06 January 2018

Government need not consult DTAB to prohibit manufacture of drug/cosmetic

Supreme Court of India has held that it is not mandatory for the Central Government to hold prior consultations with the Drugs Technical Advisory Board, for exercise of power under Section 26A of the Drugs and Cosmetics Act, 1940.

Section 26A empowers the Central Government to prohibit manufacture, etc., of drug and cosmetic in public interest. Setting aside the Delhi High Court judgement, the Apex Court was of the view that Section 26A is an additional power given to the Central Government which must be exercised on its own terms.

It was observed that in the legislature in the very Amendment Act which introduced Section 26A made certain changes which involved the DTAB, but e Section 26A did not refer to Section 26A and, therefore, mandate any previous consultation with the DTAB.

Contentions that Section 26A was arbitrary and that there was no non-obstante clause to keep out Section 5 prescribing for Drugs Technical Advisory Board, were also rejected by the Court.

Reliance placed by the drug manufacturer on an earlier decision of the Court in the case of Systopic Laboratories was rejected by the Court observing that no focused argument was taken at that time as to whether such advice is or is not mandatory before powers under Section 26A can be exercised.


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