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Mittal Trading Agency Vs. the State of Punjab and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ Petn No. 6308 of 1975
Judge
Reported inAIR1983P& H236
ActsDrugs and Cosmetics Rules, 1945 - Rules 2 and 65(9); Drugs and Cosmetics Act, 1940
AppellantMittal Trading Agency
RespondentThe State of Punjab and ors.
Excerpt:
.....in the affirmative or in the negative to the assertion in paras 5 and 9 of the petition that shri deep chand was a registered medical practitioner in haryana has been avoided. perusal of clause (ii) of the said rule would show that the framers of the rules had put indefinite article 'a' before the word 'state'.if it had been intended that the registration had to be in the given state (and in the present case the punjab state) then the framers of the rule would have put definite article 'the' before the word 'state' in the aforesaid rule, hence, in my view, anybody who is registered in my view, anybody who is registered in any state and satisfied other requirements of the said rule, would be considered a registered medical practitioner for the purpose of the said rule. 66 was..........of drugs and cosmetics rules, 1945, by selling medicines on a given date for a given amount to shri deep chand son of sri prem chand gupta of bahadurgarh (kila harnam singh near sirhind) who was neither a registered medical practitioner nor a licence under the drugs and cosmetics act, 1940 and the rules framed thereunder. the two licenses were suspended for varying period by two separate orders. their appeal against those orders was also dismissed. this led the petitioner-firm to impugn the order suspending the licences and dismissing its appeal, though this petition.2. it has been alleged in this petition and earlier thereto in reply to the show cause notice and in the appeal before the concerned authority that the sale was effected to shri deep chand gupta, who was duly registered.....
Judgment:
ORDER

1. The petitioner-firm which carries on business in strong and selling drugs at Rajpura, was issued show cause notice as to why its drugs licence be not suspended for having violated provisions R. 65(9) of Drugs and Cosmetics Rules, 1945, by selling medicines on a given date for a given amount to Shri Deep Chand son of Sri Prem Chand Gupta of Bahadurgarh (Kila Harnam Singh near Sirhind) who was neither a registered medical practitioner nor a licence under the Drugs and Cosmetics Act, 1940 and the rules framed thereunder. The two licenses were suspended for varying period by two separate orders. Their appeal against those orders was also dismissed. This led the petitioner-firm to impugn the order suspending the licences and dismissing its appeal, though this petition.

2. It has been alleged in this petition and earlier thereto in reply to the show cause notice and in the appeal before the concerned authority that the sale was effected to Shri Deep Chand Gupta, who was duly registered in Haryana State as a medical practitioner.

3. That Deep Chand Gupta was a registered medical practitioner in the State of Haryana was not specifically denied. The respondent-State has, however, taken the stand in the written statement, a stand which was taken before the appellate authority as well that the rule in question permitted sale, inter alia, to a medical practitioner who is registered in the Punjab State as such and not to one who is registered as such in an outside State.

4. So, the primary question that falls for consideration is as to whether Shri Deep Chand a registered medical practitioner in State of Haryana ought to have been a medical practitioner registered in the State of Punjab before the sale of the medicines to him by the petitioner could be considered to have been effected to a duly registered medical practitioner in terms of the provisions of R. 2(ee). But before considering the aforesaid question, it has to be shown that the fact that Shri Deep Chand was registered as a medical practitioner in Haryana State is in fact not in dispute.

5. The petitioner-firm had alleged in paras 5 and 9 of the petition that Shri Deep Chand was a registered medical practitioner in Haryana. Paras 5 and 9 of the writ petition are in the following terms:--

'Para 5. That the petitioner on 20-3-1975 gave his reply. A copy of the reply is annexed here to this petition as Annexure P.2. In this reply the petition categorically state that Shri Deep Chand s/o Prem Chand is a registered medical practitioner having registration No. 15951. So as per provision of the Act the petitioner was entitled to sell the medicines to him.'

