Delhi District Court
Delhi Bhartiya Chikitsa Parishad vs . Manoj Kumar on 30 January, 2016
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IN THE COURT OF DR. PANKAJ SHARMA, METROPOLITAN
MAGISTRATE01, DWARKA COURTS, DELHI
CC No.73/1/12
PS Palam Village
U/S : 190Cr.P.C. & u/s 31 of Delhi Bhartiya Chikitsa Parishad Act, 1998
Delhi Bhartiya Chikitsa Parishad Vs. Manoj Kumar
U.ID No. 02405R0202972010
Date of Institution 31.08.2010
Name of the Complainant Delhi Bhartiya Chikitsa Parishad
C.S.C.III, D.D.A. Market, BBlock,
Preet Vihar, Delhi110092
Through its Registrar
Name and address of accused Manoj Kumar
s/o Sh. Rameshwar Singh
r/o WZ24A, Raj NagarII,
Palam Colony,
New Delhi110045.
Charge framed against accused U/S 29/30 of Delhi Bhartiya
Chikitsa Parishad Act
Plea of accused Pleaded not guilty
Final Order Acquitted
Date of reserve for orders 21.01.2016
Date for announcing the orders 30.01.2016
Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar
CC No.73/1/12
UID No. 02405R0202972010
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JUDGMENT
The brief facts and pre trial procedure
1. The brief facts set out in the complaint are that on 08.07.2010, the Parishad through its Anti Quackery Team constituted by Dr. A.P. Sharma, Dr. Vinit Verma, Dr. A.K. Singh, Dr. Pramod Kumar Sharma, Dr. S.R. Singh, Dr. Kuldeep Raj, Dr. P.K. Jha, Dr. Kush Miglani inspected the area falling within the jurisdiction of Police Station Palam to ensure that no unqualified person was practicing Indian System of Medicine in NCT of Delhi and it also raided the premises of the accused situated at WZ24A, RajnagarII, Palam Colony, New Delhi45 and found the accused practicing Indian System of Medicines therein. The accused was asked to produce his registration with Delhi Bhartiya Chikitsa Parishad and also his medical qualification but the accused failed to produce any certificate of his registration with Delhi Bhartiya Chikitsa Parishad or any certificate of recognized medical qualification to practice Indian System of Medicine. However, the accused signed Proforma A giving therein the details that he has been doing medical practice at the above said address for the last 20 years and he is metric pass and is registered with AMG NAMC and he prescribes Ayurvedic type of medicines and also some medicines to his patients. The accused also produced photocopies of certificate of proficiency and other documents, pertaining to his job. Thus, the present complaint has been filed against the accused.
2. Pre summoning evidence was not required to be recorded in this case since the complaint has been filed by the Registrar of the Delhi Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 3 of 16 Bhartiya Chikitsa Parishad against the accused for wrongfully practicing Indian System of Medicines and the Registrar of the above body is a public servant within the meaning of Section 16(9) of the Delhi Bhartiya Chikitsa Parishad Act.
3. Thereafter accused was summoned for offence u/s 30 of Delhi Bhartiya Chikitsa Parishad Act. On his appearance matter was fixed for pre charge evidence.
In pre charge evidence, Dr. Gausia Banu was examined as CW1 and Dr. A.P. Sharma was examined as CW2 and on 09.01.2013 pre charge evidence was closed on behalf of complainant.
CW1 Dr. Gausia Banu in her pre charge evidence reiterated the facts of the complaint and got exhibited photocopies of various notices published in newspaper as Ex.CW1/1 to Ex.CW1/9. He deposed that on 19.08.2010 one Mr. Farat Umar was the Registrar of Delhi Bhartiya Chikitsa Parishad. She further identified the signatures of Dr. Farat Umar on the complaint Ex.CW1/10 as well as on other documents. CW1 further reiterated the facts mentioned in the complaint.
In her cross examination, she denied the suggestion that there is no document on record which makes accused criminally liable. She further denied the suggestion that accused was not practicing in ISM at the time of raid.
