KPP -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3698 OF 2005 Shasakiya Nimshasakiya Aushadh Nirmata Mishrak ) Sanghatana, Maharashtra Rajya, Mumbai, through its ) General Secretary Shri R.A. Gangurde )..Petitioner versus 1. Secretary, Pharmacy Council of India, ) Temple Lane, Kotala Road, New Delhi-2 ) 2. Maharashtra State Pharmacy Council, ESIS Hospital ) Compound, LBS Marg, Mulund (West) ) 3. Director of Health Services, Maharashtra State, ) St. George Hospital Compound, Mumbai CST. ) 4. Joint Director of Health Services, M.S. ) Central Building, Near Sasoon Hospital, Pune-1 ) 5. Secretary of Health, Mantralaya, Mumbai-32. ) 6. Secretary of Medical Education, Mantralaya, first floor, ) Mumbai-400 032 ) 7. The Commissioner, ) Employees State Insurance Scheme, Govt. of Maharashtra ) Panchdeep Bhavan, N.M. Joshi Marg, Lower Parel, ) Mumbai-400 013 ) 8. The State of Maharashtra ).Respondents CORAM: P.B. MAJMUDAR & A.A. SAYED , JJ. DATE: MARCH 15, 2011. KPP -2- ORAL JUDGMENT: (Per P.B. Majmudar, J.) By this petition, the petitioner-association has prayed that it may be held that the members of the petitioner association, whose names have been mentioned in Annexure-A to the petition, be treated as trained and qualified compounders. It is prayed that direction be issued to respondent No. 2 to register the members of the petitioner association under the provisions of the Pharmacy Act. 1948 (hereinafter referred to as “the Act”). It is also prayed that the communication sent by respondent No.2 to the members of the petitioner association be withdrawn and/or cancelled with a further direction not to initiate any action against the members of the petitioner association. 2. According to the petitioners, the members of the petitioner- association are qualified Pharmacists, even though they are unregistered pharmacists not qualified to be appointed as per Section 42 of the Act. Since they are discharging their duties as compounders and handling medicines for more than 20 years, they should be treated as qualified pharmacists. It is not in dispute that the members of the association are not qualified pharmacists as prescribed by Section 42 of the Act. Though they may be doing the work of handling medicines since many years, in our view, that cannot be a ground for treating them as registered pharmacists. Since members of the petitioner- association are not qualified as per Section 42 of the Act, no directions can be issued to the authority to register them as pharmacists. As a matter of fact, they KPP -3- should not have been allowed to continue further in the matter of handling medicines since admittedly they are unregistered pharmacists and there is a bar under Section 42 of the Act by which unregistered pharmacists cannot be allowed to act as pharmacists. The petitioners accordingly are not qualified to be appointed as pharmacists. Even though it may true that the members of the petitioner association are successfully handling the medicines, yet it is dangerous to allow them to continue with the said work when they are not qualified as per the Act. 3. The petition is resisted by respondent No.1. In the affidavit filed on behalf of respondent No.1 it is pointed out that in the aforesaid subject matter, knowledge of the identification, preservation, combination, analysis and standardization of drugs and medicines besides synthesis of new drug molecules, manufacturing of various dosage forms (liquid orals, powders, tablets, capsules, ointments, injections, ophthalmic products, etc.) quality control clinical trials, bio-availability, research, side-effects, compatibility, incompatibility, indications, contraindications, pharmacokinetics, pharmacodynamics, toxicology, etc. are required. The ultimate aim is to ensure optimum drug therapy by providing information and advice to patients, where a minor lapse on the part of the pharmacist in handling drugs may cost many lives. In our view, since the members of the petitioner association are not qualified to act as pharmacists as per Section 42 of the Act, the prayer made by KPP -4- the petitioner-association that its members should be registered as pharmacists, even though they are not qualified, cannot be granted. It is surprising as to how the State Government is continuing these persons to handle the medicines for all these years even though they are not qualified and even there is no interim order granted in this petition. 4. Reference is required to be made to the observations of the Supreme Court in the case of Sharma Drug House vs. Union of India and others decided on 12th December, 1997. A copy of the order of the Supreme Court is annexed at Annexure-III to the affidavit in reply of the first respondent. The Supreme Court while deciding the Special Leave to Appeal (Civil ) No. 21954/97 observed as under: “We are surprised that it should even be urged, as the petitioner does in the present case, that it should be permitted to employ persons not duly qualified to act as Pharmacist and to handle the drugs which are sold by it. It need hardly be added that the argument does not even merit any serious consideration. While dismissing the SLP, we would like to add that in view of the perception of the petitioner it is necessary that the concerned authorities keep a strict watch over the petitioner’s conduct of the business in order to ensure that the necessary statutory requirements are duly complied with by it. A copy of this order be sent by the Registrar, Judicial to the Chief Secretary of the State of U.P. to ensure proper compliance not only by the petitioner but also by the like minded.” Considering the aforesaid fact, in the instant petition no relief can be given to KPP -5- the members of the petitioner-association. However, the learned counsel for the petitioner submits that if any penal action is taken against the members of the petitioner-association, they may be given an opportunity of being heard. It is needless to say that if any penal action is to be taken against any members of the petitioner-association, they may be given show cause notice and after considering their say, appropriate penal action may be taken in accordance with law. In short, before taking such action, principles of natural justice may be complied with. It is made clear that none of the members of the petitioner- association shall be allowed to continue to work in the matter of handling medicines by working as pharmacists/compounders since they are not qualified pharmacists under Section 42 of the Act. 5. Subject to what is stated above, the petition is dismissed. Rule is discharged. P. B. MAJMUDAR, J. A.A. SAYED, J.