- (1.) These three Writ Petitions, filed under Art. 32 of the Constitution of India, raise common question of law, challenging S. 3(h) of the Drugs and Cosmetics Act, 1940, as amended by Act 68 of 1982 (for short, the "Act") with effect from February 1, 1983 as unconstitutional, being arbitrary and violative of Arts. 14 and 19(1)(g) of the Constitution. The grievance of the petitioners is that while the Act amends the definition of "Patent and Proprietary Medicine" under S. 3(h) of the Act, the definition drugs under S. 3(b) read with the definition of Ayurvedic drug under S. 3(a) has not been changed; as a consequence, there is no prohibition for patenting the Ayurvedic drugs manufactured by the petitioners whereas under the impugned order of the Drug Controller dated February 16, 1983 it is so construed and manufacture of those drugs is prohibited. Therefore, the Amendment Act 68 of 1982 and the order passed by the Drug Controller, Government of India, are ultra vires the legislative power.
(2.) Shri M. N. Krishnamani, learned senior counsel and Shri Pankaj Kalra, learned counsel appearing for the petitioners, seek to support their grievance, but we are unable to agree with the learned counsel. It is seen that patent and proprietary medicine was defined in the pre-Amendment Act under S. 3(h) thus: " Patent or Proprietary Medicine means a drug which is a remedy for prescription presented in a form ready for internal or external administration of human beings or animals and which is not included in the edition of the Indian Pharmacopoeia for the time being or any other pharmacopoeia authorised in this behalf by the Central Government after consultation with the Board."
(3.) "Drug" had been defined under S. 3(b), and continues under the Amendment Act, to read as under: "Section 3(b) "drug" includes. (1) All medicines for internal or external use of human beings or animals and all substances intended to be used for or (in the diagnosis, treatment), mitigation or prevention of disease in human beings or animals.............; and (ii) Such substances (other than food) intended to affect the structure or any function of the human body or intended to be used for the destruction of (vermin) or insects which cause disease in human beings or animals, as may be specified from time to time by the Central Government by notification in the Official Gazette." ;