Punjab-Haryana High Court
Sarwan Singh Dardi vs State Of Punjab And Ors. on 17 September, 1986
Equivalent citations: AIR1987P&H81, AIR 1987 PUNJAB AND HARYANA 81, ILR (1987) 2 PUNJHAR 292 (1987) ILR 2 P&H 292, (1987) ILR 2 P&H 292
JUDGMENT D.S. Tewatia, J.
1. The petitioner, Dr. Sarwan Singh, has impugned in the present writ petition the action of respondent 4 the District Drugs Inspector, Hoshiarpur, who had prohibited him from keeping in his possession ion any allopathic drug for administration to the patients and who had further directed the chemists not to issue allopathic medicines to such patients as had been prescribed or were to be prescribed such medicines by the petitioner.
2. The case set up in the petition by thc petitioner is that he is a Registered Medical Practitioner and had been so registered with the Board of Ayurvedic and Unani Systems of Medicines, Punjab, respondent 3, vide registration certificate annexure S. l, that by notification dt. 2-10-1967, annexure P. 2, issued under sub-clause (iii) of clause (ee) of R. 2 of the drugs anal Cosmetics Rules, 1945 (for short to bc referred as 'the Drug Rules') made under the; provisions of the Drugs and Cosmetics Act, 1940, hereinafter referred to as the 'Drug Act', the Government of Punjab has declared all Vaids and Hakims who had been registered under the last Punjab Ayurvedic and Unani Practitioners Act, 1949, the Pepsu Ayurvedic and Unani Practitioners Act, '' Bk. and the Punjab Ayurvedic and Unani Practitioners Act, 1%3, as persons practising the Modern System of Medicines for the purpose of Drugs and Cosmetics Act, 1940, in thc State of Punjab; and that the petitioner having been registered under the Ayurvedic and Unani and Indian System of Medicines and Surgery, was in view of the notification Annexure P. 2, entitled to practise Modern System of Medicines.
3. In the written statement filed on behalf of respondents I, 2 and 4, it has been inter alia asserted that thc petitioner was not entitled to practise Modern System of Medicines on the strength of his registration certificate issued to him under that Punjab Ayurvedic and Unani Practitioners Act, 1963 (hereinafter to be referred as the 1963 Act). His registration as Medical Practitioner under the 1963 Act entitles him only to practice the Indian System of Medicine and not the Modern System of Medicine. He is, therefore, not entitled to keep allopathic drugs or to prescribe such drugs to his patients. He can keep and prescribe only Ayurvedic, Siddha or Unani drugs.
4. Whether a person possessing such qualification as would entitled him to practise the system of Indian Medicine commonly known as Ashtan Ayurveda, Siddha or Unani Tibb and to be entitled to be brought on the State register or the Central register of Indian Medicine meant for the Registration of such medical practitioners, would be entitled to practise Modern System of Medicine, is the question of law of some significance that has been raised in the present writ petition.
5. The two systems i. e. System of Modern and Scientific Medicine and the System of Indian Medicine are totally different and independent of each other, and the qualifications requisite for paractising the said two systems of medicine, the manner and mode of acquiring them and other related matters have been dealt with by separate legislations. There are Central Acts, such as the Indian Medical Degrees Act, 1916 and the Indian Medical Council Act, 1956 concerning the system of modern Scientific medicine. So far as the State of Punjab is concerned, there was the East Punjab Ayurvedic and Unani Practitioners Act 2008 Bk., both substituted by Punjab Ayurvedic and Unani Practitioners Act, 1963.
6. Clause (f) of S. 2 of the Medical Council Act, 1956 (hereinafter to be referred as the 1956 Act) defines ''medicine'' as modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery. Clause (h) defines ''recognised medical qualification'' as being of any medical qualifications included in the Schedules. Clause (k) defines ''State Medical Register'' as meaning a register maintained under any law for the time being in force in any State relating the registration of practitioners of medicine. Sub-section (11 of S. 15 provides that the medical qualification included in the Schedules shall, object to the other provisions contained in this Act, be sufficient qualification for enrolment on any State Medical Register. CL (b) of sub-section (2) of S. 15 prohibits age over than a medical practitioner enrolled on a State Register from practising medicine in any State. S. 27 of that 1956 Act authority every person whose name is for the time being borne on the Indian Medical Register to practise as a Medical Practitioner in any part of India.
