HC declines to vacate stay on online medicine sale

New Delhi: The Delhi High Court on Tuesday refused to vacate the stay on sale of drugs and prescription medicines by online pharmacies. The court said the stay will continue till the next date of hearing, which is on February 6, noting the submissions of the Central government counsel that rules are yet to be framed to regulate such entities.

"Keeping in view the averments made by the Union of India in its counter affidavit, based on reports of various committees and the fact that statutory rules are yet to be framed, we are not inclined to vacate the interim order. It will continue till the next date," a bench of Chief Justice Rajendra Menon and Justice V K Rao said.

The court was hearing a PIL plea, filed by Zaheer Ahmed, seeking a ban on "illegal" sale of drugs and medicines online. In his petition, Ahmed, represented through senior advocate Arvind Nigam and advocate Nakul Mohta, has said that the online illegal sale of medicines would lead to a drug epidemic, drug abuse and misutilisation of habit forming and addictive drugs.

The Centre's counsel said the government is in the process of framing the rules in this regard. In its response, Directorate General of Health Services of the Ministry of Health and Family Welfare said after deliberation on the concern raised by the stakeholders, it was decided that the central government shall prepare a regulatory framework for the regulation of online sale of drugs.

The government has called for objections and suggestions from all the stakeholders and after due consideration, the draft rules will be finalised for publication in the official gazette, it said. The Centre also claimed in its affidavit that Ahmed's petition was wholly without merit and not maintainable, and deserved to be rejected. It added, “the issue of clandestine export and sale of medicines via internet by certain web portals in the country in violation of the provisions of the Drugs and Cosmetics Act, 1940, was taken up by the authorities in the 47th and 48th meetings of the Drugs Consultative Committee (DCC) held on July 31, 2014 and July 24, 2015 respectively.”

The affidavit said the main objective of the DCC is to secure uniformity throughout the country in the administration of the Act.
During the hearing, one of the online pharmacies, seeking to be impleaded in the matter informed the court that the division bench of Madras High Court has vacated the stay on online sale of medicines. The pharmacies also urged the court to remove the prohibition on online sale of drugs, saying they held licences and no medicines were sold illegally.

The applications for prosecution were filed in the main petition. Ahmed's petition claimed that the Ministry of Health, the Central Drugs Standard Control Organisation and an expert committee appointed by the drug consultative committee have already concluded that the online sale of medicines was in contravention of the provisions of Drugs and Cosmetics Act, 1940 and the other allied laws.

Still lakhs of drugs are being sold on the internet every day, it said, adding that some of the drugs or medicines contain narcotic and psychotropic substances, and some can lead to antibiotic resistance, which is a threat not only to the patient but to the humanity at large.

“It is a matter of public knowledge that e-commerce websites have been caught on numerous occasions selling fake products. Unlike consumer items, drugs are extremely potent substances and consuming wrong dose or fake medicine can have fatal consequences for the patient," the petition said.

It said as of now there was no mechanism to control the sale of medicines on internet and this puts health and lives of people at a high risk and affects their right to a safe and healthy life under Article 21 of the Constitution. "Online pharmacies are operating without a drug licence and cannot be regulated in the present regime. Unregulated and unlicensed sale of medicines will increase risk of spurious, misbranded and sub-standard drugs being sold," the plea said.

It sought direction to the authorities to take action against the entities distributing, selling or exhibiting drugs on internet. The petition also sought direction for constitution of an expert committee to find out the total number of websites which are distributing and selling drugs in the country and to impose a ban on the online sale and purchase of medicines.