The Bombay High Court clarified that serving hookah in restaurants is lawful if it is completely tobacco-free and adheres to all provisions under the Cigarettes and Other Tobacco Products Act (COTPA), reaffirming its earlier 2019 judgment.
The Bombay High Court clarified that restaurants and cafés are permitted to serve hookah that does not contain tobacco or nicotine.
A Division Bench, comprising Justices RI Chagla and Farhan Dubash, addressed a petition from several restaurant owners who reported facing police harassment and threats of raids for serving hookah.
The petitioners referred to the 2019 case of Munib Birya & Ors. v. State of Maharashtra & Ors., in which the Court determined that serving herbal or tobacco-free hookah is allowed.
Citing this ruling, the Court reaffirmed that establishments can serve hookah as long as it is free from tobacco and complies with the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA).
The Court stated,
“The Petitioners are not prohibited from running a business of restaurant or serving hookah which according to the Petitioners do not contain tobacco or nicotine … As long as the Petitioners comply with the provisions of COTPA and do not serve any prohibited substance in the hookah parlour, then no action can be taken against them,”
The Court noted that a 2018 amendment to Section 3 of COTPA recognizes hookah bars under the law. This amendment defined a hookah bar as a place where individuals gather to smoke tobacco from a communal hookah or narghile.
It has now been clarified that the law only prohibits the use of hookah that includes tobacco, not herbal or nicotine-free alternatives. The Court emphasized that if there is any breach of this legal restriction under COTPA, the police are authorized to take action.
However, such enforcement can only be carried out by a police officer of at least the rank of Assistant Police Inspector.
The Court added,
“In the event, if there is any infraction of the provisions of COTPA as amended in 2018, the Police Officer, not below the rank of Assistant Police Inspector, is empowered to take legal action for such infringement of the conditions imposed under COTPA Act as well as taking action on the hookah parlours where drugs/narcotics are provided and consumed which falls under the purview of Police Department.”
The petitioners were represented by Senior Advocate Zubin Bheramkamdin along with a team of advocates, while the State of Maharashtra was represented by Government Pleader PH Kantharia and Additional Government Pleader Jyoti Chavan.
Case Title: Munib Birya Vs State of Maharashtra