7. There are parallel provisions in the Indian Medicine Central Council Act., 1970 (hereinafter to be referred as the 1970 Act). Clause (e) of S. 2(1) defines ''Indian Medicine'' as meaning the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha, or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declarer by notification from time to time. Clause (h) defines ''recognised medical qualification'' meaning any of the medical qualifications, including postgraduate medical qualification of Indian Medicine included in the Second, Third or Fourth Schedule. Sub-section (1) of S. 17 entitles person possessing qualifications included in Second, Third and Fourth Schedule to be enrolled on any State Register of Indian Medicine. Clause (b) of sub-section (2) of S. 17 prohibits all person other than a practitioner of Indian Medicine, save as provided in S. 28, who possesses a recognised medical qualification and is enrolled on a State Register or the Central Register of Indian Medicine from practising Indian Medicine in any State.
8. The Schedules to respective Acts prescribing qualifications of a medical practitioner-entitling hi to be registered as such do not import qualifications mentioned in the Schedule of either Act i.e. qualifications mentioned in the Schedule of 1956 Act do not find a mention in the qualifications mentioned in the Schedule of 1970 Act and vice versa.
9. The legal, medical and other professions are covered by Entry 26 of List III--Concurrent List--contained in Schedule VII to the Constitution of India. In view of the provisions of Art. 254 of the Constitution, the provisions of State law on a subject in the Concurrent List on which Parliament the had enacted a legislation, has to conform to the provisions of law enacted by the Parliament. The provisions of the Punjab Ayurvedic and Unani Practitioners Act, 1963, therefore naturally conforms to the provisions of 1970 Act.
10. Clause (a) of S. 2 of 1%3 Act defines ''Ayurvedic System'' as meaning the Ashtang Ayurvedic System and the Siddha, and includes the modernised form thereof. Clause (f) defines ''practitioner'' as renaming a person who practises the Ayurvedic System or Unani System: Clause (i) defines ''registered Practitioner'' meaning a practitioner whose namo is entered in a Register. Clause the defines ''register'' meaning the register of practitioners maintained under S. 14. The register envisaged under S. 14 is in two Parts. Persons possessing qualifications envisaged in sub-section (1) of S. 15 are entitled to have their names entered in Part I of the said register. Persons whose names were entered in Part I or Part II of the Register maintained under the Fast Punjab Ayurvedic and Unani Practitioner us Act 1949 or the Pepsu Ayurvedic and Unani Practitioners Act, 2008 Bk. before the commencement of 1963 Act were also deemed to be registered in Part I of the register envisaged under section 14 by virtue of the provisions of sub-section (2) of S. 15. Persons since who names were net possessing qualifications specified in Schedule 1 but whose names were entered immediately before the commencement of 1963 Act in the list maintained under S. 34 of the Fast Punjab Ayurvedic and Unani Practitioners Act, 1949 or under S. 33 of the Pepsu Ayurvedic and Unani Practitioners Act, 2008 Bk. and who proved to the satisfaction of the Registrar within a period of 18 months from the commencement of 1903 Act that they were in practice as practitioners on the first day of August, 1963 and would be entitled to have their names entered m Part II of the Register in view of provisions of sub-section (3) of S. 15 were to be deemed to be registered in Part II of the register referred to under S. 14.
