Madras HC suspends operation of order banning sale of medicines by e-pharmacies

Madras High Court: Petitioner had approached this Court before a Single Judge Bench of Pushpa Sathyanarayana, J., with a prayer to block the link of all websites involved in online sale of Schedules H, H1 and Schedule X medicines which is in violation of Rules 65 and 97 of the Drugs and Cosmetics Rules, 1945 until they receive requisite license.

Respondent contended that petitioner had already filed a writ petition with the same prayer thus this petition not only is a multiplicity of proceedings but also petitioner is guilty of suppressio veri and suggestio falsi. This petition was filed without a new cause of action. Petitioner defended by stating that there is no res judicata and constructive res judicata, as there was no order of the Court which finalized the issue raised before it. Therefore, there was no res judicata. Sections 12 and 33 of the Act empowered the Central Government to make rules with respect to the import of drugs, cosmetics, and its manufacture, sale, and distribution of drugs and cosmetics. It is to be noted that draft rules though published in the Gazette, are not yet notified. Without these rules, it would become difficult to curb the sale of medicines online.

It may be noted that earlier on 31-10-2018, the Court had granted an interim injunction against the online sale of medicines without license after taking note of the seriousness of the issue and public cause.

High Court viewed that though the online sale has many benefits but it has many flaws too and there is a need to curb the online sale of medicines. Court directed respondents to notify the proposed Drugs and Cosmetics Amendment Rules, 2018 and ordered that unless the aforementioned rules are notified, the online traders should stall their online business in drugs and cosmetics.

However, by a subsequent order the Division Bench comprising of M. Sathyanarayanan and P. Rajamanickam, JJ. have suspended the operation of the earlier stay order in following terms:

“It is brought to the notice of the Court that the learned Judge has suspended Paragraph No. 38 of the impugned order passed in the writ petition till 10.30 a.m. and since the Court has already entertained the writ appeals and on hearing the rival submissions, has reversed orders in the miscellaneous petitions for interim order, till it pronounces orders in the miscellaneous petitions, the order of suspension shall be continued. It is made clear that the continuance of the order, shall not create any equitable rights in favour of the appellants and it is subject to the result of the orders to be passed in the miscellaneous petitions for interim orders.”[Practo Technologies (P) Ltd. v. Tamil Nadu Chemists and Druggists Assn., 2018 SCC OnLine Mad 3577, Order dated 20-12-2018]

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