Dismissed

M/S Jhanwar Medical Agency v. State of Rajasthan

Rajasthan HC27 Aug 2024CW/13652/2024

Case brief

AI extract

What is this about?

The High Court dismissed a writ petition challenging the suspension of a drug license due to forged bills and embezzlement. Finding that due hearing was provided and evidence recovered on spot justified the order, the Court declined interference but imposed exemplary costs for forum shopping.

What did the court decide?

Writ petition dismissed with exemplary cost of Rs. 10,000 to be deposited in Litigants Welfare Fund.

M/S Jhanwar Medical Agency Vs State of Rajasthan — Service and Employment | Rajasthan HC (2024)

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[2024:RJ-JP:35910]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writ Petition No. 13652/2024

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M/s Jhanwar Medical Agency, 22, First Floor, Amarnath Building, Jalori Bari, Jodhpur Through Its Prop. And Competent Person Shri Jugal Kishore Jhanwar Son Of Shri Poonam Chand Jhanwar.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Addl. Chief Secretary, Medical And Health And Family Welfare Department, Government Secretariat, Jaipur.

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Joint Secretary-Cum-Appellate Authority, Medical Health And Family Welfare Department (Group-2), Government Secretariat, Jaipur.

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The Licensing Authority And Assistant Drugs Controller, Office Of District Food Safety And Drug Control, Swasthya Bhawan Jhalamand Circle, Old Pali Road, Jodhpur.

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----Respondents

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For Petitioner(s)	: Mr. Tarun Kumar Mishra
For Respondent(s)	: None present

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HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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27/08/2024

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Heard learned counsel for the petitioner and perused the record carefully.

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Petitioner, a proprietor firm through its Proprietor and competent person, has invoked the jurisdiction of High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur under Article 226 of the Constitution of India, impugning the order dated 13.06.2024 (Ann.2) passed by the Assistant Drugs Controller, Jodhpur suspending the Drug License of petitioner firm for a period of 60 days from 20.06.2024 to 18.08.2024 so also the

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order dated 26.07.2024 passed by the Appellate Authority-cumJoint Secretary, Medical Health & Family Welfare Department, Jaipur affirming the order of suspension of drug license of petitioner firm, however the period of suspension has been changed and reduced to the period from 19.08.2024 to 18.09.2024 only.

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The relevant facts required to notice in nutshell, as culled out from the record, are that:-

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3.1 the petitioner firm was issued a drug license by the Licensing Authority & Assistant Drug Controller, Jodhpur (responded No.3 herein) on 02.05.2022 under the provisions of Drugs and Cosmetics Act, 1940 and Rules 1945. Such license of petitioner firm is effective and valid up to 01.05.2027.

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3.2 The petitioner firm runs a drug store at Amar Nath Building, Jodhpur and is paneled in the list of RGHS Scheme of the State Government to sell the drugs to the beneficiaries of such scheme.

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3.3 On receiving the complaints of irregularities, illegalities in respect of preparing forged bills and drawing funds from the Government Scheme of RGHS from the drug of petitioner firm & others and thereby making embezzlement of huge government funds, one FIR No.265/2023 at Police Station Basni, Jodhpur for offence under Sections 420, 406, 467, 468, 471, 474/120-B IPC came to be registered wherein the petitioner firm was one of among other drug stores involved in such illegal activities. Therefore, immediately, the petitioner firm was delisted from the authorized RGHS Vendor.

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3.4 It appears that the proprietor of petitioner-firm was arrested in the criminal case but later on, he was released on bail by the

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High Court of Judicature for Rajasthan at Jodhpur vide order dated 15.04.2024 passed in S.B.Criminal Misc. Bail Application No.14478/2023.

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3.5 It appears that the petitioner firm was served with show cause notice dated 19.03.2024, then another show cause notice dated 26.03.2024 and since at that point of time, proprietor of petitioner firm was in Central Jail at Jodhpur, on his instructions, notice was served upon his Advocate vide letter dated 01.04.2024. The Advocate of petitioner firm replied the notice and asked time. 3.6 It further appears that the last show cause notice dated 20.05.2024 was issued by the respondent No.3 which too was replied by the proprietor of petitioner firm vide letter dated 04.06.2024, taking a plea that the entire record has been seized by the Police, therefore in absence of record, the petitioner firm is unable to submit his explanation/ reply to the show cause notice. 3.7 Thereafter, vide order dated 13.06.2024, issued by the responded No.3, the petitioner firm was found guilty to breach Section 18B, 22(3), 18(A), 22 (vi) of Drugs and Cosmetics Act, 1940 as well as relevant rules of 65(3)(4)(6) & (9) of Cosmetics Rules 1945 and finally, prior to cancellation of the drug license of petitioner firm, his drug license was merely suspended for a period of 60 days commencing from 20.06.2024 to 18.08.2024. The copy of the order dated 13.06.2024 is enclosed as Annexure-2.

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3.8 Petitioner firm assailed the order of suspension of its drug license by way of filing appeal and the appellate Authorityresponded No.2 vide order dated 26.07.2024, declined to set aside the suspension order passed by the Licensing Authority and Assistant Drug Controller, Jodhpur, however changed and reduced

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the period of suspension from 19.08.2024 to 18.09.2024. The copy of the order dated 26.07.2024 passed by the appellate authority is enclosed as Annexure-3.

