060-NLR-NLR-V-58-A.-J.-H.-A.-WADOOD-Appellant-and-M.-J.-S.-COORAY-Chief-Preventive-Officer-.pdf
Present: Sinnetamby, J.
1956
A. J. H. A. WADOOD, Appel hint, and M. J. S. COOKAY(Chief Preventive Officer, Excise Striking Eorec), Respondent
S. C. 620—M. C., Avissaivella, 29,-91/
Excise Ordinance {Cap. 42)—Section 50—Ayurvedic physician—Is he a “ medical. practitioner ” ?—ilIeclical Ordinance, Ho. 2 of 1005-—Indigenous MedicalOrdinance, Ho. 17 of 10-11.
A qualified ayurvedic physician duly registered ns a general practitionerin the Register kept, by the Board of Indigenous Medicine is a inedii-al practi-tioner within Die meaning of section 5-3 of the Excise Ordinance.
-jA^-PPEAE from a judgment of the Magistrate's Court, Avissawella.
If. IF. Jayeicardene, Q.C., with A. C. 3f. Uvais, for the accuscd-.appcliant.
K,V. S. SJianm-uganathan, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
{1056) 57 H. E. It. 510.
IVmember 0, 1955. Sixxetamhv. J.—
The accused-appellant was charged with manufacturing an excisable-article without proper authority in breach of section 14 (a) of the Excise•Ordinance and with possessing an excisable article consisting of over1 OS gallons of liquor which was alleged to be unlawfully manufacturedin breach of section 44 of the Excise Ordinance. The learned magistrateconvicted him on botli counts and sentenced him to pay a fine•t f Hs. 1.000 on each count. This appeal is against the conviction andsentence.
ft would appear that the accused is an ayurvedic physician duly-qualified to practice as such, having passed the examination held bythe College of Indigenous Medicine. He has been duly registeredns a general practitioner in the Register kept by the Board of IndigenousMedicine. The facts are not disputed. The accused admits that lie-did manufacture the liquid in question which, however, he sapTs is atonic manufactured according to particulars given in a standard bookon ayurvedic medicine called “ Ar/staya Prakaraya ” published byI)r. Jayasekcra which is prescribed as a textbook in the College of Indi-genous Medicine. The tonic is intended for abdominal troubles. Thequantity of alcohol according to the Government Analyst is very small,.much less than in such imported tonics as Watcrbury’s Compound,Ferelex and Vitamin B Complex. This is in itself a fact whic-Ii supportsthe attitude taken up by the defence, namely .that section 55 of the Excise■Ordinance is applicable and that the possession and manufacture wasin respect of a bona fide medicated article for medicinal purposes by amedical practitioner. The learned magistrate has come to the conclusionthat the article was not a bona fide medicated article but, in my view,lie is mistaken and I think this matter is concluded by the fact that thetonic in question was manufactured in accordance with details givenin a hook dealing with the composition of ayurvedic medicines whichis recognised and used as a standard book by the College of IndigenousMedicine. Despite, therefore, the various reasons the magistrate■adduced in justifying the conclusion he readied that the article in questionwas not a bona, fide medicated article for medicinal purposes, the fact(hat it was manufactured in accordance with particulars contained insuch a book confirms me in the view I take, nainc^, that it- was a bonafide medicated article. The accused’s evidence that it was so manu-factured stands uncontradicted. Furthermore, it is in evidence thatlie was once before charged for a similar offence in respect of manufactur-ing the same article and acquitted. Tin's fact shows the bona fide ofthe accused.
The only question that therefore now arises is whether the possession•and manufacture was that cf a medical practitioner. Tiie Crown reliedupon the case reported in 17 K. L. Ii. 321 (Amera-sekera v. Lcbbe)1 in-support of its contention that the accused was not a medical practitionerwithin the meaning of section 55 of the Excise Ordinance In that casothe majority of the Court held that the vcdarala was not a medical practi-tioner within the meaning of that term as used in section 55 of the Excise
1 [1911) 17 X. L. R. 321.
Ewcise Ordinance [Cap. 42).
Ordinance. It must, however, bo remembered that vcdaralas, thouglr.they practised eastern medicine, -were not required to undergo any system,of training, not required to pass an examination, and not required to be-registered as vcdaralas. But in the case of an ayurvedic physician like-the accused in this case he has first to qualify before he can practise andlie lias also to be registered : on him are conferred certain privileges by the-Ordinance creating the Board of Indigenous Medicine, and his certificatesin regard to the health of a person arc required to be accepted as evidencein Courts of Law. Learned Crown Council referred to a passage inMaxicell1 to the effect that terms used in a statute are to be read in theirmeaning at the date of the passing of the Act. He argued that the onlykind of medical practitioner, recognised when the Excise Ordinance waspassed were those who were registered under the Medical Ordinance then,in force, viz., No. 2- of 1905 But it has been held this doctrine of“ contcmporanca expositio ” cannot be applied in construing Acts whicharo comparatively modem (vide Asshclon. Smith v. Owen)3.
Apperil allowed-.
The ease- of a qualified ayurvedic physician holding a diploma of thc-College of Indigenous Medicine is in my view different to that of a vedarala.Having regard to the fact that the State by registration regards themas qualified practitioners entitled to practise medicine and confers onthem t]io privileges enumerated in section 10 of the Ordinance (No. ITof 1941 )*, I fail to see- how it can bo contended that they do not comewithin the meaning of the general term “ medical practitioner ” as usedin section 55 of the Excise Ordinance. In my opinion the accused hasestablished facts which bring him within the exception created bysection 55 of the Excise Ordinance and lie is entitled to he acquitted.I accordingly set aside the conviction and sentence and acquit thc–aecused-appel hint.