About nine years ago, after dinner at a restaurant late one night, I was standing with a few friends on the street outside, waiting for the cabs that they had booked to take them home. A police patrol came by, and one of the police officers approached one of my friends who was smoking and demanded that he pay a fine for smoking in a public place. I pointed out to the police officer that there were other people around us standing and smoking as well. The police officer got irritated and started yelling at me. We got into an argument, and I was taken into police custody and released the next morning. I forgot about the whole matter until, about a year later, I received a summons to appear in court for a FIR filed against me by the police. There were three charges against me - disturbing the public peace, obstructing a police officer on duty, and insulting the modesty of a woman through words or gestures (the police officer administering the fine being a female).
I knew the charges were false since I was there in person at the time of the incident. I went through the FIR and the accompanying witness written statements and saw flaws in the evidence. I looked up The Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 or the COPTA Act as it is known in short. Sec 3(L) of the COPTA Act 2003 states that '"public place" means any place which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centers, 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;' The definition of what constitutes a public place, according to the COPTA Act, where the police have jurisdiction to impose fines on smokers, gives clear examples of what constitutes a public place, and nowhere does it state that the street falls into this category. It is essentially what is defined in the Act as an 'open space'. I decided that I would not employ a lawyer and would defend myself as a party-in-person for a number of reasons, including: my personal interest in seeing where the police and judiciary wanted to go with this matter, my financial situation, and the fact that these charges were false. I appeared in court and pleaded not guilty of the charges against me. The case was posted for trial. The prosecution listed seven witnesses - three police officers, 3 staff from the restaurant outside which the incident happened and an unknown seventh witness. The three police officers were the female police officer (a police sub-inspector who was the complainant), a head constable who had accompanied her, and the station house office of the police station that I was detained in. The three restaurant staff were two employees working in the restaurant at the time of the incident, and a day manager who came to work the next morning after the incident.
The case was called for hearing for a total of about sixty times spread over nearly eight years. It was even called for hearing during the fake Covid 19 pandemic. I attended court for every single hearing. During the fake pandemic, I was not allowed inside the court premises despite my stating that I was the accused as party-in-person. The court officials demanded that I produce an advocate identification for entry. In the sixty-odd hearings that were called, the complainant turned up about 2-3 times. Out of the list of seven prosecution witnesses, finally only three appeared in court to give evidence - the complainant herself, the station house officer and the day manager of the restaurant. I cross-examined both the complainant and the station house officer and asked them whether, according to the COPTA Act, the street was a public place or an open space. Both the complainant and station house officer stated that it was a public place. I read out to them the definition of a public place, as per the COPTA Act. I pointed out that the street was nowhere listed as a public place, but falls in the category of open space, outside the jurisdiction of the police for administering a fine according to the COPTA Act. The officers insisted that the street was a public place without any supporting material, other than what appears to be their personal opinions.
Finally, after the prosecution witnesses had given their evidence, since I did not call upon any defense witnesses, I was asked to give a statement in court, as the accused, under Section 313 of the CrPC. I prepared a written statement and submitted it in court. Besides pointing out the flaws in the statements and evidence of the police officers directly related to the charged filed against me, my written statement under Section 313 of the CrPC included the following section regarding the COPTA Act 2003:
3. THE COPTA ACT 2003
Now, this brings me to the most important aspect of the police action against me. When I looked up the The Cigarettes and Other Tobacco Products Act (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act 2003, or COPTA Act 2003, I found that the entire police action at the time of the incident - of fining an individual for smoking on the street - is illegal and outside their jurisdiction. Not only this, but wherever in India the police are stopping a person standing or walking down a street smoking a cigarette, beedi, cigar, etc., they are committing an illegal action outside their ambit and, essentially, extorting money from the public. This action is mostly targeted at the middle- and low-income classes. I think it would be rare to see a police officer walk up to an Adani or Ambani, or a politician, or a senior police officer, or even a judge of the judiciary and impose a COPTA fine on him, if they saw him standing on the street with a cigarette.
