MR. NAVEEN KUMAR M v. STATE OF KARNATAKA

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1) "Issue a Writ of mandamus or any other Writ, Order or direction, directing the Respondents not to insist upon the Petitioner to obtain a separate license providing service of smoking tobacco through hookah within the specially provided/earmarked smoking area in the business premises of Petitioner."

2) Directing the Respondents not to interfere with business of Petitioner.

3) To pass such other and further orders as this Hon'ble Court deems fit and proper."

2. Heard Sri. Rajat Subramanyam, learned counsel appearing for the petitioner and Sri M.Vinod Kumar, learned Additional Government Advocate representing the respondents.

3. Learned counsel appearing for the petitioner submits that the issue in the lis stands covered by the judgment of the Co-ordinate Bench of this Court in W.P.No.14226/2015 dated 03.09.2015, wherein, it has held as follows:

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"2. The petitioner claims to be a firm registered and is carrying the business of Snacks Bar and is serving coffee and other products in the name and style 'Brews N Bytes' at No.54/7, 30 th Cross, B Main Road, Corportion layout, 4 th T Block Jayanagar, Bengaluru 560 041. For carrying on such business, the petitioner is stated to have rented out the premises. In the said premises, the petitioner claims that they have provided a separate smoking zone wherein apart from smoking tobacco in other forms, they are also providing the facility of such smoking through Hooka. The petitioner contends that though no licence is required to be obtained by the petitioner for providing such services to its customers, the respondents have been interfering with his business seeking that they obtain licence and therefore the petitioner claiming to be aggrieved is before this Court.

3. Having taken note of the contention put forth by the petitioner, at the outset, it is to be noticed that the respondents have not intimated the petitioner in writing to that effect so as to create a cause of action for the petitioner to approach this Court. However, taking note of the allegations made by the petitioner that such interference is being caused by the police, though no mandamus in the

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nature of injunction against the respondents in performing their legal duty could be granted, the issue relating to the use of Tobacco in such cases needs to be taken note of to examine whether law contemplates securing licence in that regard. Insofar as the use of Tobacco, the same is regulated under the provisions of the Cigarattes and other Tobacco products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production Supply and Distribution) Act 2003. Under the said Act smoking has been defined which includes the smoking of Tobacco in any form including the use of wraper or in any other instrument and for that a licence is not prescribed notwithstanding the restrictions provided.

4. If that be the position, the use of the instrument known as Hooka cannot be prohibited as long as such smoking is of Tobacco through the Hooka and no other prohibited substance is used. Therefore, if the said Hooka is used for any other illegal purpose, certainly the law enforcing authorities including the jurisdictional police would be entitled to take appropriate action in accordance with law.

5. Therefore, the only direction that is required to be issued in the instant petition to the

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respondents is not to insist upon the petitioner to obtain licence for the use of Hooka in the smoking zone provided by the petitioner in their premises, if such facility is provided only for smoking Tobacco through Hooka. However, if any credible information is received and in the process of monitoring, if any illegal activity is found including use of any banned substance, certainly the respondents or such other law enforcing authorities would be entitled to take action in accordance with law."

In the light of the order passed by the Co-ordinate Bench of this Court (supra) and for the reasons aforementioned, the petition stands disposed in the same terms.

Ordered accordingly.

Sd/-

JUDGE

PN

List No.: 1 Sl No.: 7