Quashed

M/S Amba Medical Store v. Appellant Authority and Joint Secretary

Rajasthan HC2 Jul 2024CW/8567/2023

Case brief

AI extract

What is this about?

The Court allowed a writ petition to quash the cancellation of a drug license. The court held that the licensing authority based its order on conjectures and improperly shifted the burden of proving non-purchase onto the licensee, violating settled canons of law regarding proof.

What did the court decide?

The writ petition was allowed; the orders dated 27.07.2022 and 18.04.2023 were quashed. The matter was remitted to the Licensing Authority to pass a reasoned order within two months.

M/S Amba Medical Store Vs Appellant Authority and… — Service and Employment | Rajasthan HC (2024)

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[2024:RJ-JD:26417]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 8567/2023

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M/s Amba Medical Store, Main Market, Arjunsar, Tehsil Loonkaransar, District Bikaner (Raj). Through Proprietor Lalit Kumar S/o Shri Ashwani Kumar, Aged About 37 Years, Resident Of Village Main Market, Arjunsar, Tehsil Loonkaransar, District Bikaner (Raj).

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----Petitioner

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Versus

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Appellant Authority And Joint Secretary, Government Of Rajasthan, Medical And Health Group - II, Jaipur (Raj).

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Licensing Authority And Assistant Drug Controller, Bikaner (Raj).

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----Respondents

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For Petitioner(s)	: Mr. Manish Vyas
For Respondent(s)	: Mr. N.S. Rajpurohit,AAG

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JUSTICE DINESH MEHTA

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Order

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02/07/2024

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The present writ petition in hands is directed against the order dated 27.07.2022, passed by respondent No. 2 – Licensing Authority and Assistant Drug Controller, Bikaner that has been affirmed by the Appellate Authority vide order dated 18.04.2023.

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Narrated in brief, the facts relevant for the present purposes are that the petitioner is having a drug license to carry out trade of purchase and sale of medicines in accordance with the terms of license.

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On 21.05.2022, the Drug Inspector conducted an inspection at petitioner’s business premises and found certain irregularities

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and lapses for which a show cause notice dated 20.06.2022 was issued to the petitioner.

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The show cause notice required the petitioner to file a response on the five issues pointed out by the respondent No.2. 5. In response to the above notice, the petitioner filed his reply, inter alia, with a plea that on 21.05.2022 when the inspection was made, the petitioner had gone to his village as his grandmother had passed away. It was also pleaded that at the time of inspection, the Pharmacist was not available and hence, the register of dealing with scheduled drugs and purchase bills could not be produced.

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In relation to discrepancy of not keeping the purchase bills in chronological order, the stand of the petitioner was that he had arranged/kept the bills in order of payment and the invoices in relation whereof the payment had not been made and those of the invoices in which certain discrepancy/error was observed, were kept separately.

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It is to be noted that a substantial or serious allegation was leveled by the respondent No.2 on the basis of report sent by Drug Controller Officer, Dausa contending that huge quantity of tablets containing narcotic substance had been purchased from M/s. J K Pharma, Dausa.

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In response to such allegation, the petitioner specifically pleaded that he had no business relations with said firm and he made no purchase much less purchase of drugs containing narcotic and psychotropic substances.

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The other issues raised by the respondent No.2 were also responded by the petitioner. But, the reply of the petitioner did not find favour of the respondent No.2 and the order dated 27.07.2022 came to be passed, whereby petitioner’s license stood canceled in exercise of powers under Rule 66 of the Drugs Rules, 1945.

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The petitioner preferred an appeal against above order, but the Appellate Authority also rejected petitioner’s appeal per-viam order dated 18.04.2023.

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The petitioner has, therefore, come before this Court invoking writ jurisdiction under Article 226/227 of the Constitution of India.

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Mr. Manish Vyas, learned counsel for the petitioner firstly submitted that the Appellate Authority has cursorily rejected the petitioner’s appeal and has not even dealt with the arguments advanced by the petitioner.

