2ND THIRU.

ISARI VELAN MEMORIAL NATIONAL MOOT COURT COMPETITION 2020 |TEAMCODE|

LIST OF ABBREVIATIONS

⁋ Paragraph
AIHC All India High Court Cases
AIR All India Records
Art Article
Cal Calcutta
cl. Clause
ed. Edition
No. Number
PC Privy Council
SC Supreme Court
SCC Supreme Court Cases
Sec. Section
v. Versus

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INDEX OF AUTHORITIES

I. CASES

II. STATUTES

1. DRUGS AND COSMETICS ACT, 1940

2. DRUGS AND COSMETICS RULES, 1945
3. PHARMACY ACT, 1948
4. THE CONSTITUTION OF INDIA, 1950
5. INDIAN PENAL CODE, 1860

III. BOOKS

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STATEMENT OF JURISDICTION

1. PETITION NO. 0000A OF 2019

The Petitioner has approached this Honorable Court under Article 32 of the Constitution of
Happindia 1950, that reads:

“Remedies for enforcement of rights conferred by this Part,

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed,
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part”

2. PETITION NO. 0000B OF 2019

The Petitioner has approached this Honorable Court under Article 32 of the Constitution of
Happindia 1950, that reads:

“Remedies for enforcement of rights conferred by this Part,

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed,
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part”.

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STATEMENT OF FACTS

BACKGROUND

Happindia is one among the oldest civilizations in the world with a wide range of patterns
and rich cultural heritage. It has performed an all-round socio-economic growth during its 73 years
of Independence. It has now become to one of the pinnacle industrialized nations in the world.
Happindia has developed in terms of digital competitiveness as the country has improved in terms
of knowledge and future readiness to undertake and discover digital technologies. The growing
number of internet users in the Happindia is a result of quantity of factors including the increase
in the use of personal computers, advances in high speed internet connectivity and the availability
of the broader range of online products and services.

Happindia is one of the largest producers of cost effective generic medicines and vaccines, supplies
20% of the global demand by volume. The country has a strong established pharmaceutical
network of 3000 drug companies and 10,500 drug manufacturing units, out of which a majority
are accredited by World Health Organization (WHO), Europe’s Certificate of Suitability (CEPs)
and US Food and Drug Administration (USFDA). In order to achieve its vision 2030 which is to
touch 120-130 Billion USD from the current 38 Billion USD, the stake holders are providing
access to high- quality affordable drugs. It is estimated that more than 250 online pharmacies have
risen swiftly in Happindian Drug Market. Happindia’s pharmacy laws are derived from Drugs and
Cosmetics Act,1940, Drugs and Cosmetics Rules,1945 and Pharmacy Act,1948. These acts and
regulations were from the period when there was no online commerce. These regulations were
passed with the aim not only to prevent the entry of substandard drugs and cosmetics in the market,
also to ensure that only qualified personnel are allowed to manufacture, sell, import and distribute
the drugs and cosmetics.

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PART-I

Mr. Ashok Hari, the de facto complainant lodged a complaint in Smilepur Police Station
that, on 15.02.2019, the complainant had taken his minor’s son to Dr. Eesh Samba who
administered Polio, DPT and HIB vaccines to the child from his own stock. After returning home,
the child became seriously ill and after a proper treatment, the child was cured. That is when the
informant noticed that in the vial both the manufacturing and expiry dates were interpolated by
pen (Mfg. date 31-Jan-2009 to 31-Jan-2019 & Exp. date Jan 2012 to 2022). The vaccines were
bought on an e-commerce platform at a discounted price. F.I.R was framed against Dr. Eesh Samba
and Members of Maxon board, under the sections 274 and 275 of Happindian Penal Code, section
27 of Drugs and Cosmetics Act 1940. The case against Maxon dominated the country’s media on
15.02.2019. Mrs.Shanthini, country head of Maxon Happindia said that she cannot be held liable
for 3rd party seller products as the vaccines are sold by the Allaga Pharma Ltd. She also quoted
cl.03 of terms and conditions of use,
“Maxon is only a facilitator and is not and cannot be a party to or control in any manner
any transactions in the website. Accordingly, the contract of sale of products on the website shall
be a strictly bipartite contract between you and sellers on the Maxon.in”.
She further stated that Dr. Eesh Samba purchased the medicine even after knowing that the
product is sold by third party sellers, at his own risk. After completing the investigation, the police
submitted charge sheet on 17.04.2019, against Dr. Eesh Samba and added the name of proprietor
of the Allaga Pharma Ltd. but excluded the names of the members of Maxon Board. The learned
SDJM has taken cognizance on the basis of the charge sheet.
On 22.04.2019, The Merry Nadu Chemists and Druggists Association represented by its
General Secretary Mr. Rajamallan, filed a writ petition in Supreme Court of Happindia for
blocking the links of all websites who engage in the online sale of medicine in violation of the
Drugs and Cosmetics Rules, 1945. He adds that the purpose of Drugs and Cosmetics Act,1940 and
Drugs and Cosmetics Rules,1945 is to regulate the manufacture and sale to ensure quality and
availability under prescribed storage condition by qualified pharmacists. He also contends that
permitting the sale of medicines through online/Internet defeats the sole purpose of them. It is also
stated in the petition that there are provisions in the Drugs and Cosmetics Act for recalling the
drugs by the pharmacists before it reaches the patient, when there are serious side effects. This is

