# Love Care Foundation v. Union of India and Anr. Opp. Parties

- **Citation:** (2014) 2 ILRA 809
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-21
- **Case number:** Writ Petition No. 1078(M/B) of 2013
- **Bench:** Shri Narayan Shukla, Surendra Vikram Singh Rathore
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/love-care-foundation-v-union-of-india-and-anr-opp-parties-42983
- **Pages:** 11

## Headnote

Constitution of India, Art. 47 & 226Pseudo
mode
of
advertisementattractive packing of cigarettes attracts
youth smoking -contrary to objects
contained in (Regulation of Production
Supply and Distribution) Act 1975-duty
cost upon state government under Art.
47-smoking cause of several diseaseadversely
affecting
the
health
of
810 INDIAN LAW REPORTS ALLAHABAD SERIES
country-held-considering
development
of plain package in common form in
Australia-General mandamus directinggovernment
of
India
to
consider
implementation of Australian scheme at
earliest possible.

Held: Para-23
Under Article 47 of the Constitution of India
a duty is vested in the State to raise the
level of nutrition and standard of living to
improve public health as amongst its
primary duties. There cannot be any doubt
to the fact situation that smoking or
consumption
of
tobacco
products
is
extremely injurious to health and is cause
of several diseases, so it adversely effects
the general health of the country. At
present, the cigarettes are being packed in
India in very attractive colours, and the
same are being displayed openly in open
shops. Such colourful packaging draws the
attention of the youths and it becomes an
incentive in the mind of the immature youth
to start smoking but if plain packaging
scheme is implemented then all the
cigarettes brand shall be packaged in a
common form, in a common colour. Only on
a restricted part of the packet the name
shall be displayed. On the rest part of the
packets the health warning as required
under the Rules of 2008 have to be printed.
This can be done only by strict regulation.
We
have
been
informed
that
after
implementation of the plain packaging rules
in Australia, the sale of cigarettes has
considerably
reduced.
Australia
has
adopted plain packaging in the year 2013.
If only in one year the sale of cigarettes
starts decreasing then it is very positive
sign to accept said plain packaging formula
in India also. We found no harm in
implementing this scheme. The State of
U.P. has stated that certain amendments
are still under consideration in the Act 2003
so while considering the State amendments
the question of implementing the plain
packaging may also be considered by
Government of India and also by all the
concerned authorities.

Case Law discussed:
(2001) 8 SCC 765.

## Text

2 All] Love Care Foundation Vs. Union of India and Anr.
809
Rashid to finish him and at that time
Rashid had inflicted the injury on the
chest of Akhlaq with the help of knife. It
is, therefore, clear that in the facts of the
case there had been a premeditated
decision between the co-accused and their
common intention was to commit the
crime. The law as explained in the case of
Raghbir Chand (supra) does not support
the accused for the facts noticed.

36. For the reasons recorded above,
we find no good ground to interfere with
the judgment and order passed by the
Trial Court dated 01.05.1989.

37. The appellant no. 3, namely,
Adil has since expired and his appeal has
already been abated under order of the
Court dated 04.07.2014.

38. The conviction of the appellant no.
1, namely, Rashid for an offence under
Section 302 I.P.C., for having committed
murder of deceased Akhlaq, and sentence to
undergo rigorous imprisonment for life as
well as his conviction for an offence under
Section 323/34 I.P.C. and sentence with
rigorous imprisonment for a period of 1
month respectively is affirmed.

39. The conviction of appellant nos.
2 and 4, namely, Nasir and Kamil for the
offence under Section 302/34 I.P.C. and
sentence
to
undergo
rigorous
imprisonment for life is affirmed.

40. Conviction of Kamil for the
offence under Section 323 I.P.C. and
sentence to undergo imprisonment for a
term of one month is affirmed.

41. Conviction of Nasir for the
offence under Section 323/34 I.P.C. and
sentence to rigorous imprisonment for one
month is affirmed.

