SC comes to rescue of Dermatologist; Quashes all criminal proceedings alleging illegal stocking of medicines for sale
New Delhi: Quashing all criminal proceedings against a Dermatologist who was accused of stocking medicines for sale, the Supreme has ruled that a doctor's act of storing small quantities of medicines will not amount to an offence of unauthorized stocking of medicines under Section 18(c) of the Drugs and Cosmetics Act 1940.
The apex court observed that the ''extremely small'' quantity of medicines which was seized could easily be found in the house or consultation room of a medical practitioner. Therefore, "considering the small quantity of medicines, most of which were in the category of lotions and ointments, it cannot be said by any stretch of the imagination that they could be stocked for sale," the top court stated.
The bench comprising Justices Krishan Murari and Sudhanshu Dhulia was hearing a plea filed by a Tamil Nadu-based senior doctor who is engaged as an associate professor and head of the dermatology department in a Government Medical College in Chennai. She has an MD (DVL) degree in this specialisation.
The bench delivered its verdict on a plea filed by the doctor against a June 2022 order of the Madras High Court which had dismissed her petition seeking the quashing of criminal proceedings.
The case is that Dr S Athilakshmi, who is a registered medical practitioner carrying on her medical practice at premises in Chennai, was inspected in March 2016 by the Drugs Inspector. As per the inspection report, the drugs inspector found some medicines like lotions and ointment in the inner room of her premises and he had also referred to certain sale bills of medicines.
Alleging that she stocked drugs for sale and sold the drugs without having a valid drug license, which is punishable under section 27(b)(ii) of the said Act, an application was moved by the inspector for obtaining a sanction for prosecution from the office of the Director of Drugs Control, Tamil Nadu.
The sanction was received in Jan 2018, after which, the Inspector filed a complaint before Magistrate, Egmore, for prosecuting the Appellant under Section 18(c) of the Drugs and Cosmetics Act, 1940 punishable under Section 27(b)(ii) of the Act. It said the prohibition under section 18(c) of the Act is on the manufacturing, distribution, stocking or exhibition of medicines for the purpose of sale.
She challenged the proceedings before the Madras High Court, however, her plea filed under Section 482 CrPC was dismissed, prompting her to file the instant SLP before the Supreme Court.
As the matter reached the top court, the bench referred to Schedule (K) 7 appended to the Drugs and Cosmetics Rules, 1945, which exempts certain drugs from the provisions of Chapter IV of the Act (which includes both Section 18 and Section 27 referred above, which are penal provisions).
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.
