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State of Madhya Pradesh Vs. Arjundas Tekchand - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1965CriLJ157
AppellantState of Madhya Pradesh
RespondentArjundas Tekchand
Cases ReferredState v. Umashankar
Excerpt:
- - they are not licencess under the provisions of the drugs rules as well as the drugs act for selling medicines specified in schedule (c) of the drugs rules. he, however, failed to realise the significance of the fact that a large number of antibiotic drugs for injection were seized from the possession of both respondents. surgeon umaria as an inspector under the drugs act was not in accordance with law and he bad, therefore, no authority to inspect the respondent's shops......both cases are medical practitioners at umaria. they are not licencess under the provisions of the drugs rules as well as the drugs act for selling medicines specified in schedule (c) of the drugs rules. the assistant surgeon umaria, in his capacity as inspector under the drugs act, on inspecting the shops of the two respondents harbaxrai and arjundas, found certain medicines stocked in the almirah of each shop where the respondent in each case carried on his profession as a physician. these included the medicines mentioned in schedule (c) of the drugs rules. the district medical officer shahdol filed complaints against the respondents under section 18 (a) (v) and (c) of the drugs act read with section 27 of the drugs act, 1940. the magistrate first class umaria, who tried the accused,.....
Judgment:

P.B. Sharma, J.

1. These two appeals involve a common question of law and will, therefore, both be disposed of by this judgment.

2. The respondents in both cases are medical practitioners at Umaria. They are not licencess under the provisions of the Drugs Rules as well as the Drugs Act for selling medicines specified in Schedule (c) of the Drugs Rules. The Assistant Surgeon Umaria, in his capacity as Inspector under the Drugs Act, on Inspecting the shops of the two respondents Harbaxrai and Arjundas, found certain medicines stocked in the almirah of each shop where the respondent in each case carried on his profession as a physician. These included the medicines mentioned in Schedule (c) of the Drugs Rules. The District Medical Officer Shahdol filed complaints against the respondents under Section 18 (a) (v) and (c) of the Drugs Act read with Section 27 of the Drugs Act, 1940. The Magistrate First Class Umaria, who tried the accused, acquitted the respondent. The State Government has now come up in appeal against the order of acquittal passed in each case.

3. It was not disputed by the respondents (hat drugs mentioned in Schedule (c) of the Drugs Rules were seized from their possession, and that neither of them held a licence for stocking those medicines.

4. To prove an offence under Section 18 of the Drugs Act the prosecution must prove that the goods were stocked for sale, and not merely that they were stocked. This can be proved by direct evidence or by circumstantial evidence. Ordinarily where a medicine is kept in a shop there will be a presumption that it is there for the purpose of sale unless that presumption is rebutted by the accused. See Kasimhhai v. State : AIR1956All703 .

5. The explanation tendered by the accused in each case was that Ms patients had brought the medicines seized from him for being administered to them by him (the accused). The learned Magistrate who tried these cases accepted this plea. He, however, failed to realise the significance of the fact that a large number of antibiotic drugs for injection were seized from the possession of both respondents. The quantities in which these drugs specified in Schedule (c) were recovered from each respondent would themselves suggest that they were stocked or exhibited for sale. Drugs in such, large quantities could not all have, been brought by the patients and left at the respondents shops, we have, therefore, no hesitation in holding that medicines mentioned in Schedule (c) of the Drugs Rules were exhibited for sale by the respondent in each case.

6. It was contended on behalf of the respondents that the appointment of the Assist. Surgeon Umaria as an Inspector under the Drugs Act was not in accordance with law and he bad, therefore, no authority to inspect the respondent's shops. The third proviso to Clause (c) of R. 49 runs as under:

Provided further for the purposes of inspection of shops in any specified area any officer of the medical or public health department who is a registered medical practitioner or graduate in science may be appointed an ex-officio Inspector.

