Kerala High Court
Leonard John vs The State Of Kerala on 4 December, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 04TH DAY OF DECEMBER 2020 / 13TH AGRAHAYANA, 1942
WP(C).No.26935 OF 2020(S)
PETITIONER:
LEONARD JOHN
AGED 55 YEARS
S/O. JOSE MATHEW, JOHNSON VILA, NEAR SANGEETHA
TALKIES, PAYYAMBALAM, KANNUR DISTRICT
BY ADVS.
SRI.ABDUL RAOOF PALLIPATH
SRI.K.R.AVINASH (KUNNATH)
RESPONDENTS:
1 THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, HEALTH DEPARTMENT,
SECRETARIAT, TRIVANDRUM-695 001
2 THE SECRETARY,
MINISTRY OF AYUSH, AYUSH BHAVAN, B BLOCK, GPO
COMPLEX, INA NEW DELHI-110 023
3 CENTRAL VIGILANCE COMMISSION,
SATARKATA BHAVAN, A BLOCK, GPO COMPLEX, INA,
NEW DELHI-110 023
4 VIGILANCE AND ANTI-CORRUPTION BUREAU DIRECTORATE,
PMG, VIKAS BHVAN P.O., OPPOSITE KSRTC DEPOT,
TRIVANDRUM-695 033
5 PRINCIPAL SECRETARY (AYUSH),
ROOM NO.F-95, 5TH FLOOR, ANNEXE-II, GOVERNMENT
SECRETARIAT, TRIVANDRUM-695 001
6 THE DRUGS CONTROLLER AND LICENSING AUTHORITY,
GOVERNMENT OF KERALA, PUBLIC HEALTH LABORATORY
CAMPUS, RED CROSS ROAD, TRIVANDRUM-695 001
7 THE PHARMACEUTICAL CORPORATION (IM) KERALA LIMITED
(OUSHADHI)
KUTTANELLUR, THRISSUR-680 014, REPRESENTED BY ITS
MANAGING DIRECTOR
WP(C).No.26935 OF 2020(S) 2
SRI TEK CHAND, SENIOR GOVERNMENT PLEADER FOR R1, R4 & R5
SRI.P.VIJAYAKUMAR, ASG FOR R2 AND R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
04.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.26935 OF 2020(S) 3
JUDGMENT
S.MANIKUMAR, CJ Instant writ petition is filed by the petitioner aggrieved by the lethargy and inaction on the part of the officials of Oushadhi - Kerala, in not adhering to the prescribed standard in making its products and non-utilization of grants received from Ministry of AYUSH (Ayurveda, Yoga and Neuropathy, Unani, Sidha and Homeopathy) under Government of India.
2. Oushadi, an enterprise under the Government of Kerala, is the largest manufacture of Ayurvedic products and herbal drugs in India. It is established for the specific purpose of ensuring prescribed quality and standard in manufacturing ayurvedic medicines for effective ayurvedic treatment. The public at large in Kerala is largely depending ayurvedic treatment for curing various diseases. Oushadi is also receiving huge fund as grant from Government of India from time to time for utilising the same for the purpose of establishing centre of excellence and modernization and to ensure quality treatment and medicine.
3. According to the petitioner, it is recently noticed that, the ayurvedic and herbal products from Kerala manufactured by Oushadi is banned in many of the European countries and some of the Asian countries, due to the presence of pesticides, heavy metals, aflatioxine, toxicity extracts etc. A study also shows that there is alarming increase in cases of cancer, kidney and liver WP(C).No.26935 OF 2020(S) 4 diseases in Kerala as 77% of the household in Kerala are using ayurvedic products for various treatment and other purposes.
4. According to the petitioner, the ayurvedic products manufactured from Oushadi is distributed to the public without conducting proper test to rule out the presence of pesticides, metals and other toxic substances in its product. Though Oushadi is given financial aid by the Central Government, it has not purchased the machinery GCMS(Gas Chromatography Mass Spectrometric), which is the basic testing machine for testing the presence of pesticides.
5. Pointing out the above facts, petitioner has submitted Ext.P8 complaint dated 1.9.2020 to respondents 1 to 4, requesting to enquire into the matter, and to take necessary action against the officials of Oushadi. On receipt of the complaint, the Secretary, Ministry of AYUSH, Ayush Bhavan, New Delhi, 2nd respondent, has forwarded the same to the Principal Secretary (AYUSH), Trivandrum, 5th respondent, with a copy to the Drugs Controller and Licensing Authority, Government of Kerala, Trivandrum, 6th respondent, for further action but no action is taken yet. It is in this background, the instant writ petition is filed for the following reliefs:
(i) issue a writ of mandamus or any other writ or order directing the respondents 1 to 6 to initiate appropriate steps against the 7 th respondent by conducting an enquiry on the basis of Ext.P8 complaint filed by the petitioner.
