Andhra Pradesh High Court - Amravati
T Siddaiah vs The State Of Andhra Pradesh on 21 September, 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.17015 of 2021
ORDER:
The case of the petitioner is:
The petitioner had valid licences under the Drugs and Cosmetics
Act, 1940 (for short 'the Act') for sale of medicines, which were valid till
29.01.2022. On 26.11.2020, the respondent authorities came to the shop
of the petitioner and sought illegal gratification, which was refused by the
petitioner. On that the authorities initially left the place and after some
time came back and took photographs of the medicines available in the
shop of the petitioner and obtained his signatures on a white paper before
leaving. Thereafter, the respondent authorities cancelled the licences of
the petitioner for 10 days.
2. On 18.03.2021, the respondent authorities took the
petitioner from his house to his shop and after conducting a search of the
place, took photographs in the presence of the third parties, who are said
to be the mediators, and again obtained signature of the petitioner on the
white paper and left the place. At that point of time, the respondent
authorities also served the impugned undated proceedings in file No.AD-
TPT-TRDOINS(YIO)/2/2021-D1-TPTI-DCA, after obtaining signatures of
the petitioner on the proceedings. These proceedings were issued
cancelling the drug licences held by the petitioner.
3. The petitioner assails the impugned proceedings on the
ground that the respondent authorities had not followed the procedure set
out in Section 23 of the Act and that the impugned proceedings are not
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valid on account of the violation of the procedure set out under Section 23
of the Act.
4. The petitioner also challenged the impugned proceedings on
the ground that the said proceedings, which are said to have been signed
on 12.02.2021, were served on the petitioner only on 18.03.2021 and the
delay of more than one month clearly shows that these proceedings are
suspect.
5. The petitioner would reiterate the contention that the
respondent authorities did not conduct any panchanama nor seized any
the drugs available with the petitioner, under the cover of the licences
given to him, in accordance with the procedure contemplated under
Section 23 of the Act, and consequently the impugned proceedings would
have to be set aside.
6. The third respondent had filed a counter affidavit in
response to the notice given to the respondents. The 3 rd respondent
raised a preliminary objection that the present writ petition is not
maintainable as the petitioner has an effective alternative remedy under
Rule 66(2) of the Drugs and Cosmetics Rules, 1945 (for short 'the Rules').
The 3rd respondent also relies upon the judgments of this Court in
W.P.No.3794 of 2019 and W.P.No.10628 of 2020 wherein this Court had
held, in similar circumstances, that the alternative remedy available under
Rule 66 (2) of the Rules would preclude the petitioner from approaching
this Court.
7. The 3rd respondent, on the merits of the case, states that
the shop of the petitioner was inspected by the 2nd and 3rd respondents
on 26.11.2020 wherein certain violations were noticed. The 3rd
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respondent, after perusing the inspection report of the 2nd respondent, in
this regard, had issued a show cause notice dated 27.11.2020 to the
petitioner on 28.11.22020. The petitioner replied to the show cause notice
on 28.11.2020 itself, admitting that certain Rules have been violated by
him, which may be excused, as it is his first offence. The 3rd respondent
after taking into account the said reply, had suspended the licences of the
petitioner for a period of 10 days and the said order was served on the
petitioner on 04.12.2020.
8. The 2nd respondent had again inspected the shop of the
petitioner on 21.01.2021, on the basis of credible information, and certain
violations were again noticed. The inspection report of the 2nd respondent
was forwarded to the 3rd respondent, who again issued show cause notice
dated 23.01.2021 to the petitioner and the same had been received by
the petitioner on 30.01.2021. The petitioner in his written explanation
dated 04.02.2021 admitted that he had violated certain Rules and
committed irregularities and requested to be excused. After perusal of the
Rules and the explanation given by the petitioner, the 3rd respondent had
cancelled the drug licences of the petitioner on 12.02.2021. This order
was served on the petitioner on 16.02.2021. the petitioner, after receiving
this order had addressed a letter dated 16.02.2021 to the 3 rd respondent
seeking a week's time to return the drugs, which were held in the
premises of the petitioner and the petitioner had submitted the bills of the
returned drugs on 02.03.2021.
9. Thereafter, complaints were again received in the office of
the Director General, Drugs Control Administration, Guntur on 15.03.2021
that the petitioner was again operating his shop without any licence.
There upon, the 3rd respondent along with the Drug Inspector,
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Madanapalle, Drug Inspector (Vigilance) Kurnool and mediators, had
inspected the premises of the petitioner on 18.03.2021 and seized the
drugs from the petitioner in accordance with the procedure set out under
the Act and the Rules made therein. It is the contention of the
respondents that the procedure set out under Section 23 of the Act was
followed on 18.03.2021.
10. The 3rd respondent, on the basis of the above submissions,
submits that the writ petition requires to be dismissed.
