When Small Quantity Of Medicine Is Found In Premises Of Medical Practitioner, It Won’t Amount To Sale In Open Shop: SC
The Supreme Court while deciding an appeal held that when small quantity of medicine has been found in the premises of a registered medical practitioner, it would not amount to selling the medicines across the counter in an open shop.
The two-Judge Bench comprising Justice Krishna Murari and Justice Sudhanshu Dhulia asserted, “Considering the small quantity of medicines, most of which are in the category of lotions and ointments, it cannot be said by any stretch of imagination that such medicines could be ‘stocked’ for sale and would come in the category of stocking of medicines for the purpose of sale. When small quantity of medicine has been found in the premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop.”
The Bench was dealing with a matter in which the charge against the appellant was that she had ‘stocked’ medicines for sale.
Senior Advocate S. Nagamuthu and Advocate M.P. Parthiban represented the appellant while Senior Advocate V. Krishnamurthy and AAG Joseph Aristotle S. represented the respondent.
Brief Facts –
The appellant was a registered medical practitioner who was working as an Associate Professor and the Head of Dermatology Department in a government medical college. It was permissible for her under the law to practice medicine when she is not performing her official duties. The Appellant, in her individual and independent capacity was carrying on her medical practice at a premises. An inspection was made on her premises by the Drugs Inspector and as per the inspection report, the Drugs Inspector found some medicines in the inner room and also referred to certain sale bills of medicines.
The Drugs Inspector thereafter moved an application for obtaining sanction from the office of the Director of Drugs Control. Consequently, a complaint before the Court of Metropolitan Magistrate was filed for prosecuting the appellant under Section 18(c) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(b)(ii) of the Act. Aggrieved by such proceedings, the appellant filed a plea before the Madras High Court for quashing the criminal proceedings. However, her petition was dismissed as a result of which she approached the Apex Court.
The Supreme Court after hearing the arguments of both parties said, “What the Director of Drugs Control and the High Court lost sight of is the fact that the Appellant is a registered medical practitioner, her area of specialization being dermatology. She has an M.D. (DVL) degree in this specialisation. … It is possible that she was distributing these drugs to her patients for emergency uses and thus she is protected by the Act itself.”
The Court noted that no offence was made out in such a case and that the prosecution against the appellant is unwarranted.
“… it is seen that the sales bills are not even for the medicines which have been seized by the Respondent. … The sanction for prosecution given in the present case appears, prima facie, to suffer from the vice of non¬application of mind. There is no reference to any of the documents, evidence or the submissions submitted by either of the parties, no reasons assigned or even an explanation pertaining to the delay which indicates it has been passed in a mechanical manner”, observed the Court.
The Court further said that the sanctioning authority had not examined at all whether a practising doctor could be prosecuted under the facts of the case, considering the small quantity of the drugs and the exception created in favour of medical practitioner under Rule 123, read with the Schedule “K”.
Accordingly, the Court allowed the appeal, set aside the order of the High Court, and quashed the criminal proceeding against the appellant.
Cause Title- S. Athilakshmi v. The State Rep. by the Drugs Inspector