J DAS BROTHERS Vs. UNION OF INDIA

JUDGEMENT

(1.) IN this bunch the controversy is the same. All these petitions were heard together with a view to dispose them of finally. Accordingly, we are doing so.

(2.) WE are taking necessary facts from writ petition no. 9687 of 1981. Initially, in this petition there were IS petitioners However, learned counsel for the petitioners scored off 7 petitioners and, therefore, this petition is confined to M/s. J. Das and B. Dasi Brothers. The material facts in this petition are these. The petitioner in a Chemist and Drugist engaged in retail business of selling manufactured drugs in the form of tablets, powders, liquids and ointments. It is not maintaining any pharmacy for compounding of drugs against the prescriptions of the medical practitioners. It deals in allopathic drugs It is covered by the Drugs and Cosmetic Act, 1940 (hereinafter referred to as the Act). Rules have been framed under the said Act Rule 65 together with the provisions as contained in section 42 of the Pharmacy Act, 1948 (hereinafter referred to as the Pharmacy Act) are being enforced as against the petitioner. On the basis of the said Rules, the respondents insist that the petitioner cannot carry on the business of a chemist and drugist without employing a "qualified person " On the basis of section 42 of the Pharmacy Act, the respondents insist that the petitioner must employ a registered pharmacist if it wants to carry on its business. Failure to comply either with the rules or with section 42 of the Pharmacy Act will subject it to a penal action. The prayers to the petition are these. The respondents may be prohibited from enforcing section 42 of the Pharmacy Act with effect from 1st September, 1981, a writ in the nature of mandamus may be issued commanding the respondents and their subordinates to refrain from prosecuting and punishing the: petitioner for violating rule 65 (15) (c) of the Drugs and Cosmetic Rules, 1945 and section 42 of the Pharmacy Act. The further prayer is that Rule 65 (c) of the Drugs and Cosmetic Rules as amended and section 42 of the Pharmacy Act may be declared ultra vires as the same contravene Article 19 (1) (g) of the constitution, The respondents may be commanded to register the persons as "qualified persons" as they were doing before 31st December 1969.

(3.) SECTION 33, which falls within chapter IV, inter alia, provides that the Central Government may, after (consultation with or on the recommendation of the Board and after previous; publication by notification in the Official Gazette, make rules for the purpose of giving effect to the provisions of the Chapter ("Chapter IV) Rule 64 of the Drugs and cosmetics rules. 1945 (hereinafter referred to as the Rules prescribes certain conditions which have to be satisfied before a licence is granted in forms 20, 20-B, 20-F, 20-G, 21 or 21-B. The proviso to rule 64 lays down that in the case of a pharmacy a licence in Form 20 or 21 shall not be granted unless the licensing authority is satisfied that the requirements prescribed for a pharmacy in Schedule N have been complied with. In schedule N a list of minimum equipment for the efficient running of a pharmacy is given. The explanation to this rules says that for the purpose of the rule the term ''pharmacy" shall be held to mean and include every store or shop or other place (1) where drugs are dispensed, that is, measured or weighed or made up and supplied or (2) where prescriptions are compounded, or (3) where drugs are prepared or (4) which has upon it or displayed within it, or affixed to or used in connection with it, a sign bearing the word or words "pharmacy" Pharmacist, Dispensing Chemist" or Pharmaceutical chemistry or (5) which, by sign, symbol or indication within or upon it gives the impression that the operations mentioned in (1), (2) and (3) are carried out in the premises or (6) which is advertised in terms referred to in (4) above.