended unless same is otherwise ambiguous. Reference may be made to the cases of Zahid Iqbal v. Hafiz Muhammad Adnan and others (2016 SCMR 430) and Shakeel Sardar Awan v. Election Appellate Authority (2016 SCMR 242). Therefore, there appears no legal justification to take the meaning of the word `food' from dictionaries when the Pure Food Ordinance, 1960 itself, defines the word 'food' as: Section 2 (9) "food" means any article used as food or drink for human consumption other than drugs , and includes;
(i) any substance which is intended for use in the composition or preparation of food;
(ii) any flavoring matter or condiment;
(iii) any colouring matter intended for use in food;
(iv) chewing gum and other products of the like nature; and
(v) water in any form, including ice, intended for human consumption or use in the composition or preparation of food Explanation. An article shall not cease to be food by reason only that it is also capable of being used as a medicine .
The deliberation in not limiting the meaning of 'food' to its ordinary dictionary meaning which are: "as a nutritious substance especially sold in form that can be taken into an anim al or plant to maintain life and growth."
Hence is sufficient to conclude that it had some wisdom which Legally cannot be questioned but interpreted. The deliberation in expending the meaning of term 'food' would stand clear from explanation that use of such article as medicine too shall not be sufficient to exclude such article from meaning of the word 'food' . Reference may be made to the case of Ghulam Haider v . Murad ( PLD 2012 SC 501 ) wherein at Rel. P-541 it is held as: "9. It is universally recognized principle of interpretation of statutes that where the plain language of a statute admits of no other interpretation then the intention of the legislature conveyed through such language is to be given its full ef fect...
In the same case it was further explained at page 548 that: "9. ... It was held as back as 1916 in the case of T.G.Bhoja v. G.J. Thakur (AIR 1916 PC 182) that where the terms of Statute or Ordinance are clear even a long and uniform course of judicial interpretation of it may be overruled if it is contrary to meaning of enactment."
Though, the above legal position is sufficient to avoid any further discussion onto such plea, however , let's see what the Tobacco laws say about. tobacco Pan Masala. Not a single reference has been made to any of the provision of Tobacco Laws which allows or permits sale of tobacco Pan Masalas. Be as it may, the Chewing Tobacco has also not been defined by the claimed applicable Tobacco Board Ordinance, 1968 as well West Pakistan Tobacco V end Act, 1958 in a manner or fashion that it could include the TOBACCO P AN MASALA.
The learned counsel for the Intervener referred to the meaning of manufactured tobacco, per Section 2 (e) of West Pakistan Tobacco V end Act, 1958 for justifying 'Tobacco Pan Masala' as chewing tobacco. The same reads as: "2(e) "manufactured tobacco" means tobacco in any shape or form intended for the purpose of smoking chewing or for use as snuff, or any preparation or admixture of tobacco intended for the aid purpose or use, and includes bidis, cigarettes or cigars."
The above definition even does not speak about Tobacco Pan Masala which is normally a mixture of: "areca-nut' (betal-nuts), slaked lime, and tobacco etc" The intervener had attempted to take an exception by claiming that chewing tobacco and betel-nut do not have any properties which could make them fall within meaning of food. Since individual status of both these are not before this Court therefore, we feel it proper to refrain from making any comments on independents status thereof but would take the complete advantage of specific observations of honourable Apex Court, made in the case of Adeel-ur-Rehman and Ors v. Federation of Pakistan & others (2005 SCMR 1), referred by learned counsel for the Intervener himself wherein while dealing with issue of release of betel-nuts imported for use in "Nisar Allaichi Saunf Supari", it has been observed as:
21. It is significant to note that the petitioners have not come to the Court with clean hands. They had done whatever possibly they could do to get the consignments released, irrespective of the fact that if released, it could cause "candida albicans", serious infectious disease and moulds, which is another name of allergies caused by fungus and liver cancer (See "Foundations in Microbiology" by Kathleep Talaro and Artur Talalro, Second Edition, William C Brown Publishers, London, pages 146, 535 and 698). Besides, medical studies have shown that chewing of Pan containing betel nuts and other sweeteners causes sub-mucous fibrosis, which cause oral cancer (See 'Tobacco Role in the Aetiology of Oral Cancer , Periodontal Disease and other Oral Leisons" by Doctor Heddie 0. Sedano published by Periodontics information Centre, University of California, Los Angeles, page 5). The petitioners have not even hesitated to submit fake reports for achieving their purpose.
