MP High Court Bars Coercive Action Against Rewa Restaurant Serving Herbal, Tobacco-Free Hookah
The Madhya Pradesh High Court at Jabalpur held that COTPA's prohibition on smoking in public places does not extend to herbal, tobacco-free and nicotine-free hookah, and restrained authorities from taking coercive action against a Rewa restaurant subject to strict compliance conditions.
The High Court of Madhya Pradesh at Jabalpur, in a writ petition filed under Article 226 of the Constitution, has restrained the State of Madhya Pradesh and its authorities from taking coercive action against M/S The High Tribe, a registered partnership firm operating a restaurant and bar at Rewa, solely on the ground that it serves herbal, tobacco-free and nicotine-free hookah. Justice Himangshu Joshi, sitting singly, disposed of the petition on 15 June 2026 after finding that neither the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Act, 2003 (COTPA) nor the Madhya Pradesh Amendment Act of 2023 contains any express bar on herbal hookah. The court held that a blanket prohibition unsupported by statute cannot override the petitioner's right to carry on trade under Article 19(1)(g).
The Dispute Before the Court
The High Tribe runs a restaurant and bar within the same premises at Rewa, with a seating capacity exceeding thirty persons. The firm asserts that it serves only herbal hookah — completely free from tobacco and nicotine — and that no tobacco-based product is sold or permitted on the premises. It maintains a physically segregated smoking zone in compliance with COTPA, the Cigarettes and Other Tobacco Products Rules, 2004, and the Prohibition of Smoking in Public Places Rules, 2008.
The grievance arose from communications by the respondent authorities threatening closure of the establishment and cancellation of its licence on the ground that hookah service is impermissible. The firm approached the High Court seeking a writ of mandamus restraining coercive action and a declaration that no separate licence is required for permitting smoking of herbal hookah in a restaurant with seating capacity of more than thirty persons that complies with the statutory smoking area requirements.
The petitioner also placed on record orders passed by coordinate benches of the same court in W.P. No. 25005/2023, W.P. No. 21485/2024, and W.P. No. 17636/2025, where similar establishments were granted protection from coercive action subject to compliance with COTPA and inspection by authorities.
The Legal Issue
The core question framed by the court was whether the respondent authorities can impose a blanket prohibition on serving herbal, tobacco-free and nicotine-free hookah in the absence of any specific statutory bar, and whether such action is sustainable under the scheme of COTPA, the Rules framed thereunder, and the State Amendment Act of 2023.
The petitioner's counsel argued that Section 3(n) of COTPA defines “smoking” as smoking of tobacco in any form, and Section 3(p) read with the Schedule covers tobacco products including hookah tobacco. The statutory prohibition under Section 4 is therefore confined to tobacco-based substances. Herbal hookah, being free of tobacco and nicotine, falls outside this prohibition entirely.
On the State Amendment, counsel pointed to Section 3(ea) inserted by the Madhya Pradesh Amendment Act of 2023, which defines “hookah bar” as an establishment where persons gather to smoke tobacco or other similar product from a community hookah or narghile provided individually. The petitioner contended that this definition is directed at tobacco-based establishments and cannot be read to impose a blanket prohibition on herbal hookah.
The State, through Smt. Priyanka Mishra, Government Advocate, argued that the amendments were enacted to curb misuse of hookah lounges as centres for consumption of prohibited substances under the guise of hookah service, affecting public health and law and order. She maintained that authorities are empowered to ensure strict compliance with COTPA and allied regulations. However, she fairly conceded that in the present case no coercive action had actually been taken or proposed against the petitioner.
How the Court Reasoned
Despite the State's concession that no action had been taken, the court chose to adjudicate the matter on merits, observing that it raises a recurring question of law of general importance that had been extensively addressed by both parties.
The court examined Sections 3(a), 3(n) and 3(p) of COTPA read with the Schedule and found that the prohibition under Section 4 pertains to smoking of tobacco in public places, and that “tobacco products” are those specified in the Schedule, which includes hookah tobacco. The statutory scheme, on its plain reading, does not extend to herbal preparations devoid of tobacco and nicotine.
On the State Amendment, the court read Section 3(ea) and concluded that the legislative intent is directed towards establishments facilitating smoking of tobacco or similar substances, not towards herbal preparations. In the absence of any material demonstrating that the petitioner is serving tobacco-based hookah, the mere apprehension of possible misuse — without concrete findings or inspection-based violations — cannot justify an absolute restraint amounting to a de facto blanket ban on herbal hookah.
The court acknowledged that public health is a matter of paramount importance and that the regulatory framework under COTPA is intended to prevent exposure to tobacco smoke in public places. It expressly preserved the power of authorities to inspect, regulate, and take action in case of contravention, clarifying that nothing in the order dilutes the statutory prohibitions relating to tobacco products.
The court then applied the principle that restrictions on trade under Article 19(1)(g) must have statutory backing and must be reasonable and proportionate. Finding no express statutory bar on herbal hookah, and noting the petitioner's undertaking to comply with all applicable laws and to ensure that only herbal, tobacco-free and nicotine-free hookah is served strictly within the designated smoking area, the court held that protection from arbitrary coercive action was warranted.
Directions Issued
The court disposed of the writ petition with six specific directions.
The respondents are directed not to take any coercive action against The High Tribe solely on the ground of serving herbal, tobacco-free and nicotine-free hookah, provided the firm strictly adheres to all applicable statutory provisions. These include COTPA, the Cigarettes and Other Tobacco Products Rules, 2004, the Prohibition of Smoking in Public Places Rules, 2008, the Cigarettes and Other Tobacco Products (Madhya Pradesh) Amendment Act, 2023, municipal laws, fire safety regulations, and licensing conditions.
The petitioner is placed under a continuing obligation to ensure that no tobacco, nicotine, narcotic substance, psychotropic substance, drug, or any other prohibited or unlawful material is stored, possessed, served, mixed, promoted, or permitted within the premises under the guise or description of herbal hookah.
The firm must maintain proper physical segregation of smoking and non-smoking areas in strict conformity with applicable statutory rules, including display of mandatory signage, compliance with seating capacity requirements, and adherence to all prescribed safety norms.
Competent authorities remain at liberty to conduct inspections of the premises at any reasonable time to verify compliance, and the petitioner is required to extend full cooperation for such inspections.
If any violation of statutory provisions, licence conditions, or the directions in the order is found during inspection or otherwise, the respondents are at liberty to proceed strictly in accordance with law, including initiation of proceedings for suspension, cancellation, or revocation of licence, imposition of penalty, or any other permissible action, after following due process.
The court further clarified that if the petitioner fails to comply with any of the conditions or is found indulging in activities contrary to the statutory framework, the protection granted under the order shall stand automatically withdrawn, and the respondents shall be entitled to take coercive measures as permissible under law without further reference to the court.
Outcome
Writ Petition No. 46523 of 2025 was disposed of on 15 June 2026 by Justice Himangshu Joshi of the High Court of Madhya Pradesh at Jabalpur. The respondents are restrained from taking coercive action against M/S The High Tribe for serving herbal, tobacco-free and nicotine-free hookah, subject to the six conditions set out in the order. The protection lapses automatically upon any breach of those conditions.