IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 WP(C).No. 37156 of 2009(L) ----------------------------------------- PETITIONER(S): ----------------------- T.RAVINDRAN, (PROPRIETOR), DEVI NIVAS, CHITTUR ROAD, MANAPULLIKKAVU, PALAKKAD-678 013. BY MR.P.RAVINDRAN, SENIOR ADVOCATE MR.P.DEEPAK SMT.APARNA RAJAN RESPONDENT(S): ------------------------ 1. ALBATROSS DRUGS & BIOTECH PVT.LTD, KOPPAM, PALAKKAD-1. 2. ALKEM LABORATORIES LIMITED, 34/544B, N.H.BYPASS ROAD, PADIVATTOM, EDAPPALLY, KOCHI-24. 3. ASTRA ZENECA, 31/2144-B-1, THAMMANAM, KOCHI-32. 4. BIOCON LIMITED, 32/312 A1, PUDIYA ROAD, THAMMANAM, KOCHI-32. 5. CHIRON PANACEA VACCINES PVT.LTD., ASSOCIATED AGENCIES, 48/425 G3, OPP.POPULAR VEHICLES, RAGHAVAN PILLAI ROAD, ELAMAKKARA, KOCHI-26. 6. FRANCO INDIAN PHARMACEUTICALS PCT.LTD., 20/301, N.H.47, CHANGAPUZHA NAGAR, SOUTH KALAMASSERY, KOCHI-33. 7. GROUP PHARMACEUTICALS LTD., 39/2780, GROUND FLOOR, PALIYAM ROAD, KOCHI. W.P.(C) NO.37156/2009 8. GLAXO SMIKLINE PHARMACEUTICALS LTD., 7/281, B&C, OPP.LITTLE FLOWER CHURCH, KUNDANNUR-CHILAVANNUR ROAD, MARADU.P.O, ERNAKULAM-682304. 9. INTAS PHARMACEUTICALS LTD., 37/3742 & 3743, SREE VALSAM, PONOTH ROAD, KALOOR, ERNAKULAM-17. 10. INDOCO REMEDIES LIMITED, 44/3778 B, FIRST FLOOR, KARUKAPPILLY JUNCTION, DESABHIMANI ROAD, ERNAKULAM-17. 11. NOVARTIS INDIA LIMITED, N.J.BUSINESS CORPORATION, KARUKAPPILLY JUNCTION, DESABHIMANI ROAD, ERNAKULAM-17. 12. SANDOZ PVT.LTD., 44/3055A, KARUKAPPILLY JUNCTION, DESABHIMANI ROAD, ERNAKULAM-17. 13. NOVARTIN INDIA LIMITED, ANUJITH AGENCIES, 40/2202, K.N.MATHEW BUILDING, MARKET ROAD, ERNAKULAM-11. 14. SNEHA DISTRIBUTORS PVT.LTD., (M/S.MICRO LABS LTD.) NO.XL/7054, FIRST FLOOR, T.D.ROAD, ERNAKULAM-35. 15. SARASH AGENCIES, (M/S.MEDOPHARM), 27/2164, KADAVANTHARA, KOCHI-20. 16. PFIZER LIMITED, 33/177D5, ALINCHUVADU, KOCHI-24. 17. RAJ DISTRIBUTORS,(M/S.MICRO LAB LTD.,), 40/1364, T.D.ROAD, ERNAKULAM-11. 18. SOLVAY PHARMA INDIA LIMITED, BEHIND CENTRAL EXCISE & INCOME TAX OFFICE, ERNAKULAM-18. 19. LEO ENTERPRISES, (M/S.SYSTOPIC LABOTORIES), 25/1289, PAZHAYANADAKKAVU, TRICHUR-1. W.P.(C) NO.37156/2009 20. J.B.CHEMICALS & PHARMACEUTICALS LTD., 1/135 A, KEVI WARE HOUSE, WEST HILL, CALICUT-5. 21. ADITYA MEDISALES LIMITED, (M/S.SUN PHARMACEUTICALS LTD.,), 28/3827 B, MANDOLI BUILDING, KADAVANTHARA POST, KOCHI. 22. GLAXO SMITHKLINE CONSUMER HEALTHCARE LTD (22/138 & 139, PIPELINE JUNCTION, TRIKKAKARA, KOCHI-33. 23. SREE MAHALAKSHMI DISTRIBUTORS, (M/S.MICRO LABS LTD.,), 145/A, GROUND FLOOR, V.P.MARAKKAR ROAD, ERNAKULAM-24. 24. PAREKH INTEGRATED SERVICES PVT.LTD., (M/S.ALCON), 43/1699-A, ARIAPILIL HOUSE, KELAMANGALATH LINE, SRM ROAD, COCHIN-12. 25. ORDAIN HEALTHCARE, 31/449F, EDAPPALLY., KOCHI-24. 26. GECO AGENCIES, (M/S.MOLEKULE INDIA PVT.LTD.,) 35/1297 C, PALARIVATTOM, KOCHI-25. 27. THE ASSISTANT DRUGS CONTROLLER, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, THRISSUR. 28. THE ASSISTANT DRUGS CONTROLLER, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, CIVIL STATION, KAKKANAD, ERNAKULAM. 29. THE ASSISTANT DRUGS CONTROLLER, OFFICE OF THE ASSISTANT DRUGS CONTROLLER, CALICUT. W.P.(C) NO.37156/2009 30. DRUGS CONTROLLER AND LICENSING AUTHORITY, THIRUVANANTHAPURAM. R2 BY ADVS.MR.G.SUBRAMANIAN, MR.BOBBYMATHEW KOOTHATTUKULAM. R4 BY MR.VARGHESE PREM R6 BY ADVS. MR.LEGY ABRAHAM, SMT.A.M.FASEENA. R8 BY MR.M.T.SURESHKUMAR, MR.R.RANJITH. R10 BY SMT.S.K.DEVI , MR.SANTHOSH P.ABRAHAM. R11, R12 BY MR.SATHISH NINAN, MR.SANTHOSH MATHEW, MR.ARUN THOMAS, MR.JENNIS STEPHEN. R3 & R19 BY MR.ALIAS M.CHERIAN R16 BY MR.B.S.KRISHNAN, SENIOR ADVOCATE R16 BY ADV.SMT.LATHA KRISHNAN R18 BY MR.P.R.VENKETESH, MR.P.R.RAJA . R14 & 17 BY MR.C.A.CHACKO. