S. Athilakshmi vs The State Rep. by the Drugs Inspector

HELD: 1.1 It is not the case of the prosecution that the Appellant was selling drugs from an open shop across the counter. She is a senior doctor who is engaged as an Associate Professor and Head of Department, Dermatology in a Government Medical College, and being a medical practitioner, under certain conditions, she is also protected under the law which has been referred to above. Considering the small quantity of medicines, most of which are in the category of lotions and ointments, it cannot be said by any stretch of imagination that such medicines could be ‘stocked’ for sale and would come in the category of stocking of medicines for the purpose of sale. 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. In fact, this is not even the allegation against the Appellant. Undoubtedly, the provisions of Section 18 and 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, no offence is made out in the present case. 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. [Paras 8, 9][922A-F]

1.2 What the High Court failed to consider, however, is the provisions contained in Rule 123 read with Schedule ‘K’ to the 1945 Rules and when admittedly it is not the case of the prosecution that the drugs which were seized were being sold in an open shop across the counter. Since this was not being done, and an exception is created under the law 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, prosecution against the Appellant is unwarranted. 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. [Paras 10, 14][923-D, 924-F] Hasmukhlal D. Vohra and Anr. v. State of Tamil Nadu 2022 SCC OnLine SC 1732; Mansukhlal Vithaldas

Chauhan v. State of Gujarat (1997) 7 SCC 622 : [1997]

3 Suppl. SCR 705; Mohd. Shabir v. State of

Maharashtra (1979) 1 SCC 568 : [1979] 2 SCR 997 – relied on.