11. It deserves highlighting that the qualifications mentioned in Schedule I to 19b3 Act refer to do sad diplomas in the Ayurvedic or Unam System of Medicine only
12. In view of the clear provision in the two Central Acts, namely S. 15, sub-section (2)(b) of 1956 Act and S. 1 sub-section (2)(b) of 1970 Act, no person who is not qualified in the system of Modern Medicine and is not registered as such, either in the State Register or the Central Register, is entitled to practise modern system of medicine. Same is the Case regarding right to practice thc system of Indian medicine namely, that no person who is not of requisite qualification envisaged in the 1970 Act or a like legislation by a State Legislature and as registered as such is entitled to practise the system of Indian medicine.
13. If the matter was to rest here, then et was obvious that the petitioner who is registered under the 1963 Act would not be entitled to practise the Modern System of Medicine that is, he would not be entitled to prescribe modern scientific medicines that is, allopathic drugs, to his patients. But the petitioner is staking his claim to practise, the system of modern scientific medicine on a notification issued by the Punjab Government Annexure P. 2, in terms of sub-clause (iii) of clause (ee) of R. 2. of the Drugs and Cosmetics Rules 1945 framed under the Drugs and Cosmetics Act, 1940 the notification annexure P. 2 is in the following terms:
In exercise of the powers conferred by sub-cl (iii) of clause (ee) of R. 2 of the Drugs and Cosmetics Act, 1940 and Rules there under 1945. the Governor of Punjab is pleased to further declare all 'Vaids. Hakims who had been registered under the last Punjab Ayuavedic and Unani Practitioners Act, 1949 and the Pepsu Ayurvedic and Unani Practitioners Act, 2008 Bk. and the Punjab Ayurvedic and Unani Practitioners Act, 1633, as persons practising the Modern System of Medicines for the purpose of Drugs and Cosmetics Act 1940 in the Punjab State.
This supersedes the Notification No. 104494HBIII-66 30675 dt. the 25th Oct. 1966 and No. 6589-IHB-67. 18149. dt. 30th June, 1967.
The question that falls for consideration is as to whether provision of sub-cl (iii) of cl (ee) of R. 2 of the Drug Rules envisages the issuance of notification. tike annexure P. 2 declaring Vaids/Hakims registered under the Act mentioned in the notification as persons practising the Modern System of Medicines for the purpose of the Drug Act in the Punjab State.
14. Before answer in the question, we might inform ourselves as to what it means to practise. the Modern System of Medicines, which the petitioner has claimed that he is entitled to, in view of the said notification. Right to practise Modern System of Medicine would envisage the right to diagnose the disease and then attempt a cure, inter alia, by administration of drugs and medicines, and to administer an appropriate allopathic drug or medicine, if such a medical practitioner has in his possession; if he does not have, then to prescribe the appropriate medicine to the patient to be purchased from the licensed druggists.
15. Thc capacity to diagnose the disease would depend upon the fact as to whether the medical practitioner had the necessary professional skill to do so. Acquisition of professional skill is again a regulated subject and the measure thereof is the possession of a prescribed Diploma or Degree awarded by a recognised medical institution.
16. What one might enquire in regard-to the right of the petitioner to practise Modern System of Medicine in the fight of the above is as to whether the petitioner is equipped with such a professional qualification. The answer is, obviously, in the negative, as, admittedly, the petitioner does not possess any prescribed Diploma or Degree from a recognised medical institution in Modern System of Medicine. Even a person, who has acquired the prescribed Diploma or Degree from a recognised medical institution would not be entitled to practise Modern System of Medicine, unless he is so registered, for as already noticed earlier, S. 15(2)(b) of the 1956 Act expressly prohibits a person, who is not so registered to practise the Modern System of Medicine. The person, who can be so registered, should have acquired the prescribed qualifications laid down in the said Act. The petitioner, admittedly, does not those qualifications and, therefore, obviously cannot be registered as a medical practitioner in the Modern System of Medicine and, consequently, he cannot practise Modern System of Medicine. The concomitant of this debility is that he cannot prescribe allopathic drugs to his patients and if he cannot prescribe such drugs, he cannot even administer such drugs to his patients on the basis of his own prescription from his own possession and, therefore, he cannot stock or store such drugs for the purpose of administering to his patients.
