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2010 DIGILAW 1548 (RAJ)

J. S. Distributors v. State of Rajasthan

2010-08-26

GOVIND MATHUR

body2010
JUDGMENT 1. - The petitioner, a partnership firm engaged in the business of Cosmetics dealing in pharmaceuticals drugs is having a licence as per the provisions of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as 'the Act of 1940'). One Shri Jagdish Prasad was a competent person appointed for the firm under the Act of 1940, however, by acting upon an application dated 3.7.2009, the licencing authority under an order dated 3.7.2009 appointed Shri Tarun Agarwal son of Shri Jagdish Prasad as a competent person of the firm. Prior to the change of competent person, an FIR was registered at Police Station, Jawahar Nagar, Sriganganagar on 1.7.2009 alleging commission of offences by Shri Jagdish Prasad as per the provisions of Section 8/11 and 22 of the Narcotics Drugs and Psychotropic Substances Act (for short 'NDPS Act'). The allegation against above named Jagdish Prasad was that occupied various drugs falling under the category of Narcotics Drugs and Psychotropic Substances without having storage licence and a valid bill. 2. On 2.7.2009, one Shri Ashok Kumar Mittal, Drugs Control Officer, Sriganganagar made inspection of the premises of the petitioner Firm and gave a finding that no suspected or banded drugs spoted in premises of the firm. It is relevant to note that the drugs, as a matter of fact, were seized by the police from the residence of Jagdish Prasad, son of whom is Tarun Agarwal, the competent person of the firm appointed on 3.7.2009. The Licencing Authority-cum-Assistant Drugs Controller, Sriganganagar by an order dated 17.7.2009 while exercising the powers under Regulation 66(1) of the Regulations of 1945 framed under the Act of 1940 cancelled the drugs licence of the petitioner firm. 3. An appeal challenging the order dated 17.7.2009 too came to be rejected by the appellate authority under an order dated 16.3.2010. Hence, this petition for writ is preferred to challenge the orders dated 16.3.2010 and 17.7.2009. 4. The contention of the learned counsel for the petitioner is that the competent officer of the respondents made an inspection on 2.7.2009 and gave a definite finding that no suspected or banded drugs was spoted, as such, there was no reason for cancellation of the licence granted to the petitioner Firm. 4. The contention of the learned counsel for the petitioner is that the competent officer of the respondents made an inspection on 2.7.2009 and gave a definite finding that no suspected or banded drugs was spoted, as such, there was no reason for cancellation of the licence granted to the petitioner Firm. It is asserted that as per Regulation 66 of the Regulations of 1945, on the ground of failure to comply with the conditions of the licence or any provision of the Act of 1940 or the Rules framed thereunder, a licence could have been cancelled but, in the instant case no such violation was made by the petitioner Firm. Learned counsel quite vehemently urged that the allegations on which the licencing authority relied upon while cancelling the licence are against Jagdish Prasad who is just a partners of the firm and not the firm in himself and the petitioner Firm would have not been penalised for any act or omission made by its partner. 5. In reply, the case of the respondents is that as a matter of fact, Jagdish Prasad committed offence under Sections 8, 21 and 22 of the NDPS Act by keeping huge quantity of contra-bands at his home and therefore, he was arrested on 1.7.2010. After his arrest an application was given on 3.7.2009 to change the competent person of the firm and the licencing authority on the same day changed the competent person. It is also pointed out that the inspection made on 2.7.2009 also appears to be a managed one, just to get escape from the appropriate proceedings as per the provisions of the Act of 1940 and the Regulations made thereunder. Learned counsel for the respondents during the course of arguments urged that Shri Tarun Agarwal is none else then son of Shri Jagdish Prasad and both are residing in the same premises. This fact has not been denied by the counsel for the petitioner. Learned counsel for the respondents, with the factual backgrounds as above urged that as a matter of fact, the firm was misusing its licence by keeping prohibited drugs with it. He also pointed out that all the retail invoice pertaining to prohibited drugs are in the name of the present petitioner i.e. M/s J.S. Distributors. Copies of such retail invoices are also placed on record as Annexure-R/2 collectively. 6. He also pointed out that all the retail invoice pertaining to prohibited drugs are in the name of the present petitioner i.e. M/s J.S. Distributors. Copies of such retail invoices are also placed on record as Annexure-R/2 collectively. 6. Having considered the facts of the case and arguments advanced it is apparent that the original competent person of the petitioner Firm was Jagdish Prasad, from possession of whom unauthorised drugs were recovered by the police on 1.7.2009. After arrest of Shri Jagdish Prasad, on 2.7.2009 an inspection was made and a report favourable to firm was given by Shri Ashok Kumar Mittal, Drugs Control Officer, Sriganganagar. Thereafter, on 3.7.2009, an application was given for change of competent person and on the same day, the licencing authority substituted Shri Tarun Agarwal as competent person of the partnership firm. This entire exercise in most unambitious terms speaks about the hurried efforts made to save the licence. It also reflects that Shri Ashok Kumar Mittal, Drugs Control Officer, Sriganganagar appears to have favoured in this entire exercise to the petitioner. As a matter of fact, the recovery of unauthorised drugs from the house of the competent person clearly establishes the violation of licence conditions. Learned counsel for the petitioner utterly failed to satisfy me as to how the present petitioner is not responsible for purchase of unauthorised drugs or the drugs beyond the authority of the licence granted under the retail invoices Annexure-R/2. 7. In such circumstances, I do not find any reason to interfere with the orders impugned, accordingly the petition for writ is dismissed. While parting in the case, the Secretary, Department of Medicine and Health (Group-II), Government of Rajasthan is directed to make necessary enquiry as per rules relating to conduct of Shri Ashok Kumar Mittal, Drugs Control Officer, Sriganganagar, who granted inspection report on 2.7.2009 and also against the person who substituted Shri Tarun Agarwal as a competent person of the petitioner Firm on 3.7.2009 by acting upon the application dated 3.7.2009 signed by Shri Jagdish Prasad and one other partner of the petitioner Firm.Petition dismissed. *******