–Report by Tannu Dahiya

Bombay High Court on Monday i.e. 13th February 2023, granted relief to the petitioner in M/s. Lifeline Medical & General Stores Chemist and Drugs v. Assistant Municipal Commissioner Food & Drugs Administration & Licensing Authority, Maharashtra State.

Facts:

The petitioner being a chemist carries a business of General Stores of Chemist and Drugs (Medial Store/Shop) for the last 17 years and has a valid licence for the same which is renewed from time to time. On 8th June 2018, the Drug inspector of Raigar visited the shop for an inspection. An inspection report was prepared after which a show cause notice was issued in July under the Drugs and Cosmetics Act, 1940 and Rules, 1945, alleging the petitioner has violated Rules 65(2), 65(3)(1), 65(6), 65(4)(i), 65(4)(3), 65(4)(4), 65(4)(4)(ii) of the said Act. The petitioner filed for a reply but his licence was cancelled on the last date of the month. Filed an appeal before the appellate authority which had put a stay on the order. But on 26.02.2022, the appeal was partly allowed and the licence was suspended for 90 days. And hence the present appeal was filed.

Petitioner’s contentions:

Mr Kumbhar, learned counsel, stated that the orders passed by the authority are against the principles of natural justice. The provisions and exceptions of the said Act have not been considered by the respondent before passing the orders. The Petitioner has been carrying the business for the past 17 years with a valid licence and no allegations have been on record against him. Also, a reply was filed for the show cause notice and it was clearly stated that no such violations will happen in future. The petition against the order passed in 2022 is still pending before the authority and the petitioner has been suffering because of the suspension since January 2023.

Respondent’s contentions:

Mr Sawant, who learned AGP for the state, claimed that the petitioner has been carrying his business for the past 17 years without blemish and a valid licence which has been renewed from time to time. But the report made by the Inspector shows that certain drugs were sold with valid bills when the owner, Pharmacist Mr Mustafa Hanif Sirkot was not present. It was also alleged that the bills of the same were not shown to the inspector. Two day time was given to produce the bill before the authority resulting in there being some discrepancy found in the dates of the bills. The show cause notice was issued in violation of section 18(c) of the said Act and the petitioner was asked to reply within 5 days.

The reply stated that the said drugs were sold in presence of the owner, Mr Mustafa, the discrepancy found in the hills was due to the inadvertent mistake of Mr Mustafa, who by mistake forgot to mention a few dates. The copies of bills of all the informed drugs have been submitted to the Assistant Commissioner. The order of 2018 was passed after due consideration of the facts. The reason for selling drugs without a prescription was that they could be sold at high rates and could also lead to adulteration and the sale of fake drugs. Thus in violation of rule 65 and liable under the provisions of Rule 66(1) and 67(h)(1), the petitioner’s licence was cancelled.

Judgement :

The learned counsel for the petitioner pleaded that the penalty imposed by the impugned order is without any reason harsh. The petitioner has been without any livelihood since 9th January 2023. He has also expressed an unconditional apology for the discrepancy found in the hills of the drugs. He has also given an undertaking to the court that no such mistake or violation shall take place in future. This undertaking has been accepted by the court and the appeal filed by him is allowed stating that he must abide by all the rules and follow all the provisions in respect of the conduct of his business. Hence the impugned order of 2018 and the show cause notice stands quashed.

READ FULL JUDGEMENT: https://bit.ly/3Io2K6X