N. L. Ganguly, J. - (1.) THE petitioners filed this petition under Article 226 of the Constitution praying for a writ of mandamus declaring Rule 65 (15) (c) of the Drugs and Cosmetics Rules of 1945 as amended and section 42 of the Pharmacy Act of 4943. THE petitioners also prayed for a writ of mandamus commanding the respondents not to cancle the licence or refuse to renew the licence of the petitioners. THE petitioners stated in the writ petition to be the Chemists and Druggists engaged in doing retail business of selling manufactured drugs in the form of tablets, powders, liquids and ointments etc. THEy pleaded not to maintain any pharmacy for compounding the drugs and serving prescription of medical practitioners. THE questions and grounds raised in the present writ petition were considered and finally decided in group of writ petitions, M/s. J. Das Brothers through Sri L. N. Gupta v. Union of India, 1992 (1) ECFAR 606.
(2.) THE Division Bench referring the case (supra) upheld the validity of Rule 65 (15) (c) of the Drugs and Cosmetics Rules and also held that the provisions of the Rules and section 42 of the Pharmacy Act do not, in any manner,, offends the provisions of Article 19 (1) (g) of the Constitution. THE Division Bench held : "One thing is clear and that is that the provisions of the Pharmacy Act and the Drugs and Cosmetics Act and the Rules framed thereunder contain a wholesome rule in public interest and, therefore, their enforcement cannot be withheld by this court in proceedings under Article 226 of the Constitution because some hardship is being caused to some traders. In such matters, the interest of an individual may have to be sacrifised in a larger interest. If at all, this is the precise situation, if the case of the petitioner is accepted, we are not in a position to give any relief to the petitioner." The Division Bench was further pleased to make the following observation : "However, we hope and trust that if there are any practical difficulties in the way of the petitioner in complying with the provisions of the Act, the rules framed thereunder and the Pharmacy Act, the relevant authority shall look into the same even now and give them the necessary redress. The expression relevant authority includes the Parliament and the Rule making authority also." In the interim order dated 23-11-1993 passed by the Division Bench, of which one of us (Honourable Ganguly, J.) was a member, counter affidavit was called for from the standing counsel and the respondents were restrained from prosecuting the petitioner for violating Rule 65 (15) (c) of the Drugs and Cosmetics Rules, 1945 and section 42 of the Pharmacy Act. A further direction was issued not to cancel the licence of the petitioners till further orders. It was also directed that the petitioners shall sell the drugs in the same container as marketed by the manufacturer. The learned counsel for the petitioners urged that the same order be passed in the present writ petition. We do not propose to pass the same order. On the earlier occasion the Division Beach cases referred to (supra) and the final judgment of the Division Bench consisting of Honourable V. N. Khare and Honourable N. B. Asthana, JJ. were not brought to our notice. The controversy raised in the present petition stands finally decided by this Court.
(3.) THE petitioners have also reproduced in para 16 of the writ petition the order passed finally in writ petition No..........of 1993, Jain Medical Store v. Union of India and others by the Division Bench consisting of Honourable V. N. Khare and Honourable N. B, Asthana, JJ. on 23-3-1993, which is as follows : "THE Contention of the petitioner is that it is engaged in retail business of buying and selling drugs manufactured by others and that it does not carry on any activity of pharmacist but still the petitioner has been threatened to foe prosecuted by the respondents for violating the provisions of Drugs and Cosmetic Rules, 1945 for not having employed a trained pharmacists. Similar matter came up before this court in writ petition No. 12197 of 1991, which was decide by this Court by judgment dated 10-2-1992 holding that unless a petitioner carried an activity of a pharmacist it will not be necessary for him to be pharmacist or employ a trained pharmacist. In view of the aforesaid judgment of this court as and when the petitioner is threatened to be prosecuted it may satisfy the respondents that it is not engaged in the activity of pharmacist and that it is simply selling the standard drugs manufactured by others without disturbing and manipulating their packings in any manner and if that fact is established to the satisfaction of the respondents then the petitioner will not be prosecuted as held in the aforesaid judgment for not being and for not having employed a pharmacist, unless the prosecution taken pla;e on S3m3 different grounds. The petition is accordingly disposed of finally.";