JUDGMENT :

Shaji P. Chaly, J.

[W.A. No. 495/2021 & W. P. © No.6674 of 2021]

The captioned appeal and the writ petition are materially connected in respect of two orders passed by the Director of Health Services, Thiruvananthapuram dated 11.01.2018 and 12.01.2018, whereby it is directed that in a hospital pharmacy, in the absence of a Pharmacist or when the Pharmacist leaves the pharmacy, the Medical Officer may arrange dispensing of drugs under his/her direct supervision. Apparently, the said direction is issued taking into consideration Section 42 of the Pharmacy Act, 1948 ('Act, 1948' for brevity).

2. The basic contention advanced by the writ petitioners is that in the aforesaid Government Orders, there is no empowerment under Section 42 of the Act, 1948 to arrange dispensing of medicine by the doctors, and therefore, the said orders are bad being arbitrary and illegal.

3. The learned single Judge, after taking into consideration the facts and figures, held that authorising dispensation of medicines under the direct and personal supervision of registered pharmacists has been removed by way of amendment to the Act, 1948, but that does not mean that the word 'dispense' contained in Section 42 of the Act, 1948 is to be construed so narrowly to mean that either the Pharmacist or the Medical Practitioner should deliver the drugs/medicines personally to the patients or to the agents of the patients. It was also held that Section 42 of Act, 1948 being only an ongoing provision intended for the safety of patients, having regard to the various developments took place in the field of medicines during the last several decades, it cannot be said that dispensing of medicines which now come in blister packs under the direct supervision of the Medical Officer would contravene Section 42 of the Act, 1948 in any manner.

4. The paramount contention advanced in the appeal and the writ petition are basically and substantially one and the same that the Government Orders specified above are in violation of Section 42 of the Act, 1948. It is also contended that effectively the direction permits the Medical Officer to delegate the authority given to him/her to dispense medicine in terms of the proviso to Section 42 of the Act, 1948 to any person, whether qualified or not; that the direction is in straight conflict with the provisions contained under Section 42 of the Act, 1948; that Section 42 carves out an exception in favour of the Medical Practitioner in the matter of dispensing medicines, considering the qualification of the Medical Practitioner; and that the doctrine of updating construction is to be applied while interpreting its provisions, omitted to take into consideration. It is further contended that the word 'dispense' was defined as per the Pharmacy Practice Regulations, 2015 ('Regulations, 2015' for brevity) and applying the said definition, it can be seen that the Government Orders in question, insofar as they permit Medical Practitioners to arrange dispensing of drugs under his/her supervision, are illegal.

5. It is also contended that the Act, 1948 was brought into force on and with effect from 01.09.1976 and it has undergone amendment even up to the year 2015 and therefore, the principles of updating construction would not apply in the instant case; that the action of the Director of Health Services is nothing but an absolute violation of Section 42 of Act, 1948; that the Regulations, 2015 contained various provisions which would indicate various duties and functions to be performed by the registered pharmacist while dispensing medicines and therefore, delegating the authority given to the Medical Practitioners as per the proviso to Section 42 of Act, 1948 would not empower the Medical Practitioner to arrange dispensing of medicines through other persons. Therefore, the sum and substance of the contention advanced by the writ petitioners is that the impugned Government Orders cannot be sustained under law and facts.

6. In the Public Inter