Shiju K Chacko vs The Assistant Drug Controller
2021 Latest Caselaw 7281 Ker

W.P(c).No.2046/2021-E              1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942

                        WP(C).No.2046 OF 2021(E)


PETITIONER:

               SHIJU K CHACKO,
               AGED 49 YEARS
               S/O. CHACKO, PROPRIETOR OF ORBIT PHARMA, 34/978-A,
               GOURI, ANJUMANA TEMLE ROAD, EDAPPALLY P.O,
               ERNAKULAM DISTRICT.

               BY ADVS.
               SRI.N.K.KARNIS
               SRI.LATHEESH SEBASTIAN

RESPONDENTS:

       1       THE ASSISTANT DRUG CONTROLLER,
               OFFICE OF ASSISTANT DRUG CONTROLLER, KAKKANAD,
               ERNAKULAM 682 030.

       2       REGIONAL DRUGS INSPECTOR,
               OFFICE OF ASSISTANT DRUG CONTROLLER, KAKKANAD,
               ERNAKULAM 682 030.

       3       PROPRIETOR,
               BRAND WINGS, 14/304, MAJESTIC COMPLEX,
               MALAPARAMBA, KOZHIKODE, KERALA 673 009.


               SMT.VINITHA.B, GOVERNMENT PLEADER


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(c).No.2046/2021-E                     2



                                     P.V.ASHA, J.
                           ------------------------------------
                             W.P.(C).No.2046 of 2021-E
                           ------------------------------------
                        Dated this the 2nd day of March, 2021

                                 JUDGMENT

Petitioner is a wholesale distributor of drugs having Ext.P1 license. His case

is that he had purchased 4 consignments of hand sanitizers from the 3 rd respondent

as per Ext.P5 series of invoices between 17.09.2000 and 14.11.2020. Whileso the

2nd respondent conducted an inspection in the premises and issued Ext.P6 notice

under Section 22(1)(c) of the Drugs and Cosmetics Act, 1940 directing the

petitioner not to dispose of the 50x5 packets of softon sanitizer. Thereafter, another

inspection was conducted on 04.01.2021 and as per Ext.P7 mahazar, the said 50x5

packets of sanitizers were seized alleging that the same was spurious drugs

manufactured without licence in violation of the provisions under the Drugs and

Cosmetics Act, 1940. The petitioner has stated that he is facing proceedings under

Sections 17B and 18 of the Drugs and Cosmetics Act, 1956. According to the

petitioner, the sanitizers were supplied by the 3rd respondent and therefore action

should have been taken against the 3rd respondent. It is his further case that the

respondents are denying his valid right of defence under Section 19(5)(3) of the

Act by not proceeding against the 3rd respondent who supplied it to him.

2. The learned Government Pleader points out that the investigation is

going on in the matter and the Writ Petition filed at this stage is highly premature.

3. The learned Counsel for the petitioner points out that in Ext.P8

representation the petitioner has requested to initiate proceedings against the 3 rd

respondent also, as he purchased the seized articles from him.

4. As rightly pointed out by the learned Government Pleader, there

cannot be any basis for the apprehension of the petitioner at this stage that no

enquiry would be conducted into the source of the articles seized from his

premises, as the respondents are duty bound to investigate the case in accordance

with law. However, it would be open to respondents 1 and 2 to consider the

request of the petitioner in Ext.P8 before finalising the investigation and inquiry in

respect of the seizure of the sanitizers initiated in Exts.P6 and P7.

The Writ Petition is disposed of accordingly.

Sd/- (P.V.ASHA, JUDGE)

rtr/

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE LICENCE ISSUED FROM DRUGS CONTROL DEPARTMENT DATED 10-02-2017.

EXHIBIT P2 TRUE COPY OF THE LICENCE ISSUED BY THE DRUGS CONTROL DEPARTMENT DATED 16-07-2020.

EXHIBIT P3 TRUE COPY OF THE LICENCE ISSUED BY THE ASSISTANT COMMISSIONER OF FOOD SAFETY, EERNAKULAM DATED 01-05-2018.

EXHIBIT P4 TRUE COPY OF THE NOTIFICATION ISSUED BY THE GOVERNMENT OF INDIA DATED 27-07-2020.

EXHIBIT P5 TRUE COPY OF THE INVOICE ISSUED BY THE 3RD RESPONDENT FOR THE PURCHASE ON 17-09-2020.

EXHIBIT P5(a) TRUE COPY OF THE INVOICE ISSUED BY THE 3RD RESPONDENT FOR THE PURCHASE ON 30-09-2020.

EXHIBIT P5(b) TRUE COPY OF THE INVOICE ISSUED BY THE 3RD RESPONDENT FOR THE PURCHASE ON 13-11-2020.

EXHIBIT P5(c) TRUE COPY OF THE INVOICE ISSUED BY THE 3RD RESPONDENT FOR THE PURCHASE ON 14-11-2020.

EXHIBIT P6              TRUE COPY OF THE ORDER OF THE 2ND
                        RESPONDENT DATED 15-12-2020.

EXHIBIT P7              TRUE COPY OF THE MAHAZAR ISSUED BY THE 2ND
                        RESPONDENT TO THE PETITIONER ON 04-01-2021.

EXHIBIT P8              TRUE COPY OF THE REPRESENTATION OF THE
                        PETITIONER DATED 05-01-2021.