Rathore, J.
1. These are 7 writ petitions involving identical questions of law and are being decided by a common order.
2. The facts of the case of Jasoria Medical Store, Deeg and Anr. v. State of Raj. and Ors. (S.B. Civil Misc. Writ Petition No. 2170/1995) are being taken as a leading case.
3. The petitioners are engaged in the retail business of buying and selling of manufactured Drugs in the form of Tablets, Powder, Liquids and Ointments i.e. the petitioners are merely supplying or selling a Drug as defined in Rule 3 (b) of the Drugs and Cosmetics Act, 1940.
4. The Government of India exercising the powers under Section 6(2) (12) and 33 of the Drugs and Cosmetics Act, 1940 has framed the Drugs and Cosmetics Rules, 1945. Part 6 of the said rules is relevant to the present controversy. This part deals with sale of Drugs other than the Homeopathic Medicines. Rule 64 provides grant of various kinds of licences in From 20, 20-A, 20-B, 21, 21-A and 21-B, the classification of Drugs is given in different schedule attached with the rules.
5. Rule 64 prescribes the condition of licence. Proviso therein provides to the effect that in the case of a Pharmacy a Licence in form 20 or 21 shall not be granted unless the Licensing Authority is satisfied that the requirements prescribed for a Pharmacy in Schedule 'N' have been complied with. Schedule 'N' provides a list of minimum Equipments for the efficient running of the Pharmacy.
6. Since the petitioners are not operating Pharmacy conditions provided in proviso and Schedule 'N' are not applicable.
7. Form 20 under Rule 64 also provides for condition of licence and the Asterisk Mark (Star Mark) that 'and to operate a Pharmacy on the premises situated at' indicates deletion of the same if not applicable.
8. The controversy arising only when under Circular dated 2.3.95 the petitioners' licences were not renewed by the respondents.
9. Learned counsel for the petitioners submits that as per circular dated 2.3.95 the petitioners are not required to comply with the conditions stipulated in the circular on the reason that the petitioners are engaged in the business of selling or supplying the drugs and are not operating Pharmacy. Therefore, the petitioners are not required to be 'qualified persons' or to employ such qualified persons'.
10. It is given out that the petitioners are neither operating Pharmacy nor dispensing the Drugs, therefore, the condition to be a 'qualified person' or to employ one is not attracted in their case.
11. Learned counsel for the petitioners referred Rule 64 of the Drugs and Cosmetics Rules, 1945, which is reproduced hereunder:
'Conditions to be satisfied before a licence in [Form 20, 20B, 20F, 20G, 21 or 21B] is granted [or renewed].-A licence in [Form 20, 20B, 20F, 20G, 21 or 21B] [to sell, stock, exhibit or offer for sale or distribute] drugs shall not be granted [or renewed] to any person unless the authority empowered to grant the licence is satisfied that the premises in respondents of which the licence is to be granted [or............adequate, equipped with proper storage accommodation for preserving the properties of the drugs to which the licence applies and are in charge of a person competent in the opinion of the licensing authority to supervise and control the sale, distribution and preservation of drugs:
Provided that in the case of a pharmacy a licence in form 20 or 21 shall not be granted [or renewed] unless the licensing authority is satisfied that the requirements prescribed for a pharmacy in Schedule N have been complied with:
[Provided further that licence in form 20 F shall be granted [or renewed] only to a pharmacy and in areas where a pharmacy is not operating, such licence may be granted [or renewed] to a chemist and druggist.]'
12. More particularly the petitioners referred explanation to the Rule 64, which is reproduced hereunder:
For the purpose of this rule the term 'Pharmacy' shall be held to mean and include every store or shop or other place- (1) where drugs are dispensed, that is, measured or weighed or made up and supplied; or (2) where prescriptions are compounded; or (3) where drugs are prepared; or (4) which has upon it or displayed within it, or affixed to or used in connection with it, a sign bearing the word or words 'Pharmacy', 'Pharmacist', 'dispensing Chemist', or 'Pharmaceutical Chemist'; or (5) which, by sign, symbol or indication within or upon it gives the impression that the operations mentioned at (1), (2) and (3) are carried out in the premises; or (6) which is advertised in terms referred to in (4) above'.
