135-NLR-NLR-V-61-WADOOD-Appellant-and-FERNANDO-Cheif-Preventive-Officer-Respondent.pdf
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Wadood v. Fernando
I960Present: Basnayake, C.J., H. N. G. Fernando, J., and
Sinnetanfby, J.
WADOOD, Appellant, and FEBJSIAHDO (Chief Preventive
Officer), Respondent
8. C. 530—M. C. AvissaweUa, 32341
Excise Ordinance . (Cap. 42)—Section 55—“ Medical practitioner ”—Applicabilityof expression to an indigenous medical practitioner—Indigenous MedicineOrdinance, No. 17 of 1941, s. &—Medical Ordinance, ss. 32, 35, 88.
An indigenous medical practitioner who is not registered as a medical prac-titioner under the Medical Ordinance is not a “ medical practitioner ” withinthe ambit of that expression in section 55 of the Excise Ordinance.
Wadood v. Gooray (1956) 58 ST. L. R. 234, overruled.
BASIN'AYABIE, C.J.—Wadood v. Fernanda
••559
APPEAL, from a judgment of the Magistrate’s Court, Avissawella.This appeal was referred to a Bench of three Jndges under section 48aof the Courts Ordinance.
Colvin R. de Silva, with M. L. SeSilva and A.C. ffl. Uvats, for Accused-AppeQant.
Ananda Pereira, Senior Crown Counsel, with V. S. A. Pullenayegum,Crown Counsel, for Attorney-General.
Cur. adv. milt.
April 8, 1960. Basnayake, C.J.—
The question for decision on this appeal is whether a registered indige-nous medical practitioner is a " medical practitioner ” within the meaningof that expression in section 55 of the Excise Ordinance. This appealfirst came up for hearing before my brother Sinnetamby, but as therewas a conflict between the case of Wadood v. Cooray1 on the one side and thecases of Kone v. lUuhkumbura? and Pulathsinhala v. Fernando8 on theother, he reserved the question under section 48 of the Courts Ordinancefor the decision of more than one Judge of this Court and I made orderunder section 48a constituting the present bench for the hearing of thematter.
The appellant Ahamed Jalal Hadjiar Abdul Wadood is an indigenousmedical practitioner registered in the Medical Register of Practitionersof Indigenous Medicine under section 8 of Ordinance Ho. 17 of 1941and is described in the certificate of registration as an Ayurveda Waidya.He is not a medical practitioner registered under the Medical Ordinance.The charge against him is that he was in possession of an excisablearticle, popularly known as “ Top ”, which has been unlawfully manufac-tured, and that he thereby committed an offence under, section 44 of theExcise Ordinance. It is not disputed that the liquid in the bottlesfound in the appellant’s house came within the ambit of the expression“ excisable article ”, but it is claimed that it is a bona fide medicatedarticle, belonging to the class of Ayurvedic medicines called Arishtayas,meant to be sold for medicinal purposes. In support of that claim abook of Ayurvedic prescriptions has been produced to show that theliquid is an Axishtaya called Dhraksharishtaya. The appellant statedthat the alcohol found in the liquid though not one of the ingredients inthe prescription was added as a preservative. The appellant claimedthe benefit of the exception in section 55 of the Excise Ordinance. Thatsection declares that ” nothing in the foregoing provisions of thisOrdinance applies to the import, manufacture, possession, sale, or supplyof any bona fide medicated article for medicinal purposes by medicalpractitioners, chemists, druggists, pharmacists, apothecaries or keepersof dispensaries ”. It is therefore not an offence for a te medical practi-tioner ” to possess without a licence for medicinal purposes a bona fidemedicated article which comes within the ambit of the expression
excisable article ” as defined in the Excise Ordinance. How, who is
1 {1956) 58 N. L. B. 234.* {1956) 58 N. B. 377.
{1958) 60 JV. L. B. 428.
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BASNAYAKE, C-J—Wadood v. Fernando
a medical practitioner ? That expression is defined in section 68 of theMedical Ordinance thus : “ medical practitioner means a person regis-tered as a medical practitioner under this Ordinance ”. The personsentitled to he registered as medical practitioners under that Ordinanceare described in section 32 which provides :
“ (1) No person shall he registered as a medical practitioner unlesshe is of good character, and either—
(a) is registered or qualified to he registered under the MedicalActs ; or
holds a diploma in medicine and surgery issued hy the CollegeCouncil. ”
The appellant does not claim that he is entitled to he registered underthe Medical Ordinance ; hut he claims that by reason of his being anAyurveda Waidya he comes 'within the ambit of the expression ** medicalpractitioner ” in section 55 of the Excise Ordinance. The expressione£ medical practitioner ” in the Excise Ordinance has been the subjectof interpretation in the case of Amerasekera v. Lethe1. The majorityof the bench of three Judges in that case held that a Vedarala was nota medical practitioner within the meaning of that expression in theExcise Ordinance. Any doubt or difficulty that may have existedat the time of the decision of that case has been set at rest by section 35of the Medical Ordinance which was enacted in 1927. That sectionprovides :
“ In any written law, whether passed or made before or after thecommencement of this Ordinance, the words ‘ legally qualified medicalpractitioner * or ‘ duly qualified medical practitioner ’ or * registeredmedical" practitioner * or any words importing a person recognizedby law as a practitioner in medicine or surgery shall he construedas meaning a medical practitioner registered under this Ordinance
Although the corresponding enactment in force at the time of thedecision of Amerasekera?s case (supra) contained a section (s. 9) whichhad the same effect, it was not couched in such clear and unmistakablelanguage as section 35. Therefore the expression “ medical practitioner ”in the Excise Ordinance can only mean a medical practitioner registeredunder the Medical Ordinance.
An indigenous medical practitioner who is not registered as a medicalpractitioner under the Medical Ordinance is therefore not a “ medicalpractitioner ” within the ambit of that expression in. section 55 of theExcise Ordinance. The case of Wadood v. Cooray (supra) has thereforebeen wrongly decided. We approve the decisions in Kone v. lUukkumbura(supra) and Bulathsinhala v. Fernando (supra). The appellant has beensentenced to pay a fine of Rs. 600 and in default to undergo six months1rigorous imprisonment.
It was urged on Ms behalf that in view of the fact that in Wadood c.Cooray (supra) this very appellant was acquitted in appeal on a similarcharge, the punishment imposed by the learned Magistrate should be
1 (1914) 17 N. L. R. 321.
A ttorney – General v. Memphis
561
mitigated as the appellant acted thereafter in the honest belief that itwas not an offence to manufacture Arishtayas and sell them to hispatients. We think that this submission is not without merit. Weaccordingly reduce the fine from Rs. 600 to a nominal sum of its. 5,in default seven days7 simple imprisonment.
Subject to the variation in the sentence the appeal is dismissed.
H. N. G. Fernando, J.—I agree.
SmyETAATBV, J.—
Having listened to farther and fuller argument on the subject andhaving considered the judgment of my brother T. S. Fernando, J. inBvlathsinghala v. Fernandoi, I agree that the opinion expressed in Wadoodv. Cooray2 is untenable. I am now of the view that the authoritativenature of the decision by the Divisional Bench in Amerdsekera v. Lebbe;3has not been affected by the enactment of the Indigenous MedicalOrdinance, No. 17 of 1941.
I accordingly agree with my Lord the Chief Justice that the term" medical practitioner ” as used in Section 55 of the Excise Ordinancemust be restricted to persons registered nnder the Medical Ordinance.
Appeal mainly dismissed.