IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI MONDAY, THE 6TH APRIL 2009 / 16TH CHAITHRA 1931 WP(C).No. 16015 of 2008(F) -------------------------------------- PETITIONER(S): ---------------------- 1. SMT. PONNAMMA K.K., PROPRIETR IX & LICENSEE, M/S. POONAM ASSOCIATES XXV/720, MANNATH LANE, THRISSUR-680 001. 2. T. RAVINDRAN, PROPRIETOR, M/S. D.T. ASSOCIATES, METTUPALAYAM STREET, PALAKKAD-678 001. 3. A. VINOD, MANAGING PARTNER & LICENSEE, M/S. ACCESS PHARMA, 23/326, N.P. TOWERS, WEST FORT, PUNKUNAM,THRISSUR 4. A.N. MOHANAKURUP, PROPRIETOR, M/S. POONAM MEDICALS, MANNATH LANE, THRISSUR-680 001. BY MR.N.N.SUGUNAPALAN, SENIOR ADVOCATE ADV. MR.S.SUJIN RESPONDENT(S): ------------------------ 1. THE ASSISTANT DRUGS CONTROLLER, THRISSUR 2. THE DRUGS CONTROLLER OF KERALA, OFFICE OF THE DRUGS CONTROLLER,THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. * ADDL. R4 & R5 IMPLEADED ADDL. R4: NEW CHEMISTS PHARMA, A.Y.COMPLEX, PALLIKULAM ROAD, TRICHR-1, REP. BY ITS MANAGING PARTNER. WP(C).No. 16015 of 2008(F) ADDL. R5: GEO PAUL AND CO., PHARMACEUTICAL DISTRIBUTORS, FLOWER JUNCTION, T.D.ROAD, ERNAKULAM, COCHIN-35, REP. BY ITS MANAGER. * ADDL. R4 AND R5 IMPLEADED AS PER ORDER DATED 22/07/2008 IN I.A.9224/2008. ** ADDL. R6 TO R9 IMPLEADED ADDL. R6: P.K.KRISHNAN, MNAGING PARTNER, VINAYAKA MEDICALS, CANARA, PALAKKAD-1. ADDL. R7: N.K.SHIVARAM, MANAGING PARTNER, KUMAR DRUG HOUSE, H.P.O. ROAD, PALAKKAD-1. ADDL. R8: A.V.NAZR, MANAGING PARTNER, SOBHA MEDICALS, R.S.ROAD, PALAKKAD. ADDL. R9: SOBY V.THOMS, MNAGING PARTNER, MATHA MEDICALS, T.B.ROAD, PALAKKAD. **ADDL. R6 TO R9 IMPLEADED AS PER ORDER DATED 12/03/2009 IN I.A.16284/2008. *** ADDL. R10 IMPLEADED ADDL. R10: THE ALL KERALA CHEMISTS AND DRUGGIST ASSOCIATION, CHAVARA CULTURE CENTRE ROAD, NEAR SOUTH RAILWAY STATION, COCHIN-682 016, REPRESENTED BY ITS GENERAL SECRETARY, K.SIVASANKARAN. *** ADDL. R10 IS IMPLEADED AS PER ORDER DATED 18/02/2009 IN I.A.2316/2009. ****ADDL. R11 TO R16 IMPLEADED ADDL. R11: ANTONY THARIAN, S/O.LATE T.V. THARIAN, TRUST PHARMACEUTICALS, KAYYATH LANE, POONITHURA VILLAGE, ERNAKULAM. ADDL. R12: M.P. ABDL GAFOOR, S/O.M.P. ABDUL RAHIMAN, SOORYA MEDICALS, I.G. ROAD, CALICUT-4. ADDL. R13: K.V.ANTONY, S/O.KOCHU VARUNNI, AGED 58 YEARS, FEMI MEDICALS, VADAKKUMCHERRY, PALGHAT DISRICT. ADDL. R14: K. SIVADASAN, MEYON TRADE LINKS, JAIL ROAD, CALICT. ADDL. R15: C.P. KUNJU MOIDU, CENTRAL PHARMA AGENCIES, JAIL ROAD, KANNUR. WP(C).No. 16015 of 2008(F) ADDL. R16: K.P. PAUL, PAULSON MEDICALS, NEAR MEDICAL COLLEGE HOSPITAL, KOTTAYAM. **** ADDL. R11 TO R16 ARE IMPLEADED AS PER ORDER DATED 12/03/2009 IN I.A. NO.3611/2009. GOVERNMENT PLEADER SMT.M.R.SUDHA FOR R1 TO R3 ADV. MR.K.JAJU BABU FOR ADDL.R4 & R5 SMT.M.U.VIJAYALAKSHMI FOR ADDL.R MR.E.K.NANDAKUMAR FOR ADDL.R10 MR.A.K.JAYASANKAR NAMBIAR FOR ADDL.R10 MR.K.JOHN MATHAI FOR ADDL.R10 MR.P.BENNY THOMAS FOR ADDL.R10 MR.ANIL D. NAIR FOR ADDL.R10 MR.MILLU DANDAPANI FOR ADDL.R11-R16 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16015 of 2008(F) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTICE NO.1070/2007/DC DATED 27/09/2007 ISSUED TO THE 1ST PETITIONER BY THE 2ND RESPONDENT. EXT.P2: COPY OF THE NOTICE NO.1070/2007/DC DATD 27/09/2007 ISSUED TO THE 2ND PETITIONER BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE NOTICE NO.1070/2007/DC DATED 27/09/2007 ISSUED TO THE 3RD PETITIONER BY THE 2ND RESPONDENT. EXT.P4: COPY OF THE NOTICE NO.1070/2007/DC DATED 27/0/2007 