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37156/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LICENSE GRANTED TO THE PETITIONER IS VALID 31.12.06. P(a):- COPY OF THE LICENCE GRANTED TO THE PETITIONER IS VALID TILL 31.12.2006. P2:- COPY OF THE CHALLAN RECEIPT DTD. 6.12.06. P3:- COPY OF THE ORDER CANCELLING THE PETITIONER'S LICENCE DTD. 6.7.09. P4:- COPY OF THE INTERIM ORDER IN WPC. 24299/0 DTD. 25.8.09. P5:- COPY OF THE REPRESENTATION SUBMITTED TO THE 2ND RESPONDENT DTD. 17.11.2009. P5(a):- COPY OF THE REPRESENTATION SUBMITTED TO THE 3RD RESPONDENT DTD. 17.11.09. P5(b):- COPY OF THE REPRESENTATION SUBMITTED TO THE 6TH RESPONDENT DTD. 17.11.2009. P5(c):- COPY OF THE REPRESENTATION SUBMITTED TO THE 11TH RESPONDENT DTD. 17.11.2009. P5(d):- COPY OF THE REPRESENTATION SUBMITTED TO THE 15TH RESPO DTD. 17.11.2009. P5(e):- COPY OF THE REPRESENTATION SUBMITTED TO THE 16TH RESPONDENT DTD. 17.11.2009. P6:- COPY OF THE REPRESENTATION SUBMITTED TO THE ASST. DRUGS CONTROLLER, THRISSUR DTD. 7.12.2009. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 37156 of 2009-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of March, 2010. JUDGMENT The petitioner is a licensed wholesale distributor of allopathic medicine. He is having a licence for the same as Exts.P1 and P1(a). This writ petition is filed seeking for a direction commanding respondents 1 to 26 to resume supply of medicines and drugs to the petitioner at the rate applicable to wholesale dealer. A further direction is sought for commanding respondents 27 to 30 to take immediate steps to force respondents 1 to 26 to continue supply of medicine to the petitioner without interruption. 2. The contesting respondents have filed counter affidavits in the matter. Mainly it is contended that there is no obligation for the respondents to supply drugs and medicines to the petitioner as they are supplying medicines to their Authorised Retail Distributors. 3. This Court considered the same issue in detail in the judgment in W.P.(C) No.30867/2009 and connected cases. Paragraphs 11 to 16 of the said judgment are extracted below: “11. Before going further, it is apposite to refer to the findings wpc 37156/2009 2 rendered by this Court in Ext.P3 judgment produced in W.P.(C) No.30867/2009. After referring to the various aspects under the Drugs (Price Control) Order, this Court entered the following findings in para 8: “Considering the merits and demerits of the relative submissions made from either side, the undisputed fact is that the petitioners are at liberty to procure the medicines from the Manufacturers through the concerned Stockists/Distributors appointed by the Manufacturers on payment of requisite price as fixed in respect of such medicines, notwithstanding the fact that the petitioners are not Distributors/Stockists appointed by the Manufacturers. It is pointed out that the Manufacturers will ensure that there will not be any interruption with regard to the supply of medicines on pursuing such a course and that every effort will be taken to give effect to the mandate prescribed under Para 18 of the 'Order' for ensuring supply of Drugs.” It is clear from the above findings that the petitioners are at liberty to procure the medicines from the manufacturers or through the concerned distributors appointed by them, on payment of requisite price as fixed in respect of such medicines. The whole argument of the parties herein rests upon the expression “price as fixed.” While the petitioners contend that being wholesale distributors, they are to be supplied medicines at the price fixed by the manufacturer for wholesale distributors, it is the contention of the manufacturers that the petitioners should get medicine from the distributors who have been appointed by them. 12. The question is whether it is up to the official respondents to take appropriate action in the matter. 13. In the counter affidavit filed by the 8th respondent in W.P.