S. Muraleedharan Pillai v. The Excise Commissioner of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935 WP(C).No. 4084 of 2013 (I) --------------------------- PETITIONER: ----------- S.MURALEEDHARAN PILLAI, M/S.MANGALAM AYURVEDA PHARMACY, INCHAVILA, PERINAD KOLLAM. BY ADVS.SRI.K.KARTHIKEYA PANICKER SMT.DAYA K. PANICKER ------------ 1. THE EXCISE COMMISSIONER OF KERALA OFFICE OF THE EXCISE COMMISSIONER OF KERALA THIRUVANANTHAPURAM 695 001. 2. ASSISTANT EXCISE COMMISSIONER, OFFICE OF THE ASSISTANT EXCISE COMMISSIONER KOLLAM - 691 001. 3. CIRCLE INSPECTOR OF POLICE, EXCISE RANGE, KOLLAM - 691 001. R2 BY GOVERNMENT PLEADER SMT.C.K.SHERIN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-05-2013 ALONG WITH WPC. 4852/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4084 of 2013 (I) **A P P E N D I X** PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE LICENSE DATED 28/5/2012 ISSUED BY DRUGS CONTROLLER OF KERALA UNDER RULE 155 OF THE RULES. EXT.P2: TRUE COPY OF THE FORM L-2 LICENSE DATED 6/4/2000. EXT.P3: TRUE COPY OF THE WHOLESALE LICENSE FOR THE POSSESSION AND SALE OF SPIRITUOUS PREPARATIONS. EXT.P4: TRUE COPY OF THE CERTIFICATE OF “GOOD MANUFACTURING PRACTICE” DTED 28/5/2012. /TRUE COPY/ P.A TO JUDGE **K.SURENDRA MOHAN, J. ----------------------------------------------------W.P(c) Nos.4084 of 2013-I & 4852 of 2013-F** **---------------------------------------------------Dated this the 28[h] May, 2013** ## **J U D G M E N T** Both these Writ Petitioners claim identical reliefs. The reliefs claimed in W.P(c) No.4084 of 2013 which is treated as the leading case are the following: “i) To issue a writ in the nature of mandamus or any other writ, order or direction to the respondents not to interfere with the marketing of the ayurvedic medicines manufactured by the petitioner in accordance with the pharmacopoeia approved by the Government through his retail outlets, vaidhyasalas, and agencies by invoking the provisions contained in the Abkari Act and the Kerala Spirituous Preparations (Control) Rules, 1969 framed thereunder. ii) To declare that at any point of time respondents are of the view that sample of the medicines from the retail outlets, agencies and vaidyasalas of the petitioner is to be taken for chemical analysis, they have to strictly follow the procedures prescribed by Section 23 of the Drugs and Cosmetic Act. **W.P(c) Nos.4084 of 2013-I & 4852 of 2013-F** 2 iii) To declare that even if any of the conditions contained in the licence issued under Kerala Spirituous Preparations (Control) Rules is violated or the Rules are contravened, Rule 17 of the Spirituous Preparation Rules does not confer on the respondents to initiate prosecution proceedings against the petitioner or the persons under the employment of the petitioner. iv) To declare that till it is declared by the Government Analyst under the Drugs and Cosmetic Act or the Commissioner that the seized article is intoxicating liquor or intoxicating drugs, respondents have no authority to arrest the employees employed in the retail outlets, agencies or vaidyasalas and register crime case against them. v) To issue any other Writ order or direction as this Hon'ble Court deem fit and proper in the case with cost of the proceedings.” 2. The petitioners in both the Writ Petitions are licensees under the Drugs and Cosmetics Act (hereinafter referred to as `the Act' for short). According to them, they are possessed of all the necessary licences and permissions from the competent authorities under the said Act for the purpose of engaging in the manufacture, stocking and sale of Ayurvedic drugs and cosmetics. They are aggrieved by the action of the respondents **W.P(c) Nos.4084 of 2013-I & 4852 of 2013-F** 3 in conducting inspection and searches of their retail outlets. It is further alleged that Ayurvedic preparations are seized on the allegation that they contain alcohol and prosecution proceedings are also lodged against them in many cases. The contention of the petitioners is that since they are engaging in their activities on the strength of licences issued under the Act, the authorities under the Abkari Act have no jurisdiction or power to interfere with the said activities of theirs. It is also contended by Advocate Sri Karthikeya Panicker, who appears for the petitioners, that the samples to be taken by them can only be taken in compliance with the procedure prescribed by the Act. 3. Separate counter affidavits have been filed in both the cases on behalf of the 2[nd] respondent. According to the 2[nd] respondent, Rule 6 of the Kerala Spirituous Preparations (Control) Rules, 1969 mandates that no person shall manufacture any spirituous preparation except on the strength of a licence issued under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956. Therefore, the petitioners are carrying on their activities only on the basis of what is referred to as an L2 licence issued under the said Rules. For wholesale **W.P(c) Nos.4084 of 2013-I & 4852 of 2013-F** 4 and retail sale of spirituous preparations, a separate licence in the stipulated form is required to be obtained. Therefore, it is contended that the licence issued to the petitioners under the Drugs and Cosmetic Act, 1940 does not entitle the petitioners to carry on the manufacture of Ayurvedic preparations containing alcohol. For the purpose of ascertaining whether violations of the provisions of the Abkari Act and the Rules thereunder are being committed, it is necessary for the authorities to conduct periodic inspections and searches of the premises of persons who are engaged in the activity of producing Ayurvedic medicines. It is only the said lawful activity that the respondents have conducted. Therefore, it is contended that there are no grounds to restrain them from discharging their statutory duties. 4. I have heard the learned counsel for the petitioners as well as the learned Government Pleader. The main contention put forward by the learned counsel for the petitioners is that any search or inspection of the premises of the petitioners could be conducted only in compliance with the provisions of the Drugs and Cosmetics Act and samples could be taken only in compliance with the provisions thereof. It has been held by this **W.P(c) Nos.4084 of 2013-I & 4852 of 2013-F** 5 Court in **Muralidharan Pillai v. State of Kerala** [2006(4) KLT 254] that for the manufacture of Ayurvedic preparations containing alcohol, it is not sufficient that a person has a licence under the Drugs and Cosmetics Act. It is imperative that he should in addition possess the necessary licences under the Kerala Spirituous Preparations (Control) Rules, 1969. I notice that the petitioner in W.P(c) No.4084 of 2013 was the petitioner in the said Writ Petition also. 5. It cannot be disputed that the respondents are authorities under the Abkari Act and the Rules thereof. They have been conferred with powers under the said Act and the Rules. Duties have also been cast on them, which they are bound to discharge under the provisions of the said Act. While discharging their duties and functions under the provisions of the Abkari Act and the Rules thereunder, they have to act in compliance with the conditions and stipulations contained in the various provisions of the said Act and Rules. Therefore, the contention that they are acting in accordance with the provisions of the Drugs and Cosmetics Act cannot be accepted. It has been held by a Division Bench of this Court that the Excise authorities **W.P(c) Nos.4084 of 2013-I** **& 4852 of 2013-F** 6 have ample powers to conduct inspections and searches of the premises of manufacturers engaged in the manufacture, stocking and sale of Ayurvedic medicines, in spite of the fact that they are doing so on the strength of licences issued under the Drugs and Cosmetics Act. For the above reasons, I am not satisfied that the petitioners are entitled to any of the reliefs claimed in these Writ Petitions. The Writ Petitions fail and are therefore dismissed. Sd/- _**(K.SURENDRA MOHAN, JUDGE)**_ rtr/