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Counsel for the petitioner contends that impugned orders have been passed in violation of the principles of natural justice because the petitioner was not provided proper opportunity to furnish the record, since the record of petitioner firm was seized by the Police and therefore, holding the petitioner firm guilty for violating the relevant provisions of Drugs and Cosmetics Act, 1940 and the Rules, 1945 and suspending its drug license, is violative to Article 14 and 21 of the Constitution of India.

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Having heard learned counsel for the petitioner and from perusal of record, this Court finds that the involvement of petitioner-firm in criminal case arising out of FIR No.265/2023 registered at Police Station Basni, Jodhpur City (West) on 26.09.2023 is an undisputed fact.

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It is further undisputed that prior to issuance of the impugned order dated 13.06.2024 (Ann.2) by the Licensing Authority and Assistant Drug Controller, Jodhpur, petitioner firm was served with show cause notice dated 19.03.2024, then on 26.03.2024 and lastly on 20.05.2024. 7. It is further undisputed that the show cause notice dated 20.05.2024 was replied by and on behalf of petitioner firm as well. The first show cause notice was also replied by the counsel of petitioner firm on his instructions.

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Merely because the petitioner firm did not submit the documents for one or other reason, it may not be said that the order of suspension of drug license of petitioner firm was passed

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by the respondent No.3, without providing opportunity of hearing or in breach of the principles of natural justice.

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It further appears from the impugned orders that the drug store of petitioner firm was inspected on 27.09.2023, in presence of proprietor and competent person of petitioner firm and forged bills, raising government funds on the basis of false entries of supply of drugs under the scheme of RGHS were recovered from the store of petitioner firm in his presence.

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Both the authorities, Licensing Authority and the Appellate Authority have recorded a fact finding against the petitioner firm for committing irregularities/ illegalities in preparing forged medical bills and committing breach of the relevant provisions of the Drugs and Cosmetics Act and Rules. Such fact findings are based on the documents recovered at the spot during inpsection of drug store in presence of the competent person and proprietor of the petitioner firm.

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In addition to above, the impugned orders are only in respect of suspending the drug license of petitioner firm and the appellate Authority has reduced the period of suspension only for a period of 30 days commencing from 19.08.2024 to 18.09.2024. No final order in respect of cancellation of drug license of petitioner firm has been passed by the authorities.

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Having considered the reasons assigned by the Licensing Authority to suspend the drug license of petitioner firm and the reasons assigned by the appellate authority to affirm the suspension order as also considering the nature of impugned orders to the effect of suspension of drug license only, this Court is not inclined to exercise its writ jurisdiction under Article 226 of

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the Constitution of India. The impugned orders may not be termed as violative to Article 14, 21 of the Constitution of India. The impugned orders have been passed, after providing due opportunity of hearing to the petitioner firm and after due application of mind by the concerned authorities which do not warrant any interference by the High Court in writ jurisdiction.

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Before parting with, this Court takes a serious note against the petitioner firm that admittedly the petitioner firm is running a drug store at Jodhpur. The drug license was issued to petitioner firm by the Licensing Authority & Assistant Drugs Controller, Jodhpur (respondent No.3 herein). FIR No.265/2023, wherein the petitioner firm was one of the accused, was also registered at Police Station Basni, Jodhpur City (West) and bail application under Section 439 Cr.P.C. of the proprietor petitioner firm was granted by the High Court of Judicature for Rajasthan at Jodhpur vide order dated 15.04.2024. The first impugned order dated 13.06.2024 (Ann.2) has also been passed by the Authority, responded No.3 whose office is situated at Jodhpur. However, the petitioner firm has preferred the present writ petition before the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur, merely taking benefit of the order dated 26.07.2027 passed by the Appellate Authority, which is only one appellate authority in State of Rajasthan. Petitioner firm who indisputably is carrying on business and running his drug store at Jodhpur and its drug license was issued by the Assistant Drugs Controller, Jodhpur, which has been suspended by the respondent No.3-Licensing Authority, whose office is situated at Jodhpur, could have filed this writ petition before the High Court of Judicature for Rajasthan at

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Jodhpur. The criminal proceedings against the petitioner firm were undeniably initiated and are continuing at Jodhpur, yet the petitioner firm for the reasons best known to him, has chosen the forum of High Curt at Jaipur Bench to file present writ petition.

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This Court does not want to enter into area that the act of petitioner-firm forum shopping is by its own decision or under some illegal advice but this practice can not be countenanced. This Court, in peculiar facts and circumstances of present case, deprecates such practice of petitioner firm and in order to deter such practice in future, deem it just and proper to saddle the petitioner firm with exemplary cost of Rs.10,000/- while dismissing its writ petition for the reasons discussed and referred in the forgoing paragraphs.

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As a final result, the instant writ petition is dismissed with exemplary cost of Rs.10,000/-. The cost is to be deposited by the petitioner firm with the Litigants Welfare Fund through Cheque/DD in the name of Registrar General LWFA, Rajasthan High Court within a period of Sixty days.

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Stay application and pending application, if any, stand disposed of.

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Registry is directed to send a copy of this order to the respondent No.3 by registered post forthwith.

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(SUDESH BANSAL),J

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TN/48

M/S Jhanwar Medical Agency v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

M/S Jhanwar Medical Agency v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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