V.Sona Ram vs The State Rep. by, The Food Safety Officer(i/c)

CRL OP No. 25633 of 2026
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26-10-2026
CORAM
THE HON'BLE MR JUSTICE G.K. ILANTHIRAIYAN
CRL OP No. 25633 of 2026
CNR:{HCMA012097062026}
and
CRL MP Nos.16994 and 16996 of 2026
V.Sona Ram
S/o Velaram,
M/s.Poornima Agency,
43, Tipu Sulthan Road,
Sathyamangalam,
Erode District.
..Petitioner(s)
Vs
1. The State Rep. by,
The Food Safety Officer(i/c)
Code No.418, Sathyamangalam Municipality
and Block,
Tamil Nadu Food Safety and Drug
Administration Department,
Erode District.
2. The Designated Officer
Tamil Nadu Food Safety and Drug
Administration Department,
Office of the Deputy Director of Health
Services(GH Compound),
Erode.
..Respondent(s)
PRAYER: Criminal Original Petition filed under Section 528 of Bharatiya
Nagarik Suraksha Sanhita, 2023 praying to call for the records of STC.No.1125 of
2018 on the file of the Judicial Magistrate,Sathyamangalam, Erode District and
quash the same in so far as it concerns the Petitioner/Accused herein.
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CRL OP No. 25633 of 2026
For Petitioner(s): Mr.Karthikeyan TC
For Respondent(s): Mr.R.Ganesh Kumnar
Additional Public Prosecutor for R1
ORDER
This petition has been filed to quash the proceedings in STC.No.1125 of
2018 pending on the file of the Judicial Magistrate, Sathyamangalam, Erode
District, thereby taken cognizance for the offences punishable under Sections 58
and 59(1) of the Food Safety and Standards Act,2006.
2.The case of the prosecution is that the petitioner/accused is the sole
proprietor of M/s.Poornima Agency, and is a Food Business Operator who has
obtained the mandatory Food Safety Licence under Section 31 of the Food Safety
and Standards Act,2006 (hereinafter “the FSS Act”). Whileso on 26.06.2018, an
inspection was conducted and lifted a food sample of “Cool Lip” (Tabbaq)
consisting of six packets and the sample was forwarded to the Food Analyst. As
per the report dated 10.07.2018, the sample was declared as “unsafe” within the
meaning of 3(1) (zz) of the FSS Act and it is prohibited under Section 26(2)(iv) of
the Act, Regulation 2.3.4 of the Food Safety and Standards (Prohibition and
Restrictions on Sales) Regulation, 2011, (hereinafter “the Regulations) and the
Notification dated 23.05.2018 issued by the Commissioner of Food Safety, since
the samples contained nicotine to the extent of 0.36%. Upon receipt of the
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CRL OP No. 25633 of 2026
analytical report, the petitioner/accused was issued a show-cause-notice and on
the filing of complaint, it has been taken cognizance by the trial Court.
3.The learned counsel appearing for the petitioner/accused submitted that
the product called “Cool Lip” is an unadulterated pure tobacco explicitly
governed by the Cigarettes and Other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003 (COPTA). The sample which was taken by the Inspection
authority is a tobacco product falling under Regulation 2.12 with the warning
label prescribed under the COPTA. Therefore, it is a tobacco product and the
complainant cannot treat this product as an “unsafe food”. The statutory
definition of “food” under Section 3(1)(j) cannot be stretched to criminalise the
sale of tobacco products under penal Section 59(i) of the Act. He further
submitted that the notification dated 23.05.2018 was issued by the Commissioner
of Food Safety and thereby, power was delegated to the Commissioner under
Section 30(2)(a) of the FSS Act and issued a temporary statutory bans which
cannot be converted into a tool to bypass COPTA regulations. Further, the
notification issued under Section 30(2)(a) cannot override parent statutes as per
the decision of the Hon’ble Division Bench of this Court. He also relied upon the
judgment passed by the Division Bench of this Court in W.A.No.2093 of 2018
dated 20.01.2023. Based on the judgment of the Division Bench of this Court,
subsequent contempt petition has been quashed by this Court.
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CRL OP No. 25633 of 2026
st
4.On a perusal of the counter affidavit filed by the 1
respondent/complainant and also the submissions made by the learned counsel on
either side, it would reveal that as per the Food Analyst report dated 13.07.2018,
the sample which was lifted from the petitioner/accused shop as unsafe. So, it is
within the meaning of 3(1) (zz) of the FSS Act and it is prohibited under Section
Section 26(2)(iv) of the Act, Regulation 2.3.4 of the Food Safety and Standards
(Prohibition and Restrictions on Sales) Regulation, 2011, the notification dated
23.05.2018 issued by the Commissioner of Food Safety. The Hon’ble Division
Bench of this Court held that the successive notifications issued by the
Commissioner of Food Safety relying upon Regulation 2.3.4 of the Food Safety
and Standards (Prohibition and Restrictions on Sales) Regulation, 2011, are not
within the powers of the Commissioner and the Commissioner, Food Safety has
exceeded his power in issuing such successive notifications and quashed the
notification on that ground. However, the said order was challenged before the
Hon’ble Supreme Court, which stayed the operation of the relevant portion of the
order, namely, paragraph 13.