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possible only till the medicine reaches the patients, pharmacists who are aware of its movements
can track the medicine. It is also stated that when the medicines are sold online, there is no data
privacy. Diseases and treatments are private and confidential information of the patients. The
pharmacists use this information for the purpose of data mining and commercial purposes.
Whereas the respondent averred upon the benefits and advantages of e-pharmacies, the
respondent also stated that the sub-committee was constituted by the Drugs Consultative
Committee (DCC) to inspect the issue of sale of drugs over internet has submitted its report to
DCC, which was accepted during the 50th meeting held on 4th & 5th November 2016 and forwarded
to Ministry of Health and Family Welfare for consideration. On September 2018, based on the
report, the Union Health Ministry has released draft rules to regulate the online sale of medicines
in Happindia, which is pending for further discussion. It is argued that until the implementation of
draft rules, there should not be any distinction between online and conventional pharmacy. Any
person who has license to sell medicine in retail store, should be permitted to sell it online. The
respondent also stated that facts and details of the FIR filed against Maxon are irrelevant to the
instant case.
On hearing the arguments, the Supreme Court imposed an interim ban on the sale of
medicines online in Happindia on 18th September 2019.

PART –II

World Health Organization (WHO) says that Happindia is home to 12% of the world’s
smokers. More than 10 million people from Happindia die every year from tobacco related
diseases. This is more than that of deaths due to motor accidents, AIDS, alcohol and drug abuse
put together. The COTPA (Cigarettes and Other Tobacco Products Act, 2003) was the first ever
anti-tobacco legislation introduced in Happindia. The preamble of the Act states “it is expedient
to prohibit consumption of cigarettes and other tobacco related products which are injurious to
health with a view to achieving improvement of public health in general as enjoyed by Article 47
of the constitution”. Happindia is now looking to amend COTPA to plug its loopholes.
Despite great efforts on opposition, Happindia succeeded in getting its large size (85%)
warning on tobacco packs along with the Quit line number. Free multilingual telephonic
counselling is successfully assisting tobacco users to quit the habit. Happindian government

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ensured better implementation of gutka flavored chewing tobacco ban. It also launched one of the
most graphic anti-tobacco awareness campaigns on Happindian television and cinema halls.
Between 2010 and 2016, Happindia has shown a relative decrease of 17% with the help of
“Tobacco Free Happindia” programmes.
While the cigarette consumption has been decreased, the companies have introduced e-
cigarettes to remain profitable. These newer products have been falsely promoted as less harmful
than the cigarettes. The liquid in the e-cigarettes usually contain nicotine, which is a highly toxic,
addictive known to be a fatal chemical. More than 7000 varieties of flavors are mixed in the liquid.
The cartridges in the e-cigarettes are also used to deliver harmful substances such as cannabis and
opiates. Youths who have never smoked consider these e-cigarettes as a form of recreation and
fashion statement. These youths are targeted as the potential customer by the cigarette industries.
According to Happindia National Youth Tobacco Survey, there has been a widespread usage of e-
cigarettes and increased by 77.8% among high school students and 48.5% among middle school
students between 2017 and 2018, only in one year. Even though there are evidences for harm
reduction as well as cessation benefits of these products on one side, a newer evidence of harm
emerges on the other side, as the outbreak of a severe lung disease due to vaping in Happindia,
where more than 400 people were affected and 12 reportedly died. Their use for cessation is not
yet approved by Drugs and Cosmetics Act. Alarmed by these statistics and emerging evidences,
various expert committees and institutions petitioned the Union Ministry of Health for the ban of
these e-cigarettes before they become an epidemic.
Whereas there was no legislation in place to ban these hazardous products across
Happindia. Therefore, the Happindian government took a bold step by promulgating the
Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export, Transfer, Sale,
Distribution, Storage and Advertisement) Ordinance 2019.
Miracle Vapour Private Ltd., moves the writ petition in Supreme Court of Happindia
challenging the Prohibition of Electronic Cigarettes (Production, Manufacture, Import, Export,
Transfer, Sale, Distribution, Storage and Advertisement) Ordinance 2019 dated 18th September,
2019.