17. Answer to the question earlier posed has to be given in the context of the legislative history of the Drug Act and the Ruls framed thereunder made, as also the legislative purpose underlying the enactment of the said Act, besides the relevant provisions of the Act and the Rules.
18. The Drug was originally intended regulate the import, manufacture, distribution or sale of allopathic drugs and medicines only. When it was first brought on the Statute book. Ayurvedic and Unani drugs and medicines were not then brought in for regulation of the kind under the Drug Act. Ayurvedic drugs and medicines were brought within the purview of the Drug. Act by the legislature by amending the Drug Act by Act No. 13 of 1964. By S. 2 of the amending Act, cl (a) was added to S. 3 of the Drug Act which defined various expressions occurring therein. Clause (a) defined 'Ayurvedic Drugs and Medicines'. The very section of 1964 Act added clause (aa) which defines the 'Board in relation to Ayurvedic or Unani Drugs. By S. 25 of the amending Act, S. 33A was added to Chap. IV of the Drug Act which provided ''Save as otherwise provided in this Act, nothing contained in this Chapter shall apply to Ayurvedic (including Siddha) or Unani Drugs. ''S. 26 of the 1964 Act added a new Chap. IV A to the Drugs Act, which exclusively related to Ayurvedic (including Siddha) and Unani Drugs. By S. 31 of the I964 Act, the first Schedule was substituted by a new Schedule which enumerated about 83 books dealing with Ayurvedic (including Siddha) system of medicine and 12 books dealing with Unani (Tibb) system of medicine. Homoeopathi drugs and medicine were brought within the purview of the Drug Act by notification No. F. l-35/64-D, dt. 18-8-1964, by which Parts VII-A, IX-A and R. 67-A in part VI-A were added in the Drug Rules.
19. Clause (ee) of R. 2 of the Drug Rules, which defines 'Registered Medical Practitioner' was added for the first time by Government of India notification No. F. l22/59-D, dt. 9-4-1950. This clause had undergone thereafter only two amendments which were effected by Government of India Standing Order No. 2139, dt. 12-8-1972 (Government of India Notification No. X11014/12/72-D, dt. 5-6-1972) and it reads:
''(ee) Registered Medical Practitioner means a person-
(i) holding a qualification granted by an authority or need under S. 3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of I956); or
(ii) registered or in a medical register of a State meant for the registration of person practising the modern scientific system of medicine excluding the Homeopathic system of medicine; or
(iii) registered in a medical register, other than a register for the register for the registration of Homeopathic practitioner, of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purpose of this Act; or x x x x x x'' By thc said 1972 amending notification, the expression excluding the Homeopathic system of medicine' was added at the fagend of sub-clause (ii) of the said clause and the expression other than a registered for the registration of Homeopathic practitioner' was added to sub-clause (iii) after the words 'registered in a medical register' and before the words of a State'.
20. These amendments became necessary in view of the notification of 18-8-1964 abovementioned, whereby the Homeopathic Drugs and Medicines were brought within the purview of the Act and the Rules and the rule-making authority did not wish to include Homeopathic practitioner within the definition of he expression 'Registered Medical Practitioner', which, obviously, was intended to include only the Registered Medical Practitioner of the modern scientific system of medicine, that is, Allopathy.
21. As already observed, Ayurvedic (including Siddha) and Unani drugs, as also Homeopathic drugs, were brought within the fold of the Drug Act and the Rules framed there under in the year 1964. Before that the Drug Act and the Drug Rules only dealt with Allopathic drugs and medicines and the Registered Medical Practitioners in the modern scientific system of medicines, that is, Alloparthy. The two amendments of this clause (ee) defining the 'Registered Medical Practitioner' had been added to R. 2 of the Drug Rules, as noticed above. When clause (ee) was added to R. 2, the Drug Act and the Drug Rules dealt with Allopathic drugs and medicines and the 'Registered Medical Practitioners' thereunder and, therefore, when defining the expression ''Registered Medical Practitioner'' it could not be within their conception to bring Vaids/Hakims-the practitioners of Ayurvedic (Indian) system of medicine and the Homoeopatic practitioners-within the purview of the said expression.