11. Sri Jada Shravan Kumar, learned counsel appearing for the
petitioner would submit that a perusal of the impugned proceedings would
sho that the impugned proceedings said to have been passed on
12.02.2021 were served on the petitioner only on 18.03.2021 and not on
16.02.2021 as claimed by the respondents. He further submits that the
respondents had misused the blank signed papers of the petitioner to
create admissions of violation of the Rules and no such admissions were
made by the petitioner.
12. The learned Government Pleader for Medical and Health
would submit that the provisions of Section 23 of the Act are irrelevant to
the passing of the impugned order dated 12.02.2021. He submits that the
licences of the petitioner were cancelled under Rule 66 of the Rules on
three grounds, viz., - (1) the petitioner failed to maintain and produce
Schedule-H1 register, which is in violation of Rule 65(3)(1)(h) of the
Rules; (2) the petitioner sold Schedule-H drugs without prescriptions of
registered medical practitioners in violation of Rule 65(9)(a) of the Rules;
and (3) the petitioner failed to produce sale bills for the drugs sold in
violation of Rule 65(4)(3) of the Rules.
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13. He submits that Section 23, which relates to the procedure
for seizure of drugs for the purpose of getting the same tested, is not
relevant to Rule 66.
14. The case of the petitioner, essentially, is that the inspection
said to have been carried out on 26.11.2020, 21.01.2021 and on
18.03.2021 was conducted in violation of the provision of Section 23 of
the Act and the impugned proceedings, which are passed on these
inspections would have to fail as the inspection itself was in violation of
the provisions of the Act.
15. A perusal of Section 23 of the Act would show that Section
23 relates to the procedure which an inspector has to follow before taking
any sample of a drug or cosmetic under the provisions of the Act. A
perusal of the impugned proceedings would show that the said
proceedings have been initiated under Rule 66 of the Rules.
16. Rule 66 of the Drugs and Cosmetics Rules, 1945 reads as
follows:
66. Cancellation and suspension of licences.-(1) The
licensing authority may, after giving the licensee an
opportunity to show cause why such an order should not
be passed by an order in writing stating the reasons
therefore, cancel a licence issued under this Part or
suspend it for such period as he thinks fit, either wholly or
in respect of some of the substances to which it relates, if
in his opinion, the licensee has failed to comply with any of
the conditions of the licence or with any provisions of the
Act or rules thereunder:
Provided ...............
(2) .....................
17. It is clear that an order of cancellation or suspension of the
licences shall be issued under Rule 66 for violation of the conditions of the
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licence and the procedure set out under Section 23, which relates to the
manner in which samples of the drugs or cosmetics available with the
dealer shall be taken would not be relevant for proceedings under Rule 66
of the Rules. In the circumstances, the question whether the procedure
set out under Section 23 of the Act have been followed or not in the
course of the inspections held on 26.11.2020 and 21.01.2021, which are
the basis on which the impugned proceedings have been issued, would
not be relevant. As far as the proceedings dated 18.03.2021 are
concerned, the said proceedings are said to have been conducted as the
petitioner was selling drugs without a proper licence which had already
been cancelled on 12.02.2021 and a copy of the said order was served on
the petitioner on 16.02.2021. These proceedings are after the cancellation
of the licences of the petitioner and have no bearing on the impugned
order dated 12.02.2021.
18. The last issue raised by the learned counsel for the
petitioner is, the question whether the proceedings dated 12.02.2021
were served on the petitioner on 16.02.2021 or on 18.03.2021. The copy
of the proceedings filed by the petitioner does not show any signature of
the petitioner on 16.02.2021. However, the copy of the same proceedings
filed by the respondents show that the petitioner had acknowledged the
receipt of the copy of the order on 16.02.2021.
19. In these circumstances, the case of the petitioner that the
impugned proceedings are invalid on account of non-compliance of the
procedures set out under Section 23, would have to fail.
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20. However, the question, whether the replies of the petitioner
to the show cause notices dated 27.11.2020 and 23.01.2021 were
obtained on blank signed papers or not, remains.
21. This is a disputed question of fact, which can be more
properly decided by the appellate authority under Rule 66(2) of the Rules.
Apart from this, the decisions of this Court, cited by the learned
Government Pleader, clearly stipulate that it would be appropriate to
relegate the petitioner to the remedy of appeal in such situations.
22. Accordingly, this writ petition is disposed of leaving it open
to the petitioner to avail the alternative remedy of appeal under
Rule 66(2) of the Rules on the question whether the petitioner had been
given an opportunity to set out his defences in reply to the show cause
notices dated 27.11.2020 and 23.01.2021. There shall be no order as to
costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
________________________
R. RAGHUNANDAN RAO, J
21st September, 2021
Js
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W.P.No.17015 of 2021
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
W.P.No.17015 of 2021
21st September, 2021
Js
