Back
2024 Supreme(Bom) 323
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
FIRDOSH P. POONIWALLA, G.S. KULKARNI, JJ.
M/s. Apna Chemist - Petitioner
Versus
Assistant Commissioner (Zone-3) & Anr. - Respondents
Writ Petition No. 305 Of 2024 With Writ Petition No. 320 Of 2024 With Writ Petition No. 328 Of 2024
Decided On : 10-01-2024
For the Petitioners: Mr. Atal Bihari Dubey a/w. Mr. Arvind Tiwari, Mr. Rahul Mishra, Mr. Rushikesh S. Kekane.
For the State : Mr. A.I. Patel, Addl. G.P. a/w. Ms. M.S. Bane, AGP
IMPORTANT POINT
The main legal point established in the judgment is that the remedy of an appeal provided by law should be an effective remedy in letter and spirit, and the appellate authority should be alive to the consequences of the orders subject matter of the appeal.
Headnote:
Drugs and Cosmetics Act - Suspension of Medical Store Licenses - Drugs and Cosmetics Act, 1940, Drugs and Cosmetics Rules, 1945
Fact of the Case:
The petitioners, who are in the business of sale of medicines, had their medical store licenses suspended by respondent no. 1. They had filed appeals with the Appellate Authority/State Government, seeking interim relief and a decision on the appeals before the period of suspension approached.
Finding of the Court:
The court found that the petitioners had availed of the appellate remedy provided under the Drugs and Cosmetics Rules, 1945 and had filed appeals well in advance with the intention that the appeals are decided prior to the period of suspension. The court held that the remedy of an appeal should not be rendered meaningless and that the petitioners should be granted protection till the appellate authority takes up the appeal and decides the same.
Issues: The issues involved the suspension of medical store licenses, the delay in hearing the appeals by the Appellate Authority, and the petitioners' right to carry on trade, occupation, or business.
Ratio Decidendi: The court held that the remedy of an appeal provided by law should be an effective remedy in letter and spirit. It emphasized that the appellate authority should be alive to the consequences of the orders subject matter of the appeal and should not overlook its significant obligation in relation to the powers it wields in adjudication of the statutory appeals.
Final Decision: The court directed the appellate authority to hear the petitioners' pending appeals and/or stay applications expeditiously, stay the orders suspending the petitioners' licenses till the appeals/stay applications are decided, and kept all contentions of the parties on the pending appeals expressly open.
JUDGMENT :
(G.S. Kulkarni, J.) :
1. These three petitions raise common issue of law and facts and can be conveniently disposed of by this common order.
2. The petitioners are in the business of sale of medicines. They are running medical stores for which they have obtained licences under the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945. The case of the petitioners is that an inspection of their medical stores was undertaken by respondent no. 1, in pursuance of which the petitioners have been issued orders whereby the petitioners licences to conduct business in medicines, stand suspended for a particular period. Illustratively, in the first petition (i.e. Writ Petition No. 305 of 2024), licence has been suspended for the period from 8 January, 2024 to 17 January, 2024 by an order dated 3 October, 2023.
3. It is a common contention as urged on behalf of the petitioners that the petitioners have already availed of an appellate remedy as available to them under Rule 66(2) of the Drugs and Cosmetics Rules, 1945 by preferring an appeal before the State Government. A copy of the appeal is also annexed to the petitions. Learned counsel for the petitioners in Writ Petition No. 305 of 2024 has drawn our attention to the order dated 3 October 2023 suspending the petitioners license and to a copy of the appeal annexed to the petition, which was filed on 31 October, 2023. Similarly, in the companion matters, appeals have been filed within the prescribed limitation and in fact well in advance, so that the adjudication on the appeals takes place before the period of suspension approaches.
4. Today the grievance of the petitioners before the Court, is to the effect that the Appellate Authority is neither listing the proceedings to decide the appeals nor is passing appropriate interim orders on the prayers of stay on the orders of suspension of their licence, passed by respondent no. 1. It is their contention that this has created an anomalous situation of a likely fait accompli, inasmuch as despite a statutory remedy of an appeal being provided by law, to which recourse has been taken by the petitioners, such remedy is being rendered meaningless for the reason that the appellate authority is not hearing the petitioners on the appeals and/or on the prayer for interim reliefs. It is submitted that the consequence being that the petitioners would be required to suffer the orders passed by respondent no. 1 suspending their license for the period in question, which are challenged by them in the appeal. Learned counsel for the petitioners would submit that this situation would cause irrepabale prejudice to the petitioners in the event the petitioners are to ultimately succeed in their appeal.
5. On the other hand, Mr. Patel, learned AGP has submitted that the date for hearing of the appeal in so far as the petitioner in Writ Petition No. 305 of 2024 is concerned, is fixed on 11 January, 2024. This is in fact a date at the midst of the suspension period and which would bring about a situation that the petitioner would be required to suffer suspension, in the event the impugned order is not stayed. Insofar as the other petitioners are concerned, the suspension would take effect from 11 January, 2024.
6. Having heard learned Counsel for the parties and having perused the record, in the facts and circumstances of the case, we find much substance in the contentions as urged on behalf of the petitioners. The petitioners in the present case are aggrieved by the orders passed by respondent no. 1 suspending their licence as noted above. They have taken recourse to a statutory remedy as available to them under the rules by filing their respective appeals with the Appellate Authority/State Government. Such appeals are in fact filed well in advance with an intention that the appeals are decided prior to the period of suspension of their licence as ordered by respondent no. 1. The intention of the petitioners being that in the facts and c