CW2 Dr. A.P. Sharma in his pre charge evidence deposed that on 08.07.2010 an Anti Quackery Team of the Parishad consisting of him Dr. Vinit Verma, Dr. A.K. Singh, Dr. P.K. Jha and Dr. Kush and some others Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 4 of 16 inspected the area falling within the jurisdiction of PS Palam Village to ensure that no person is practicing in ISM without being registered with the Parishad. They also inspected the clinic premises of the accused Manoj and he was found practicing in ISM and accused was asked to produce his registration certificate with the Parishad but the accused could not produce any such certificate. CW2 further deposed that accused produced some photocopies of certain documents which were taken from him and the accused also filled up a Proforma A Ex.CW1/11 and the accused was found practicing in ISM without having registration with the Parishad.
4. Thereafter, charge u/s 29/30 of Delhi Bhartiya Chikitsa Parishad Act was framed against the accused on 11.04.2013.
5. After framing of charge, the matter was fixed for post charge evidence. In post charge evidence Dr. A.P. Sharma was examined as CW1, Dr. Gausia Banu was examined as CW2 and Dr. Farat Umar was examined as CW3.
In cross examination, CW1 Dr. A.P. Sharma denied the suggestion that on 08.07.2010 he had not accompanied the anti quackery team of the parishad. He further denied the suggestion that he was not a part of inspection team and have not gone to the premises of accused on 08.07.2010 or that he was not found practicing in Indian System of Medicine. He further denied the suggestion that accused was not asked to produce his registration certificate. He affirmed that there is no Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 5 of 16 document in the judicial file which shows that he was a member of the anti quackery team which authorised inspection of persons practicing in Indian System of Medicine.
In cross examination CW2 Dr. Gausia Banu denied the suggestion that she was not working as Registrar of Delhi Bhartiya Chikitsa Parishad since 01.04.2011 or at any time. She further denied the suggestion that on 19.08.2010 Mr. Farat Umar was not the Registrar of Delhi Bhartiya Chikitsa Parishad or that she cannot identify his signatures. She furrher denied the suggestion that complaint Ex.CW1/10 did not bear the signatures of Mr. Farat Umar or that no documents including list of witnesses, the list of documents, vakaltnama and index etc filed with the complaint did not bear the signatures of Farat Umar. She denied the suggestion that she did not show any identity card at the time of recording of her statement. She denied the suggestion that the complaint Ex.CW1/10 did not bear the signatures of Mr. Farat Umar. She further denied the suggestion that there are no signatures of Mr. Farat Umar on the complaint. She affirmed that the public notice dated 05.09.2002 Ex.CW1/1 was not issued or printed in her presence. She affirmed that in the list of witnesses filed along with the complaint, there is no name of the Registrar. She affirmed that form A was not got filled in her presence. She further denied the suggestion that the accused was practicing in ISM in NCT of Delhi. She further denied the suggestion that she cannot identify the signatures of Mr. Farat Umar. She further denied the suggestion that a false and bogus complaint has been filed against the accused.
Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 6 of 16 In post charge evidence CW3 Dr. Farat Umar deposed that he was the registrar of Delhi Bhartiya Chikitsa Parishad from 10.04.2007 to 31.03.2011. He further deposed that on 08.07.2010 an anti quackery team of the Parishad consituted by Dr. A.P. Sharma, Dr. Vinit Verma,Dr. A.K. Singh, Dr. Pramod Kumar Sharma, Dr. S.R. Singh, Dr. Kuldeep Raj, Dr. P.K. Jha, Dr. Kush Miglani inspected the area falling within the jurisdiction of PS Palam to ensure that the person concerned who is practicing in Indian System of Medicines is registered with Delhi Bhartiya Chikitsa Parishd or not. He further deposed that accused was found practicing in ISM at the premises bearing No. WZ24A, Raj NagarII, Palam Colony, New Delhi. CW3 further deposed that he being the registrar of Delhi Bhartiya Chikitsa Parishad filed the present complaint which is Ex.CW1/10 and on the basis of documents submitted by inspecting team. He further deposed that he had put his signatures on the index, list of witnesses, list of documents and the vakalatnama at point A. In cross examination CW3 Dr. Farat Umar affirmed that no document is on record which show that he was the registrar of the complainant at the relevant time. He affirmed that there is no document on record which shows the entry of the anti quackery team was constituted on 08.07.2010 and sent to inspect the area falling within a jurisdiction of PS Palam Village. He further affirmed that there is no such record in the office. He further affirmed that on 08.07.2010 nothing was done in his presence by the anti quackery team to the accused.
