In The High Court of Judicature at Bombay Criminal Appellate Jurisdiction

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2719 OF 2019
Ali Reza Abdi ..Petitioner
V/s.
The State of Maharashtra & Ors. .. Respondents

Dr.Sujay Kantawala, Mr.Sajal Yadav, Mr.S.K. Saxena i/b Karan Vyas
for the Petitioner.
Mr.S.U. Kamdar, Senior Advocate a/w Mr.Deepak Thakare, PP a/w
Mr.S.R.Shinde, APP for the Respondent Nos.1 and 3State.
Mr.Ganesh Gole a/w Mr.Kunal Waghmare for Respondent No.2

MCGM.

CORAM : RANJIT MORE &
SMT.BHARATI H. DANGRE, JJ.
DATE : 15th JULY 2019
P.C.
1. Heard Mr.Kantawala, learned counsel for the petitioner,
Mr.Kamdar, learned Senior Counsel for respondent Nos.1 and 3 and
Mr.Gole, learned counsel for the respondent No.2Corporation.
2. The petition is filed under Article 226 of the
Constitution of India seeking following reliefs :
“(a) That this Hon'ble Court may be pleased to
examine the legislation and its nonapplication to
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tobacco free products and issue necessary directions to
the effect that no coercive action of any nature ought to
be initiated if a hookah is served without tobacco;
(b) In the alternative, this Hon'ble Court may be
pleased to; direct that Respondents cannot take any
coercive steps against the Petitioner for serving herbal
tobacco free hookah unless there are conclusive
scientific findings that tobacco is present in the hookah
served by the petitioner.
3. The petitioner is running a business of food and
beverages since last 20 years and has commenced the concept of
Skylounge and Sheesha Restaurants. It is the claim of the
petitioner that he serves tobacco free hookahs in his restaurants and
for that purpose he used product by brand name “Soex”.
4. It is specific case of the petitioner that the product
“Soex” does not contain tobacco or nicotine. In order to demonstrate
so, he relies upon the following reports :
(i) Report of the Director of Forensic Science,
Gujarat State.

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(ii) Report of Bombay Forensic (India's Forensic
Laboratories)
(iii) Helik Advisory Limited (Private Analysts).
5. The petitioner also relied upon the decision of the
learned Single Judge of the Gujarat High Court dated 26.12.2018 in
Criminal Miscellaneous Application No.17856 of 2018.
6. It is true that all these reports referred above are in
favour of the petitioner in as much as it certifies that the product
“Soex” does not contain tobacco, nicotine, narcotic or any
psychotropic substance. It is the case of the petitioner made out in
groundG at the Page11 of the Petition, that he was categorically
informed not to sell hookah as same is prohibited under the 2018
Amendment to the Cigarettes and Other Tobacco Products Act, 2003
(COTPA Act). The petitioner has therefore approached this Court
under apprehension and sought the relief referred herein above.
7. The petition was placed for admission on 08.07.2019.
After hearing the parties we directed Mr.Thakare, learned PP and
Mr.Gole learned counsel for the Municipal Corporation to verify and
test the product “Soex”. Mr.Kamdar, learned Senior Counsel for the

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respondent Nos.1 and 3 and Mr.Gole, learned counsel for
respondent No.2 submitted that they have already sent the said
product “Soex” for verification to Bombay Forensic (India's Forensic
Laboratories, Kalina), however, report is awaited.
8. Mr.Kamdar, submits that the petition is premature as
much as the Petitioner is not prohibited at this stage from running a
business of restaurant or serving hookah which according to
Petitioner do not contain tobacco or nicotine. Mr.Kamdar, learned
Senior Counsel makes categorical statement that State is duty bound
to implement of the prohibition under the Amendment to “COTPA”
Act and except what is prohibited under 2018 Amendment Act,
nothing would be prohibited. Statement is accepted.
9. Mr.Gole, learned counsel for Respondent No.2
Municipal Corporation place on record the communication dated
10.01.2018 issued by the Municipal Commissioner of the Bombay
Municipal Corporation to the Additional Chief Secretary (HOME).
This communication is of Municipal Commissioner's response to the
Additional Chief Secretary in pursuant of the letter from
Commissioner of Police regarding Hookha Parlours in Mumbai City.
The Municipal Commissioner made his stand clear by stating that

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hookha Parlours do not fall under the ambit of eating house and
therefore do not fall within the provision of Section 394 of the
Mumbai Municipal Corporation Act under notified trades for license.
In short, the contention of the Municipal Commissioner is that
under MMC Act no license is required for the hookha bar. However,
the Police Officers are empowered to take legal action for the
infringement of the conditions imposed under COTPA Act as well as
taking action on the hookha Parlours where drugs/narcotics are
provided and consumed which falls under the purview of Police
Department.
10. In the light of the above it is clear that the petition is
filed on a mere apprehension and as long as the petitioner complies
with the provisions of COTPA and do not serve any prohibited
substance in the hookha Parlour then no action can be taken against
them. However, it is made clear that if it is found the petitioner is
selling/using any substance prohibited under the COTPA Act then
surely the action can be taken against him. We find that at this
stage no declaration more than what is stated above is necessary.
11. Subject to above we dispose of the petition.

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12. Needless to state that in case any infraction of the
provisions of the COTPA Act as amended in the year 2018 Police
Authorities are empowered to take action against the petitioner for
using the prohibited substance.
(SMT.BHARATI H. DANGRE, J.) (RANJIT MORE, J.)

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Mr.Ganesh Gole a/w Mr.Kunal Waghmare for Respondent No.2­

2. The petition is filed under Article 226 of the

“(a) That this Hon'ble Court may be pleased to

examine the legislation and its non­application to

N.S. Kamble page 1 of 6

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(b) In the alternative, this Hon'ble Court may be

pleased to; direct that Respondents cannot take any

tobacco free hookah unless there are conclusive

3. The petitioner is running a business of food and

Sky­lounge and Sheesha Restaurants. It is the claim of the

4. It is specific case of the petitioner that the product

(i) Report of the Director of Forensic Science,

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(ii) Report of Bombay Forensic (India's Forensic

5. The petitioner also relied upon the decision of the

6. It is true that all these reports referred above are in

“Soex” does not contain tobacco, nicotine, narcotic or any

(COTPA Act). The petitioner has therefore approached this Court

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respondent Nos.1 and 3 and Mr.Gole, learned counsel for

8. Mr.Kamdar, submits that the petition is premature as

business of restaurant or serving hookah which according to

Act and except what is prohibited under 2018 Amendment Act,

9. Mr.Gole, learned counsel for Respondent No.2­

Municipal Corporation place on record the communication dated

Additional Chief Secretary in pursuant of the letter from

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therefore do not fall within the provision of Section 394 of the

In short, the contention of the Municipal Commissioner is that

taking action on the hookha Parlours where drugs/narcotics are

provided and consumed which falls under the purview of Police

with the provisions of COTPA and do not serve any prohibited

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12. Needless to state that in case any infraction of the

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