Civil Writ Petition No 15815 2009 v. State of Punjab & Ors.

to be quashed by the petitioner firm , - M s Mansa Medicos Mansa must be noticed first / . , , . The petitioner firm is a retailer as well as the whole seller The . - - firm is holder of the licences issued under the Act and thus , , is competent to sell stock or exhibit , for sale or distribute the , drugs specified in Schedules C C I , ( ), and H excluding those , specified in Schedule X of the Drugs and Cosmetics Rules , 1945 ( for short “ the Rules” ), the designated and licensed C.W.P. No. 15815 of 2009 3 premises The State Drugs Controller cum Licensing Authority , . - - Punjab in exercise of powers conferred on it under Rule , 66 (1) the Rules cancelled the licences of , the petitioner both , retail as well as the whole seller - , vide order dated

22.8.2008 ( Annexure P -1). The petitioner as provided under , Rule 66(2) the Rules preferred appeal against , the order , Annexure P -1, before the Secretary Health and Family , Welfare Punjab respondent No ( , .1). Along with the appeal , petitioner appended various documents and synopsis to show the medicines seized by respondent No .3, during the course of inspection were purchased by it against valid purchase bills . The details of the sale record relevant in the context were also furnished by the petitioner To facilitate the . matter , the petitioner has placed on record a copy of appeal and the synopsis , as Annexures P -2 and P -3, respectively . The appellate authority partly accepted the appeal

22.9.2008, Annexure P -4, suspending the licence of the petitioner

10.10.2008 ordering the release of the drugs seized by respondent No .3 C.W.P. No. 15815 of 2009 4 during the inspection process to the petitioner after , following the proper procedure . The petitioner thereafter , on the strength of order Annexure P -4, , passed by the appellate authority , approached the District Drugs Inspector Mansa and moved , , letter dated

15.10.2008 release of the medicines When . the medicines were not released despite several requests the , petitioner filed Civil Writ Petition No . 5087 2009. That writ petition was disposed of by this Court vide order dated

31.3.2009, Annexure P -5, with a direction to the State Drugs Controller cum Licensing Authority Punjab , - - , Drugs Inspector Mansa respondent Nos , , . 2 and the District 3 herein to , take immediate action on the representations made by the petitioner for release of the seized medicines and also decide its pending claim within a period of two weeks from the receipt of certified copy of the said order . It is here that the things started going wrong . According to the further averments made in the petition the , District Drugs Inspector Mansa , , respondent No . 3, with a C.W.P. No. 15815 of 2009 5 view to thwart the rightful claim of the petitioner resorted to adopt a distinct remedy by filing an application purportedly , filed on

30.12.2008, review of the order passed by the appellate authority , respondent No .2. The Secretary Health and Family Punjab exercising the powers of the Appellate , , Authority , Chandigarh , passed on

24.7.2009 ( Annexure P -7) allowed the review application and ordered the seized medicines could not be released at that stage . It is this order which has been impugned by the petitioner in this writ petition . The petitioner has challenged the impugned order on the ground that the appellate authority , . i e . respondent No .1, while entertaining the review application had exceeded , its jurisdiction as no power of review was vested in it by any law and the observations made by the said authority in that order were totally against the spirit of the order passed by it earlier . The respondents contested the petition by filing written statement The pleas raised by the petitioner were . C.W.P. No. 15815 of 2009 6 controverted All . that was pleaded to make out a case on behalf of the respondents is that in the eventuality of an action taken under Rule 66(1) the Rules , the stocks of seized drugs could not have been ordered to be released as there was no procedure laid down under the provisions of Act and the Rules and , , the directions given by the appellate authority in order Annexure P -4 to that effect could , not be given effect to as the same were not viable . I have heard learned counsel the parties and have gone through the record . Learned counsel the petitioner submitted that the appellate authority while accepting the appeal vide order

22.9.2008, Annexure P -4, had ordered suspension of the licence of the petitioner till

10.10.2008 and release of seized medicines , following proper procedure . According to the counsel , the said order was subsequently reviewed by the Secretary Health and Family Punjab who in , , exercise of its powers of the Appellate Authority Chandigarh , , vide order passed on

24.7.2009 ( Annexure P -7) allowed the C.W.P. No. 15815 of 2009 7 review application and ordered that the seized medicines could not be released at that stage . Learned counsel for the petitioner vehemently submitted that there is no provision for review of its order by the appellate authority provided under the Act or the Rules and the power of review is not inherent same must conferred law either specifically or by necessary implication The counsel . further to the extent of contending that in the wake of circumstances referred to above the very filing of , , application by respondent No .3 is sheer abuse of the review the process the Court . It was also contended that the order dated

