IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 27008 of 2007(M) -------------------------- PETITIONERS: ------------ 1. RAJENDRAN K.K., PROPRIETOR, S.N.AYURVEDA PHARMACY, NEEZHOOR, RESIDING AT KAITHAKKATTU HOUSE, VADAKKENIRAPPUR PO NEEZHOOR, KOTTAYAM 686 612. 2. SAJEEV C.P., CHERUKATTIL VEEDU, VATTUKULAM P.O., KADAPPUR, KOTTAYAM DISTRICT. BY ADV. SRI.K.RAMAKUMAR (SR.) SRI.M.MANOJKUMAR (CHELAKKADAN) RESPONDENTS: ------------- 1. THE SUPERINTENDENT OF POLICE, KOTTAYAM. 2. THE DY.SUPERINTENDENT OF POLICE, PALAI. 3. THE CIRCLE INSPECTOR OF POLICE, KADATHURUTHY, KOTTAYAM DISTRICT. 4. THE ASSISTANT EXCISE COMMISSIONER, KOTTAYAM. 5. THE CIRCLE INSPECTOR OF EXCISE, VAIKOM. ADDL.R6 THE CIRCLE INSPECTOR OF POLICE, ETTUMANOOR ADDL.R6 IS IMPLEADED AS PER ORDER DTD 25.9.07 IN I.A.NO.12475/07 BY GOVERNMENT PLEADER SRI.P.A.SALIM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.27008/2007 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 COPY OF THE LICENCE IN FORM 25-D ISSUED TO THE 1ST PETITIONER. EXT.P2 COPY OF THE LICENCE IN FORM 26-D ISSUED TO THE 1ST PETITIONER. EXT.P3 COPY OF THE CERTIFICATE DTD 11.12.03 ISSUED TO THE 1ST PETITINER BY THE GOVERNMENT THROUGH DRUGS CONTROL ADMN. EXT.P4 COPY OF THE LICENCE IN FORM L-2 TO MANUFACTURE MEDICINAL PREPARATIONS. EXT.P5 COPY OF THE LICENCE FOR WHOLSESALE POSSESSION AND SALE OF SPIRITUOUS PREPARATION ISSUED TO THE 1ST PETITIONER. EXT.P6 COPY OF THE LICENCE ISSUED TO THE 1ST PETITIONER UNDER THE PREVENTION OF FOOD ADULTERATION ACT. EXT.P7 COPY OF THE ORDER DTD 3.3.05 ISSUED BY THE EXCISE COMMISSIONER. EXT.P8 COPY OF THE JUDGMENT DTD 31.10.06 IN WPC 27688/06. EXT.P9 COPY OF THE LICENCE ISSUED TO THE 2ND PETITIONER BY THE KANAKKARY GRAMA PANCHAYAT DTD 9.8.07. EXT.P10 COPY OF THE CERTIFICATE OF CHEMICAL ANALYIS IN RESPECT OF THE SAMPLES COLLECTED FROM THE 1ST PETITIONR. /TRUE COPY/ cl K. BALAKRISHNAN NAIR & P.N. RAVINDRAN, JJ. --------------------------------------------------------------- W.P.(C).NO.27008 OF 2007-M -------------------------------------------------------------- Dated this the 9th day of April, 2008. JUDGMENT Balakrishnan Nair, J: The writ petitioners have approached this Court feeling aggrieved by the alleged harassment from the part of the respondents, who are police and excise officials. 2. The brief facts of the case, as stated by the petitioners, are the following: The 1st petitioner is the manufacturer of Ayurvedic medicines. S.N. Ayurveda Pharmacy is a proprietary concern, which is engaged in manufacturing of Ayurvedic medicines. The 2nd petitioner is his agent for the distribution of the medicines manufactured by the 1st petitioner at Kadappur. The 1st petitioner has got all the statutory licences, it is submitted. Ext.P1 is the licence issued in Form No.25 D under Rule 151 of the Drugs and Cosmetics Rules by the Deputy Drugs Controller, Ayurveda, who is the licencing authority. Ext.P1 enables the 1st petitioner to manufacture Ayurvedic medicines for sale. Ext.P2 is the certificate of renewal of Ext.P1 for the period WPC.NO.27008/07 . 2 from 1.1.2005 to 31.12.2006. Ext.P3 is the certificate of good manufacturing practice issued by the Drugs Control Administration, Government of Kerala, to the 1st petitioner on 11.12.2003. Ext.P4 is a licence issued in Form L2 under Rule 83 of the Medicinal and Toilet Preparations(Excise Duties) Rules, 1956. The said licence authorises the 1st petitioner to manufacture Medicinal and Toilet Preparations containing alcohol. Schedule to that licence would show that the 1st petitioner has been authorised to manufacture 5,000 litres of each of the Arishtoms and Asavams mentioned therein. Ext.P4 has been valid up to 2006-2007. The 1st petitioner has got a licence for the possession and wholesale of spirituous preparations issued in Form SP VI under Rule 11 of the Spirituous Preparations Control Rules framed under the Kerala Abkari Act. It is granted in respect of Building No.III/22, 2nd Floor of Neezhoor Grama Panchayat in Vaikom taluk. He has also a licence issued under Form SP VII of Rule 11 of the above said Rules which is a licence for the retail sale of spirituous preparations. The said licence was valid up to 2006-07. The 1st petitioner has got a licence under the P.F.A Act, a copy of which is produced as Ext.P6. The 2nd petitioner is having a D & O licence under the Kerala Panchayat Raj Act for stocking and selling of Ayurvedic medicines as evident WPC.NO.27008/07 . 