22. The expression 'Registered Medical Practitioner' in clause (ee) of R. 2 of the Drug Rules, Which it sought to define by that clause, envied Medical practitioners of modern system of only. That it is so is made evident by all the sub-clause of the said clause. When the expression 'Registered Medical Practitioner' is read in the context of sub-clause (i) it meant to refer to a holding a qualification granted by an authority specified or notice under S. 3 of the In 'Medical Degrees Act, 19l6 (7 of 1916) or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of I956). Both these Acts prescribe qualifications in the modern scientific system of medicine to the total exclusion of Homoeopathic system of medicine, the Indian system of medicine, that is, Ayusvedic (including Siddha) and Unani of medicines. Sub-clause (ii) of clause (ee) of R. 2 expressly to a person who is registered or eligible to be registered in a State register meant for the registration of a person practising the modern scientific system of medicine (excluding the Homoeopathic system of medicine).
23. Sub-cl.. (iii) of clause (ee) of R. 2 of the Rules, in terms whereof notification'' annexure P. 2, had been issued, could not have been intended by the framers of the said Rules to enable the Government to bring Rules to enable the Government to bring within the purview of he expression ''Registered Medical Practitioner'' the persons holding the qualifications other than those prescribed for the practitioners of the modern scientific system of medicine. In our opinion, the rule-making authority added sub-clause (iii) by way of abundant caution to bring within the fold of the expression 'Registered Medical Practitioner' such practitioners of modern scientific system of medicine, as did not satisfy the requirement of sub-cls. (i) and (ii), but were happened to be registered in a State Register or conceivably could be so registered in future.
24. That the framers of the Drug Rules did not intend to cover, inter alia, practitioners of the Indian system of medicine. that is, Ayurvedic (including Siddha) and Unani system of medicine, within the term 'Registered Medical Practitioner' would become clear when examined in the context of the underlying idea which necessitated the attempt to define the expression 'Registered Medical Practitioner in the Drug Rules.
25. Chapter IV A of the Drug Act exclusively deals with the Ayurvedic 1 including (Siddha) and Unani drugs, while Chap. IV thereof deals with the rest of the drugs and medicines. Sub-section (c) of S. 18 of the Drug Act which is in the following t prohibits all persons, on their own behalf other persons, to manufacture for sale distribution or to sell or stock or exhibit or offer for sale or distribute any drug or cosmetic, except under and in accordance with the conditions of a licence issued for such purpose under Chap. IV of the Drug Act:
''I8. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf-
x x x x x x
(c) manufacture for sale, or sell, or stock or exhibit for sale, or distribute any drug or cosmetic, except under and in accordance with the conditions of a licence issued for such purpose under this Chapter:
x x x x x x'' The only small exception made by first proviso to sub-rule (c) is regarding the manufacture. subject to prescribed condition of small quantities of any drug for the purpose of examination test or analysis. The above provision of S. 18 of the Drug Act, inter alia, prohibits stocking, that is, possession and distribution of the notified drugs, without licence, with the result that none without a licence could purchase the drug from the licensed dealer, as immediately after purchase the drug in question would come into possession and without licence such possession would be illegal Such person may be a patient himself or the may be a 'Registered Medical Practitioner. Therefore to mitigate the rigours of the said prohibition: a provision is made by clause (q) of sub-section (2) of S. 33 of the Drug Act enabling the Government while making rule to provide for the exemption. conditional or otherwise for all or any of the provisions of Chap. IV and of the Drug Rules made thereunder of any specified drug or class of drugs or cosmetic or class of cosmetics. Some of the provisions of the Drug Rules so framed have sought to mitigate the rigour of the prohibition contained in S. 18 (c1. Rule 123. which is in the following terms, exempts the drugs mentioned in Schedule 'K' from the provisions of Chap. IV of the Drug Act and the rules made thereunder to the extent and subject to the conditions specified in 'K' Schedule:
