Bombay High Court
M/S. Apna Chemist vs Assistant Commissioner (Zone-3) And ... on 10 January, 2024
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2024:BHC-AS:1054-DB
917.WP305_2024.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 305 OF 2024
M/s. Apna Chemist ... Petitioner
Versus
Assistant Commissioner (Zone-3) & Anr. ...Respondents
WITH
WRIT PETITION NO. 320 OF 2024
Shree Mahavir Chemist ... Petitioner
Versus
Assistant Commissioner, Food and Drugs ...Respondents
Administration & Anr.
WITH
WRIT PETITION NO. 328 OF 2024
M/s. Apna Medical LLP, a proprietary concern, ... Petitioner
through its Partner
Versus
Assistant Commissioner (Zone-3) ...Respondents
Mr. Atal Bihari Dubey a/w. Mr. Arvind Tiwari, Mr. Rahul Mishra for the
petitioner in WP/305/2024 and WP/328/2024.
Mr. Rushikesh S. Kekane for the petitioner in WP/320/2024.
Mr. A.I. Patel, Addl. G.P. a/w. Ms. M.S. Bane, AGP for the State.
_______________________
CORAM: G. S. KULKARNI &
FIRDOSH P. POONIWALLA, JJ.
DATED: 10 January, 2024
_______________________
Page 1 of 7
10 January, 2024
917.WP305_2024.DOC
ORAL JUDGMENT (Per G.S. Kulkarni, J.)
1. These three petitions raise common issue of law and facts and can be
conveniently disposed of by this common order.
2. The petitioners are in the business of sale of medicines. They are
running medical stores for which they have obtained licences under the Drugs
and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945. The case
of the petitioners is that an inspection of their medical stores was undertaken
by respondent no. 1, in pursuance of which the petitioners have been issued
orders whereby the petitioners licences to conduct business in medicines, stand
suspended for a particular period. Illustratively, in the first petition (i.e. Writ
Petition No. 305 of 2024), licence has been suspended for the period from 8
January, 2024 to 17 January, 2024 by an order dated 3 October, 2023.
3. It is a common contention as urged on behalf of the petitioners that the
petitioners have already availed of an appellate remedy as available to them
under Rule 66(2) of the Drugs and Cosmetics Rules, 1945 by preferring an
appeal before the State Government. A copy of the appeal is also annexed to
the petitions. Learned counsel for the petitioners in Writ Petition No. 305 of
2024 has drawn our attention to the order dated 3 October 2023 suspending
the petitioners license and to a copy of the appeal annexed to the petition,
which was filed on 31 October, 2023. Similarly, in the companion matters,
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appeals have been filed within the prescribed limitation and in fact well in
advance, so that the adjudication on the appeals takes place before the period
of suspension approaches.
4. Today the grievance of the petitioners before the Court, is to the effect
that the Appellate Authority is neither listing the proceedings to decide the
appeals nor is passing appropriate interim orders on the prayers of stay on the
orders of suspension of their licence, passed by respondent no. 1. It is their
contention that this has created an anomalous situation of a likely fait
accompli, inasmuch as despite a statutory remedy of an appeal being provided
by law, to which recourse has been taken by the petitioners, such remedy is
being rendered meaningless for the reason that the appellate authority is not
hearing the petitioners on the appeals and/or on the prayer for interim reliefs.
It is submitted that the consequence being that the petitioners would be
required to suffer the orders passed by respondent no. 1 suspending their
license for the period in question, which are challenged by them in the appeal.
Learned counsel for the petitioners would submit that this situation would
cause irrepabale prejudice to the petitioners in the event the petitioners are to
ultimately succeed in their appeal.
5. On the other hand, Mr. Patel, learned AGP has submitted that the date
for hearing of the appeal in so far as the petitioner in Writ Petition No. 305 of
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917.WP305_2024.DOC
2024 is concerned, is fixed on 11 January, 2024. This is in fact a date at the
midst of the suspension period and which would bring about a situation that
the petitioner would be required to suffer suspension, in the event the
impugned order is not stayed. Insofar as the other petitioners are concerned,
the suspension would take effect from 11 January, 2024.
6. Having heard learned Counsel for the parties and having perused the
record, in the facts and circumstances of the case, we find much substance in
the contentions as urged on behalf of the petitioners. The petitioners in the
present case are aggrieved by the orders passed by respondent no. 1 suspending
their licence as noted above. They have taken recourse to a statutory remedy as
available to them under the rules by filing their respective appeals with the
Appellate Authority/State Government. Such appeals are in fact filed well in
advance with an intention that the appeals are decided prior to the period of
suspension of their licence as ordered by respondent no. 1. The intention of
the petitioners being that in the facts and circumstances of their respective case,
they ought not to suffer an unwarranted suspension. Thus, the concern of the
petitioners is that the remedy of an appeal as provided under the rules should
not be rendered otiose, so as to bring about a situation, that after the
suspension period is over, the proceedings are thereafter decided, which would
cause a serious prejudice to the petitioners. We are quite in agreement with the
petitioners. In such circumstances, there cannot be a scope for a theory of
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"operation being successful however the patient dead'. The petitioners would
certainly have a legal right to know, the status of their challenge insofar as the
interim reliefs or the final reliefs they seek in their appeals, before they are
made to suffer the suspension order. We would also observe that in the
circumstances as in the present proceedings, the non passing of an appropriate
order (interim or final), would also have a direct bearing on the rights of the
petitioner to carry on trade, occupation/business. This in as much as, such
inaction on the part of the appellate authority is likely to affect the rights
guaranteed to such persons under Article 19(1)(g) of the Constitution read
with Articles 14, 21 and 300A of the Constitution. The appellate authority is
thus expected not to overlook such significant obligation in relation to the
powers the appellate authority wields, in adjudication of the statutory appeals.
Once the remedy is provided by law, it is required to be an "effective remedy"
in letter and spirit. The appellate authority hearing the statutory appeals
would be required to be alive to the consequences, an order subject matter of
the appeal would bring about qua the appellant before it.
7. In the aforesaid circumstances, we are of the clear opinion that the
petitioners ought to be granted a protection till the appellate authority takes up
the appeal and decides the same.
8. We, accordingly, dispose of the petitions by the following order:
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ORDER
(i) The appellate authority is directed to hear the
petitioners pending appeals and/or stay applications as
expeditiously as possible and in any event within a period
of eight weeks from the date, a copy of this order is
presented before the appellate authority.
(ii) Needless to observe that if the appeals are fixed for
hearing, in the immediate future, the same be taken up
and decided as per the schedule for hearing so fixed.
(iii) Till the appeals/stay applications are decided, the
orders suspending petitioner's licences, subject matter of
challenge in the appeals, shall remain stayed.
(iv) Needless to observe that in the event the petitioners
fail in their appeals, certainly it would be within the
powers and authority of the appellate authority to modify
the period of suspension and impose a future period of
suspension on the petitioners.
(v) All contentions of the parties on the pending
appeals are expressly kept open.
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917.WP305_2024.DOC
9. Disposed of in the above terms. No costs.
(FIRDOSH P. POONIWALLA, J.) (G. S. KULKARNI , J.)
Signed by: Vidya S. Amin 10 January, 2024
Designation: PS To Honourable Judge
Date: 10/01/2024 20:18:21
