087-NLR-NLR-V-58-P.-R.-KONE-Appellant-and-L.-ILLUKUMBURA-S.-I.-Police-Respondent.pdf
1956. Present :K. D. de Silva, J.
P,R. KONE, Appellant-, and L. ILLUKUMBURA (S. I. Police)
Respondent
S. C. 530—M. G. Kurunegala, 21,125
Excise Ordinance (Cap. 42)—Section So—Ayurvedic physician—Is he a “ medicalpractitioner ” ?—Indigenous Medicine Ordinance, No. 17 of 1941, s.9—MedicalOrdinance {Cap. 90), ss. -32, 3£—40, 63.
' A practitioner of indigenous medicine registered under section S of the Indi-genous Medicine Ordinance is not a medical practitioner within the meaning ofthat term as used in section 55 of the Excise Ordinance.'
AXiPPEAL from a judgment of the Magistrate’s Court, Kurunegala.
K.O. KadarajaJt, for the accused-appellant.
P.Wcerasinghe, Crown Counsel, for the Attorney-General.
Cur. adv. vulf.
December 20, 1956. Iv. D. de Silva, J.—
The accused appellant was convicted of two charges under section 44of the Excise Ordinance (Cap. 42) and sentenced to pay a fine of Rs, 50.The first charge was that he did possess an excisable article to wit 3,600drams of “ Jeewananlirtha Asawam ” an unlawfully manufactured liquorwithout a licence. The second charge related to the transport of thesaid 3600 drams of “ Jcewanamirtha Asawam ” without lawful authority.This quantity of “ Jcewanamirtha Asawam ” was contained in 600bottles. The possession and transport of these 600 bottles were admittedby the appellant. He however contended that “ JeewanamirthaAsawam ” is a recognized tonic prepared by Ayurvedic practitionersaccording to prescriptions set out in text books on Ayurvedic Medicine.It was the case of the appellant that the “ Asawam ” in question wasmanufactured by the witness Krislinan who is a registered practitionerof Indigenous Medicines under Ordinance 17 of'1941. It was so set outon the labels which were affixed to the bottles in question. That evi-dence stands uncontradicted. Krislinan also stated that this was abona fide medicated article manufactured by him for the treatment ofrheumatic troubles, piles and nervous disorders. The Registrar of theCollege of Indigenous Medicine deposed to the fact that Krislinanappeared before the Board of Examination set up under Ordinance 17of 1941 and was registered as a practitioner. The learned Magistrateheld that the “ Asawam ” in question was a bona fide medicalpreparation.
On an analysis of a sample of this Asawam ” the GovernmentAnalyst found that it contained 5*8 per cent, by volume of alcohol.Therefore it is an excisable article as defined by provisions of the ExciseOrdinance. It is coneeded by the defence that- no licence or permit wasobtained from the proper authority to manufacture or transport the“ Asawam ” in question. But it was argued that this was not an excis-able article inasmuch as it was a bona fide medicated article to which.section 44 does not appl3'. The appellant seeks to avail himself of the1st part of section 55 which reads :—
Nothing in the foregoing provisions of this Ordinance applies tothe import, manufacture, possession, sale, or supply of any bona fidemedicated article for medicinal purposes by medical practitioners,chemists, druggists, pharmacists, apothecaries or keepers ofdispensaries ; ”
The learned Counsel for the appellant argued that Krishnan who manu-factured this bona fide medicated article was a medical practitioner orat least a keeper of a dispensary as contemplated by section 55. Ifthat contention is correct the appellant cannot be held to have committedan offence. The learned Crown Counsel submitted that the “ MedicalPractitioner ” contemplated by section 55 is a Medical Pi-actitioner regis-tered under the provisions of the Medical Practitioners, Pharmacists andMidwires Ordinance (Cap. 90). Section 32 of that Ordinance providesinter alia that no person shall be registered as a Medical Practitionerunless he,
(a) is registered or qualified to be registered under the Medical Acts,or
holds a Diploma in Medicine and Surgery issued by the CollegeCouncil.