COPTA is an Act aimed at protecting the general public from tobacco harms. COPTA is mainly directed at the supply chain of tobacco to regulate it and control tobacco use. The focus of the COPTA Act 2003, which has 33 sections, is first the producers and distributors of tobacco products, and then, the consumers. In terms of its relevance to the general public, i.e. with consumption or, specifically smoking tobacco, the regulatory aspects are to be implemented by law enforcement in public places, such as railway stations, government offices, libraries, public conveyances, etc., where the public generally gathers, in close proximity of about one or two feet, standing together for some moments in time for a common purpose, constrained and separated from open spaces by the boundaries of the public place. In an open space, people are passing each other momentarily, as it happens with people walking on the street, or any other open space. Even if they are standing together, each person is free to move further away into the open space as he or she wishes. The person is not constrained in movement, like it is in a public place. In order to not infringe upon the fundamental rights of an individual, which include the right of a smoker to smoke a product that is approved by the government and legally sold in retail outlets, Sec 3(L) of the COPTA Act 2003 states that '"public place" means any place which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting room, amusement centers, 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;' The phrase 'but does not include any open space' is a key part of the definition of what a public place is. It is also a key part that recognizes the rights of an individual to freely smoke legal products in an open space. If this phrase was not present, then, effectively, the individual can only smoke in private places, such as homes. Such a rule would mean that the individual is literally confined to a small part of his rightful free space in this world, further impinging on his freedom. Those creating such laws in the name of protecting public health may have been aware that restricting people to only private places for smoking would amplify the exposure of others in the private places, including children, women and elders. In fact, this concern for people in private spaces is one of the precise reasons why a person steps out into the street, or any other open space, to have a smoke. The policymakers may have also included this phrase knowing the impossibility of preventing people from smoking in open spaces ,which make up most of the planet's surface. If the phrase 'does not include any open space' was not included in the COPTA definition of what a public place is, effectively lawmakers and society would be saying that there is no place for a smoker in this world.
Smoking is a human trait. It is one of the earliest distinguishers of the human species branching out from the primate species. Possibly, the discovery of fire was soon followed by the discovery of smoking. Smoking is one of the methods of administering medicine in Ayurveda's panchakarma process for detoxifying and restoring balance to the body and mind. People have smoked for tens of thousands of years. They have mostly smoked plants and herbs much less toxic than tobacco, like cannabis for example, which is highly medicinal, especially to relieve stress, anxiety, fatigue, for digestion, etc.. In colonial times, in order for the British businessmen and politicians to become rich from their tobacco businesses, and in order to make more revenue, the government took away cannabis - the medicine and intoxicant of the poorest castes and classes of Indian society and the spiritual herb of the sadhus of all religions - and replaced it with the vastly more harmful tobacco. So today, while on the one hand the government earns a very significant chunk of its revenue from tobacco and constantly increases the taxation of tobacco products, on the other hand, it implements policies such as the COPTA Act 2003 that not only ensure it gets its revenue from tobacco but also enables it to take penal action against the individual for consuming the very same product that the government vastly profits the most from, by stating that the product is harmful for public health. The poor indigent smoker - who makes up a significant proportion of the people this country - over time has had his medicinal cannabis replaced with harmful tobacco, has had to pay increasingly high prices for the tobacco, and has also got penalized for smoking the tobacco. Is there anything such as the fundamental rights of a smoker to life, liberty, equality, justice and good health? When we talk about a smoker we are talking about Albert Einstein, Winston Churchill, Jawaharlal Nehru, Satyajit Ray, Che Guevara, etc., here, as much as we are talking about the poor indigent common man. However, for the smoker belonging to the upper classes of society all this pain, suffering and discrimination is mostly invisible. The upper class smoker still gets his cannabis from the black market, buys the most expensive tobacco at the highest price without feeling the slightest pinch on his pocket from the ever-increasing prices, and never ever pays a COPTA fine. It is always the poor working class man or mendicant, standing in some discrete corner of the street, trying to get some relief from the pain and toil of surviving in this brutal world with a smoke for a few moments, who is the main target for this extortion. The newspapers state that lakhs of people are fined every year for COPTA violations by the police in India and I am positive that a majority of these are fines imposed by the police of members of the public, who are standing or walking on the street and smoking in open spaces that are outside police jurisdiction for imposing COPTA fines.