5. After recording of post charge evidence, statement of accused was Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 7 of 16 recorded u/s 313 Cr.P.C, when all the incriminating evidence was put to the accused distinctly and separately to afford him an opportunity to explain the circumstances so put to him, where he stated that he is innocent and he has been falsely implicated in this case. He further submitted that he only used to collect blood samples and used to send the same to various labs including City X Ray, Vikas Puri. He further stated that he is retired from Army Medical College as a Nursing Assistant and BTA(Blood Transfusion Assistant). Accused stated that he wishes to lead evidence in his defence, however no defence evidence was led by accused to prove his innocence.
7. During the course of arguments, Ld. Counsel for the complainant submitted that the complaint is filed through Registrar who is competent as per Rule 12 of the Act to institute the complaint on behalf of Delhi Bhartiya Chikitsa Parishad. It is also submitted by Ld. Counsel for the complainant that designation is mentioned in the complaint and Registrar was competent to institute the complaint and name of the registrar was not required to be mentioned in the complaint as per the Act. It is also submitted by Ld. Counsel that in the list of witnesses Registrar is mentioned as first witness. It is also submitted by Ld. Counsel that complainant is a statutory body which can sue as per the mandate of Section 3(2) of the Act therefore, no special need for filing the authorisation of Registrar arises for institution of the present complaint. It is submitted by Ld. Counsel that Mr. Farat Umar was the concerned Registrar who has been examined in this case in post charge evidence. It Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 8 of 16 is submitted by Ld. Counsel that in pre charge evidence although nine witnesses were mentioned in the list of witnesses and the witness were examined was Dr. Gausia Banu who was the registrar at the relevant time. Another witness Dr. A.P. Sharma who was member of the raiding party was examined with Dr. Farat Umar . It is submitted by Ld. Counsel for the complainant that since other witnesses were also part of the raiding party but one witnesses was chosen for his examination as to avoid repetition. It is submitted by Ld. Counsel for the complainant that no document has been filed which could show that a team was constituted for Anti Quackery under supervision of Dr. A.P. Sharma. Ld. Counsel has submitted that as per Section 10 of the Act it is duty, power and function of the Parishad to ensure that no unqualified person practices in Bhartiya Chikitsa(Indian System of Medicines). It is submitted by Ld. Counsel that it is correct that Dr. Farat Umar was not the eye witness but he was the registrar at the relevant time and he was competent to institute the complaint against the accused in this case for practicing not being qualified to practice in the Indian System of Medicines. It is submitted by Ld. Counsel that Anti Quackery Team did not make any person as witness as it is quite likely that people do not become witness to the legal proceedings. Ld. Counsel has further submitted that accused filled the proforma in his own handwriting which is Ex.CW1/11 wherein, he himself on point 5 wrote that he provides first aid medicines allopathic and Ayurvedic. It is submitted by Ld. Counsel that as per Section 2(b) of the Act if a person practices in Ayurvedic Medicines the same falls under the domain of the Act and has to meet the standards made by the Act for Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 9 of 16 being qualified to do so. Ld. Counsel for the complainant has submitted that it is an up hill task to make public persons or police men as witness in these kind of cases as people generally do not volunteer for the same and at times of situation of quarrel/rioting arise at the spot then only witnesses left are the members of the raiding team. It is also submitted by Ld. Counsel for the complainant that no positive evidence or documentary proof has been put forth on behalf of accused that he was a qualified doctor to practice in Ayurvedic medicines. It is submitted by Ld. Counsel for the complainant that factum of raid has been proved which can be inferred from the suggestion put forth to CW2 in his cross examination. Ld. Counsel for the complainant has also stated that evidence on record show that accused was practicing at that time as a Doctor. Ld. Counsel for the complainant has pointed out towards the suggestion which was put to CW2 in his cross examination wherein he denied the suggestion that premises of the accused was not clinic but a lab. It is submitted by Ld. Counsel for the complainant that no evidence has been put forth on behalf of accused to show that same was a lab and as such the suggestion exposes the claim of accused that he was not using the premises as clinic and working there as doctor. It is further submitted by Ld. Counsel for the complainant that another suggestion was put to CW2 in his cross examination wherein the witness denied the suggestion that accused has not written that he is practicing in Ayurvedic in Proforma 'A'. Ld. Counsel has further submitted that proforma A which is Ex.CW1/11 has not been disputed during the trial by the accused which supposes that the handwriting on it is of accused who himself Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 10 of 16 declared in column5 that he practices and gives first aid medicines Alopathic and Ayurvedic. Further it is submitted by Ld. Counsel for the complainant that the suggestion was put to CW1 in his cross examination in post charge evidence wherein he denied that accused was not asked to produce his registration certificate which suggestion show that there remains no controversy on the fact of the raid conducted at the premises of the accused and also the registration certificate has till date not been furnished by the accused during the trial. Ld. Counsel for the complainant has also pointed out towards the cross examination of CW2 in post charge evidence wherein she stated that she cannot comment whether accused was forced to sign form . Simultaneously it is stated that in examination of accused by Court u/s 313Cr.P.C., when Ex.CW1/11 was put to accused specifically and asked that he produced the said Ex.CW1/11 during when he was asked to produce his registration with Delhi Bhartia Chikitsa Parishad and his medical qualification, he stated that same is incorrect. Ld. Counsel has further submitted that the question put to CW2 in post charge evidence in cross examination show that accused was forced to sign form A. However, same was completely denied by accused in his statement before the Court u/s 313 Cr.P.C. on 11.03.2015 which is termed by Ld. Counsel for the complainant as self contradictory and self explanatory.