42. The appeal lacks merit and is
accordingly dismissed.

43. The appellants, namely, Rashid,
Nasir and Kamil are on bail. Their bail
bonds
are
cancelled.
Sureties
are
discharged. They shall be taken into
custody forthwith to serve out the
sentence so awarded to them by the Trial
Court.

44. The Chief Judicial Magistrate,
Budaun may ensure compliance of the
judgment delivered by this Court today.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.07.2014

BEFORE
THE HON'BLE SHRI NARAYAN SHUKLA, J.
HON'BLE SURENDRA VIKRAM SINGH
RATHORE, J.

Writ Petition No. 1078(M/B) of 2013

Love Care Foundation ...Petitioner
Versus
Union of India and Anr. ...Opp. Parties

Counsel for the Petitioner:
Sudeep Seth and Pushpila Bisht

Counsel for the Respondents:
C.S.C. & A.S.G.

Constitution of India, Art. 47 & 226Pseudo
mode
of
advertisementattractive packing of cigarettes attracts
youth smoking -contrary to objects
contained in (Regulation of Production
Supply and Distribution) Act 1975-duty
cost upon state government under Art.
47-smoking cause of several diseaseadversely
affecting
the
health
of
810 INDIAN LAW REPORTS ALLAHABAD SERIES
country-held-considering
development
of plain package in common form in
Australia-General mandamus directinggovernment
of
India
to
consider
implementation of Australian scheme at
earliest possible.

Held: Para-23
Under Article 47 of the Constitution of India
a duty is vested in the State to raise the
level of nutrition and standard of living to
improve public health as amongst its
primary duties. There cannot be any doubt
to the fact situation that smoking or
consumption
of
tobacco
products
is
extremely injurious to health and is cause
of several diseases, so it adversely effects
the general health of the country. At
present, the cigarettes are being packed in
India in very attractive colours, and the
same are being displayed openly in open
shops. Such colourful packaging draws the
attention of the youths and it becomes an
incentive in the mind of the immature youth
to start smoking but if plain packaging
scheme is implemented then all the
cigarettes brand shall be packaged in a
common form, in a common colour. Only on
a restricted part of the packet the name
shall be displayed. On the rest part of the
packets the health warning as required
under the Rules of 2008 have to be printed.
This can be done only by strict regulation.
We
have
been
informed
that
after
implementation of the plain packaging rules
in Australia, the sale of cigarettes has
considerably
reduced.
Australia
has
adopted plain packaging in the year 2013.
If only in one year the sale of cigarettes
starts decreasing then it is very positive
sign to accept said plain packaging formula
in India also. We found no harm in
implementing this scheme. The State of
U.P. has stated that certain amendments
are still under consideration in the Act 2003
so while considering the State amendments
the question of implementing the plain
packaging may also be considered by
Government of India and also by all the
concerned authorities.

Case Law discussed:
(2001) 8 SCC 765.
(Delivered by Hon'ble S.V.S. Rathore, J.)

1. This petition has been filed on
behalf of the Love Care Foundation,
registered society, who has approached
this Court with a pious object of reducing
the growing tendency of smoking among
the Indian youths and thereby to create a
healthy society free from several diseases.

2. Initially, the prayer of the
petitioner in the instant writ petition was
as under:-

(i) A writ, order or direction in the
nature of mandamus commanding the
opposite parties to ban the distribution and
sale of cigarette and other tobacco products
in public and open market and to implement
plain packaging rule in cigarette and other
tobacco products by prohibiting the use of
logos, colours, brand names or prominent
information on packaging.

3. But during course of arguments,
learned counsels for the petitioner have
fairly conceded that they have restricted
their prayer only to the extent of
implementing plain packaging rule in
cigarettes and other tobacco products by
prohibiting use of logos, colours, brand
names or prominent information on
packaging.