13. He also referred Sub-rule 15 of Rule 65, which is reproduced hereunder:
'(a) the description 'Drugstore' shall be displayed by such licensees who do not require the services of a qualified person.
(b) the description 'Chemists and Druggists' shall be displayed by such licensees who employ the services of a 'Qualified Person' but who do not maintain a 'Pharmacy' for compounding against prescriptions.
(c) the description 'Pharmacy', 'Pharmacist', 'Dispensing Chemist' or 'Pharmaceutical Chemist' shall be displayed by such licensees who employ the services of a 'Qualified person' and maintain a 'Pharmacy' for compounding against prescription.'
14. By referring Sub-rule 15 of Rule 65 emphasise upon that the expression 'dispensing' used in the explanation to Clause (c) has been explained while defining the term 'Pharmacy' which provides that the drugs are dispensed, that is, measured or weighed or made up and supplied.
15. He also referred Sub-rule 19 of the rules 65, which reads as under:
'The supply by retail of any drug in a container other than the one in which the manufacturer has marketed the drug, shall be made only by dealers who employ the services of a 'qualified person' and such supply shall be made under the direct supervision of the 'Qualified person' in an envelope or other suitable wrapper or container showing the following particulars on the label:-
(a) name of the drug,
(b) the quantity supplied,
(c) the name and address of the dealer.'
16. By referring Sub-rule 19 of Rule 65 the petitioners submit that the supply by retail of any drug in a container other than the one in which the manufacturer has marketed the drug, shall be made only by dealers who employ the services of a 'qualified person' and such supply shall be made under the direct supervision of the 'Qualified Person' in an envelope or other suitable wrapper or container showing the name of the drug, the quantity supplied and the name and address of the dealer. This implies that a retail dealer of a Drug, who merely supplies or sale the Drug as defined in Rule 3 (b) in the same contained which the Manufacturer has marketed may do so without either being a 'qualified person' or employing such a person.
17. He further submits that by bare reading of Rule 64 and 65 together makes it abundantly clear that no drug can be supplied or sold by a retail dealer except by or under the supervision of a 'qualified person' apart from a drug contained in a container in which the Manufacturer has marketed it. The petitioners are selling or supplying the drugs which are contained in a Container in which the Manufacturer has marketed it. Therefore, in such circumstances, need to be a 'qualified person' or to employ a 'qualified person' is not contemplated under the act or the rules. With regard to the exercising power under Section 42 of the Pharmacy Act, 1948 the respondents issued a circular dated 2.3.95.
18. Learned counsel for the petitioners also referred Section 42 of the Pharmacy Act, 1948, which reads as under:
Dispensing by unregistered persons:-
(1) On or after such date as the (State Government) may be notification in the official Gazette appoint in this behalf, no person other than a registered pharmacist shall compound, prepare, mix or dispense any medicine on the prescription of a medical practitioner.
Provided that this sub-section shall not apply to the dispensing by a medical practitioner of medicine for his own patients, or with the general of special sanction of the (State Government) for the patients of another medical practitioner.
Provided further that where no such date is appointed by the Government of a State, this sub-section shall take effect in that State on the expiry of a period of (eight years) from the commencement of the Pharmacy (Amendment) Act, 1976).
(2) Whoever contravenes the provisions of Sub-section (1) shall be punishable with imprisonment for a term which may extend to six months or with fine not exceeding one thousand rupees or with both.
(3) cognizance of an offence punishable under this section shall not be taken except upon complaint made by (order of the State Government or any officer authorised in this behalf by the State Government, or by order of the Executive committee of the State council).'
19. After referring Section 42 of the Pharmacy Act 1948 learned counsel for the petitioners submits that it pertains to dispensing by unregistered person, whereas, the petitioners are not operating or dispensing other medicines as provided by the Drugs and Cosmetics Act/Rules.
20. Learned counsel for the petitioners also referred meaning of prescription that prescription is an order written by a physician, dentist or any other registered medical practitioner to a pharmacist to compound and dispense a specific medication for the patient. The order is accompanied by directions for the pharmacist that what type of preparation is to be prepared and how much is to be prepared.
