Supreme Relief - A Doctor giving medicines in OPD to patients amount to Selling and thus prohibited ? Adv. ROHiT ERANDE. ©

Supreme Relief" to  the Senior Lady Doctor against the allegations of Stocking and selling of Medicines in her OPD.

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. 

Adv. ROHiT ERANDE. ©

Case details : IN THE SUPREME COURT OF INDIA

 SPECIAL LEAVE PETITION (CRL.) No.9978 OF 2022)

S. ATHILAKSHMI ……Appellant(s) 

Versus

THE STATE REP. BY THE DRUGS ..…Respondent(s) INSPECTOR

Before : Hon. Krishna Murari and Hon. Sudhanshu Dhulia JJ.

Judgment Link :

https://main.sci.gov.in/supremecourt/2022/29229/29229_2022_11_1501_42840_Judgement_15-Mar-2023.pdf

Facts in short :

1. The Appellant,  a registered medical practitioner who is presently working as  an  Associate  Professor and the Head of Dermatology Department, in the Government Omandurar  Medical  College,  Chennai.  In  the  past,  was working on the  post  of  Assistant  Professor  and  Civil  Surgeon  at  Royapettah Medical  College, as it   is  permissible  under    law  to practice medicine when she is not performing her official duties. 

2. It was contended that the Appellant, in her individual and independent capacity was carrying on her private OPD on the day of raid 16.03.2016, the Drug Hospital found some ointments and creams and some sale bills.  The Drugs Inspector thereafter moved an application for obtaining sanction from the office of the Director of Drugs control, Tamil Nadu, Chennai­06 on 22.09.2016 which was given to him on 23.01.2018. 

3. Consequently, the Drugs Inspector filed a complaint before the Court of X Metropolitan Magistrate, Egmore, for prosecuting the Appellant under Section 18(c) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(b)(ii) of the Act.

4. Being aggrieved by these proceedings, the Appellant filed an application under Section 482 of the Code of Criminal Procedure, 1973 before the High Court of Madras for quashing the criminal proceedings, but in vain. Therefore she Approached the apex Court.  

5. Under Section 18 of Drugs and Cosmetics Act 1940, a prohibition has been imposed as to the manufacture, sell, or stock or exhibit or offer for sale etc. of certain drugs and cosmetics. The punishment for contravention of Section 18(c) is provided under Section 27(b)(ii) as imprisonment which may extend to five years and with fine which shall not be less than one lakh rupees or three times the value  of  the  drugs confiscated, whichever is more. 

6. Hon’ble Apex Court observed that  the  charge  in  the  present  case  is  that the Appellant had “stocked” medicines for “sale”. The entire emphasis is on “sale” of these medicines and  as per the prosecution she had stocked the drugs and sold them. 

HELD :

7. Their Lordships observed that,  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 specialization. 

8. The Court further observed that it is not a case that she had opened a shop in her premises from where she was selling drugs and cosmetics across the counter! It is possible that she was distributing these drugs to her patients for emergency uses and thus she is protected by the Act  itself.

9. The Rules framed under Sec.33 of the Act known as Drugs and Cosmetics  Rules,  1940. Rule 123 of the rules exempts certain drugs from the provisions of Chapter IV of the Act including Sec.18 and 27 referred above.  The Court referred to the Entry No. 5 under Schedule (K) which are the drugs supplied and not sold by a registered medical practitioner with which we are presently concerned. 

10. The Apex Court expressed its displeasure over the action of the Prosecution and observed that it is not the case of the prosecution that the Appellant was selling drugs  from  an  open  shop  across  the  counter.  The court observed that the Appellant   is  a  senior doctor who is engaged as an Associate Professor and Head of Department, Dermatology in a Government Medical College, and being a medical practitioner, under certain conditions, she is also protected under the above referred legal provisions. 

11. The Court held, 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.   

12. 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. 

13. The court lastly observed that as the Appellant is a registered medical practitioner, along with the fact that the quantity of medicines which have been seized is extremely small, a quantity which can be easily found in the house or a consultation room of a doctor, in our  considered view no offence is made out in  the present case. It further held that the appellant ought to have been given the benefit of an exception has been created under Schedule ‘K’ read with Rule 123 to the rules, these provisions and such a registered medical practitioner should not have been allowed to face a trial.

14. the Apex Court observed But what the High Court failed to consider, however, is the provisions contained in Rule 123 read with Schedule ‘K’ to the 1945 Rules and when admittedly it is not the case of the prosecution that the drugs which were seized were being sold in an open shop across the counter. Since this was not being done as visualized above, and an exception is created under the law in favour of the medical practitioner where the drugs given in Schedule ‘K’ would be exempted from the purview of Chapter 4 of the Act, we are of the considered view that prosecution against the Appellant is unwarranted.

15. On the allegations of seized sales bills, it was held that  the sales bills are not even for the  medicines which have been seized by the Respondent. Further the Appellant, as directed, also produced  multiple invoices from pharmaceutical shops to show her bonafides. Further, upon inspection of the drugs by the Drugs Testing Laboratory, Tamil Nadu they returned a finding that the drugs were of ‘standard quality’ which indicates it is not a case where the Appellant was operating a shop to sell spurious medicines over the counter.

Inordinate delay between the search and the sanction to prosecute. :

16. Another factor which must be considered is that the search was carried out on 16.03.2016 and sanction for prosecution was sought on 22.09.2016 and the sanction ultimately was given on 23.01.2018. There is  no explanation which has  been given for this delay in getting the approval. In the recently decided case of

Hasmukhlal D. Vohra and Anr. v. State of Tamil Nadu 1 2022 SCC OnLine SC 1732 criminal proceedings were quashed against a Petitioner on the grounds that the substance in question was  not  a  drug  under Indian Pharmacopoeia.  One  of  the  considerations  was  the  unexplained delay 

17. The Court said the sanction for prosecution given in the present case appears, prima facie, to suffer from the vice of non­application 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. 

18. In the case of Mohd. Shabir v. State of Maharashtra3 (1979) 1 SCC 568 while allowing an appeal in part and directing  the  release  of  an  Appellant  who  had  been  prosecuted under  the  provision  18(c)  of  the  1940  Act,  this  Court  observed that possession simpliciter would not itself be an offence but the prosecution had to prove the essential ingredient under Section 27 which was that even a ‘stock’ of the medicine was for sale. 

19. At last, the apex Court held that the sanctioning authority had not examined at all whether a practicing 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”. All these factors ought to have been considered by the sanctioning authority and therefore allowed the Appeal of the Sr. Lady Doctor and quashed the criminal proceedings. 

Indeed, an important judgment for all the Practicing Doctors. Most of the times Drs ask the patient to buy the medicines under the prescriptions. Sometimes, giving medicines free of costs or giving the samples  from Pharma company, is also general practice. In the instant case the Senior lady Doctor was harassed and there was a delay of 2 years from the search and the sanction to prosecute. The Lady Dr. has a right to sue for malicious prosecution and claim the damages.  

Thanks and regards

Adv. ROHiT ERANDE. ©