''123. The drugs specified in Schedule room the provisions of Chap. IV of the Act and the Rules made thereunder to the extent and subject to the conditions specified in that Schedule.'' Item 5 of Schedule 'K'. which is in the following terms, envisages exemption from the provisions of Chap. IV of the Drug Act supply of drugs by a Registered Medical Practitioner that his own patients or any drug specific in Schedule 'C' supplied by a Registered Medical Practitioner at the request of another such practitioner if it is specially prepare with reference to the condition and for the use of an individual patient within the conditions prescribed by this item:
''5. Drugs supplied by a registered medical practitioner to his own patient or any drug specified in Schedule C supplied by a registered medical' practitioner at the request of another such practitioner if it is specially prepared with reference to the condition and far the use of an individual patient provided the registered medical practitioner is not (al keeping an open shop or (b) selling across the counter or (c) engaged in the importation; manufacture, distribution or sale of drugs in India to a degree which render him liable to the provisions of Chap. IV of the Act and the Rules thereunder.'' Rule 65 of the Drug Rules prescribes conditions of licence. Sub-rules (2) and (3) of R 65 authorises the license dealer/druggist to supply drugs to a person an the basis of prescription of a registered medical practitioner. Sub-rule (9) of R. 65 not only authorises the licensed druggist to sell by retail the drugs mentioned in that sub-rule on and in accordance with the prescription of a registered medical practitioner. but also ''further authorises him sale or supply the given drugs to a registered medical practitioner without prescription from a registered medical practitioner, that is, a registered medical practitioner can buy from a licensed druggist the drugs mentioned in sub-rule (9) of R. 65 without a prescription from a registered medical practitioner.
26. One of the conditions of licence to sell, stock or exhibit for sale, or distribute by wholesale drugs other than those specified in Schedules C and C(1) as mentioned in Form 20-B, on which the prescribed licence is to be issued, provides that 'no sale of any drug shall be made to a person not holding the requisite licence to sell, stock or exhibit for sale or distribute the drug'. However, cl (b) of the said condition exempts from this condition the sale of any such drug, inter alia, to a registered medical practitioner for the purpose of supply to his patients. Similar conditions exist in Forms 20-BB, 21-B and 21-BB.
27. It may be highlighted that the aforesaid provision of the rule and the conditions of licence deal with the Allopathic drugs only and the same confer certain privileges upon a registered medical practitioner and, therefore, it became necessary to define the expression 'Registered Medical practitioner'. Hence, a comprehensive definition of 'Registered Medical practitioner' was provided in the year 1960 by adding clause (ee) to R. 2 for the first time. Such a definition was not provided in the Act because the term 'Registered Medical Practitioner' did not occur in any of the provisions of the Act.
28. One may, however, be asked as to whether only the licensed dealers dealing in Allopathic drugs or the registered medical practitioner of the modern system of medicine alone needed to be prescribed by the Rules the kind of privilege referred to earlier and not the Hakims/Vaids, that is, the practitioners of Ayurveda (including Siddha) and Unani system of medicine. The answer to the aforesaid question is that they did not, because the provision relating to the Ayaurvedic (including Siddha) and Unani system of medicine in Chap. IV-A of the Drug Act itself did not impose the kind of total ban, as was imposed by the provisions of S. 18(c) of Chapter IV of the Drug Act, as would be presently shown. The provisions in Chap. N-A corresponding to the provisions of on 18 of the Drug Act are Ss. 33-D and 33-E, which are in the following terms:
''33-D. From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf no person shall himself or by any other person on his behalf, manufacture for sale any Ayurvedic (including Siddha) or Unani drug x x x x x x
(c) except under and in accordance with the conditions of a licence issued for such purpose under this Chapter;
x x x x x x Provided that nothing in this section shall apply to Vaidyas and Hakims who manufacture such drugs for the use of their own patients:
Provided further that nothing in clauses x x x x x (c) shall apply to the manufacture, subject to prescribed conditions, of small quantities of any such drug for the purpose of examination, test or analysis.
