Drug Licence Case — SLP No. 16581/2010
Tuesday, 01 June 2010 15:44
Drug Licence Case
SUPREME COURT OF INDIA
http://courtnic.nic.in/supremecourt/caseno.asp
Special Leave Petition (Civil) 16581 OF 2010
QUALIFIED P. MED. PRACTITIONERS ASSN. Vs. STATE OF KERALA & ORS.
Pet. Adv.: MR. PURVISH JITENDRA MALKAN
Subject Category: ORDINARY CIVIL MATTER — OTHERS
Dear Members,
The Hon’ble Supreme Court has admitted our Special Leave Petition (SLP) in Drug License case today — 31 May 2010 and the above cited text is from the Supreme Court website (Kindly open in IE6 or above) — http://courtnic.nic.in/supremecourt/caseno.asp
Visit the URL cited and enter the SLP (Civil) No. 16581 of 2010 to learn more and to keep in touch with the day to day developments in this Drug Licence issue.
The above SLP was moved challenging the Hon'ble High Court of Kerala verdict in WP (C) No. 38494 of 2003 (Y) dated 25 March 2010.
We have won the first step and admitting an SLP is as good as getting a stay. The case is posted for hearing the views of the opposite parties on Thursday.
Let us hope the Drugs Department of Kerala will withdraw the ORAL ORDERS given to the Drug stores and help restore normalcy in medicine supply in Kerala.
The harassment from the Drugs Department started in 1974 and this time we must get a final verdict and settle the issue.
To see the open letter to our Chief Minister and other Officials of Kerala kindly visit our website www.qpmpa.org. The most unfortunate thing is that the mail to our Chief Minister bounced and there was no response from anyone concerned.
The print media was also not in our favour and the only write-up came in the Indian Express dated 14 May 2010 — http://expressbuzz.com/states/kerala/private-hospitals-facing-acute-shortage-of-drugs/173293.html
We have a long way to go.
Thanking you and with regards,
Yours sincerely,
Kishore
Updates: Drug Licence Case in Apex Court
Thursday, 3.6.2010:- Case not listed as expected. We have to wait till Monday, 7.6.10. — Kishore
Monday, 7.6.2010:- Listed on 7.6.2010. The IMA Advocate objected and so postponed to 8.6.2010.
Tuesday, 8.6.2010:- Orders issued given below —
ITEM NO.14 COURT NO.3 SECTION XIA
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15171/2010
From the judgement and order dated 25/03/2010 in WP No. 3016/2004 of
The HIGH COURT OF KERALA AT ERNAKULAM)
INDIAN MEDICAL ASSOCIATION & ANR Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(With prayer for interim relief and office report)
WITH SLP(C) No. 16581 of 2010
(With prayer for interim relief and office report)
Date: 08/06/2010 This Petition was called on for hearing today.
CORAM : HON’BLE MR. JUSTICE DEEPAK VERMA
HON’BLE MR. JUSTICE K. S. RADHAKRISHNAN
(VACATION BENCH)
For Petitioner(s) Mr. V. Giri, Sr. Adv., Mr. Ajay K.Jain, Adv., & Mr. M.P. Vinod, Adv.
Mr. Purvish Jitendra Malkan & Mr. Thomas Josheph,Adv.
For Respondent(s) Mr. M. L. Verma, Sr. Adv., Mr. Bharat Swaroop Sharma, Adv. &
Mr. R. Sathish, Adv.
UPON hearing counsel the Court made the following
O R D E R
List after fifteen days to enable the petitioner to file additional documents. In the meanwhile, if respondent — State so desires, may file counter affidavit.
[SUMAN WADHWA] [SAVITA SAINANI]
COURT MASTER COURT MASTER
Monday, 28.6.2010:- Orders issued given below —
ITEM NO. 15 COURT NO. 4 SECTION XIA
SUPREME COURT OF INDIA
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s). 15171/2010
(From the judgement and order dated 25/03/2010 in WP No. 3016/2004 of
The HIGH COURT OF KERALA AT ERNAKULAM)
INDIAN MEDICAL ASSOCIATION & ANR Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(With prayer for interim relief and office report )
WITH SLP(C) NO. 16581 of 2010
(With prayer for interim relief and office report)
CORAM: HON’BLE MR. JUSTICE R. M. LODHA
HON’BLE MR. JUSTICE A. K. PATNAIK
[VACATION BENCH]
For Petitioner(s): Mr. M. P. Vinod, Adv.
