Madras HC bans Online Sale of Medicines until notification of Regulatory Rules [Read Judgment]

A plea to ban the online sale of medicines has culminated in the Madras High Court directing the Central government to notify rules regulating such sale by January 31, 2019..E-pharmacies and intermediaries have been directed to comply with the notified rules within two months thereafter. Until such time, Justice Pushpa Sathyanarayana has held that the ban on online sale of drugs and medicines will continue. As stated in the judgment,.“… respondents 1 and 3 are directed to notify the proposed Drugs and Cosmetics Amendment Rules, 2018 in the Gazette at the earliest, however, not later than 31.01.2019. Thereafter, the concerned stakeholders, namely, persons doing trade in on-line pharmacy have to obtain their licences in the manner prescribed in the rules to be notified, within a period of two months from the date of such notification….…till the aforesaid rules are notified, the on-line traders are bound not to proceed with their on-line business in drugs and cosmetics.“.The judgment was passed in a plea preferred by the Tamil Nadu Chemists and Drugs Association (TNCDA) for an injunction on the online sale of drugs and medicines, on the ground that the same is carried out in violation of the Drugs and Cosmetics Act, 1940 and its 1945 rules..In its petition, the TNCDA had pointed out that these laws were written prior to the arrival of computers and do not even permit the shipping, mailing or door-to-door delivery of prescribed medicines. Presently, India does not have any concrete laws defined for the online sale of medicines..Nevertheless, the petition highlights that there are over 3,500 sites that sell medicines and drugs online. It was argued that such unregulated sale of medicines from unlicensed online stores and e-pharmacies could involve the sale of fake, expired, contaminated, substandard quality, unapproved drugs or otherwise unsafe products that are dangerous to patients and may put their health at risk..In 2018, the Centre had introduced draft rules to amend the Drugs and Cosmetics laws to allow licensed e-pharmacies. The TNCDA had sent its objections to the same. The 2018 amendment is yet to be notified..In October, Justice R Mahadevan had ordered an interim injunction on the unlicensed sale of online medicines, after TNCDA’s plea was admitted. The matter was posted before Justice Pushpa Sathyanarayana following a roster change..In the meanwhile, the interim injunction was opposed by certain online companies and intermediaries, who were impleaded to the case after they raised their objections..These parties pointed out that the TNCDA had already preferred an identical writ petition before the High Court in 2015. Given that similar prayers in that petition were not allowed at the time, it was argued that the petitioners were barred from raising the same issue before another Bench. In this backdrop, it was also argued that there was no need to stop online sale of medicines, which has been continuing for the past three years..Countering the same, the petitioner contended that the High Court had only disposed of the earlier petition by recording that the rules were due to be framed by the government and that no adjudication had taken place. It was also argued that since the issue has been raised in public interest, res judicata may not arise..In its judgment, the Court has found merit in the petitioner’s arguments, stating,.“In the given case, all the private respondents were not parties to the previous case. The said writ petition was also not decided on merits. Therefore, the issue of law was not decided and also not between the same parties. Hence, there is no res judicata.”.Arguments in favour of the ban on online sale of medicines were made by Senior Counsel ARL Sundaresan and G Masilamani. Senior Advocates PS Raman, PR Raman, Satish Parasaran and MS Krishnan, among others, appeared on behalf of the intermediaries and e-pharmacies..Today’s ban on online sales comes a week after the Delhi High Court passed a similar order on a plea by dermatologist, Dr Zaheer Ahmed. The Delhi High Court passed the order after being appraised that such online sale was being conducted in total violation of the statutory provisions of the Drugs and Cosmetics Act. After taking note of the Madras High Court’s interim order on the matter, the Delhi High Court had opined that there was no reason for similar directions not to be issued in the petition before it..Read the Judgment: