In this Constitutional petition the petitioner seeks a direction to the respondents to issue Drugs Sale Licences to the qualified Dispensers and thereby facilitate their lawful vocation in accordance with Article 18 of the Constitution. A declaration has also been sought to the effect that the overlapping provisions in the Pharmacy Act are of no legal consequence in the grant of Drugs Sale Licences to the Dispensers in accordance with the Drugs Act, 1976 as regulated by the Punjab Drugs Act, 1988.
2. The facts forming the background of this writ petition are that the petitioner who claim to be the qualified Dispenser wants to obtain licence for selling drugs under the law regulating the sale etc. Of drugs. Under the Drugs Act, 1940, rules were framed in which conditions were prescribed for the grant of licence for the sale of drugs. Under rule 65(15) of Drugs Rules, 1945 the following persons were qualified to obtain licence for the sale of drugs:-- (a)to hold a decree or diploma in Pharmacy or PharmaceuticalChemistry, of an institution approved by the licensing authority; or (b)who is a Member of the Pharmaceutical Society of Great Britain; or has had not less than four years' practical experience of dispensing which in the opinion of the licensing authority is adequate and has been approved by that authority as a qualified person.
These Rules of 1945 were replaced by the Drugs Rules, 1958. Under Rule 21 of these rules among others a person having not less than four years' practical experience in dispensing who had been approved by the licensing authority as a qualified person was entitled to obtain licence for the sale of drugs. It is the case of the petitioner's association that under the said rule a qualified dispenser with four years' practical experience had always been treated to be a qualified person as contemplated by this rule and had been granted licence for the sale of the drugs. Drugs Act, 1940 under which the said rules were framed was replaced by Act XXXI of 1976 known as Drugs Act, 1976 which came into force with effect from 18-5-1976. Section 6 of this Act, provides that the Provincial Governments shall regulate sale of drop in the prescribed manner and may for that purpose make such orders and issue such directions to the importers, manufacturers, stockiest, retailers or other dealers of drugs, as they may deem fit. Under this Act, the Punjab Drugs Rules, 1988 have been framed in exercise of powers conferred by Section 44 of the Act. Under rule-s 20 and 21 of these rules a person who is not registered under section 24(l)(a)(b) of the Pharmacy Act (XI of 1967) has been debarred from obtaining licence for the sale of drugs meaning thereby that a person who is not registered as pharmacist under the said provision of the Pharmacy Act, 1967 is debarred from entering upon a trade or business of sale of the drugs.
3. The qualified dispensers who had been issued licence for the sale of drugs under Rules 1945 and 1958 having been now required to become pharmacists under the Pharmacy Act, 1967 and get themselves registered under the, said Act, before obtaining licence under the Drugs Act, for the sale of drugs have been rendered jobless. A declaration has been sought -that these provisions in the Punjab Drugs Rules, 1988 be declared to be violative of fundamental right guaranteed by Article 18 of the Constitution and as such void. It has also been prayed that in order to obtain licence for the sale of drugs simpliciter by a person he should be relieved from the requirement of passing examination in the first instance under the Pharmacy Act, to become pharmacist and getting himself registered under the said Act, before entering upon the business and trade of sale of the drugs.
4. Under the Pharmacy. Act, 1940 a certificate used to be issued to a person being dispenser after he had qualified dispensers course and completion of training of one year in a Government Hospital. After qualifying examination held by the Punjab Medical Faculty a person was enrolled as dispenser and issued certificate accordingly from which it is manifest that a qualified dispenser had sufficient basic knowledge to deal with the sale of the drugs and had been so treated under the law to undertake the business of the sales of drugs.
5. The question which arises for consideration is whether Rules 20 of the Punjab Drugs Rules, 1988, which requires a person before entering upon business of the sale of drugs, to become a pharmacist and get himself registered is violative of fundamental right of trade and business guaranteed under Article 18 of the Constitution and the same constitutes an unreasonable restriction on the right of a person to enter upon lawful trade or business of the sale of drugs. The business of sale of drugs simpliciter does not in any manner involve the process of its manufacturing or its administration to a patient. A person who is to carry out business of sales of the drugs has to supply the drugs to the customers on the prescription by a Medical Practitioner.
