SC comes to rescue of Dermatologist; Quashes all criminal proceedings alleging illegal stocking of medicines for sale

The Schedule serves as an exception in favour of the medical practitioner where the drugs given in Schedule ‘K’ would be exempted from the purview of Chapter 4 of the Act.

It may be noted that Entry No. 5 under Schedule (K), which was applicable to the facts of the instant case, states thus:

“Drugs supplied by a registered medical practitioner to his own patient or any drug specified in Schedule C supplied by a registered medical practitioner at the request of another such practitioner if it is specially prepared with reference to the condition and for the use of an individual patient provided the registered medical practitioner is not (a) keeping an open shop or (b) selling across the counter or (c) engaged in the importation, manufacture, distribution or sale of drugs in India to a degree which render him liable to the provisions of Chapter IV of the Act and the rules thereunder.”

Observing that she was protected under Entry 5 to Schedule K, the Court observed that the quantity of medicines seized from the appellant was extremely small, a quantity which can be easily found in the house or a consultation room of a doctor. 

"The provisions of Section 18 and 27 are relevant provisions under the law, which have a social purpose, which is to protect ordinary citizens from being exploited inter alia, by unethical medical practitioners, and for this reason the punishment under Section 27 can extend up to 5 years under the law, and has a minimum punishment of 3 years. But given the facts and circumstances of the case and considering that the Appellant is a registered medical practitioner, along with the fact that the quantity of medicines which have been seized is extremely small, a quantity which can be easily found in the house or a consultation room of a doctor, in our considered view no offence is made out in the present case", the Court observed.

“ In fact, an exception has been created under Schedule ‘K’ read with Rule 123 to the rules, the appellant ought to have been given the benefit of these provisions and such a registered medical practitioner should not have been allowed to face a trial where in all likelihood the prosecution would have failed to prove its case beyond reasonable doubt,” the Court further observed.

The top court observed it is permissible for her under the law to practise medicine when she is not performing her official duties. "The charge in the present case is that the appellant (doctor) had 'stocked' medicines for 'sale'. The entire emphasis is on 'sale' of these medicines," the bench noted.

Considering the doctor's profession, the Supreme Court said what the Director of drugs control and the high court lost sight of is the fact that she is a registered medical practitioner and her area of specialisation being dermatology.

"It is not a case that she had opened a shop in her premises from where she was selling drugs and cosmetics across the counter! It is possible that she was distributing these drugs to her patients for emergency uses and thus she is protected by the Act itself," the apex court said.

The Court further noted that the appellant had produced multiple invoices from pharmaceutical shops to show her bonafides and that drugs seized from her premises were admittedly of ‘standard quality’ which indicated that it was not a case where the Appellant was operating a shop to sell spurious medicines over the counter.

"When small quantity of medicine has been found in the premises of a registered medical practitioner, it would not amount to selling their medicines across the counter in an open shop," the bench of Justices Krishna Murari and Sudhanshu Dhulia said.

The bench noted that the search was carried out in March 2016 and the sanction for prosecution was sought in September 2016. It said the sanction was given in January 2018 and there is no explanation given for this delay in getting the approval.

"The sanction for prosecution given in the present case appears, prima facie, to suffer from the vice of non­-application of mind. There is no reference to any of the documents, evidence or the submissions submitted by either of the parties, no reasons assigned or even an explanation pertaining to the delay which indicates it has been passed in a mechanical manner," the bench said.

During the hearing, the Supreme Court also found faults with the sanctioning authority for not examining whether a practicing doctor could be prosecuted under the facts of the case, considering the small quantity of the drugs and the exception created in favour of the medical practitioners under Rule 123, read with the Schedule ‘K’. "All these factors ought to have been considered by the sanctioning authority," the bench said.

In view of the above observations, while allowing the appeal, the top court set aside the order of the high court and quashed the criminal proceedings in the case granting relief to the dermatologist.

To view the order, click here