(C) No.36675/2009, Asst. Drugs Controller, it is mentioned wpc 37156/2009 3 that on receipt of Ext.P7 representation therein, action has been initiated by the said respondent to verify whether there is any instance of withholding from supplying drugs as contemplated in clause 18 of the Drugs (Price Control) Order, 1995. It is further submitted therein that “if on verification of the records, it is found that there is willful denial on the part of the manufacturer to supply the drugs sought for by the petitioner, necessary action will be taken by this respondent as provided under Clause 18 of the Drugs Price Control Order 1995 as directed by this Hon'ble Court in W.P.(C) No.6838/09. Of course, Shri Varghese Prem, learned counsel appearing for the 5th respondent therein, submitted that the petitioner in that writ petition is not having licence which is disputed by learned Senior Counsel Shri P. Ravindran who submitted that the said matter is pending in a Writ Appeal before this Court, wherein this Court passed an interim order also. The counter affidavit filed by the second respondent therein is also on identical lines. 14. Now that the matter has already attained a finality by Ext.P3 judgment, it is not necessary for me to elaborately consider the matter, as the directions therein are binding on both parties. Therefore, what is necessary to consider is only to see whether the officials under the Drugs Controller are called upon to initiate any action for the alleged violation of Clause 18 of the Drugs (Price Control) Order. The question whether there had been any violation of Clause 18, is a matter to be considered after notice to both parties. It depends upon the orders placed, etc. and the wpc 37156/2009 4 action taken by the manufacturers in respect of the orders placed, and replies, if any, given by them and find out whether there is any good and sufficient reasons for refusal. 15. The authorities under the Drugs (Price Control) Order are therefore entitled to look into the question in the light of the contentions raised by the parties herein. It is only appropriate that the concerned officials look into the matter to find whether there is any violation of the provisions of the Drugs (Control) Order, especially Clause 18 and the other enactments like Essential Commodities Act and Drugs and Cosmetics Act. 16. In the light of the interim orders passed by this Court, it is submitted by the learned counsel for the petitioners that they are getting uninterrupted supply based on the orders placed even though learned counsel for the petitioner in W.P.(C) No.30867/2009 submitted that some of the orders have not been complied with by the manufacturers, viz. respondents 5 to 7 therein, for which the petitioner is initiating action under the Contempt of Courts Act. I am not going into such contentions in these writ petitions, since it is up to the authorities to consider all matters in accordance with law. 4. The position herein is also similar. Therefore, the writ petition is disposed of with the following directions: It is open to the petitioner to file appropriate representations before the officials like the Drugs Controller and other Assistant Drugs Controller wpc 37156/2009 5 concerned with regard to his grievances, if any, against the party respondents in these writ petitions as regards his right to get the supply of drugs and the alleged violations of the Drugs (Price Control) Order. The petitioner can file such a representation along with a copy of this judgment, within one month from the date of receipt of a copy of this judgment and if such representations/complaints are received by the official respondents, they will consider the same and take appropriate action as enjoined by law, after hearing the parties, under the various enactments, viz. Drugs (Price Control) Order and Essential Commodities Act, expeditiously. No costs. (T.R. Ramachandran Nair, Judge.) kav/