Gautam, R. Jeswani vs Registrar Gujrat State Pharmacy Council

Akil Kureshi, J.—These appeals arise out of a common judgment and order dated 29th July, 2008 passed by the learned Single Judge in Special Civil Application No. 22100 of 2007 and connected petitions.

All the Appellants claim to be repatriates within the meaning of Section 32B of the Pharmacy Act 1948. They seek benefit of registration of pharmacy in their favour in terms of the said provisions. The learned Single Judge, however, by the impugned judgment, held that the Appellants are not ''displaced persons'' within scope of explanation to Clause (c) of Section 32B(1) of the Pharmacy Act since they had not migrated between 14th April, 1957 and 25th March, 1971. On this ground, the learned Judge was of the opinion that the Appellants cannot get the benefit of Section 32B of the Pharmacy Act.

We have heard learned Counsel Shri Omprakash Bajaj for the Appellants, learned Counsel Mr. Rituraj Meena for the Union of India and Mr. Nanavati for the Pharmacy Council and the learned AGP Ms. Shah for the State Authorities.

Having heard the learned Counsel for the parties and having perused the provisions contained in the Pharmacy Act, we find that the Appellants having migrated from the Sindh Region of Pakistan some time between 1982 to 2000 may be covered under the term "repatriates" as contained in explanation to Section 32B of the Pharmacy Act. However, the question of the Appellants being "displaced persons", in our view did not arise. In fact, the claim of the Appellants was also that they are repatriates. The question, however, is whether the Appellants can claim benefit under Clause (c) of Section 32B(1) of the Pharmacy Act. Section 32B of the Pharmacy Act reads as under:

32B. Special provisions for registration of displaced persons, repatriates, and other persons,: (1) Not with standing anything contained in Section 32 or Section 32A, a State Council may permit to be entered on the register.

(a) the names of persons who possess the qualifications specified in Clause (a) or Clause (c) of Section 31 and who were eligible for registration between the closing of the First Register and the date when the Education Regulations came into effect.

(b) the names of persons approved as "qualified persons" before the 31st December, 1969 for compounding or dispensing of medicines under the Drugs and Cosmetics Act, 1940 (23 of 1940) and the rules made thereunder;

(c) the names of displaced persons or repatriates who were carrying on business or profession of pharmacy as their principal means of livelihood in any country outside India for a total period of not less than five years from a date prior to the date of application for registration.

Explanation In this Sub-section -

i. displaced person" means any person who, on account of civil disturbances or the fear of such disturbances in any area now forming part of Bangla Desh, has, after the 14th day or April, 1957 but before the 25th day of March, 1971, left, or has been displaced from, his place of residence in such area and who has since then been residing in India;

ii. repatriate" means any person of India origin who, on account of civil disturbances or the fear of such disturbances in any area now forming part of Burma, Sri Lanka or Uganda, or any other country has after the 14th day of April, 1957, left or has been displaced from, his place of residence in such area and who has since then been residing in India.

There appears to be no dispute that the Petitioners are persons of Indian origin and that they migrated from Pakistan after 14th April 1957. They would therefore be "repatriates" as defined in Explanation (ii) to Section 32B.

The claims of the Appellants would, however, have to be examined on facts of the case. We find that the Appellants had been issued show cause notices by the authorities. They had also filed replies. However, before final decision could be taken, they approached this Court. In none of the petitions, these Appellants had challenged any order passed by the Respondents. However, we notice that the Respondents had issued communications dated 7th July, 2005 stating, inter alia, that if the Appellants failed to present before the Authority on the appointed date, it will be presumed that they have no desire to represent before the said Authority and final decision will be taken and the names of the Respondents from the Register shall be deleted.

The case of the authorities, however, is that the Petitioners-Appellants were not carrying on the business or profession of Pharmacy nor the same was the principal means of their livelihood. They also contend that the Appellants did not possess necessary qualification of Pharmacy so as to be registered with the Pharmacy Council.

From the documents produced on record, we find that none of the Petitioners fulfill the requirements of Section 32B(1)(c). Appellant of LPA No. 332 of 2010, for example, has produced a certificate dated 20th July, 1988 issued by one Mohd Anwar claiming to be the proprietor of a Medical Store. Said certificate records that the Appellant was serving under the said person as a Compounder and was also running a medical store from 14.6.77 to 18.7.88 after which period, he handed over the shop to him. With respect to Appellant of LPA No. 333 of 2010, we may notice that he had produced documents to show that he was a salesman and had never worked or was engaged in the profession as Pharmacist. In LPA No. 334 of 2010, the Appellant had similarly produced documents to show that he had worked as dispenser.

In our view, none of the Appellants would qualify for the benefits contained u/s 32B(1)(c) of the Pharmacy Act since they can not be stated to have carried on business or profession of pharmacy as their principal means of livelihood prior to their repatriation in India. It is clear that the Appellants if at all were engaged as dispenser/compounder and therefore would be covered u/s 32B(1)(b) and not under Clause (c) of Section 32B(1). It is however, not the case of the Appellants that they were approved as "qualified persons" before 31st December, 1969. No such case has been put forth nor any arguments in this regard advanced. Benefit u/s 32B(1)(b) is thus not under consideration.

Under the circumstances, we find that none of the Appellants satisfy the requirements of Clause (c) of Section 32B(1) of the Pharmacy Act and the Respondents therefore rightly took steps to delete their names from the register of Pharmacy Council. The learned single Judge though dismissed the petitions on grounds different from which we have adopted, we find no reason to interfere with the same since ultimate conclusion is the same.

In the result, the appeals are dismissed.