Kerala has been a pioneer when it comes to ban on smoking in public places thanks to the landmark judgement of Justice Narayana Kurup in the Hon'ble Kerala High Court in 1999. Some key excerpts below:
Public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or otherwise is illegal, unconstitutional and violative of Article 21 of the Constitution of India.
Tobacco smoking in public places falls within the mischief of the penal provisions relating to "public nuisance" as contained in the Indian Penal Code and also the definition of "air pollution" as contained in the statutes dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.
Section 268, IPC defines public nuisance as "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage."
There can be no doubt that smoking in a public place will vitiate the atmosphere so as to make it noxious to the health of persons who happened to be there. Therefore, smoking in a public place is an offence punishable under Section 278, IPC. The punishment for the offence is fine which may extend to Rs. 500/- as prescribed under Section 278, IPC.
Section 278: "Making atmosphere noxious to health.--Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees."
Since smoking is a public nuisance, it can be more effectively abated by invoking Section 133, Cr.P.C, which states "Conditional order for removal of nuisance.--(1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation.--A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
If such an order is passed by the Executive Magistrate any person who disobeys the order is guilty of the offence punishable under Section 188, IPC.
Section 188: "Disobedience to order duly promulgated by public servant.-- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both :
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Explanation.-- It is not necessary that the offender should intend to produce harm, or con- template his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm."
Offence under Section 188, IPC is cognizable as per first schedule of Cr.P.C. Therefore, after the promulgation of an order under Section 133(a). Cr.P.C., if any person is found smoking in a public place, the police can arrest him without a warrant. The only condition is that the order is duly promulgated by the Executive Magistrates, The Executive Magistrates have a duty to promulgate such an order.
The full copy of judgement is available in the page 'Court Orders' of this blog
Public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or otherwise is illegal, unconstitutional and violative of Article 21 of the Constitution of India.
Tobacco smoking in public places falls within the mischief of the penal provisions relating to "public nuisance" as contained in the Indian Penal Code and also the definition of "air pollution" as contained in the statutes dealing with the protection and preservation of the environment, in particular the Air (Prevention and Control of Pollution) Act, 1981.
Section 268, IPC defines public nuisance as "A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage."
There can be no doubt that smoking in a public place will vitiate the atmosphere so as to make it noxious to the health of persons who happened to be there. Therefore, smoking in a public place is an offence punishable under Section 278, IPC. The punishment for the offence is fine which may extend to Rs. 500/- as prescribed under Section 278, IPC.
Section 278: "Making atmosphere noxious to health.--Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to the health of persons in general dwelling or carrying on business in the neighbourhood or passing along a public way, shall be punished with fine which may extend to five hundred rupees."
(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.
Explanation.--A "public place" includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes."
If such an order is passed by the Executive Magistrate any person who disobeys the order is guilty of the offence punishable under Section 188, IPC.
Section 188: "Disobedience to order duly promulgated by public servant.-- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both :
and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Explanation.-- It is not necessary that the offender should intend to produce harm, or con- template his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm."
Offence under Section 188, IPC is cognizable as per first schedule of Cr.P.C. Therefore, after the promulgation of an order under Section 133(a). Cr.P.C., if any person is found smoking in a public place, the police can arrest him without a warrant. The only condition is that the order is duly promulgated by the Executive Magistrates, The Executive Magistrates have a duty to promulgate such an order.
The full copy of judgement is available in the page 'Court Orders' of this blog
Courtesy - Indiankanoon
