IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 35218 of 2009(Q)
1. DR.J.SEETHARAMAN,SHANMUGHAVILASOM,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. THE EXCISE INSPECTOR,EXCISE RANGE,
For Petitioner :SRI.K.KARTHIKEYA PANICKER
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :10/02/2010
O R D E R
P. BHAVADASAN, J.
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W.P.(C). No. 35218 of 2009
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Dated this the 10th day of February, 2010.
JUDGMENT
This is a petition filed under Article 226 of the
Constitution of India seeking to have all further
proceedings in S.C. 780 of 2007 pending before the
Additional Sessions Court (Abkari Cases)
Kottarakkara quashed and also to declare that until an
Expert Committee is appointed under Section 56A(b) of
the Kerala Abkari Act and norms are prescribed, no
further proceedings shall be taken.
2. Petitioner is a doctor by profession and he
is an Ayurvedic physician. He manufactures Ayurvedic
medicines also. The manufacture is covered by Drugs
and Cosmetics Act and the Rules. As per Rule 154 of the
Rules, manufacture and sale of Ayurvedic medicines is
permitted on the strength of Form 25-D licence issued by
the Drugs Controller of Kerala. The petitioner holds a
licence to that effect and it is marked as Ext.P1. The
WPC.35218/2009. 2
licence prescribed the medicines that could be
manufactured by the petitioner. The licence is being
renewed from year to year and is in force even now. Apart
from Ext.P1 licence, the petitioner is also in possession of L2
licence under the Medicinal and Toilet Preparations (Excise
Duties) Act. He has been manufacturing Ayurvedic
medicines strictly in accordance with law. On 8.12.2001 at
about 12.15 in the noon, the second respondent suddenly
conducted a search in one of the retail outlets of the
petitioner and 350 ml of Kanakasavam kept for sale in a
sealed bottled was seized and the sample taken was sent
for chemical analysis. The report disclosed that
Kanakasavam contained 12.40% volume of self generating
ethyl alcohol and based on that certificate Crime No.60 of
2002 was registered against the petitioner as the first
accused and the retail outlet employee as the second
accused. The offence, which is alleged to have been
committed, is one under Section 56A(b) of the Abkari Act.
The occurrence report is produced as Ext.P2.
WPC.35218/2009. 3
3. According to the petitioner, in order to attract
Section 56A of the Abkari Act, the articles seized should be
such preparation other than a bona fide medicinal
preparation. The said provision defines what is a medicinal
preparation and prescribes certain conditions and norms. In
fact going by the provision, namely 56A(2) Explanation (c)
an Expert Committee to be constituted by the Government
of Kerala has to prescribe the formula in a pharmacopoia
regarding the medicinal preparation. It is that Expert
Committee which is competent to say whether the medicine
prepared is a bona fide one or not. The Government of
Kerala has not so far constituted any such Committee and
therefore the whole proceedings is illegal. No other
authority as per the Act has the power and authority to
determine whether the Ayurvedic medicine seized is a bona
fide preparation or not. Petitioner relies on Note to Rule 3 of
the Kerala Spirituous Preparations (Control) Rules, 1969, Act
1 of 1077 also.
WPC.35218/2009. 4
4. The short contention of the petitioner is that in
order to launch a prosecution for the offence punishable
under Section 56A(b) of the Abkari Act, it is necessary to
obtain the opinion of the Expert Committee to be constituted
regarding the medicinal preparation. That having not been
done, the entire proceedings have to be quashed.
5. Inspite of several opportunities given to the
Government and even inspite of direction to file a
statement, nothing has been done in this matter.
6. When the matter was taken up for hearing,
learned Government Pleader handed over a copy of the
notification dated 19.11.2009, which reads as follows:
“S.R.O. No.963/2009- In exercise of the powers
conferred by Section 68A of the Abkari Act; 1 of
1077 read with rule 3 of the Abkari (Expert
Committee) Rules, 1968 and in supersession of
the notification issued under G.O.(P) No.115/87/TD
dated 27th November, 1987 published as S.R.O.