33-E From such date as may be fixed by the State Government by notification in the Official Gazette in this behalf, no person shall himself or by any other person on his behalf, sell, or stock are exhibit for sale, or distribute, any Ayurvedic (including Siddha) or Unani drug other that that manufactured by a manufacturer licensed under this Chapter.'' A perusal of the aforesaid provisions would show that S. 33-D prohibited, by any person, himself or on behalf of any other person, manufacture for sale any Ayurvedic (including Siddha) or Unani drug, inter alia, except under and in accordance with the conditions of a licence issued for such purpose under Chap. IV-A. The first proviso to the said section exempted Vaidyas and Hakims from the rigour of the provisions of S. 33-D, if they were to manufacture such drugs for the use of their own patients. Provisions of S. 33-E prohibited any person to sell, stock, or exhibit for sale, or distribute any Ayurvedic (including Siddha) or Unani drug other that then manufactured by a manufacturer licensed under this Chapter, that is, this section imposed no restriction on any person to sell of stock or exhibit for sale or distribute any Ayurvedic (including Siddha) or Unani drug manufac-tured by a manufacturer licensed under this Chapter. That means, a licensed dealer/druggist can sell to anybody an Ayurvedic drug manufactured under licence and anybody can purchase such a drug from any licensed dealer/druggist and keep with that the Vaidyas/Hakims, the practitioners of Indian system of medicine, suffer no handicap as a result of S. 33-E unlike the practitioners of the modern scientific system of medicine, as a result of the provisions of S. 18(c) The Vaids/Hakims and their patients and buy any Ayurvedic drug or medicine which has been manufactured under a licence and after purchase, they can keep such a medicine/drug. The Vaids/Hakims can also distribute such medicines without any hence.
29. The Vaids/Hakims also suffer no handicap as a result of the provisions of S. 33 D, because it expressly provides that the Vaids/Hakims can manufacture any Ayurvedic (including Siddha) or Unam drug for the use of their own patients.
30. Since the practitioners of the Indian system of medicine that is Ayurveda (including Siddha or Unam, as a result of the prohibitory provisions of Chap. IV-A of the Drug Act, suffer no handicap therefore the provisions clause S. 33-N, which authorises the Central Government to make rules did not envisage providing for any exemption from the provisions of Chap. IV-A. as had been done by clause (q) of sub-section (2) of S. 33 of Chap. IV of the Drug Act. Since the statute does not authorise the Government, while framing the rules to provide for exemption from the application of the provisions of Chap IV-A, therefore m the Drug Rules the expression Hakim or Vaid or the expression prescription by Hakims or the Vaids or the practitioners of the Indian System of Medicine does not occur any where.
31. Viewed from any angle the framers of the Drug Rules did not intend to bring Hakim or Vaids the practitioners of the Indian System of Medicine registered as such under the Act mentioned m notification annexure P 2 within the purview of the expression Registered Medical Practitioner because if such registered practitioners of the Indian System of Medicine are held to fall within the category of Registered Medical Practitioner of Modern Scientific System of Medicine by virtue of the notification. annexure P 2, issued an terms of sub-clause (iii) of Clause (ee) of R. 2 of he drug Rules, then the licensed druggists cannot refuse to dispense allopathic drugs and medicines on the prescription issued by such Registered Medical Practitioner of the Indian System of Medicine and further such a practitioner can buy allopathic drugs without a prescription from a licensed druggist. The rule-making authority, in our view, could not have intended by adding sub-clause o (iii) of clause (iii) of R. 2 of the Drug Rule that the Registered Medical Practitioners of the Indian System of Medicine should he included in the category of the Registered Medical Practitioners of Modern Scientific System of Medicine entailing the aforementioned consequences, besides setting at naught the provisions of the Indian Medical Council Act of 1956. which prohibits persons other than those who were registered under that Act from practising the Modern System of Medicine. We are, therefore clearly of the opinion that the notification annexure P. Z, issued by the State Government is ultra vires the provisions of sub-clause (iii) of clause (ee) of R. 2 of the Drug Rules and is. therefore. illegal and we. therefore, quash the same, as no such notification could legally be issued by the State Government. The petitioner, on the strength of that notification. therefore, cannot be treated in law as Registered Medical Practitioner of Modern Scientific System of Medicine. Hence, he is not entitled to practise I Modern Scientific System of Medicine and the impugned action is clearly justified.
