Criminal Appeal No 37 of 1991
From the Judgment and Order dated 73
1989 of the Kerala High Court in Crl
Appeal No 321 of 1986
PS Poti and TT Kunhikannan for the Appellants
TS Krishnamoorthy lyer and N Sudhakaran for the Respondents
The Judgment of the Court was delivered by VERMA J
The respondents were found guilty by the trial Court for contravention of para 21 read with para 18 of the Drugs Prices Control Order 1979 hereinafter referred to as the Order issued under Section 3 of the hereinafter referred to as the Act  and accordingly convicted under Section 7 of the Act
Respondent No 1 firm was sentenced to a fine of Rs2000 while respondents 2 and 3 who were the managing partner and pharmacist of the firm were sentenced to three months simple imprisonment
The High Court of Kerala at Ernakulam hereinafter referred to as the High Court  allowed their appeal against the con 67 viction and sentence and acquitted all of them
Hence this special leave petition against their acquittal
Leave granted
The allegation on which the prosecution of the respondents was based is that they collected Rs 90 in excess of the maximum retail price fixed for the sale of 15 tablets of Largactil of 100 mg each and 60p
in excess for 100 tablets of Hipnotex of 5 mg each from one Sepastian Joseph a Nursing Assistant in the Medical College Hospital Kottayam on 421985
It is alleged that recovery of the amount in excess of the maximum retail price fixed for the sale of these medicines under the drugs Prices Control Order 1979 was a contravention of the provisions contained therein which is punishable under Section 7 of the 
The trial Court rejected the several defences raised by the respondents and found them guilty of contravention of para 18 read with para 21 of the Order which is an offence punishable under Section 7 of the 
The respondents were accordingly convicted and sentenced as aforesaid
As earlier stated the respondents  appeal to the High Court has succeeded and they have all been acquitted
The High Court has taken th view that on these allegations contravention of para 18 of the Order is not made out
The High Court has summarised its conclusion as under The upshot of the above discussion is that Largactil and Hipnotex Chlorpromazine and nitrazepam are only bulk drugs and not formulation
The appellants none of whom is a manufacturer or distributor cannot be convicted for contravention of paragraph 18 of the Order
The position is seemingly different in the Order of 1987 because paragraph 18 of the Order of 1987 contains inhibition against sale of bulk drugs also
In the result I allow this appeal and set aside the conviction and sentence
The appellants are acquitted and are directed to be set at liberty
The real question for decision in the present case is the correctness of the construction made by the High Court of the provisions of the Order 
Shri PS Poti learned counsel for the appellants contended that the grievance in this appeal is really to the construction 68 made by the High Court of the provisions of the Order  which is affecting a large number of similar matters are not to the outcome of individual matter before us
Learned Counsel contended that the appellants are not much interested in assailing the acquittal in the present individual matter but the correct construction of the provisions of the Order is necessary for future guidance
In our opinion it is necessary to examine the provisions of the Order  and to indicate their correct meaning in view of the general importance thereof
The Order was made by the Central Government in exercise of the powers conferred by Section 3 of the 
Para 2 of the order contains the definitions some of which may be referred
Clause a of para 2 defines bulk drug  to mean any substance  which is used as such or as an ingredient in any formulations 
Dealer  is defined in clauseb to mean a person carrying on the business of purchase or sale of drugs whether as a wholesaler or retailer and includes an agent of a dealer Drug  is defined in clause d to include bulk drugs and formulations 
Clause f defines formulation  to mean a medicine processed out of or containing one or more bulk drugs or drug 
Clause q defines price list  to mean a price list referred to in this Order
Clause r defines retail price  to mean the retail price of a drug arrived at or fixed in accordance with the provisions of this Order
The other clauses of Para 2 contain other definitions including the definitions of retailer  and wholesaler
It is not necessary to refer to them in detail
Para 3 contains the power to fix the maximum sale price of indigenosly manufactured bulk drugs specified in First or Second Schedule of the Order
Para 19 requires every manufacturer or importer of a formulation to furnish to the dealers State Drug Controllers and the Government a price list showing the price at which the formulation is sold to a retailer and every dealer is required to display the price list at a conspicuous part of his business premises
