The Bombay High Court Monday permitted a city-based restaurateur to serve herbal hookah, purportedly tobacco-free, at his roof-top restaurant after the petitioner argued that provisions of an amended act cannot be applied to the product.
A division bench of justices Ranjit More and Bharati Dangre allowed the petition filed by restaurateur Ali Reza Abdi, seeking a declaration that the provisions of the Cigarettes and Other Tobacco Products Act (COTPA), 2003, are not applicable to tobacco-free hookah.
Abdi, in his petition, said authorities cannot take coercive action against him if he starts serving the herbal hookah at his roof-top restaurant "Sheesha Skylounge".
"The high court is permitting the petitioner to serve the herbal hookah. If in future the petitioner is found to be serving any tobacco product then the authorities are free to take action as per law," the bench said.
In his petition, Abdi had stated that he operated three outlets in Mumbai under the brand name -- Sheesha Skylounge -- and employed more than 400 people.
"But for over a year now, the outlets have been shut down after the fire at two roof-top restaurants inside Kamla Mills compound on December 28, 2017, that resulted in the loss of 14 lives," it stated.
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After the fire incident, the state government had amended COTPA and imposed a blanket ban on running hookah bars in any place.
The amended law also laid down a punishment of imprisonment up to three years, making serving of hookah a cognisable offence.
Abdi's advocate Sujoy Kantawalla said on Monday that his client had submitted a number of representations to various authorities after the amendment to COTPA, contending that tobacco-free herbal hookah was not covered under provisions of the recent amendment and no coercive action can be taken if nicotine-free herbal hookah is served at his chain.
"We submitted forensic science lab reports to show that herbal hookah has no tobacco in it. We even asked the Mumbai civic body and the state government to conduct their own tests on the product," Kantawalla said.
The petitioner had complained that cigarettes were allowed to be sold although it has been scientifically proven that smoking causes cancer, but he was being prevented from serving tobacco-free hookah at his food joints, he said.
Abdi told the high court that he was put to financial hardship and was deprived of his fundamental constitutional right to do a business of his choice.
Kantawalla said a nicotine-free hookah contains harmless elements like glycerin and sugar.