Skip to content


Dr. Prakash Chandra Tiwari Vs. the State of Madhya Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 513 of 1973
Judge
Reported inAIR1976MP50
ActsMadhya Pradesh Homoeopathic and Biochemic Practitioners Act, 1951 - Sections 19 and 19(1); Drugs and Cosmetic Rules, 1945 - Rule 65 and 65(9); Constitution of India - Articles 252 and 254; Government of India Act
AppellantDr. Prakash Chandra Tiwari
RespondentThe State of Madhya Pradesh and ors.
Appellant AdvocateK.P. Munshi, Adv.
Respondent AdvocateS.K. Dixit, Adv.
DispositionPetition partly allowed
Cases ReferredKnightabridge Trust v. Byrne
Excerpt:
.....the drugs and cosmetics rules to exclude the application of the extended definition of registered medical practitioner resulting from section 19 of the madhya pradesh homoeopathic apd biochemic practitioners act, a look at schedules h and l of the rules will show that the substances mentioned in these schedules are highly sophisticated drugs about which a homoeopathic and biochemic practitioner is expected to have no knowledge. having regard to the dangers involved in case a homoeopathic practitioner is allowed to prescribe drugs mentioned in schedules h and l and the menace that it is likely to create, we are of opinion that the context of rule 65 (9) clearly shows that the expression 'registered medical practitioner' as used in the said provision does not include a homoeopathic and..........raj medical stores, a chemist of jagdalpur, intimating that the petitioner is not a registered medical practitioner under rule 2 (ee) of drugs and cosmetics rules, 1945, and requesting not to dispense allopathic drugs on the prescription of the petitioner. it is this letter or circular that the petitioner challenges by this petition.3. the petitioner's contention is that the madhya pradesh homoeopathic and biochemic practitioners act, 1951 which has received the assent of the president, directs by its provisions contained in section 19 that in all acts of madhya pradesh and in all acts of the central legislature, any word importing a person recognised by law as a medical practitioner or member of medical profession shall include a registered practitioner under the act, and,.....
Judgment:

Singh, J.

1. By this petition under Articles 226 and 227 of the Constitution the petitioner, Dr. Prakash Chandra Tiwari, prays for issuance of a writ quashing a Circular issued by Drug Inspector, Jagdalpur, impleaded as respondent No. 4 to this petition.

2. The petitioner is a registered practioner under the Madhya Pradesh Homoeopathic and Biochemic Practitioners Act, 1951, The petitioner passed the diploma in Homoeopathy and Biochemistry in the examination held in the year 1971, by the Board of Homoeopathic and Biochemic Systems of Medicine, Madhya Pradesh. The petitioner has got his clinic at Jagdalpur. On 26th June 1973 the Drugs Inspector, Jagdalpur, wrote to M/s. Raj Medical Stores, a Chemist of Jagdalpur, intimating that the petitioner is not a registered medical practitioner under Rule 2 (ee) of Drugs and Cosmetics Rules, 1945, and requesting not to dispense allopathic drugs on the prescription of the petitioner. It is this letter or circular that the petitioner challenges by this petition.

3. The petitioner's contention is that the Madhya Pradesh Homoeopathic and Biochemic Practitioners Act, 1951 which has received the assent of the President, directs by its provisions contained in Section 19 that in all Acts of Madhya Pradesh and in all Acts of the Central Legislature, any word importing a person recognised by law as a medical practitioner or member of medical profession shall include a registered practitioner under the Act, and, therefore, the petitioner comes within the scope of the expression 'registered medical practitioner' for purposes of the Drugs and Cosmetics Act, 1940, and the rules made thereunder. It is argued that in sending the impugned letter the Drugs Inspector did not take into account the provisions of Section 19 of the Madhya Pradesh Homoeopathic and Biochemic Practitioners Act, and that the petitioner is being illegally restricted in practising as a registered medical practitioner.

4. To appreciate the contention of the learned counsel for the petitioner it is necessary to refer to the relevant statutory provisions. The Drugs and Cosmetics Act, 1940, was enacted by the Central Legislature under the Government of India Act, 1935. As mentioned in the preamble of the Act, the Legislatures of all the Provinces passed resolutions in terms of Section 103 of the Government of India Act, 1935, authorising the Central Legislature to legislate for regulating the import, manufacture, distribution and sale of drugs and cosmetics to the extent the above matters fell within List II of the Seventh Schedule to the Government of India Act. The Drugs and Cosmetics Rules, 1945, were made under the Act, Rule 2 (ee) of these rules contains the definition of Registered Medical Practitioner. This rule, as amended by notification dated 5th June 1972 and in so far as relevant, reads as follows:

'2(ee) Registered Medical Practitioner means a person-

(i) holding a qualification granted by an authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); or

(ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practising the modern scientific system of medicine; excluding the Homoeopathic system of medicine;

(iii) registered in a medical register of a State, other than a register for registration of 'Homoeopathic Practitioners', who although not falling within Sub-clause (i) or Sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purposes of this Act;'

Part VI of these rules is on the subject of sale of drugs other than homoeopathic medicines. The drugs can be sold only by licensee. Rule 65 contains the conditions of licences. Sub-rule (9) of this rule provides as follows:

'(9) Substances specified in Schedules H and L and preparations containing such substances shall not be sold by retail except on and in accordance with a prescription of a registered medical practitioner: Provided that no prescription shall be required for sale or supply to a registered medical practitioner, hospital, infirmary or an institution approved by an order of a licensing authority'.

