SSK/15/16/17 1 WP/1280,1281,1282 of 11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1280 OF 2011 Santosh Nair ....Petitioner Versus The State of Maharashtra & Ors. ...Respondents WITH WRIT PETITION NO.1281 OF 2011 Sunil Thakurdas D’souza ....Petitioner Versus The State of Maharashtra & Ors. ...Respondents WITH WRIT PETITION NO.1282 OF 2011 Thakur T. Bachwani ....Petitioner Versus The State of Maharashtra & Ors. ...Respondents Mr. Yusuf i/b. M/s.Yusuf & Associates for the petitioner in all 3 petitions. Mr. S. N. Patil, AGP for the State. CORAM : SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 3RD MARCH, 2011. P.C.: All these three petitions can be disposed of by a common order because the issue involved in them is the same. The petitioners in these petitions are proprietors of Medical and Drugs stores. They are aggrieved by the fact that their licence is suspended under Rule 66(1) of the Drugs and Cosmetics Rules, 1945(the said Rules). SSK/15/16/17 2 WP/1280,1281,1282 of 11 2. We have heard learned counsel for the petitioners at some length. It is pertinent to note that the order under suspension is passed by the 4th respondent. Appeal was carried by the petitioners to the State of Maharashtra i.e. the 1st respondent. These appeals have been rejected by the 1st respondent. Learned counsel for the petitioners submitted that the 1st respondent has overlooked Rule 66(1) (b) of the said Rules which requires the licensing authority to take into account the penal action, if any, taken during the preceding year against the person whose licence is proposed to be suspended. Counsel submitted that in all the three cases, no penal action has been taken against the petitioners in the preceding year. In the circumstances and in the light of Rule 66(1) (b) their licences could not have been suspended. He submitted that though this point was squarely raised in the appeal memos, the same has not been considered by the 1st respondent. 3. Rule 66(1)(b) of the said Rules so far it is relevant reads thus: 66. Cancellation and suspension of licences. - (1) The licensing authority may, after giving the licensee an opportunity to show cause why such an order should not be passed by an order in writing stating the reasons therefore, cancel a licence issued under this Part or suspend it for such period as he thinks fit, either wholly or in respect of some of the substances to which it relates, if in his opinion, the licensee has failed to comply with any of the conditions of the licence or with any provisions of the Act or rules thereunder: SSK/15/16/17 3 WP/1280,1281,1282 of 11 [Provided that, where such failure or contravention is the consequence of an Act or omission on the part of an agent or employee, the licence shall not be cancelled or suspended if the licensee proves to the satisfaction of the licensing authority - (a) xxx xxx xxx xxx (b) that he or his agent or employee had not been guilty of any similar act or omission within twelve months before the date on which the act or omission in question took place, or where his agent or employee had been guilty of any such act or omission, the licensee had not or could not reasonably have had, knowledge of that previous act or omission, or” 4. The above provision indicates that the licence of a licensee shall not be cancelled or suspended if the failure or contravention contemplated in Rule 66(1) of the said Rules is the consequence of an act or omission on the part of an agent or an employee and the licensee proves to the satisfaction of the licensing authority that he or his agent or employee had not been guilty of any similar act or omission within twelve months before the date on which the act or omission took place, or where his agent or employee had been guilty of any such act or omission, the licensee had not or could not reasonably have had the knowledge of that previous act or omission. We find that in the appeal memo, the petitioners have raised a point that Rule 66 (1) (b) of the said Rules has not been considered by SSK/15/16/17 4 WP/1280,1281,1282 of 11 respondent 4 and the order of suspension is passed ignoring the said Rule. In short, it is the contention of the petitioners that no penal action is taken against the licensee during the year preceding the date on which the omission in question had taken place and this vital fact is not taken into consideration while suspending the licence. 5. In our opinion, learned counsel is right in contending that while rejecting the appeal, respondent 1 has not considered this point raised by the petitioners. Learned A.G.P. could not dispute this position. In the circumstances, in our opinion, the matter needs to be remanded. Hence, the following order : (a) The impugned orders passed by the 1st respondent in October 2010 communicated vide letters dated 29th November, 2010 are set-aside and the matters are remanded to the 1st respondent. (b) The 1st respondent shall consider the appeals afresh, particularly keeping in view the provisions of Rule 66(1) (b) of the Drugs and Cosmetics Rules, 1945. The appeals shall be disposed of within a period of eight weeks from the date of writ of our order. SSK/15/16/17 5 WP/1280,1281,1282 of 11 (c) We make it clear that we have not expressed any opinion on the merits of the case and the 1st respondent shall consider the petitioners’ cases independently and in accordance with law. (d) For a period of ten weeks, without prejudice to the rights and contentions of the respondents no coercive steps shall be taken against the petitioners. 6. The petitions are disposed of accordingly. (RANJIT MORE, J.) (SMT. RANJANA DESAI, J.)