Hookah Shop Case: Karnataka HC Quashes Food-Safety And IPC Proceedings, Keeps COTPA Case Against Two Over Alleged Missing Warnings

Respondent No. 2 lodged a suo motu complaint alleging that the petitioners possessed and sold hookah products and e-cigarettes from “Smoker’s Zone” without the requisite licence and without adequate fire-safety measures.

A charge sheet was filed for offences under Sections 52, 59 and 63 of the Food Safety and Standards Act, 2006 (FSSA); Sections 7 and 20(2) of the Cigarettes and Other Tobacco Products Act, 2003 (COTPA); and Sections 284, 285, 328 and 511 of the Indian Penal Code, 1860 (IPC).

The petitioners sought quashing of the proceedings.

Petitioner No. 3 was the wife of petitioner No. 1; petitioners Nos. 1 and 2 claimed to be employees rather than the shop’s owners.

Under Section 3(1)(j) of the FSSA, a product must be intended for human consumption as food to fall within the statutory definition; Sections 52, 59 and 63 consequently require, respectively, misbranded food, unsafe food, or a food business requiring a licence.

Sections 284 and 285 IPC require particular rash or negligent conduct involving, respectively, a poisonous substance or fire/combustible matter, with the danger specified by those provisions; Section 328 requires administering or causing a person to take a specified substance with the requisite intention or knowledge; and Section 511 requires an act towards commission of an identified substantive offence, beyond mere preparation.

COTPA’s Section 3(p) and Schedule include hookah tobacco as a tobacco product, while Sections 7 and 20(2) regulate trade, supply or distribution of covered products without the prescribed warnings and particulars.

Criminal liability under COTPA depends on material indicating the accused’s participation in the prohibited activity; relationship to an accused or mere employment, without such participation, is insufficient.

The Court held that e-cigarettes, hookah apparatus and hookah tobacco, as described in the charge sheet, were intended for inhalation or smoking, not consumption as food; no notification declaring them food was produced. The foundational requirements of the FSSA offences were therefore absent.

The IPC allegations were general: they did not identify the relevant poisonous substance or specific rash or negligent conduct, the particular fire hazard and dangerous act or omission, or any person to whom a substance was administered with the required mental element. Nor did they identify an act beyond preparation towards an IPC offence. Those deficiencies meant the alleged offences’ essential ingredients were not disclosed.

By contrast, the allegations that petitioners Nos. 1 and 2 possessed and sold tobacco products without prescribed warnings, together with the seizure material, required examination at trial. Their asserted status as employees and the non-joinder of the shop owner did not, by themselves, warrant quashing.

No specific material showed that petitioner No. 3 participated in the business or the alleged sale, supply or distribution; her relationship to petitioner No. 1 was insufficient to sustain liability.

Proceedings under Sections 7 and 20(2) COTPA were permitted to continue against petitioners Nos. 1 and 2, with their guilt and the products’ statutory status and packaging compliance left for trial.

The COTPA proceedings were quashed against petitioner No. 3.