In addition to the COPTA definition of what constitutes a public place, the Guidelines for Law Enforcers for effective implementation of Tobacco Control Laws 2013, published by the Ministry of Health & Family Welfare, Government of India, defines a public place as '“public place” means any place to which the public have access, whether as of right or not, and includes auditorium, hospital buildings, railway waiting 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;'. Here, a few more examples of what constitutes a public place have been included, in addition to what is defined in COPTA Act 2003. But here also the very important phrase 'but does not include any open space' is present. Further, in Section 4 of the Guidelines, Rules relating to prohibition on smoking in public places (Section 4), it states that '(c) “Open space” mentioned in Section 3 (1) of the Act shall not include any place visited by the public such as open auditorium, stadium, railway station, bus stop/stand, and other such places. (d) “Public place” defined in Section 3 (1) of the Act shall also include work places, shopping malls, and cinema halls.' As we can see here, there is an even further clarity being provided as to what constitutes public places and open spaces. Please note that nowhere in the list of public places provided does the street find mention. The street outside the restaurant, 80 Feet Road, and the broad pavement that it includes, is very clearly an open space as per COPTA definitions. It is not a public place.
As a result of this legal matter, I decided to try and reach out to some legal experts on COPTA or those involved in anti-tobacco policy making in Karnataka, to see if they could throw more light on the matter of the street as an open space. I wrote to the Karnataka State Anti-Tobacco Control Cell. I did not receive any response from them. I wrote to Mr. XXXXX, asking for clarity on whether the street is an open space or public place. When I had searched the internet, his name appeared as an expert on tobacco control policies. Mr. XXXXX replied to my email saying he was not a lawyer. In his own words, he has been engaged in public health research and policy related work as it concerns tobacco towards reducing tobacco use in society. He said that he was willing to assist in any possible way. He was the one who shared the Guidelines for Law Enforcers for effective implementation of Tobacco Control Laws 2013, published by the Ministry of Health & Family Welfare, Government of India. He said that on page 15 of the Guidelines document, the following further clarity was provided on public place and open space: '(b) “restaurant” shall mean any place to which the public has access and where any kind of food or drink is supplied for consumption on the premises by any person by way of business for consideration monetary or otherwise and shall include the open space surrounding such premises and includes- (i) Refreshment room, banquet halls, discotheques, canteen, coffee house, pubs, bar, airport lounge, and the like. (c) “Open space” mentioned in Section 3 (1) of the Act shall not include any place visited by the public such as open auditorium, stadium, railway station, bus stop/stand, and other such places." Mr. Bhojani stated that the phrase "and shall include the open space surrounding such premises" leaves room for interpretation, especially if there is a bus stop close to the restaurant. In this case, there is no bus stand nearby. There is a school, of course, but that has not stopped the shop outside Empire from selling tobacco products.
Now, when a law enforceable by penal action is left for interpretation, it is particularly worrisome. Who will interpret and how will they interpret? The restaurant's premises cannot be projected outwards in undefined directions, offering an umbrella for the police to harass a citizen. The open space surrounding the restaurant essentially includes the whole universe.
XXXXX Hotel does not have a smoking zone inside. There is no bus stop or other public place as designated by the COPTA Act close by on the broad pavement of xxxxx Road outside. Some customers stand there in the open space and smoke for a few minutes as they wait for a cab or other friends. Other people are either entering or leaving the restaurant, or walking on the street. The shop attached to the restaurant is where cigarettes are sometimes purchased. If one wants to know the distance we were at from the entrance of XXXXX hotel when the incident took place, I would say that it was about 50 feet. My friend was standing near the edge of the footpath, waiting for his cab. So, is this outside the maximum limit of space that the phrase "and shall include the open space surrounding such premises" is referring to? Or does this inclusion of open space surrounding a restaurant depend on the distance of the police officer implementing COPTA from the hotel? Does wherever the smoker stand and smoke immediately become included in the "open space surrounding such premises"? What about standing on the terrace of the next building? Do private residents living next to restaurants become liable for COPTA action if they step out into their gardens to smoke?
The COPTA Act 2003 by itself is quite clear. It appears that the Guidelines for Law Enforcers for effective implementation of Tobacco Control Laws 2013, published by the Ministry of Health & Family Welfare, Government of India, which introduced the additional phrase "and shall include the open space surrounding such premises" is a dilution of the COPTA Act and a transgression into the freedoms and liberties of the citizen.
We see everywhere shops and commercial establishments putting up No Smoking signs outside their establishments. No business establishment has the right to put up a No Smoking sign outside its premises. Its jurisdiction ends within its boundaries. What someone can do or cannot do outside its premises is beyond its jurisdiction. No Smoking signs should face inwards into these establishment and not outwards to the surrounding open spaces that make up the universe beyond it. If someone smokes inside the boundaries, violating smoking rules, then action can be taken by the owner or police and other such authorized persons. It is this projection by these commercial establishments into open spaces, working hand in hand with the police department, that creates the intrusions in the open space of the citizen who is a smoker.