8. Per Contra, Ld. Counsel for the accused apart from his written submissions has submitted that merely because public notices were published in newspapers do not certify the position stated in the public Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 11 of 16 notices which instead should be documented and proved before the Court or filed before the complaint. It is submitted by Ld. Counsel for the accused that as per the Cardinal Principles of Criminal Jurisprudence, the prosecution or the complainant has to adduce evidence and on the strength of evidence complicity of the accused can be proved if it is beyond the shadows of doubt. It is also submitted by Ld. Counsel for the accused that the burden of proving the case in criminal cases is always on the prosecution and any benefit of doubt arising owing to investigative lapses or otherwise shall always goes to the accused. Ld. Counsel for the accused has pointed out to the cross examination of CW1 in post charge evidence wherein he categorically stated that no document is on record which could authorise him or members of Anti Quackery Team to inspect any shop or any practicing doctor in Indian System of Medicines and he affirmed that no document is filed which authorises the Anti Quackery Team to inspect and raid the accused shop. Ld. Counsel for the accused has submitted that no public person, police personnel was examined on behalf of complainant in support of their case and also no prescription slip or patient who was examined or treated by accused produced before the Court for his deposition. He has further submitted that no Ayurvedic medicines were seized showing that accused was practicing or administering Ayurvedic medicines to the patients or general public. Ld. Counsel for the complainant has further point out towards the evidence of CW2 in post charge evidence wherein in her examination she stated that no documentary evidence is on record to prove that she was working as Registrar of Delhi Bhartia Chikitsa Parishad on 01.04.2012 or at the Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 12 of 16 time of raid.
9. Arguments heard. Record perused carefully.
10. The Ld. Counsel for the accused has pointed out several holes in the prosecution case terming them to be fatal to their case.
11. The first argument raised on behalf of accused was that no documentary evidence has been filed with the complaint to show that who was the Registrar at the time of the raid on the premises of the accused, to this argument it is observed that the complaint was filed by Delhi Bhartiya Chikitsa Parishad, which is a statutory body and the Registrar is competent to file a complaint on its behalf and Registrar is deemed to be public servant in view of Section 16(9) of the Delhi Bhartiya Chikitsa Parishad Act 1998, and in pre charge evidence Dr. Gausia Banu was examined as Registrar who held the position of Registrar from 01.04.2011 and in post charge evidence Mr. Farat Umar was examined who was Registrar of Delhi Bhartiya Chikitsa Parishad on 19.08.2010 when the present complaint was filed, and non examination of Mr. Farat Umar in pre charge evidence may be an irregularity which do not go to the root of the prosecution case.
12. With respect to the another contention raised on behalf of accused that despite several doctors were part of the raiding party only one doctor was examined, to this it is observed that Dr. A.P. Sharma was examined by Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 13 of 16 the prosecution, despite raiding team consisting of eight doctors, which fact alone is not capable of dismantling the case of the prosecution as it is the quality of the evidence which matters and not the quantity. If one witness is capable of inspiring the confidence of the Court by his trustworthy testimony, the prosecution case cannot be thrown for non examination of other witnesses.
13. Further contention raised on behalf of accused was that no document is on record which could authorise Dr. A.P. Sharma and other doctors to raid the premises of the accused, to this it is observed that no such document has been produced by the prosecution to show that Dr. A.P. Sharma along with other members of the raiding team were authorised by the complainant to raid his premises, as such the arguments raised by defence appears to be reasonable.