The Medical Acts referred to here means the Medical Act (21 and 22Viet. c. 90) of the Imperial Parliament, and any Act amending thatAct while the “ College Council ” refers to the Cejdon Medical CollegeCouncil. Therefore Krishnan is not a person who is entitled to beregistered as a Medical Practitioner under this Ordinance (Cap. 90).But the term used in sect ion 55 of the Excise Ordinance is “ medicalpractitioner ” and not a registered medical practitioner. Therefore oneis tempted to argue that section 55 of the Excise Ordinance covers awider category of medical practitioners than that contemplated by theMedical Practitioners, etc. Ordinance (Cap. 90). Sections 36, 37 and 39.however refer to a medical practitioner but the next section, i.esection 40 provides :—
" Xothing in this Ordinance shall make it unlawful for a vcderalato practise medicine or surgery according to the indigenous or ayur-vedic systems or prevent him from recovering his charges for servicesrendered or medicine or goods supplied by him in t-Iie course of hispractice. ”
This section would have been superfluous if the term “ medicalpractitioner” contemplated by sections 36, 37, 3S and 39 included a“ vcderala” who is a- practitioner of Ayurvedic medicine. In fact theinterpretation section No. CS states that “medical practitioner” meansa person who is registered as a medical practitioner under the Ordinance.Section 35 provides :—
“ In any written law, whether passed or made before or after thecommencement of this Ordinance, the words/* legally qualified mcd’calpractitioner ” or “ duly qualified medical practitioner ” or “ registered
. medical practitioner ” or any words importing a person recognizedby law as a practitioner in medicine or surgery shall be construed asmeaning a medical practitioner registered under this Ordinance.”
It was held by a bench.of three Judges (De Sampayo A. J. dissenting)in Amarasekera v. Lebbe 1 that a “ vcderala ” is not a medical practitionerwit hin the meaning of that term as used in section 55 of that Ordinance.In that case it was further held that “ chemists, druggists, apothecariesor keepers of dispensaries ” applied only to persons dealing with drugsaccording to modern scientific methods and not to vcdcralas. Thatauthority is binding on me sitting alone. In Fernando v. Gooneicardcne ~Swan J. held that a “ vcderala ” is not entitled to claim the exemptionunder section 55 of the Excise Ordinance. Krishnan who manufacturedthis “ Asawam ” or “ Arislita ” is only a practitioner of indigenousmedicine registered under section 9 of the Indigenous Medicine Ordinance17 of 1041 but he is not a medical practitioner contemplated by section55 of the Excise Ordinance. Hence the Magistrate rightly found theappellant guilty of the charge framed against him.
It- is indeed very ludicrous that the bona fide manufacture of anArislita ” in this country is penalised by law. It is recognised by allpersons who arc even a little acquainted with the Ayurvedic system ofMedicine as practised in this country that “ Arislita ” forms a veryimportant item of its pharmacopoeia. It is widely prescribed in thetreatment of various kinds of diseases. Fermentation is a necessarypart of the preparation of “ Arislita ” as stated by Dr. Wic-kramasinghe,the Registrar of Practitioners of Indigenous Medicine, and consequentlyalcohol is present in it. Therefore whenever an Ayurvedic practitioner,however eminent lie may be, prepares an “ Arislita ” he commits a breachof the Excise Ordinance. That this should be so is most unfortunatein a country where from the dawn of its history, Ayurveda has held.swaj’’ for many centuries. Mahavamsa records that King Panclukabhaya(Circa 246 B. C.) built a lying-in home and a hospital in the cityof Anuradhapura. Can one doubt that “Arislita” was freely prescribedin those institutions ? Rut now the manufacture and possession of thisarticle of medicine contravene the law of the land. Legislation alonecan put an end to this anomalous situation. Undoubtedly effectivesafeguards for the prevent ion of the manufacture of spurious “ Arishtas ”are also necessary.
’ In the circumstances of this case it would be sufficient to impose anominal fine on the appellant. Accordingly I affirm the conviction andreduce the fine to Rs. 5.
Conviction affirmed.Sentence reduced.
(tOU) 17 -V. L. It. 321.
5 (1033) oO V. L. ?3S-.