IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 11.04.2022

CORAM:

THE HON'BLE MR.JUSTICE M.GOVINDARAJ

WP NOS.34099 OF 2012 AND 45 OF 2013

AND

CONNECTED MISCELLANEOUS PETITIONS

V.Dharmalingam

...

Petitioner

in both WPs'

Vs.

1.Union of India

Rep. by the Secretary to Government

Health and Family Welfare Department

Indian Red Cross Society Annex Building,

1, Red Cross Road,

New Delhi - 110 001.

2.The State of Tamil Nadu

Rep. by the Secretary to Government

Health and Family Welfare Department

Fort St. George, Chennai - 600 009.

3.The Director of Drugs Control

DMS Compound, Chennai - 600 006.

4.The State of Tamil Nadu

Rep. by R.Elango, M.Pharm

Drug Inspector, Maiyaladuthurai Range,

Office of Drug Inspector

Room No.13, Salam Mansion,

27-B, Town Extn.,

Maiyaladuthurai - 609 001.

... Respondents 1 to 4

in both WPs'

PRAYER IN WP NO.34099 / 2012: Writ Petition filed under Article

226 of the Constitution of India praying for issuance of Writ of

Mandamus, forbearing the 4th respondent from prosecuting

C.C.No.14 of 2012 on the file of Chief Judicial Magistrate,

Nagapattinam.

PRAYER IN WP NO.45 / 2013: Writ Petition filed under Article 226

of the Constitution of India praying for issuance of Writ of

Certiorari, to call for the records relating to the impugned

proceedings of the 3rd respondent in R.Dis.No.0343/IW2/2012(242)

dated 28.02.2012, quash the same.

https://hcservices.ecourts.gov.in/hcservices/

For Petitioner

:

Mr.V.Selvaraj

(in both WPs')

For Respondents

:

Mr.M.Rajendran

2 - 4 (in both WPs')

Additional Government Pleader

R1

: No Appearance

COMMON ORDER

The petitioner is a Registered indigenous Medical

Practitioner and Trustee of Dharma Medical Research and

Charitable Trust. The Trust is administering the Dharma Ayurveda

Medical College and Hospital and Velumailu Siddha Medical

College and Hospital at Sriperumbudur. The Tamil monthly

Magazine by name and style "Health Choice" was published for the

purpose of propagation of Indian Medicine. "Health Choice" is

registered under the Press and Registration of Books Act. The

petitioner is the Editor of that Magazine. In a monthly Magazine

issue of September 2011, there were publications regarding

certain medicines viz., Livoral capsule, Memoral syrup, Vasaka

Cough Syrup, Painil Oil, Livoral Syrup and Kasa Kasayam,

manufactured by Dharma Pharmacy Private Limited. Pursuant to

this, the fourth respondent issued a show cause notice dated

09.11.2011, as to why action should not be taken against the

petitioner under Section 3(d) read with Sl.No.19 of the Schedule

of the Drugs and Magic Remedies (Objectionable Advertisements)

Act, 1954 punishable under Section 7(a) of the said Act. The

petitioner sent a reply on 24.11.2011. The fourth respondent

filed a private complaint invoking powers under the Drugs and

Magic Remedies (Objectionable Advertisements) Act, 1954, on the

file of Chief Judicial Magistrate, Nagapattinam. The case was

taken on file as C.C.No.14 of 2012 and the petitioner was

summoned to appear before the Court. At this juncture, the third

respondent passed the impugned order dated 28.02.2012, according

sanction to the fourth respondent to prosecute the petitioner

for the contravention of Section 3(d) read with Serial No.19 of

the Schedule of Drugs and Magic Remedies (Objectionable

Advertisement) Act, 1954. Questioning the same, the petitioner

is before this Court.

2.According to the petitioner, the action of the third

and fourth respondents is without jurisdiction. The fourth

respondent is a Drug Inspector appointed under Section 21 of the

Drugs and Cosmetics Act, 1940 (in short "the Act"). Chapter IV

of the Drugs and Cosmetics Act deals with manufacture, sale and

distribution of Drugs and Cosmetics pertaining to Allopathy

medicines. For the offences of misbranded drugs, adulter