Mr. Purvish Jitendra Malkan, Adv.
UPON hearing counsel the Court made the following
O R D E R
Learned counsel appearing for the petitioners prays for time on
the ground that the matter is likely to be settled
amicably between the parties.List these matters after four weeks.
Court Master Court Master
Monday, 2.8.2010:- Orders issued given below --
ITEM NO. 8 Court No. 9 SECTION XIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15171/2010
(From the judgement and order dated 25/03/2010 in WP No. 3016/2004
of The HIGH COURT OF KERALA AT ERNAKULAM)
(With prayer for interim relief and office report )
(With prayer for interim relief and office report)
Date: 02/08/2010 This Petition was called on for hearing today.
For Petitioner(s) Mr. M. N. Krishnamani, Sr. Adv.
Mr. Thomas Joseph, Adv.
Mr. Rumi Chandra, Adv.
Mr. M. P. Vinod, Adv.
Mr. Ajay K. Jain, Adv.
Mr. Mohammed Sadhique T. A., Adv.
Mr. Purvish Jitendra Malkan, Adv,
UPON hearing counsel the Court made the following
O R D E R
Court Master Court Master
Monday, 16.8.2010:- Orders issued given below --
ITEM NO. 14 + 57 Court No. 9 SECTION XIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Civil) No(s).15171/2010
of The HIGH COURT OF KERALA AT ERNAKULAM)
INDIAN MEDICAL ASSOCIATION & ANR Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
WITH SLP(C) No. 16581 of 2010
With prayer for interim relief and office report)
WITH SLP(C)....CC 12508/2010
(With appln(s) for permission to file SLP and Office Report)
Date: 16/08/2010 This Petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE B. SUDERSHAN REDDY
HON'BLE MR. JUSTICE SURINDER SINGH NIJJAR
Mr. Ajay K. Jain, Adv.
Mr. Mohammed Sadhique, Adv.
In SLP(C) 16581/2010
Mr. Purvish Jitendra Malkan, Adv.
Mr. Thomas Joseph, Adv.
Mr. Zulfiker Ali, Adv.
Mr. Alex Joseph, Adv.
Mr. Gogy Scaria, Adv.
For Respondent(s)
Mr. S. Gopakumaran Nair, Sr. Adv.
Mr. K.N. Madhusoodanan, Adv.
Mr. T.G.N. Nair, Adv.
Mr. Yasobant Das, Sr. Adv.
Mr. R. Sathish,Adv.
Mrs. S. Geetha,Adv.
SLP(C) 16581/2010
Mr. S.B. Shanyal, Sr. Adv.
Mr. M.K. Michael, Adv.
Mr. C.N. Sree Kumar, Adv.
Mr. T.G. Narayanan Nair, Adv.
O R D E R
(The case filed by IMA Kerala)
Learned Counsel appearing for the petitioners states that in view of the subsequent developments, no further orders are required to be passed. The Special Leave Petition shall stand dismissed accordingly.
(The case filed by QPMPA)
SLP(C) ...CC 12508/2010
Learned Counsel for the petitioners seeks leave of this Court to withdraw these Special Leave Petitions. Leave granted with liberty to the petitioners to approach the High Court and seek appropriate modification of the orders.
(DEEPAK MANSUKHANI) (RENUKA SADANA)
Court Master Court Master
Media News:
Though the print media was silent of the Apex Court
proceedings on this issue, the following news appeared in the net at many places —
By IANS June 8th, 2010
NEW DELHI - The Supreme Court Tuesday issued notice to Kerala on a petition challenging a law that requires private clinics that dispense medicines to patients to obtain licences.
The court was hearing a petition filed by Indian Medical Association against the Kerala government’s decision to amend the provisions of the Drugs and Cosmetics Act 1940.
The Vacation bench of the Supreme Court headed by Justice Deepak Verma and Justice K. S. Radhakrishnan issued the notice after senior counsel V. Giri told the court that the enforcement of the amended provision of the act, were jeopardizing the functioning of these clinics.