5.It is relevant to extract the order dated 03.09.2024 passed by this Court in
Crl.O.P No.1698 of 2023, which reads as follows:
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CRL OP No. 25633 of 2026
26. At the same time, the Hon-ble Division Bench has expressed
its doubt regarding power of the executive to issue Notification
periodically imposing an almost permanent ban on tobacco
product with nicotine used as an ingredient to any food product.
Therefore, quashed the ban Notification on the ground that it is in
excessive power conferred under Section 30(2)(a) of the Food
Safety and Standards Act.
27. This portion of the Hon-ble Division Bench order is
stayed by the Hon-ble Supreme Court in State of Tamil Nadu v.
Jayavilas Tabacco Traders LLP & Anr in Special Leave to
Appeal (C)Nos. 5140~5142 of 2023, dated 25.04.2023.
28. For ease reference, the relevant portion of the Hon-ble
Division Bench of this Court and the interim order of the Hon-ble
Supreme Court is extracted below:~
(i)Designated Officer, the Food Safety and Drugs Control
Dept. Office of the Food Safety and Standard Authority vs.
Jayavilas Tobacco Traders LLP rep.by its Partner,
Mr.A.Prabaharan reported in [2023/MHC/259],
“ 13. We are therefore constrained to conclude that the
successive notifications issued by the Commissioner of Food
Safety relying upon Regulation 2.3.4 are not within the powers of
the Commissioner and the Commissioner, Food Safety has
exceeded its powers in issuing such successive notifications. We
therefore quash the notifications on the ground that they are in
excess of the powers of the Commissioner, Food Safety.“
(ii)State of Tamil Nadu v. Jayavilas Tabacco Traders LLP
& Anr in Special Leave to Appeal (C)Nos. 5140~5142 of 2023,
dated 25.04.2023,
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CRL OP No. 25633 of 2026
“we are of the view that the petitioner has made out a case for
the grant of interim relief.
There will be a stay of the impugned judgment dated
20.01.2023 insofar as it is contained in paragraph 13 of the
impugned judgment.
We, however, would make it clear that in case the
respondents have a case that their acts or operations are not
covered by the notification issued under Section 30(2)(a) of the
Food Safety and Standards Act, 2006, they may seek redress in
the appropriate forum.“
29. Two Division Bench of this Court in (1) J.Anbazhagan
case (cited supra) and (2) The Designated Officer, the Food
Safety & Drugs Control Department (cited supra), had
consistently held that the tobacco with or without any additives is
a “food product“ as defined under Section 3(j) of Food Safety
and Standards Act.
6.The sample which was seized from the petitioner’s shop is a processed
tobacco product intended for human consumption and therefore, consequently
falls within the definition of “food” under Section 3(1)(j) of the Act. Regulation
2.3.4 of the Regulations prohibits the use of tobacco and nicotine as ingredients in
any food product, as they are injuries to health. As per the report of the Food
Analyst Laboratory,the sample contains nicotine at 0.36% , which, in a sample
weighing 352.8 grams, works out to approximately 1.270 grams of nicotine.
Nicotine is a highly addictive substance and its consumption is injurious to health,
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CRL OP No. 25633 of 2026
which is precisely why the law prohibits its use as an ingredient in food products.
Further, the reference in the analysis report to Regulation 2.12 does not take the
product out of the Act. Therefore, the Food Business Operator is fully
responsible for the safety of a proprietory food intended for human consumption.
Further, the Food Safety and Standards Authority of India, by its order dated
27.03.2026, reiterated the Regulation 2.3.4 and it stipulates the tobacco and
nicotine shall not be used as ingredients in any food products, and that the food
product containing tobacco or nicotine as ingredients, including gutkha and pan
masala with tobacco or nicotine are prohibited. The said order further requests all
Commissioners of Food Safety to ensure compliance with the order of the
Hon’ble Supreme Court dated 23.09.2016 and to issue or renew annually the
notifications under Section 30(2)(a) of the FSS Act prohibiting such products.
Accordingly, the Commissioner of Food Safety, Tamil Nadu has recently issued
the Notification dated 23.05.2026 thereby prohibited the tobacco and nicotine as
ingredients in food. Therefore, the complaint satisfies the essential ingredients to
attract the offences punishable under Sections 58 and 59(1) of the Act.
7.In view of the above, this Court is not inclined to quash the proceedings
in STC.No.1125 of 2018 on the file of the Judicial Magistrate,Sathyamangalam,
Erode District.
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CRL OP No. 25633 of 2026
8.Accordingly, this Criminal Original Petition stands dismissed. The trial
Court is directed to complete the trial within a period of three months from the
date of receipt of a copy of this order. Consequently, connected miscellaneous
petitions are closed.
26-10-2026
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Uma
To
1. The Judicial Magistrate,
Sathyamangalam, Erode District
2. The Food Safety Officer(i/c)
Code No.418, Sathyamangalam Municipality
and Block,
Tamil Nadu Food Safety and Drug
Administration Department,
Erode District.
3. The Designated Officer
Tamil Nadu Food Safety and Drug
Administration Department,
Office of the Deputy Director of Health
Services(GH Compound),
Erode.
4. The Public Prosecutor
High Court of Madras.
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CRL OP No. 25633 of 2026
G.K.ILANTHIRAIYAN J.
Uma
CRL OP No. 25633 of 2026
and
CRL MP Nos. 16994 and 16996 of 2026
26-10-2026
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