3 from Ext.P9. 3. The petitioners submit that in spite of the above statutory licences, the police and excise officials are making frequent and unschedule visits to their business premises and harassing them. In view of the harassment meted out to the petitioners and others, similarly placed persons filed a batch of writ petitions before this Court. Pursuant to the directions in the above writ petitions, the Excise Commissioner has issued Ext.P7 directing excise officials not to harass those who manufacture Ayurvedic medicines. Notwithstanding Ext.P7, the police and excise officials are frequently raiding the factory of the 1st petitioner. Therefore, the 1st petitioner filed W.P.C.No.27688/2006 before a Division Bench of this Court challenging the harassment from the part of the police. The said writ petition was disposed of by Ext.P8 judgment recording the submission of the learned Government Pleader that the respondents have no intention to harass the petitioners but, they are only discharging their duties in accordance with law. 4. Some time back, samples were taken from the factory of the 1st petitioner for analysis. Ext.P7 is the chemical analysis report WPC.NO.27008/07 . 4 which would show that no noxious ingredients injurious to health were found in it. The respondents are compelling the 2nd petitioner to close down his agency and stop his business. In the above background, this writ petition is filed seeking the following reliefs: “i. To issue a writ of mandamus commanding the respondents not to unnecessarily harass the petitioners by conducting inspection, raids and other forms of harassment and humiliation, which will have the effect of altogether crippling the very running of the establishments run by the petitioners for manufacture and sale of Ayurvedic medicines. ii. To direct the respondents to comply with the directives of the Excise Commissioner in the event any violation of the licence is noticed as per Ext.P7.” 5. The 5th respondent has filed a statement. In the statement, it is submitted that the 1st petitioner is having a valid SP VI licence as also SP VII licence for the financial year 2007-08. As per the licence conditions, the 1st petitioner can sell Ayurvedic preparations only to the persons having SP VII licence. He cannot engage any agents for the sale of the medicines. Further, in view of Condition No.12 in the 1st petitioner's SP VI and SP VII licences, the authorities WPC.NO.27008/07 . 5 are entitled to inspect his premises at any time. On the basis of the information received, the Excise Officials conducted a surprise visit in the factory of the 1st petitioner. The said petitioner is having a history of committing offence under the Abkari Act. He is the 2nd accused in Crime No.21/2003 booked on 19.3.2003 under Section 12(b) of the Abkari Act read with Rule 10 of the Spirituous Preparations Control Rule, 1969. In the said case, the 1st petitioner was convicted. The 2nd petitioner is the agent of the 1st petitioner and he is not possessing any valid licence under any of the provisions of the Act. If the 2nd petitioner is doing business in arishtams and asavams, he is liable to be prosecuted under the provisions of the Act. The crime No.21/2003 was booked against the 1st petitioner for selling medicinal preparations to persons having no licence. From the writ petition, it is evident that the 1st petitioner is continuing his illegal business of selling medicines through the 2nd petitioner by violating the licence conditions. It is asserted that the Circle Inspector of Excise is entitled to conduct routine inspections in the 1st petitioner's premises. 6. The additional 6th respondent Police Officer has also filed a statement. In the said statement, it is submitted that the 2nd WPC.NO.27008/07 . 