IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF APRIL 2019 BEFORE THE HON’BLE MR.JUSTICE ALOK ARADHE WRIT PETITION NOs.13015-16 OF 2019 (GM-POLICE) BETWEEN:
1. IRFAN MOHAMMED S/O. MOHAMMED ALI AGED ABOUT 31 YEARS R/A SHAINA MANZIL PADUPANAMBUR BELLAIRU MANGALURU TALUK D.K. DISTRICT-574 146.
2. JAMSHER HUSSAIN S/O. ABDUL RAHIMAN AGED ABOUT 25 YERAS R/A 1-192, PAPU HOUSE KELAGINANGADI SOORINJE D.K. DISTRICT-575 030. ... PETITIONERS (BY SRI. LETHIF B, ADV.) AND:
1. THE STATE OF KARNATAKA REP. BY ITS SECRETARY HOME DEPARTMENT VIDHANA SOUDHA BANGALORE-560 001.
2. THE INSPECTOR GENERAL OF POLICE MANGALURU DIVISION MANGALURU-575 001.
3. THE COMMISSIONER OF POLICE D.K. DISTRICT MANGALURU-575 001.
4. THE ASST. COMMISSIONER OF POLICE NORTH DIVISION D.K. DISTRICT MANGALURU-575 001.
5. THE CIRCLE INSPECTOR OF POLICE SURATHKAL POLICE STATION D.K. DISTRICT MANGALURU-575 001. ... RESPONDENTS (BY SRI.VIJAY KUMAR A. PATIL, AGA) THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO NOT TO INTERFERE IN THE BUSINESS OF THE PETITINERS INCLUDING THE SERVICE OF HOOKA TO ITS CUSTOMER IN THE SMOKING AREA IN THE PETITIOENR'S SHOP PREMISES SITUATED AT DOOR NO.IDDYA- 6-T-104/22A11, ON THE SECOND FLOOR OF RCC BUILDING KNOWN AS 'THARA TOWER' SITUATED AT SURATHKAL, IDDYA VILLAGE, MANGALURU TALUK, D.K.DISTRICT.
THESE WRIT PETITIONS COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Mr. Lethif B, learned Counsel for the petitioner.
Mr. Vijaykumar A Patil, learned Counsel for the respondents.
2. Petitioners are before this Court seeking a writ of mandamus to respondents not to interfere with the lawful activities carried on by the petitioners. Petitioners are said to be running a restaurant wherein the customers are permitted to smoke hooka and respondents are alleged to have interfered with the business of petitioners. Hence, petitioners are before this Court for issue of writ of mandamus to the respondents not to interfere with their business.
3. Under similar circumstances, Coordinate 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, petitioners would be entitled for similar relief.
4. At this juncture, learned Government Advocate would submit that alleged customers of the petitioners under the guise of smoking hooka 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 hooka is to be earmarked by the petitioners in the business premises, where the hotel is being run and as such, he prays for additional condition also being imposed on petitioners.
5. Said contention deserves to be accepted for the simple reason that under the guise of smoking hooka, customers at the petitioners cannot be allowed to use ganja marijuana, etc. That apart, smoking of hooka 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 hooka bar. Hence, in addition to the conditions noted hereinabove an additional condition requires to be imposed on the petitioners and it shall be as under:
(a) Petitioners shall earmark exclusively a separate area/place(s) with appropriate enclosure in the hotel premises and necessarily after obtaining licence for the purpose of hooka smoking and no other area or portion of premises shall be used by the customers of the petitioners for smoking hooka.
(b) Under the guise of inspection, the respondent-jurisdictional police shall not harass the petitioners. However, it does not deter them from inspecting the premises at periodical intervals with notice to the petitioners, if necessary.
6. In that view of the matter, instant petitions are disposed of by imposing the conditions 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 petitioners. 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 petitioners.
Ordered accordingly.
Sd/- JUDGE akc/-