Allowed

M/S. Kashimira Medical and General Stores, through Prop. Mukesh K. Parikh v. the Commissioner, Food and Drug Administration, State of Maharashtra and Ors.

Bombay HC6 Nov 2012LPA/266/2012

Case brief

AI extract

What is this about?

The high court substituted the penalty of permanent cancellation of drug licenses with suspension for four months. This decision relied on a prior division bench judgment, holding that permanent cancellation was disproportionate given the irregularities and the appellants' willingness to comply.

What did the court decide?

Impugned orders of cancellation set aside; licenses suspended for four months subject to filing undertaking.

M/S. Kashimira Medical and General Stores, through… — Service and Employment | Bombay HC (2012)

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1/6 LPA 266/2012 & 256/2012

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S.H.HADAP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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LETTERS PATENT APPEAL NO.266 OF 2012 IN

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WRIT PETITION NO.3767 OF 2012

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M/s.Kashimira Medical & General Stores

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… Appellant

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V/s

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The Commissioner Food & Drug Administration & Others

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... Respondents

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WITH

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LETTERS PATENT APPEAL NO.256 OF 2012 IN

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WRIT PETITION NO.10141 OF 2012

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M/s.M/s.Famous Medical Stores

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… Appellant

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V/s

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The Commissioner Food & Drug Administration State of Maharashtra & Others

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... Respondents

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Mr.Kishor Patil for Appellant in LPA No.266/2012. Mr.Avinash Fatangare for Appellant in LPA No.256/2012. Ms.P.S.Cardoza, AGP for State.

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CORAM: MOHIT S.SHAH, C.J. & N.M.JAMDAR, J.

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DATE: 6 NOVEMBER 2012

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2/6 LPA 266/2012 & 256/2012

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P.C.:

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These two appeals involve similar issues and are therefore disposed of together.

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The appeals are directed against the orders passed by the learned Single judge dismissing writ petitions filed by the appellants challenging the orders of licensing authority under the Drugs and Cosmetics Act 1940 and canceling the licences which were issued in favour of appellants for carrying out business of pharmacists and drugists.

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Show cause notices were issued to the appellants as to why their authorization and licences should not be cancelled as serious irregularities and illegalities were noticed. After considering the replies of the appellants, the authority passed impugned orders cancelling the licences. The appeals filed by the appellants to the State Government were dismissed and by the impugned orders the learned Single Judge dismissed the writ petitions. Hence the appellants are before us in their respective appeals.

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The prime allegation against the appellants was that they sold cough syrups containing codeine phosphate. According to the authorities, the record regarding the sale of these cough syrup bottles was not maintained properly and the cough syrups were sold without medical prescriptions, which is not permitted in law.

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3/6 LPA 266/2012 & 256/2012

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There were other irregularities such as not maintaining cold storage and not keeping pharmacists in the shops.

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Learned counsel for the appellants have contended that even assuming though not admitting, that such irregularities were found, the penalty of permanent cancellation of licences was shockingly disproportionate. It was submitted that permanent cancellation of licences is like imposing the death penalty as the appellants never will be able to carry on the business in future.

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Learned counsel for the appellants relied upon the Division Bench Judgment of this Court dated 26 March 2012 in WP (L) Nos.154 to 156 of 2012. In this group of matters the Division Bench of this Court substituted the penalty of permanent cancellation of licences by lesser penalty of suspension of licences for a period of three months or less. The learned AGP opposed the appeals and supported the impugned orders.

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On 16 October 2012 we had an occasion of dealing with the appeals involving similar set of circumstances and containing similar allegations. Relying upon the Division Bench decision referred to above, we disposed of the group of five appeals by order dated 16 October 2012 observing as under:

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“8. Having heard the learned counsel for the parties we are of the view that though the irregularities committed by the appellants cannot be treated as minor errors, since the Schedule H drugs were sold without prescription, having regard to the fact that the shops of the appellants have

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4/6 LPA 266/2012 & 256/2012

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remained closed for about one month prior to the date of filing the Writ petitions and for two and a half months after dismissal of the Writ petitions and the fact that the appellants are ready to file undertaking as suggested by the learned AGP, the penalty by way of dismissal of licenses deserves to be substituted by lesser penalty of suspension of licenses for stipulated number of months.

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Accordingly, subject to the condition that the appellants shall file undertaking to the effect that the appellants shall maintain the stores in hygienic condition, shall have cold storage facility for preserving the medicines below certain temperature, that a qualified pharmacist shall always be available at the store and that the appellants shall not sell any Schedule H drugs without medical prescription, within two weeks from today, the impugned orders of cancellation of the appellants licenses shall stand quashed and set aside and shall be substituted by order of suspension of license for a period of 4 months. The copies of the undertaking to be filed shall also be served upon the learned AGP.

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The authority shall work out the period during which the shops remained closed and that period shall be taken into consideration while calculating the period of four months. This period shall be determined by the authorities within two weeks from today, and communicated to the appellant. During the period of closure the respondentauthorities shall monitor whether the appellants have actually suspended their business.”

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We have gone through the impugned orders and we find that the facts and circumstances of the present appeals are similar to the appeals disposed of by the above-mentioned orders. In the present appeals also the primary allegation is regarding cough syrup containing codeine phosphate and the authorities have cancelled licences of the appellants on permanent basis. We have

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5/6 LPA 266/2012 & 256/2012

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already held in the orders mentioned-above that based on such allegations the punishment of permanent cancellation of licences will be disproportionate. We do not find any reason to take any different view in the present appeals.

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Accordingly, we set aside the impugned orders and direct that the licences of the appellants shall be suspended for a period of four months.

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Learned counsel for the appellants submit that after the impugned orders, shops of the appellants were closed for some time and this period should be taken into consideration while calculating the period of four months. This will entail ascertainment of factual situation which we leave it to the concerned authority. The concerned authority shall ascertain whether the shops of the appellants were closed for the period claimed by the appellants and communicate the same to the appellants within two weeks from today.

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Above order is passed subject to the condition that the appellants shall file undertakings that they will maintain their stores in hygienic condition and will abide by the conditions of licence and that they shall not sell any schedule 'H' drug without medical prescription. The undertakings shall be filed within three weeks from today and copy thereof shall also be served upon the learned AGP. It is upon filing the undertakings, the impugned orders shall stand substituted as directed above.

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6/6 LPA 266/2012 & 256/2012

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During the period of closure of shops, the Respondent authority shall monitor whether the appellants have actually suspended their business.

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13, All the appeals are disposed of as above.

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The parties to act on a copy of the order authenticated by the Court Associate.

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CHIEF JUSTICE

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(N.M.JAMDAR, J.)

M/S. Kashimira Medical and General Stores, through Prop. Mukesh K. Parikh v. the Commissioner, Food and Drug Administration, State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Kashimira Medical and General Stores, through Prop. Mukesh K. Parikh v. the Commissioner, Food and Drug Administration, State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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