6 petitioner is running a C.D. cassette shop at Kadappur junction. He is illegally selling Ayurvedic preparations like Arishtams. There were several complaints against him. Therefore, the said respondent conducted a search in the business premises of the 2nd petitioner at 9 p.m on 4.7.2007. Several bottles of Arishtams were recovered apart from two measuring cans, lot of empty bottles, glasses etc. So, crime was registered against the 2nd petitioner as Crime No.277/2000 under Rule 10 of the Spirituous Preparations Control Rule. During investigation, it was found that Ayurvedic medicines were supplied to the 2nd petitioner by the 1st petitioner. The 2nd petitioner has no licence nor he is an Ayurveda Practitioner. The additional 6th respondent submitted that he has acted only in accordance with law. The petitioners have filed a reply affidavit dealing with the averments of the additional 6th respondent. The learned Government Pleader has filed a memo and along with that, a complaint received against the 2nd petitioner from certain ladies of the locality has been produced. 7. Heard the learned counsel on both sides. The learned counsel for the petitioners submitted that the 1st petitioner is an honest business man dealing in Ayurvedic medicines. In view of Ext.P7 WPC.NO.27008/07 . 7 circular, actions of the excise and police officials are illegal. If any action is to be taken against the 1st petitioner as per the directions in Paragraph 3 of Ext.P7 circular, the concerned official should seek permission of the Excise Commissioner. It is asserted that the 1st petitioner is doing the business in accordance with law after obtaining all requisite licences. Even then, the 1st petitioner is being unnecessarily harassed. 8. The learned Government Pleader appearing for the official respondents submitted that the allegations of harassment are absolutely unfounded. As per Condition No.12 of SP VI and SP VII licences of the 1st petitioner, the excise officials are entitled to conduct periodical visits in the business premises of the 1st petitioner. That was only what was done in this case. Further, it is pointed out that the 1st petitioner can sell Ayurvedic medicines only to dealers having SP VII licence. The sale of medicines by the 1st petitioner to the 2nd petitioner is illegal. The 1st petitioner cannot give medicines to the 2nd petitioner to make retail sale of it as the latter has no licence or authorisation to engage in sale of Ayurvedic medicines. The learned Government Pleader also pointed out that for transporting the Ayurvedic medicines, the 1st petitioner WPC.NO.27008/07 . 8 should have licence in Form SP V. The 1st petitioner does not have a case that he has got any licence to transport Ayurvedic medicines. The learned Government Pleader also submitted that Ext.P7 circular is meant to protect only Ayurvedic Practioners/institutions. The 1st petitioner, admittedly, is not an Ayurvedic Practitioner. So, he is not entitled to get the protection of Ext.P7, it is submitted. 9. We considered the rival submissions made at the bar. From the materials on record, it is evident that the 2nd petitioner has no right to make retail sale of the Ayurvedic medicines. By supplying the medicines to him, the 1st petitioner has committed violation of the licence conditions. The complaint of the 2nd petitioner against interference with his business in Ayurvedic medicines by the excise and police officials is plainly unfounded. He should not be permitted to deal in Ayurvedic medicines and his business in that regard should be stopped. 10. The 1st petitioner is entitled to manufacture Ayurvedic medicines and supply the same to SP VII licencees. But, as per the licence conditions, the excise and police officials should be conceded power to inspect the business premises to find out whether any irregularity WPC.NO.27008/07 . 9 is being committed . Even assuming that the petitioner is a reputed institution covered by Ext.P7, the question of seeking permission of the Excise Commissioner arises only if irregularities are found on inspection. Therefore, we agree with the contention of the learned Government Pleader that without the permission of the Excise Commissioner, the excise officials can inspect the manufacturing unit as well as the wholesale and retail shops of the 1st petitioner. Visiting the premises and taking samples cannot be described as any harassment. They are part of the routine duties of the officials concerned. Having regard to the facts disclosed in this writ petition, no relief can be granted to the 1st petitioner. In the result, the writ petition fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE P.N. RAVINDRAN, JUDGE. cl WPC.NO.27008/07 . 10