Registered medical practitioners must obtain a license to stock and sell certain drugs under the Drugs and Cosmetics Act.

1. Petitioner a vaid by profession duly registered under S. 16 of the J. and K. Ayurvedic and Unani Practitioners Act (XXVI of 1959), for short hereinafter called the Act of 1959 under No. 125 on 8-2-1972 at Jammu. He is aggrieved by the action of respondent No. 2 in seizing certain drugs on November 15, 1977, from his premises at Gole Market Gandhi Nagar, Jammu. Petitioner, therefore, prays in this writ petition under Art. 226 of Constitution of India . read with S.103 of the State Constitution for the quashment of seizure with a further prayer for the issuance of a writ of prohibition against respondent No. 1 and its officers restraining them from any such action under the provisions of Drugs and Cosmetics Act and the Rules framed thereunder.

2. The petitioner is resisted by the respondents though they have not filed their counter, however, learned Additional Advocate - General, placed reliance on the objections filed on 28-3-1978 and the provisions of the Act and the Rules made thereunder to support the action taken by respondent No. 2 and to deny the relief prayed by the petitioner for a writ of prohibition.

3. Learned counsel for the petitioner by referring to the various provisions of the Act and the Rules submitted that a medical practitioner registered under the J. and K. Ayurvedic and Unani Practitioners Act , 1959 (hereinafter called the A and U Act 1959) is not required to hold a licence under the Act for the sale of Alopathic Medicines and hence the seizure under the circumstances by respondent No. 2 was unauthorised and bad in law. It is further submitted that the petitioner being duly registered under A and U Act, 1959 and his name finds place in Part I of the Register the respondents be also restrained from seizing any Drugs from the possession of the petitioner.

4. In reply to the arguments advanced learned counsel for the respondents strongly resisting the petition urged that the petitioner even though registered under the A and U Act, 1959 cannot be permitted to stock, sell or distribute any Alopathic Drugs or Medicines in contravention of the provisions of the Act unless he holds a valid licence in accordance with Act and the Rules framed thereunder. On merits it is, therefore, submitted that the Inspector rightly seized the medicines in exercise of powers under S. 22 of the Drugs and Cosmetics Act , 1940, herein called as the Act from the possession of the petitioner on November 15, 1977. The same can neither be said to be without jurisdiction nor the petitioner under the circumstances is entitled to get a writ of prohibition or any other writ restraining the respondents from visiting, inspecting or seizing the Drugs or Medicines from the premises of the petitioner.

5. In order to appreciate the arguments advanced it will be necessary to examine relevant provisions of the Act and the Rules framed under the Act and also of the A and U Act, 1959.
'The preamble of the Drugs Act is to regulate the import, manufacture, distribution and sale of Drugs and Cosmetics.'
'S.3 of the Act gives the definitions Cl. (a) defines "Ayurvedic (including Siddha) or Unani drug."
Clause (b) defines the "drugs" includes - as follows: -
"(1) All medicines for internal or external use of human beings or animals and all substances intended to be used for or (in the diagnosis, treatment) mitigation or prevention of disease in human beings or animals," and
(ii) Such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of vermin or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification