107-NLR-NLR-V-17-AMERASEKERA-v.-LEBBE.pdf
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[Full Bhnch.]
Present : Wood Benton A.C.J., Pereira J., and De Sampayo A.J.AMEBASEKERA «. LEBBE.
602—P. 0. Panadure, 46,403.
Excise Ordinance (No. 8 of 1912), ss. 18 and 55—Medical practitioner—Is vedarala asmedical practitioner t—Possession or sale of" lagitm ”—Oanja.
Per Wood Kentoh A.C.J. and Pbbeika J. (dissentients Db^ Sampayo A.J.)—A vedarala is not a medical practitioner within themeaning of that term as used in section 55 of the Excise Ordinance(No. 8 of 1912).
The possession or sale of lagium—an article containing ganja—by a vedarala is not protected under section 56 of the Ordinance.
Per Fall Court.—Notification No. 26 published in the Gazetteof February 18, 1914, does not take away the privilege given tomedical practitioners under section 56.
T
HIS was an appeal against an acquittal. The facts are setout in the judgment of Wood Benton A.C.J.
van Langenberg, K.C., 8.-G. (with him Mahadeva, C.C.), for theappellant.—The notification No. 26 published in the Gazette ofFebruary 13, 1914, prohibits absolutely the possession of any articlecontaining ganja.
The notification refers to all persons. Medical practitionersare not excluded.
.[Wood Benton A.C.J.—The notification is made under section16 (3) of the Excise Ordinance, and not under section 55.] It isnot necessary to quote the section at all in the notification. Thelatter part of section 55 refers to all notifications under the Ordinance.
The larger prohibition involved in notification No. 26 mustinclude the less.
•
When the notification says that no article containing ganja maybe possessed or sold, it includes medicated articles as well.
'[Wood Benton A.C.J.—Section 55 refers to the prohibition ofmedicated articles under certain conditions, and not absolutely.]There is nothing to prevent the Government putting an almostimpossible condition and thus making it an absolute prohibition.
A vedarala iqi not a medical practitioner. The term “ medicalpractitioner ” is not defined in the Ordinance. ' If vedaralas areto be classed among medical practitioners, then apothecaries, &c.,who have been refused registration, will claim to be medical practi-tioners for the purposes of this Ordinance. The term “ medical
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practitioner ” is used in the section along with chemists, druggists,apothecaries, &o., and should be giaen a meaning to suit the context.We do not hear of chemists and druggists among those practisingor manufacturing native medicine.
Counsel referred to Jansz v. Usubu Lebbe.1
A. St. V. Jayewardene (with him Talaivasingkam), for therespondent.—[Their Lordships wished to hear counsel for therespondents on the question whether a vedarala is a medical practi-tioner.] In Ordinance No. 4 of 1878, section 13, the term “ medicalpractitioner ” is Used, and the term was interpreted in Jansz v. UsubuLebbe1 to include a vedarala. Where the .Courts have given aninterpretation to a word, that meaning must be given to that wordin a subsequent enactment. Maxwell 46,433.
The term “ medical practitioner ” should not be taken to mean a“ registered medical practitioner.” A vedarala is defined in theOpium Ordinance as a person who practises medicine accordingto native methods.
Counsel cited Encyclopedia of the Laws of Englandt vol. IX.,p. 176; Halsbury’s Laws of England, vol. XX., para. 846; 406—P. C. Batticaloa* 36,274.2.
Cur. adv. vult.
August 5, 1914. Wood Renton A.C.J.—
This is an appeal by the Solicitor-General against the acquittalin the Police Court of Panadure of the accused, the respondent,on charges of having been in possession of, and of having sold,lagiurftr in contravention of section 16 (3) of the Excise Ordinance,1912 (No. 8 of 1912), and Excise Notification .No. 26, published*in the Gazette of February 13, 1914. The appeal came before meoriginally sitting alone. But in view of the difficulty and importanceof the questions raised by it, I thought it right to have it re-arguedbefore a Bench of three Judges.
Section 16 (3) of the Ordinance of 1912 provides that theGovernor in Executive Council may by notification prohibit thesupply to, or possession by, any person or class of persons eitherthroughout the whole Island, or in any local area, of any excisablearticle, either absolutely or subject to such conditions as he mayprescribe.”
Excise Notification No. 26, made by the Governor in ExecutiveCouncil under section 16 (3), '* prohibits absolutely throughout
the whole Island the possession by any person of ganja and
every preparation and admixture of the same.” Section 55 of theOrdinance, however, enacts that nothing in its foregoing provisions“ applies to the import, manufacture, possession, sale, or supply ofany bona fide medicated article for medicinal purposes by medicalPractitioners, Chemists, Druggists, Apothecaries, or Keepers of
* 1C. L. R. 90.*S.C. Grim. Mins., June 29,1914.
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dispensaries; but the Governor in Executive Cduneil may by 1914.notification prohibit throughout the Island or within any local areathe import, manufacture, possession, supply, or sale of any such Kentonarticle, except under such conditions as. he may prescribe, and the A.C.J.provisions of this Ordinance shall thereafter apply to any article so Ameraseherbprohibited."m.£M*
The respondent i6 a native vedarala. For the purposes of hisprofession he possesses and sells lagium, which contains “ ganja,"an excisable article, the possession or sale of which is absolutelyprohibited by Excise Notification No. 26. The respondent hastherefore committed the statutory offences with which he is charged,unless he can bring himself within the benefit of the exception insection 55 in favour of “ the possession (or) sale of any bona fidemedicated article for medicinal purposes by a practitioner." Thelearned Police Magistrate has held that the respondent is entitled tothe benefit of this exception, and has acquitted him. The Solicitor-General appeals. Crown Counsel, in arguing the appeal before mein the first instance, did not contest (and the Solicitor-General onthe second argument adopted the same attitude) the finding of thelearned Police Magistrate, on the evidence, that the article withwhich we are here concerned is "a bona fide medicated articlepossessed and sold by the respondent for medicinal purposes."
The contentions on the part of the Crown were, (1) that therespondent is not a " medical practitioner " within the meaning ofsection 55 of the Excise Ordinance, 1912; and (2) that, even if hewere, Excise Notification No. 26 had absolutely prohibited thepossession or sale of any preparation containing ganja, even bymedical practitioners.
I will deal with the latter of these objections first. ExciseNotification No. 26 purports expressly to be made under section16 (3) of the Ordinance, and not under section 55. I do not thinkthat, where a notification under section 55 is necessary, its placecan be taken by a notification under section 16 (3). This viewis in accordance with the Indian practice under section 71 of theMadras Abkari Act (Act 1 of 1886), from which section 55 of Ordi-nance No. 8 of 1912 is derived. The notifications published underthe Indian section appear, in every case that I have been able toexamine, to contain an express reference to the proviso' in thesection itself, and to state that the Governor in Council is actingunder the powers conferred upon him by that proviso.
Before leaving this part of the case, it may be worth noting,although it is unnecessary to decide the point—and I expresslyabstain from giving an opinion upon it—that the question mightwell arise whether section 55 of Ordinance No. 8 of 1912 in itspresent form authorizes anything but a conditional prohibition.
I come now to consider whether the respondent can fairly be saidto be a “ medical practitioner " within the meaning of section 55
1914.
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Wood
Renton
A.C.J.
