Legal Approach : Ensuring Legal Justice

THE CIGARETTES AND OTHER TOBACCO PRODUCTS

(PROHIBITION OF ADVERTISEMENT AND REGULATION

OF TRADE AND COMMERCE, PRODUCTION, SUPPLY

AND DISTRIBUTION) ACT, 2063

No. 34 of 2003 . -

An Act to prohibit the advertisement of, and to provide for the regulation of trade

and commerce in, and production, supply and distribution of, cigarettes and

other tobacco products and for matters connected therewith or incidental

thereto.

Whereas, the Resolution passed by the 39th.World Health Assembly (WHO), in its Fourteenth Plenary meeting held on the 15th May, 1986 urged the member States of WHO which have'not yet done so to implement the measures to ensure that effective protection is provided to non-smokers from involuntary exposure to tobacco smoke and to protect children and young people from being addicted to the use of tobacco;

And whereas, the43rd World Health Assembly in its Fourteenth Plenary meeting held on the 17th May, 1990, reiterated the concerns expressed in the Resolution passed in the 39th World Health Assembly and urged Member States to consider in their tobacco control strategies plans for legislation and other effective measures for protecting their citizens with special attention to risk groups such as pregnant women and children from involuntary exposure to tobacco smoke, discourage the use of tobacco and impose progressive restrictions and take concerted action to eventually eliminate ail direct and indirect advertising, promotion and sponsorship concerning tobacco;

And whereas, it is considered expedient to enact a comprehensive law on tobacco in
the public interest and to protect the public health;' ■

And whereas, it is expedient to prohibit the consumption of cigarettes and other tobacco products which are injurious to health with a view to achieving improvement of public health in general as enjoined by article 47 of the Constitution:

And whereas, it is expedient to prohibit the advertisement of, and to provide for regulation of trade and commerce, production, supply and distribution of, cigarettes and other tobacco products and for matters connected therewith or incidental thereto:

Be it enacted by Parliament in the Fifty-fourth Year of the Republic of India as fol
lows:—
Short tide, ex- 1. {/) This Act may be called the Cigarettes and Other Tobacco Products (Prohibition

tent and com- of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribu-mencement. t^j Act, 2003.

(i) It extends to the whole of India.

(3) It shall come into force on such date as the Central Government may, by notification
in the Official Gazette, appoint and different dates may be appointed for different provisions
of this Act.
Delation * 2. It is hereby declared that it is expedient in the public interest that die Union should

to expediency t^e under its control the tobacco industry. of control by

the Union. , ,

Definitions. 3- In this Act, unless the context otherwise requires,—

(a)"advertisement" includes any visible representation by way of notice, circular, label, wrapper or other document and also includes any announcement made orally or by any means of producing or transmitting light, sound, smoke or gas;

(b)"cigarette" includes,—

{/) any roll of tobacco wrapped in paper or in any other substance not containing tobacco,

(if) any roll of tobacco wrapped in any substance containing tobacco, which byreasonofitsappearance,thetypeoftobaccoused in the filter, or its packaging and labelling is likely to be offered to, or purchased by, consumers as cigarette, but does not include beedi, cheroot and cigar;

(d)"export", with its grammatical variations and cognate expressions, means taking out of India to a place outside India;

(e)"foreign language" means a language which is neither an Indian language nor the English language;

(/) "import", with its grammatical variations and cognate expressions, means bringing into India from a place outside India;

(g) "Indian language" means a language specified in the Eighth Schedule to the Constitution, and includes any dialect of such language;

(A) "label" means any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package;

(0 "package" includes a wrapper, box, carton, tin or other container; (/) "prescribed" means prescribed by rules made under this Act; (k) "production", with its grammatical variations and cognate expressions, includes the making of cigarettes, cigars, cheroots, beedis, cigarette tobacco, pipe tobacco, hookah tobacco, chewing tobacco, pan masata or any chewing material having tobacco as one of its ingredients (by whatever name called) or snuff and shall include—

(0 packing, labelling or re-labelling, of containers; (if) re-packing from bulk packages to retail packages; and (iif) the adoption of any other method to render the tobacco product marketable;

(0 "public place" means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway watting room, amusement centres, restaurants, public offices, court buildings, educational institutions, libraries, public conveyances and the like which are visited by general public but does not include any open space;

(m) "sate", with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another, whether for cash or on credit, or by way of exchange, and whether wholesale or retail, and includes an agreement for sale, and offer for sale and exposure for sale;

(«) "smoking", means smoking of tobacco in any form whether in the form of cigarette, cigar, beedis or otherwise with the aid of a pipe, wrapper or any other instruments;

(o) "specified warning" means such warnings against the use of cigarettes or other tobacco products to be printed, painted or inscribed on packages of cigarettes or other tobacco products in such form and manner as may be prescribed by rules made under this Act;

{p) "tobacco products" means the products specified in the Schedule.