4. The case of the petitioner is that
an attractive packaging is a pseudo mode
of advertisement. The cigarettes are being
packed in such an attractive packaging
that it attracts the youths for smoking. The
ill effects of smoking are well known.

The
statement
of
Objects
and
Reasons of the cigarettes (Regulation of
Production, Supply and Distribution) Act,
1975, inter alia, provides:
2 All] Love Care Foundation Vs. Union of India and Anr.
811

5. Smoking of cigarettes is a harmful
habit and, in course of time, can lead to grave
health hazards. Researches carried out in
various parts of the world have confirmed
that there is a relationship between smoking
of cigarettes and lung cancer, chronic
bronchitis; certain diseases of the heart and
arteries; cancer of bladder, prostrate, mouth,
pharynx and oesophagus; peptic ulcer etc.,
are also reported to be among the ill-effects
of cigarette smoking."

(4) Similarly, the statement of
Objects and Reasons of the Cigarettes and
other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade
and Commerce, Production, Supply and
Distribution) Bill, 2001 provides:

"Tobacco is universally regarded as
one of the major public health hazards
and is responsible directly or indirectly
for an estimated eight lakh deaths
annually in the country. It has also been
found that treatment of tobacco related
diseases and the loss of productivity
caused therein cost the country almost
Rs.13,500 crores annually, which more
than offsets all the benefits accruing in the
form of revenue and employement
generated by tobacco industry."

In the case of Murli S. Deora Vs.
Union of India and Others reported in
(2001) 8 SCC 765 of that case, the
question of passive smoking was before
the court and Hon'ble Apex Court,
keeping in view the hazardous of smoking
had issued several directions to protect,
the citizens from the ill effects of passive
smoking. These directions read as under:-

(9) Realising the gravity of the
situation and considering the adverse
effect of smoking on smokers and passive
smokers, we direct and prohibit smoking
in public places and issue directions to the
Union of India, State Governments as
well as the Union Territories to take
effective steps to ensure prohibiting
smoking in public places, namely:

(a) Auditoriums.

(b) Hospital buildings

(c) Health institutions

(d) Educational institutions

(e) Libraries

(f) Court buildings

(g) Public offices

(h) Public conveyance, including
railways.

(10) Learned Attorney-General for
India assured the Court that the Union of
India shall take necessary effective steps
to give wide publicity to this order by
electronic as well as print media to make
the general public aware of this order of
prohibition of smoking.

6.

After
the
aforementioned
judgment of Hon'ble Apex Court the
Cigarettes and other Tobacco Products
(Prohibition
of
Advertisement
and
Regulation of Trade and Commerce
Production, Supply and Distribution) Act,
2003 was enacted and thereafter the
cigarettes and other tobacco products
rules 2008 were also framed and it
provided for the health warning regarding
the ill effects of tobacco use. By Act 2003
the advertisement of cigarettes was also
restricted and stringent steps were taken
regarding advertisement of cigarettes and
smoking.

7. Submission of the learned counsel
for the petitioner was that the very object
of the aforesaid legislation was to prohibit
the advertisement of cigarettes and
812 INDIAN LAW REPORTS ALLAHABAD SERIES
smoking that at present cigarettes are
being packed in a very attractive
packaging. Such attractive packets are
being displayed in open shops which
attracts the youths to smoke and if plain
packaging is adopted, then it will
definitely reduce the allurement among
the youths towards smoking.

8. On behalf of the Union of India,
counter affidavit has been filed before this
Court and we consider it necessary to
quote para 5 (i) of the counter affidavit
filed on behalf of Union of India.

