Softesule Private Limited vs The Union Of India & Ors.
2015 Latest Caselaw 1552 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     W.P.(C) 1838/2014
      SOFTESULE PRIVATE LIMITED                            ..... Petitioner
                         Through: Mr. Varun Sharma, Advocate

                         versus

      THE UNION OF INDIA & ORS                 ..... Respondents
                    Through  Mr. Sanjeev Narula, CGSC and
                             Mr. Ajay Kalra, Advocate

      CORAM:
      HON'BLE MR. JUSTICE RAJIV SHAKDHER
              ORDER

% 23.02.2015

1. After hearing learned counsel for the parties, it emerges that petitioner's grievance is that the pharmaceutical product manufactured by it which goes by the name "Ferisis capsule" has been erroneously brought within the ambit of the notification dated 27.09.2007. 1.1 One of the grounds taken in support of its contention is that an ingredient by the name of Beta Carotene, which is used in the manufacture of Ferisis Capsule was, admittedly, noticed by Respondent No. 2 (National Pharmaceutical Pricing Authority) in September, 2009. Reliance in this behalf is placed on notification dated 24.09.2009.

2. It is the petitioner's submission that this aspect though, raised, before Respondent No. 2, in response to the Show Cause Notice issued, is not dealt with by the said respondent.

W.P.(C) 1838/2014 page 1 of 3

3. Mr. Narula who appears on behalf of the respondents has taken objection to the maintainability of the writ petition based on the provisions of Paragraph 22 of the Drugs (Prices Control) Order (DPCO), 1995. The said paragraphs reads as follows:

"..22. Power to review: - Any person aggrieved by any notification issued or order made under paragraphs 3, 5, 8, 9 or 10 may apply to the Government for a review of the notification or order within fifteen days of the date of publication of the notification in the Official Gazette or the receipt of the order by him, as the case may be, and the Government may make such order on the application as it may deem proper:

Provided that pending a decision by the Government on the application submitted under the above paragraph, no manufacturer, importer or distributor, as the case may be, shall sell a bulk drug or formulation, as the case may be, at a price exceeding the price fixed by the Government of which a review has been applied for..."

3.1 Mr. Narula says that whether or not the pharmaceutical product manufactured by the petitioner falls within the four corners of notification dated 27.9.2007, is an aspect, which only the Reviewing Authority can decide, being a mixed question of fact and law.

4. I tend to agree with the submissions of Mr. Narula. Whether or not the subsequent notification (i.e., notification dated 24.09.2009) is clarificatory in nature, is not a pure question of law. The authority concerned will necessarily have to delve into technical details. 4.1 Therefore, the writ petition is disposed of with a direction that the petitioner will file a review petition before the Reviewing Authority within four weeks from today. Such, review petition, if filed, will be deliberated W.P.(C) 1838/2014 page 2 of 3 upon and a reasoned order shall be passed thereupon. While doing so, the Reviewing Authority will also consider the contention of the petitioner that its response to the Show Cause Notice was not considered by respondent No. 2, in its entirety. In case the Reviewing Authority is of view that this matter needs a re-look it will issue necessary directions in that behalf to respondent No.2.

5. It is made clear till such time the matter is adjudicated upon by the Reviewing Authority, interim order passed by this Court on 21.03.2014, as modified on 04.04.2014, shall continue to operate. 5.1 In case the petitioner is aggrieved by the final order of the Reviewing Authority, no precipitative action will be taken against the petitioner for a period of four weeks from the date of the service of the order. In the interregnum, the petitioner will be at liberty to take recourse to an appropriate remedy, albeit in accordance with law. 5.2 Furthermore, if, ordinarily, the Reviewing Authority grants an oral hearing in such like matters, it shall accord the same opportunity in the present case, as well.

6. Needless to say Reviewing Authority shall dispose of this matter as expeditiously as possible though, not later than twelve weeks from today.

7. Dasti.

                                                     RAJIV SHAKDHER, J
FEBRUARY 23, 2015
Hk
W.P.(C) 1838/2014                                           page 3 of 3