Part 20 required every manufacturer importer or distributor of a formulation to display on label of the container the maximum retail price of that formulation
Paras 18 21 and 22 the construction of which is in dispute read as under 18
Certain provisions of this Order to apply to formulations not included in Category I Category II or Category III of Third Schedule
The provision of this Order other than those contained in paragraphs 10 to 14 both inclusive shall apply to any formulation not specified in Category I Category II or Category III of the Third Schedule 69 21
Control of sale prices of formulations specified in Third Schedule
No retailer shall sell any formulations specified in any of the categories in the Third Schedule to any person at a price exceeding the price specified in the current price list or the price indicated on the label of the container or pack thereof whichever is less plus the local taxes if any payable
Explanation
For the purposes of this paragraph local taxes include sales tax and octroi actually paid by the retailer under any law in force in a particular area 22
Sale of split quantities of formulations
No dealer shall sell loose quantity of any formulation drawn from a bottle pack of such formulation at a price which exceeds the pro rate price of the formulation plus 5 per cent thereof
provided that nothing in this behalf shall apply to any formulation compounded at the premises of the dealer
 The view taken by the High Court is that the two formulations namely Largactil and Hipnotex the sale of which at an excess price is alleged to be the contravention of the Order not being formulations specified in any of the categories in the Third Schedule to the Order the prohibition contained in para 21 of the Order has no application
On this basis the view taken is that the sale of these two formulations in excess of the retail price fixed for their sale is not a contravention of any provision of the Order to attract the punishment provided under Section 7 of the 
It has also been held by the High Court that none of these two medicines is a formulation as defined in clause f of para 2 of the Order but merely a bulk drug which fact also excludes the application of para 21 of the Order
It appears that this position was not seriously contested even by the learned public prosecutor in the Courts below
In our opinion such a view results from a mis reading of the material provisions of the Order
The definition of bulk drug  given in clause a of para 2 shows that it means any substance which is used as such  or as an ingredient in any formulations 
Thus a bulk drug is one which may be capable of use by itself or as an ingredient in any formulation
Drug is defined in clause d of para 2 to include bulk drugs  and formulations 
Clause 70 f then defines formulation  to mean any medicine processed out of or containing one or more bulk drugs or drug
Thus formulation is a medicine which may comprise even of one bulk drug by itself or more than one bulk drug
The definition of formulation  is thus very wide and includes even one bulk drug where that one bulk drug by itself is treated as a medicine
It is difficult to uphold the view that the two medicines namely Largactil and Hipnotex do not fall within the definition of formulation  contained in clause f of para 2 of the Order
One of the two difficulties pointed out by the High Court in applying para 21 of the Order to the present case is clearly out of the way
The only surviving question now is whether para 21 of the Order is rendered inapplicable merely because none of these formulations is specified in any of the categories in the Third Schedule to the Order
In other words is the High Court correct in taking the view that notwithstanding the fixation of the maximum retail price of these formulations in accordance with the provisions of the Drugs Prices Control Order 1979 there is no provision made therein to prohibit their sale at an amount in excess of the maximum retail price fixed under the Order to attract the punishment provided in Section 7 of the  In our opinion it is not so
There is no controversy that by an amendment made in 1987 to which we shall refer later the matter has been placed beyond the scope of any argument
However even prior to that amendment the matter is clear by the express provision contained in para 18 as it existed even then
Para 18 clearly says that the provisions of this Order other than those contained in paragraphs 10 to 14 both inclusive  shall apply to any formulations not specified in Category I Category II or Category III of the Third Schedule
It is plain that the provisions of the Order except paragraphs 10 to 14 which have been expressly excluded are specifically made applicable to formulations which are not specified in the Third Schedule
