Appellate Authority Must Not Keep Cases Pending Indefinitely, Can't Cause Situation Of 'Operation Successful, Patient Dead': Bombay High Court

A division bench of Justice GS Kulkarni and Justice Firdosh P Pooniwalla observed that the inaction in deciding the appeals and stay applications would violate the right to carry out trade of the appellants facing suspension of their licence.

“there cannot be a scope for a theory of “operation being successful however the patient dead'. The petitioners would certainly have a legal right to know, the status of their challenge insofar as the interim reliefs or the final reliefs they seek in their appeals, before they are made to suffer the suspension order. We would also observe that in the circumstances as in the present proceedings, the non-passing of an appropriate order (interim or final), would also have a direct bearing on the rights of the petitioner to carry on trade, occupation/business”, the court observed.

The court observed that the appellate authority, responsible for adjudicating statutory appeals, must be alive to the consequences that the order under appeal could have on the appellant. The court emphasized that remedy provided in law must be effective and observed that the inaction of the appellate authority could impact the rights guaranteed under Article 19(1)(g) of the Constitution, read with Articles 14, 21, and 300A.

The court was dealing with three writ petitions filed by medical stores whose licences were suspended by the Food and Drug Administration.

The petitioners operate medical stores with licenses obtained under the Drugs and Cosmetics Act, 1940, and the Drugs and Cosmetics Rules, 1945. The Assistant Commission of FDA conducted inspections of their medical stores, leading to orders suspending their licenses for specific periods. For instance, one of the petitioners Apna Chemist's license was suspended from January 8, 2024, to January 17, 2024, according to an order dated October 3, 2023. Apna Chemist filed the appeal on October 31, 2023.

The petitioners appealed under Rule 66(2) of the Drugs and Cosmetics Rules, 1945, before the State Government.

The petitioners approached the High Court, stating that the Appellate Authority was neither listing the appeals for adjudication nor passing interim orders on stay applications. This, according to the petitioners, created a situation where the statutory remedy of appeal was rendered meaningless, as they would be forced to endure the suspension orders even if successful in their appeals.

AGP AI Patel submitted that the hearing Apna Chemists appeal was scheduled for January 11, 2024. However, the court noted that this date fell within the suspension period, potentially causing the petitioner to suffer the suspension if the order was not stayed.

The court noted that the petitioners had availed themselves of the statutory remedy of appeal and filed their appeals in a timely manner to ensure that they would be decided before the suspension period begins.

The court agreed with the petitioners' concern that the remedy of an appeal would be rendered meaningless if the appeal is decided after the suspension period is over.

Thus, the court ordered the appellate authority to decide pending appeals and stay applications within eight weeks from the date the order is presented.

If the appeals are fixed for an immediate hearing, they should be taken up and decided according to the scheduled hearing, the court said. Until the appeals/stay applications are decided, the orders suspending the petitioners' licenses shall remain stayed, the court held.

If the petitioners fail in their appeals, the appellate authority has the power to modify the suspension period and impose a future period of suspension.

The court clarified that all contentions of the parties on the pending appeals are kept open.

Appearances –

Advocates Atal Bihari Dubey, Arvind Tiwari and Rahul Mishra for the petitioners M/s. Apna Chemist and M/s. Apna Medical LLP.

Advocates Rushikesh S Kekane for the petitioner Shree Mahavir Chemist.

Additional Government Pleader AI Patel and Assistant Government Pleader MS Bane for the State.

Case no. – Writ Petition Nos. 305, 320, 328 of 2024

Case Title – M/s. Apna Chemist v. Assistant Commissioner (Zone-3) & Anr. with connected cases