Amerasekerav. Lebbt
of the Excise Ordinance, 1912. The cage for the -respondent onthis point may be put as follows. The evidence shows that heis a vedarala of 25 years' standing. The right of vedaralas toexercise their profession is expressly saved by section 20 of theMedical Registration Ordinance, 1905 (No. 2 of 1905), providedthat they do not take or use any name or title calculated to inducethe public to believe that they are qualified to practise medicineand surgery according to modem scientific methods/ This rightwill be seriously interfered with if the possession or sale by vedaralasof medicines containing any admixture. of an excisable article maybe absolutely prohibited under the Ordinance of 1912. Section 55of that Ordinance does not qualify the term “ medical practitioner ”by the use of any language suggesting that registration, or thecapacity to be registered, under the Medical Registration Ordinance,1905, is necessary. The respondent is a medical practitioner infact, inasmuch as he is a person who practises medicine, and Burnside
J., in the case of Jansz v. Usubu Lebbe,1 held that a Moormanpractising in native medicine came within the definition of the termin section 13 of the old Opium Ordinance (No. 4 of 1878), whichprovided that nothing in the Ordinance shall be held to preventany medical practitioner from selling by retail or possessing opiumor bhang bona fide for medicinal purposes. These considerationno doubt possess weight, and 1 was rather impressed by themduring the first argument of the appeal. But there are counterconsiderations which, I think, are entitled to prevail. The respond-ent’s counsel admitted to me that there is no enactment in whichthe term “ vedarala ” has been included by the Legislature in anydefinition* of .medical practitioner. In ordinary parlance I thinkthat the words “ medical practitioner ” would not In this Colonyinclude, a vedarala. It is unnecessary to determine whether thecase of Jansz v. Usubu Lebbe 1 was rightly decided. Since thedate of that decision the Legislature has dealt both with medicalpractitioners and with vedaralas. The Medical Registration Ordi-nance, 1905, clearly excludes a vedarala from the category ofmedical practitioners for the purposes of that Ordinance. More-over, the provisions of section 9 of Ordinance No. 2 of 1905 seemto me to have a direct and important bearing on the question beforeus. That section is in these term: “ The words * legally qualifiedmedical practitioner,’ or * duly qualified medical practitioner,’ or anywords importing a person recognized at law as a practitioner in medi-cine or surgery, where used in any Ordinance or. regulation, shall beconstrued to mean a practitioner registered under this Ordinance.”Whatever may have been the case prior to the Ordinance of 1906,since the date of that Ordinance the term ** medical practitioner ”has itself acquired a statutory significance. The status conferredon vedaralas by section 20 is of a limited character. It carries with 11
11 C. L.R. 90.
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it only the right to practise medicine or surgery according to nativemethods. But the decisive point appears to me to be thik. TheLegislature has again dealt with vedaralas in the Opium Ordinance,1910 (No. 5 of 1910). That Ordinance provides for the registrationof vedaralas, and confers on vedaralas so registered certain rightsin regard to the possession and sale of opium. It expressly definesa vedarala as “ a person who practises medicine or surgery accordingto native methods.” I cannot but think that, with this statutorydefinition before it, if the Legislature had intended that vedaralasshould be regarded as “ medical practitioners ” for the purpose ofsection 55, it would have said so in express language. The re-spondent’s counsel naturally based a strong argument on the absenceof the word “registered,” or some equivalent term in the sectionin question. But the force of that argument is weakened by thefact that the section is taken bodily from .the Madras Abkari Act(Act 1 of 1886), in which no such qualifying description appears.Both sides rely on the words which follow the term “ medicalpractitioner ” in section 55 of Ordinance No. 8 of 1912, namely,” chemists, druggists, apothecaries, or keepers of dispensaries.”The Solicitor-General contended that these words show that onlypersons dealing with drugs according to modern scientific methodswere meant to have the benefit of the exception created by thesection. The respondent’s counsel, on the other hand, maintainedthat as neither chemists, nor druggists, nor apothecaries, nor keepersof dispensaries are-required under the existing law to be registered,it was obvious' that the Legislature intended these words to beinterpreted in their widest sense, and he urged that the same ruleof interpretation should be applied in the case of vedaralas. I agreeon this point with the learned Solicitor-General. There are clearreasons of policy, as well as of law, in favour of the constructionthat I am putting on section 55 of the Ordinance. If the Legislaturethinks fit to do so, it can easily remedy any hardship which thepresent law may cause to vedaralas by providing for their beingregistered under the Excise Ordinance, as it has already enabledthem to be registered under the Opium Ordinance.
The respondent’s counsel at the original argument of this appealbefore me took a preliminary objection, which I may notice, althoughit wa6 properly not repeated at the second argument. He contendedthat the petition of appeal was irregular, on the ground that it waspresented by the Solicitor-General, and not, as section 336 of theCriminal Procedure Code requires, at the instance, or with thewritten sanction, of the Attorney-General. I was indebted to thelearned Solicitor-General himself for having called my attentionas amicus curia to the proviso of section 393 of the Criminal Pro-cedure Code, and to the fact that under that section the power ofdealing with all matters of this kind has been expressly delegatedby the Attorney-General to him.
1S14.
Wood
Bbntojt
A.C.J.
Amerasekerav. Lebbe
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1 would get aside the acquittal of the respondent and send thecage back to the Police Court, in order that the Police Magistratemay convict him and pass such a sentence as he thinks that thecircumstances require.