32. The petitioner referred to us single Bench decision rendered in Civil Writ No. 6308 of 1975 decided on 10-11-1982: (Reported in AIR 1983 Punj & Har 236). This Judgment, in our view. can be of no help to the petitioner. The facts of that case were that drug licence of the petitioner there was suspended for having violated the provisions of R. 65(9) of the Drug Rules be. selling drugs on a given date for a give amount to Shri Deep Chand son of Sri Prem Chand Gupta of Bahadurgarh. In the petition, it was alleged that Deep Chand Gupta was duly registered in Haryana State as a Medical Practitioner The only contention raised on behalf of the State was that the petitioner could supply medicines to a Registered Medical practitioner who was registered in Punjab State. There, in was nobody s case that Deep Chand Gupta was a Registered Medical Practitioner the Indian System of Medicine and. therefore. the petitioner was not entitled to sell medicines to him. The only narrow question that came up for consideration before the Court in that petition was whether sub-clause (ii) of clause (ee) of R. 2, read with R. 65(9), prohibited sale of the given medicines to a Registered Medical Practitioner who is registered in a State other than Punjab? This Court held that it was not necessary that the buyer Registered Medical Practitioner should have been registered in the State of Punjab to be entitled to buy drugs in question from a licensed druggist of Punjab. The case proceeded on the assumption that if Deep Chand Gupta had been registered in Punjab, then the licensed druggist could have sold the drugs in question to him in view of the provisions of sub-sec (9) of R. 65.
33. The petitioner, however, placed strong reliance on the Singh Bench decision of this Court rendered in Criminal Revn. No. 1617 of 1984, Phool Singh v. State of Haryana annexure P. 3 decided on 20-9-1985. Reported in (1986) 1 Chand LR (Cri) 405. The facts of that case were that the petitioner therein had stocked 23 kinds of allopathic drugs for administration to his patients. He was convicted under S. 27(a)(ii)-to regorous imprisonment for three months and for a further rigorous imprisonment of six months under S. 28 of the Drug Act. The case pleaded by him was that he held a certificate of registration from the State Ayurvedic and Unani Medical Council, Bihar, and was duly registered as such in Bihar and that by virtue of Schedule 1 to the Punjab Ayurvedic and Unani Practitioners Act, 1963, everybody, who was holding a degree or diploma of any Ayurvedic or Unani College recognised by thc faculty within Punjab or outside would be eligible for being registered as a medical practitioner in the States of Punjab and Haryana. In view of the above stand of the accused-petitioner, the learned Judge held that he came within the definition of Registered Medical Practitioner and as such he was entitled to keep medicines and could not be held liable for violation of S. 18(c) of the Drug Act and accordingly quashed his conviction and sentence. With respect, we do not subscribe to the views of the, learned single Judge. On the strength of registration under the 1963 Act, a medical practitioner of the Indian System of Medicine is not entitled to keep allopathic drugs in this possession and administer them to has patients. In the case before the learned single Judge, the accused has not taken shelter even behind any notification of the State Government. like annexure P: 2 in the case before, and. therefore, the accused in that case: did not have even a semblance of case that court warrant his acquittal. We, therefore, overrule the ratio in Phool Singh's case (supra). to the extent indicated above.
34. For the reasons aforementioned, we find no merit in this petition and dismiss the same in liminc with no order as to costs.
D. V. Sehgal, J.
35. I agree
36. Petition dismissed.