No Scope For Theory Of “Operation Being Successful However The Patient Dead”: Bombay HC Pulls Up Appellate Authority Under Drugs & Cosmetics Act For Delaying Adjudication Of Appeals
The Bombay High Court pulled up the Appellate Authority under Drugs and Cosmetics Act for delaying adjudication of appeals filed before it.
It said that there cannot be a scope for a theory of “operation being successful however the patient dead”.
The Court was deciding a batch of three petitions raising a common issue of law filed by the ones in the business of sale of medicines and running medical stores.
A Division Bench comprising Justice G.S. Kulkarni and Justice Firdosh P. Pooniwalla observed, “The intention of the petitioners being that in the facts and circumstances of their respective case, they ought not to suffer an unwarranted suspension. Thus, the concern of the petitioners is that the remedy of an appeal as provided under the rules should not be rendered otiose, so as to bring about a situation, that after the suspension period is over, the proceedings are thereafter decided, which would cause a serious prejudice to the petitioners. We are quite in agreement with the petitioners. In such circumstances, there cannot be a scope for a theory of “operation being successful however the patient dead.”
The Bench said that the petitioners would certainly have a legal right to know the status of their challenge insofar as the interim reliefs or the final reliefs they seek in their appeals, before they are made to suffer the suspension order.
Advocates Atal Bihari Dubey and Rushikesh S. Kekane represented the petitioners while Addl. GP A.I. Patel represented the State.
In this case, the petitioners were running medical stores for which they had obtained licences under the Drugs and Cosmetics Act, 1940 and the Drugs and Cosmetics Rules, 1945. Their case was that an inspection of their medical stores was undertaken by the Assistant Commissioner, Food and Drugs Administration in pursuance of which they were issued orders. Their licences to conduct business in medicines stood suspended for a particular period.
The grievance was that the Appellate Authority was neither listing the proceedings to decide the appeals nor was passing appropriate interim orders on the prayers of stay on the orders of suspension of their licence passed by the Assistant Commissioner. It was the contention that the same has created an anomalous situation of a likely fait accompli, because despite a statutory remedy of an appeal being provided by law, to which recourse was taken by the petitioners, such remedy was rendered meaningless for the reason that the appellate authority was not hearing the petitioners on the appeals and/or on the prayer for interim reliefs.
The High Court after hearing the contentions of the counsel noted, “… in the circumstances as in the present proceedings, the non passing of an appropriate order (interim or final), would also have a direct bearing on the rights of the petitioner to carry on trade, occupation/business. This in as much as, such inaction on the part of the appellate authority is likely to affect the rights guaranteed to such persons under Article 19(1)(g) of the Constitution read with Articles 14, 21 and 300A of the Constitution.”
The Court added that the appellate authority is expected not to overlook such significant obligation in relation to the powers the appellate authority wields, in adjudication of the statutory appeals.
“Once the remedy is provided by law, it is required to be an “effective remedy” in letter and spirit. The appellate authority hearing the statutory appeals would be required to be alive to the consequences, an order subject matter of the appeal would bring about qua the appellant before it”, it said.
The Court further said that the petitioners ought to be granted a protection till the appellate authority takes up the appeal and decides the same.
Accordingly, the High Court disposed of the petitions and directed the appellate authority to hear the petitioners’ pending appeals expeditiously within a period of 8 weeks.
Cause Title- M/s. Apna Chemist v. Assistant Commissioner (Zone-3) & Anr. (Neutral Citation: 2024:BHC-AS:1054-DB)