He said that most of these clinics were located in rural or semi-urban areas and were economical for the patients as they give medicine only for the period for which it has been prescribed.
The senior counsel said that normally at chemist shops a patient is forced to buy more medicine than he actually requires because one has to buy a strip of tablets even though he may not be requiring a large quantity of pills.
Giri said that by their training the doctors of these clinics know pharmacology and need no licence to sell any medicine.
Justice Verma pointed out that the petitioner IMA was talking about the “small clinics in rural or semi-urban areas but in fact most of the petitioners were big hospitals”.
He said that generally in such small clinics one of the doctors is a qualified person and others are quacks.
When Giri tried to say that such things don’t happen in Kerala, Justice Verma said: “Kerala is also a part of India.”
Appearing for the Qualified Professional Medical Practitioners Association, Counsel Purvish Malkan said that the private medical practitioners are exempted under the Drugs and Cosmetics Act from obtaining licence for treating their patients.
He told the court that private doctors could not be equated with big hospitals in order to cover them under the provisions of the act.
http://blog.taragana.com/law/2010/06/08/apex-court-questions-kerala-on-licensing-of-clinic-22859/
Also see:
http://www.legalindia.in/apex-court-questions-kerala-on-licensing-of-clinic
http://www.indiavision.com/news/article/national/64329/
http://www.india-forums.com/news/article.asp?id=254064
http://www.prokerala.com/news/articles/a142048.html
In Gods Own Country — Kerala
At the Extraordinary General Body Meeting held on 27 March 2010 at the IMA Hall, Kozhikode to approve the Memorandum, Rules and Byelaws of QPMPA India, the Drug Licence case was also discussed and the house decided to fight it out at the Apex Court by filing an SLP.
The Secretary Dr. Kishore was directed to approach the members for financial assitance and his letter dated 29 April 2010 is shown below:-
To, All QPMPA Members & Well-wishers —
Sub: SLP in Apex Court — Drug Licence Case — reg.
Dear Members & Doctors,
We inform you that the QPMPA lost the Drug Licence Case filed in the Hon’ble High Court of Kerala — WP(C) No. 38494 of 2003 (Y). We have been fighting this issue from 1990 onwards.
Heard that the Drug Wholesalers are refusing to sell medicines to Hospitals and Clinics without a Drug Licence. However, you can overcome this hurdle by demanding medicines in the name of the “Registered Medical Practitioner” running the establishment. We still enjoy the exemption granted under Item 5 of Schedule K. (It is true that we lost the demand to include us under Item 5A.)
As the Drugs Department of Kerala is very adamant to bring our establishments under their License Raj, it is our moral duty to approach the Supreme Court of India once again for a final constitutional settlement in this matter. If we back out, the Drugs Department will impose this license raj on all hospitals all over India and a constitutional right that we enjoyed for the last 70 years will be lost forever.
We have entrusted the SLP (Special Leave Petition) filing to senior advocates in Delhi and that will be done in two weeks. Liquid cash is a major problem and our two appeals in the last two months have not evoked much favourable response from the Members.
The annual Drug Licence fee is Rs. 3,000. The various cases against Drug Licence by the QPMPA during the last 20 years have helped all hospital owners financially and mentally.
follow the scale given below:-
One-man show Clinics and Hospitals having up to 20 beds: Rs. 5,000
Hospitals having 20 to 100 beds: Rs. 10,000
Hospitals having more than 100 beds: Rs. 20,000
Yours sincerely,
Dr. K. Kishore Kumar, State Secretary
Mob: 9447485532
The demands for financial assistance was also a blessing in disguise for the IMA Kerala, demoralised in two important issues affecting the medical profession recently, by the timely actions of the QPMPA.
TCMC Re-registration issue in January 2010:-
For more visit -
http://www.qpmpa.org/news-and-events/9-drug-licence-case/35-ima-vs-qpmpa--part-1--the-kickoff.html
The very purpose of this Private Hospital Board of IMA is now questionable!
At every place the Chairman of this Board says that the QPMPA must look after the interest
of the Private Hospitals and that the IMA is answerable only to its members and their rights!
The first letter dated 5.5.2010 from the PHB of IMA is copied.