14. Further, argument raised regarding the fact that prosecution has not produced any evidence to show that accused was administering Ayurvedic Medicines or prescribing Ayurvedic Medicines in contravention of the Delhi Bhartiya Chikitsa Parishad Act by way of producing any prescription slip purportedly issued by the accused or by examining any patient who purportedly was being treated by the accused at the relevant time with the use of Ayurvedic Medicines or any seizure of any Ayurvedic Medicine from his premises, to this argument it is observed that the prosecution did not produce any prescription slip or seized medicines from the premises of the accused and further no person Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 14 of 16 was examined who could say that accused administered him Ayurvedic medicines for any ailment or treatment which fact gives credence to the arguments of Ld. Counsel for the accused.
15. Another contention which was raised by Ld. Counsel for the accused that no public person was produced in evidence by the prosecution to substantiate their version, to this fact it is observed that prosecution lacks independent corroboration.
16. All prosecution has relied upon that a raid which was conducted by Dr. A.P. Sharma and others where accused was found practicing in Ayurvedic medicines in contravention of Delhi Bhartiya Chikitsa Parishad Act. Although examination of Registrar of Delhi Bhartiya Chikitsa Parishad at the time of institution of complaint in pre charge evidence may be a minor defect or irregularity but in criminal trial the prosecution has to stand on its legs by adducing evidence which is capable of proving the guilt of accused in the Court of law and which in this case were absent. The prosecution has to produce the evidence which is supportive of their case and which requires seizure of things, articles, medicines, prescription slips, records, video footage of the place of occurrence of offence and other evidence related to, facts and circumstances which are totally ignored in this case. The Delhi Bhartiya Chikitsa Act 1998 does not provide for the seizure of things during raid which shows that the Act lacks teeth for effective prosecution of offenders of persons involved in quackery. To substantiate a case prosecution need not only to prove raid Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 15 of 16 but produce cogent evidence in the form of seized articles, witness etc. Theses quacks pose a great threat to society and if these unscrupulous people would be allowed to go free due to toothless prosecution, same would be detrimental to the interest of general public and beneficial to these offenders. The medical profession requires specialized education and authorisation to practice from competent authority and in the absence of both the quacks in the society will grow and would destroy the faith of the general public in the field of medicine as they are bound to commit serious mistakes due to lack of competence which would result in deaths and other related problems to the innocent people.
17. Be that as it may, the Court after careful consideration of the evidence on record finds that prosecution has not been able to prove its case beyond the shadows of doubt owing to investigative lapses by raiding party which though acted like an investigative agency but did not do enough to present a formidable prosecution. All the raiding party had done is to obtain a Proforma A for Anti Quackery Drive Strengthening of Surveillance Work, filled from the accused and a declaration from him that he provides first aid medicines in Allopathy and Ayurvedic medicines. Investigation remains incomplete if the evidence are not collected and produced before the Court.
18. It is apparent that the accused served in Army Corps as medical assistance and was not having any requisite qualification to act like a doctor and administer medicines to the patients but due to lack of any Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010 16 of 16 evidence against him owing to investigative lapses like seizure of documents, medicines, records, footage, photographs, the same has dented the prosecution case in entirety.
17. Further, the quackery in the society is on a rise where unscrupulous people start practicing in Allopathy and Ayurvedic medicines which may at times take lives of the innocent persons as in this case the accused is also facing trial for offence u/s 304 IPC where a child died after the accused herein administered him some injection. The toothless law would help and encourage these people more rather than to stop quackery. Suspicion however strong cannot take place of proof. And as per settled principles of the criminal justice system the prosecution is obligated to provide evidence against the accused before the Court for bringing home his guilt.
Conclusion After careful perusal of entire material on record and careful consideration of the arguments advanced on behalf of defence, this Court is of considered view that prosecution case suffers from major investigative lapses and in view of insufficient evidence on record, Court accords benefit of doubt to the accused and accordingly acquits the accused for the offence charged for. Accused is directed to furnish bond in terms of Section 437 A of Cr.P.C.
Announced in the Open Court on this 30th day of January 2016 (Dr. PANKAJ SHARMA) MM : Dwarka : Delhi Delhi Bhartiya Chikitsa Parishad v/s Manoj Kumar CC No.73/1/12 UID No. 02405R0202972010