SC: Doctor can’t be punished under D&C Act for storing small quantities of medicines.
Case Title: S. Athilakshmi vs. The State Rep. By The Drugs Inspector [SLP (Criminal) No. 9978 of 2022]
Citation: 2023 LiveLaw (SC) 194
The
Supreme Court has held that a doctor's act of storing small quantities of
medicines will not amount to an offence of unauthorized stocking of medicines
under Section 18(c) of the Drugs and Cosmetics Act 1940.
"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", observed a bench comprising Justices Krishan Murari and Sudhanshu Dhulia while quashing the criminal proceedings against a Tamil Nadu-based doctor under the Drugs and Cosmetics Act 1940.
The bench
noted that the quantity of medicines which was allegedly seized from the
premises of the petitioner was extremely small, a quantity which can be easily
found in the house or a consultation room of a doctor.
The case
in brief
The premises of appellant S. Athilakshmi, who is a registered medical practitioner carrying on her medical practice at premises in Chennai, was inspected in March 2016 by the Drugs Inspector, wherein a certain quantity of medicines, lotions, ointments, etc, were found.
Alleging
that she stocked drugs for sale and sold the drugs without having a valid drug
license, which is punishable under section 27(b)(ii) of the said Act, an
application was moved by the inspector for obtaining a sanction for prosecution
from the office of the Director of Drugs Control, Tamil Nadu.
The sanction was received in Jan 2018, after which, the Inspector filed a complaint before the 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.
She
challenged the proceedings before the Madras High Court, however, her plea
filed under Section 482 CrPC was dismissed, prompting her to file the instant
SLP before the Supreme Court.
Supreme
Court’s observations
The top
Court noted that the Madras High Court lost sight of the fact that the
appellant was a registered medical practitioner and her area of specialization
being dermatology, it was possible that she was distributing these drugs to her
patients for emergency uses and thus, she is protected by the Act itself.
In this
regard, the Court referred to Schedule (K) 7 appended to the Drugs and
Cosmetics Rules, 1945, which exempts certain drugs from the provisions of
Chapter IV of the Act (which includes both Section 18 and Section 27 referred
above, which are penal provisions).
The
Schedule serves as an exception 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.
It may be
noted that Entry No. 5 under Schedule (K), which was applicable to the facts of
the instant case, states thus:
“Drugs
supplied by a registered medical practitioner to his own patient or any drug
specified in Schedule C supplied by a registered medical practitioner at the
request of another such practitioner if it is specially prepared with reference
to the condition and for the use of an individual patient provided the
registered medical practitioner is not (a) keeping an open shop or (b) selling
across the counter or (c) engaged in the importation, manufacture,
distribution or sale of drugs in India to a degree which render him liable to
the provisions of Chapter IV of the Act and the rules thereunder.”
Against
this backdrop, observing that she was protected under Entry 5 to
Schedule K, the Court observed that the quantity of medicines seized from
the appellant was extremely small, a quantity which can be easily found in the
house or a consultation room of a doctor.
"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. But 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, in our considered view no offence is made out in
the present case", the Court observed.
“ 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 Court further observed.
The Court
further noted that the appellant had produced multiple invoices from
pharmaceutical shops to show her bonafides and that drugs seized from her
premises were admittedly of ‘standard quality’ which indicated that it was not
a case where the Appellant was operating a shop to sell spurious medicines over
the counter.
The Court
also factored into account that no explanation was furnished in the instant
case for a delay in getting the approval for prosecution.
“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.”
The Court
also found faults with the sanctioning authority for not examining 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 the
medical practitioners under Rule 123, read with the Schedule ‘K’.
In view of
this, the appeal was allowed and the order of the Madras High Court was set
aside and the criminal proceedings on the file of X Metropolitan Magistrate,
Egmore, Chennai were quashed.
Case Title: S. Athilakshmi vs. The
State Rep. By The Drugs Inspector [SLP (Criminal) No. 9978 of 2022]
Citation: 2023 LiveLaw (SC) 194
Drugs and Cosmetics Act 1940-
Supreme Court quashes criminal proceedings initiated against a doctor for
stocking small quantities of medicine- Such stocking will not amount to the
offence of unauthorized stocking of medicines as per Section 18(c)- 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 -Para 9
Drugs and Cosmetics Act 1940-
Sections 18 and 27- 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. But 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, in our considered view no offence
is made out in the present case - Para 9
Drugs and Cosmetics Rules, 1940 -
Rule 123- Schedule K- Drugs stored by a doctor exempted from offence of
unauthorized stocking and selling under certain conditions - Para 8
Click Here To Read/Download Judgment
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