IMPORTANT POINT
The court established that the State Government must create rules for the qualifications and duties of Inspectors under the Pharmacy Act 1948, as their roles are distinct from those under the Drugs and Cosmetics Act.

JUDGMENT :

Devashis Baruah, J.

Heard Ms. D Borgohain, the learned counsel appearing on behalf of the petitioners. Mr. DP Borah, the learned counsel appears on behalf of the Health & Family Welfare Department, Govt. of Assam.

2. The petitioner No.1 is the State Pharmacy Council constituted in terms with Section 19 of the Pharmacy Act 1948, (hereinafter referred to as the ‘Act of 1948’). The grievance of the petitioners herein is that the respondent State Government is not granting the sanction to the petitioner No.1 to appoint the Inspectors under Section 26A of the Act of 1948. The petitioners have assailed the inaction on the part of the State Government in not framing the Rules in terms with Section 46(2)(ff) of the Act of 1948. The petitioners have also assailed the order dated 28.07.2021, whereby the Principal Secretary to the Government of Assam, Health and Family Welfare Department has rejected the proposal of the petitioners to appoint Inspectors under Section 26A of the Pharmacy Act of 1948.

3. In order to deal with the grievance of the petitioners this Court finds it relevant to take note of the Act of 1948. The said Act of 1948 was enacted to make better provisions for the regulations of the profession and practice of pharmacy and for that purpose to constitute Pharmacy Councils.

4. Chapter II of the Act of 1948 deals with the Pharmacy Council of India. Chapter III deals with the State Pharmacy Council. Section 19 of the Act of 1948 stipulates how the State Pharmacy Council would be constituted and its composition. It is an admitted fact that the petitioner No.1 is the State Pharmacy Council. In the said Chapter III, vide an amendment i.e. the Amending Act 70 of 1976 of Section 26A was inserted which relates to Inspection. The said section is reproduced hereinunder:-

“26A. Inspection – (1) A State Council may, with the previous sanction of the State Government, appoint Inspectors having the prescribed qualifications for the purpose of Chapters III, IV and V of this Act.

(2) An Inspector may-

(a) inspect any premises where drugs are compounded or dispenses and submit a written report to the Registrar;

(b) enquire whether a person who is engaged in compounding or dispensing of drugs is a registered pharmacist;

(c) investigate any complaint made in writing in respect of any contravention of this Act and report to the Registrar;

(d) institute prosecution under the order of the Executive Committee of the State Council;

(e) exercise such other powers as may be necessary for carrying out the purpose of Chapters III, IV and V of this Act or any rules made thereunder.

(3) Any person willfully obstructing an Inspector in the exercise of the powers conferred on him by or under this Act or any rules made thereunder shall be [liable to penalty which may extend to one lakh rupees]

(4) Every Inspector shall be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code (45 of 1860).]”

5. From a perusal of the above quoted section, it would be seen that Inspectors are to be appointed by the State Council with the previous sanction of the State Government. The said Inspectors are required to have a prescribed qualification for the purpose of Chapter III, IV and V of the Act of 1948. The powers and functions of the Inspectors are provided in the various clauses of Sub-Section(2) of Section 26A of the Act of 1948.

6. At this stage it may be relevant to mention that Chapter IV relates to registration of pharmacist. Chapter V relates to miscellaneous, which includes, the power to impose penalty for falsely claiming to be registered pharmacist i.e. Section 41, punishment of persons, who are dispensing any medicine on prescription of a medical practitioner without being registered i.e., Section 42 etc. In the said Chapter V, Section 46 empowers the State Government, by notification in the Official Gazette to make Rules to carry out the purpose of chapter III, IV and V. The various aspect in respect to which the Rules can be ma