Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 25651 of 2019
Petitioner :- M/S Atmosphere Green Cafe And Sheesa
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Manoj Kumar Rajvanshi,Vishesh Rajvanshi
Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Samit Gopal,J.
Heard Sri Manoj Kumar Rajvanshi, learned counsel for the petitioner and the learned A.G.A.
The petitioner claims following reliefs in the writ petition:-
"(i) Issue a writ, order or direction in the nature of mandamus to respondent nos. 3 & 4 to not take any coercive action against the petitioner if he is serving tobacco and nicotine free herbal hookah.
(ii) Issue a writ, order or direction in the nature of mandamus, directing respondent nos. 3 & 4 to not take any coercive steps against petitioner for serving herbal tobacco free hookah unless there are conclusive scientific findings that tobacco is present in the hookah served by the petitioner.
(iii) Issue any other writ, order or direction which this Hon'ble court deemed fit in the facts and circumstances of the case.
(iv) Award the cost of petition to the petitioners."
Learned counsel for the petitioner submits that petitioner runs a restaurant in the name and style of "Atmosphere Green Cafe and Sheesa" at Mall Road, Kanpur Nagar in which he also serves "tobacco and nicotine free hookah" to its consumers. He claims to have a valid license for running a restaurant from the Food Safety & Drug Administration, Government of U.P. The precise grievance of the petitioner is that although he is serving tobacco and nicotine free hookah to its consumers, yet the local police is repeatedly visiting the premises in violation of the statutory provisions contained under Section 13(1) of the The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 as also the order of the Bombay High Court dated 22.8.2019 in Writ Petition No.3978/2019 (Munib Birya and others vs. The State of Maharashtra and others) which gone unnoticed by the District Magistrate, despite representation of the petitioner (Annexure-6).
We have perused the representation and find that it does not refer to either of the aforesaid contentions. On the contrary, the representation only alleges that given the popularity of the establishment of the petitioner, one Asif Khan for ulterior motives lodged a frivolous complaint that petitioner in the cover of hookah lounge, is dealing in narcotics.
Section 13 of the COTPA Act, 2003 provides the rank of the empowered officers including the police, i.e., a police officer not below the rank of Sub-Inspector, who are authorized to seize the prohibited materials.
There is no averment in the entire writ petition as to what was the rank of the police official concerned, who is alleged to have entered the premises of the petitioner. Averments in paragraph-10 of the petition are too general and vague to accept the contention of the petitioner, coupled with the fact that the said contention was also missing in his representation (Annexure-6).
The writ petition as framed and filed is dismissed as not maintainable at this stage.
Order Date :- 17.12.2019 Chandra