State of Punjab vs Suraj Kumar

B.S. Nehra, J.

The State of Punjab has felt aggrieved against the judgment dated 31.1,1986 of Shri G. C. Suman, Chief Judicial Magistrate, Ludhiana, acquitting the respondent of the charges under section 18(c) read with section 27A(ii) and under section 28 of the Drugs and Cosmetics Act, 1940 (hereinafter referred to as the Act) and has, therefore, deferred this appeal for reversing the impugned judgment and sentencing the respondent

The facts of the prosecution case are these. On receipt of secret information against the respondent, Shri A.R. Salwan. Drugs Inspector, went to his shop on 22111978 in the company of Dr. Suresh Kumar Gupta. He was found stocking for sale drugs in his shop. On being asked whether he was possessed of a valid licence for sale of the drugs he was unable to produce any such licence. Drugs Inspector then asked him to produce the certificate showing that he is a medical practitioner. The respondent''s case was that he is an M.B.B. S. doctor and that he is registrated with the Medical Council but he was unable to produce any material in support of his assertion. He was also unable to supply the source of a question of drugs including injection Analgin. The Drugs Inspector then took sample of this drug in accordance with law. After completing necessary formalities, a regular complaint was filed against the respondent under the provisions of section, 18(c) read with section 27 A. (ii) and under section 8 of the Act. The trial Court framed the chargesheet against the respondent, on these allegations. Shri A R. Salwan, Drugs Inspector, and Dr. Suresh Kumar appeared in the witness box to substantiate the charges against the respondent. The trial Court vide its judgment dated 31.1.1986 acquitted the respondent of the charges framed against him. The State of Punjab seeks the reversal of this judgment.

The learned Assistant Advocate General, Punjab, and the learned counsel for the respondent have been heard at length in this appeal.

While acquitting the respondent of the charges, the trial Court had relied upon a Single Bench judgment of K.P.S. Sandhu J., of this Court, in Criminal Revision No. 1517 of 1984 (Phul Singh v. The State of Haryana). The learned Single Judge observed that it was not challenged by the prosecution, in that case, that the petitioner held a certificate of registration from the State Ayurvedic and Unani Medical Council, Bihar, and he was duly registered as such in Bihar. The learned Judge then proceeded to observe that by virtue of schedule 2 to the Punjab Ayurvedic and Unani Practitioners Act, 1963, everybody who is holding a degree or diploma of any Ayurvedic or Unani College recognised by the faculty, within Punjab or outside, would be eligible for being registered as a medical practitioner in the States of Punjab and Haryana and, therefor the petitioner fell within the definition of a registered medical practitioner and hence he was entitled to keep medicines.

Assailing the correctness of the view taken in Phul Singh''s case (supra), the learned Assistant Advocate General, Punjab, has relied upon a Division Bench judgment of the Punjab and Haryana High Court in Dr. Sarwan Singh Dardi v. State of Punjab and others, AIR 1987 Punjab and Haryana 81 in which it was held as under :

"In view of the clear provisions in the two Central Acts, namely, section 15, sub section (2)(b) of the Medical Council Act, 1956, and section 17, sub, section (2)(b) of the Indian Medicine Central Council Act. 1970, no person who is not qualified in the system of Modern Medicine and is not registered as such, either in the State Register on the Central Register, is entitled to practise modern system of medicine."

Relying on the ratio of Dr. Sarwan Singh Dardi''s ease (supra) the learned Assistant Advocate General, Punjab, contended that the respondent had failed to establish before the trial Court that he was possessed of the necessary qualifications for being registered as a medical practioner in Punjab as laid under the provisions of the Medical Council Act, 1656 and Indian Medicine Central Council Act, 1970. It is true that the respondent had produced before the trial Court certificate Exhibit DA in Hindi from Bihar showing that he posseses a diploma in Ayurveda but this certificate does not show that he had passed this examination with at least four years course as required by para I of schedule of the Punjab Ayurvedic and Unani Practitioners Act, 1963. This para, in so far as it is relevant for the consideration of the case of the respondent, reads as under :

"1. Degree or Diploma of any Ayurvedic or Unani College recognised by the Faculty (with at least four years course) within Punjab or outside it, or a degree in the Ayurvedic System or Unani System of Medicine of any University established by law in India; Provided that persons who have already qualified from any Ayurvedic or Unani College or Institution prior to the commencement of this Act in a course of a duration of less than four years; will also be entitled for registration,"

The respondent has not been able to satisfy this Court that he has passed the requisite qualification in Ayurveda from Bihar with at least four years course as envisaged in para I of schedule I of Punjab Ayurvedic and Unani Practitioners Act, 1963. In the circumstances, certificate Exhibit DA which was sought to be pressed into service by him in support of his contention that he possessed the necessary qualification and on that basis he was registered as a medical practitioner in Bihar and, therefore, he has, ipsc facto, the right to carry on his business as medical practitioner in Punjab cannot be accepted on any score. Relying on the ratio of Dr. Sarwan Singh Dardi''s case (supra), it is held that the trial Court was not justified in holding as it did, that the respondent had the right to practise modern system of medicines in Punjab. Accordingly, the judgment of the trial Court is found to be unsustainable.

For the reasons recorded above, the appeal is accepted, the impugned judgment is set aside and the case is remanded to the Court of learned Chief Judicial'' Magistrate, Ludhiana, for fresh decision. The State and the respondent will appear before that Court on 16.3.1992 and the trial Court will thereafter proceed to decide the case on merits in accordance with law.

Appeal accept.