Back
High Court Of Madhya Pradesh
Shiv Dayal and S. M. N. Raina, JJ.
AGARWAL MEDICAL AND GENERAL STORES - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 129 Of 1973
Decided On : 03/14/1973
(2) Drugs and Cosmetics Act, 1940 - Ss. 25, 23 (3) and 18-A - third portion of sample not supplied to the dealer concerned by the Drugs Inspector some other chemist sent the third portion - proceedings illegal - provision should be strictly complied with - otherwise licence could not be cancelled.
Section 23 (3) lays down the procedure for obtaining a sample for the purpose of test of analysis. A part of the sample has to be supplied to the person whose name, address and other particulars are disclosed under section 18-A. As required by sub-section (4) (iii) of this section, read with section 18-A, it was the duty of the Drugs Inspector to supply to the petitioner the third portion of the sample.
Instead of the Drugs Inspector sending the third portion to the dealer, some other chemist sent it to his address. Thus there was no compliance with the requirements of the law. [Para 21]
(3) Drugs and Cosmetics Rules, 1945 - R. 66 (1) - cancellation of licence - one ground shown in show - cause notice - cancellation on some other ground - violates rules of natural justice - discretion how to be exercised.
The show cause notice merely required to produce the documents of purchase of the drug in question. The licence could not be cancelled on any other ground.
Under rule, 66, the Collector has a discretion, which is indicative of an extensive power confided to him. Discretion, therefore, has to be exercised according to the rules of reason and justice not according to private opinion. It has not to be arbitrary, vague and fanciful. It has to be legal and regular. It has to be according to law, and not humor. Discretion must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself [Para 23]
(4) Administrative order - rules of natural justice are to be observed.
The rule that a party to whose prejudice the order is intended to be passed is entitled to a hearing applied alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. AIR 1973 SC 205 & AIR 1967 SC 1260 relied on. [Para 22]
(5) Constitution of India - Art. 226 - law silent on a point-no remedy provided in law -High Court may issue appropriate writ or direction.
It is a celebrated rule, which is firmly established, that where jurisdiction is conferred, by necessary implication, it carries the power of doing of such acts or employing such means as are necessary to its execution. 1970 JLJ 142 relied on.
It is well settled that High Courts can also issue directions, orders or writs other than prerogative writs. The jurisdiction conferred under Article 226 of the Constitution is wider than the jurisdiction in England in regard to the issuance of prerogative writs. AIR 1966 SC 81 relied on.
( 1 ) THIS is a petition under Article 226 of the Constitution for an order to quash cancellation of the petitioner's four licences under the Drugs and Cosmetics Act, 1940, and for restoration of the petitioner's stock seized by the Collector.
( 2 ) THE petitioner held four licences in Forms 21, 21-B, 20 and 20-B (that is, to sell, stock or exhibit for sale, or distribute by retail drugs specified in Schedules C and c (1), and also drugs other than those specified in Schedules C and C (1)respectively) under Rules 61 (1) and 61 (2) of the Drugs and Cosmetics Rules, 1945, (hereinafter called the Rules) framed under the Drugs and Cosmetics Act, 1940, (hereinafter called the Act ). These licences were subject to the conditions enumerated in them.
( 3 ) SECTION 18 of the Act prohibits sale, etc. , of any drug or cosmetic, except under and in accordance with the conditions of a licence issued for such purpose by the licensing authority. Under Rule 59 of the said Rules, the Collector is the licensing authority.
( 4 ) THE licensing authority is empowered under Rule 66 (1) of the Rules to cancel a licence, after giving the licensee an opportunity to show cause why such an order be not passed. The licensing authority has power to cancel a licence, either wholly or in respect of some of the substances to which it relates, if the licensee does not comply with any of the conditions of the licence or the provisions of the Act or the rules. Under Rule 66 (2), a licensee, whose licence has been cancelled, may appeal to the State Government.
( 5 ) IT came to the notice of the Drugs Inspector that the petitioner had sold the drug, known as 'decadron' to M/s. Jabalpur Chemists, Jabalpur, and also to M/s. Das Chemists, Jabalpur, the vials bearing batch No, IX-9306. These Chemists produced cash memos No. 3172 dated April 9, 1972, and No. 004663 dated April 11, 1972, respectively in respect of these sales of the drug. The Drugs Inspector directed the petitioner to produce immediately the purchase invoice of the drug bearing batch No. IX-9306. The batch number was mentioned in the cash memos issued by the petitioner as required by Rule 65 (5) (1) (c) of the Rules.
( 6 ) THE said notice issued by the Drugs Inspector, dated April 12, 1972, further required the petitioner to surrender the entire stock of decadron injections, batch no. IX-9306 immediately. This was followed by another memo dated April 17, 1972, issued by the Drugs Inspector repeating the demand and further demanding the production of the cash memo books. The petitioner did not produce either the cash memo under which he had purchased the drug of that batch number, nor did he produce the cash memo books. When both these notices were not complied with, the Collector issued a show cause notice on April 24, 1972, In that notice, he stated that the Drugs Inspector had issued to the petitioner memoranda dated april 12, 1972, and April 17, 1972, whereby the petitioner was asked to produce the entire stock of decadron, along with cash memos, invoices and cash books, but the same had not been produced, which amounted to non-compliance with Rule 65 (6) of the Rules, By this notice, the petitioner was asked to show cause within three days of the receipt of the notice, why its licence be not cancelled under Rule 66.
( 7 ) ON April 28, 1972, the petitioner wrote to the Collector that earlier on the same day "necessary documents required by the Drugs Inspector, Jabalpur" had been produced. In the letter addressed to the Drugs Inspector, the petitioner said as follows:--
"1. As regards the stock of Decadron Inj. of Batch No. IX-9306 we hold no stock of that Batch No. and therefore the question of surrender does not arise. XXX XXX XXX 3. As regards the purchase invoice of the above Batch No. it is submitted that there is no invoice mentioning separately this Batch No. but there is every possibility that the Inj. of this Batch No, might have been packed by mistake by the Company with the I
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