ISSUED TO THE 4TH PETITIONER BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE REPLY GIVEN BY THE 1ST PETITIONER TO THE 2ND RESPONDENT ON 02/11/2007. EXT.P6: COPY OF THE REPLY GIVEN BY THE 2ND PETITIONER TO THE 2ND RESPONDENT ON 02/11/2007. EXT.P7: COPY OF THE REPLY GIVEN BY THE 3RD PETITIONER TO THE 2ND RESPONDENT ON 02/11/2007. EXT.P8: COPY OF THE REPLY GIVEN BY THE 4TH PETITIONER TO THE 2ND RESPONDENT ON 02/11/2007. EXT.P9: COPY OF THE ORDER NO.L-10708/2007/DC DATED 30/11/2007 ISSUD BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P10: COPY OF THE SHOW CAUSE NOTICE NO.L-10708/2007/DC DATED 30/11/2007 ISSED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER. EXT.P11: COPY OF THE ORDER NO.L-10708/2007/DC DATED 30/11/2007 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER. EXT.P12: COPY OF THE ORDER NO.L-10708/2007/DC DATED 20/11/2007 ISSUED BY THE 2ND RESPONDENT TO THE 4TH PETITIONER. EXT.P13: COPY OF THE ORDER NO.L-10708/2007/DC DATED 30/11/2007 ISSUED BY THE 2ND RESPONDENT TO THE 1ST PETITIONER. EXT.P14: COPY OF THE SHOW CAUSE NOTICE NO.F.8120/2007/TCR DATED 31/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE 2ND PETITIONER. EXT.P15: COPY OF THE SHOW CAUSE NOTICE E.NO.7516/2007/TCR DATED 01/01/2008 ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER. EXT.P16: COPY OF THE SHOW CAUSE NOTICE F.NO.7514/2007/TCR DATED 27/12/2007 ISSUED BY THE 1ST RESPONDENT TO THE 4TH PETITIONER. WP(C).No. 16015 of 2008(F) EXT.P17: COPY OF THE INVOCE NO.16821 DATED 04/12/1987 OF THE 1ST RESPONDENT ISSUED TO THE JUBILEE MISSION HOSPITAL, THRISSUR. EXT.P18: COPY OF THE ORDER DATED 04/12/2007 GIVEN BY JUBILEE MISSION HOSPITAL, THRISSUR. EXT.P19: COPY OF THE OBJECTION DATED 24/01/2008 GIVEN BY THE 1ST PETITIONER TO THE 1ST RESPONDENT. EXT.P20: COPY OF THE INVOICE NO.16802 04/12/2007 ISSUED TO THE KARUNA HOSPITAL BY THE 1ST PETITIONER. EXT.P21: COPY OF THE INVOICE NO.16740, 03/12/2007 ISSUED TO M/S.NITHYA MEDICALS, KODUNGALLUR, BY THE 1ST PETITIONER. EXT.P22: COPY OF THE INVOICE NO.16745, 03/12/2007 ISSUED TO M/S.SIMLA MEDICALS, SHORANUR, BY THE 1ST PETITIONER. EXT.P23: COPY OF THE OBJECTION DATED 01/02/2008 GIVEN BY THE 2ND PETITIONER TO THE 1ST RESPONDENT. EXT.P24: COPY OF THE OBJECTION DATED 24/01/2008 GIVEN BY THE 3RD PETITIONER TO 1ST RESPONDENT. EXT.P25: COPY OF THE OBJECTION DATED 24/01/2008 GIVEN BY THE 4TH PETITIONER TO THE 1ST RESPONDENT. EXT.P26: COPY OF THE ORDER NO.E.7515/2007/TCR DATED 08/02/2008 ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER. EXT.P27: COPY OF THE ORDER NO.E.8120/2007/TCR DATED 06/02/2007 ISSUED BY THE 1ST RESPONDENT T THE 2ND PETITIONER. EXT.P28: COPY OF THE ORDER NO.E.7515/2007/TCR DATED 08/02/2008 ISSUED BY THE 1ST RESPONDENT TO THE 3RD PETITIONER. EXT.P29: COPY OF THE ORDER NO.E.7514/2007/TCR DATED 08/02/2008 ISSUED BY THE 1ST RESPONDENT TO THE 4TH PETITIONER. EXT.P30: COPY OF THE MEMORANDUM OF APPEAL DATED 14/02/2008 FILED BY THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P31: COPY OF THE MEMORANDUM OF APPEAL DATED 14/02/2008 FILED BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P32: COPY OF THE MEMORANDUM OF APPEAL DATED 22/02/2008 FILED BY THE 3RD PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P33: COPY OF THE MEMORANDM OF APPEAL DATED 14/02/2008 FILED BY THE 4TH PETITIONER BEFOREE THE 3RD RESPONDENT. EXT.P34: COPY OF THE ASSURANCE GIVEN BY THE 1ST PETITIONER BEFOR THE 3RD RESPONDENT ON 04/03/2008. WP(C).No. 16015 of 2008(F) EXT.P35: COPY OF THE ASSURANCE GIVEN BY THE 2ND PETITIONER BEFORE THE 3RD RESPONDENT ON 04/03/2008. EXT.P36: COPY OF THE ASSURANCE GIVEN BY THE 3RD PETITIONER BEFORE THE 3RD RESPONENT ON 04/03/2008. EXT.P37: COPY OF THE ASSURANCE GIVEN BY THE 4TH PETITIONER BEFORE THE 3RD RESPONDENT ON 04/03/2008. EXT.P38: COPY OF THE JUDGMENT DTD 03/04/2008 IN W.P.