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Petitioner: JALIL AHMED & others VS Respondent: PROVINCE OF SINDH through Secretary and others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar, Fahim Ahmed Siddiqui Title: JALIL AHMED & others vs PROVINCE OF SINDH through Secretary and others Case No.: C.P. Nos, 343 & 1075 of 2017 Date of Judgment:2017-10-20 Reported As: 2019 CLC 1872, PLJ 2019 Karachi 55 Result: Order accordingly
JUDGMENT
JUDGMENT 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
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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.
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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
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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."
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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
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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…
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