Kerala High Court
Dr.D. Ajaydev vs The Excise Circle Inspector on 8 July, 2013
Author: A.V. Ramakrishna Pillai
Bench: A.V.Ramakrishna Pillai
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
THURSDAY, THE 10TH DAY OF JULY 2014/19TH ASHADHA, 1936
WP(C).No. 26638 of 2013 (D)
----------------------------
PETITIONER:
--------------------
DR.D. AJAYDEV, S/O.DIVAKARAN, AGED 39 YEARS,
WESTERN CLINIC, MARKET JUNCTION,
CHITTAR P.O.,PATHANAMTHITTADISTRICT.
BY ADV. SRI.S.JIJI.
RESPONDENTS:
------------------------
1. THE EXCISE CIRCLE INSPECTOR,
EXCISE CIRCLE OFFICE, BLOCK JUNCTION,
RANNY P.O.,RANNY, PIN - 689 672.
2. THE DEPUTY COMMISSIONER OF EXCISE,
OFFICE OF THE DEPUTY EXCISE COMMISSIONER,
EXCISE DIVISION OFFICE, SANTHOSH JUNCTION,
PATHANAMTHITTA P.O., PIN - 689 645.
BY GOVT. PLEADER SMT.C.K. SHERIN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 10-07-2014, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
rs.
WP(C).No. 26638 of 2013 (D)
APPENDIX
PETITIONER'S EXHIBITS:-
EXHIBIT P1. TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT
DATED 08.07.2013.
EXHIBIT P2. TRUE COPY OF THE APPLICATION SUBMITTED BY THE
PETITIONER DATED 25.07.2013.
EXHIBIT P3. TRUE COPY OF THE LETTER DATED 10.10.2013 OF THE
1ST RESPONDENT.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.A. TO JUDGE
rs.
A.V. RAMAKRISHNA PILLAI, J.
--------------------------------------------------
W.P.(C) No. 26638 of 2013
--------------------------------------------------
Dated this the 10th day of July, 2014
J U D G M E N T
Aggrieved by the rejection of the petitioner's application under Rule 21(a) of the Kerala N.D.P.S. Rules, the petitioner has come up before this Court.
2. The petitioner alleges that he is a registered medical practitioner and a degree holder in medicine. He is running a clinic in the Chittar Town in Pathanamthitta District. According to him, he is running the said clinic for the last two years. Allegedly, he applied for registration under Rule 21(a) of the Kerala N.D.P.S. Rules for possessing drugs allowed to be possessed by a medical practitioner as per Rule 3(2) of the Rules. The grievance of the petitioner is that the 1st respondent, who was not in good terms with the petitioner, gave a negative report on the application submitted by the petitioner and hence, the application was rejected. It is with this W.P.(C) No. 26638 of 2013 ..2..
background, the petitioner has come up before this Court.
3. Arguments have been heard.
4. The learned Government Pleader, on instructions, submitted that it was found that the petitioner was running only a private clinic and the facilities for running a full fledged hospital was not there in his clinic. Rule 2(b) defines 'Approved Practitioner' as follows;
"(b) 'Approved Practitioner' means:-
(i) any person registered as a medical practitioner under the Indian Medical Council Act, 1956 or the Travancore-
Cochin Medical Practitioners Act, 1953 or under any law for the registration of medical practitioners for the time being in force in any part of India, or
(ii) any person registered as a dentist under Dentists Act, 1948 or any Act amending the same or under any law for the registration of dentists for the time being in force in any part of India, or
(iii) any person possessed of qualifications which render him eligible for registration as a medical practitioner or dentist, as the case may be, under any law for the registration of medical practitioners or dentists, for the time being in force in any part of India and who is approved by the Commissioner for the purpose of these rules or of corresponding rules for the time being in force in any part of India; or
(iv) any person registered under the Veterinary Surgeons Act, 1881 or any Act amending or repealing the same or who is a Veterinary Graduate of any of the Indian Veterinary Colleges established under the authority of Government or recognised by Government, or
(v) Any other person engaged in medical, scientific or W.P.(C) No. 26638 of 2013 ..3..
veterinary practice and approved by the commission for the purpose of these rules or of corresponding rules for the time being in force in any part of India."
The petitioner alleges that he comes under Clause (i) of Rule 2(b).
5. Rule 3 deals with 'Possession', which reads as follows;
"Possession.- (1) Any person may possess any manufactured drug other than prepared opium in such quantity as has been at one time dispensed and sold for his use in accordance with the provisions of rule 20 or of the corresponding rules for the time being in force in any part of India.
(2) An approved practitioner may possess for use in his practice, but not for sale, the following quantities of manufactured drugs other than prepared opium:-
(i) Morphine (in all forms) 2
(ii) Codeine (in all forms) 2
(iii) Cocaine (in all forms) 2
(iv) Mathadone (in all forms) 1
(v) Pethidine (in all forms) 2
(vi) Opium (in all forms) 30
(vii) other dangerous drugs - A quantity equivalent to 100 average doses Provided that the commissioner may by special order authorize any such practitioner to possess as aforesaid any of the said drugs in a large quantity."
6. The application by the petitioner was under
Rule 21(a), which reads as follows;
21. (a) Every Registered Medical Practitioner, Registered Dentist or qualified Veterinary Surgeon who wishes to possess or dispense "manufactured drugs" should register himself with the collector of the District.
7. It is relevant to note that if the applicant is an W.P.(C) No. 26638 of 2013 ..4..
approved medical practitioner within the meaning of Rule 2(b); and if he is not excluded as per Rule 4(1), he is entitled to have a licence as envisaged under Rule 21(a). The conditions for excluding the privilege are explained in Rule 4 as under;
"4.(1) The commissioner may be order exclude any approved practitioner from the privilege conferred on him by rule 3 for possessing manufactured drugs other than prepared opium if he, -
(i) has in the opinion of the Commissioner abused such privilege, or
(ii) has committed any breach of these rules, or
(iii) has been convicted of any offence under the Act or under any other law for the time being in force relating to excise, revenue, or
(iv) has been convicted of any criminal offence, or
(v) is for any other reason considered by the commissioner unfit to enjoy the privilege."
8. On a consideration of the above, this Court is of the view that if the 2nd respondent is satisfied that the petitioner is an approved practitioner within the meaning of Rule 2(b)(i) and he is not excluded under Rule 4(1), the petitioner is entitled to have the licence as applied for.
Therefore, this writ petition is disposed of directing the 2nd respondent to verify whether the petitioner is an W.P.(C) No. 26638 of 2013 ..5..
approved medical practitioner as envisaged under Rule 2(b) and also whether he is not excluded as per Rule 4(1) of the Kerala N.D.P.S. Rules. If the 2nd respondent is satisfied that the petitioner fulfills the aforesaid conditions, Ext.P2 application shall be reconsidered and appropriate orders shall be passed.
Sd/-
A.V. RAMAKRISHNA PILLAI, JUDGE bka/-