Gauhati High Court
M/S Southern Assam Drug Dealers ... vs The Union Of India & Ors on 25 July, 2013
Bench: I. A. Ansari, Indira Shah
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM; NAGALAND; MIZORAM AND
ARUNACHAL PRADESH)
Writ Petition (C) No. 1718 of 2012
M/s Southern Assam Drug Dealers Association
- Petitioner
- Versus -
The Union of India and others
- Respondents
BEFORE
HON'BLE MR. JUSTICE I. A. ANSARI
HON'BLE DR. (MRS.) JUSTICE INDIRA SHAH
Advocate present:
For the petitioner : Mr. R. P. Sarmah,
Mr. M. R. Adhikari.
For the respondent : Mr. M. Sarma, ASG,
Mr. B. Gogoi, SC.
Date of judgment & hearing : 25.07.2013
JUDGMENT & ORDER
(ORAL)
(Ansari, J) We have heard Mr. R. P. Sarmah, learned Senor counsel, assisted by Mr. M. R. Adhikari, learned counsel, appearing on behalf of the writ petitioner, and Mr. R. Sarma, learned ASG, appearing for the respondent Nos. 1 and 2. We have also heard Mr. B. Gogoi, learned Standing counsel, Department of Health, Government of Assam, appearing for the respondent Nos. 3, 4 and 5.
2. The petitioner herein is an association, registered under the Societies Registration Act, consisting of pharmacists, located in the districts of Cachar, Karimganj, Hailakandi and NC Hills.
Page 2
3. With the help of this writ application, made under Article 226 of the Constitution of India, the petitioner association has put to challenge the validity of Rule 65 (3) (ii), Rule 62A and Form Nos. 20A and 21A, of the Drugs and Cosmetics Rules, 1945 (hereinafter referred to as the '1945 Rules'), which stand framed under the Drugs and Cosmetic Act, 1940, seeking amendment of Rule 65 (3) (ii) and striking down and quashing of Rule 62A, Form Nos. 20A and 21A.
4. While considering the present writ petition, it needs to be borne in mind that the Rules, embodied in Part-VI of the 1945 Rules, deal with, and make provisions for, sale of drugs and cosmetics other than homeopathic medicines and the power of the government to appoint licensing authorities for the purpose of granting of licence to sell, stock for sale, exhibit for sale and distribute some limited numbers of drugs in the rural areas. A licence, granted under Part- VI, is a restricted licence in the sense that a licencee, in terms of the provisions embodied in Part-VI, shall sell, stock for sale, exhibit for sale and distribute only limited number of drugs, which the 1945 Rules, embodied in Part-VI, specify.
5. The petitioner association herein is aggrieved by the fact that Rule 65 (3) (ii) requires a licencee to maintain carbon copies of cash or credit memos. The petitioner association has raised their objection to Rule 65(3) (ii) on the ground that in this modern age, the requirement of maintaining carbon copy of cash or credit memo shall not be insisted upon.
WP(C) 1718 of 2012 Page 3
6. The petitioner association also seeks, as already indicated above, striking down and quashing of Rule 62A, Form Nos. 20A and 21A.
7. While considering the reliefs, which the petitioner association has so sought for, it is pertinent to note that to a query made by this Court, it has been candidly conceded, on behalf of the petitioner association, that none of the members of the petitioner association is a licencee under Part-VI.
8. As already mentioned above, Part VI makes provisions for issuance of restricted licence with limitation to sell, stock for sale, exhibit for sale and distribute some specific drugs in rural areas. Hence, the requirements of maintaining carbon copies of cash or credit memos, as contemplated by Rule 65 (3) (ii), cannot be challenged by the petitioner association, whose members are not covered by Part VI. In this regard, the respondents are correct in contending that the petitioner association has no locus standi in the present matter of challenge.
9. So far as the striking down of Rule 62A, Form Nos. 20A and 21A are concerned, nothing has been placed before this Court to show that the granting of restricted licence, as envisaged in Part-VI of the Drugs and Cosmetics Rules, 1945, are no longer required or necessitated.
10. The petitioner association has, however, contended that restricted licences have been issued indiscriminately and some of WP(C) 1718 of 2012 Page 4 these licencees have been indulging in the sale of those drugs, which they are not entitled to sell.
11. As far as granting of restricted licence is concerned, nothing has been placed by the petitioner association before us to show that granting of restricted licence is no longer required and, in the absence of any such materials having been placed before this Court, it is legally wholly impermissible to interfere with, or strike down Rule 62A, Form Nos. 20A and 21A.
12. As regards, however, the allegation, made by the petitioner association, that some of the restricted licencees, covered by Part-VI, have been indulged in selling even those drugs, which are not authorized or permitted to be sold by them, we are of the view that though no particulars have been laid before us by the petitioner association, in this regard, it is incumbent, on the part of the respondents, as a whole, more particularly, the Department of Health, Government of Assam, to ensure that no restricted licencee, covered by Part-VI, shall sell, stock for sale, exhibit for sale or distribute any such drug, which such a licencee is not authorized to do.
13. With the above observations and directions, this writ petition shall stand disposed of.
JUDGE JUDGE
Kalpana
WP(C) 1718 of 2012