The petitioner (CP No 343/2017) as will intervener also attempted to get their product out of the scope of the Food Laws while saying that their products are chewed only and then spitted out hence do not go into stomach. Such explanation is never sufficient particularly when, Section 2(9)(vi) of Pure Food Ordinance, 1960 specifically includes `Chewing gum and other products of the like nature' within meaning of 'food'. The only logically reason for such deliberate expansion could be nothing but that in consequence of chewing the extracts of things, being chewed, directly go into stomach and only unwanted juices are expectorated therefore, would be considered for human consumption hence such things would always require to meet required standard of safety which the petitioner (CP No, 343) as well Intervener do not claim their products to be certified from any legal authority .
The learned counsel for the intervener has also given much stress upon the India Judgments which also seem to be not correctly applied as shall stand clear from reproduction of relevant portion thereof which is: "Having perused the pleadings of the parties and materials on record including the impugned order , dated 07.11.2014, aforementioned, this Court finds and it is not disputed by the respondents that manufacture storage, distribution or sale of Pan Masla is not prohibited under the Food Safety and Standards Act, 2006 and that Regulation 2.11.5 of the Food Safety and Standards (Food Products Standards and Food additives)
Regulations, 2011, lays down the standards of food additives, which may be used in, or added to, Pan Masala and unless Pan Masla is manufactured, stored, distributed or sold in breach of the standards laid down by Regulation 2.11.5 of Food Safety And Standards (Food Products Standards and Food additives)
Regulations, 2011, the manufacture, storage, distribution or sale of Pan Masala is not legally prohibited by the impugned order , dated 07.1 1.2014, aforementioned."
From above, it appears that manufacturing, storing, distributing and even selling of Pan Masala requires food additives , likely to be used therein, to be of such standard as required by "Food Safety and Standards (Food Products Standards and Food additives) Regulations, 2011. In other words the Tobacco Pan Masala even in India never got an absolute exception from operation of Food Laws and Regulations. Even otherwise, in a recent order the Supreme Court of India in Transfer Case (Civil) No, 1/2010 (Central Arecanut Marketing COPN & Others) went on in saying that: Learned Amicus Curiae has also invited our attention to paragraph 21 of the Written Submissions on behalf of the Ministry of Health and Family Welfare, Government of India, in S.L.P . (C) No, 16308 of 2007, Which reads as follows:
21. It is most respectfully . submitted that to circumvent the ban on the sale of gutkha the manufacturers are selling pan masala (without tobacco) with flavoured chewing tobacco in separate sachets but often conjoint and sold together by the same vendors from the same remise so that consumers can but the pan masala and flavoured chewing tobacco and mix them both and consume the same. Hence, instead of the earlier ready to consume mixes chewing tobacco companies are selling gutkha in twin packs to be mixed as one. Learned Amicus Curiae has also pointed out that this Court has not granted any stay of Regulation 2.3.4 of the Food Safety and Standards (Prohibition & Restrictions on Sales) Regulations. 2011 and the concerned authorities are duty bound to enforce the said regulation framed under Section 92 read with Section 26 of the Food Safety & Standards Act, 2006. In view of the above, the concerned statutory authorities are directed to comply with the above mandate of law. We also direct the Secretaries, Health Department of all the States and Union Territories to file their affidavits before the next date of hearing on the issue of total compliance of the ban imposed on manufacturing and sale of Gutkha and Pan Masala with tobacco and/or nicotine." The Tobacco Pan Masala, would always include food additives {Section 2(9)(i)to(iii) of Pure Food Ordinance, 1960} and since it is undeniably offered for consumption by human therefore, requires to be regulated by Laws relating to safety and Standard of all such things likely to of fer or sell for human consumption.
