SHC orders single bench to decide on withdrawal of exemption in 10 days

The Sindh High Court’s (SHC) appellate bench on Wednesday directed a single bench of the high court to decide the application on the drug regulatory authority’s notification with regard to withdrawal of exemption in Covid-19 vaccines’ import to the extent of one million life-saving doses of Sputnik-V within 10 days.

The order came on a high court appeal filed by the federal government against the SHC single judge interim order that suspended the Drug Regulatory Authority of Pakistan (DRAP)’s notification with regard to withdrawal of exemption in Covid-19 vaccines’ import to the extent of private pharma company engaged in import of one million doses of Sputnik-V.

Federal law officers argued that Drap, after withdrawing the exemption notification, had not fixed the prices for the Covid-19 vaccine and the matter was pending before the authority. They submitted that without fixation of the prices, the selling activity of the Sputnik-V vaccine would be illegal.

They further submitted that the prices of the drug imported by the pharma company shall be fixed by the federal government within a week and a progress report would be submitted before the court. They requested the high court to restrain the phamra company from selling the product in the market before fixation of prices by the federal government.

A division bench of SHC headed by Justice Mohammad Ali Mazhar inquired the federal government’s counsel how the appeal was maintainable against an ad-interim order and why they were not raising all the pleas before the single judge. The appellant’s counsel submitted that they were preparing the counter-affidavit and the application but not filed any application for vacation of stay or the counter affidavit in the trial court.

The pharma company’s counsel questioned the maintainability of the appeal filed by the federal government. He submitted that the pharma company, on the basis of exemption granted by the federal government, had entered into an agreement for consignment and after reaching the consignment at the Karachi Port, the federal government abruptly withdrawn the notification which was totally unjustified.

He submitted that despite the fact that there was a lot release certificate issued by Drap, the federal drug inspector at Karachi was not signing the relevant documents, therefore, at this juncture, the sale of vaccine was not possible unless the exercise was completed. He further argued that in view of the exemption granted, the federal government had no power to fix the prices. The high court observed that the appeal had been preferred against the ad-interim order where the final decision on the injunction application was to be rendered by the SHC’s single judge after hearing the parties and even at this stage, no counter-affidavit had been filed before the court nor any application for vacation of stay had been moved.

Regarding the contention raised by the federal government that the pharma company be restrained from selling vaccines in the market before the fixation of prices by the federal government, the SHC observed that this contention could also be raised before the single judge when the matter was already fixed for hearing the next day.

The court observed that at present, the court was hearing an appeal only against the ad-interim order and if at this stage any cognisance of the matter was taken, this may prejudice the pending proceedings where the injunction application is to be decided on merits by the single bench after hearing the parties. The SHC observed that propriety demanded that all pleas in defence should be taken before the single bench for vacation of the ad-interim order.

The court observed that the pharma company’s counsel had already given a clear statement that unless the drug inspector signed the relevant documents, the question of selling the vaccine in the market did not arise.

The high court observed that since the matter required some urgent attention, it was disposing of the appeal with directions to the single judge to decide the injunction application within 10 days after hearing the parties.

The pharma company had earlier mentioned in the lawsuit that Drap had rescinded its earlier notification issued on February 2, 2021 under which it exempted the import of Covid-19 vaccine for sale in hospital and institutions from operation of drug pricing mechanism under the Drap law for a period of six months or till the market prices of those vaccines became available in order to proceed further as per the 2018 drug pricing policy.