The Notification published in the M. P. Govt. Gazette dated 27-12-1957 appointed all Civil Surgeons, District Medical Officers, Assistant Surgeons, Assistant Medical Officers and Sub-Assistant Surgeons in the State as ex-officio Inspectors for the purpose of Chapter IV of the Drugs Act. My attention was invited to a decision of the Allahabad Court in Gyanendranath Mittal v. Damodhar Bhatt : AIR1958All163 wherein It was held that the Drugs Act does not contemplate Inspectors for different purposes and, therefore, the part of R. 49 which provides for the qualification of the Inspector for inspection of the shops is ultra vires of the rule making power of the Government. This decision was dissented from by Desai J. in Raj Kishan v. State AIR 1000 All 460. I am in respectful agreement with the view taken by Desai J. to the effect that there is no bar on the Government prescribing different qualifications for Inspectors for different purposes, A power to appoint Inspectors for all the purposes mentioned in Chapter IV would, in the absence of any prohibition to that effect include a power to appoint an Inspector for only some of those purposes. The Government could, therefore, prescribe lower qualifications for an Inspector for inspection of the shops. The contention in this behalf must, therefore, be rejected.

7. The next question which arises for consideration is whether the respondents are entitled to the benefit of R. 123 of the Drugs Rules; Item 6 of Schedule 'K' provides for exemption of a registered medical practitioner supplying drugs to his own patients from all the provisions of Chapter IV of the Act and the rules made thereunder. The question, therefore, arises whether the present respondents could be deemed to be registered medical practitioners. Harbaxrai possesses a registration certificate granted by the Ayurvedic and Unani Chikitsha Paddhationka Board Madhya Pradesh while Arjundas possesses a licence Issued by the Pharmacy Council of the State of Vindhya Pradesh Rewa. The case of each respondent will have to be considered separately in so far as the legal effect of the certificate held by each of them is concerned. The certificate Ex-D/10 held by Harbaxrai was issued to him under Section 16 (2) of the C. P. and Berar Ayurvedic and Unani Practitioners' Act, 1947. Such a certificate carries with it the effect provided for in Section 19 of that Act. Clause (a) of Section 19 runs as under:

(a) 'The expression 'legally qualified medical practitioner' or 'duly qualified medical practitioner' or any word or expression importing a person recognised by law as a medical practitioner or as a member of the medical profession shall in all Acts of the Legislature of Madhya Pradesh and in all (Central Acts) in their application to (Mahakoshal-region) in so far as such Acts relate to any of the matters specified in List II or List III of the Seventh Schedule to the Constitution, include a registered practitioner;

Sub-section (ii) of clause (ee) of Rule 2 of the Drugs Rules 1945 defines 'a registered medical practitioner' as under:

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;

8. It is clear from the above definition that only such persons as are eligible 'for registration' in a medical register of a State meant for registration of persons practising the modern scientific system of medicine can be deemed to be registered medical practitioners for the purposes of the Drugs Rules 1945. This definition differs from the definition of 'Registered Practitioner' as contained in the C.P. and Berar Medical Registration Act, 191H which came up for consideration before a Division Bench of the Bombay High court in State v. Umashankar 1957 Nag LJ 103. That decision is, therefore, distinguishable from the one before us. The definition of 'a registered medical practitioner' in so far as the matters covered by the Drugs Rules 1045 are concerned Is much narrower in scope than the one contained in the C, P. and Berar Medical Registration Act, 1916. Since the petitioners cannot be said to be persons eligible for Registration in a register meant for registration of persons practising the modern scientific system of medicine they cannot, in our opinion, be deemed to be registered medical practitioners for the purposes of the Drugs Rules, 1945 by virtue of the provisions of Section 19 (a) of the C. P. and Berar Act No. IV of 1948. In the case of Arjundas oven the provisions of the latter enactment are not applicable. Ail that he holds is a Pharmacists certificate.

9. We are, therefore, of the opinion that both Harbaxrai and Arjundas have contravened the provisions of Section 18 (a) (v) and (c) of the Drugs Act which is punishable under Section 27 of the said Act. We convict each of them accordingly and sentence them 'to' imprisonment till the rising of the Court and to pay a fine of Rs. 100/- each, or, in default of payment of fine, suffer simple Imprisonment for one month each.

10. The result is that both of these appeals are allowed and the respondent in each appeal is convicted and sentenced as stated above.


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