Punjab-Haryana High Court
M/S Nav Jiwan Pharma And Anr vs State Of Punjab And Ors on 13 November, 2024
Author: Suvir Sehgal
Bench: Suvir Sehgal
Neutral Citation No:=2024:PHHC:147917
CWP-7498-2018
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208
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP-7498-2018
Date of decision:-13.11.2024
M/s Nav Jiwan Pharma and another
...Petitioners
Versus
State of Punjab and others
...Respondents
CORAM : HON'BLE MR. JUSTICE SUVIR SEHGAL
Present : Mr.Sandeep K. Sharma, Advocate
for petitioners.
Mr.Brijesh, AAG, Punjab
for the respondents.
****
SUVIR SEHGAL, J.(ORAL)
1. Instant writ petition has been filed under Articles 226/227
of the Constitution of India, inter alia, for issuance of a writ in the nature
of certiorari for quashing orders dated 11.05.2017 and 27.12.2017,
Annexures P5 and P7, respectively, whereby both the wholesale drug
licences issued to the petitioners have been cancelled.
2. Brief facts leading to the filing of the present petition are
that the petitioners possessed two licences and was running a wholesale
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drug store for the last more than fifteen years. The premises were
inspected on 24.03.2017 and on the basis of the inspection report,
Annexure P1, a show cause notice dated 31.03.2017, Annexure P3, was
issued to the petitioners for contravention of the provisions of the Drugs
and Cosmetics Rules, 1945 (for short "the Rules"). Petitioners filed
response dated 05.04.2017, Annexure P4, claiming that there is no
violation of the rules. Vide impugned order dated 11.05.2017, Annexure
P5, the Joint Commissioner (Drugs) cancelled both the wholesale
licences and appeal filed by the petitioners was rejected vide impugned
order dated 27.12.2017, Annexure P7, passed by the Additional
Secretary Health - cum - Appellate Authority, Punjab. Challenging both
the orders, petitioner is before this Court.
3. By making a reference to Rule 66 of the Rules, the sole
argument raised by counsel for the petitioners is that the authorities are
empowered to cancel the licence of the petitioner in part and they have
erred in cancelling the entire licence. He submits that the petitioners
could not produce the bills of some drugs and the licence qua the said
drugs should have been cancelled while retaining the licence for the
other formulations. He has placed reliance upon judgments M/s Garg
Medical Hall Versus State of Punjab and others, 2011 (4) PLR 785
and Universal Drug House Pvt. Ltd. Versus State of Bihar and others,
2004 AIR (Patna) 86.
4. Writ petition has been contested by the respondents by
filing a response, wherein it has been submitted that during inspection,
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petitioner was found to be in possession of a huge quantity of
intoxicating drugs and during the proceedings before the authorities, he
could not produce the purchase bills for 38410 tablets of Tramodol.
State counsel has placed reliance upon the judgment of Kerala High
Court in Kolambil Hamza Haji versus State of Kerala and others, Law
Finder Doc ID # 1730657 to contend that the protection under Rule 66
is not available to the petitioners.
5. I have heard the counsel for the parties and considered their
respective submissions.
6. In Kolambil Hamza Haji's case (supra), noticing Rule 66,
ibid, the Kerala High Court has held that the protection under Rule 66,
ibid, comes into play only when the allegation of any omission has been
levelled against an agent or employee of the licence holder. The relevant
observations of the Kerala High Court are reproduced hereunder:-
"9. Being contextually relevant, Rule 66 is extracted
hereunder:-
"66. Cancellation and suspension of licenses.-(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 therefor,
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
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of the license or with any provisions of the Act or rules
thereunder:
Provided that, where such failure or contravention is the
consequence of an act or omission on the part of an agent
or employee, the license shall not be cancelled or
suspended if the licensee proves to the satisfaction of the
licensing authority-
(a) that the act or omission was not instigated or
connived at by him or, if the licensee is a firm or company,
by a partner of the firm or a director of the company, or
(b) that he or his agent or employee had not been guilty
of any similar act or omission within twelve months before
the date on which the act or omission in question took
place, or where his agent or employee had been guilty of
any such act or omission, the licensee had not or could not
reasonably have had knowledge of that previous act or
omission, or
(c) if the act or omission was a continuing act or
omission, he had not or could not reasonably have had
knowledge of that previous act or omission, or
(d) that he had used due diligence to ensure that the
conditions of the license or the provisions of the Act or the
rules thereunder were observed.
(2) A licensee whose licence has been suspended or
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cancelled may, within three months of the date of order
under subrule (1), prefer an appeal against that order to
the State Government, which shall decide the same."
A careful scrutiny of the Rule would show that the bar against
cancellation or suspension of licence would come into play only
when the contravention is the consequence of an act or omission
on the part of an 'agent' or 'employee'. In such cases, the licensee
could prove that 'he or his agent or employee' had not been guilty
of any similar act or omission within 12 months of the date on
which the instant act or omission was detected. The bar against
cancellation of licence would have no application when the
violation/contravention is committed by the licensee himself. The
proviso is intended to safeguard the interest of a licensee, who is
unaware of the contraventions committed by his agents or
employees and not when the licencee himself is the violator.
Further, even if the contravention is due to the act of an agent or
employee, the bar would not apply if such violation was within 12
months of the present inspection and detection. This would imply
that the bar against cancellation would come to the benefit of a
licencee, who does not contravene the conditions and is also alert
enough to prevent any such action by his employee or agent. As
rightly contended by the learned Government Pleader, the
provisions of the Drugs and Cosmetics Act should be given a
purposive interpretation. The scope of the proviso to Rule 66
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cannot therefore be widened and the safeguard extended to a
licensee who is personally responsible for the contravention."
7. When examined in the light of the facts of the present case,
it is apparent that the petitioner was the licence holder and he is himself
responsible for storing such a huge quantity of drugs for which he did
not possess any purchase bills. There is no allegation that the drugs were
stored by his employee or agent. The judgments relied upon by counsel
for the petitioners in M/s Garg Medical Hall's case and Universal
Drug's case (supra) are not applicable to the facts of the present case as
in both the judgments the Court had noticed the extenuating
circumstances before granting relief to the petitioner. This Court does
not find any infirmity in the orders passed by the authorities.
8. Petition is bereft of merit and is hereby dismissed.
(SUVIR SEHGAL)
13.11.2024 JUDGE
Brij
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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