It is therefore clear that the provisions of para 21 which in terms are meant to control sale prices of formulations specified in the Third Schedule as also the other provisions of the Order which in terms may be of limited application are specifically made applicable to all formulations as defined in the Order except only paragraphs 10 14 which have been expressly excluded
It is by virtue of para 18 that the prohibition contained in para 21 has been made applicable to formations not specified in the Third Schedule
This is also the logical view to take
The contrary view would lead to the conclusion that inspite of the price fixation made for the formula 71 tions not specified in the Third Schedule there is no prohibition made against its sale for an amount in excess thereof with the result that the price fixation would be an exercise in futility
The Drugs Prices Control Order 1987 which has replaced the Drugs Prices Control Order 1979 contains paras 18 and 21 differently worded to show clearly that such an argument is now not even available under the 1987 Order
We are clearly of the opinion that the High Court misconstrued the provisions of the Drugs Prices Control Order 1979 to take the view that none of the aforesaid two medicines namely Largactil and Hipnotex are formulations  as defined in Section 2f of the Drugs Prices Control Order 1979 and that the sale of these two medicines for an amount in excess of the maximum retail price fixed is not punishable under para 21 read with para 18 of the Order
The only question now is of the order we should make in this matter
Shri TS Krishnamurthy lyer learned counsel for the respondents very fairly stated that the construction we have made of the several provisions of the 1979 Order including paras 18 and 21 thereof cannot be seriously disputed
However he contended that the respondents had raised several defences none of which has been considered by the High Court since it acquitted the respondents only on the construction it made of these provisions
He therefore argued that setting aside the High Court s order should not automatically lead to restoration of conviction and sentence made by the trial court since other defences raised by the respondents remain for consideration
He suggested that in view of the lapse of several years from the date of the alleged offence and the peculiar facts of this case we may merely set aside the High Court s order but not restore the conviction and sentence of the respondents
He pointed out that the customer to whom the medicines are alleged to have been sold at an excess price is himself a member of the nursing staff of a hospital and it is unreasonable to take the view that he would pay Rs 99 for 15 tablets of Largactil against its retail price of Rs 9 only particularly when he had been purchasing these drugs for a long time
We find merit in the contention of learned counsel for the respondents and we are inclined to adopt the course suggested by him in the light of peculiar facts of this case
In our opinion it would be inappropriate after the lapse of several years to send back the case to the High Court for the deciding the remaining defences raised by the respondents which would further prolong conclusion of the trial
It is also clear that without rejecting the other defences it is not possible to uphold the conviction and sentence 72 awarded by the trial court
In such a situation the course suggested by Shri TS Krishnamurthy lyer particularly in view of the stand taken by Shri PS Poti on behalf of the appellants that the appellants are more keen to know the correct meaning of the provisions of the Order appears to be the proper course to adopt in the present case
Consequently we reject the High Court s construction of the provisions of the Order  and hold that allegations in the present case if proved would amount to a contravention of para 21 read with para 18 of the Drugs Prices Control Order 1979 which is punishable under Section 7 of the 
However for the reasons already given we do not interfere with the acquittal of the respondents
The appeal is disposed of accordingly
YL Lal Appeal allowed partly


Summary:
The petitioner filed a writ petition in this court by way of public interest litigation alleging that the respondents West Bokaro Collieries and Tata Iron and Steel Company TISCO were polluting the river Bokaro by discharging surplus waste in the form of sludgeslurry as effluent from their washeries into river making the river water unfit for drinking and irrigation purposes thereby causing risk to the health of the people the State of Bihar and the State Pollution Control Board have failed to take appropriate steps for prevention of the pollution and instead the State of Bihar has granted leases on payment of royalty to various persons for collection of slurry
Accordingly the petitioner prayed for directions to the respondents to take immediate steps prohibiting the pollution of the river and to take legal action against TISCO under the 
The petitioner also claimed interim relief from this Court that he should be permitted to collect sludgeslurry flowing out of washeries of the respondents
