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2006 DIGILAW 322 (PAT)

Usv Limited v. State Of Bihar

2006-04-17

J.N.BHATT, S.N.HUSSAIN

body2006
Judgment 1. In this Letters Patent Appeal, by invocation of the provisions of Clause 10 of the Letters Patent of this High Court, the challenge is made against the interim order of the learned Single Judge dated 4.1.2006 in C.W.J.C. No. 13928 of 2005, whereby the appellant-original petitioners partly succeeded as the learned Single Judge has directed respondent-Drug Controller to release products of the petitioner-Company seized on earlier occasion to be transported outside the State of Bihar holding that the Drug Controller has no jurisdiction to ban marketing and sale of products outside the State of Bihar while appreciating the impugned order of the Drug Inspectortor dated 22.10.2005, whereby the ban, in exercise of powers under section 22 of the Drugs and Cosmetics Act, 1940 (the Act), came to be exercised on the basis that he had reason to believe that stock of drugs/ cosmetics in the possession of the Company, detailed in the order, had contravened the provision of Section 18 of the Drugs and Cosmetics Act, 1940 and directed by its order to the Company not to dispose of the said stocks for a period of twenty days from the date of the order, followed by the second order dated 22nd October, 2005, extending the earlier order for a further period of twenty days and being aggrieved by the order of the learned Single Judge, the writ petitioner-appellants have now come up before us in this Letters Patent Appeal. 2. We have been addressed by the learned counsel appearing for the parties and upon their consensus view we have taken up this matter for final hearing against the interlocutory order challenged in this Letters Patent Appeal. We have, also, considered and evaluated the documentary evidence produced in the writ petition, as well as, in the Letters Patent Appeal. We have, also given our anxious thoughts and consideration to the text and tenor, contents and colour of the impugned order at the interlocutory stage of the learned Single Judge, which is in challenge in this Letters Patent Appeal. The main petition is pending before the learned Single Judge and the challenge herein is reflected to an interlocutory order to the extent, confirming the ban order of the Drug Inspector upon dealing and selling of the products of the Company-original petitioner-appellant. 3. The main petition is pending before the learned Single Judge and the challenge herein is reflected to an interlocutory order to the extent, confirming the ban order of the Drug Inspector upon dealing and selling of the products of the Company-original petitioner-appellant. 3. Prima facie, we are of the opinion that three celebrated principles, governing the grant or refusal of interlocutory order, namely, (i) prima facie case; (ii) balance of convenience and (iii) irreparable loss or harm, have to be kept in mind. The finding at the interlocutory stage recorded by the learned Single Judge in the impugned order is not supportable by the legal and factual profile. We may, incidentally, just point out that the power of Drug Controller in terms of the provisions of Section 22 of the Act beyond the period of twenty days, could not be shown at this stage. There is no dispute about the fact that the authority or even the Drug Inspector concerned has not moved further than by passing the extension order of ban on the products of the appellant- Company. In other words, there is no dispute about the fact that before passing the first order or, for that purpose, the second impugned order extending the spell of twenty days in purported exercise of powers by the Drug Inspector pursuant to the provisions of Section 22(2) of the Act directing the Company not to deal and dispose of the products of the Company, no show cause notice has been issued, no opportunity has been given to the original petitioner-appel-lant-Company, no samples have been sent for opinion or analysis even to, prima facie, find out as to what is the status and nature of the product of the Company. 4. Learned counsel for the appellants has submitted that there is no provision for questioning the impugned order in appeal under the Act, which is not disputed, prima-facie, at this stage by the learned counsel appearing for the respondents. 5. 4. Learned counsel for the appellants has submitted that there is no provision for questioning the impugned order in appeal under the Act, which is not disputed, prima-facie, at this stage by the learned counsel appearing for the respondents. 5. After having taken into consideration the prima facie case, including the design and desideratum of the Act, the principles of judicial review including the principle of natural justice, the underlying provision and object of Section 22 of the Act and the aforesaid factual profile and considering co-existence of three aspects of interlocutory relief, prima facie, in favour of the appellant-original petitioner-company, we are of the clear opinion that the impugned order deserves to be quashed and set aside. However, we make it clear that our observations are only for the appreciation of the interlocutory order at the interlocutory stage and, also, that our this order will not, in any way, affect the further action to be taken by the Drug Inspector by giving show-cause notice or following due process of law in exercise of statutory power. 6. With the said observations, while quashing the interlocutory order, we allow this Letters Patent Appeal, but without any order as to cost.