15. Now, we can safely conclude that independent status of betel-nut and chewing tobacco to be not falling within meaning of food would not be sufficient for a self-imagined license to sell a mixture thereof with food additives particularly when the same are found to be hazardous /injurious to health by allowing expansion of Tobacco Laws and limiting Food Laws. The Court is not competent to limit or expand the scope of a statute beyond its specified limitations because it is, otherwise, by now a well-established principle of law that hardship of few cannot be the basis in determining the validity of any statute. The law must be interpreted and applied on its plain language.
16. Let's take the plea of sale of other injurious to health products like cigarettes, NASW AR etc. It would suffice to say that cigarettes are clearly governed by specific law while the Tobacco Pan Masala does not. The Cigareites normally are not mixture of tobacco with other food additives same is the position with NASW AR therefore, without making much comments, likely to prejudice the issue not before us or a room for exercise of suo-moto jurisdiction which this Court doesn't, we would say that such plea is not helpful for petitioner as well as Intervener . Let's examine the case of petitioner and the Intervene from another angle which was presented by the counsels themselves i,e, differentiating their products with GUTKHAMAINPURI on grounds of:
(i) preparation in some claimed hygienic condition in a factor while Gutkha/Mainpuri are prepared in houses;
(ii) paying taxes/cess, etc. while GUTKHA/MAINPURI manufacturers do not;
(iii) having registered trade mark while GUTKHA/MAINPURI manufacturers don't;
(iv) they import tobacco while GUTKHA/MAINPURI manufacturers do not; however , it is not claimed that articles used in GUTKHAS/ MAINPURIS, fall within meaning of Food. Thus, if the theory is applied then small money and formalities shall also result in entitling the GUTKHAS/MAINPURIS manufacturing permissible which legally cannot be, particularly when there have already number of unchallenged verdicts of this Court on such issue.
"CP No, D-306 of 2003 "Abrar Ahmed & another v. EDO (Health) and anothe r" dismissed vide order dated 6.11.2003 with the specific observation as: "No doubt the petitioners are the businessmen and they can trade freely under the Constitution but that is subject to the relevant laws. The Courts cannot permit them to make people habitual of eating their product including tobacco which are injurious to health. That bad habit shall have very far-fetch ing effects over the generations to come."
CP No D-118 of 2007 (Saeed Mainpuri & others v. Province of Sindh & others) dismissed on 17.02.2009 with observation as: "It further appears that in earlier petition samples of Mainpuri prepared by the petitioners were sent to PCSIR Laboratories Complex Karachi and its report dated 09.9.2004 is available on record, which reflects that Mainpuri prepared by petitioners is not fit for human consumption."
In another judgment, recorded in the "CP No, D-111/2003 "Syed Tajlee Murtaza v. MG Police and others" the Court went a little ahead while dismissing such petition vide order dated 29.5.2003 with following order: "The petitions dismissed as both the petitioners have not pressed their petitions. However , Executive District Officer (Health) Dr. Ashraf Bhurghri, who is present along with Addl. A.G. is directed to ensure that items. injurious to public health, in any shape, may not be allowed to be processed or sold. He is also directed to take all the necessary steps in this regard including the collection of samples of such items. With the above observations the petitions stand dismissed."
Worth to add that in the case of Adeel-ur-Rehman supra referred by learned counsel for the Intervener , the request for release of infected betel nuts, likely to be used for human consumption was declined while insisting on Article 9 of the Constitution with rider that: "It is the duty of the State to see that the life of a person is protected as to enable him to enjoy it within the prescribed limits of law. Pollution, environmental degradation and impure food items also fall in the category of deprivation of life."