6 The respondents contested the petition denying the petitioner s allegations
Bihar State Pollution Board asserted that directions have been issued to the Bokaro Collieries to take effective steps for improving the quality of the effluent going into the river Bokaro and that the TISCO Company has been granted permission to discharge their effluents from their outlets in accordance with sections 25 and 26 of the 1974 Act
On behalf of TISCO and the Bokaro Collieries it was contended that all effective steps have been taken to prevent the pollution and they have complied with the instructions of the State Pollution Board
By an order dated 13121990 this Court dismissed the writ petition with costs
Giving reasons for dismissal of the petition this Court HELD 1
Article 32 is designed for the enforcement of Fundamental Rights of a citizen by the Apex Court
It provides for an extra ordinary remedy to safeguard the fundamental rights of a citizen
Right to life is a fundamental right under Article 21 of the Constitution and it includes the right of enjoyment of pollution free water and air for full enjoyment of life
If anything endangers or impairs that quality of life in derogation of laws a citizen has right to have recourse to Article 32 of the Constitution for removing the pollution of water or air which may be detrimental to the quality of life
A petition under Article 32 for the prevention of pollution is maintainable at the instance of affected persons or even by a group of social workers or journalists
But recourse to proceeding under Article 32 of the Constitution should be taken by person genuinely interested in the protection of society on behalf of the community
Public interest litigation cannot be invoked by a person or body of persons to satisfy his or its personal grudge and enmity
If such petitions under Article 32 are entertained it would amount to abuse of process of the Court preventing speedy remedy to other genuine petitioners from this Court
Personal interest cannot be enforced through the process of this Court under Article 32 of the Constitution in the garb of a public interest litigation
Public interest litigation contemplates legal proceeding for vindication or enforcement of fundamental rights of a group of persons or community which are not able to enforce their fundamental rights on account of their incapacity poverty or ignorance of law
A person invoking the jurisdiction of this Curt under Article 32 must approach this Court for the vindication of the fundamental rights of affected persons and not for the purpose of vindication of his personal grudge or enmity
It is duty of this Court to 7 discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking the extra ordinary jurisdiction of this Court for personal matters under the garb of the public interest litigation
13C H 14A Bandhua Mukti Morcha vs Union of India   Sachindanand Pandey vs State of West Begal   Ramsharan Autyanuprasi  Anr
vs Union of India  Ors
 1989 Suppl
1 SCC 251 Chetriya Pardushan Mukti Sangharsh Samiti vs State of UP  Ors 1990 4 SCC 449 referred to 2
The present petition is not filed in public interest instead the petition has been made by the petitioner in his own interest
Infact there is intrinsic evidence in the petition itself that the primary purpose of filing this petition is not to serve any public interest instead it is in self interest
The petitioner has been purchasing slurry from the respondents for the last several years
With the passage of time he wanted more and more slurry but the Company refused to accept his request
He removed the Company s slurry in an unauthorised manner for which criminal cases are pending against him and his brother
Since the respondent company refused to sell additional slurry he entertained a grudge against the company and in order to feed fat his personal grudge he resorted to several proceedings against the company including the present one
The prayer for the interim relief made by the petitioner ie permitting him to arrestcollect sludgeslurry flowing out of the washeries of the respondents with a direction to the State of Bihar its officers and other authorities for not preventing him from collecting the sludgeslurry and transporting the same also collecting the sludgeslurry and transporting the same clearly indicates that he is interested in collecting the slurry and transporting the same for the purposes of his business
Therefore there is no good reason to accept the petitioner s allegation that the water of the river Bokaro is being polluted by the discharge of sludge or slurry into it form the washeries of the respondent company
On the other hand it is evident from records that the State Pollution Control Board has taken effective steps to check the pollution
14B12F G Kundori Labours Cooperative Society Ltd  etc
vs State of Bihar  Ors
 AIR 1986 Patna 242 Bharat Cokin Coal Ltd vs State of Bihar  Ors  Judgments Today vol
3  referred to