Under Pharmacy Act, 1967 an examination is to be held for the purpose of qualifying a person for registration as a pharmacist under the said Act. The course of study for the purposes of admission to the said approved examination is also to be approved. Under section 25 thereof qualifications for registration as a pharmacist or as an apprentice in pharmacy have been prescribed, according to which among other persons holding a degree in pharmacy or a diploma in pharmacy granted by an Institution recognised b the Central Council could be enrolled as pharmacist. For a period of rive years an exception was made i.e. Persons who were qualified persons within the meaning of Rule 65 of West Pakistan Drugs Act, 1958, were also eligible to be registered as pharmacist. Under the said Act, a person not below the age of seventeen years on the date fixed for examination could be an applicant for the admission to such examination prescribed for a pharmacist and a person who had not been registered as an apprentice in pharmacy for a period not less than two years can also not be an applicant for admission. Under section 31 no person could practice as a pharmacist unless he was registered pharmacist under the said Act. It is clear from the provisions of the Pharmacy Act, 1967 as amended from time to time and the rules framed thereunder that the scope and the nature of .The job of pharmacist is absolutely different from the business or trade of mere sales of the drugs. A person who wants to run business of sales of drugs simpliciter if is required to first qualified himself as pharmacist after going through the examination prescribed under the said Act, before which he is required to get himself registered as apprentice for two years, the same would certainly amount to be unreasonable restrictions placed on the right of such person to enter upon lawful business or trade. No doubt under Article 18 of the Constitution which guarantees right to a citizen to enter upon lawful trade or business it is provided that such trade or business can be regulated by a licence which cannot be construed to mean that in the name of regulating such trade or business an arbitrary power has been conferred on the authorities to prescribe such terms and conditions for issuance of licence to enter upon a trade or business that a person is wholly deprived -of the right to do business itself. The criteria for prescribing terms and conditions for issuance of licence to regulate a trade or business should be such which has logical nexus with the object of the law. The Drugs Act, 1976 is an independent enactment and has been promulgated for a specified purpose of regulating the sales etc. Of the drugs, therefore, to require a person to obtain licence under the said Act, for the sale of drugs that he should qualify an-examination prescribed for a pharmacist would amount to negation of his fundamental right as guaranteed under Article 18 of the Constitution.
6. 1 am satisfied that rule 20 of the Punjab Drugs Rules, 1988 requiring that the sale of drugs shall be supervised under licence by a person who is registered under section 24(l)(a)(b) of the Pharmacy Act, 1967, is violative of fundamental right under Article 18 of the Constitution guaranteed to a citizen to enter upon any lawful profession or business being arbitrary and placing unreasonable restrictions on the said right and as-such void.
7. Learned Additional Advocate-General argued that Article 18 of the Constitution confers right on a citizen, therefore, writ petition could be maintained by a citizen i.e. a living person and not by the petitioner as an association. The argument has no force. The writ petition has been riled by Muhammad Sharif Sheikh in the representative capacity as Secretary-General Dispensers Association, Punjab which has been duly recognised by the Punjab Government. This writ petition having been filed for the benefit of dispensers and the declaration has been sought for their benefit who are citizens, as such, the objection has no bearing upon the maintainability of the writ petition.
8. It was argued that under Article 18 of the Constitution qualifications can be prescribed for regulating a business or trade, therefore, if the Drugs Rules provided that a person should be qualified pharmacist for obtaining a licence for the sale of the drugs the same was permissible under the said Article. I do not find myself in agreement with this argument. Article 18 of the Constitution has guaranteed a right of entering upon any profession or to conduct any lawful trade or business. The qualifications can be prescribed under this Article for carrying on a profession such like medical profession and legal profession whereas the conduct of any business or trade can be regulated by licensing system under which conditions can be laid down to regulate the business for if for conducting a business or trade qualifications are allowed to be prescribed, as can be prescribed with regard to carrying out of profession, the same would deprive many people from earning their livelihood. This is not the intention of Article 18. The argument is, therefore, repelled.
9. For the foregoing reasons this writ petition is accepted. Rule 20(2) of the Punjab Drugs Rules, 1988 is hereby declared to be violative of Article 18 the Constitution and void. The authorities are directed to issue licence for the sale of drugs on the basis of the same criteria as was applicable under t e previous Drugs Rules, 1945 and Drugs Rules, 1958 till such time similar provisions are made in the Punjab Drugs Rules, 1988. There will be no order as to costs.
A AA./M-475/1