Meaning thereby that the term 'life' so used in the Article-9 of the Constitution also requires the State to come forward to help its subjects from use of any impure food or other injurious/hazardous to health items if same are otherwise not permitted. Thus, even on this analogy the petitioner as well Intervener does not appear to have made out a case of an exception.
Further , the petitioner as well the Intervener have not referred a single document or specific provision whereby the Tobacco Pan Masala was declared by any of the Tobacco Laws as falling within meaning of tobacco or chewing tobacco only hence sale thereof could be taken as permissible merely on count that one is registered under FED Act as manufacturer . The petitioner and Intervener claim to be manufacturer and claiming applicability of Tobacco Board Ordinance, 1968 as well Tobacco Vend Act, 1958 but at no time they have claimed to be possessing any license issued for selling their products under these Laws.
17. The petitioner and the Intervener appear to be not aggrieved with affairs of manufacturing Tobacco Masala but grievance is confined to 'sale and marketing of their Tobacco Pan Masala' in open market. Even for a moment, it is believed that product of the petitioner and Intervener falls within meaning of Section 3(e) of the Act, as has been claimed by Intervener even then sale thereof shall require a license within meaning of Section 3 of the Act. The Section 3 of the Act says as: "3. No person who does not grow tobacco himself or with the aid of the members of his family or by tenants or hired labour shall keep for retail sale or sell by retail manufactured tobacco in any urban area without a dealer's licence."
The petitioner and Intervener are undenia bly not the growers of tobacco hence for sale of their products could not be continued except M under a license which the petitioner and Intervener do not have. Even if it is believed for a moment that product of the petitioner and Intervener is not falling within meaning of food but is to be regulated ,by Tobacco laws even then they were/are required to first get a license for selling their claimed manufactured tobacco (Section 2 (e) of Act). Worth to add here that the Intervener was fair enough in saying that "the Tobacco Vend Act, 1958 provides that the requirement for license is only for the sellers and dealers but NOT manufacturers".
Thus, even the Intervener never claimed an exception to having a license for selling/marketing the manufactured tobacco even. Thus, the petitioner (CP No, 343), the Intervener and any person, dealing in such like product, would not be legally entitled for selling/marketing their Tobacco Pan Masala without first obtaining necessary license from competent authority under relevant laws if such authority considers such product to be one falling within meaning of Chewing Tobacco.
Since, the serious effects upon the lives by use of the Tobacco Pan Masala , Gutkha as well Mainpuri were/are not disputed which even become grave when the victim thereof include good numbers of children and women. The research and concern of the health officials need not be referred here being an open secret. However , what is alarming is that there is no proper mechanism and law to properly and adequately deal with such serious issue whereby the guarantee, provided by the Article-9 of the Constitution, has been under constant threat. The Federal Government as well Provincial Government prima facie failed to address the issue despite its alarming rather abnormal effects upon the young generation. Preparation of a Bill of a Law is nothing more than a bunch of papers because the objectives thereof cannot be achieved unless a "Bill" becomes the "Law" by completion of required process. This Court is direct custodian of the fundamental rights hence can issue any appropriate directions for proper enforcement of a fundamental right as has rightly been held in the case of M.Q.M. & Ors (supra) relied by counsel for the Respondent N11. The continuous failure of the State to do what otherwise is the unavoidable duty of the State cannot be left go unattended. The legislation may well be the function of the legislature alone but when situation requires necessary instructors can well be issued by this Court in exercise of writ jurisdiction. Reference may well be made to the case of Sharf Faridi v. The Federation of Islamic Republic of Pakistan (PLD 1989 Karachi 404) wherein it was held that: "Since the various Federal and Provincial Governments after the enactment of the Constitution in 1973 have failed to do what they were/are required to do under the Constitution, direction/directions under Article 199 can be issued to them to do the same, and similarly a prohibitory direction can also be issued not to do which is not permitted by the Constitution. I may observe that in order to bring the existing laws in conformity with Articles 175 and 203 of the Constitution not only some administrative actions are required to be taken but also some legislative measures are needed. There seems to be no controversy that direction/directions to take administrative actions/measures required by the Constitution and/or any other law can be issued against the Executive.