Para-5 (i) The use of tobacco is a
prominent risk factor for 6 to 8 leading
causes of death and almost 40% of the
Non Communicable Diseases (NCD)
including
cancers,
cardio-vascular
diseases and lung disorders are directly
attributable to tobacco use. The number of
deaths every year in India which is
attributable to tobacco use is almost 8-9
lakhs (Tobacco Control in India Report,
2004 of Ministry of Health & Family
Welfare and WHO). If the current trends
continue and if effective that by the year
2020, tobacco use will account for 13% of
all deaths in India every year. Studies
national and international reveal that
tobacco is the only substance which if
taken as intended by its seller over a
period of time kills or incapacitates its
consumer, therefore the tobacco industry
looks for tapping new consumers, with
special attention on youth and young
children since they are of impressionable
mind. Studies also report high prevalence
of tobacco use amongst children and
youth of the country. As per the Global
Adult Tobacco Survey India Report 2010
(carried out by the Government of India),
more than one-third (35%) of adults (15
years and above) in India (almost 29 crore
in number) use tobacco in some form or
the other. 14.6% of the youth in the age
group of 13-15 years consume tobacco in
some form or other (Global Youth
Tobacco Survey, 2009). More than 5500
children
/Adolescents
start
tobacco
consumption daily. (Indian J Pediatr
1999; 66 : 817-824). (Emphasis added)

9. Respondent No.2, the State of
U.P. has also filed its counter affidavit in
which it has been stated that the
Provisions of Act, 2003 and the rules are
being implemented strictly in this State by
the State Government. It has further been
submitted in para 16 of the counter
affidavit that the matter of amendment in
the provisions of Act, 2003 is under
consideration before the Government of
India. Virtually neither the Union of India
nor the State of U.P. has raised any
objection against the prayer of the
petitioner.

10. The object of Cigarettes and
other Tobacco Products Act, 2003 reads
as under:-

"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
2 All] Love Care Foundation Vs. Union of India and Anr.
813
and young people from being addicted to
the use of tobacco.

And whereas, the 43rd 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 MemberStates 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 all 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;

So, the object to implement the
aforementioned Act shows the concern of
the Government which was to implement
measures to ensure effective protection to
non-smokers and also to protect children
and young people from being addicted to
the use of tobacco. The instant petition
has also been filed with the aforesaid
objects. Government of Australia has
implemented Tobacco Plain Packaging
Regulation,
2011
instruments
2011
no.263
and
in
England
a
similar
regulation is likely to be implemented in
the near future.

11. The Plain Packaging Act, 2001",
was challenged before the High Court of
Australia and the petition was dismissed
on 15.08.2012 and plain packaging was
held to be constitutional. Copy of the
order of Hon'ble High Court of Australia
has been annexed as Annexure No.7 to
the instant writ petition.

12. Now before proceedings further in
the matter the first point to be considered is
as to what is plain packaging and how it will
keep the young citizens of India away from
the allurement of smoking. The effect of
plain packaging would be that the cigarette
packets cannot carry brand, logos and
colourful designs, even brand name and
packets will be of a standard size, font and
colour. The plain packaging will further
advance the very purpose of "Cigarettes and
other tobacco products packaging Act. If
plain packaging is implemented in India, the
cigarettes and other tobacco products packets
will cease to be a market tool for advertising
the brand image and promoting smoking as a
status symbol. Instead it will become
effective means of spreading public health
message and discouraging consumption at no
cost to the Government.

13. The young people get attracted
to cigarettes packets because of the way
814 INDIAN LAW REPORTS ALLAHABAD SERIES
they present their lifestyle. Learned
counsel for the petitioner has submitted
that a sportier person would like to buy
what he considers sportier brand and
every time he takes packet of cigarettes
out. He indirectly advertise that brand
amongst the persons connected with the
sports. A plain packaging brand products
commodity, its ability to differentiate its
product from better brands and thereby
substantially diminishing the smokers in
the country who look for a particular
brand.

14. As per recent reports around 9
lacs people die in India from tobacco
related
diseases.
World
Health
Organization, which supports the plain
packaging, estimates that 5 million world
wide died only from the diseases linked
with tobacco and this figure is likely to
become 9 million by 2030 provided
necessary steps to reduce the growing
tendency of smoking are not taken
forthwith.