5. Section 3 (11) of the Madhya Pradesh Homoeopthic and Biochemic Practitioners Act, 1951, defines 'registered practitioners' to mean 'a practitioner whose name is for the time being entered in the register under Section 16'. Section 15 prescribes a register of Homoeopathic and Biochemic Practitioners and Section 16 makes provision for the registration of every person's name in the said register after he has passed the qualifying examination. It is not disputed that the petitioner has passed the qualifying examination and his name has been entered in the register under Section 16. Section 19 (1) on which the learned counsel for the petitioner has placed reliance reads as follows:

'19. Qualified practitioner's certificate.--Notwithstanding anything contained in any law for the time being in force,-- (1) the expression 'legally qualified medical practitioner' or 'duly qualified medical practitioner' or any word importing a person recognised by law as a medical practitioner or member of medical profession, shall in all Acts of Legislature in the Madhya Pradesh and in all Acts of the Central Legislature, in their application to the Madhya Pradesh, in so far as such Acts relate to any of the matters specified in List II or List III in the Seventh Schedule to the Constitution of India, shall include a registered practitioner;'

6. The effect of Section 19 (1) is to extend the definition of the expression 'legally qualified medical practitioner' or 'duly qualified medical practitioner' or any other expression importing a person recognised by law as a medical practitioner. This extension of definition of these expressions is also made applicable to all Acts of the Central Legislature in their application to Madhya Pradesh in so far as such Acts relate to any of the matters specified in List II or List III in the Seventh Schedule to the Constitution. By force of Section 19, a person entered in the register of Homoeopathic and Biochemic Practitioners maintained under Section 15 gets included in the definition of the expressions 'Legally qualified medical practitioner' or 'duly qualified medical practitioner' or any other expression importing a person recognised by law as a medical practitioner or a member of medical profession, As already seen, the extension of these expressions to include a Homoeopathic and Biochemic Practitioner registered under the Madhya Pradesh Homoeopathic and Biochemic Practitioners Act is also made applicable for purposes of Central Acts in their application to Madhya Pradesh, provided the Acts relate to any of the matters specified in List II or List III of the Constitution. Entry 19 in List III embraces 'drugs and poisons, subject to the provisions of Entry 59 of List 1 with respect to opium'. The Drugs and Cosmetics Act, 1940, is thus on a subject which is enumerated in List III and Section 19 of the Homoeopathic and Biochemic Practitioners Act will have effect for construction of the expressions 'legally qualified medical practitioner' or 'duly qualified medical practitioner' or any other similar expression used in the Drugs Act. The Drugs and Cosmetics Rules, 1945, being the rules made under the Drugs and Cosmetics Act, have full force and effect as if they were part and parcel of the Act itself; Sukhdev Singh v. Bhagatram, (1975) 1 SCC 421 at p. 433 (Para 17) = (AIR 1975 SC 1331 at p. 1337) (Para 17). Section 19 of the Homoeopathic and Biochemic Practitioners Act, therefore, applies also for construing the Drugs and Cosmetics Rules. The expression registered medical practitioner' is similar to the expressions 'legally qualified medical practitioner' and 'duly qualified medical practitioner' which are expressly mentioned in Section 19. The expression 'registered medical practitioner' denotes that the medical practitioner concerned is recognised by law to practise medicine. The expression 'registered medical practitioner' used In the Drugs and Cosmetics Rules will prima facie be construed in the light of section 19 of the Homoeopathic and Biochemic Practitioners Act in its application to Madhya Pradesh notwithstanding that the definition of registered medical practitioner as contained in Rule 2 (ee) of the Drugs and Cosmetics Rules excludes persons practising the homoeopathic system of medicine. It does not, however, follow that the extended definition contained in Section 19 must apply in all cases. The object of Section 19 is to provide an extended definition in all Acts to which the section applies of the expressions 'legally qualified medical practitioner' or 'duly qualified medical practitioner' or any other similar expression. But all definition sections have to be read 'subject to a contrary context'. Most often some such words are expressly mentioned in the definition sections, but even otherwise such words are to be implied: Knightabridge Trust v. Byrne, (1940) 2 All ER 401 at p. 405 (HL).

