Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2010 Supreme(Mad) 423

Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
Dr. G.P. Hahnemann
Versus
The Drug Controller of Tamil Nadu, Teynampet, Chennai & Others
W.P.(MD) No.11971 of 2008 and M.P.(MD).Nos.1 of 2008 to 3 of 2008
Decided on: 01-02-2010

Advocates Appeared:
For the Petitioner:G.R. Swaminathan, Advocate.
For the Respondents: R1 & R2 - K.M. Vijayakumar, Spl. Govt. Pleader, R3 & R4 – Senthivelan, CGSC.

Ratios:
a. The right to carry on any trade, occupation or profession as guaranteed under Article 19(1)(g) of the Constitution of India is not absolute and reasonable restrictions can be placed upon the said right in the interest of general public.
b. Reasonableness of the restrictions imposed on the fundamental rights guaranteed under Art.19(1) of the Constitution of India are determined not in abstract terms but by considering the interest of the general public.
c. The limitation imposed on a person in enjoyment of the fundamental right under Art.19(6) of the Constitution of India should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public.
d. The test of reasonableness under Art.19(6) of the Constitution of India should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable in all cases.
e. The restriction which arbitrarily or excessively invades the right cannot be said to be reasonable.
f. The restrictions imposed on the exercise of fundamental right guaranteed under Art.19(1) of the Constitution of India should strike a proper balance between the freedom guaranteed and the social control permitted under Article 19(6).

Headnote:(A)Constitution of India-Art.19-Drugs and Cosmetics Act, 1940 (23 of 1940)-Sec.22-Fundamental right-Right to do business-Restriction-Public health-Search and seizure-Drugs-Medicinal preparations-Alcohol-Ethyl Alcohol-Petitioner was in possession of homeopath medicine containing ethyl alcohol packed in 500 ml pack-Rules prohibited the sale of such medicine in such quantity and prescribed that the pack for sale to the individual may be of a maximum of 30 ml and to the hospital 100 ml-When authorities conducted search and seizure, the petitioner sought to prohibit the authorities and contended that it was his fundamental right to carry on his trade without any interference-State contested it and stated that to prevent the sale of alcohol under the guise of medicine such a regulation was brought into force-Held, fundamental right to carry on any business or trade was not absolute but only subject to reasonable restriction-Rule was brought into force to protect the public health and thus valid-By virtue of Sec.22, the authorities are having right to conduct search and it cannot be said to be illegal-Writ petition was dismissed.
        (B)Constitution of India-Art.19-Fundamental right-Right to do business-Restriction-The right to carry on any trade, occupation or profession as guaranteed under Article 19(1)(g) of the Constitution of India is not absolute and reasonable restrictions can be placed upon the said right in the interest of general public.
        The Constitution of India mandates that the right to carry on any trade, occupation or profession guaranteed under Article 19(1)(g) of the Constitution is not absolute in terms. Reasonable restrictions can be placed upon the said right in the interest of general public. It is also significant to note that the rights under Article 19(1) are not absolute but qualified. The qualifications are stated in Clauses (2) to (6) of Article 19. The fundamental rights guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said qualifications. Para 11
        (C)Constitution of India-Art.19-Fundamental right-Right to do business-Restriction-Reasonableness-Standard-Reasonableness of the restrictions imposed on the fundamental rights guaranteed under Art.19(1) of the Constitution of India are determined not in abstract terms but by considering the interest of the general public.
        It is pertinent to note that clause (6) of Article 19 protects a law which imposes in the interest of general public a reasonable restriction on the exercise of the right conferred by sub-clause (g) of clause(1) of Art.19. In case of dispute to determine the reasonableness of the restriction imposed by the law, in determining that question, this Court cannot proceed on a general notion of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of view of the person or persons on whom the restrictions are imposed. The right conferred by sub-clause (g) is expressed in general language and if there had been no qualifying provision like clause (6), the right so conferred would have been an absolute one. To the person who has this right any restriction will be irksome and may well be regarded by him as unreasonable. But the question cannot be decided on that basis. What the Court has to do is to consider whether the restrictions imposed are reasonable in the interests of the general public. Para 12
        (D)Constitution of India-Art.19- Fundamental right-Right to do business-Restriction-Reasonableness-The limitation imposed on a person in enjoyment of the fundamental right under Art.19(6) of the Constitution of India should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public- The test of reasonableness under Art.19(6) of the Constitution of India should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable in all cases-The restriction which arbitrarily or excessively invades the right cannot be said to be reasonable - The restrictions imposed on the exercise of fundamental right guaranteed under Art.19(1) of the Constitution of India should strike a proper balance between the freedom guaranteed and the social control permitted under Article 19(6).
        The expression ’reasonable restriction’ signifies that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable in all cases. The restriction which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted under Article 19(6). Para 13

Judgment :

1. Theprayer in the Writ Petition is for a Writ of Mandamus to forbear the respondents and their subordinate officials from interfering with the right of the petitioner to keep homeopathic dilutions in 500 millilitres pound pack.

