Eshaan Medicos vs State of Punjab

Ritu Bahri, J.—Challenge in this petition is to the order dated 29.04.2011 (Annexure P-2) passed by Licensing Authority-respondent No. 2, vide which, Wholesale Drugs Licence Nos. 12436-OW & 12171-W of the petitioner have been cancelled and order dated 05.06.2013 (Annexure P-4) passed by respondent No. 1, whereby appeal against the above said order has been dismissed. The petitioner had been granted aforesaid wholesale drugs licences in order to sell and distribute drugs by way of wholesale, which is defined under Rule 2(g) of the Drugs and Cosmetics Rules (for short ''the Rules''). Rule 2(g) of the Rules is reproduced as under:-

2(g) sale by way of wholesale dealing" means sale to a person for the purpose of selling again and includes sale to a hospital, dispensary, medical, educational or research institution.

The petitioner, by way of above licences, cannot sell drugs to an individual for his consumption and if any wholesale licensee is found contravening this provision or indulging in selling of drugs by way of retail sale, then it would amount to violation of Rule 65(15) of the Rules.

The petitioner-firm was inspected by the Drugs Inspectors, Jalandhar and Gurdaspur on 17.09.2010. Ashwani Kumar, proprietor of the petitioner-firm, was found stocking drugs in the form of cut strips for sale and distribution. ''12'' types of drugs in cut strips, and split units were seized from the possession of the petitioner vide seizure memo/Form 16 (Annexure R-1). The inspecting team, vide inspection report (Annexure R-2), observed that the petitioner was stocking many types of drugs in cut strips, which is indicative of the fact that the firm was carrying out retail sale of drugs. Thereafter, a show cause notice dated 23.11.2010 was issued under Rule 66 of the Rules. The petitioner gave his reply to the said notice, while clarifying that ''12'' types of drugs, seized from his premises, were for his personal use as he was suffering from diabetes and blood pressure. The reply, filed by the petitioner, was not accepted and was found to be afterthought and manipulated. Thereafter, order dated 29.04.2011 (Annexure P-2) for cancellation of the drugs licenses of the petitioner was passed.

Learned counsel for the petitioner, at the outset, has referred to the order dated 14.11.2011 (Annexure P-5) passed by the authorities in the case of "M/s Gaurav Medical Hall." In the said case, following two contraventions were found:-

That you did not shown the purchase records & bills of 13 types of allopathic drugs, which were seized on Form No. 16, during inspection.

Now in your reply, you have submitted photocopies of purchase bill copies 1133 types of drugs. Thus, you have violated Rules 65(5)(3) & 65(6) of the Drugs and Cosmetics Rules, 1945.

That, you have not shown the wholesale records of drugs after Sr. No. 706 dated 13-10-2010 during inspection. Now, in your reply you have not attached photocopies of wholesale records. Your reply in this regard is not acceptable being afterthought. Thus, you have violated Rule 65(5)(1) & 65(6) of the Drugs & Cosmetics Rules, 1945.

In view of the above said contraventions, the authorities had suspended the licence of the aforesaid firm for a period of 30 days. While in the case of the petitioner, different yardsticks had been adopted and his licences had been cancelled.

It is not being disputed by the respondents that in the case of the petitioner, it is the first instance of contravention with regard to selling of medicines by way of retail sale. Keeping in view the tact that the petitioner had never committed any violation of the Rules since the inception of the licences, which were granted to him on 02.04.1999, the orders dated 29.04.2011 and 05.06.2012 (Annexures P-2 and P-4 respectively) are set aside.

The petition stands allowed accordingly.