2023 (3) TMI 1397 - SC - Indian Laws

Stocking of medicines for sale - 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 - HELD THAT - 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. In fact, this is not even the allegation against the Appellant. Undoubtedly, the provisions of Section 18 and 27 are relevant provisions under the law, which have a social purpose, which is to protect ordinary citizens from being exploited inter alia, by unethical medical practitioners, and for this reason the punishment Under Section 27 can extend up to 5 years under the law, and has a minimum punishment of 3 years. Given the facts and circumstances of the case and considering that 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, no offence is made out in the present case. In fact, an exception has been created under Schedule 'K' read with Rule 123 to the rules, the Appellant ought to have been given the benefit of these provisions and such a registered medical practitioner should not have been allowed to face a trial where in all likelihood the prosecution would have failed to prove its case beyond reasonable doubt. The possession of the drugs is not disputed in this case by either side. However, this Court in the case of MOHD. SHABIR VERSUS STATE OF MAHARASHTRA 1979 (1) TMI 234 - SUPREME COURT 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. 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 . All these factors ought to have been considered by the sanctioning authority. Appeal allowed.

Summary

Issues Involved:
1. Legality of stocking drugs by a registered medical practitioner without a valid drug license.
2. Application of Schedule K exemptions under the Drugs and Cosmetics Rules, 1945.
3. Validity of the sanction for prosecution and delay in obtaining it.
4. Possession of drugs and its implication under Section 18(c) and Section 27 of the Drugs and Cosmetics Act, 1940.

Issue-wise Summary:

1. Legality of Stocking Drugs by a Registered Medical Practitioner:
The Appellant, a registered medical practitioner and Associate Professor, was found with certain drugs in her premises during an inspection by the Drugs Inspector. The prosecution alleged that she had "stocked" medicines for "sale" without a valid drug license, violating Section 18(c) of the Drugs and Cosmetics Act, 1940, punishable under Section 27(b)(ii).

2. Application of Schedule K Exemptions:
The court examined Schedule K of the Drugs and Cosmetics Rules, 1945, which provides exemptions for registered medical practitioners under certain conditions. It was noted that the Appellant was not selling drugs from an open shop across the counter but possibly distributing them to her patients for emergency uses. The court emphasized that the small quantity of medicines found did not constitute "stocking" for sale, and thus, the Appellant should be protected by the exemptions provided under Schedule K.

3. Validity of the Sanction for Prosecution and Delay:
The Drugs Inspector sought sanction for prosecution on 22.09.2016, which was granted on 23.01.2018. The court found no explanation for this delay and highlighted that the sanction appeared to suffer from non-application of mind. The court referenced the case of Hasmukhlal D. Vohra and Anr. v. State of Tamil Nadu, emphasizing that unexplained inordinate delay could indicate a sinister motive behind initiating criminal proceedings.

4. Possession of Drugs and Its Implication:
The court clarified that mere possession of drugs by a registered medical practitioner does not constitute an offense unless it is proven that the drugs were stocked for sale. The court cited Mohd. Shabir v. State of Maharashtra, stating that possession simpliciter is not punishable under the Act. The sanctioning authority failed to consider whether a practicing doctor could be prosecuted given the small quantity of drugs and the exemptions under Rule 123 and Schedule K.

Conclusion:
The Supreme Court allowed the appeal, set aside the order of the learned Single Judge of the Madras High Court, and quashed the criminal proceedings against the Appellant. The court concluded that no offense was made out in the present case, considering the Appellant's status as a registered medical practitioner and the small quantity of medicines found.