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State of Punjab and ors. Vs. Subhash Chander and anr. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtPunjab and Haryana High Court
Decided On
Case NumberLetter Patent Appeal No. 125 of 1979
Judge
Reported inAIR1982P& H347
ActsDrugs and Cosmetics Act, 1940 - Sections 33-E
AppellantState of Punjab and ors.
RespondentSubhash Chander and anr.
Excerpt:
.....impinged on his right to possess and sell commodities and therefore, the impugned notification was clearly violative of his rights under art. 33d and 33e had not been lost upon the state government as well and, therefore, it modified the notification dt......that the provisions of chap. iv shall take effect in a given state only from such date as the state government might, by a notification, appoint in that behalf. besides the above provision, ss. 33d and 33e of the act, the relevant portions of which are in the following terms, also envisage their coming into force from such dates as might be fixed by the state government by notification in the official gazette.'33d. from such date as may be fixed by the state government by notification in the official gazette in this behalf, no person shall himself or by any other person on his behalf, manufacture for sale any ayurvedic (including siddha) or unani drug--xxx xxx 33e. from such date as may be fixed by the state government by notification in the official gazette in this behalf, no.....
Judgment:

D.S. Tewatia, J.

1. Subhash Chander, respondent No. 1 to the present Letters Patent Appeal, successfully impugned, before the learned single Judge in Civil Writ No. 6070 of 1975, notification, Annexure R. 2, dt. 15-1-1975, of the appellant State of Punjab enforcing the provisions of S. 33E of the Drugs and Cosmetics Act, 1940, hereinafter referred to as the Act, and consequently got quashed the criminal proceedings launched against him. The present Letters Patent Appeal at the instance of the State of Punjab and three others, namely, the Hon'ble Health and Family Planning Minister, Punjab, Civil Secretariat, Chandigarh; The Controller of Drugs, Punjab, Chandigarh; and the Inspector Ayurveda, Punjab, Chandigarh, is directed against this judgment.

2. The appellant State, with great plausibility, canvassed before us that if the provisions of S. 33D of the Act, which impose the condition of licence for manufacturing Ayurveda (including Siddha) and Unani drugs, and S. 33E of the Act, which imposes the restriction on storing, selling or exhibiting any Ayurvedic (including Siddha) or Unani drugs not manufactured by a licensed manufacturer, are found to be legal and valid, then how could an innocuous step of bringing them into operation be considered illegal and ultra vires the constitutional provisions of Art. 19(1) (f) and (g) and Art. 304(b) of the Constitution of India.

3. Before proceeding with the consideration of the contention advanced on behalf of the appellant State, some of the provisions of the Act deserve noticing.

4. The act was enacted in 1940 with a view to regulate the import, manufacture, distribution and sale of drugs. Sub-section (3) of S. 1 of the Act envisages that the provisions of Chap. IV shall take effect in a given State only from such date as the State Government might, by a notification, appoint in that behalf. Besides the above provision, Ss. 33D and 33E of the Act, the relevant portions of which are in the following terms, also envisage their coming into force from such dates as might be fixed by the State Government by notification in the official gazette.

'33D. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf, manufacture for sale any Ayurvedic (including Siddha) or Unani drug--

xxx xxx

33E. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any person on his behalf, sell, or stock or exhibit for sale, or distribute, any Ayurvedic (including Siddha) or Unani drug other than that manufactured by a manufacturer licensed under this Chapter.'

Initially, the provisions of both the aforesaid sections of the Act were enforced with effect from 25-2-1971 by notification, Annexure R. 1, dt. 25-2-1971, which is in the following terms :

'In exercise of the powers conferred by Ss. 33D and 33E of the Drugs and Cosmetics Act, 1940 (Central Act 23 of 1940), the Governor of Punjab is pleased to fix the date of publication of this notification in the official gazette as the date for the purpose of the aforesaid section.'

The State Government then issued the notification, Annexure R. 2, partially modifying Annexure R. 1 by changing the date of enforcement of the provisions of S. 33E from 25-2-1975 to 24-1-1975. Annexure R. 2 is in the following terms :

'In exercise of the powers conferred by S. 33E of the Drugs and Cosmetics Act, 1940, and in partial modification of Punjab Government Health and Family Planning Department Notification No. 973-2HB-II-71/3801, dated 25th February, 1971, the Governor of Punjab is pleased to fix the date of publication in the official gazette as the date for the purpose of the aforesaid section.'

Section 33P of the Act, which is reproduced below, authorises the Central Government to give necessary direction to the State for the purpose of carrying into execution in any given State any of the provisions of the Act or rule or order made thereunder :

'33P. The Central Government may give such directions to any State Government as may appear to the Central Government to be necessary for carrying into execution in the State any of the provisions of this Act or of any rule or order made thereunder.'

The plea that the action of the State Government in prosecuting the petitioner-respondent for the violation of S. 33E of the Act was violative of the provisions of Art. 20 of the Constn., did not find favour with the learned single Judge.