There appears to be a massive lack of knowledge on the part of both law enforcement and the judiciary in the matter of public place and open space with regard to COPTA rules. I would like to think that it is ignorance and not a willful exploitation of the public using the loopholes in the law and the lack of knowledge among the public. It appears that the police department has decided on its own that even open spaces come under its jurisdiction and that the judiciary is supporting this invasion of fundamental rights. If the definition of what constitutes a public place or open space is not clear, and left to interpretation by individual members of the police department based on how they feel at the moment, then this can be used at will, as is being used at will, according to the whims and fancies of the enforcing police officer, resulting in cases of harassment of the public.
As is obvious here, the lack of thought behind the dubious tobacco control measures taken in this country in the name of public health, including the COPTA Act, is one of the fundamental reasons why lakhs of Indians across India today are victims of police extortion and judicial harassment in the name of tobacco control. Almost all these victims are persons belonging to the lower and middle classes. As I stated earlier, this whole process - of prohibiting the medicinal cannabis to introduce the harmful tobacco in order for more profits and revenue, the increasing costs and regulations on tobacco, the legal harassment of the smoker, etc., - displays a complete disregard for one of the basic human rights of an individual. The error in thinking that smoking is harmful - which is at the root of the cannabis smoked as ganja is harmful and cannabis drunk as bhang is medicinal story - is a myth created by the Indian upper castes, working in conjunction with the British, in order to suppress the lower castes and classes, to take away their ganja from them and promote the more harmful tobacco. This is despite the fact that, as I stated earlier, smoking is one of the five methods of purifying the body and mind according to Ayurveda. The State needs to understand that humans have been smoking for tens of thousands of years and will continue to do so as long as the species exists. It is impossible for the State to stop a human who wishes to smoke from smoking. This lies in the area of liberty of the individual to choose what to consume. Yes, if the State wishes so much to protect public health, it can ensure that the most healthy medicinal herbs are available for the smoker. Completely legalize cannabis for all purposes, and within the space of a year, the State will achieve more reduction in tobacco use than decades of tobacco-control laws and policies have managed to achieve in this country. But then, it will drastically reduce one of the biggest sources of State revenue, tobacco. Therefore, the State along with the powerful tobacco lobby refuses to allow the re-introduction of cannabis. The State appears to be so ignorant of cannabis that it does not recognize that revenue from cannabis will exceed revenue from tobacco within a few years. Not only that, cumulatively, revenue from both cannabis and tobacco will significantly increase overall State revenue while at the same time improving public health and meeting tobacco control targets. Why is this not happening? Are the law makers, policy makers, judiciary, police and other entities making so much revenue from the tobacco industry and the criminal cases foisted on the people, in the name of tobacco control, that they do not want to let it happen?
For those who have the head-in-the-sand kind of attitude that believes all smoking is harmful and would like to see tobacco, cannabis, and all other forms of human consumption of plants through smoking to cease, have you considered this...Besides this being a natural impossibility, even if all humans were completely banned from smoking, air pollution will still be one of the leading causes of death in India. This air pollution does not come from humans smoking tobacco or ganja, but from the billions of sources of fossil fuel emission, besides large-scale human actions like crop stubble burning. Overlooking all these gross injustices to public health, and targeting the individual tobacco smoker, who is not even smoking in a public place, shows some serious issues with our society today.
In this specific instance, I would go as far as stating that is a case of incorrect implementation of the COPTA Act. It is the police department that has disturbed the public peace, unlawfully fined a person of the public, as well as detained and initiated legal action against the accused. The question of obstructing a police officer on duty does not arise here as the police action itself is illegal. Thus, sections 186 and 504 of the IPC do not have any firm basis...
The judge, in his judgement acquitted me of the charges made against me by the police, stating that there was lack of evidence for conviction. Regarding the matter of whether the street is an open space or a public place, as per the COPTA Act, the judge wrote in his order that "in my considered opinion" the street is a public place. He, like the police officers, did not provide any evidence to back his opinion. Now, when the police and judiciary implement laws based on their personal opinions and personal interests, it is a serious concern for the citizen as the freedom enshrined in the Constitution becomes a matter of the personal opinions of these supposed protectors of the citizen and the Constitution.
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