The Supreme Court on Wednesday quashed criminal proceedings against a doctor accused of stocking medicines for sale, saying the “extremely small” quantity of medicines which was seized can easily be found in the house or consultation room of a medical practitioner.
The apex court observed that 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 imagination that they could be stocked for sale.
It noted that the appellant is a senior doctor who is engaged as an associate professor and head of the dermatology department in a government medical college in Chennai.
“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,” a bench of Justices Krishna Murari and Sudhanshu Dhulia said.
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 quashing of criminal proceedings.
The top court observed it is permissible for her under the law to practise medicine when she is not performing her official duties.
It noted that the doctor, in her individual and independent capacity, was carrying on her medical practice at a premises in Chennai and an inspection was made there by the drugs inspector in March 2016.
The bench further noted that 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.
The bench noted the drugs inspector thereafter moved an application for obtaining sanction from the office of the Director of Drugs Control, Tamil Nadu, which was given in January 2018 and consequently, a complaint was filed before a court for prosecuting her under section 18(c) of the Drugs and Cosmetics Act, 1940.
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.
“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.
It 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 bench observed it is not the case of the prosecution that she was selling drugs from an open shop across the counter.
“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,” it 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.
While allowing the appeal, it set aside the order of the high court and quashed the criminal proceedings in the case.