22.9.2008 passed by the appellate authority in so far as it related to release of the seized drugs was legal and valid . , Learned counsel petitioner support of his submissions placed reliance on Patel Narshi Thakershi and others vs Pradyumansinghji, . . . A I R . 1970 . S C . 1273 and Deep Chand versus Additional Director, Consolidation of Holdings , Punjab Jullundur and another , , , 1964 . P L R . . 313. C.W.P. No. 15815 of 2009 8 On the other hand learned counsel , for the respondents when asked by , the Court to refer to the provisions of the law whereby review of the above order of the appellate authority was permissible he could not refer to , any on the basis of which he could justify the review order , i e Annexure P . -7, . passed by respondent No .1. All that he could submit in this regard is that in view of the provisions of Rule 58- A of the Rules the impugned order Annexure P - , , 7, was totally justified . The review is the creature of a statute It . is not an inherent power and , therefore , the same has to be specifically or by necessary implication provided under provisions of law to enable an authority to exercise its power review It . is not disputed in the present case that is no specific statutory provision empowering an authority to review its own order . The Apex Court Patel Narshi Thakershi and others’ ( ) laid down the principles for review which are as under : , C.W.P. No. 15815 of 2009 9 “ The first question that we have to consider is whether Mr Mankodi had competence to quash . the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr . Mankodi was functioning as the delegate of State Government . The passed by Mr . Mankodi , in law amounted to a review of the order made by Saurashtra Government . is well settled It the power to review is not an inherent power . It must be conferred by law either specifically or by necessary implication No provision in the Act . was brought to our notice from which it could be gathered that the Government had power to review its own order If . the Government had no power to review its own order , is obvious that its delegate could not have reviewed its order The question . whether the Government s order ' is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside C.W.P. No. 15815 of 2009 10 or declared void by a competent authority Hence . the same cannot be ignored . The Subordinate Tribunals have to carry out that order For . reason alone the order of Mr Mankodi was liable . to be set aside” . The issue raised before a five Judge Full Bench of - this Court Deep Chand’s case supra ( ) was as under : “ How far the Additional Director Consolidation , , was competent to recall or review his orders on the merits in absence statutory provision conferring such power ” ? The Full Bench after analysing the gamut , judicial precedents on the subject had arrived at conclusion that power to correct apparent clerical or similar mistakes may be presumed but only if , they do not affect substance of the decision otherwise there can be no power ; review on the merits except to the extent the statute confers it and further held that the Additional Director of Consolidation was not empowered to recall or review his earlier erroneous and unjust order whenever it was discerned C.W.P. No. 15815 of 2009 11 the error was due to his own mistaken view on the merits of the controversy . In view of , irresistible conclusion is that the appellate authority while passing the impugned order had exercised the power of review which did not vest in it under the law . Accordingly the impugned order , deserves to be set aside . In all fairness to the counsel the respondent - State , is sufficient to refer to Rule 58- A of the Rules which reads as under :- “58- . A Procedure disposal confiscated drugs - (1) . The Court shall the confiscated drugs to the Inspector concerned for report as to whether they are of standard quality or contravene the provisions of the Act or the Rules in any respect . (2) If the Inspector on the basis of Government , Analyst’s report finds the confiscated drugs to be not of standard quality or to contravene any of provisions of the Act or the rules made thereunder , C.W.P. No. 15815 of 2009 12 he shall report to the Court accordingly . The Court shall thereupon order the destruction of drugs The destruction shall . take place under supervision of the Inspector in the presence of such authority if any as may be specified by the , , Court . (3) If the Inspector finds that the confiscated drugs are of standard quality and do not contravene the provisions of the Act or the rules made thereunder , he shall report to the Court accordingly . The Court may then order the Inspector to give the stocks confiscated hospital or dispensary maintained supported Government or by Charitable Institutions ” . A plain reading of the aforesaid Rule clearly shows that it does not deal with the grant of power of review to an authority under the Act or the Rules . The aforesaid provision provides procedure for C.W.P. No. 15815 of 2009 13 disposal of confiscated drugs which had been seized by the drugs authority . For what has been said above the writ petition is , allowed and the order Annexure P -7, is set aside . , The respondents are directed to release the seized drugs of petitioner in accordance with law after following the proper procedure in terms of the order dated

22.9.2008, Annexure P -4, passed by the appellate authority . May , 2010 RKMALIK * * ( AJAY KUMAR MITTAL ) JUDGE