SC Grants Relief to Doctor for Storing Small Quantity Medicines without Licence, Says Does Not Endanger Public Interest

New Delhi: The Supreme Court recently granted relief to a doctor by setting aside a two-year jail term imposed on him for storing certain allopathic medicines at his clinic in small quantities without the required licenses.

Setting aside the Madras High Court order for two-year imprisonment, the top court bench of Justices BR Gavai and Sanjay Karon limited the penalty for the doctor to payment of Rs 1 lakh fine.

The Apex Court took this decision after noting that the medicines that were seized from the doctor's clinic were of a small quantity under the Drugs and Cosmetics Act, 1940 and there was no evidence to prove that the doctor wanted to distribute or sell those medicines.

Holding that imposing a jail term on the doctor would be unjustified, the bench explained, "...non-disclosure of the name of the manufacturer/person from whom the said medicines were acquired, cannot be said to be endangering public interest (which obviously, is the primary object of the prohibition in law) by allowing the circulation of such substances unauthorizedly."

"...we are of the considered view that imposing a sentence of imprisonment would be unjustified, particularly when the intent to sell/distribute under Section 18(c) of the Act has been held unproven. Therefore, we find it fit to modify the impugned judgment, set aside the sentence of imprisonment as awarded, and instead thereof, impose a fine of Rs.1,00,000/- on the Appellant," ordered the bench.

These observations were made by the bench while considering the plea challenging a Madras High Court order dating back to September 2021. The HC bench had refused setting aside the order of the Additional District & Sessions Judge, Tiruvallur dated 16th April, 2019.

The lower Appellate Court had modified the order of the Chief Judicial Magistrate by setting aside the doctor's conviction under Section 18 (c) read with Section 27 (b)(ii) of the Drugs and Cosmetics Act, 1940, while confirming the conviction and sentence in regard to Section 18(A) read with Section 28, of the said Act.

Back in 2015, the doctor's clinic was inspected by the State Government officials including the Pallippattu Range Drug Inspector, Joint Director, Tiruvallur District Health Department and Zone Drug Inspector Poonamallee.

The inspection found 29 types of allopathic medicines meant for distribution without the proper paperwork (license) for sale. Further, when the doctor was questioned regarding the source of procuring those medicines, the details remained unfurnished.

Accordingly, the Durg Inspector of Pallippattu filed a complaint against the doctor and prosecution was initiated based on 6 witnesses and with the 29 types of medicines (a small quantity) recovered, being marked as material objects.

After considering the evidence, the trial court sentenced the doctor to two years of rigorous imprisonment along with Rs 1 lakh fine. The order was challenged before the Additional District & Sessions Judge, which considered the question of whether the drugs recovered were for sale/distribution. The court noted that no patients or any other persons were examined to establish that the drugs so confiscated were actually sold and no bills/receipts were produced either. 

Noting that there was no proof showing that the drugs in the clinic were for sale/distribution, the lower appellate court had opined that the offence under Section 18(c) of the Act was not proven.

Therefore, the Sessions Court set aside the doctor's conviction under Section 18(c) of the Drugs and Cosmetics Act, which concerns the sale or distribution of unlicensed drugs. However, the other charges were sustained. The Sessions Court also held that the doctor was entitled to a refund of Rs 1 lakh.

Although an appeal was filed with a prayer to set aside the conviction and sentence under Section 18(A) of the Act, the plea was rejected by the High Court. Following this, the doctor approached the Supreme Court.

The doctor submitted before the Supreme Court that being a doctor he had no ill intention (mens rea) to contravene the law and undertake any action which may be scuttling the statutory provisions. Therefore, the doctor urged the top court bench to modify the sentence of imprisonment to that of a fine.

While considering the matter, the Supreme Court bench referred to the top court order in the case of Mohammad Giassudin v. State of Andhra Pradesh, where it was noted that a proper sentence is an amalgam of many factors pertaining to the offence itself as also others such prior record, if any, age, record of employment, education, home life, social adjustment, and emotional and mental conditions of the offender etc.

The bench observed that following the modified order, the doctor is convicted under Section 18A read with Section 28 of the Act, concerning the disclosure or non-disclosure respectively of the name of the manufacturer. While Section 18A stipulates a requirement for every person who is not a manufacturer or agent of distribution to disclose the name of the person from whom they have acquired the drug or cosmetic, Section 28 imposes a punishment for violating the concerned requirement to the tune of imprisonment up to a year or with a fine not less than Rs 20,000 or with both.

It was observed by the Supreme Court that the concerned doctor was imposed with six months simple imprisonment with the minimum statutory fine. Observing that it was not in dispute that the Appellant is a doctor, the bench further noted that in the judgment in case of S. Athilakshmi v. State Rep. by The Drug Inspector, the Apex Court had acquitted a doctor of stocking a small amount of drug as the same was not slated to be equal to selling medicines across the counter in a shop.

Referring to the doctor, the bench noted, "This offence, as already noted above, was found not proved by the lower Appellate Court."

"The only aspect which remains is a non-disclosure of the name of the manufacturer. We find that the quantities of the 29 kinds of medicines recovered from the clinic run by the Appellant, were of small quantity. In such a situation, non-disclosure of the name of the manufacturer/person from whom the said medicines were acquired, cannot be said to be endangering public interest (which obviously, is the primary object of the prohibition in law) by allowing the circulation of such substances unauthorizedly," it opined.

Therefore, referring to the Supreme Court order in the case of Mohammad Giassudin, the bench opined that it would be unjustified to impose a sentence of imprisonment on the doctor, particularly when the intent to sell/distribute under Section 18(c) of the Act has been held unproven.

Taking note of this, the bench ordered, "Therefore, we find it fit to modify the impugned judgment, set aside the sentence of imprisonment as awarded, and instead thereof, impose a fine of Rs.1,00,000/- on the Appellant."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/supreme-court-storing-drugs-232404.pdf

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