5. However, the other plea prevailed with the learned single Judge. The learned single Judge observed that since the charge against the petitioner in substance amounted to this that the drugs stocked and sold by him had been produced by a manufacturer who should have obtained a licence u/s. 33D of the Act, even though the State in the territory of which such drugs were being manufactured had not issued any notification making it incumbent upon such manufacturers to obtain a licence as required u/s. 33D of the Act, the action complained against by the petitioner was prima facie discriminatory. The learned single Judge, therefore, ruled that the prohibition imposed upon the petitioner-respondent in the peculiar circumstances of the case, obviously, impinged on his right to possess and sell commodities and therefore, the impugned notification was clearly violative of his rights under Art. 19(1) (f) and (g) and Art. 304(b) of the Constn.

6. With utmost respect, we are not impressed with the plea of the petitioner-respondent that has found favour with the learned single Judge.

7. The restrictions imposed by Ss. 33D and 33E of the Act, on the face of it being to safeguard the public health and, therefore, in public interest and thus being reasonable and, in any case, no challenge to the vires of the said provisions having been laid in the writ petition, one cannot but assume that the said provisions are constitutionally valid ones.

8. These provisions did not become operative in any given State automatically after the passing of the Act. These had to be enforced by a given State Government by a notification issued in the Government gazette. It would be seen that, to begin with, both the sections were brought into force by notification, Annexure R. 1, from the same date. This was, perhaps, somewhat unreasonable, for some time-gap should have been given in the application of the two provisions in question to enable the manufacturers of the drugs to take the requisite licences and also to the dealers engaged in the stocking, selling and exhibiting of the said drugs to clear out such drugs as had been manufactured prior to the obtaining of the manufacturing licence by the manufacturers. This unreasonableness of the step that the State Government had taken by bringing into operation simultaneously the provisions of Ss. 33D and 33E had not been lost upon the State Government as well and, therefore, it modified the notification dt. 25-2-1971, Annexure R. 1, by issuing fresh notification. R. 2, dt. 15-1-1975, making the provisions of S. 33E effective from 24-1-1975 instead of 25-2-1971. Not only this, the State Government did not take any punitive action against any person or firm engaged in the stocking, selling and exhibiting of the drugs during all this period. Such being the position, nobody can label as unreasonable the action of the State Government in making the provisions of S. 33E of the act effective from 24-1-1975. Here again if the State functionaries were to swoop down upon the person or firm engaged in the stocking, selling and exhibiting of such drugs on the very next morning of the issuance of the notification, or within a week thereof, and take action against them for violating the provisions of S. 33E of the Act, the complaint would have been justified, but in the present case the State functionaries in question paid a visit to the premises of the petitioner-respondent's firm not before 8-8-1975 and found the petitioner-respondent still selling drugs which had not been manufactured by a licensed manufacturer and thus violating the provisions of S. 33E of the Act.

9. It is not the petitioner-respondent's case that the drugs and medicines that has been taken into possession from his premises by the Inspector, Ayurveda, Punjab, were those which had been purchased prior to 24-1-1975 in order to show that the said drugs when purchased could be sold without violating the provisions of S. 33E of the Act.

10. What appears to have weighed with the learned single Judge is the fact that since other States had not enforced the provisions of Ss. 33D and 33E nor the Central Government had issued directions u/s. 33P of the Act, the manufacturers located outside the Punjab State could continue to manufacture without a licence and the dealers in such States could continue to stock, sell and exhibit such drugs without incurring liability for criminal prosecution, while dealers in the Punjab State engaged in stocking, selling and exhibiting such drugs as were manufactured outside the Punjab State without licence could not do so without incurring liability for criminal prosecution.

11. Legality, constitutional or otherwise, of the requirement of a licence for manufacturing the drugs envisaged u/s. 33D of the Act and of the prohibition to stock, sell and exhibit unlicenced drugs, admittedly being not in dispute, then the enforcement of these provisions by the State, indeed, cannot be questioned either by a manufacturer of such drugs being located in such a State or the dealer who stocks, sells and exhibits such drugs, on the ground that their counter-parts in other States were not required to take a licence to manufacture or stock, sell and exhibit the drugs manufactured without a licence, as the case may be. Say for example, if in one State the Prohibition is enforced while in another State Prohibition is not enforced, can the affected person in the State, in which prohibition is imposed, plead that the prohibition is unreasonable or violative of his right under Art. 304(b) of the Constn. of India merely on the ground that his counter-parts in the other State were not prohibited either from manufacturing the liquor or selling and consuming the same. In our opinion, such a plea is not sustainable.

12. For the reasons aforementioned, we allow the appeal, set aside the judgment of the learned single Judge and dismiss the petition, but with no order as to costs.

S.S. Sandhawalia, C.J.

13. I agree.

14. Appeal allowed.


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