M/s Famous Medical & General Stores v. The Commissioner Food and Drug Administration & Ors.

Mr.Kishor Patil i/by Shriram S. Redij, for appellant. Ms.P.S.Cardoza, AGP, for respondent-State. CORAM : MOHIT S. SHAH, C.J. & N.M. JAMDAR J. Tuesday, October 16, 2012. P.C.: These appeals are directed against the Judgment dated 27 August 2012 of the learned Single Judge dismissing the appellants Writ Petitions challenging the order of the licensing Authority under the Drugs and 3 LPAs184, 185...-12 Cosmetics Act 1940, cancelling the licenses which were issued in favour of the appellants i.e. Pharmacist and Druggists Licencees.

2. Show-cause notice was issued to the appellants calling upon them to show-cause as to why the authorisation and licence should not be cancelled as serious irregularities and illegalities were noticed. After considering the reply filed by the appellants, the authority passed the impugned orders cancelling the licenses. The appeals came to be dismissed by the State government and therefore, the appellants preferred Writ Petitions which also have been dismissed and therefore, the appellants have filed these appeals.

3. The prime allegation against the appellant was that he sold cough syrups containing codeine phosphate. There was no record available as to how cough syrup bottles were stocked and how much quantity was sold. The charge against the appellant was that he sold the product of cough syrups containing codeine phosphate without medical prescription. The second charge was that the licensed pharmacist were not in the shops.

4. Learned counsel for the appellants submits that there is no dispute about the fact that the cough syrups in question are Schedule H drugs therefore, it is necessary for the pharmacist to insist for medical prescription before dispensing the cough syrups in question. The third charge was that the premises are not found to be fit for storage and sale of medicines as they are not maintaining hygienic conditions and that there is no cold storage facility so as to store the drugs and medicines below prescribed temperature. 4 LPAs184, 185...-12

5. Learned counsel for the appellants has submitted that the findings given against the appellants are not justified but in view of the matter, it is submitted that the penalty imposed upon the appellants is excessive. He submitted that cancellation of license is like imposing death penalty as the appellants will not be able to carry on the business in future at all. The learned counsel relies upon the Judgment of Division Bench of this Court in Judgment dated 26 March 2012 in W.P.(L) No.154 to 156 of 2012 and on the basis thereof submits that the penalty by way of cancellation of license should be substituted by a lesser penalty of suspension of license for a period of three months or less.

6. On the other hand, learned AGP, for the respondent-authorities has opposed the appeals and submitted that the violations committed by the appellants are serious, It is also submitted that in LPA No.185 of 2012 the appellant's license was suspended in the past on two occasions. First time suspension was for 7 days and second time suspension was for 15 days. In LPA No.187 of 2012, the authorities had to pass an order of confiscation of some drug. It is therefore submitted that some of the appellants have committed violations of the statutory provisions in the past and therefore, no leniency should be shown.

7. With regard to decision dated 26 March 2012 of another Division Bench in Writ Petition (Lodging) Nos.154 to 156 of 2012, the learned AGP submits that the respondents are prepared to leave the matter to this Court but undertaking should be taken from the appellants that they will not commit violations in future and that in case they are found to have committed any violation in future, their license may be cancelled. 5 LPAs184, 185...-12

8. Having heard the learned counsel for the parties we are of the view that though the irregularities committed by the appellants cannot be treated as minor errors, since the Schedule H drugs were sold without prescription, having regard to the fact that the shops of the appellants have remained closed for about one month prior to the date of filing the Writ petitions and for two and a half months after dismissal of the Writ petitions and the fact that the appellants are ready to file undertaking as suggested by the learned AGP, the penalty by way of dismissal of licenses deserves to be substituted by lesser penalty of suspension of licenses for stipulated number of months.

9. Accordingly, subject to the condition that the appellants shall file undertaking to the effect that the appellants shall maintain the stores in hygienic condition, shall have cold storage facility for preserving the medicines below certain temperature, that a qualified pharmacist shall always be available at the store and that the appellants shall not sell any Schedule H drugs without medical prescription, within two weeks from today, the impugned orders of cancellation of the appellants licenses shall stand quashed and set aside and shall be substituted by order of suspension of license for a period of 4 months. The copies of the undertaking to be filed shall also be served upon the learned AGP.

10. The authority shall work out the period during which the shops remained closed and that period shall be taken into consideration while calculating the period of four months. This period shall be determined by the authorities within two weeks from today, and communicated to the appellant. During the period of closure the respondent-authorities shall monitor whether the appellants have actually suspended their business. 6 LPAs184, 185...-12

11. All the 5 appeals are accordingly disposed of as above. CHIEF JUSTICE N.M.JAMDAR, J.