SATYAM DISTRIBUTORS THROUGH ITS PROPRIETOR YOGENDRA KUMAR Vs. STATE OF BIHAR THROUGH PRINCIPAL SECRETARY, DEPTT.OF HEALTH, GOVT.OF BIHAR, PATNA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the State. Petitioner is a wholesaler of drugs pursuant to a drug licence issued by the State Drug Controller - cum -Chief Licensing Authority, Bihar, Patna. He is assailing the order dated 8.7.2009 (Annexure - 12) wherein his drug licence has been cancelled with reference to the memo of charge dated 12.5.2009 (Annexure -8).

(2.) He is further assailing the appellate order dated 7.9.2009 communicated to the petitioner under memo no. 515 dated 8.9.2009 (Annexure -19) wherein the appeal filed against the cancellation order was also dismissed. The charge memo dated 12.5.2009 was issued pursuant to an inspection report dated 2.5.2009 (Annexure -7). It is evident from the charge memo that charge nos. 2 to 6 relate to sale of the different drugs by the petitioner at a price which was over and above the maximum retail price (for short M.R.P.) and thereby the petitioner is alleged to have violated the provisions contained in Drugs Price Control Order issued in terms of the provisions contained in Essential Commodities Act. Charge Nos. 1, 7, 8 and 9 relate to violation of the Drug and Cosmetics Act and the Rules framed thereunder.

(3.) IT is submitted on behalf of the petitioner with reference to charge nos. 1, 8 and 9 that perusal thereof would indicate the allegation therein are not so serious and even assuming the allegations constituting charge nos. 1, 8 and 9 to be true the licence could not have been cancelled. As regards charge no. 8, it is submitted that the allegation constituting the charge is that at the time of inspection, on 2.5.2009 the current (last) cash memo was not produced before the Inspection Team, which fact has been noted in paragraph 7(VII) of the inspection report. In this connection it is pointed out that on the date of inspection i.e. 2.5.2009, by the team of inspection no sale was effected as such the last cash memo of the earlier date was produced before the Inspection Team and has been noted in the inspection note. The other two charges, namely, charge nos. 1 and 9 that the authorized person was not present at the time of inspection as also the person present at the time of inspection did not sign the inspection report, are such for which licence could not have been cancelled. In this connection it is further submitted that on the date of inspection i.e. 2.5.2009 while the business premises of the petitioner was being cleaned in presence of the petitioner he suffered illness and left the shop premises instructing his staff to close the shop after dusting/sweeping of the shop was over in the meanwhile the Inspecting Team arrived and conducted the inspection. Under the circumstances the allegation that the petitioner proprietor, was not present as also person present refused to sign the inspection note should not be taken seriously to cancel the licence, as in terms of provisions contained in Rule 66 of the Drugs and Cosmetics Rules, 1966 (sic -1945) (hereinafter referred to as "the Rule") for such lapses the punishment of cancellation of licence shall be too harsh. As regards charge no. 7 it is submitted that the person available in the shop at the time of inspection failed to produce purchase receipt with regard to the drug referred to in the charge no. 7 manufactured by Sun Pharma, Gujarat, purchased by the petitioner under Batch No. JK 8409 thereby the petitioner is said to have violated Rule 65(5)(III)(I) of the Rules. In this connection it is pointed out with reference to the show cause reply filed by the petitioner that he had not purchased any injection Vecaron 4 mg., Batch No. JK 8409 manufacturing date 7/2008, expiry date 6/2011, manufactured by Sun Pharma, Gujarat and person present in shop at the time of inspection could not have produced the purchase receipt of the said medicines before the Inspecting Team. Learned counsel for the State in this connection with reference to the inspection report Annexure -7 submitted that there appears to be mistake in the memo of charge as regards charge no. 7, for Batch No. JK 81409, Batch No. 8409. has been typed, when such submission was made by the counsel for the State, this Court asked the State Counsel whether corrigendum has been issued rectifying the mistake. Learned State Counsel fairly submitted that no corrigendum has been issued rectifying the mistake about the batch number incorporated in charge no. 7.