Restaurants cannot provide hookah service in designated smoking areas, Allahabad High Court rules

The petitioners, principally restaurants and hospitality establishments, sought directions recognising that a restaurant with a valid food licence could operate a hookah facility in a Designated Smoking Area (DSA), and restraining police interference with that business

During the COVID-19 pandemic, the State had temporarily prohibited hookah bars; after restrictions eased, the Food Safety and Drug Administration issued a circular requiring compliance with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) and the applicable Rules

The lead petitioner challenged police action, including a preventive order alleging unlicensed hookah-bar operations, public nuisance, and service to minors

The petitions were heard together because they raised common questions

Whether a restaurant may provide hookah service in a DSA under Section 4 of COTPA and Rule 4 of the Prohibition of Smoking in Public Places Rules, 2008, as amended in 2017.

Whether supplying hookah equipment and tobacco through a proposed self-service or rental model avoids the prohibition on “service” in a DSA.

Whether the respondent authorities, particularly the police, may take enforcement action in relation to alleged contraventions of COTPA.

Section 4 of COTPA generally prohibits smoking in public places, subject to a limited exception permitting qualifying hotels, restaurants and airports to provide a separate smoking area; Rule 4(3), as amended in 2017, provides that “[n]o service shall be allowed” in such an area, while Rule 4(3A) requires health warnings and prohibits entry by persons under eighteen.

Sections 6, 12 and 13 address, respectively, sale of tobacco products to minors and authorised entry, search and seizure for suspected contraventions; Sections 21 and 24 prescribe penalties for specified violations.

The Court treated the DSA exception as narrow and held that the prohibition on “service” includes commercial hookah provision and associated activities in the smoking area.

It relied on R. Bharath v. State of Karnataka for the conclusion that hookah provision involves service, and distinguished Narinder S. Chadha v. Municipal Corporation of Mumbai because that decision interpreted Rule 4(3) before the 2017 amendment.

It also applied the principle that regulation may include prohibition, relying on G.K. Krishnan v. State of T.N. and Indian Handicrafts Emporium v. Union of India.

The Court referred to Murli S. Deora v. Union of India and Articles 21 and 47 of the Constitution in recognising the State’s public-health interest and the protection of non-smokers.

The Court read the amended Rule 4(3) as removing the earlier qualification “other” from the prohibition, thereby barring all services—not merely food or services unrelated to smoking—in a DSA; accordingly, the pre-amendment reasoning in Narinder S. Chadha did not govern.

It found that hookah provision involves equipment, tobacco, preparation and, ordinarily, continuing staff assistance, and therefore constitutes a service within the Rule.

The proposed self-service model was rejected as an afterthought and as an impermissible attempt to circumvent the Rule; the proposed “rental” analogy also failed because patrons could use the apparatus only within the DSA and did not obtain unrestricted control over it.

The Court nevertheless accepted that the Food Safety Department and municipal authorities lacked jurisdiction to license hookah bars, while holding that police authorities had statutory enforcement powers under COTPA.

It dismissed all the writ petitions

directed the Registry to send the judgment to the Chief Secretary and Director General of Police, Uttar Pradesh, for information and necessary compliance