Present: Bertram C.J.
THE KING v. EATNAM et al.
177—D. C. (Grim.) .Negombo, 3,351.Medical Registration Ordinance, ss. 19 and 20—Practising for gain-Dispenser giving advice free—Burden of proof that a person is avedarala.
The accused opened a pharmacy at Minuwangoda and stocked.it with dragssuch – as wonldbe nsed ina dispensary.He examined
a carter whocame to theestablishmentwith injuriesin hisleg,
dressed the wounds, and charged Bs. 2. It was further provedthat at other dates villagers came in and informed the accused thenatureof their ailments,wereexamined,receivedadvice,and were
given drugsin accordancewith . thatadvice, forwhichthey
paid various small sums. '
Held, thatthe accusedhadcommittedan offence under section
19 of Ordinance No. 2 of 1905.
Theburdenof provingthatthe accused camewithinsection 20
of the Ordinance (was a vedarala) was on the accused.
Evenif adispenser was toput upa noticeat his. dispensary
■' advice gratis, ’ and if upon that advice, for which nospecial
charge was made, he sold medicines and made a profit out of themedicines so sold, he wouldbe -practising for gainwithinthe'
meaning of the Ordinance. ”
rp'HE facts appear from the judgment.
Janae, G.G., for the Crown.—The accused pleaded that theycame under the exception in section 20 of Ordinance No. 2 of 1905.The burden of proving that they came under this exception is onthem. Evdence Ordinance, section 105. The MuddLiyar, PitigalKorale North v. Kiri Banda,.1
It has been proved that the accused did more than dispensemedicine on prescriptions.
J. Joseph (with him Spencer Rajaratnam), for the respondents.—The only fact proved against the accused is that they had dressedthe wounds of a carter.
The essence of the offence under the Ordinance is that a separatevalue must he set upon the personal skill of the practitioner. Itis not proved that the accused charged for their advice tovillagers.
November 27, 1919. Bebtbam C.J.—
This is an appeal by the Grown against' 'the judgment of theDistrict Court of Negombo. It is conceded by the defence that thejudgment cannot be supported on the grounds put forward by thelearned District Judge, The charge , is an offence under section 19of Ordinance No. 2 of 1905. The accused were charged withpractising medicine for gain without being registered under theOrdinance. It was proved that they had opened an establishment inthe village or town of Minuwangoda under the name of “ The IndianPharmacy,” and that for the purpose of that establishment theyhad obtained from some of the principal establishments in Colomboa selection of the ordinary drugs used at pharmacies, and the offencecharged against them would appear to be in connection with drugsof the character so obtained.
The learned Judge took the view that it was for the Crown toshow that this establishment did not come within section 20, thatis to say, that the persons carrying on were not practising medicineaccording to native methods. In other words, that it was for theCrown to prove that the accused persons were not practising asvederalas.
It is unnecessary fully to discuss this contention. It is clearfrom section 105 of the Evidence Ordinance* No. 14 of 1895, thatit is for the accused to prove the existence of any circumstance onwhich they rely to bring themselves within the benefit of section 20.But even if this were not the case, the very circumstances themselvesshow that this case is not within the exception. A Court is alwaysentitled to take into consideration the ordinary knowledge ofeducated men. It is obvious, without any argument, that the
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persons who were selling or dispensing the drugs' enumerated intheir various orders to Messrs. Cargills and Apothecaries were notpractising as vederalas.
I come, therefore, to consider the question on the facts. The evi-dence shows that the two accused in this case are persons whoobtained experience in a doctor’s dispensary, and that they haveestablished in the village what is in effect a dispensary of their own.It was stocked with such drugs as would be used in a dispensary, andthese drugs were ordered in considerable quantities obviously with aview to their being dispensed in smaller quantities. The pharmacywas not an- ordinary chemist’s shop stocked with .patent medicinesand drugs made up for sale. It also appears that the inhabitants ofthe place were seen from time to time proceeding to the establish-ment and bringing away medicines. Now, of course, the medicinesmight, have been medicines obtained upon tire prescription ofmedical practitioners. It was quite possible that the businesscarried on at this pharmacy—had the evidence gone no furtherthan this—was of persons dispensing medicines upon such pre-scription.
But in this particular case charged in the indictment, what hap-pened was that a carter who had sustained an accident came into thepharmacy with injuries to his leg. The first accused examined theinjuries and dressed the wounds, and charged the carter Us. 2.It is further proved that at other dates villagers came in andinformed the accused of the nature of their ailments, were examined,received advice,. and were given drugs in accordance with thatadvice, for which they paid various small sums. The evidencerelating to these subsequent dates is only evidence of system. Butit throws light upon what happened on March 28. The onlyconclusion I can draw from these facts is that the accused werecarrying on a dispensary in the village, at which they examinedpatients, to whom they sold drugs in accordance with what theyconsidered the requirements of the patients.
In my opinion this was contrary to the policy of the Ordinance,and is the very state of affairs which section 19 was passed tomeet.
Mr. Joseph, in the argument he has submitted, has maintainedthat it is of the essence of the offence that a separate value shouldbe set upon the personal skill of the practitioner. I am not able totake that view. It seems to me that, even if a dispenser was toput up a notice at his dispensary " advice gratis,” and, if uponthat advice, for which no special charge was made, he sold medicinesand made a profit out of the medicines so sold, he would be practising'for gain within the meaning of the Ordinance. It is, of course, notpossible for a person who carries on a chemist’s business to refusefrom time to time to give incidental advice to customers seeking it.It is possible-that in tendering that advice he does commit a technical
offenoe. The Legislature has ipade it a penal offence to practisemedicine for gain. It has not provided for cases in which chemistsgive such incidental advice. I should be sorry, that anything thatI have said would prevent qualified chemists from giving from timeto time few words of advice to their customers on simple mattersknown to ordinary qualified chemists. But here we have somethingmore than that. The evidence discloses a definite case of a dis-.pens ary .carried on for gain. I have no doubt that the accused inso carrying it on did not intend to break the law. But if theywere allowed to maintain an establishment of this sort, the policyof the Ordinance would be defeated. I think it is necessary thata small fine should be imposed as a warning. I, therefore, reversethe judgment of the learned District Judge. I amend the indict-ment, restore it to its original form, conviot the accused, and sentencethe elder, the first accused, to- a fine of Bs. 20, and the secondaccused to a nominal fine of Be. 1. It is understood that thesefines are imposed as a warning, and that if the accused still persistin carrying on a business of this nature, the case 'will be one callingfor more severe penalties.
Judgment set aside, and accused convicted-
THE KING v. RATNAM et al