(ii) issue a writ of mandamus or any other writ or order directing the 5 th and 6th respondents to take appropriate action on the basis of Ext.P9 communication within a time bound manner.WP(C).No.26935 OF 2020(S) 5
6. On this day when the matter came up for admission, Mr. P. Abdul Raoof, learned counsel for petitioner, submitted that petitioner would be satisfied, if the State Authority is directed to look into the matter and take appropriate decision on Exhibit-P9 communication dated 26.10.2020 sent by the Ministry of AYUSH, New Delhi, to the Principal Secretary (AYUSH), Thiruvananthapuram, Kerala, 2nd respondent.
7. Mr. V. Tek Chand, learned Senior Government Pleader, acknowledges the said submission.
8. Heard learned counsel for parties and perused the pleadings and materials on record.
9. In the light of the above submission, there is no need to delve into the merits of Exhibit-P8 complaint dated 1.9.2020 addressed to respondents 1 to 4. Communication of the Ministry of AYUSH, New Delhi addressed to the Principal Secretary, Thiruvananthapuram, Kerala is reprodcued.
"Government of India Ministry of Ayurveda, Yoga & Naturopathy, Unani, Siddha and Homoeopathy (AYUSH) Office Block-III (2nd Floor), East Kidwai Nagar South Ex-1, New Delhi-110023 Dated: 26 Oct, 2020 To.
Principal Secretary (AYUSH), Room No. F 95, 5th Floor Annexe II, Government Secretariat, Thiruvananthapuram-695 001 Kerala, India E-mail: ayush@kerala gov.in WP(C).No.26935 OF 2020(S) 6 Subject: Representation of Mr. Leonard John, References: Letters No. T20020/01/2019-DCC (AYUSH). dated 27/12/18 to Secretary (AYUSH), Kerala; to Principal Secretary and Chief Secretary dated 07/03/2019, 15/10/2019 & 31/10/2019 and to State Mission Director dated 20.01.2020.
Sir, Adverting your kind attention to the references and the subject cited above, I am directed to say that another representation of Mr Leonard John received in this Ministry on dated 01.09.2020 regarding the issues of misuse of funds provided by the Central Government for appointment of Drug Inspectors, infrastructural and functional inadequacy in the Drug Testing Laboratories of Kerala state etc. (copy enclosed) Since the enforcement of legal provisions of Drugs & Cosmetics Act, 1940 and Rules thereunder is vested with the State Authority, it is requested to look into the matter and take action as deemed appropriate to address the above mentioned issues and inform the complainant accordingly under intimation to this Ministry.
Copies of the previous communications of this Ministry are also enclosed herewith for Information.
End. As above Yours faithfully, Digitally signed by DR. CHINTA SRINIVAS RAO Date:Mon Oct 26 15:25:50 IST 2020 (Dr. Chinta Srinivas Rao) Deputy Adviser, Drug Policy Section Copy for necessary action The Drugs Controller & Licensing Authority, Govt. of Kerala, Public Health Laboratory Campus, Red Cross Road, Thiruvananthapuram - 695035, Kerala Copy for information Mr. Leonard John, Pro.Red Star Estate, Johnson's Villa, WP(C).No.26935 OF 2020(S) 7 Payyambalam, Kannur - 670001, Kerala."
10. Principal Secretary (AYUSH), Thiruvananthapuram, respondent No.5, is directed to take further action on the communication dated 26 th October, 2020 (Exhibit-P9), within two months from the date of receipt of a copy of this judgment, taking into account Exhibit-P8 complaint dated 1.9.2020.
Writ petition is disposed of accordingly.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
smv JUDGE
WP(C).No.26935 OF 2020(S) 8
APPENDIX
PETITIONER'S EXHIBITS:
EXHIBIT P1 THE NEWS ITEM APPEARED IN ECONOMIC TIMES
DATED 21.11.2020
EXHIBIT P2 THE NEWS ITEM APPEARED IN ECONOMIC TIMES
DATED 21.11.2020
EXHIBIT P3 THE NEWS ITEM APPEARED IN TIMES OF INDIA
DATED 3.9.2018
EXHIBIT P4 THE NEWS ITEM APPEARED IN ECONOMIC TIMES
DATED 26.5.2015
EXHIBIT P5 THE NEWS ITEM APPEARED IN THE ECONOMIC
TIMES DATED 21.11.2020
EXHIBIT P6 THE NEWS ITEM APPEARED IN THE ECONOMIC
TIMES DATED 10.08.2019
EXHIBIT P7 TRUE COPY OF THE REPLY WITH ENGLISH
TRANSLATION UNDER RTI ACT DATED 15.7.2020 EXHIBIT P8 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER DATED 1.9.2020 BEFORE THE RESPONDENTS 1 TO 4 EXHIBIT P9 TRUE COPY OF THE LETTER NO.T-20011/2/2020- DCC DATED 26.10.2020 ISSUED BY THE 2ND RESPONDENT