15. After implementation of the
packaging in Australia a study was
conducted regarding the effective of the
Australian plain packaging policy on
adult
smokers.
The
introduction
paragraph of the said report reads as
under:-

Introduction

"From 1st September 2012, all
tobacco
manufactured
for
sale
in
Australia was required to be contained in
plain dark brown packs, with 75% frontof-pack graphichealth warnings and the
brand name and variant limited to a
standardised font size and type.1 This
requirement
supplanted
Australian
legislation that had required 30% front-ofpack graphichealth warnings since 2006.
The new plain packs with larger warnings
began appearing for sale at retail outlets
early in October and increasingly so
during November, since from 1 December
2012, all tobacco sold at retail outlets was
required to be contained in plain packs.
The roll-out period of the new packs was
accompanied by a nationally televised
mass
media
campaign
throughout
November, promoting several serious
harms of smoking that were also featured
on the larger pack health warnings,
including blindness, lung cancer and
pregnancy-related harm. Other health
warnings featured in the larger pack
health warnings were peripheral vascular
disease
(gangrene),
mouth
(tongue)
cancer and improvements to health from
quitting.

Conclusions of the aforesaid study is
as under:-

The early indication is that plain
packaging is associated with lower
smoking appeal, more support for the
policy and more urgency to quit among
adult smokers.

16. Some of the paragraphs of
discussion regarding the aforesaid study
are necessary to be reproduced which
reads as under:-

Discussion

Compared
with
branded
pack
smokers, smokers who were smoking
from plain packs rated their cigarettes as
being lower in quality and as tending to
be less satisfying than 1 year ago. These
appeal outcomes were sensitive to the
extent to which plain packaging had
rolled out among the smoker population
2 All] Love Care Foundation Vs. Union of India and Anr.
815
over the survey period, with responses
from brandedpack smokers approaching
those of plain pack smokers, once 80% of
survey respondents were smoking from
plain
packs
1-2 weeks
before
the
December implementation date. Among
brandloyal smokers, effects were in the
same direction but not significant. In all
analyses, plain pack smokers were more
likely to think often or very often about
quitting in the past week and to rate
quitting as a higher priority in their lives,
compared with branded pack smokers.
There were no significant differences in
the proportion of plain and branded pack
smokers who thought frequently about the
harms of smoking or thought smoking
harms had been exaggerated. While a
similar proportion of plain and branded
pack
smokers
supported
the
larger
graphichealth warnings, a significantly
greater proportion of plain pack smokers
approved of plain packaging.

The observed pattern of findings in
relation to brand appeal and the direction
of findings relating to perceived harms is
consistent with those of experimental
studies of plain packaging conducted in
Australia, UK, and other countries and
also with the Australian government's
pretesting of mocked-up plain packs. The
finding that smokers smoking from a
plain pack evidenced more frequent
thoughts about and priority for quitting
than branded pack smokers is important,
since frequency of thoughts about quitting
has
strong
predictive
validity
in
prospective studies for actually making a
quit attempt. Past research on graphic
health warnings has found that the larger
size of warnings is associated with more
message
recall,
greater
perceived
effectiveness and risks of smoking and
less appeal. Also, noticing pictorial health
warnings
on
others'
tobacco
packs
reduced the risk of relapse in recent
quitters in a cohort study. Our study is not
able to tease apart the independent
contributions of plain packaging and the
new larger health warnings, since they cooccurred. These responses are unlikely to
be due to any media campaign effects
since we adjusted for campaign recall
and, in other analyses, determined that
campaign recall was unrelated to the
frequency of thoughts of harm and
quitting intentions and importance.