21. Learned counsel for the petitioners in support of his submissions placed reliance on the judgment of M/s. J. Das Brothers and Ors. v. Union of India and Ors. (1).
22. Per contra learned counsel for the respondents raised the preliminary objections regarding the maintainability of the writ petition. The Drugs and Cosmetics Act, 1940 and rules framed thereunder in the year 1945 have been enacted by the Central government and the State Government are to implement the provisions of the said Act. In the present writ petition, the petitioners have referred certain provisions contained under the Drugs and Cosmetics Act, 1940 without impleading the Central Government or its any of the appropriate agency in the array of respondents, hence the writ petition deserves to be dismissed.
23. He further challenged the maintainability on the ground that the Circular dated 2.3.95 is an inter-departmental instructions issued to all the Drug Inspectors Rajasthan, All Assistant Drug controllers Rajasthan with the object to implement the provisions of Drugs and Cosmetics Act, 1940 and the rules framed thereunder. In these circumstances no right of the petitioners have been infringed by the order/circular dated 2.3.95.
24. Mr. Sharma further submits that the petitioners tried to mix the provisions applicable to 'Chemist and Druggist' and the persons who are permitted to operate 'Pharmacy'. The first condition for the licensees who are licenced to sell drugs by way of retail sale and in later condition the operation of Pharmacy i.e. compounding and dispensing of drugs is permitted to those who comply with the provisions of Schedule 'N'.
25. Learned counsel for the respondents further submits that the provisions of Rule 65 (2) and 65 (15) Sub-clause 'b' are mandatory in nature, which require that for the sale of any drug by retail sale the services of registered Pharmacist is now required after the notification dated 6.9.94, by which the Drugs and Cosmetics Rules, 1945 have been amended after inviting objections, under the amended provisions the word 'Qualified person' has been substituted as registered Pharmacist. The notification dated 6.9.94 is placed on the record by the respondents as Annex.R-2.
26. So far as the renewal of the licences are concerned, learned counsel for the respondents submits that generally the licences are renewed in routine as and when the license applies for renewal after expiry of his period of previous renewal. In the present case licence of petitioner No. 1 was already renewed on 19.5.94 .w.e.f. 1.1.94 to 31.12.1995. In the same manner the licence of petitioner No. 2 has also been renewed on 16.10.95 w.e.f. 1.1.95 to 31.12.96. However, the petitioners have tried to mislead this Court by making false and baseless averments in this connection and the writ petition deserves to be dismissed that their licences are not renewed. Mr. O.P. Sharma, who is appearing for the respondents submitted a judgment passed by Hon'ble Supreme Court in the case of Sharma Drug House v. U.O.I. and Ors. dated 12.12.97 and further submits that the present controversy is fully covered by the judgment rendered by the Hon'ble Supreme Court. (27). Heard rival submissions of the respective parties and carefully perused the relevant provisions of law and the judgment referred before me.
28. The petition is filed for seeking writ, order or direction to quash and set aside the circular/memorandum dated 2.3.95 issued by the respondent No. 3 and it is further prayed the direction in the nature of writ directing the respondents to grant licences or renewals without insisting for employing a qualified person or need to be a qualified person to obtain a licence in Form 20 and 21.
29. So far as the renewal is concerned it is submitted by the learned counsel for the respondents in their reply that they have renewed the licences of the petitioners and also given the dates and period for which the licences of the petitioners are renewed. Therefore, the prayer with regard to renewal is concerned does not survive and the present petitions fail so far as this direction is concerned as the respondents have already renewed their licences.
30. The only controversy is with regard to the application of circular/memorandum dated 2.3.95. For the purposes of the application of aforesaid circular I carefully gone through the relevant rules and provisions referred before me.
31. Upon perusal of the explanation to Rule 64 upon which much emphasis have been given by the petitioners the meaning of 'Pharmacy' has been given. Pharmacy include every store or shop or other place where drugs are dispensed, that is, measured or weighed or made up and supplied; or where prescriptions are compounded; or where drugs are prepared; or which has upon it or displayed within it, or affixed to or used in connection with it, a sign bearing the word or words 'Pharmacy', 'Pharmacist', 'dispensing Chemist' or 'Pharmaceutical Chemist'.