(C). NO. 11386 OF 2008 OF THIS HONOURABLE COURT. EXT.P39: COPY OF THE COMMON ORDER NO.GO(RT)NO.1823/2008/H & FWD DATED 27/05/2008 ISSUED BY THE 2ND RESPONDENT. EXT.P40: PHOTOGRAPH OF STORE ROOM OF THE 4TH PETITIONER. EXT.P40: COPY OF THE ORDER DATED 01/07/2008 IN W.P.(C). NO. 19764 OF 2008 OF THIS HONOURABLE COURT. (IN I.A.10812/2008.). EXT.P41: COPY OF THE ORDER DATED 14/08/2008 IN W.P.(C). NO. 24743 OF 2008 OF THIS HONOURABLE COURT. EXT.P42: COPY OF THE REPORT ISSUED BY THE 2NS RESPONDENT TO THE 3RD RESPONDENT DATED 29/02/2008. RESPONDENT'S EXHIBITS: EXT.R1(a): COPY OF THE MAHAZAR DATED 05/12/2007. //TRUE COPY// P.A. TO JUDGE Rs/ V.GIRI, J ------------------- W.P.(C).16015/2008 -------------------- Dated this the 6th day of April, 2009 JUDGMENT Petitioners are wholesale dealers of drugs having licence under the Drugs and Cosmetics Act. According to them, based on an inspection conducted by the Drugs Controller, Exts.P1 to P4 show cause notices were issued to the petitioners. They submitted Exts.P5 to P8 explanations and it seems that Exts.P9 and P12 orders were passed suspending their licences for seven days. Said orders were not challenged because the suspension was for a period of seven days. 2. Another inspection was conducted on 19.2.2007 by the Assistant Drugs Controller and based on the same, Exts.P13 to P16 show cause notices were issued. Exts.P17 to P20 explanations were formed and Exts.P26 to P29 orders were passed cancelling the licences of the petitioners. Exts.P30 to P33 appeals were filed before the appellate authority, W.P.(C).16015/2008 2 which have been rejected by a common final order, Ext.P39. Orders passed by the appellate authority have been challenged in the writ petition. 3. Counter affidavit has been filed by the respondents. I heard Mr.N.N.Sugunapalan, learned senior counsel for the petitioners and learned Government Pleader on behalf of the official respondents and Mr.K.P.Dandapani appearing for R4 to R9. 4. I have been taken through the show cause notices, explanations and the orders in Exts.P26 to P29, which are almost identical, insofar as the discussion is concerned. Though it may not be appropriate for this court to enter into an appraisal of the factual aspects mentioned in the show cause notices, what struck me is the fact that copious reference has been made by the original authority to certain actions and defaults committed by the All Kerala Chemists and Druggists Association, of which the fourth respondent, the husband of the first petitioner, was the President earlier. There is a W.P.(C).16015/2008 3 reference to what is called as a definite derailment in the proper maintenance of supply of medicines due to undesirable involvement of the leaders of All Kerala Chemists and Druggists Association. Therefore, a major portion of the discussion is relatable to the allegations of default and certain other allegations levelled against the Association. All these aspects do not find a place in the show cause notices. In fact there is very little discussion as regards the specific allegations which have been levelled against the licensees in the show cause notices. I am satisfied that in these circumstances, there has to be a reconsideration of the allegations levelled against the petitioners. 