Chennai: The Madras high court has reserved orders on the miscellaneous petitions, which sought to stay the operation of a single judge order, in so far as it relates to banning the sale of medicine through online till the Union government and Central drugs control organisation notifies the proposed Drugs and Cosmetics Amendment Rules.
Passing orders on a petition from the Tamil Nadu Chemists and Druggists Association, a single judge had on December 17, directed the Union government and Central drugs control organisation to notify the proposed Drugs and Cosmetics Amendment Rules 2018 relating to online sale of medicines, in the gazette by January 31, 2019. Thereafter the persons doing trade in on-line pharmacy have to obtain the licenses within 2 months from the date of notification, the judge had added and imposed a ban on sale of medicine through online till the Amendment Rules are notified.
On a request made by the persons doing trade in online pharmacy, the judge had suspended the operation of her order, to enable them to file an appeal.
Reserving orders on the miscellaneous petitions, a division bench comprising Justices M. Sathyanarayanan and P. Rajamanickam said the suspension order in so far as it relates to ban on sale of medicine through online will continue till it pronounces its interim order on the miscellaneous petitions.
When the batch of appeals from Netmeds Marketplace Ltd and others came up for hearing on Thursday, Senior Counsels P.S. Raman, Satish Parasaran, Krishnan and P.R.Raman, appearing for the appellants submitted that the same association filed a petition earlier with the same prayer to ban the sale of medicine through on-line. The First Bench headed by the then Chief Justice Sanjay Kishan Kaul had on December 20, 2016 disposed of the petition and declined to interfere with the sale of medicine through on-line. There was no change of circumstances thereafter, except the draft rules. However, the association again filed a writ petition with a same prayer now. The single judge ought not to have entertained the petition. Res Judicata (a matter that has been adjudicated by a competent court and therefore may not be pursued further by the same parties) applies in this case, they added.
In its appeal filed through advocate Ramesh Kumar, the Netmeds Marketplace Ltd submitted that the order of the single judge having held that the central government should notify the draft rules on or before January 31 erred in law in holding that till that time online pharmacies should close their operations all together. The judge failed to see that the online business model of the appellant involves licenses under the Drugs and Cosmetics Act and periodic forms and inspections by the Drug inspectors and statutory authorities were being carried out. The Central government itself, as the rule making party, categorically held that the door to door vending of the drugs by shipping, mail, hand delivery etc., was not prohibited under the Act. The single judge failed to see that all over India this business model was being carried out and the fact that the central government was planning in notifying the rules for regulating online pharmacies was reason enough to allow the industry to continue operation for another one month rather than shut down for one month, the appellant added.