4, No person shall smoke in any public place:

Provided that in a hotel having thirty rooms or a restaurant having seating capacity of thirty persons or more and in the airports, a separate provision for smoking area or space may be made.

5. (7) No person engaged in, or purported to be engaged in the production, supply or
distribution of cigarettes or any other tobacco products shall advertise and no person
having control over a medium shall cause to be advertised cigarettes or any other tobacco
products through that medium and no person shall take part in any advertisement which
directly or indirectly suggests or promotes the use or consumption of cigarettes or any other
tobacco products.

(2) No person, for any direct or indirect pecuniary benefit, shall—

(a) display, cause to display, or permit or authorise to display any advertisement of cigarettes or any other tobacco product: or

(i) sell or cause to sell, or permit or authorise to sell a film or video tape containing advertisement of cigarettes or any other tobacco product; or

(c) distribute, cause to distribute, or permit or authorise to distribute to the public any leaflet, hand-bill or document which is or which contains an advertisement of cigarettes or any other tobacco product; or

(d)erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle or shall display in any manner whatsoever in any place any advertisement of cigarettes or any other tobacco product:

Provided that this sub-section shall not apply in relation to—

(a)an advertisement of cigarettes or any other tobacco product in or on a package containing cigarettes or any other tobacco product;

(b)advertisement of cigarettes or any other tobacco product which is displayed at the entrance or inside a warehouse or a shop where cigarettes and any other tobacco products are offered for distribution or sale.

(3)No person, shall, under a contract or otherwise promote or agree to promote the use
or consumption of—

(a)cigarettes or any other tobacco product; or

(b)any trade mark or brand name of cigarettes or any other tobacco product in exchange for a sponsorship, gift, prize or scholarship given or agreed to be given by another person.

Prohibition of smoking in a.

public place.

Prohibition of advertisement of cigarettes and other tobacco products.

THE GAZETTE OF INDIA EXTRAORDINARY [Part II—

Power to give option to pay costs in lieu of confiscation.

„ .-«

Confiscation not to interfere with other punishments.

Adjudication.

Giving oppor
tunity to the
owner of

seized pick-ages.

Appeal.

15. (7) Whenever any confiscation of any package of cigarettes or any other tobacco
products is authorised by this Act, the court adjudging it may, subject to such conditions as
may be specified in the order adjudging the confiscation, give to the owner thereof an option
to pay, in lieu of confiscation, costs which shall be equal to the value of the goods confiscated.

(2) On payment of the costs ordered by the court, the seized packages shall be returned to the person from whom they were seized on condition that such person shall, before making any distribution, sale or supply of such packages of cigarettes or other tobacco products, get the specified warning and indication of nicotine and tar contents incorporated on each such package.

16. No confiscation made, costs ordered to be paid under this Act shall prevent the infliction of any punishment to which the person affected thereby is liable under the provisions ofthis Act or under any other law. .••••.->..• ->.-;.■

17. Any confiscation of cigarettes or any other tobacco products may be adjudged or costs may be ordered to be paid,—

(a)without any limit, by the principal civil court of original jurisdiction within the local limits of whose jurisdiction such confiscation has been made, costs have been ordered to be paid,

(b) subject to such limits as may be specified by the Central Government in this behalf, by such other court, not below a civil court having pecuniary jurisdiction exceeding rupees five thousand, as the Central Government may, by notification in the Official Gazette, authorise in this behalf.

18. (/) No order adjudging confiscation or directing payment of costs shall Be made
unless the owner or person in possession of the package of cigarettes or any other tobacco
products has been given a notice in writing informing him of the grounds on which it is
proposed to confiscate such package, and giving him a reasonable opportunity of making a
representation in writing, within such reasonable time as may be specified in the notice,
against the confiscation mentioned therein, and, if he so desires, of being heard personally
or through a representative in the matter:

Provided that, where no such notice is given within a period of ninety days from the date of the seizure of the package of cigarettes or of any other tobacco products, such package shall be returned, after the expiry of that period, to die owner or the person from whose possession it was seized.

(2) Save as otherwise provided in sub-section (/), the provisions of the Code of Civil Procedure, 1908, shall, as far as may be, apply to every proceeding referred to in subsection (/).

19. (/) Any person, aggrieved by any decision of the court adjudging a confiscation,
ordering die payment of costs, may prefer an appeal to the court to which an appeal lies from
the decision of such court.

(2) The appellate court may, after giving to the appellant an opportunity of being heard, pass such order as it thinks fit confirming, modifying or reversing die decision or order appealed against or may send back the case with such directions as it may think fit for a fresh decision or adjudication, as die case may be, after taking additional evidence, if necessary:

Provided that an order enhancing any fine in lieu of confiscation or confiscating of goods of greater value shall not be made under this section unless die appellant has had an opportunity of making a representation and, if he so desires, of being heard in person or through a representative in his defence.