5. If any materials from which inference of violation of the rules qua the licensee is sought to be made, including any act of default on the part of the Association, then, those materials will have to be specifically made available to the licensees. If necessary, fresh show cause notices or additional show cause notices may also be issued and the licensees be granted an opportunity to file W.P.(C).16015/2008 4 objections thereof. A fresh hearing must be conducted and the authority must give a finding regarding each one of the factual allegations that are levelled against the licensee, in the show cause notices. If the authority comes to the conclusion that any charge has not been proved, then it must be so mentioned in the final order. 6. Though the orders have been affirmed by the appellate authority, default which has taken place at the original level, cannot be condoned or rectified at the appellate stage. Moreover, a reading of the appellate order will also show that the same infirmities, as noted above, which have affected the original orders have affected the appellate order also. The major portion of the discussion is related to steps taken against the All Kerala Chemists and Druggists Association, the attempt made on the part of the Association to interfere with the policy, how actions taken by the Association has resulted in what is called as derailment of public interest and distribution of drugs. W.P.(C).16015/2008 5 7. In the result, writ petition is allowed in part. Exts.P26 to P29 and P39 are set aside. Drugs controller, the second respondent, is directed to pass fresh orders on Exts.P13 to P16 show cause notices. If necessary he may issue fresh show cause, as an addendum to Exts.P13 to P16. Materials on the basis of which Exts.P13 to P16 have been issued or the addendum show cause notices may be issued, shall, in their entirety, be made available to the petitioners. The petitioners should be granted an effective opportunity of showing cause and after hearing them or their authorized representative, fresh orders shall be passed. The entire process shall be completed within three months from the date of receipt of a copy of this judgment. 8. By a detailed interim order passed on 17.3.2009, this Court had permitted the first petitioner to continue her business in accordance with the licence which was sought to be cancelled after staying orders Exts.P26 and P39. Said interim order shall continue to operate in favour of the first petitioner till fresh orders are passed by the W.P.(C).16015/2008 6 Drugs Controller in the manner aforementioned. If there is a delay in final orders being passed against the petitioners, and orders are not passed within the time frame mentioned above, then, the suspension of petitioners’ licences shall stand revoked, and licences shall continue to be operative subject to the fresh orders to be passed in that regard by the Drugs Controller. But I make it clear that the petitioners shall not unnecessarily seek time or adjournment of the proceedings and shall only ask for a reasonable opportunity to file objections to the existing show cause notices or additional show cause notices which may be issued. V.GIRI, Judge mrcs