IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.18596/2019 (GM-POLICE) BETWEEN M/S. HANGOVER, NO.789, 17TH CROSS, DWARAKANAGAR, CHANNASANDRA, RAJARAJESHWARINAGAR, BENGALURU – 560 098.
REPRESENTED BY ITS PROPRIETOR, MR.OM PRAKASH NATH.
... PETITIONER (BY SRI.VISHWANATH M.P., ADV.) AND:
1. THE GOVERNMENT OF KARNATAKA, HOME DEPARTMENT, VIDHANA SOUDHA, BENGALURU – 560 001. REPRESENTED BY ITS SECRETARY.
2. THE COMMISSIONER OF POLICE, INFANTRY ROAD, BENGALURU CITY, BENGALURU – 560 001.
3. THE ASSISTANT COMMISSIONER OF POLICE, KENGERI GATE SUB DIVISION, RAJARAJESHWARI NAGAR SUB – DIVISION, BENGALURU – 560 026.
4. THE DEPUTY COMMISSIONER OF POLICE, BENGALURU WEST DIVISION, BENGALURU – 560 009.
5. THE INSPECTOR OF POLICE/ STATION HOUSE OFFICER, RAJA RAJESHWARINAGAR POLICE STATION, BENGALURU – 560 098.
6. THE CENTRAL CRIME BRANCH, NARCOTIC DEPARTMENT, MYSURU ROAD, CHAMARAJPET, BENGALURU – 560 018.
... RESPONDENTS (BY SRI VIJAYA KUMAR A. PATIL, AGA.) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS NOT TO INTERFERE IN THE BUSINESS OF THE PETITIONER INCLUDING SERVING HOOKAH TO ITS CUSTOMERS IN SMOKING AREA IN THE PREMISES OF THE PETITIONER AND FURTHER DIRECT THE RESPONDENT NOT TO INSIST UPON THE PETITIONER TO OBTAIN SEPARATE LICENSE FOR SERVING HOOKAH IN THE PREMISES OF THE PETITIONER, AS HELD BY THIS HON’BLE COURT IN VARIOUS WRIT PETITIONS ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Sri Vishwanath M.P., learned counsel for the petitioner.
Sri Vijay Kumar A. Patil, learned Additional Government Advocate for the respondents.
Petitioner is before this Court seeking a writ of Mandamus to respondents not to interfere with the lawful activities carried on by the petitioner. Petitioner is said to be running a restaurant wherein, the customers are permitted to smoke hookah and respondents are alleged to have interfered with the business of petitioner. Hence, petitioner is before this Court for issue of writ of Mandamus to the respondents not to interfere with his business.
2. Under similar circumstances, a Co-ordinate Bench of this Court by order dated 27.02.2017 passed in W.P.No.8140/2017 had considered these aspects and after taking note of the order passed in W.P.No.14226/2015 on 03.09.2015 had held as under:
“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.”
In that view of the matter, petitioner would be entitled for similar relief.
3. At this juncture, learned Additional Government Advocate would submit that alleged customers of the petitioner-restaurant under the guise of smoking hookah are likely to indulge in activities, which are unlawful and as such, police authorities should be permitted to keep a check and also smoking having been prohibited in public places, exclusive area for smoking hookah is to be earmarked by the petitioner in the business premises, where the hotel being run and as such, he prays for additional condition also being imposed on petitioner.
4. The said contention deserves to be accepted for the simple reason that under the guise of smoking hookah, customers at the petitioner-restaurant cannot be allowed to use ganja marijuana, etc. That apart, smoking of hookah should not cause inconvenience to other customers, since smoking having been prohibited in public places, an exclusive area with separate enclosure requires to be reserved for hookah bar. Hence, in addition to the conditions noted hereinabove, an additional condition requires to be imposed on the petitioner and it shall be as under:
(a) Petitioner shall earmark exclusively a separate area/place(s) with appropriate enclosure in the restaurant / hotel premises and necessarily after obtaining license for the purpose of hookah smoking and no other area or portion of premises shall be used by the customers of the petitioner for smoking hookah.
(b) Under the guise of inspection, the respondent-jurisdictional police shall not harass the petitioner. However, it does not deter them from inspecting the premises at periodical intervals with notice to the petitioner, if necessary.
5. In that view of the matter, instant petition is disposed of by imposing the conditions mentioned in the order dated 03.09.2015 passed in W.P.No.8140/2017 and also the additional conditions as noted above.
Respondents are hereby directed not to interfere with the legal activities of petitioner. However, liberty as indicated hereinabove would be available to the competent authorities to proceed in accordance with law if any illegal activities are found in the premises of petitioner.
Ordered accordingly.
Sd/- JUDGE nvj