We noted that the proportion who
thought the harms had been exaggerated
was not higher for plain pack smokers
with the larger graphic warnings, than for
branded pack smokers. We also found
similar proportions of branded and plain
pack smokers who supported the larger
graphic health warnings, with a majority
supporting it. Interestingly, those smoking
from plain packs were more likely to
approve of plain packaging than those
smoking from branded packs. Given that
73% of Australian smokers intend to quit
and over 90% regret having started,
smokers
may
acknowledge
such
packaging changes as a source of
motivation or reminder for quitting,
and/or as being important to reduce the
appeal of smoking for young people. This
pattern of differences in approval is
similar to the pattern of increase in public
support that is observed when smoke-free
laws and display bans have been
implemented."

17. The impact of plain packaging of
cigarettes products among the Brazilian
young women and experimental study
was conducted in the year 2012. The
background of the said study was as
under:-
816 INDIAN LAW REPORTS ALLAHABAD SERIES

(1-A) Tobacco use is responsible for
5.4 million deaths every year worldwide
and is a leading cause of preventable
death. The burden of these deaths is
rapidly shifting to low and middle-income
countries, such as Brazil. Brazil has
prohibited
most
forms
of
tobacco
advertising; however, the cigarette pack
remains a primary source of marketing.
The current study examined how tobacco
packaging influences brand appeal and
perceptions of health risk among young
women in Brazil.

Methods

A between subjects experiment was
conducted in which 640 Brazilian women
aged 16-26 participated in an online
survey. Participants were randomized to
view 10 cigarette packages according to
one of three experimental conditions:
standard branded packages, the same
packs without brand imagery ("plain
packaging"), or the same packs without
brand
imagery
or
descriptors (e.g.,
flavors). Participants rated packages on
perceived appeal, taste, health risk,
smoothness,
and
smoker
attributes.
Finally, participants were shown a range
of branded and plain packs from which
they could select one as a free gift, which
constituted a behavioral measure of
appeal."

18. The result and conclusions of the
said study was as under:-

Results

Branded
packs
were
rated
as
significantly
more
appealing,
better
tasting, and smoother on the throat than
plain packs. Branded packs were also
associated with a greater number of
positive smoker attributes including style
and sophistication, and were perceived as
more likely to be smoked by females than
the plain packs. Removing descriptors
from the plain packs further decreased the
ratings of appeal, taste and smoothness,
and also reduced associations with
positive attributes. In the pack offer,
participants were three times more likely
to select branded packs than plain packs."

Conclusion:

Plain packaging and removal of
descriptors may reduce the appeal of
smoking for youth and young adults, and
consequently
reduce
smoking
susceptibility.
Overall,
the
findings
provide support for plain packaging
regulations, such as those in Australia.

Cigarettes taste and flavor also
influence cigarette appeal and make initial
experience of smoking less aversive to
youth. Brands targeted at youth are
typically marketed as smoother and less
harsh, and include flavors that may be
more
palatable
such
as
mint,
or
strawberry. The names of these flavors
are often featured in the package
descriptors and may increase smoking
appeal.

Brand descriptors and imagery on
cigarette packaging can falsely reassure
consumers about the potential risks of
their products. Studies have shown that
many smokers mistakenly believe that
cigarettes labeled as "light" or "mind"
actually deliver less tar and are less
harmful to smokers, and consequently are
"healthier"
than
regular
cigarettes.
Although Brazil banned the use of these
misleading descriptors in 2001, a number
of brands use alternative terms such as
2 All] Love Care Foundation Vs. Union of India and Anr.
817
"fresh" or references to lighter colors such
as "gold" or "silver". Elements such as the
pack color and shape can also reinforce
false beliefs among smokers.

Plain
packaging
has
been
recommended by the World Health
Organization
(WHO)
Framework
Convention on Tobacco Control (FCTC)
as a component of marketing restrictions.
Plain
packaging
regulations
would
prohibit logos, colors, and images from
appearing on packages. Manufacturers
would only be permitted to print the brand
name and descriptors in a standard font
and size against a standard background
color. In December 2012, Australia will
become the first country in the world to
introduce plain packaging.

