Research › Browse › Judgment

Kerala High Court · body

1983 DIGILAW 128 (KER)

B. K. D. Rajeswari v. State of Kerala

1983-06-14

S.K.KADER

body1983
ORDER :- This O. P. is filed by Smt. B. K. D. Rajeswari said to be the Proprietress of Ancient Pharma engaged in manufacturing traditional medicines in Siddha system praying for issue of a writ of certiorari quashing Ext.P4 order dated 26-6-1981 issued by the Drugs Inspector (Ayurveda), the 2nd respondent herein, prohibiting the Depot Sales Manager of the petitioner at Jews Street, Ernakulam, from disposing of 4 items of medicines mentioned therein. The petitioner alleges that this order is one issued without jurisdiction as the 2nd respondent is not empowered to pass an order of this nature under the provisions of the Drugs and Cosmetics Act, 1940 (Act 23 of 1940) hereinafter referred to as 'the Act'. This order also is assailed on the ground that it does not give any reasons or show or indicate under what provision this order was issued. Another ground of attack against the order is that neither R.125 (2) nor R.161 (1) of the Rules framed under the Act, applies to the facts of this case. 2. It is alleged that the factory of the petitioner was established in the year 1968 at Madurai and she has been manufacturing mainly 4 medicines viz., Egnol, Famopolin-B, Anciema Capsules and Anciema Cream and in the year 1979, she started manufacturing Dystrep, Boraxine and Linferox also. All these medicines are manufactured by the petitioner on the strength of the licence issued to her under the Act and the Rules framed thereunder. According to the petitioner, these 4 medicines mentioned in Ext.P4 have been sold not only in the State of Tamil Nadu but also in the States of Kerala and Karnataka and Tamil Nadu Government has not so far imposed any restriction on manufacturing these medicines or told the petitioner that these medicines require approval of the Central Government under R.125 (2) of the Rules. 3. A counter-affidavit has been filed on behalf of the respondents wherein it has been contended that the 2nd respondent is a Drugs Inspector (Ayurveda) duly appointed under the provisions of the Act and it was in exercise of his powers under S.22 of the Act that he issued Ext.P4 which is valid and legal. It is also stated that Famopolin-B is a contraceptive coming within the scope of sub-rule (2) of R.125 of the. It is also stated that Famopolin-B is a contraceptive coming within the scope of sub-rule (2) of R.125 of the. Drugs and Cosmetic Rules (for short the Rules) framed under the Act and the petitioner has failed to get the approval of the Central Government as contemplated under the said Rules and as such it is all illegal. It is also stated in the counter-affidavit that the medicine Femopolin-B was labelled with a slogan "for Family Planning' with a red symbol also on the label. The further averment in the counter-affidavit is that the other 3 items of Drugs mentioned in Exhibit P4 were freezed on the ground that the 'true list' of all the ingredients together with the quantity of each ingredients was not displayed on the label of the said Drugs and the petitioner has thereby violated R.161 (1) of the Rules. 4. The important question for consideration is whether the 2nd respondent is empowered to issue an order like Ext.P4 and whether the petitioner has violated sub-rule (2) of R.125 and sub-rule (1) of R.161 of the Rules as alleged. 5. The learned advocate appearing for the petitioner submitted that there is no material on record before this Court to hold that the Drug Famopolin-B is a contraceptive coming within the sub-rule (2) of R.125 and that the petitioner has violated R.161 (1) of the Rules in respect of the remaining items of medicine. The only answer given by the counsel for the respondent to this argument is that the Drug Famapolin-B was labelled with a slogan "for Family Planning" with a red symbol and that the other three medicines mentioned in Ext.P4 were not having any label on them as enjoined under R.161 (1) of the Rules. There is nothing in Ext.P4 which is a document said to have been prepared by the 2nd respondent on the spot to show or indicate that he noticed a label as stated above on the Drug Famopolin-B or that there were no labels as contemplated under R.161 (1) on the remaining medicines. The statement made by the 2nd respondent on this point has been denied in the reply affidavit filed by the petitioner. The material facts on this point are therefore in dispute. The statement made by the 2nd respondent on this point has been denied in the reply affidavit filed by the petitioner. The material facts on this point are therefore in dispute. Second respondent has not seized or taken any sample or any of the drugs mentioned in Ext.P4; although he is empowered to seize the medicines and also take samples, under the provisions of the Act. Not only that the 2nd respondent has failed to exercise his power in this regard, he has also failed to prepare a mahazar or a list showing all the details of the medicines referred to in Ext.P4. The counsel for the 2nd respondent submitted that it was in exercise of the powers conferred on' the 2nd respondent under S.22 (c) of the Act that he issued Ext.P4 order. It is true, that under Cl.(c) he has been empowered to enter and search any place in which he has reason to believe that an offence under this chapter has been committed, and order is writing the person in possession of any drug in respect of which the offence has been or is being committed, not to dispose of any stock of such drugs or cosmetics for a specific period not exceeding 20 days, or, unless the alleged offence is such that the defect may be removed by the possessor of drugs or cosmetics, seize the stock of such drugs or cosmetics. Admittedly no search has been conducted by the 2nd respondent. A search has to be conducted in the presence of witnesses in accordance with the provisions of the Act. By virtue of sub-section (2) of S.22, provisions of Criminal P. C. applicable to searches and seizures under S.98 of the Cr. P. C. have been made applicable as far as possible to seizure and search made under Sec.22 (c). If really, the action taken by the 2nd respondent was under Cl.(c) of S.22 and it was in pursuance of the powers conferred therein that he issued Ext.P4, an order issued thereunder as stated earlier can be only for a specified period not exceeding twenty days. If really, the action taken by the 2nd respondent was under Cl.(c) of S.22 and it was in pursuance of the powers conferred therein that he issued Ext.P4, an order issued thereunder as stated earlier can be only for a specified period not exceeding twenty days. If Ext.P4 is an order issued under Sec.22 (c), as now contended on behalf of the 2nd respondent, it is invalid and illegal because the order therein, in flagrant violation of the direction under clause (c) of S.22, prohibits the disposal of the four drugs named therein until further orders. On this ground alone, Ext.P4 is liable to be quashed. As stated earlier, there is no legal material to substantiate the contention of the 2nd respondent that the Drug Famopolin-B was labelled with a slogan for Family Planning? with a red symbol and that this drug is a contraceptive coming within the purview of sub-rule (2) of R.125. So also there are no materials before this Court to hold that the 3 other drugs mentioned in Ext.P4 did not contain any label as contemplated under R.161 (1) of the Rules. In the light of these facts and circumstances, this petition has to be allowed. But this judgment will not stand in the way of the 2nd respondent taking appropriate action in accordance with laws against the petitioner. In the result, this O. P. is allowed; and Ext.P4 is hereby quashed. No costs. Petition allowed.