IN THE HIGH
COURT OF KERALA, AT ERNAKULAM
Present:
The Hon'ble
Mr. Justice K. Narayana Kurup
And
The Hon'ble
Mr. Justice K. A. Mohamed Shafi.
Wednesday, the
21st day of June, 2000/31st Jyaistha, 1922
C.M.P.NO.37139/99
IN O.P.NO.22492/99-C
PETITIONER/Petitioner in O.P.
Institute of Social Welfare,
rep. By its Secretary Major M.G.C. Nair, XXXVIIII/314, Elamkulam, Kadavanthara,
Kochi-682020.
Vs
Respondents/Respondents in O.P.
1.
State of Kerala, rep. by its
Health Secretary, Secretariat, Thiruvananthapuram.
2.
The Director General of
Police, Thiruvananthapuram.
3.
The Secretary, Home
Department, Govt. of Kerala, Thiruvananthapuram.
Addl. 4 & 5 imleaded:
Addl. 4. Director of Municipal Administration,
Triavandrum.
4.
Director of Panchayat,
Trivandrum.
Impleaded suo motu as per
order dated 31-3-2000.
Petition praying that in the
circumstances stated in the affidavit filed along with the OP the High Court be
pleased to direct the respondents to instruct all the police officers in the
state to take action against all the shop owners who are providing lighters,
lamps, match boxes, etc. for smoking in public places as a betters of the
offence as contemplated in the judgment in O.P.No.24160/98, dated 12th
July, 1999 of this Hon'ble Court, and the 1st respondent be directed
to put up boards etc. in all the railway stations, bus stations, state boards,
airports, etc. stating that they are entering a state where smoking in public
places is prohibited, pending the disposal of the original petition.
This petition coming on for
orders upon perusing the petition and the affidavit filed in support of O.P.
and upon hearing the arguments of Mr. P.B. Sahasranaman, Advocate for the
petitioner and of Govt. Pleader of respondents, the court passed the following:
[K. Narayana
Kurup & K.A. Mohamed Shafi, JJ.]
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C.M.P.NO.37139
OF 1999 IN
O.P.NO.22492
OF 1999-C
----------------------------------------------------------
O R D E R
Narayana Kurup, J.
1. Heard Mr. Sahasranaman & Govt. Pleader Mr. Grashious
Kuriakose.
2.
Pursuant to our direction
the Director of Panchayats and Joint Director of Municipal Administration,
Govt. of Kerala are present.
3.
Inspite of the judgment of
this Court in O.P.No.24160 of 1998 banning smoking in public places it has come
to our notice that the ban order has been violated with impunity throughout the
State, and in many cases with the authorities concerned turning a 'Nelson's
Eye' to such violation. We do not
propose to go into that aspect deeply for the present. However, two things to which our attention
is drawn and which requires immediate remedial action in public interest is the
facility with which the ban order is violated by bunk shops (licensed and/or
unlicensed) by providing lighter devices like small oil lamps which will be
kept burning even during broad day light, loose match sticks,
electric/electronic lighters etc. By
offering such lighter devices people are lured and tempted to smoke in public
and are abetted and prompted to commit the offence of public nuisance by
smoking in public places. Therefore,
such devices are to be removed forthwith.
The bunk owners or persons in charge of the bunk hops shall be given 24
hours' notice to remove such lighter devices failing which they shall be
removed by using force with police aid, if necessary, followed by
suspension/cancellation of licence of the bunk if deemed necessary.
4.
Yet another matter which
requires immediate attention is in the case of restaurants, shops and cinema
theatres (establishment for short) located within the jurisdiction of the local
authority concerned. In those cases the
local authority must ensure that smoking shall not be permitted by directing
the person in charge of the establishment concerned to put up conspicuous signs
and sign-boards prohibiting smoking in
such establishments. Accordingly, the
following directions are issued.
i)
The Director General of
Police, the Director of Panchayats and the Director of Municipalities shall
take serious notice of this order and are hereby directed to ensure that all
lighter devices installed in all shops and bunks shall be dismantled and
removed and/ or put out forthwith if necessary by police aid. All bunks and shops where such devices are
installed are given 24 hours' time to remove the lighter devices which shall
run from 22-6-2000 A.N. Unlicensed
bunks which defy the order and still offer such lighter devices shall be
demolished forthwith after giving notice.
Licensed shops shall be proceeded against in accordance with law
treating the installation of lighter devices as a violation of the conditions
of licence.
ii)
As regards establishments
(cinema theatres, restaurants and shops) officers of the local authority are
hereby directed to make surprise inspection and in case violations are detected
the name and address of the offender be noted down and he be handed over to the
police for being dealt with in accordance with law. The owner/person in charge of the establishment must be
informed in writing that they will be responsible
for ensuring that no one smokes in the establishment under its control and
management. This shall be made a
condition of the licence of the establishment concerned. It is made clear that any person who comes
across any violation of the ban can lodge
complaint to the manage/person in charge of the establishment and the
manager/person in charge is obliged to ask the offender to stop smoking OR
leave the premises and refer the matter to the police if his instruction is
ignored. The Manager/Person in charge
of the establishment and the establishment concerned shall be proceeded against
if he fails to take action against any violation of the ban order in the
specified places under his charge treating the ban order as a condition of his
licence.
5.
Additional respondents 4 and
5 shall file a report indicating the action taken in this regard within three
weeks from today. Post on 24-7-2000
on which date they shall be personally present before this Court..
Sd/-
[K.NARAYANA KURUP]
Sd/-
[K.A. MOHAMED SHAFI]
Judge
21st June, 2000.
Communicate this order by
FAX to the respondents forthwith. Hand
over a copy of this order to Govt. Pleader
Sd/-
Assistant Register.