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Hem Raj vs State Of Punjab on 19 May, 2009

Punjab-Haryana High Court
Hem Raj vs State Of Punjab on 19 May, 2009
In the High Court of Punjab and Haryana at Chandigarh


Crl. Revision No. 141 of 2002

Date of decision: May 19, 2009

Hem Raj
                                                           .. Petitioner

                   Vs.

State of Punjab
                                                           .. Respondent

Coram:       Hon'ble Mr. Justice A.N. Jindal

Present:     Mr. Ram Bilas Gupta, Advocate Amicus Curiae
             for the petitioner.
             Ms. Simsi Dhir, AAG, Punjab for the respondent.

A.N. Jindal, J
             Assailed in this petition is the judgment dated 22.1.2002 passed
by the learned Additional Sessions Judge, Bathinda, dismissing the appeal
filed by the accused-petitioner (herein referred as 'the petitioner') against the
judgment dated 29.10.1999 passed by the Additional Chief Judicial
Magistrate, Bathinda, convicting and sentencing him to undergo rigorous
imprisonment for 1- ½ years and to pay fine of Rs.5000/- under Section 27
(b) (ii) of the Drugs and Cosmetics Act, 1940, (herein referred as 'the Act')
and further to undergo rigorous imprisonment for six months under Section
28 of the Act.
             In nutshell, the prosecution case is that on 29.7.1993,
complainant Ajay Singla District Drugs Inspector, Bathinda, along with Dr.
Sadhu Ram Gupta, District Family Welfare Officer, Bathinda and Naginder
Prashad Class IV employee went to the shop of the petitioner for inspection.
He introduced himself and other witnesses. He joined Mohan Lal as a
witness. On inspection, the petitioner was found stocking and exhibiting
allopathic drugs for sale and distribution in the shop and he also failed to
produce any drugs licence or any valid Registered Medical Practitioner
certificate authorising him to keep the drugs for sale and distribution. He
also failed to disclose the names and addresses from where he acquired the
drugs stocked by him. A sample of drug Chloromphnicol Pabnitate oral
suspension L.PBNo.2111 made by Associated Pharma Industries Gaziabad
 Crl. Revision No. 141 of 2002                                          -2-

                                      ***

was taken for test and analysis and prepared inspection form 17 at the spot.
12 types of drugs were also seized along with other articles and list was also
prepared on form No.16. A sample was sent to Government Analyst,
Punjab Chandigarh for analysis and report was received that the drug was of
standard quality. The complaint was filed in the court.

Pre-charge evidence was recorded. Finding a prima facie case
the petitioner was charged for the offence under Section 27 (b)(ii) read with
Section 18-C and 18-A of the Act, to which he pleaded not guilty and opted
to contest.

In order to substantiate the charges, the prosecution examined
Ajay Singla (PW1) and Dr. Sadhu Ram Gupta (DW2).

When examined under Section 313 Cr.P.C. the petitioner
denied all the allegations and pleaded his false implication. He further
explained that he is a registered medical practitioner from the State of Bihar
at Registration No. 42653 w.e.f.. 3.10.1985 and has right to practice of in
allopathic medicines. In defence he tendered into evidence original
certificate Ex.DA.

Arguments heard.

Both the courts below, have unnecessarily tried to enter into
controversy while holding the petitioner guilty of the offence. The
petitioner admittedly is a “vaid”, authorised practitioner in Ayurvedic and
Unani system of medicines. The certificate (Ex.DA) issued by Ayurvedic
and Unani Medical Board, Bihar reveals that he was registered with the
aforesaid Board on 3.10.1985. Learned counsel has placed reliance on the
Drugs & Cosmetics Rules framed by the Central Government under the Act.
Rule 2 (ee) (ii) reads as under :-

“2.(ee) Registered Medical Practitioner means a person

(i)x x x x x x

(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
Homeopathic system of medicine.”

Crl. Revision No. 141 of 2002 -3-

***

The words “eligible for registration in a medical register of a
State” means that he may be eligible or has been registered as medical
practitioner of any State and not necessarily with the State where he is
practicing .

It is not challenged by the prosecution that the petitioner holds
a certificate of registration from the State Ayurvedic and Unani Medical
Council, Bihar and was duly registered as such in Bihar. By virtue of
Schedule 1 to the Punjab Ayurvedic and Unani Practitioners Act, 1963,
everybody who is holding a degree or diploma of any Ayurvedic or Unani
college recognized by the faculty within Punjab or outside would be eligible
for being registered as a medical practitioner in the State of Punjab and
Haryana. In view of the aforesaid rule, the petitioner comes within the
definition of registered medical practitioner and as such he was entitled to
keep allopathic medicines for practice, therefore, he cannot be held guilty
for violating the provisions of Section 18 (c) and 27 (b) of the Act. Similar
observations were made by this Court in case Phul Singh vs. State of
Haryana,
1986 (1) R.C.R. (Criminal) 532.

In view of the matter, the lower appellate court appears to have
fallen in error in holding the petitioner guilty who is already registered with
the Ayurvedic & Unani Medical Board, Bihar.

Resultantly, I accept the revision petition, set aside the
impugned judgment and acquit the petitioner of the charges framed against
him. Bail bond and surety bond furnished by him stand discharged. Fine, if
any deposited by him, be refunded.

May 19, 2009                                               (A.N. Jindal)
deepak                                                           Judge
 

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