Research in "Western" countries has
indicated that plain packaging has the
potential
to
impact
youth
smoking
perceptions
and
behaviors.
Youth
perceive plain packages as less appealing
and have more negative expectations of
cigarette taste. They are also less likely to
associate brands in plain packages with
favorable personality traits such as being
trendy
and
sociable.
Additionally,
individuals shown plain packages are less
likely to falsely believe that certain brands
are less harmful, deliver less tar, or are
easier to quit. However, the effect of
packaging has yet to be systematically
tested in other markets, including Latin
American countries such as Brazil.

19. The result of the aforesaid study
of plain packaging on the Brazilian
women was as under:-

Overall, the findings support the
recommendations for plain packaging in
the WHO Framework Convention on
Tobacco Control and Australia's recent
plain packaging regulation.

20.Ireland has also stepforward for
implementing the plain packaging. In the
news, "Minister for Health Ireland" has
pressed the need of plain packaging. The
abstract of the said news reads as under:-

(4-A) Cabinet approval for draft laws
to compel tobacco companies to use plain
packaging on all the products they sell in
the Republic represents a significant
public health initiative and reaffirms this
country's reputation as a global leader in
tobacco control. When enacted, the new
law would ban the use of any logos on
cigarette packs. Graphic warnings would
be mandatory on all packaging, and terms
such as "low tar" would be forbidden.

As the first EU member state to
introduce plain packaging legislation,
stern opposition to the law from the
global tobacco industry can be expected.
Indeed
the
lobbying
has
already
commenced; the Taoiseach has been
approached by American business and
political interests who argue the plain
packaging initiative would convey an
adverse message to foreign investors.

According to the Minister for Health,
the objective of the Public Health
(Standardised Packaging of Tobacco) Bill
2014 is to make tobacco packs look less
attractive to consumers; to make health
warnings more prominent; and to reduce
the ability of the packs to mislead people,
especially children about the harmful
effects of smoking.

By targeting children under the age
of 18, the tobacco industry knows that,
due to the challenge of giving up
818 INDIAN LAW REPORTS ALLAHABAD SERIES
cigarettes in later life, it can exploit an
opportunity to ensure a customer base for
many years to come. Out of more than
4,000 chemicals in tobacco smoke, at
least 250 are known to be harmful and
more than 50 are known to cause cancer.

21. Even the developed countries
have taken steps to implement plain
packaging the reasons given therefor are
in our considered opinion are compelling,
we know that the dangers of smoking are
not acceptable to allow the tobacco
industry to use deceptive market to allure
the children keeping this deadly attractive
and to deceive the current smokers about
the impact of their reduction. We are of
the view that the introduction of standards
packaging will remove the final way from
tobacco company to permit their deadly
product in an implied manner and the
cigarettes packets, after implementation
of the plain packaging will no longer be a
mobile advertisement for the tobacco
industry.
Tobacco
plain
packaging
measure would be a long term investment
to safeguard the health of the Indian
youth. The plain packaging aims to
reduce the attractiveness of tobacco
products.
The
noticeability
and
effectiveness
of
mandatory
health
warning and plain packaging reduce the
ability of attractive packaging to mislead
consumer about the harms of smoking.

22. These measures are based on
safe research and are also supported by
leading public health experts world wide.
World Health Organization (WHO) has
strongly welcomed the landmark decision
of Australian High Court to dismiss the
legal challenge from tobacco industry and
calls on the rest of the world to follow
Australia's
tough
stand
on
tobacco
marketing.