'Para 9. That respondent No. 3 vide his registered letter No. Drugs-75/1091 dated 14-5-1975 illegally rejected the reply of the petition and suspended the retail licence of the petitioner for two months. In this letter Respondent No. 3 stated that the explanation of the petitioner is unsatisfactory and has violated the Rule 65 read with Condition No. 2 of the licence in Form 20. Shri Deep Chand Gupta is not a registered medical practitioner as defined under R. 2(ee) of the rules as he registered in the State of Haryana. A copy of the letter I attached as Annexure P. 6, Condition No. 2 of the licence is reproduced as under :-- 'The licensee shall comply with the provisions of the Drugs and Cosmetics Act, 1940 and the rules thereunder for the time being in force.'

6. The corresponding paras of the reply are in the following terms :--

5. The reply of the petitioner was addressed to Director, health 7 F. P.. Punjab, Chandigarh respondent No. 2 After considering the reply by the respondent No. 2 the petitioner was found selling the drugs to Sh. Deep Chand who is neither a licensee under the Drugs and Cosmetics Act nor a registered Medical Practitioner as provided under R. 2(ee) which reads as under :--

'2(ee) 'Registered Medical Practitioner' means a person:--

(i) holding a qualification granted by an authority specified or notified under S. 3 of the Indian Medical Degrees Act 1916(7 of 1916) or specified in the schedules to the Indian Medical Council Act 1956(102 of 1956), or

(ii) registered or eligible for registration in a Medical Register of a State meant for the registration of persons practising the modern scientific system of medicine, or

(iii) registered in a medical register of a State, who although not falling within sub-clause (I) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purpose of this Act; or

(iv) registered or eligible for registration in the register of Dentists for a State under the Dentists Act 1948(16 of 1948), or

(v) who is engaged in the practice of veterinary medicine and who possesses qualifications approved by the State Government.'

7. A perusal of the reply filed on behalf of the State would clearly show that a direct reply either in the affirmative or in the negative to the assertion in paras 5 and 9 of the petition that Shri Deep Chand was a registered medical practitioner in Haryana has been avoided. Hence. It would have to be assumed that the allegation that Shri Deep Chand was a registered medical practitioner in Haryana State had been admitted.

8. Before the appellate authority inter alia, the following plea had been taken :--

'That Shri Deep Chand to whom the drugs were sold by the appellant was registered as a Medical Practitioner in Haryana and this was sufficient for complying with the requirements of the Act and the Rules and the conditions of the licences granted thereunder.'

9. The leaned appellate Court dealt with the aforesaid contention in para 7 of the order in the following manner :--

'With reference to the first point, the learned counsel for the appellant frankly conceded that the Act and the Rules had all along been interpreted and applied so as to imply that a licence of Punjab should sell drugs only to a Medical Practitioner registered in Punjab. He mentioned that this interpretation was being contested but conceded that there was, a set, no authority in support of the interpretation that he was advocating. In view of this position. I am inclined to accept this argument.'

10. Grammatical construction of clause (ii) of R. 2(ee) of the Drugs and Cosmetics Rules, 1945 would militate against the stand taken by the respondent-Stand that as per the aforesaid rules 'a registered medical practitioner' means a person, inter alia, who had been registered as such in the State of Punjab. Perusal of clause (ii) of the said rule would show that the framers of the rules had put indefinite article 'a' before the word 'State'. If it had been intended that the registration had to be in the given State (and in the present case the Punjab State) then the framers of the rule would have put definite article 'the' before the word 'State' in the aforesaid rule, Hence, in my view, anybody who is registered in my view, anybody who is registered in any State and satisfied other requirements of the said rule, would be considered a registered medical practitioner for the purpose of the said rule.

11. For the reasons aforementioned I hold that the petitioner firm by selling the drugs in question to Shri Deep Chand, who was a registered medical practitioner in the State of Haryana violated no condition of its licence or the provisions of Rule 65(9) and therefore, action taken against it under R. 66 was clearly illegal and therefore, the impugned orders are quashed as being illegal and the petition is allowed with costs. Counsel's fee Rs. 200/- .

12. Petition allowed.


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