32. Rule 64 stipulates the conditions to be satisfied before a licence is granted or renewed in Form 20, 20B, 20F, 20G, 21 or 21B. In the instant case for renewal the authorities have to satisfy before renewal whether the conditions as stipulated under Rule 64 is fully complied with or not. '
33. I also carefully examined the provisions of Sub-rule 15 of Rule 65. Under Rule 65 the conditions of licenses are laid down. In Sub-rule 15 the description of 'Drugstore', 'Chemists and Druggists', 'Pharmacy', 'Pharmacist', 'Dispensing Chemist' or 'Pharmaceutical Chemist' are required to be displayed whether the petitioners are Drugstore or Chemists and Druggists or Pharmacy, Pharmacist and Dispensing Chemist or Pharmaceutical Chemist.
34. Upon perusal of Annex. 1, which are placed by the petitioners reveals that none of the licensees has displayed the required description as stipulated under Sub-rule 15 of Rule 65 and only mentioned Jasoria Medical Store and Mudgal Medical Store. This display of Jasoria Medical Store and Mudgal Medical Store is contrary to the provisions of Sub-rule 15 of Rule 65. If the petitioners are Drugstore they have to display Drugstore not the Medical Store. Thus the Sub-rule 15 does not help the petitioners as the respondents have not violated, on the contrary the petitioners themselves has violated the provisions of sub- rule 15 of Rule 65.
35. Sub-rule 19 of Rule 65 deals with 'qualified persons' and the supply of the drug shall be made only by dealers, who employ the services of a 'qualified person' and such supply can be made under the direct supervision of the 'Qualified Person'.
36. So far as qualified person is concerned, the same controversy was resolved by the Hon'ble Supreme Court in the case of Sharma Drug House v. U.O.I. and Ors. (supra), submitted by the respondents, wherein the Hon'ble Supreme Court has expressed in the following terms:
'We are surprised that it should even be urged, as the petitioner does in the present case, that it should be permitted to employ persons not duly qualified to act as Pharmacist and to handle the drugs which are sold by it. It need hardly be added that the argument does not even merit any serious consideration. While dismissing the SLP, we would like to add that in view of the perception of the petitioner it is necessary that the concerned authorities keep a strict watch over the petitioner's conduct of the business in order to ensure that the necessary statutory requirements are duly complied with by it. A copy of this order be sent by the Registrar Judicial to the Chief Secretary of the State of U.P. To ensure proper compliance not only by the petitioner but also by the like minded. The special leave petition is dismissed with these observations.'
37. I also perused Section 44 of the Pharmacy Act 1948 and the judgment referred by learned counsel for the petitioners.
38. The Allahabad High Court has interpreted the qualified person as contained in explanation to Clause (c) of Sub-rule (15) of Rule 65 and held that merely supplies or sells a drug as defined in Rule 3 (b) in the same container which the manufacturer has marketed may do so without either being a 'qualified person' or employing such a person. It is a matter of common knowledge that certain drugs, as widely understood in the context of the definition are bought by customers from a retail dealer in the same container as marketed by the manufacturer.
39. The judgment was rendered by the Allahabad High Court in the case of M/s. J. Das Brothers and Ors. v. Union of India and Ors. in the year 1992. Subsequently, the Hon'ble Supreme Court has dismissed such SLP and held that 'we are surprised that it should even be urged, as the petitioner does in the present case, that it should be permitted to employ persons not duly qualified to act as Pharmacist and to handle the drugs which are sold by it. It need hardly be added that the argument does not even merit any serious consideration.' The Hon'ble Supreme Court while dismissing the SLP also direct the concerned authorities to keep a strict watch over the petitioner's conduct of the business in order to ensure that the necessary statutory requirements are duly complied with by it.
40. Thus in such circumstances, the view taken by the Allahabad High Court cannot be accepted. I fully convinced that the notification, which are under challenge in these writ petitions, does not require any interference and on the contrary the requirement is of strict compliance of the statutory provisions of the Drugs and Cosmetics Act, 1940.
41. In view of the aforesaid discussions all the writ petitions fail and the same are dismissed with no order as to costs.