IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA WRIT PETITION No.47187/2017(GM-Police) BETWEEN:
M/S BAMBOO HEIGHTS (EARLIER CALED AS CAFE RESTAURANT) NO.12, KRISHNA NAGAR INDUSTRIAL AREA, HOSUR ROAD, BANGALORE – 560 029 REPRESENTED BY ITS MANAGING PARTNER MR HARSHA ... PETITIONER (BY SRI. RAJESHA SHETTIGARA , ADV.) AND:
1. STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY HOME DEPARTMENT VIDHANA SOUDHA BENGALURU 560 001 2. THE COMMISSIONER OF POLICE BENGALURU CITY, INFANTRY ROAD, BENGALURU 560 001 3. THE ASSISTANT COMMISSIONER OF POLICE SUDDGUNTEPALYA SUB DIVISION BENGALURU 560 029 4. THE STATION HOUSE OFFICER SUDDGUNTEPALYA POLICE STATION SUDDGUNTEPALYA, BENGALURU 560 029 5. THE BRUHATH BENGALURU MAHANAGARA PALIKE REPRESENTED BY ITS COMMISSIONER, J C ROAD, BENGALURU 560 002 6. THE CENTRAL CRIME BRANCH NARCOTIC DEPARTMENT MYSORE ROAD, CHAMARAJPET BENGALURU 560 018 ... RESPONDENTS (BY SMT.PRATHIMA HONNAPURA, AGA FOR R1 TO 4 & 6, SRI.S.N.PRASHANTH CHANDRA, ADV. FOR R5) THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO DIRECT THE RESPONDENTS NOT TO INTERFERE IN THE BUSINESS OF THE PETITIONER INCLUDING SERVING HOOKA TO ITS CUSTOMERS IN SMOKING AREA IN THE SCHEDULE PROPERTY AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Learned Government Advocate to accept notice for respondents No.1 to 4 and 6.
Sri S.N.Prashanth Chandra, learned counsel to accept notice for respondent No.5. They are permitted to file memo of appearance/vakalath in four weeks.
2. The petitioner is before this Court seeking that a mandamus be issued to direct the respondents not to interfere in the business of the petitioner including serving of Hooka to its customers. The petitioner contends that it is running a business after obtaining trade licence in the said premises. The petitioner has also set apart the smoking zone and only in that place the smoking of hooka is permitted. The grievance of the petitioner is that though Regulations do not provide for obtaining a separate licence in that regard, the respondents have been insisting them to do so. It is in that view the petitioner is before this Court.
3. Though contentions are urged in the instant petition, the same need not be adverted to in detail inasmuch as the said issue had arisen consideration before this Court in W.P.No.14226/2015. This Court through the order dated 03.09.2015 has held as hereunder:
“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 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 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.”
4. In that view, a similar benefit is required to be extended to the petitioner also. Hence, it is directed that the respondent shall not insist upon the petitioner to obtain licence for the use of Hookka in the smoking zone provided by the petitioner if such facilities is provided only for the purpose of smoking Tobacco through Hookka in accordance with law. However, if any credible information is received by the respondents or in the process of monitoring if any illegal activities are found including the use of banned substance, certainly the respondents or such other Law Enforcing Authorities would be entitled to take action in accordance with law.
With the above observation and clarification, the petition stands disposed of.
Sd/- JUDGE akc/bms