Some relevant points from the letter No. DL.16001/90/DC
dated 6 December 1990 from the Drugs Control Department--
Para 8 -- "The provisions of the Drugs and Cosmetics Act does not in any way interfere with the medical profession. No restriction is imposed for any of the acts of the medical practitioners in the course of his practce of his profession...."
Para 10 -- "... This department is not concerned with the enforcement of Section 42 of the Pharmacy Act, 1948. This administration has never directed any Registered Practitioner to appoint a pharmacist.... There is no intention of harassing the Medical practitioners. All that is contemplated in the enforcement of the provisions of the Drugs and Cosmetics Act as they apply to hospital. No registered medical Practitioner supplying drugs to his own patients is required to take out Drugs Licence. Licence is required in public interest and not to control the professional rights of medical Practitioners."
The IMA leaders who wrote the letter dated 14.5.10 were not aware of the findings of the Drugs Controller of 1990 who misinterpreted only Item 5A in Schedule K to impose Drug Licence on hospitals.
If the Drugs Controller misinterpreted Item 5 A of Schedule K in 1990, i.e., after 50 years of the enactment, the IMA Kerala totally disfigured and distorted Item 5 in Schedule K in 2010, after 70 years.
The IMA Kerala defiled again:-
To the great surprise of IMA in Kerala and its advocates in Delhi the SLPs filed by IMA (No. 15171/2010) and that filed by the QPMPA (No.16581/2010) were taken up for hearing on 7.06.2010 -- two months earlier than propagated by the IMA through its letter dated 14.5.2010 in the Vacation Court.
that followed is copied in this page.
First let us find out the motives of the IMA Kerala in Drug Licence case —
IMA filed SLP (C) No. 15171/2010 without taxing the members!
Then who is sponsoring this petition in the Supreme Court?
For more details visit -
The Emails circulated by Dr. Asokan & Dr. Kishore
Asokan to Kishore (A>K) – Letter Dtd. 8 June 2010:
Dear Dr Kishore,
Only 56 out of 88 listed cases were taken up before the vacation judge in Supreme Court on 07/06/10. The rest have been posted for 08/06/10. SLPs filed by IMA and QPMPA were not taken up on 07/06/10. Kindly handle information with diligence.
With warm regards,
Dr R V Asokan, Deen Hospital, Punalur 691 305
Tel : +91-475-2223470, +91-98470-61563, Fax: +91-475-2228669
For more visit - http://www.qpmpa.org/news-and-events/9-drug-licence-case/38-ima-vs-qpmpa-part-4-emails.html
The precious Minutes that saved IMA Doctors.
If taken seriously, the QPMPA members in IMA are outlaws!
For details -
The role of Chemists & Pharamacists
The letters and affidavits published and circulated by the drug sellers must be eye openers for the medical profession. We must kick out all pharmacists and boycot all the stores that refused to act within their powers.
For more details visit -- http://www.qpmpa.org/news-and-events/9-drug-licence-case/40-hospital-drug-licence-a-pharmacists.html
Letter dated 4.8.10 from Drugs Controller
For the full details visit — http://www.qpmpa.org/news-and-events/9-drug-licence-case/41-letter-from-drugs-controller.html
So far divine providence was on the side of the condemned commercial private hospitals and we must be thankful to all our Gods.
However, WE, the QPMPA, are not happy with the parochial and
mean attitude of the private hospital OWNERS.
Hardly a hundred out of 2,000 has cooperated. They have funds to bribe officials and nothing for the association protecting them! This association has helped
them save thousands of rupees as licence fees and bribes
in this issue alone during the last 36 years!
The main reason being the lack of understanding of the rights available for citizens in a democracy. Majority of them are ready to lie down and swallow everything to be in the good books of the powers-that-be!
If the Kerala IMA had acted with maturity, they should have taken the QPMPA into confidence and we too would have joined them and made a fortune!
Now it is too late and we are sorry. The fight will continue -- do or die.
Some of us still maintain and respect the freedom we enjoy in India.
We do respect the law of the land and are still fond of boiled RICE denied to many for various reasons.
We in the QPMPA do not believe that the PHB Chairman is the one responsible. The criminal king makers in IMA are with the reins.
Jai Hind.