IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 162 of 2004 (T) ------------------------ (CC.883/1994 of JUDL. MAGISTRATE OF FIRST CLASS-II,HOSDUR) .................... PETITIONER: ------------------ DR.K.ABOOBACKER, BACKERS HOSPITAL, KOTTIKULAM P.O. BEKAL 671 318, KASARAGOD. BY ADVS. SRI.E.SUBRAMANI SRI.S.EASWARAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA REP. BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. 2. UNION OF INDIA, REP. BY THE SECRETARY, MINISTRY OF HEALTH, NEW DELHI 110 001. 3. THE DRUGS CONTROLLER, THIRUVANANTHAPURAM. R1 & 3 BY GOVERNMENT PLEADER SRI.MOHAMED ANZAR R2 BY ADVS. SRI.B.RAMACHANDRAN, ADDL.CGSC SRI.P.J.PHILIP, C.G.C THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, ALONG WITH CRL.MC. NO.4887/2010,, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 162 of 2004 (T) ----------------------------------- PETITIONER'S EXHIBITS ----------------------------------- EXT.P1. COPY OF PROCEEDINGS NO.DL6.16001/90/DC DATED 6TH DECEMBER, 1990, ISSUED BY THE 3RD RESPONDENT. EXT.P2. COPY OF JUDGMENT DATED 8TH AUGUST, 1991 IN OP NO.2179 OF 1991. EXT.P3. COPY OF PROCEEDINGS NO.L.17323/94/DC DATED 17.3.1995 ISSUED BY THE 3RD RESPONDENT. EXT.P4. COPY OF ORDER DATED 8TH OCTOBER, 2003 IN CIVIL APPEAL NO.8236 OF 2001 OF THE HON'BLE SUPREME COURT. EXT.P5. COPY OF SUMMONS TO THE PETITIONER IN C.C. NO.882 OF 1994 BY THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS II, HOSDURG. EXT.P6. COPY OF SUMMONS DATED 2.2.1995 IN C.C. NO.883 OF 1994 OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS II, HOSDURG. RESPONDENT'S EXHIBITS : NIL -------------------------------------- / TRUE COPY / P.A. TO JUDGE VK THOMAS P JOSEPH, J. -------------------------------------------------------------------- W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -------------------------------------------------------------------- Dated this 07th day of June, 2011 JUDGMENT These proceedings concern a pharmacy or medical shop, as the rival contestants claim, being run by the petitioner in W.P(C). No.162 of 2004 (first petitioner in Crl.M.C.No.4887 of 2010) allegedly attached to his hospital by name M/s.Backers Hospital. On 13.07.1993, it is alleged a complaint was preferred by a patient who allegedly was treated outside (M/s.Backers Hospital) for his dental problem and who allegedly had purchased medicines from M/s.Backers Medicals, Kottikulam. He complained that the said pharmacy or medical shop as the case may be has no license as the bill issued therefrom revealed. Based on that complaint, the Drugs Inspector initiated action and preferred a complaint against petitioners in Crl.M.C.No.4887 of 2010 before learned Judicial First Class Magistrate, Hosdurg alleging violation of Sec.18(c) of the Drugs and Cosmetics Act, 1940 (for short, "the Act”) which is punishable under Sec.27(b)(ii) of the said Act. In W.P(C).No.162 of 2004 petitioner who is the proprietor of M/s.Backers Hospital seek a declaration that petitioner is not obliged to take out a drug license under Sec. W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 2 :- 18(c) of the Act and the Rules framed thereunder and a direction or order declaring that petitioner is exempted under Drugs and Cosmetics Rules, 1945 (for short, "the Rules”), schedule K from the provisions of Chapter IV of the Act. Certain other reliefs are also sought for in the writ petition. Prayer in the criminal miscellaneous case is to quash criminal proceeding against petitioners. There also, similar contentions are raised. I have heard learned counsel for petitioner, second respondent in Crl.M.C.No.4887 of 2010 and learned Public Prosecutor. Learned counsel for petitioner contends that alleged sale was from the pharmacy attached to M/s.Backers Hospital run by petitioner in the writ petition, in such situation under rule.123, Schedule K, item 5A of the Rules, petitioner is exempted from Chapter IV of the Act. Item 5A of Schedule K relates to drugs supplied by a hospital or dispensary maintained or supported by Government or local body and exempts such hospitals/dispensaries etc from the provisions of Chapter IV of the Act. Chapter IV of the Act takes in Sec.18 of the Act. subsec.3 of Sec.18 requires the manufacture for sale (or for distribution) or sell, or stock or exhibit (or offer) for sale, or distribute any drug (or cosmetic) except under and in accordance with the conditions of a license issued for such purpose under the said Chapter. Reference is W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 3 :- made to Annexures-A3 and A4 marked in Crl.M.C.No.4887 of 2010. Learned Public Prosecutor contends that item 5A of Schedule K of Rule 123 of the Rules concern only hospitals and dispensaries run by the Government and not private hospitals and dispensaries. It is also contended that going by Annexure- A1, complaint in Crl.M.C.No.4887 of 2010 it is clear that it was not a dispensary but a medical shop run by the proprietor of M/s.Backers Hospital. It is pointed out that as per the bill issued from M/s.Backers Medicals medicine was sold to a patient who came with a prescription issued by a doctor not attached to M/s.Backers Hospital and in the circumstance, no question of petitioners claiming exemption from Sec.18(c) of the Act by virtue of item 5A of Schedule K of Rule 123 of the Rules arise. Learned counsel appearing for the second respondent in Crl.M.C.No.4887 of 2010 while supplementing the argument of learned Public Prosecutor has placed reliance on the decision in Qualified Medical Practitioners Association Vs. State of