S. ATHILAKSHMI versus THE STATE REP. BY THE DRUGS INSPECTOR

Citation: [2023] 2 S.C.R. 914 · Decided: 15-03-2023 · Supreme Court of India · Bench: KRISHNA MURARI · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2023] 2 S.C.R.
S. ATHILAKSHMI
v.
THE STATE REP. BY THE DRUGS INSPECTOR
(Criminal Appeal No. 804 of 2023)
MARCH 15, 2023
[KRISHNA MURARI AND SUDHANSHU DHULIA, JJ.]
Drugs and Cosmetics Act, 1940 – ss.18(c), 27(b)(ii) –
Prosecution of appellant u/s.18(c) punishable u/s.27(b)(ii) – Held:
Prohibition u/s.18(c) is on the manufacturing, distribution, stocking
or exhibition of medicines for the purposes of sale – In the present
case, prosecution against the appellant was unwarranted –
Appellant is a registered medical practitioner along with the fact
that the quantity of medicines seized was extremely small, a quantity
which can be easily found in the house or a consultation room of a
doctor – Considering the small quantity of medicines, most of which
are in the category of lotions and ointments, it cannot be said that
such medicines could be ‘stocked’ for sale and would come in the
category of stocking of medicines for the purpose of sale – No
offence is made out – It is not the case of the prosecution that the
Appellant was selling drugs from an open shop 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 – An
exception has been created under Schedule ‘K’ r/w r.123 in favour
of medical practitioner, the appellant ought to have been given the
benefit of these provisions – Further, the sanction for prosecution
given in the instant case, prima facie, suffers from the vice of non-
application of mind – Order of the High Court set aside – Criminal
proceedings against appellant quashed – Drugs and Cosmetics
Rules, 1945 – Schedule K – Drugs and Cosmetics Rules, 1940 –
r.123 – Code of Criminal Procedure, 1973 – s.482.
Allowing the appeal, the Court
HELD: 1.1 It is not the case of the prosecution that the
Appellant was selling drugs from an open shop across the counter.
She 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,
[2023] 2 S.C.R. 914
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she is also protected under the law which has been referred to
above. 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 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, 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. [Paras 8, 9][922-
A-F]
1.2 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,
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, prosecution
against the Appellant is unwarranted. The sanction for
prosecution given in the present case appears, prima facie, to
suffer from the vice of non-application o

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