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Lack of clarity as Delhi government, police continue anti-hookah drive

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‘Herbal hookahs do not come under Cigarettes and Other Tobacco Products Act’

All this month, restaurants, bars and cafés in the city have faced raids, confiscations and challans for serving hookahs, but with a range of notifications, laws and judgments in play, there is confusion over the status of the action.

Delhi Health Minister Satyendar Jain had on October 31 cited a notification from the Union Ministry of Health and Family Welfare on May 23, 2017 for taking the action, including ordering cancellation of licenses. BJP MLA Manjinder Singh Sirsa had launched a campaign against hookahs and filed a case in the National Green Tribunal in August. Later, Delhi government officials clarified that the ban was only on tobacco hookahs.

SC judgment

As per the notification, the Prohibition of Smoking in Public Places Rules, 2008, under the Cigarettes and Other Tobacco Products Act (COTPA), were amended to add that “no service” would be allowed in smoking areas. This, however, was at odds with the Supreme Court’s December 2014 judgment lifting a three-year ban on hookahs. The apex court had said that banning hookahs in smoking areas was out of the purview of COTPA as the prohibition was in non-smoking areas.

With most establishments in Delhi serving herbal hookahs, i.e. those without tobacco, the question of violating COTPA shouldn’t arise, say restaurant-owners.

“Herbal hookahs do not come under COTPA, but despite that the police have been conducting raids, seizing equipment and issuing challans. We have written to the Police Commissioner and the Health Minister,” said Prakul Kumar, the secretary general of the National Restaurant Association of India (NRAI).

According to challans issued to some restaurants and accessed by The Hindu, the act or section pertaining to the violation are not mentioned. One challan for an establishment in south Delhi on November 2 was for ₹5,000. As per COTPA, the maximum challan for smoking in “certain spaces” is ₹200. In another case, a restaurant in Connaught Place was issued a notice on November 5 by local police asking for CCTV footage and a licence for hookah. Restaurant owners, however, say there is no licence required for serving tobacco-free hookahs.

Decline in footfall

Priyank Sukhija, who owns 18 restaurants in Delhi including Tamasha and Warehouse Café, said he served herbal hookahs in 15 of them, but had to stop due to the the notices and raids, leading to a decline in footfall.

“There are about 150 people in my restaurants alone who are employed to prepare shisha, and they stand to lose their jobs if this continues. We don’t serve tobacco hookahs so under what law can our licences be cancelled,” he asked.

Referring to Mr. Sirsa’s campaign against hookahs and the Aam Aadmi Party government’s order, Mr. Sukhija said that the issue had become politicised. “If they are concerned about the health aspect, then why not go after cigarettes or gutka,” he asked.

Testing of samples

The owner of a bar in Connaught Place that received a notice said the establishment was only serving herbal hookahs and was willing to let the samples be tested for nicotine.

For their part, the police said they were following the protocol and issuing challans under COTPA. Deputy Commissioner of Police (New Delhi) B.K. Singh, under whose jurisdiction Connaught Place lies, said: “The challans are being issued under COTPA. Smoking at a public place is a punishable offence.”

Responding to why CCTV footage was being asked from cafe owners, Mr. Singh said that the police had received a written order from the Delhi government imposing a ban on hookahs. “The footage is being asked for because we want to know if cafés are violating the law after the date of issuance,” he said. As confusion continues over the issue, the NGT will hold a hearing in the case filed by Mr. Sirsa on November 29.

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