PRITHVI NATH KOUL Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner who is the sole proprietor of the firm styled as CAULSON Laboratories Pharmaceutical Manufacturers Jammu prays for issuance of an appropriate writ, order, or direction enjoining the respondent No. 1 to withdraw the directions contained in Under Secretary to Government, Jammu and Kashmir, Health Departments Lettef No. 5 Gen/P/65 dated 6 -8 -1968/20 -8 -1968 to the Director Health Service and to give wide publicity to this withdrawal. The letter reads "It has been found that the firm "Caulson Laboratories, Jammu, has not been fun* ctioning on scientific lines in respect of manufacture of drugs as required under Law. The department cannot take any legal action against the firm till Drugs Act is enforced properly. In the meanwhile I am directed to inform you that necessary instructions may please be issued to various instructions of the department that no purchases be made from the firm until and unless the firm fully satifies the Government that all the defects have been removed. The circular to be issued in this behalf be given wide publicity so that Private Medical Shop Keepers and Practitioners also take due precautions.

(2.) THE petitioner has alleged that the Drug Controller, Jammu and Kashmir State granted him a Drug manufacturing license on 27 -10 -1966 after thoreugh inspection of his Laboratory and attef satisfying himself that the laboratory was fully equipped with modern appliance and necessary technical staff for the manufacture of drugs, that the petitioner made honest effort to provide the State with pharmaceutical manufacturing factory in private sector with the aim of producing drugs of the highest quality, that the Director Health Service -cum -Drug Controller after being fully con -1 vinced about the quality of the drugs manufactured by the petitioner was pleased to issue Circular No. PS -7165/31/16955 -100 dated 3 -8 -1967 directing all his subordinate officers to bring the petitioners laboratory i. e. Caulson Lab on the list of original manufactures and to consider itsratesas per rules and instructions on the subject, that the respondent No 1 vide its Notification dated 8 -4 -1966 has made it obligatory for all the Government Health Centres and Government Hospitals to purchase drugs, instruments, hospital equipment etc from the original manufactures, so that by establishing an up to date fully equipped laboratory, the petitioner was successful in introducing some drugs of high quality as per pharmacopoeia and that too on reasonable rates, that the action of the petitioner was not hailed by some original manufacturers of the State including the Drug Research Laboratory, that the said manufacturers, therefore hatched up a conspiracy and started devising ways and means of killing the petitioners manufacturing concern which offered to the Medical Department Glucose Saline and solutions at much cheaper rates than these at which the supplies of the stuffs were made by the Drug Research Laboratory, that the drugs manufactured at the petitioners laboratory specially the Glycose Saline and solutions were purchased in huge bulks by the Medicil Departments of the State, that whereas efficiey of the drugs manufactured by the petitioner was appreciated and testimentals of appreciation were issued in his favour various complaints were lodged by hospitals of the State alleging that Glucose Saline and Solutions supplied by the Drug Research Laboratory were unfit for use and contained foreign matter including fungus and their administration had been found to produce adverse reaction, that due to these unscientific preparations of the drugs the Superintendents of S M. G, S. Hospital, Jammu and of the S. M G. S. Hospital, Srinagar, directed the Director, Drug Research Labotatery, respondent No, 2 to life back these drugs from the stores and warned him not to supply such drugs in future that this being another nail in the coffin of the Drug Research Laboratory, it used all means to spoil the good name built by the petitioner both in the general market as also in the Medical Department of the State, that the petitioner made representation to the Director Health Services that in spite of the higher prices quoted by respondent No. 2 the drugs were still being purchased from him and not from the petitioner whose prices were lower and quality superior than those of respondent No. 2 and other manufactures, that this kind of complaint was specially made against the Superintendent of S. M. G. S. Hospital Jammu, respondent No. 3 herein who usually purchased drugs from respondent No. 2 knowing full well that the prices quoted by the petitoner were lower, that these representations made respondent No. 2 and 3 to join hands for wreaking vengeance against the petitioner that in pursuance of the conspiracy respondent No. 3 inspected the petitioners laboratory in the month of February, 1968 and submitted a report unduly castigating the laboratory, that the action of the Superintendent was in contravention of the provisions of the Drug Act and the rules made there under, that the respondent No 1 had no authority to direct the Superintendent to inspect petitioners Labortary, that pursuant to section 17 of the Drug Act 2009, the