Allowed

M/S. Tanisha Medical and General Stores, through Prop. Mr. Shankarlal Gulabji Bhati v. the Commissioner, Food and Drug Administration, State of Maharashtra and Ors.

Bombay HC19 Aug 2013WP/7197/2013

Case brief

AI extract

What is this about?

This court quashed orders suspending the petitioner's drug licence for failing to consider the reply to a show-cause notice. It held that authorities must address submissions and assign reasons before taking adverse action.

What did the court decide?

Impugned orders dated 6.2.2012 and 6.5.2013, and consequential order dated 17.7.2013, were quashed; matter remanded to Respondent No. 3.

M/S. Tanisha Medical and General Stores, through Prop… — Service and Employment | Bombay HC (2013)

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WP. 7197-13

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VPH

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION No. 7197 OF 2013

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M/s. Tanisha Medical & General Stores ... Petitioner Vs.

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The Commissioner, Food & Drug Administration & Ors. ... Respondents

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Mr. Ajay S. Patil, for the Petitioner.

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Mrs. M. P. Thakur, AGP for Respondent Nos. 1 to 4.

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CORAM : V. M. KANADE & K. R. SHRIRAM, JJ.

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DATE : AUGUST 21, 2013.

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P.C.

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Heard the learned counsel appearing for the Petitioner and the learned AGP appearing for Respondent Nos. 1 to 4. The Petitioner is carrying on business of dealing in medicines by way of retail stores in the name and style of M/s. Tanisha Medical & General Stores. The Petitioner is holding Drug Licence in Form-20, Form-21 and Form-20C. The Petitioner is carrying on the said business since 2008 after obtaining relevant licences for sale and purchase of drugs / medicines.

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The shop premises of the Petitioner was inspected by the

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Drug Inspector on 11.12.2011. During the course of inspection, the Drug Inspector noticed that licences were not displayed by the Petitioner on the prominent place of the shop premises and certain discrepancies were noticed after inspection of the record of the shop, and consequently, a show-cause notice dated 22.11.2011 was issued by him. The Petitioner has submitted his detailed reply to the said show-cause notice.

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The grievance of the Petitioner is that without taking into consideration the reply filed by the Petitioner, Respondent No. 3 by the impugned order dated 6.2.2012 suspended the licence of the Petitioner for a period of 30 days.

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The Petitioner being aggrieved by the aforesaid order, preferred an appeal before Respondent No. 4 – The Hon'ble Minister of State, for Food & Drugs, State of Maharashtra, Mantralaya Mumbai, who was pleased to dismiss the appeal and confirm the order passed by Respondent No. 3. Learned counsel appearing on behalf of the Petitioner submits that neither Respondent No. 3 nor Respondent No. 4 has taken into consideration the detailed reply given by him to the show-cause notice, which was issued by Respondent No. 3. It is, therefore, submitted that the said orders are liable to be quashed and set aside, since both the orders were passed without taking into consideration the reply and explanation given by the Petitioner. It is further submitted that the Hon'ble Minister (Respondent No. 4) has wrongly recorded that the Petitioner has

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accepted the said irregularities which were mentioned in the showcause notice. He submitted that the Petitioner had only admitted that he had not displayed the licences at the prominent place, and rest of the allegations were not admitted by him. In support of the said submission, Petitioner relied upon the judgment of the Division Bench of this Court in the case of – Kedarnath s/o Badrinarayan Saraf Vs. The Hon'ble Minister for Health, Medical Education and Department Mantralaya & Anr. [2006(3) Mh.L.J. 62]. He submitted that the Division Bench of this Court has set aside the order passed in the appeal on the ground that reasoned order was not passed by the Authority.

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On the other hand, learned AGP submitted that serious allegations were made by Drug Inspector in the show-cause notice dated 11.12.2011. It is submitted that there were grave irregularities committed by the Petitioner, and therefore, both the Authorities have taken into consideration the said allegations in their order and suspended the licence for a period of 30 days only. She submitted that a personal hearing was also given to the Petitioner before passing the impugned orders.

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After having heard the counsel for both the parties, we are of the view that there is much substance in the submissions made on behalf of the Petitioner. The allegations in the show-cause notice was that certain medicines which contained intoxicants were sold by the Petitioner without prescription of the doctors & without issuing

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the bill; secondly, it is contended that the licence which was granted in favour of the Petitioner was not displayed on the prominent place of the shop premises; thirdly, Petitioner is not maintaining the records as per the rules; fourthly, it was contended that inspection book in Form 35 was not supplied; and lastly, it was contended that purchase bills of medicines were not recorded serially in the register.

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The reply was filed by the Petitioner to the said showcause notice, and in the said reply Petitioner has given all the particulars. It is further submitted that in the reply, in respect of first allegation that he had sold 31 bottles of medicines which contains Codeinae syrup, the Petitioner had sold only 3 bottles. The Petitioner had a stock of three Corex cough syrup of 100 ml. It is further stated that particulars of the bills were also mentioned and also xerox copy was supplied. The impugned order, however, clearly indicates that this material was not taken into consideration, and without assigning any reason whatsoever, the impugned orders were passed by Respondent No. 3 and Respondent No. 4. Respondent No. 4 by the impugned order has stated that 31 medicines containing codeinae syrup were found in the shop of the Petitioner, which statement does not appear to be factually correct, though some reasons have been given by the Hon'ble Minister (Respondent No. 4), the impugned order passed by him does not reflect that he had taken into consideration the explanation given by the Petitioner to the showcause notice. In our view, therefore, both these orders will have to be quashed and set aside, firstly, on the ground that no proper reasons

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have been assigned by these authorities while passing the impugned orders; and secondly, both the authorities have not taken into consideration the explanation given by the Petitioner. Writ petition, therefore, is allowed and both the impugned orders i.e. order passed in May 2013 by Respondent No. 4, and the order dated 6.2.2012 passed by Respondent No. 3, as also the consequential order dated 17.7.2013 issued by Respondent No. 3, are quashed and set aside, and the matter is remanded back to Respondent No. 3 with a direction to decide the matter afresh and in accordance with law after taking into consideration the explanation given by the Petitioner. Writ petition is, accordingly allowed in the aforesaid terms.

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Vinayak Halemath

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M/S. Tanisha Medical and General Stores, through Prop. Mr. Shankarlal Gulabji Bhati 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. Tanisha Medical and General Stores, through Prop. Mr. Shankarlal Gulabji Bhati 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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