.2. According to the petitioner, he is a qualified Homeopathic Doctor and a member of the Central Council for Homeopathy. The said Council has been constituted by the Central Government. While so, the Central Government has amended Rule 106B of Drugs and Cosmetic Rules,1945 (hereinafter referred to as the Act) and in terms thereof, no homeopathic medicines containing more than 12% ethyl alcohol shall be packed and sold in packing or bottles more than 30 millilitres except that it may be sold to hospital / dispensaries in packing or bottles of not more than 100 millilitres. The said Rule was challenged by some of the Pharmaceuticals before the High Court of Allahabad and the High Court of Delhi and on 112. 2004, an order of interim stay was also granted initially by the High Court of Allahabad. It is also stated that in view of the amendment, the Drug Inspectors are conducting inspection and causing unnecessary harassment to Homeopathic Clinics and also Medical Shops. On inquiry, it was stated by the respondents that a legal notice was received from one Bhatia and Associates by the Drug Controller of Tamil Nadu and they have been instructed to carry out searches in all clinics and shops.

.3. A counter affidavit has been filed by the respondents, in which it is stated that as per Rule 106B of the Act, packing and selling of more than 30 ml and 100 ml bottles of Homeopathic medicines containing more than 12% ethyl Alcohol is an offence under the Act. It is further stated in the counter affidavit that more than 12% ethyl alcohol may be misused as an alternative for alcoholic drinks and in order to save human lives from misuse of alcohol the amendment came to be passed. It is also stated that the issue in question went up to the Supreme Court and the same was dismissed. The relevant portion rendered in the case of R.S.Bhargava Pharmacy Vs. Union of India, reported in 2008(2) Drugs Cases 9DC0 509, is usefully extracted below:-

.“...... We have no hesitation in holding that the restriction placed upon the use of containers for sale of homeopathic medicines with more than 12% ethyl alcohol content and the same is a reasonable restriction and is intended to prevent misuse of such preparations by those who purchase the same across the counters. The experience of such preparations having been misused in the past leading to loss of valuable human lives was, in our view, sufficient for the rule making authority to act in public interest and regulate the sale of such medicines by stipulating that they would not be sold in containers more than 30 ml capacity. The rule, it is noteworthy, does not require such small containers to be used in case the supply is meant for hospitals and dispensaries in which event the packing of bottles could be of 100 ml also. Having regard to the purpose sought to be achieved by the Act and the Rules framed thereunder, the restriction contained in Rule 106B qua homeopathic medicines with more than 12% ethyl alcohol content cannot be said to be either unreasonable or otherwise violative of the rights guaranteed to the petitioners under Article 19(1)(g) of the Constitution. Our answer to question No.3 is in the negative. In the result, these petitions fail and are hereby dismissed without any order as to costs.”

4. Thelearned counsel for the petitioner would also submit that since the petitioner has already purchased Homeopathic medicines in 500 ml pound packs in view of the interim stay initially granted by the Allahabad High Court and Delhi High Court, at this length of time, the respondents should not conduct inspection in the guise of amendment of the Rule. These packs could neither be destroyed nor returned back to the parties concerned. However, in spite of the abov

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2010 Supreme(Mad) 423

Madurai Bench of Madras High CourtTHE HONOURABLE MR. JUSTICE V. DHANAPALANDr. G.P. Hahnemann Versus The Drug Controller of Tamil Nadu, Teynampet, Chennai & OthersW.P.(MD) No.11971 of 2008 and M.P.(MD).Nos.1 of 2008 to 3 of 2008 Decided on: 01-02-2010

Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE V. DHANAPALAN
Dr. G.P. Hahnemann
Versus
The Drug Controller of Tamil Nadu, Teynampet, Chennai & Others
W.P.(MD) No.11971 of 2008 and M.P.(MD).Nos.1 of 2008 to 3 of 2008
Decided on: 01-02-2010