057-NLR-NLR-V-56-D.-E.-F.-FERNANDO-Appellant-and-E.-L.-GOONEWARDENE-Excise-Inspector–Resp.pdf
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SWAN J.—Fernando v, Ooonewardene
1953Present : Swan J.
E. F. FERNANDO, Appellant, and E. L. GOONEWARDENE(Excise Inspector), Respondent
S. C. S55—M. O. Panadure, 22,497
Excise Ordinance [Cap. 42)—Section 55— Is a Vedarala a “ medical practitioner ” ?
Medical Practitioners Ordinance [Cap. 90), ss. 35, 40.
Where, in a prosecution under tho Excise Ordinance, the accused, who wasa Vedarala, pleaded that as a “ medical practitioner ” he was entitled to roly- on the provisions of section 55 of that Ordinance—
Held, that a Vedarala was not a “ medical practitioner ” within the meaningof that term in section 65 of tho Excise Ordinance.
Amarasekera v. I.rbha (1914) 17 N. L. It. 321, followed.
j^^.PPEAL from a judgment of the Magistrate’s Court, Panadure.
H. W. .Jayewardcne, for the accused appellant.«
N. TiUawella, Crown Counsel, for the Attorney-General.
Cvr. adv. vttll.
March 9, 1953. Swan J.—-
The appellant was charged with having without a licence from theGovernment Agent, W. P., (1) manufactured an excisable article, (2)established and worked a brewery to manufacture an excisable article,
possessed materials, utensils, implements and apparatus for thopurpose of manufacturing an excisable article, (4) bottled an excisablearticle for sale, (5) possessed an excisable article and (6) kept and exposedfor sale an excisable article in breach of Sections 14 (a), 14 (d), 14 (e),14 (/), 44 and 17 of the Excise Ordinance—offences punishableunder Sections 43 (5), 43 (e), 43 (/), 43 (h), 44 and 43 (g), of the said Ordi-nance. He was found guilty after trial and sentenced to pay finesamounting to Rs. 400.
The offending liquor was a preparation called “ Kamasan Jeewaneeya ”which on analysis was found to contain 3 to 3-7 % alcohol. Tho factawere not denied, but it was contended on behalf of the appellant that hewas entitled to prepare and sell this stuff as it was a medicinal preparation,
SWAN J.—Fernando v. Qoonewardene
23!)
and that he was a medical practitioner within the moaning of that word asused in Section 55 of the Excise Ordinance. This creates an exemptionin respect of bona fide medicated articles. The Section reads as follows :—
“ Nothing in the foregoing provisions of this Ordinance appliesto the import, manufacture, possession, sale or supply of any bonatide medicated article for medicinal purposes by medical practitioners,chemists, druggists, pharmacists, apothecaries or keepers of dispen-saries ; but the Governor may by notification prohibit throughoutthe Island or within any local area the import, manufacture, possession,supply, or sale of any such article either absolutely or except undersuch conditions as he may prescribe, and the provisions of this Ordi-nance shall thereafter apply to any article so prohibited. ”
The learned Magistrate held that the appellant who is a vederalawithin the accepted meaning of that word did not act bona fide in thepreparation of this so-called medicated article. I am unable to confirmthe learned Magistrate’s conclusion on this point. The evidence, in myopinion, proves the bona fide of the appellant. It was admitted by oneof the prosecution witnesses that he was a vederala in practioe for atleast 12 years. In his evidence the appellant stated that he preparedthis concoction according to an old prescription, and that he used yeastus a preservative. Unfortunately the learned Magistrate apparentlydrawing on his own knowledge thought that yeast was not a preservativebut a basis or nucleus of alcoholic fermentation. The evidence alsoproved that the appellant had carried on the manufacture and sale oftliis medicated preparation quite openly for a number of years. Inthe circumstances I would hold that the learned Magistrate could notand should not have said that this 11 Kamasan Jeewaneeya ” was nota bona fide medicated article. But can the accused claim exemptionunder Section 55 ? That is the crucial question which, however, theMagistrate did not consider.
Section 35 of the Medical Practitioners Ordinance (Cap. 90) provides :—
“ hi any written law, whether passed or made before or after thocommencement of this Ordinance, the words ‘ legally qualified medicalpractitioner ’ or ‘ duly qualified medical practitioner ’ or ‘ registeredmedical practitioner ’ or any words importing a person recognisedby law as a practitioner in medicine or surgery shall be construed asmeaning a medical practitioner registered under this Ordinance.”
ft will be observed that a vederala does not come within the ambitof the term “ medical practitioner ”. Mr. Jayawardene, however,contends that under Section 40 a vederala can claim to be a " medicalpractitioner ”. I do not think so. That Section only makes a con-cession in favour of vederalas. As the side note.says it provides asaving for vederalas ”. If the Section is reproduced the point becomesobvious. I shall therefore do so.
” Nothing in this Ordinance shall make it unlawful for a vederalato practise medicine or surgery according to the indigenous or ayurvedicsystems or prevent him from recovering his charges for services renderedor medicine or goods supplied by him in the course of his practice. ”
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SWAN J.—Fernando e. Qoonetcardenr.
There is a case in point. In Amaraseketa v. Lebbe1 Wood RentonA.C.J. and Pereira J. (Sampayo J. dissenting) held that a vederala wasnot a “ medical practitioner ” within the meaning of that term as usedin Section 55 of the Excise Ordinance. At that time the Medical Practi-tioners Ordinance No. 2 of 1905 was in force. Section 9 of that Ordinanceprovided ns follows :—
“ The words ‘ legally qualified medical practitioner or ‘ dulyqualified medical practitioner or any words importing a personrecognized at law as a practitioner in medicine or surgery, whereused in any Ordinance or regulation, shall be construed to mean apractitioner registered under this Ordinance. ”
The conviction is affirmed but in as much as I take the view thatthe .appellant was acting bona fide in the preparation and sale of thismedicated article I think a nominal punishment is sufficient. I wouldtherefore reduce the sentences to Rs. 25 on count 1 in defaidt 2 weeks’simple imprisonment—Rs. 15 on each of counts 2, 3, 4, 5 and 6 in defaultone week’s simple imprisonment. Subject to this variation the appealis dismissed.
Sentence reduced.
• (1914) 17 N. L. R. 321.