THE KERALA PROHIBITION OF SMOKING AND PROTECTION OF NON-SMOKERS HEALTH BILL, 2002

 

A Bill to provide for prohibition of smoking in public places and in public service vehicles in the State of Kerala and to make provision for other matters connected therewith.

Preamble. – WHEREAS, smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards;

AND WHEREAS, researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer;

AND WHEREAS, the persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of the acts of smokers;

NOW, THEREFORE, it is expedient to prohibit smoking in public places or in public service vehicles in the State

BE it enacted in the Fifty-third Year of the Republic of India as follows:

1. Short title extent and commencement. - (1) This Act may be called the Kerala Prohibition of Smoking and Protection of Non-Smokers Health Act, 2002.
(2) It extends to the whole of the State of Kerala.

(3) It shall come into force at once.

2. Definitions.- (1) In this Act, unless the context otherwise requires,

(a) “advertisement” means and includes any notice, circular, wall paper, pamphlet, display on hoarding, any visible representation made by means of any light, sound, smoke, gas, writing instruments, stickers, symbol, colours, logo, trade mark, display on articles like T-shirts, shoes, sport wear, sport gears, caps, carry bags, telephone booths or any other means which has the effect of promoting smoking and the expression advertise shall be construed accordingly;

(b)“authorised officer,” means a person authorised under section 4;

(c) “Local Self Government Institutions” means a panchayat constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994) or a Municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994);

(d) “Government” means the Government of Kerala;

(e)“public place” includes auditoria, hospital buildings, cinema theatre, health institutions, amusement centers, restaurants, public offices, court buildings, educational institutions, libraries, Public conveyances and the like which are visited by general public and such other places as may be notified by Government from time to time as public places but does not include any open place.

(f)“public service vehicle” means a vehicle as defined under clause (35) of section 2 of the Motor Vehicles Act, 1988 (Central Act 59 of 1988);

(g) “rule” means any rule made under this Act.

3. Duties of persons in charge of public places.- (1) It shall be the duty of the owner or manager or officer incharge of the in charge of the affairs of every public place to take all necessary steps to prevent the commission of the offences under this Act and to report any violation of this Act to the officer in charge of the nearest police station.

(2) The person referred to in sub-section (1) shall display or exhibit a board at a conspicuous place or places in and outside the premises visited or used by the general public, prominently stating that the place is a "No .Smoking Zone" and that " Smoking is an Offence".

(3)Every owner, manager or officer referred to in sub-section (1) shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

4. Power to the Government or Local Self Government Institutions to authorise officers to act under the Act.- (1) The Government or the Local Self Government Institution may, by notification in the Official Gazette, authorise one or more persons who shall be competent to report any violation of this Act to the officer in charge of the nearest Police station.

(2)Every person authorised under sub-section (1) shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).

5. Prohibition of Smoking in Public places. - No person shall smoke in any public place.

6. Prohibition of smoking in Public Vehicles. - Without prejudice to the provisions of the Motor Vehicles Act 1988 (Central Act 59 of 1988), no person shall smoke in the public service vehicle.

7. Prohibition on advertisement or sale of cigarettes.- Notwithstanding anything contained in any other law for the time being in force, no person shall advertise in any place and any public service vehicle, which may promote smoking, or the sale of cigarettes or beedis or any other such smoking substances.

8. Prohibition of sale of cigarettes, etc. to children. - No person shall sell cigarettes, beedis chewing tobacco, tobacco paste, including tobacco based tooth paste, supari with tobacco, panmasala, zarda, snuff, ghutka or any other smoking or chewing substance containing nicotine or tobacco to any person who is below the age of fourteen years.

9. Penalties.- Any person who contravenes the provisions of –

(a) section 5, or section 6 shall be punishable with fine which may extend to one hundred rupees and in case of second or subsequent offence, shall be punishable with a minimum fine of two hundred rupees, but which may extend to five hundred rupees.

(b) Section 7 or section 8 shall be punishable with fine which may extend to five hundred rupees and in case of second or subsequent offence, shall be punishable with a minimum fine of five hundred rupees, but which may extend to one thousand rupees.

10. Ejection of violator of this Act from public place. - Any authorised officer or any owner or manager or officer in charge of the affairs of a public place, may eject any person from the public place who contravenes the provisions of this Act and any driver or conductor of a public service vehicle may eject any person who contravenes any provisions of this Act in public service vehicles, from public service vehicle.

11. Co urt competent to try offences under this Act and take cognizance of offence.- (1) No court other than the court of a Judicial Magistrate of First Class shall take cognizance of, try an offence under this Act.

(2)No court shall take cognizance of any offence under this Act except on a report in writing of a police officer, not below the rank of Sub-Inspector of police.

12. Certain offences to be cognizable and bailable. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) offences under this Act shall be cognizable and bailable.

13. Offence under the Act to be tried summarily. - All offences under this Act shall be tried summarily in the manner provided for summary trial under the Code of Criminal Procedure, 1973 (2 of 1974).

14. Power to delegate.- The Government may, by notification in the Official Gazette, direct that any power exercisable by it, under this Act, may also be exercised by the Local Self Government Institutions within their respective jurisdiction, subject to such conditions, if any, as may be specified therein.

15. Composition of offences.- The Government or any person authorised by it by general or special order in this behalf may either before or after the institution of the proceedings compound any offences made punishable by or under this Act

16. Power to make rules.- (1) The Government may, by notification in the Gazette, make rules for purpose of carrying into effect the provisions of this Act.

(2)Every rule made under this Act shall be laid, as soon as may be after it is made, before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or two or the session immediately following, the Legislative Assembly makes any modification in the rule or decides that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

STATEMENT OF OBJECTS AND REASONS

Smoking of cigarettes is a harmful habit and in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer. Tobacco smoking also adds to the air pollution. Fundamental right guaranteed under Article 21 of the Constitution of India inter alia provides that no one shall be deprived of his life without due process of law. There is no reason why a non-smoker should be afflicted by various diseases including lung cancer only because he is required to go to public places. It is in directly depriving him of his life without any process of law. Realising the gravity of the situation and considering the adverse effect of smoking as smokers and passive smokers the Honourable Supreme Court of India in Murali S Deora Vs. Union of India has directed Union of India and State Governments to take effective steps to ensure prohibiting smoking in public places.

2. The Bill seeks to prohibit smoking in public places, prohibit all kinds of advertisement which may promote smoking and prohibit the sale of cigarettes to minors.

FINANCIAL MEMORANDUM

The Bill, if enacted and brought into operation, would not involve any additional expenditure from the consolidated fund of the State.

MEMORANDUM REGARDING DELEGATED LEGISLATION.

1. Sub clause (e) of clause 2 of the Bill seeks to empower the Government from time to time to declare any place as public place for the purpose of the Act.

2. Sub-clause (1) of clause 4 of the Bill seeks to empower the Government or Local Self Government Institutions to authorise one or more persons who shall be competent to report all violations of the Act to the Police.

3. Clause 14 of the Bill seeks to empower the Government by notification delegate any power exercisable by the Government to Local Self Government Institutions and also specify the conditions under which such delegated powers be exercised by the Local Self Government Institutions.

4. Clause 16 of the Bill seeks to empower the Government to make rules for the purpose of carrying in to effect the provisons of the Act.

5. The matters in respect of which rules may be made or orders may be issued are matters of procedure or of details and are of routine and administrative nature. Further, every rule made under this Act are subject to scrutiny by the Legislative Assembly. The delegation of Legislative power is, thus, of a normal character.