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Assailing, the order dated 27.07.2022 passed by the respondent No.2, learned counsel submitted that the same is based on presumptions. He argued that the discrepancies which were pointed out by the respondent No.2 in his show cause notice had been aptly responded/clarified by the petitioner and though valid reasons had been given, no heed has been paid and the order has been passed in mechanical manner.

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Learned counsel alternatively argued that even if no interference is made in the findings recorded by the respondent No.1, then also, the extreme penalty of cancellation of license could not to have been passed, particularly when the finding

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recorded in para/point No.5 of the order is absolutely unsustainable.

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Mr. Rajpurohit, learned Additional Advocate General supported the order passed by the authorities and submitted that the petitioner was found indulged in dealing with contraband substances without maintaining proper record and that the discrepancies and irregularities which were found at the time of inspection were serious enough and consequently, cancellation of license was the only option left.

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At the end, learned Additional Advocate General submitted that harsh orders are required in the cases like the present one, in order to curb the menace of use of drugs in the Western Rajasthan.

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Heard learned counsel for the parties.

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Even a simple look at the order dated 27.07.2022, passed by respondent No.2 shows that he has not objectively considered the reply to the show cause notice filed by the petitioner.

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True it is, that the excuse given by the petitioner in relation to absence of registered Pharmacist on the shop so also the plea that the purchase bills and register of scheduled drugs were lying in a locked drawer, the keys whereof were with the Pharmacist are lame excuses and cannot be accepted as claimed.

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According to this Court, if the finding recorded in para No.5 are sustained, it is sufficient to warrant cancellation of drug license. But, a careful reading of the finding recorded by the respondent No.2 in para No.5 shows that he has proceeded on the basis of conjectures and surmises. Strangely enough, he has put a

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reverse burden on the petitioner by observing that the petitioner has failed to lead evidence that he had not purchased the contraband substance from M/s. J K Pharma, Dausa.

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In the opinion of this Court, the petitioner or a noticee cannot be expected to produce a negative evidence or evidence of absence. It was rather incumbent upon the respondent No.2 to establish by bringing incriminating evidence that the substance covered by purchased/sales bills issued by M/s. J K Pharma, Dausa (which was sent by Drug Controller, Dausa vide its communication dated 25.05.2022) as a matter of fact were received by the petitioner and/or payment was made by him.

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On the contrary, respondent No.2 has gone to the extent of recording that if the petitioner did not purchase the substance from M/s. J K Pharma, Duasa and the said firm had produced fake bills in his name, the petitioner ought to have lodged an FIR against him.

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According to this Court, the finding recorded in para No.5 is absolutely unsustainable and contrary to settled canons of law relating to burden of proof.

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This Court is, therefore, persuaded to allow the writ petition, as the findings recorded by the respondent No.2 so also affirmed by the Appellate Authority are per-se perverse. The orders of the Appellate Authority is unreasoned and non-speaking.

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Accordingly, the writ petition is allowed; the order dated 27.07.2022, passed by the respondent No.2 so also the order of the Appellate Authority dated 18.04.2023 are hereby quashed and set aside.

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The matter is remitted back to the respondent No.2 to pass a reasoned order while considering the material available on record and the response/reply filed by the petitioner.

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In case, the respondent No.2 is not in a position to establish that the medicines which were alleged to have been sent to the petitioner as indicated in the communication dated 25.05.2022 sent by the Drug Controller, Dausa, then he will consider imposition of proportionate and appropriate penalty, having regard to the provisions of the Drugs and Cosmetics Act, 1940 and the Drugs Rules, 1945.

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The respondent No.2 shall pass order within a period of two months from today under intimation to the petitioner.

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The stay application also stands disposed of.

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(DINESH MEHTA),J

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6-akansha/-

M/S Amba Medical Store v. Appellant Authority and Joint Secretary

Case brief

What is this about?

What did the court decide?

M/S Amba Medical Store v. Appellant Authority and Joint Secretary

Case brief

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What did the court decide?

What the court decided

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