Rajasthan High Court - Jaipur
M/S Vivek Pharmachem (India) Ltd vs State Of Rajasthan on 13 October, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 11844/2020
M/s Vivek Pharmachem (India) Ltd., Having Its Registered Office
At A-1, Sethi Colony, Jaipur Through It Authorized Signatory And
Director Mr. Kuldeep Gupta Son Of Shri Raj Kumar Gupta
----Petitioner
Versus
1. State Of Rajasthan, Through Additional Chief Secretary,
Medical, Health And Family Welfare, Government
Secretariat, Jaipur (Raj.)
2. The Drugs Controller, Directorate Of Medical And Health,
Tilak Marg, C-Scheme, Jaipur (Raj.)
3. The Director, Drug Testing Laboratory, Sethi Colony,
Jaipur (Raj.)
4. The Drugs Control Officer, R.b.m. Hospital Premises,
District Drug Ware House First Floor, Bharatpur (Raj.)
----Respondents
For Petitioner(s) : Mr. M.M.Ranjan, Sr. Adv. with Mr. Tarun Kumar Mishra For Respondent(s) : Mr. Bharat Saini, AGC HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 13/10/2020 Notices were issued, however, learned Senior Counsel has argued the case. Hence, heard learned Senior Counsel.
The petitioner by way of this writ petition prays to quash and set aside the certificate of test or analyse the Government Analyst under Section 25(1) of the Drugs and Cosmetic Act, 1940 on the ground that the Drug samples which were tested were highly belated. It is for the prayer that no coercive action should be taken against the petitioner-company. This court finds that after (Downloaded on 14/10/2020 at 09:14:00 PM) (2 of 4) [CW-11844/2020] the result of the laboratory conveyed to the petitioner, show cause notice has been given to the petitioner company vide order dated 22nd May, 2020 by the Office of Drug Control Officer, Bharatpur, Rajasthan. The petitioner's matter is pending before the Disciplinary Committee. The petitioner has submitted representation to the Principal Secretary of Disciplinary Committee which has been placed alongwith additional affidavit and has taken the ground which the petitioner is taking before this Court. No decision as yet has been taken by Disciplinary Committee on the representation. Learned counsel however submits that in view of the judgment passed by the Supreme Court, this court ought to interfere at this stage and restrain the respondents from taking any decision on the said report as the same has highly been belated and the sample has been tested after a period of 23 months. Learned counsel has further submitted that the samples which were tested were not properly placed and the analyst report is defective and cannot be acted upon.
I have considered the submissions.
Learned counsel has relied upon the recent judgment passed by the Apex Court in Civil Appeal No.2903/2020: Medipol Pharmaceutical India Pvt. Ltd. Versus Post Graduate Institute of Medical Education & Research and Anr, decided on 5th August, 2020. At the outset, it may be observed that the Apex Court has specifically deprecated the order of the High Court impugned therein, wherein the Supreme Court proceeded to examine the analyst report. For the said purpose, the observations of the Supreme Court need to be quoted which are as under:-
"5. The High Court, instead of striking down this decision in judicial review proceedings, went into the appellate laboratory test report itself and stated that as (Downloaded on 14/10/2020 at 09:14:00 PM) (3 of 4) [CW-11844/2020] it was 3% below the prescribed percentage of 95%, the blacklisting order ought not to be interfered with.
6. The High Court ought not to have gone into the appellate laboratory test report by itself. It ought to have struck down the impugned decision on the ground that it relied upon something irrelevant, namely, the first laboratory test report and ignored the appellate report. The High Court ought also to have appreciated that the appellate laboratory report was at complete variance with the first laboratory test report - the variation being a huge figure of 30%. This was despite the fact that the appellate laboratory test report tested a sample of the Appellant's product long after its shelf life had expired."
Keeping in view the observations of the Supreme Court, this Court would refrain from examining the analyst report and laboratory test report and give its own conclusions relating to it as far as the question regarding coercive steps being taken against the petitioner is concerned. This Court finds that no final decision has been taken by the respondent till date. A writ on the date of apprehension does not lie under Article 226 and it is only where any order against the petitioner is passed. The petitioner would be always free to challenge the said order.
In the opinion of this court, the writ petition is pre-mature. The petitioner would be always free to take up all his objections before the concerned Committee which is examining the matter at the level of the respondents. If any order adverse to the petitioner is passed, the petitioner shall be always free to challenge the same before this Court or before the appropriate Forum whichever is available to the petitioner.
In Union of India (UOI) and Ors. Vs. Coastal Container Transporters Association and Ors. 2019 (3) Scale 758, the Supreme Court has specifically held that writ petition is not (Downloaded on 14/10/2020 at 09:14:00 PM) (4 of 4) [CW-11844/2020] entertainable at that stage of show cause notice by observing as under:-
"On the other hand, we find force in the contention of the learned senior Counsel, Sri Radha krishnan, appearing for the Appellants that the High Court has committed error in entertaining the writ petition Under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India and Anr. v. Guwahati Carbon Ltd. (supra) relied on by the learned senior Counsel for the Appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute is available. When there is a serious dispute with regard to classification of service, the Respondents ought to have responded to the show cause notices by placing material in support of their stand but at the same time, there is no reason to approach the High Court questioning the very show cause notices. Further, as held by the High Court, it cannot be said that even from the contents of show cause notices there are no factual disputes. Further, the judgment of this Court in the case of Malladi Drugs & Pharma Ltd. v. Union of India, relied on by the learned senior Counsel for the Appellants also supports their case where this Court has upheld the judgment of the High Court which refused to interfere at show cause notice stage."
Granting aforesaid liberty, this writ petition is dismissed at pre-mature stage.
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