HYDERABAD: A division bench of the Sindh High Court’s Hyderabad circuit on Friday called for legislation for a permanent ban on gutka and mainpuri or the same with any other name and asked the chief secretary to follow up the process for proper enactment for this purpose.
The order was passed on two separate constitutional petitions filed by Jalil Ahmed, proprietor of J.A. Chhaliya Masala and RightsNow Pakistan. The court had reserved order after hearing parties in the matter at length on Sept 28.
Earlier, the bench, comprising Justice Salahuddin Panhwar and Justice Fahim Ahmed Siddiqui, had passed an interim order, banning sale of the two items through a set of directives to the Sindh police.
The 32-page judgement authored by Justice Panhwar was announced today. The court had appointed Jhamatmal Jethanand advocate as amicus curiae.
The court observed that serious effects of the use of tobacco, pan masala, gutka and mainpuri on lives were not disputed. It became grave when victims happen to be children and women. It said that research and concerns of health officials were glaring and did not need any reference. However, it said, it was alarming that there was no proper mechanism and law to properly and adequately deal with such serious issues whereby guarantee provided by Article 9 of Constitution had been under constant threat.
The order said that “the federal government as well as provincial government prima facie failed to address the issue despite its alarming rather abnormal effects upon young generation. Preparation of a bill for a law is nothing more than a bunch of papers because objectives thereof cannot be achieved unless a bill becomes the law by completion of the required process”.
The court has bifurcated the directives whose implementation is to be ensured by the Sindh local government (LG) secretary, law secretary and chief secretary.
According to the orders, the Sindh LG secretary ensures true enforcement of Section 11 of the Pure Food Ordinance (PFO) 1960 which calls for a licence for preparation/manufacturing, processing, blending, preserving, refrigerating, canning of any food as well to deal as wholesale dealer.
The court called for its true enforcement and appointment of required number of inspector(s) as per section 16(1) of PFO 1960, but strictly following rules and procedure for such recruitment. It said that laboratory for analysis of food should be established. The Sindh police IG continues with campaign against manufacturing/preparation and sale of gutka/mainpuri and similar items under any title, it added.
It said the Tobacco Board should be approached for clarification whether the sale of tobacco pan masala was permissible under the tobacco and vend act or ordinance and if it was so, then its mechanism be defined. The court said that all commissioners/deputy commissioners should be directed to ensure that gutka/mainpuri and similar items were not sold or manufactured in their respective areas. They would be competent, it ruled, to take action against manufacturers, wholesalers and retailers under the relevant laws.
It observed that since petitioner (CP No. 343) and intervener never made a categorical/clear claim that status of manufacturer included a right to sell tobacco pan masala without a licence of such like products, which had been declared to be unfit for human consumption rather hazardous/injurious to health, therefore, legally they could not claim continuity of sale of product ie tobacco masala under any name.
It also observed that one who was permitted to work as manufacturer for exporting its manufactured tobacco, if was permitted for exporting, might continue. But such status alone never earns him a right to sell, market and offer tobacco pan masala for human consumption.
The petitioner and intervener might themselves approach the Tobacco Board for instruction made in order and if they got some answer, they could claim continuity of their business and not before that.
The court dismissed petition of Jalil Ahmed and application of intervener too. The court appreciated assistance provided by senior counsel Jhamatmal Jethanand as amicus curiae.
Published in Dawn, October 21st, 2017