Armrasehe/rdv. Lebbe
Pereira J
I agree wjth my Lord the Chief Justice, and I need only add thatthe question involved in the preliminary objection taken by therespondent's counsel came befbre me for decision in a recent case(see The Attorney-General v. Silva1), and .1 there held that where,under section 393 of the Criminal Procedure Code, the Solicitor-General was given by the ^ Attorney-General a direction, generalor special, to exercise the power of appeal conferred on the Attorney-General by section 336, the petition of appeal in a case in whichthat power was exercised by the Solicitor-General should be in thename of the Solicitor-General, and be signed by him as such.
1914.
Wood
Rbhton
A.C.J.
De Sampayo A.J.—
I have had the advantage of perusing the judgment of my Lordthe Chief Justice. I agree with him that the notification undersection 16 (3) of the Excise Ordinance is insufficient, and that for thepurposes of the provision in section 55 there should be a notificationexpressly purporting to be issued in exercise ol the power therebyconferred on the Governor in Executive Council, and I share thedoubt expressed by him as to whether any prohibition under section55. can be other than conditional.
But I regret that 1 am unable to hold that the term ** medicalpractitioner " in section 55 is intended to, or does in fact, excludenative medical practitioners. If that was the intention, nothingcould be easier than to say so. In my view the Ordinance,while its policy is to prohibit general trade in and dealing withcertain descriptions of drugs, intended to conserve the right useof them by professional men. As a matter of language the term“ medical practitioner ” does not imply the restriction of it to menpursuing any modem system of medical treatment, and I think thereasoning in Jansz v. Usubu Lebbe2 is still applicable. The provisionof section 9 of the Ordinance No. 2 of 1905 no doubt creates 6omedifficulty, and requires consideration. That section enacts “ thewords ‘ legally qualified medical practitioner/ or ‘ duly qualifiedmedical practitioner/ or any words importing a person recognizedat law as a practitioner in medicine or surgery, where used in anyOrdinance or regulation, shall be construed to mean a practitioner'under this Ordinance." The words used in the Excise Ordinance,are not “ legally qualified medical practitioner " or “ duly qualifiedmedical practitioner," but simply M medical practitioner," and in.
J {1914) 17 N. L. R. 193.8 1 C. L. U. 90.
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»*
my opinion the general words in the above section, “ any wordsimporting a person recognized. at law as a practitioner,” wereintended to apply to a medical practitioner qualified in the samemanner as a ” legally qualified ” or “ duly qualified medical practi-tioner,” when only he can be called 8 person “ recognized atlaw as a practitioner in medicine or surgery.” The mere words” medical practitioner ” in the contemplation of the Ordinanceitself has no such import. . The whole object of the Ordinance is toprovide a system of registration for persons practising Europeanmedicine. A native vedarala cannot be registered under theOrdinance, and in order to remove all doubt the Ordinance itselfby section 20 provided that ” nothing in this Ordinance shall betaken to limit the right of any person to practise medicine or surgeryaccording to native methods, provided that he does not take or useany name or title calculated to induce the public to believe thathe is qualified to practise medicine and surgery according to modemscientific methods.” A vedarala by calling himself.a vedarala doesnot take any such name or title, nor does he induce the public tobelieve that he is other than a native medical man. I cannotsee how this recognition of native medical men can be in any wayaffected by the fact of their dealing with excisable articles. On thecontrary, it seems to me that, with this recognition before it, if theLegislature had intended to exclude vedaralas from the exemptionin section 55 of the Excise Ordinance, it would have expressly saidso in plain terms. I perceive a practical difficulty in the carryingout of the provisions of the Excise Ordinance, since any one maystart up and call himself a vedarala and deal in excisable articles;but this contingency has, I think, been already provided for insection 55, which speaks of “ bona fide medicated articles for medi-cinal purposes.” The Court in every case would be able to satisfyitself on that point, and also as to the accused person being a bonafide medical man. It will be further borne in mind that the ExciseOrdinance is a highly penal enactment and should be strictlyconstrued, especially in regard to those provisions which seriouslyaffect the practice of professional men and the right of the publicto their services.
For these reasons 1 would affirm the judgment of the PoliceMagistrate in this case.
1914.
Db SampayoA.J.
Ameraaekera
v. Ijtbba
Set aside.