"5-of 1908

(J) No further appeal shall lie against the order of the court of appeal.

Sec. 1)

THE GAZETTE OF INDIA EXTRAORDINARY

20. (7) Any person who produces or manufactures cigarettes or tobacco products,
which do not contain, either on the package or on their label, the specified warning and the
nicotine and tar contents, shall in the case of first conviction be punishable with imprisonment
for a term which may extend to two years, or with fine which may extend to five thousand
rupees, or with both, and for the second or subsequent conviction.with imprisonment for a
term which may extend to five years and with fine which may extend to ten thousand rupees.

(2) Any person who sells or distributes cigarettes or tobacco products which do not contain either on thepackage or on their label, the specified warning and the nicotine and tar contents shall in the case of first conviction be punishable with imprisonment for a term, which may extend to one year, or with fine which may extend to one thousand rupees, or with both, and, for the second or subsequent conviction, with imprisonment for a term which may extend to two years and with fine which may extend to three thousand rupees.

21. (7) Whoever contravenes the provisions of section 4 shall be punishable with fine
which may extend to two hundred rupees.

(2) An offence under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal 2 of 1974. Procedure, 1973.

22. Whoever contravenes the provision of section 5 shall, on conviction, be punishable—

(a) in the case of first conviction, with imprisonment for a term which may extend to two years or with fine which may extend to one thousand rupees or with both, and

(b)in the case of second or subsequent conviction with imprisonment for a term which may extend to five years and with fine which may extend to five thousand rupees.

23. Where any person has been convicted under this Act for the contravention of the provision of section 5, the advertisement and the advertisement material for cigarettes and other tobacco products may be forfeited to the Government and such advertisement and advertisement material shall be disposed of in such manner as may be prescribed by rules made under this Act.

24. (7) Any person who contravenes the provisions of section 6 shall be guilty of an offence under this Act and shall be punishable with fine which may extend to two hundred rupees.

(2) All offences under this section shall be compoundable and shall be tried summarily in accordance with the procedure provided for summary trials in the Code of Criminal 2 of 1974. Procedure, 1973.

25. (/) Notwithstanding anything contained in any other law for the time being in force, the Central Government or the State Government may, by notification in the Official Gazette, authorise one or more persons who shall be competent to act under this Act:

Provided that the person so authorised may, if he has reasonable ground for believing that any person has committed an offence under section 4 or section 6, may detain such person unless the accused person furnishes his name and address, and otherwise satisfies the officer detaining him that he will duly answer any summons or other proceedings which may be taken against him.

(2) Any person detained under sub-section (7) shall forthwith be taken before Magistrate to be dealt with according to law.

(3) Any person committing an offence under section 4 or section 6 shall be triable for such offence in any place in which he may be or which the State Government may notify in

Punishment for failure to give specified warning and nicotine and tar contents.

Punishment for smoking in certain places

Punishment for advertisement of cigarettes and tobacco products.

Forfeiture of advertisement and advertisement

material.

Punishment for sale of cigarettes or

any other tobacco products in certain places or to persons below the age of eighteen years.

Prevention, detention and place of trial of offences under sections 4 and 6.

Sec. 1] THEGAZETTEOFINDIAEXTRACRDINARY

(b)specify the maximum permissible nicotine and tar contents in cigarettes or other tobacco products under the proviso to sub-section (J) of section 7;

(c) specify the manner in which the specified warning shall be inscribed on each package of cigarettes or other tobacco products or its label under sub-section (2) of section 8;

(

(e) provide for the manner in which entry into and search of any premises is to be conducted and the manner in which the seizure of any package of cigarettes or other tobacco products shall be made and the manner in which seizure list shall be prepared and delivered to the person from whose custody any package of cigarettes or other tobacco products has been seized;

(J) provide for any other matter which is required to be, or may be, prescribed.

(?) Every rule made under this Act and every notification made under section 3 0 shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or notification or bom Houses agree that the rule or notification should not be made, the rule or notification shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule or notification.

32. Nothing contained in mis Act shall apply to any cigarette or other tobacco products or package of cigarettes or other tobacco products which is exported:

Provided that nothing in this section shall be deemed to authorise the export of any package of cigarettes or other tobacco products, not containing the specified warning and indication of nicotine and tar contents to any country if the law in force in that country requires that the same or similar warning and nicotine and tar contents shall be specified on each package Of cigarettes or other tobacco products.

Explanation.—For the purpose of this section, any cigarette or other tobacco products or package of cigarettes or other tobacco products shall be deemed to be exported before the commencement of this Act, if the necessary steps for export have already been taken notwithstanding that the actual export has not taken place.