Government had by its Notification dated 10 - - -1969, already appointed Drug Controller and Assistant Drug Controller to be the inspectors for the purposes of Chapter IV of the Jammu and Kashmir Drugs Act, 2000, that in view of the notification the Superintendent S. M. G. S. Hospital, Jammu had no authority to inspect the petitioners laboratory, that immediately after the inspection by the said Superintendent the petititioner made respresentation to respondent No. 1 bringing to its notice the illegal act of the Superintendent and requesting it to send a proper team of men in accordance with the Drugs Act and the rules made there under to examine and verify the correctness and authenticity of the report submitted by the Superintendent but to no purpose and instead of the Under Secretary to Government, Heath Department, addressed the aforesaid communication to the Director Health Service, that the said order from Under Sercetary to Government to the Director Health Services was illegal and improper and without jurisdiction and was the dumulative effect of the respresantations made by the petitioner from time to time against the officials of the Medical Department about their abuse of power high handedness and the violations of the standing orders of the Government, that the officers of the Medical Department in collusion with the Director Drug Research Laboratory created an atmosphere of animesity against the petitioner in order to harm him, that the petitioner is a distributor of many pharmaceutial concerns working in the country and used to submit tenders on behalf of his principal for the supply of the drugs but these tenders were now being returned to him on the basis of the instructions issued by the Director Health Services, that as a result of the aforesaid communication of the Under Secretary to Government Health Department to the Director Health Services and its dissemination by the department the petitioners business has come to stand still, that in spite of his request copies of the report of Dr. William Riberie and others have not been made available to him, that the Drug Act came into force in State from October, 1967 and if the petitioners products were not up to the mark the respondents should have taken legal action against him under the Act instead of resorting to the impugned malafide action, that by issuing the aforesaid directions to the Director Health Services the respondent No. 1 had violated his petitioners fundamental rights under Articles 14, 16 and 19 of the Constitution of India as applied to the State.

(3.) THE petitioner has been resisted by the respondents averring interalia that the petitioner was granted license under the Jammu and Kashmir Drugs Act, Samvat 2000, although he did not completely fulfil the requirements prescirbed by law, that the Glucose Saline and other medicines manufactured by the petitioner are neither of standard quality nor are they manufactured and tested according to hygienic and scientific conditions prescribed by law and accordingly the use of such medicines would be highly dangerous to human lives, that foreign matter observed or suppeted in Glucose Saline bottles supplied by respondent No. 2 was due to had strange arguments, that in order to verify the complaint received from Dr. Ganapathi, Director Drug Research Laboratories, Jammu about the working of M/S Caulson Laboratories. Gandhi Nagar, Jammu the Government directed Dr. T. Malla, Deputy Director, Health Services and Dr. William Ribert the Superintendent S, M. G. S. Hospital Jammu to make an onspot inspection of the said laboratories and to make a report about their working and that Dr. Malla and Dr. William Riberie accordingly inspected the said Laborateries separately and submitted their reports. The respondents have also denied the allegations of abuse of power and mala -fides in issuing the aforesaid directions contained in Under Secretary to Government Health Departments letter No. 5 Gen/P/65 dated 6 -8 -1968. In the course of his affidavit Dr. William Riberia. Superintendent S. M. G S. Hospital, Jammu, reiterated that the drugs manufacture by the petitioner were not of standard quality nor were they prepared under legally prescribed hygienic and scientific conditions and as such even if these medicines werecheaper their use was dangerous to human lives, that before inspection the laboratories of the petitioners as direcreted by respondent No. 1 the deputed Dr Farooq Quershi M B.B S. the then Assistant Surgeon S M G. S. Hospital Jammu and Dr. S.C. Ray M B.B S, Ph D, the then Pathelogist Geneaal Labortary S. M. G. S. Hospital Jammu to inspect the petitioners laboratory and to make a preliminary report which they did on 13 -2 -1961, that to verify this report he inspected the laboratory & submitted his report which was, true, impartial and correct according to the state of affairs, observed by him on spot and that it was in pursuance of the Government directive and of the facts that Drug Re.search Laboratory Jammu was a Government concern and its products conformed to the hygienic and scientific standards prescribed by law and the army authorities also got their supplies of drugs and medicines from tha said laboratory that he continued to have the supplies from it.