Kerala High Court
State Of Kerala vs C.Kunjipocker on 12 March, 2019
Author: Hrishikesh Roy
Bench: Hrishikesh Roy, A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY
&
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
TUESDAY, THE 12TH DAY OF MARCH 2019 / 21ST PHALGUNA, 1940
W.A.No.471 of 2015
AGAINST THE JUDGMENT IN WPC 24227/2014 of HIGH COURT OF KERALA DATED 23-10-2014
APPELLANTS/RESPONDENTS IN THE WP(C):
1 STATE OF KERALA
REP. BY THE SECRETARY TO GOVERNMENT,
HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.
2 THE DRUGS CONTROLLER, THIRUVANANTHAPURAM.
3 ASSISTANT DRUGS CONTROLLER AND LICENSING AUTHORITY,
THRISSUR.
BY ADV. GOVERNMENT PLEADER SRI.SURIN GEORGE IPE
RESPONDENT/PETITIONER IN THE W.P.(C):
C.KUNJIPOCKER, AGED 57 YEARS,
S/O.ENNU, M/S.SOBHA DRUG HOUSE, 25/562(5),
NEAR KSRTC BUS STAND, PALAKKAD - 678 014.
BY ADV. SRI.T.C.SURESH MENON
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT
ON THE SAME DAY PASSED THE FOLLOWING:
W.A.No.471 of 2015
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JUDGMENT
Hrishikesh Roy, C.J.
Heard Sri.Surin George Ipe, the learned counsel appearing for the Appellants. Also heard Sri.T.C.Suresh Menon, the learned counsel appearing for the respondent/writ petitioner.
2. The Writ Petition was filed to challenge the notice dated 20.12.2013 (Ext.P4) issued by the Assistant Drugs Controller and Licensing Authority, Thrissur to M/S Sobha Drugs House, alleging contravention of the provisions of the Drugs and Cosmetics Act. The allegation was that the Pharmacist employed in the medicine shop had died and yet M/S Sobha Drugs House was operating without a qualified Pharmacist and was selling medicines to unsuspecting customers. Since the pharmacy did not appoint any Pharmacist from 6.1.2013 to 16.4.2013 (100 days) and conducted the sale of Schedule A category drugs their drug license was suspended for 21 days under the provisions of Rule 66 of the Drugs and Cosmetics Rules, 1945. An appeal was preferred by the aggrieved pharmacy on 6.1.2014 but the Appellate Authority under the order dated 23.8.2014, sustained the order for suspension of operation. The Writ Petition 24227 of 2014 was thereafter filed to challenge those orders.
3. The learned Judge while noting that a medical shop was operating unauthorisedly without a Pharmacist for more than 100 days took a view that closure of a medical shop for 21 days would be a harsh punishment and accordingly, reduced the suspension period to 3 days with the observation that this will meet the ends of justice. W.A.No.471 of 2015
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4. While the impugned judgment does not disclose any legal reason for reduction of the suspension period, on whether the medicine shop should be treated leniently, their subsequent conduct needs to be borne in mind. They wrote the letter dated 25.11.2014 whereby the lincencee informed that their medicine shop will be closed on three Sundays (30.11.2014, 7.12.2014 and 14.12.2014), in purported compliance of the direction issued by the Writ Court. The Drugs Inspector however intimated the medicine shop that closure of the shops on Sundays, would not amount to compliance of the Court's direction.
5. The learned Government Pleader Sri.Surin George Ipe would submit that besides the operation of the medicine shop without a qualified Pharmacist, the subsequent attempt made by the respondent/writ petitioner to outsmart this court's order should also be taken into consideration, while dealing with this Appeal. He next points out that the writ court did not indicate any legally acceptable reason as to why the suspension period should be reduced from 21 days to 3 days.
6. On the other hand, the learned counsel Sri.T.C.Suresh Menon appearing for the appellant/writ petitioner would project that subsequently, the medicine shop owner had informed through registered letter on 29.12.2013 that they will keep the medicine shop closed on 2.1.2014, 9.1.2014 and 20.1.2014 and with this projection the counsel argues that there is adequate compliance with the direction in the impugned judgment.
7. In the above context, what can be noticed straightway is that the closure intimation by the medicine shop was required to be given, a week in advance but here it was perfunctorily given without adherence to the time frame stipulated by the court. W.A.No.471 of 2015
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Therefore, the purported intimation on 29.12.2013 is not the one, which can be construed as the required intimation, in compliance with the direction in the W.P. (C)24227/14. Importantly, through such belated intimation sent by post, the verification of the closure of the shop, was thwarted.
8. That apart as earlier noted, the respondent/writ petitioner had tried to over- reach the court's direction by offering to keep their medicine shop shut only on Sundays although it was clearly stipulated in the Ext.P4 suspension order that the suspension for 21 days, will not be applicable on Sundays. Besides as already noted, the notice dated 29.12.2013 proposing closure with effect from 2.1.2014 did not provide the required 7 days notice, ordered by the Court.
9. In the impugned judgment, the reduction of the closure was ordered only because it was medicine shop. But correspondingly it was ignored that medicine shop was operating for long, without a qualified Pharmacist. In our perception, no acceptable reason is given in the impugned judgment for ordering reduction of the suspension days from 21 to 3 days and on this count the impugned judgment cannot be sustained. In the result, the impugned order dated 20.12.2013 (Ext.P4) issued by the Assistant Drugs Controller and Licensing Authority, Thrissur as was affirmed by the Appellate Authority, stand restored. The respondent/writ petitioner would therefore be required to close their medicine shop for a continuous period of 21 days within the next three months, with advance information to the Assistant Drugs Controller. Such intimation about the 21 days closure period shall be served seven days before the commencement of the period so that, appropriate verification of the closure can be effected, by the Assistant W.A.No.471 of 2015 : 5 :
Drugs Controller. It is also made clear that during those 21 days, the Sundays should be excluded from computation. It is ordered accordingly.
10. With the above order, the State's Writ Appeal stands allowed.
SD/-
HRISHIKESH ROY CHIEF JUSTICE SD/-
A.K.JAYASANKARAN NAMBIAR JUDGE jes