However , it is debatable point, whether a direction can be issued to the legislature to discharge its constitutional obligation as to bring the existing law in conformity with the provisions of the Constitution by legislating the required laws, but in my view a direction can be issued to the Federal and Provincial Government to initiate legislative measures for bringing the existing laws in conformity with the above Articles 175 and 203 of the Constitution.
I am inclined to hold that there is a marked distinction between a direction to the Legislature to legislate and a direction to the Executive to initiate the legislative measures to bring the existing laws in conformity with the provisions of Constitution. The later in my view is permissible."
Worth to add here that during proceedings of the instant petitions it has seriously been observed that the provisions of Pure Food Ordinance, 1960 which otherwise is the obligation of the Local Authority within meaning of Section 15 of the Ordinance though it relates to a subject having its direct consequences upon life.
18. Accordingly , in view of above discussion and undeniable situation, it is hereby ordered that:
(a) The Secretary , Local Government shall ensure:
(i) true enforcement of Section 11 of the Pure Food Ordinance, 1960 which insists for a license for preparation/ manufacturing; processing; blending; preserving, refrigerating, canning or bottling of any food canning or bottling as well to deal as wholesale dealer;
(ii) true enforcement of 15 of the Pure Food Ordinance, 1960;
(iii) appointment of required number of Inspector (s), as per Section 16(1) of Pure Food Ordinance, 1960 but strictly following the rules and procedure for such recruitment;
(iv) establishing of Lab, specifically meant for analysis of foods;
(b) The I.G. Police shall continue with campaign against manufacturing /preparation and sale of GUTKA/MAINPURI and similar items under any title;
(c) The Chief Secretary/Law Secretary shall:--
(i) follow-up process of proper enactment for permanent ban of GUTKA & MAINPURI or same product with any other title; and
(ii) process for enactment like Food Safety and Standards (food Products Standards and Food additives)
Regulations, 2011 so as to bring everything likely for human consumption under some safety and standard criterion;
(iii) write to Tobacco Board for clarification whether sale of TOBACCO PAN MASALA is permissible under Tobacco and V end Act or Ordinance. If so, mechanism detailed too.
(iv) direct all Commissioners and Deputy Commissioners to ensure that GUTKAI MAINPURI and similar items are not sold or manufactured in their respective areas. They would be competent to take action against manufacturers, wholesalers and retailers, under the relevant laws.
19. While parting, it is hoped that gravity of issue would be appreciated by the legislature while making enactments or amendments and proper and adequ ate punishments would be provided as well to consider making such offences cognizable so that such evil, causing prejudice to the nation as a whole, may not earn their liberty by claiming offences bailable/non-cognizable. Needless to mention that Since the petitioner (CP No, 343) and Intervener have never made a categorical and clear claim that status of manufacturer does include a right to sell Tobacco Pan Masala without a license of such like products which have been declared to be not fit for human consumption rather hazardouslinjurious to health therefore, legally they cannot claim continuity of sale of their product i,e, Tobacco Masala under any name. One who is permitted to work as manufacturer for exporting its manufactured tobacco, if is permitted for exporting, may continue but such status alone shall never earn him a right to sell; market and offer Tobacco Pan Masala for human consumption. However , needless to add that petitioner (CP No, 343/2017) and the Intervener may themselves approach to Tobacco Board for instruction made in (C)(iii) supra which, if is answered so, would give a right to them to claim continuity of their business and not before that.
Till such time, no sale of such like product would be allowed and I.G .P. Sindh shall ensure that Tobacco Pan Masala, under any title is not sold or marketed.
20. In view of above, C.P. No, D-1705/2017 is disposed of whereas C.P No, D-343/2017 and intervener's applications are dismissed.
At this juncture we appreciate the assistance provided by senior counsel Mr. Jhamat Jethanand as amicus curiae.
Office shall send copy of this judgment to concerned quarters as well to amicus curiae.