IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 OP.No. 10595 of 2002(J) ----------------------- PETITIONER: ------------ DR.RAJAN, M/S.KALPAKA PHARMACEUTICALS, ADOOR, KOLLAM DISTRICT. BY ADV. SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, DEPARTMENT OF EXCISE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, OFFICE OF THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM. 3. THE DIRECTOR GENERAL OF POLICE, OFFICE OF THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. BY G.P. SMT. SMITHA BABU THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP NO.18695/02 DISMISSED 3/1/08 SD/-T.R. RAMACHANDRAN NAIR, JUDGE. APPENDIX EXT.P1-TRUE COPY OF THE ORDER DT.12.12.01 IN CMP NO.61460/01 IN OP 37563/01 ISSUED BY THIS COURT. EXT.P2-TRUE COPY OF THE LICENCE DATED 31.12.90 ISSUED BY DRUGS CONTROLLER OF KERALA EXT.P2(A)-TRUE COPY OF CERTIFICATE DATED 11.9.2001 ISSUED BY ASST. DRUGS CONTROLLER, KOLLAM. EXT.P3-TRUE COPY OF THE L-2 LICENCE ISSUED BY ASST. EXCISE COMMISSIONER, PATHANAMTHITTA FOR AUGUST 1992 EXT.P4-TRUE COPY OF WHOLESALE LICENCE DATED 17.1.96 ISSUED BY THE ASST. EXCISE COMMISSIONER, PATHANAMTHITTA. // TRUE COPY // P.S. TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.10595 of 2002-J - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of January, 2008. JUDGMENT The main prayer in this original petition is to issue a writ of prohibition, prohibiting the respondents and all subordinate officers under them from interfering in any manner with the retail sale of Ayurvedic products like Asavas and Arishtas prepared on the strength of Ext.P2 licence issued by the Drugs Controller and put on the market through his vaidyasalas, retail outlets and agencies, without insisting for SP.VII licence. 2. The contention raised is that the sale of Asavas and Arishtas do not require any licence under the Kerala Spirituous Preparations (Control) Rules, 1969. Learned Government Pleader brought to my notice a decision of this court reported in Muraleedharan Pillai v. State of Kerala( 2006 (4) KLT 254), wherein a similar issue was considered and this court was pleased to hold that such a licence under the Spirituous Preparations (Control) Rules, is necessary. The relevant findings contained in paragraphs 16, 17 and 18 are extracted below: “16. Likewise R.10 of Rules 1969 postulates that no person shall possess any spirituous preparation except under and in accordance with a licence. R.11 deals with licence for sale of OP 10595/2002 -2- spirituous preparations either by wholesale or retail (S.P.VI and S.P.VII respectively). Any person who wants to sell any spirituous preparation has to necessarily obtain a licence. Petitioners cannot contend that they being licensed manufacturers of “medicinal preparations” they are entitled to sell and/or market their products through their agents or dealers from any premises or outlets and that too on the strength of S.P.VI or S.P.VII licence as the case may be obtained by them. Petitioners might have obtained licence to manufacture Asavas, Arishtas etc. under the Drugs and Cosmetics Rules or Medicinal and Toilet Preparations (Excise Duties) Rules. But since Asavas, Arishtas and such other products admittedly contain alcohol or other intoxicating drug, thus squarely falling under the definitions of “medicinal preparation” and “spirituous preparation” contained in Rules 1969, any person who wants to sell or deal with such preparations has to necessarily obtain a licence as provided under R.11 of the above rules. 17. The petitioners having already taken S.P.VI and S.P.VII licences cannot turn round and say that they are not governed by the provisions contained under the Rules, 1969. Similarly they cannot seek shelter under the licence issued to them under Drugs and Cosmetics Rules, 1945 or Medicinal and Toilet Preparations (Excise Duties) Rules, 1955. Therefore, in my view, the excise authorities are justified in making search and seizure at the premises of the so called retail agents where Asavas and Arishtas manufactured by the petitioners, are being sold, so long as such retail agents do not possess S.P.VII licence. 18. As rightly pointed out by the learned Government Pleader, condition 1 of Form S.P.VI licence stipulates that “the privilege under this licence extends to the possession and sale of spirituous preparations to other holders of licences in Form S.P.VII for purpose of retail sale, to medical practitioners for supply to their patients and to hospitals etc.” The petitioners having obtained Form S.P.VI licence are not entitled to say that the conditions under the said licence are not binding on them. Therefore, if the petitioners want to sell their products to any of their agents or retailers on the strength of S.P.VII licence as the case may be they have to abide by the condition prescribed under such licence. No retailer or whole OP 10595/2002 -3- sale dealer can possess spirituous preparation without a licence; nor can they sell or deal with them except in accordance with the terms and conditions of a licence issued under R.11 of Rules 1969.” I fully agree with the above view. In the light of the said decision, there is no merit in the original petition and the same is accordingly dismissed. (T.R. Ramachandran Nair, Judge.) kav/ OP 10595/2002 -4- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.10595 of 2002-J - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 3rd January, 2008.