Debangsu Basak, J. - (1.) The petitioners have challenged the decision of strategic sale of Bengal Chemical and Pharmaceutical Limited (BCPL) taken by the Central Government.
(2.) Learned Senior Advocate for the petitioners has submitted that, BCPL was established in 1901 by an eminent scientist and entrepreneur Acharya Prafulla Chandra Ray. The institution was a part of the freedom struggle. BCPL has factories at Kolkata, Panihati, Mumbai and Kanpur. The management of BCPL was taken over by the Government of India on December 15, 1997. BCPL was nationalized pursuant to the Bengal Chemical and Pharmaceutical Works Limited (Acquisition and Transfer of Undertakings) Act, 1980. BCPL is one of the largest manufacturers of generic drugs in the Country. The Central Government did not nurture BCPL adequately. Consequently, BCPL started making losses and was referred to the Board for Industrial and Financial Reconstruction (BIFR) established under the provisions of the Seek Industrial Companies (Special Provisions) Act, 1985. In the proceedings before BIFR a revival package was proposed. During the pendency of the proceedings before BIFR an attempt was made by the Central Government to sell the company. Such decision was challenged before the High Court. The High Court had intervened and passed an order of stay on the decision to sell BCPL. Subsequently, a revival scheme was placed before the BIFR in respect of BCPL, which was accepted. However, the Central Government did not act in terms of the sanctioned scheme. BCPL was referred to BIFR in the year 2005 again. The financial performance of BCPL started improving since 2014. BCPL has started posting cash profits for the year 2014-2015 onwards. Referring to 32nd Report of the Standing Committee of the 16th Lok Sabha learned Advocate appearing for the petitioners has submitted that, the Report notes the decision of the Central Government to sell surplus land of BCPL and strategic sale of BCPL. He has referred to the view expressed therein to the effect that, BCPL should be revived. It recommends revival of BCPL and seeks a report from Government in that regard. He has referred to the Katoch Committee Report on Active Pharmaceuticals Ingredients, a report of the Expert Committee set up by the Central Government to look into issues in the pharmaceutical sector. He has submitted that, one of the main recommendations of the Katoch Committee is that, the Central Government should evolve ways and means of utilizing the resources available with the public sector units for setting up of Active Pharmaceuticals Ingredients. The Katoch Committee is of the view that, an average cluster of Active Pharmaceuticals Ingredients would require about 1000 to 2,000 hectares of land and would require about 750-1000 Crore investments of common facilities/services. He has submitted that, BCPL has such an infrastructure available, therefore, BCPL should be developed in terms of Katoch Committee Report.
(3.) Referring to the affidavits used by the respondents, he has submitted that, the Central government has sought to justify the decision for strategic sale of BCPL on the ground that, BCPL is no longer in the priority sector. The Central Government has decided not to do business in an area which does not fall within the priority sector. He has submitted that, health is a priority sector for Central Government. The Central Government is free to decide on economic policies. However, such freedom is circumscribed by the constitutional mandate. Central Government cannot breach the constitutional mandate while formulating any policy even if it was an economic policy. Heath being a priority sector, Central Government is misplaced while treating pharmaceutical industry not to be a priority sector. He has referred to Article 21 of the Constitution of India and has submitted that, health is included in the right to life enshrined in Article 21 of the Constitution of India. Referring to Article 39 of the Constitution of India he has submitted that, although, the directive principles of State policy may not by themselves per se be justiciable, the Courts, however, are entitled to take the benefit of the directive principles of State policy, in understanding the contours of the fundamental rights, enshrined in the Constitution of India.;