23. Under Article 47 of the
Constitution of India a duty is vested in the
State to raise the level of nutrition and
standard of living to improve public health as
amongst its primary duties. There cannot be
any doubt to the fact situation that smoking
or consumption of tobacco products is
extremely injurious to health and is cause of
several diseases, so it adversely effects the
general health of the country. At present, the
cigarettes are being packed in India in very
attractive colours, and the same are being
displayed openly in open shops. Such
colourful packaging draws the attention of
the youths and it becomes an incentive in the
mind of the immature youth to start smoking
but
if
plain
packaging
scheme
is
implemented then all the cigarettes brand
shall be packaged in a common form, in a
common colour. Only on a restricted part of
the packet the name shall be displayed. On
the rest part of the packets the health warning
as required under the Rules of 2008 have to
be printed. This can be done only by strict
regulation. We have been informed that after
implementation of the plain packaging rules
in Australia, the sale of cigarettes has
considerably reduced. Australia has adopted
plain packaging in the year 2013. If only in
one year the sale of cigarettes starts
decreasing then it is very positive sign to
accept said plain packaging formula in India
also. We found no harm in implementing this
scheme. The State of U.P. has stated that
certain
amendments
are
still
under
consideration in the Act 2003 so while
considering the State amendments the
question
of
implementing
the
plain
packaging may also be considered by
Government of India and also by all the
concerned authorities.

24. Keeping in view the discussion
made
hereinabove,
we
are
of
the
considered view that this writ petition
2 All] Manphool Vs. U.P Jal Nigam & Ors.
819
deserves to be allowed and is hereby
allowed. The scheme of plain packaging
must be welcomed by all concerned and
the Government of India must consider to
implement the said scheme at the earliest.
We therefore, strongly recommend to the
Government of India to consider the
feasibility of implementing the plain
packaging of cigarettes and other tobacco
products.
We
hope
and
trust
that
necessary steps shall be taken by the
Union of India, at the earliest.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.07.2014

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Service Single No. 3793 of 2014

Manphool ...Petitioner
Versus
U.P. Jal Nigam & Ors. ...Respondents

Counsel for the Petitioner:
Ms. Savita Jain

Counsel for the Respondents:
Sri I.P. Singh

Constitution
of
India,
Art.-226-Post
Retiral benefits-class 4th employee-in Jal
Nigam-retirement age-of 58 years or 60
years-in Jaswant Singh case-although
retirement age fixed 60 years-with two
classification
firstly
who
already
approached before Court whether got
interim order or not-entitled for arrears
of salary alongwith all consequential
benefit-the other one who not filed any
writ petition-shall get pensionary benefit
treating retirement age as 60 yearswithout arrears of salary-petitioner's
case fallen under Para 38 (b) of the Apex
Court.

Held: Para-8
The only question in the present case is
whether the claim of the petitioner was
barred by laches and no relief could be
granted by this Court in view of the
judgment in the case of Jaswant Singh
(supra). However, the judgment of Jaswant
Singh has already been considered by the
Supreme Court in the case of Dayanand
Chakrawarty (supra) which was a case
relating to the employees of the Jal Nigam
and it is only thereafter that the Supreme
Court has given directions in para-38 of that
judgment.

Case Law discussed:
2005 (13) SCC 300; (2006) 11 SCC 464; Civil
Appeal No. 5527 of 2012; AIR 1997 SC 2366;
(1996) 6 SCC 267; AIR 1989 SC 674

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Heard Ms.Savita Jain, learned
counsel for the petitioner and Sri
I.P.Singh,
learned
counsel
for
the
respondents.

2. The petitioner in this writ petition
is seeking a direction to the respondents
to calculate his retiral dues treating his
retirment age as 60 years and also to pay
him arrears of pension and other dues.

3. According to the avements made
in the writ petition, the petitioner was a
Class IV employee in the U. P. Jal Nigam.
It is stated that earlier the age of
retirement was 58 years but subsequently
by G.O. dated 28.11.2001 it was enhanced
to 60 years by the State Government in all
the departments of the State Government.
A query was raised by the Jal Nigam as to
whether the age of retirement of the
employees of the Nigam would be 58
years or 60 years. The State Government
through
its
letter
dated
22.1.2002
informed the Nigam that age of the
employees of the Nigam would be 58
years and not 60 years and that the G.O.