No.1657/87 in Part I of section iv of the Kerala
WPC.35218/2009. 5
Gazette No.49 dated 15th December, 1987, the
Government of Kerala hereby appoint an Expert
Committee with following members, namely.-
1.The Drugs Controller, Kerala,
Thiruvananthapurm.
2. The Chief Chemical Examiner, Kerala,
Thiruvananthapuram.
3. The Director of Health Services, Kerala,
Thiruvananthapuram (Official- Allopathic
System of Medicines)
4. The Ayurvedic Drugs Controller, Kerala
Thiruvananthapuram (Official-Indian System
of Medicines).
5. Dr.V.G. Udayakumar, ‘Arabhi’, Areekkal,
Edaricode P.O., Malappuram (Non-Official
Indian System of Medicines).
6. The Director of Homoeopathy, Kerala,
Thiruvananthapuram (Official-
Homoeopathic System of Medicines).
7. The Joint Commissioner of Excise (Internal
Audit Wing), Excise Commissionerate,
Thiruvananthapuram.”
WPC.35218/2009. 6
7. It must be said that there is considerable force
in the contentions raised by the petitioner. Section 56A of
the Abkari Act reads as follows:
“56A. For allowing consumption of
certain preparations in business premises,
for the manufacture and stocking of such
preparations, etc:-
(1) Whoever being a chemist, druggist ,
apothecary or keeper f a dispensary or
Vaidyasala-
(a) allows any preparation containing liquor
or intoxicating drug to be consumed in his
business premises otherwise than for the bona
fide treatment, mitigation or prevention of any
disease; or
(b) manufactures or stocks or causes to be
manufactured or stocked any such preparation,
other than a bona fide medicinal preparation,
within the premises under his control;
shall, on conviction before a competent
court, be punished with imprisonment for a term
which may extend to five years, and with fine
which shall not less than fifty thousand rupees.
WPC.35218/2009. 7
(2) Whoever consumes any preparation
containing liquor or intoxicating drug, which is
not a bona fide medicinal preparation, in any
premises referred to in sub-section (1) shall, on
conviction before a Magistrate be punished with
fine which may extend to five thousand rupees.
Explanation:- For the purposes of this
section, “Bona fide medicinal preparation” shall
mean any medicinal preparation-
(a) manufactured according to a formula
prescribed in a pharmacopoeia approved by the
Government of India or the Government of Kerala,
or
(b) manufactured according to a formula
approved by the Government of Kerala in respect
of patent and proprietory medicinal preparations;
or
(c) approved as a bona fide medicinal
preparation by the Expert Committee appointed
under Section 68A.”
Section 68A deals with the constitution of the Exert
Committee.
WPC.35218/2009. 8
8. A reading of Section 56A will clearly show that
the authority to determine whether a particular medicinal
preparation is in conformity with the norms is the Expert
Committee to be appointed under Section 68A. The
Explanation to the said provision defines what is a bona fide
medicinal preparation. It should be confirm to a formula
prescribed in a pharmacopoeia approved by the Government
of India or the Government of Kerala. In the case on hand,
the issue, even as accepted by the learned Government
Pleader, falls within the scope of Explanation (c). The Expert
Committee has been constituted only on 19.11.2009.
9. The prosecution in the case on hand was
launched much before that. It was infact launched on
8.12.2001. Obviously, it is not in accordance with the
provisions of the Act. On that sole ground the petition has to
succeed.
In the result, this petition is allowed, and all
further proceedings in respect of C.R. No.60/2002 of
Pathanapuram Range Punalur Circle initiated by the Excise
WPC.35218/2009. 9
Range Office shall stand quashed. So also, all further
proceedings in S.C. 780 of 2007 on the file of the Additional
Sessions Court (Abkari) Cases, Kottarakkara shall stand
quashed and the petitioner shall stand discharged.
P. BHAVADASAN,
JUDGE
sb.