Transporter goes to HC over ban on carrying gutkha

Writ petition says certain finished products - pan masala and gutkha - are banned in Maharashtra, but its production and consumption are allowed in other states

Based on the argument that Article 301 of the Constitution permits free trade and commerce throughout the territory of the country, Delhi-based transporter Bikaner Assam Roadlines India Ltd has filed a writ petition at the Bombay High Court, challenging the order of the Food Safety Commissioner, Food and Drug Administration (FDA) of Maharashtra, that says "permit of vehicle transporting restricted food items, driving licence and the driver's permit will be cancelled".

The order copy, which was marked to the joint commissioners (food) of Mumbai, Konkan, Pune, Nashik, Aurangabad, Amravati and Nagpur divisions and state secretary of the Medical Education and Drugs Department on September 12, 2018, reads, "It has been observed that there is illegal transportation of restricted food items in the state from other states.

In this context, to stop transportation of prohibited/banned food items like gutka, pan masala and take action on behalf of the transport department on such vehicles, Maharashtra Transport Commissioner has placed a proposal before the state government for cancellation of vehicle permits and drivers' licences. The letter of approval has been received in this matter. Accordingly, all the concerned officers are being directed. This letter will be applicable with immediate effect." The joint commissioners (Food) were asked to communicate with the headquarters regarding the action taken after every 15 days.

'It's unconstitutional'

Challenging the order, the petitioner said, "Being a transporter, we carry goods throughout the country. In some states they may be banned, while in others they may be permitted. The impugned government resolution/letters as they are ultra vires the Foods Safety and Standards Act, 2006 (FSA Act) violate Article 301 of the Constitution of India and is arbitrary and therefore unconstitutional."

The petitioner further states that the scope of Article 301 mentions that trade, commerce and intercourse throughout the territory of India has been declared free and unhampered. It further submitted that the freedom of trade, so declared, was against the imposition of barriers or obstruction within the state as well as between states. Article 301 declares all restrictions, which directly and immediately affect the movement of trade, ineffective, the petitioner adds.

'First state to ban gutka'

"Certain finished products — pan masala and chewing tobacco — are banned in Maharashtra. However, its production and consumption are not banned in other states. The petitioner being a transporter carries out trade and commerce by only transporting the said goods from one place to another and complies with the orders of its clients," the petition further reads. Though the transporter's counsel Ravi Goenka did not divulge more details citing the matter as sub-judice, he confirmed that the writ petition had been filed in the HC.

Speaking to mid-day, Food Safety Commissioner Pallavi Darade said, "We were the first state to ban gutka in 2012. Its production has been completely stopped in Maharashtra. From 2012 to 2019, we seized gutka worth over Rs203 crore. Between 2017 and 2018 gutka worth Rs39.84 crore was seized, and during 2018-19, Rs62.40 crore worth of the item was seized."

"We have been coordinating with the RTO since the government approval came in. We have issued a circular to take action against the vehicles transporting the banned products. Till now, we have caught 189 vehicles transporting gutka across Maharashtra. Of these, details of 160 vehicles have been sent to RTO for cancellation of their permits," added Darade.

She further said, "We have to suffer because many other states are yet to ban gutka and pan masala products. The vehicles carrying these banned products load from nearby states and sell the products in Maharashtra. When they get caught, they say that they were going to other states to deliver the products. Hence, we have to take action to make this a gutka-free state."

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