Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(@ SPECIAL LEAVE PETITION (C) NO. 8799 OF 2020)
Mukesh Kumar .Appellant(S)
Versus
The State of Bihar & Ors. ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 09.12.2019 passed by the High
Court of Judicature at Patna in Civil Writ Jurisdiction
Case No. 8384/2018, by which, the Division Bench of the
High Court has disposed of the said writ petition by way of
public interest litigation, the original writ petitioner has
Signature Not Verified
preferred the present appeal.
Digitally signed by
Neetu Sachdeva
Date: 2022.11.29
17:18:13 IST
Reason:
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3. That the appellant herein filed the writ petition by way of
public interest litigation before the High Court for the
following reliefs: -
“(i) For issuance of necessary direction upon the
respondent authorities to not to allow any person
other than a registered Pharmacist to compound,
prepare, mix or dispense any medicine on the
prescription of any medical practitioner because in
various Govt. Hospitals, the persons, who are not a
registered Pharmacist have been allowed to discharge
the function of a Pharmacist inasmuch as at some
places, even the Clerks, ANMs, Staff Nurse etc. have
been assigned with the duty to be performed only by a
registered Pharmacist.
(ii) For holding that by allowing a non-
pharmacist to discharge the duty and responsibility of
Pharmacist, the respondent authorities are not only
violating the provisions of the Pharmacy Act, 1948 as
well as Pharmacy Practices Regulation, 2015 but they
are also playing with the health of the concerned
patients.
(iii) For issuance of necessary direction upon the
respondent authorities to implement the Pharmacy
Practice Regulation, 2015 framed by the Pharmacy
Council of India in exercise of powers conferred under
Section-10 & 18 of the Pharmacy Act, 1948, inasmuch
as the said Regulation provides for creation of various
types of posts with diverse types of responsibilities for
regulating the profession of Pharmacy so that the
quality of health care may improve, the Pharmacist
may maintain high standard in their duty, the cost of
health care may reduce and the criminal abuse of
medicines may be stopped.
(iv) For holding that the Govt. of Bihar has not
created an post except for the post of Pharmacist
under the Pharmacy Practice Regulation, 2015 and as
such, the respondents may be directed to create such
posts and appoint eligible persons on such posts so
that the objectives of the Pharmacy Practice
Regulation, 2015 may be achieved.
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(v) For necessary direction upon the respondent
authorities to constitute an Enquiry Committee in
terms of Section-45(5) of the Pharmacy Act, 1948 to
enquire into the functioning of the Bihar State
Pharmacy Council because the Bihar State Pharmacy
Council is not functioning in accordance with the
provisions of the Pharmacy Act, 1948 and Pharmacy
Practice Regulation, 2015 inasmuch as the Bihar State
Pharmacy Council is involved in grant of fake and
illegal registration to the fake Pharmacists.
(vi) For any other direction, which your
Lordships may deem fit and proper in the facts and
circumstances of the case.”
Without going into details of the grievances voiced
before the High Court, the High Court has disposed of the
writ petition in a most casual manner by taking note of the
fact that the Bihar State Pharmacy Council has submitted
that the fact-finding committee was constituted and they
forwarded its report to the State Government. The High
Court has disposed of the said public interest litigation –
writ petition by observing that the appellant, after verifying
each case individually may invite the attention to such
illegality either to the Bihar State Pharmacy Council or the
State of Bihar.
4. Serious allegations were made against the Bihar State
Pharmacy Council and the State of Bihar for not taking
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any action with respect to fake pharmacist and/or running
the Government’s hospitals and/or other hospitals without
registered pharmacist and the in-action on the part of the
Bihar State Pharmacy Council/State Government has
resulted into the affected health of the citizen, the High
Court ought to have called upon the Bihar State Pharmacy
Council to file the status report on the allegations of fake
pharmacist and/or on how many Governments’
hospitals/hospitals in the State are running without
registered pharmacist. Running the hospitals/dispensaries
in absence of any registered pharmacist and/or running
such hospitals by fake pharmacist and even running the
medical stores by fake pharmacist and without even any
pharmacist will ultimately affect the health of the citizen.
The State Government and the Bihar State Pharmacy
Council cannot be permitted to play with the health and
life of the citizen.
4.1 Under the provisions of the Pharmacy Act, 1948 as well as
the Pharmacy Practice Regulations, 2015, it is the duty
cast upon the Pharmacy Council and the State
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Government to see that the hospitals/medical stores, etc.,
are not run by the fake pharmacist and are run by the
registered pharmacist only. The manner in which the High
Court has disposed of the public interest litigation – writ
petition ventilating the very serious grievances touching
the health and life of the citizen is disapproved. The High
Court has failed to exercise the powers vested in it under
Article 226 of the Constitution of India. The impugned
judgment and order passed by the High Court disposing of
the writ petition is unsustainable.
5. In view of the above and for the reasons stated above the
present appeal is allowed. The impugned judgment and
order passed by the High Court disposing of the writ
petition is hereby quashed and set aside. The matter is
remanded to the High Court to consider the writ petition
afresh after calling the detailed report/counter from the
State of Bihar and Bihar State Pharmacy Council on: -
(i) how many Governments’ hospitals/hospitals/medical
stores/private hospitals are being run either by fake
pharmacist or without registered pharmacist;
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(ii) whether any action is taken by the State Government
on the fact-finding committee report submitted by the
Bihar State Pharmacy Council which was reported to
be forwarded to the State Government;
(iii) whether there are any fake pharmacists as alleged in
the writ petition;
(iv) any action is taken by the State Government or by
the Bihar State Pharmacy Council against such fake
pharmacist;
(v)
whether the Pharmacy Practice Regulations, 2015 are
being followed in the entire State of Bihar or not.
While considering the writ petition the High Court
should bear in mind the public interest and the health of
the citizen. The High Court to take up the writ petition for
hearing on remand within a period of four weeks from
today. The Registry is directed to send the copy of this order
to the High Court forthwith. With this, the present appeal is
allowed accordingly. In the facts and circumstances of the
case there shall be no order as to costs.
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…………………………………J.
(M. R. SHAH)
…………………………………J.
(M.M. SUNDRESH)
NEW DELHI,
NOVEMBER 29, 2022.
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