Kerala (2010(2) KLT 375) where it has been held that item 5A of Schedule K of Rule 123 of the Rules does not apply to private hospitals which is otherwise bound to take out license for dispensing medicines/drugs. I have been taken to Annexures-A3 and A4 in Crl.M.C.No.4887 of 2010. Annexure-A3 is the W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 4 :- photocopy of judgment dated August 08, 1991 in O.P.No.2170 of 1991 filed by the association of qualified medical practitioners who are running private hospitals. They challenged notices issued to them by the Drugs Inspector under provisions of the Act requiring them to take drug license. When the matter came up for hearing before learned Judge it was represented by the learned Government Pleader that the matter was under consideration of the Government whether direction to insist on drug license being taken by hospitals has to be withdrawn or not. Taking note of that representation, learned Judge disposed of the writ petition directing the Government to consider the matter on merits and take a decision as early as possible. It was also directed that till such a decision is taken the Government shall not take steps pursuant to the notices which were under challenge in the said writ petition. Later came Annexure-A4, notice dated March 17, 1995 from the office of the Drugs Controller and addressed to the Kerala Chemists and Druggists Association. There, it is stated that the Government in August, 1994 decided that hospitals which were not exempted were to take out drug license. 2. The argument of learned counsel is that in view of Annexures-A3 and A4, proceeding pursuant to the notices issued W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 5 :- by the appropriate authorities under the Act were kept in abeyance and the Government was directed not to initiate further action in the matter until a decision is taken. 3. Item 5A of Schedule K of Rule 123 of the Rules is clear that it applied to drugs supplied by hospitals/dispensaries maintained or supported by the Government or local body. Apparently, M/s.Backers Hospital of which petitioner in the writ petition is the proprietor does not qualify that description. The decision in Qualified Medical Practitioners Association Vs. State of Kerala (supra) is also specific that private hospitals cannot be equated with a hospital maintained or supported by the Government or local body and hence are bound to take out a license for dispensing medicines/drugs as prescribed under Sec.18(c) of the Act (learned counsel submits that presently petitioner in the writ petition has obtained license for dispensing drugs/medicines). It is also a matter which the trial court has to consider whether M/s.Backers Hospitals is a dispensary attached to the hospital or is a medical shop and at any rate, medicine was sold to the complainant before the Drugs Inspector on a prescription issued by a medical practitioner not attached to M/s.Backers Hospital. These disputed question of facts are required to be decided by the trial court. I am not persuaded to W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 6 :- think that in the circumstances, claiming relief under Annexure- A3 in Crl.M.C.No.4887 of 2010 petitioners could legitimately request that the criminal proceeding be quashed. Nor could the request to declare that no license is required be entertained in view of the decision in Qualified Medical Practitioners Association Vs. State of Kerala (supra). 4. Learned counsel argued that this is a fit case where the Government could take steps to withdraw from the prosecution since this is the only instance of alleged violation of Sec.18(c) of the Act. It is pointed out by learned counsel that petitioners were under an impression that they were not required to take a license in view of Annexure-A3, order passed by this Court. It is also pointed out by learned counsel that consequence, in case petitioners are found guilty is drastic that they will have to undergo imprisonment for a minimum period and that circumstances do not warrant such an extreme punishment. 5. This Court cannot issue any direction to the Government to withdraw from the prosecution against petitioners in Crl.M.C.No.4887 of 2010. It is for the Government to consider the matter and issue necessary direction if any to the Law Officer in charge of the case. However, since learned counsel submitted W.P(C).No.162 of 2004 and Crl.M.C.No.4887 of 2010 -: 7 :- that petitioners wish to move the Government for the purpose, I am inclined to grant some time to the petitioners for that matter. Resultantly this writ petition and criminal miscellaneous case are dismissed. It is directed that proceeding in C.C.No.883 of 1994 of the Court of learned Judicial First Class Magistrate-II, Hosdurg will stand in abeyance for a period of two months from this day so that, in the meantime it is open to the petitioners in Crl.M.C.No.4887 of 2010 to move the Government and seek appropriate relief if they are otherwise entitled. In case any request for withdrawal from prosecution is not moved before the learned Magistrate by the Law Officer in charge of the case within the expiry of the said period of three months, learned Magistrate shall be free to proceed with trial of the case and in that situation, I make it clear that it is open to the petitioners in Crl.M.C.No.4887 of 2010, notwithstanding the observations or finding contained in this judgment to take all appropriate defences as are available to them. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge