Disposed

Kayem Pharmaceuticals P. Ltd. v. the State of Maharashtra, through Secretary Deapartment Food and Drug and Ors.

Bombay HC10 Mar 2014WP/801/2014

Case brief

AI extract

What is this about?

The High Court disposed of two writ petitions challenging an order restricting pharmaceutical exports. The court declined to grant a stay, directing petitioners to reply to the show cause notice within one week for the authorities to decide on merits within three weeks without expressing opinion on merits.

What did the court decide?

No stay granted. Directions issued to file reply within one week and complete inquiry within three weeks. Liberty to challenge adverse orders granted.

Kayem Pharmaceuticals P. Ltd. Vs the State of… — Service and Employment | Bombay HC (2014)

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VAT

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1 - (WPL 496 of 2014 with WPL 508 of 2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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WRIT PETITION (L) No.496 OF 2014

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Kayem Pharmaceuticals P. Ltd. ...Petitioner Vs. The State of Maharashtra, Through Secretary Department Food and Drug Department and Ors. ...Respondents

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WITH

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WRIT PETITION (L) No. 508 OF 2014

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Fedelty Healthcare Pvt. Ltd. ...Petitioners Vs. The State of Maharashtra and Ors. ...Respondents

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Mr.J.Reis, Senior Counsel with Mr. Yadhunath Chaudhary i/b. Reena Salunkhe for Petitioner

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Mr.D.J. Khambhata, Advocate General with Ms. Geeta Shastri-AGP for Respondent Nos.1 and 2

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Mr.Parag Vyas with Mr.A.R. Verma for Respondent No.3 MR. Daya Shukl, Asstt. Supdt. (Legal) for Respondent No.3

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CORAM : V. M. KANADE & A.K. MENON, JJ.

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DATE : MARCH 10, 2014

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(WPL 496 of 2014 with WPL 508 of 2014)

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P.C.

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After the matter was heard at length, Shri Shukl, the Asstt. Superindent (Legal) on behalf of the Foreign Post OfficeRespondent No.3 herein, submits that no parcel is detained by the Foreign Post Department.

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The grievance of the Petitioners in this petition is that Respondent No.2 took inspection of the licensed premises of the Petitioners on 5.2.2014 and, thereafter, directed the Petitioners not to dispose of the stock for 20 days from 14.2.2014 and also directed Respondent No.3 - Foreign Postal Department, Dak Bhavan, Bellard Estate, Mumbai -1 not to export the goods.

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The contention of the Petitioners is that they are the manufacturers of the pharmaceutical and they dispose of the pharmaceutical products manufactured by them on principal to principal basis after obtaining requisite permissions from the authorities under the Act. It is the contention of the Petitioners that the Petitioners export its products to various foreign countries mainly by sending the products by postal delivery. It is the contention of the Petitioners that they hold all the necessary permissions, authorizations and licenses that are required to be obtained for carrying out these activities.

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It is submitted that on 5.2.2014, Respondent No.2 inspected

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(WPL 496 of 2014 with WPL 508 of 2014)

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the licensed premises of the Petitioners and prepared an inspection report in Form 35 and, thereafter, passed the impugned order. The Petitioners, therefore, are constrained to file this petition under Article 226 of the Constitution of India seeking an appropriate writ, order and direction for setting aside the impugned order passed by Respondent No.2.

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After the petition was filed, a show cause notice has been issued to the Petitioners dated 24.2.2014 in which, it is alleged that the Petitioners have violated the provisions of Section 18(C), 18(A) (vi) r/w. Rules 65(9) (a) and 65(5) of the Drugs and Cosmetics Act, 1940. It is submitted that Respondent No.2 does not have jurisdiction or authority to issue the said show cause notice or give a direction to the Postal Authorities not to export the said goods. He submitted that the Petitioners have valid Import Export Code(IEC) License issued under section 7 of the Foreign Trade (Development and Regulation) Act, 1992. It is submitted that, therefore, the said impugned order is liable to be quashed and set aside.

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The learned Senior Counsel appearing on behalf of the Petitioners has invited our attention to the Foreign Trade Policy Manual and the procedures prescribed thereunder and also the relevant provisions of the Acts and Rules framed thereunder. It is submitted that several letters have been written by the Central Government, informing Respondent No.2 and other Authorities under the Food and Drug Act that they had no authority to impose

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3/5

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(WPL 496 of 2014 with WPL 508 of 2014)

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the said restrictions. It is submitted that, therefore, the impugned order is liable to be set aside and the Petitioners may be permitted to carry out the exports.

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On the other hand, the learned Advocate General appearing on behalf of the State has invited our attention to the license issued by the Assistant Commissioner, Food and Drug Administration (Maharashtra State). He submitted that in the said license, it is clearly mentioned that the Petitioners are permitted to sell and distribute their products on wholesale basis and strictly prohibited in selling the products on retail basis. It is submitted that the Petitioners are sending their goods directly to the individual customers and, therefore, the FDA Authorities are justified in issuing the show cause notice to the Petitioners. He submitted that if the reply is filed within one week by the Petitioners, the FDA Authorities shall hold an inquiry and decide the same within three weeks thereafter.

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It is not disputed that after the petition was filed, a show cause notice has been issued by the Respondents. No reply has been filed by the Petitioners to the said show cause notice. The learned Advocate General has submitted that if reply is filed by the Petitioners, the inquiry would be completed within three weeks. Therefore, at this stage, we are not inclined to grant stay to the impugned order passed by Respondent No.2. We, therefore, direct the Petitioners to give the reply to the show cause notice within one

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4/5

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VAISHALI TIKAM

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(WPL 496 of 2014 with WPL 508 of 2014)

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week and Respondent No.2 shall complete the inquiry within three weeks thereafter. With these directions, both the writ petitions are disposed of. Liberty is granted to the Petitioners to challenge if any adverse order is passed by Respondent No.2. All contentions raised by the Petitioners and Respondents in these petitions are kept open. Respondent No.2 shall not be influenced by dismissal of these petitions since we have not expressed our opinion on merits of the case.

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Sd/Sd/- [A.K. MENON, J.] [V. M. KANADE, J.]

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Kayem Pharmaceuticals P. Ltd. v. the State of Maharashtra, through Secretary Deapartment Food and Drug and Ors.

Case brief

What is this about?

What did the court decide?

Kayem Pharmaceuticals P. Ltd. v. the State of Maharashtra, through Secretary Deapartment Food and Drug and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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