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IN THE HIGH COURT OF GAUHATI
L.S. Jamir, J.
Dr. Pangjung Ao – Petitioner
Versus
State of Nagaland & Ors. – Respondents
W.P(C) No. 193 (K) of 2015
Decided On : 08-04-2016
Drugs and Cosmetics Act, 1940 - Sections 18B P/u, 27(d) 22(3), 28(A) , Rules, 1945 , 18B. 22 (3), 27(d) and 28(A) and 22 (cca) - Notice - Sale of cough syrup - Sales record - Sale or for distribution, stocking, exhibition for sale - Petitioner is challenging cause are on ground that issuing authority has no jurisdiction under Drugs and Cosmetics Act, 1940 - Heard counsel for petitioner - Heard special counsel appearing for State respondents - Learned counsel for petitioner submits petitioner is a license holder for Medicine Whole seller/Distributor and he has been in business for many years - While petitioner was doing business - He was served with a letter issued by respondent No. 3/Assistant Drugs Controller - Respondent again issued a cause notice stating that petitioner had committed offence Section 18B P/u, Section 27(d) and Section 22(3) of Drugs and Cosmetics Act, 1940 and Rules 1945 P/u Section 28(A) and Circular of State Drugs Control Authority, Government of directing petitioner to show cause as to action should not be taken against one week - Petitioner accordingly submitted reply cause notice to respondent No.3 stating that time for furnishing invoices and sale of cough syrup containing codeine along with cash memo - Extension of one months time was requested - After receipt of reply - Respondent Nos. 2 and 3 again issued an order granting five days time to furnish documents of purchase and sales record/register as per Rules 65 of Drugs and Cosmetics Rules, 1945 as required under Rule 65 (6) of issue of notice – Held, Court has considered submissions made by learned special counsel for State respondents respondent Nos. 2 and 3 are Controlling Authority and Drug Inspector is under control of 1 he Controlling Authority - Submissions of learned special counsel for State respondents would hold good had been an order appointing respondent Nos. 2 and 3 as Controlling Authority as prescribed under Rule 50 with qualifications as prescribed under Rule 50A of Rules - Miserably failed notification/order being issued by State Government appointing Controlling Authority - It is also to be Act of 1940 has penal consequences - Respondents while exercising powers under Act of 1940 has to be specifically notified allowing them to exercise such power by State Government - Appointment of Drugs Inspector will have to be done strictly in terms of Section 21 of Act of 1940 - It appears that there is no notification issued by State Government either appointing Drug Inspector or Controlling Authority under Act or Rules - Court is of considered respondent Nos. 2 and 3 have acted illegally while issuing impugned letter - Another important point of note is Section 32 of Act of 1940 clearly provides for taking cognizance of offence committed Chapter 4 of Act of 1940 - There is no provision in Act by closure of business of an offender has been prescribes - Impugned order by petitioner was intimated for closure/sealing of Firm/Shop is also and is held to be illegal - Cause notice and the order are held to be illegal and same are accordingly set aside and quashed - Petition is allowed
L.S. Jamir, J.
By this writ petition, the petitioner is challenging the letter dated 21.09.2015. show cause notice dated 28.09.2015 are the order dated 07.10.2015 on the ground that the issuing authority' has no jurisdiction under the Drugs and Cosmetics Act, 1940.
2. Heard Mr. A. Zho, learned counsel for the petitioner. Also heard Mr. Tongpok Pongener, learned special counsel appearing for the State respondents.
3. Mr. A. Zho. learned counsel for the petitioner submits that the petitioner is a license holder for Medicine Whole seller/Distributor and he has been in the business for many years. While the petitioner was doing business at Dimapur. he was served with a letter dated 21.09.2015 issued by the respondent No. 3/Assistant Drugs Controller, Dimapur. Nagaland asking the petitioner to submit detail invoice of purchase and sale of cough syrup containing codeine along with the company name/name of the product immediately from the period April. 2014 to September, 2015 on or before 25.09.2015. The petitioner could not submit the required information within the last date fixed as there was death of time and the record pertaining to more than one year could not be collected within a short period of four days. Therefore, the respondent Nos. 2 and 3 again issued a show cause notice dated 28.09.2015 stating that the petitioner had committed offence under Section 18B P/u, Section 27(d) and Section 22(3) of Drugs and Cosmetics Act, 1940 (hereinafter referred to as "the Act of 1940") and Rules 1945 P/u Section 28(A) and Circular dated 17.09.2012 of the State Drugs Control Authority, Government of Nagaland ami directing the petitioner to show cause as to why action should not be taken against him within one week. The petitioner accordingly submitted reply to the show cause notice on 05.10.2015 to the respondent No.3 stating that the time for furnishing invoices and sale of cough syrup containing codeine along with cash memo for the period April. 2014 to September, 2015 was too short and that an extension of one month's time was requested. After receipt of the reply dated 05.10.2015. the respondent Nos. 2 and 3 again issued an order dated 07.10.2015 granting five days time to furnish all the necessary' documents of purchase and sales record/register as per Rules 65 of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as “the Rules of 1945”) as required under Rule 65 (6) from the date of issue of the notice. It was further stated in the order that in the event of failure to comply with the directives, the petitioner's business would to be closed and legal action under appropriate sections of the Act of 1940 and Rules, 1945 shall be proceeded without any further notice. Therefore, having no other option, the petitioner has approached this Court.
4. M. A. Zho, learned counsel for the petitioner submits that the respondent Nos. 2 and 3 has no power or jurisdiction to issue the impugned show cause notice as well as the impugned order under the Act of 1940. It is submitted that under the Act of 1940. the power is vested with the Drugs Inspector and not with any other officials. He submits that in respect of Dimapur District, the present Inspector of Drugs and Cosmetics is one Shri Martemjen. It is also submitted that Rule 65 (6) of the Rules of 1945 have no relevance to the present case inasmuch as the said Rules relates to production of record/registers on demand being made by the Drugs Inspector duly appointed under the Act. Learned counsel for the petitioner also submits that Section 18B. 22 (3), 27(d) and 28(A) of the Act of 1940 has also no relevance in the present case inasmuch as Section 18B relates to maintenance of record and furnishing of information in terms of license issued by the authority'. Also, Section 22 (cca) of the Act of 1940 relates to the power of Drugs Inspector who are duly appointed under the Act to require any person to produce any record, register or other documents relating to the manu
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