7. The effect of Section 19 cannot be more than of adding a definition clause in the Central Act to which it applies. But the extended definition of the expressions to which Section 19 relates must like all definitions be read subject to a contrary context, It has, therefore, to be seen whether there is a contrary context in Rule 65 (9) of the Drugs and Cosmetics Rules to exclude the application of the extended definition of registered medical practitioner resulting from Section 19 of the Madhya Pradesh Homoeopathic apd Biochemic Practitioners Act, A look at Schedules H and L of the Rules will show that the substances mentioned in these schedules are highly sophisticated drugs about which a Homoeopathic and Biochemic Practitioner is expected to have no knowledge.

These drugs administered on the advice of a qualified persop may be life-saving; but they may prove extremely dangerous if they are allowed to be sold and administered on the prescription of persons who have no knowledge of modern allopathic medicines. The amendment of the definition of registered medical practitioner given in the rule so as to exclude a Homoeopathic Practitioner gives an idea that the makers of the rule never intended that the drugs mentioned in Schedules H and L be sold on the prescription of a Homoeopathic Practitioner. Having regard to the dangers involved in case a Homoeopathic Practitioner is allowed to prescribe drugs mentioned in Schedules H and L and the menace that it is likely to create, we are of opinion that the context of Rule 65 (9) clearly shows that the expression 'registered medical practitioner' as used in the said provision does not include a Homoeopathic and Biochemic Practitioner registered under the Homoeopathic and Biochemic Practitioners Act of Madhya Pradesh.

8. The learned Advocate-General, who appeared on behalf of the State, submitted that the Drugs and Cosmetics Act, 1940, should be read to be a legislation under Article 252 of the Constitution and that such a law can be amended only by Parliament and not by the State Legislature. In out opinion, there is no substance in this argument. The Drugs and Cosmetics Act was enacted, as its preamble shows, under Section 103 of the Government of India Act, 1935. A law made by the Central Legislature under Section 103 could be amended or repealed by an Act of the Legislature of a Province in its application to that Province. It is expressly so provided in Section 103, Article 252 of the Constitution corresponds in some respects to Section 103 of the Government of India Act, but there is a material difference in that a law passed by Parliament under Article 252 cannot be amended or repealed by an Act of the Legislature of a tate. Be that as it may, a law to fall under Article 252 of the Constitution must be a law made by Parliament. The Drugs and Cosmetics Act, 1940, which is a pre-Con-stitution law made by the Central Legislature under the Government of India Act, can in no sense be construed to be a law made by Parliament under Article 252. The subject-matter of the Drugs Act, 1940, now falls under Entry 19, List III of the Constitution. Article 254, therefore, applies and a law made by the Legislature of a State, which has received the assent of the President, will prevail over the said Act. The Homoeopathic and Biochemic Practitioners Act enacted by the Madhya Pradesh Legislature has received the assent of the President. If there is any conflict between the Madhya Pradesh Act and the Drugs and Cosmetics Act which is an existing law, the former will prevail. However, in the instant case, we do not find any conflict. We have already stated that it must be assumed that the extended definition contained in Section 19 of the Madhya Pradesh Act, which gets incorporated in the relevant Central Act, must be read subject to a contrary context. It could not have been intended by the Madhya Pradesh Legislature that drugs about which a Homoeopathic and Biochemic Practitioner has no knowledge and which may prove dangerous to life, if administered on the prescription of a nonqualified person, should oe allowed to be sold on the prescription of such a practitioner.

9. Learned counsel for the petitioner has also contended that the prohibition contained in Rule 65 (9) of the Drugs and Cosmetics Rules is applicable only in respect of drugs mentioned in Schedules H and L, but the Drugs Inspector has prohibited the Chemist to sell any drug whatsoever on the prescription of the petitioner. The argument of the learned counsel is that ia any case to the extent the letter or circular of the Drugs Inspector goes beyond the scope of Rule 65 (9), it is in excess of jurisdiction and restricts the rights of the petitioner. In our opinion, this contention must be accepted. The learned Advocate-General did not show us any rule similar to Rule 65 (9) which prohibits a Chemist to sell by retail any allopathic medicine whatsoever except in accordance with the prescription of a registered medical practitioner. Rule 65 (9) is restricted to the substances specified in Schedules H and L and preparations containing such substances. Medicines which do not fall within the description of substances specified in Schedules H and L and which are not preparations containing these substances can be sold by a Chemist even without a prescription of a registered medical practitioner. The impugned letter in so far as it goes beyond Rule 65 (9) is, therefore, dearly in excess of authority of the Drugs Inspector.

10. The petition is partly allowed. We declare that the Circular or Letter of the Drugs Inspector dated 26th June 1973 shall not have effect except in respect of substances and preparations covered by Rule 65 (9) of the Drugs and Cosmetics Rules, 1945. There shall be no order as to costs of this petition. The amount of the security deposit shall be refunded to the petitioner.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //