IMPORTANT POINTS :
• The powers of entry and search provided to any authorised officer of the State Government is largely dependent upon the provisions of any Rules made in this behalf, especially due to the employment of “Subject to” provided there under.• If the Parliament did not intend the procedure under the Rules to be mandatory, the qualifying phraseology 'subject to' need not have been employed in Section 8.

This writ petition is filed by the petitioner seeking the following reliefs:

“(i) Declare that the search and seizure of the drugs detailed in the Table inserted in paragraph 4 of the writ petition, manufactured for sale under Ext.P1 licence, is ultra vires Section 8 of the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954 read with Rule 3 of the Drugs and Magical Remedies (Objectionable Advertisements)Rules, 1955;

(ii) Issue a writ in the nature of certiorari or such other writ order or direction calling for the records leading to Exhibits P2 to P5 'mahassers' and eight like other 'mahassers' prepared consequent to the search and seizure detailed in the Table inserted in paragraph 4 of the writ petition; and

(iii) Issue a writ in the nature of mandamus or such other writ order or direction commanding the 2nd respondent to issue appropriate directions to the officers under him to forthwith return to the petitioner the entire stock of drugs seized from the several distributors detailed in the Table inserted in paragraph 4 of the writ petition.”

2. Brief material facts for the disposal of the writ petition are as follows:

3. Petitioner is the proprietrix of a unit engaged in the manufacture of Ayurvedic patent and proprietary medicines on the strength of Ext.P1 licence issued under the provisions of the Drugs and Cosmetics Act, 1940. While continuing with the business, on 10.05.2012 and 11.05.2012, simultaneous search and seizure operations were carried out at the premises of several wholesale distributors spread across the length and breadth of the State, and the entire stock of the petitioner's drugs licensed under Ext.P1 were seized and removed by inspectors acting under orders from the 2nd respondent. The search and seizure have been conducted in exercise of the powers conferred under the provisions of the Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954, on the allegation that the boxes enclosing the bottle containing the oil, the labels affixed to such bottles and enclosed literature accompanying the boxes constitute 'misleading advertisements' relating to the drug, which is an offence under Sec.4 of the Act and punishable under Sec.7 thereof.

4. According to the petitioner, the entire exercise leading to and culminating the seizure of the entire stock of the drugs has been done in contravention of every mandatory provision of the Act and the Rules framed thereunder. It is also the case of the petitioner that, there is no allegation that the petitioner has contravened any of the provisions of the Drugs Act, requiring invocation of the proceedings for suspension or cancellation of the licence issued to her. Further, it is contended, the licence has not been suspended or cancelled, and therefore, any threat or intimidation of the distributors or stockists of the petitioner's drugs and any interference in their right to stock and sell the drugs would be an indirect assault on the right of the petitioner's right to manufacture for sale the drugs enumerated in Ext.P1 licence.

5. That apart, it is contended that, the entire exercise leading to the search, seizure and removal of the drugs under the impugned mahazars has been done in violation of the mandatory provisions contained in Sec.8 of the Act, read with Rule 3 of the Drugs and Magical Remedies (Objectionable Advertisements)Rules, 1955 (for short, 'the Rules, 1955'). To put it short, the contention advanced by the petitioner is that, contrary to the mandate of Rule 3, the search and seizure was made and in the absence of a 'scrutiny' of the drug conducted under Rule 3, the entry, search and seizure under Sec.8 of the Act has been vitiated, and the respondents are duty bound to return the seized articles as expeditiously as possible.

6. Respondents 1 and 2 have filed a very detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is stated that, the relevant provis