108-NLR-NLR-V-60-F.-R.-P.-C.-BULATSINGHALA-and-another-Appellants-and-L.-A.-T.-FERNANDO-Resp.pdf
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T. S. FERNANDO, J.—B-ulatsinghala v. Fernando
1958. Present : T. S. Fernando, J.R. P, C. BULATSINGHALA and another, Appellants, and L. A. T.FERNANDO, Respondent
<8- C. 186A-B—M. C. AvissaweHa, 28,227
Excise Ordinance (Gap. 42)-*—Section 55—“ Medical practitioner ”—Term not appli-cable to an ayurvedic physician—Indigenous Medicine Ordinance of 1941—Medical Ordinance (Gap. 90), e. 35.
An ayurvedic physician registered as a practitioner of indigenous medicineby the Board of Indigenous Medicine constituted by the Indigenous MedicineOrdinance of 1941 is not a medical practitioner within, the meaning of section 55of the Excise Ordinance.
Wadood v. Cooray (1956) 58 N. L. R. 234, not followed.
A
XVPPEAL from a judgment of the Magistrate’s Court, Avissawella.
J. C. Thurairatnam, for the Accused-Appellants.
Ananda Pereira, Grown Counsel, for the Attorney-General.
Cur. adv. mdt.
December 30, 1958. T. S', Febnasdo, J.—
This appeal raises a point which has more than once in recent yearsreceived the attention of this Court.
T. S. FERNANDO, J.—Butatsinghala v. Fernando
m
The 1st and 2nd accused, master and servant respectively, have beenconvicted on three charges, viz. (1) of manufacturing an excisable article,to wit, 123 gallons of a liquor popularly known as “ Top”, without alicence in contravention of section 14 of the Excise Ordinance and punish-able under section 43 of the same Ordinance, (2) of possessing withoutlawful authority this unlawfully manufactured excisable article, punish-able under section 44 of the same Ordinance, and (3) of bottling withouta licence a quantity of this liquor for sale in contravention of section 14and punishable under section 43 of the same Ordinance. This appealhinges on the question which is of current interest to the Excise Depart-ment, viz., whether persons like the 1st accused in this case are includedin the expression “ medical practitioner ” occurring in section '55 of theExcise Ordinance.
The 1st accused who described himself in evidence as an ayurvedicphysician is registered as a practitioner of indigenous medicine by theBoard of Indigenous Medicine constituted by the Indigenous MedicineOrdinance which I shall hereinafter refer to as the 1941 Ordinance. Hehas heen in practice as a practitioner of indigenous medicine since 1951, .He is in addition a lecturer at the College of Indigenous Medicine. Hehas 4 dispensaries, including one at Humbaswalana.* This dispensarywas “ raided ” on 27th May 1957 by a party of excise officers, and theleader of that party claimed that in one of its rooms the 2nd accused wasfound bottling some liquor, with the 1st accused standing beside himsupervising the process of bottling. In the room were found somebarrels which the Excise Inspector described as containing a locallybrewed liquor known to its patrons as “ Top”, while in the compoundand in the kitchen was found evidence of manufactoire of the same liquor.Samples were taken of this liquor and sent for analysis to the GovernmentAnalyst whose report shows (I) that the alcoholic content thereof was7% hy volume and (2) that the liquor was not an approved brand ofimported liquor or a liquor manufactured under a licence issued under theExcise Ordinance.
The manufacture, possession and bottling of this liquor were admittedhy the aooused. The 1st accused claimed that he was entitled to ma-nufacture this liquor which he said was a specific for diabetes—an aristacalled Amurtha Meha Arista—manufactured in accordance with a patentbearing registered number 4286 duly issued to him on 3rd December, 1955,Under the provisions of the Patents Ordinance (Cap. 123). He claimedthat some 28 ingredients are used in the manufacture of this arista.
It may be mentioned that the prosecution made no attempt to establishthat the liquor found in the 1st accused’s dispensary was not the aristawhich it was claimed to be. The entire defence was based on section 55of the Excise Ordinance, the relevant part of which is reproduced below:—
“ Nothing in the foregoing provisions of this Ordinance applies tothe import, manufacture, possession, sale hi' supply of any bona fidemedicated article for medicinal purposes by medical practitioners,chemists, druggists, pharmacists, apothecaries or. keepers of dispen-saries;”
T. 8. FERNANDO, J.—Bulatmnghala v. Ftmando
.430
The learned Magistrate who convicted both accused persons waswilling to consider the 1st accused a medical practitioner within themeaning of section 55, hut he has held that the liquor in question was nota bona fide medicated article for medicinal purposes for two reasons,(a) that the 1st accused was unable to repeat correctly under cross-examination the full list of ingredients appearing in the specificationattached to the letters patent, and (b) that no receipts were issued inrespect of and no records were kept of the sales of the bottles of thearista; " l am in agreement with the argument of counsel for the accusedthat these reasons do not bear examination. They have, quite understand-ably, not been relied on by Crown Counsel who seeks to sustain theconviction on the ground that the learned Magistrate was in error whenhe held that the 1st aocused was a medical practitioner within the meaningof section 55 of the Excise Ordinance.
It must be conceded that the learned Magistrate had the authority ofthe case of Wadood v. Cooray1 for the interpretation of section 55 which hefollowed. In that case Sinnetamby J. held that a practitioner of indige-nous medicine duly registered as such by the Board of IndigenousMedicine is a medical practitioner within the meaning of section 55. Ifthe opinion expressed by Sinnetamby J. is correct, then undoubtedlythe appeals in the present case must be allowed. A contrary opinionwas, however, expressed by K. D. de Silva J. a few weeks later in the caseof Kone v. Illukkwribwra*. It does not appear that the decision inWadood v. Gooray (supra) was brought to the notice of De Silva J.
. In these circumstances, while the question has naturally arisen whetherthe point should now be reserved by me for consideration by a fullerBench, I have for the reasons which I shall endeavour to set out belowreached the conclusion that such a course is not necessary and that Ishould apply the decision of this Court in Kone v. IUukkumbura(supra).
. This same question came up before the Court so long ago as 1914 whenit was reserved by Wood Renton A.C. J. for decision by a Bench of threejudges in Ameresekera v. Lebbe *, and that Divisional Bench by a majorityexpressed the opinion that a vedarala is not a medical practitioner withinthe meaning of that term as used in section 55 of the Excise Ordinance.As I understand the decision of the majority of the Court in that case,the ratio decidendi was that a vedarala bring a person who fell outsidethe category of medical practitioners referred to in the MedicalRegistrationOrdinance, No. 2 of 1905, could not be considered a medical practitionerwithin the meaning of section 55 of the Excise Ordinance in view of theexistence of section 9 of Ordinance No. 2 of 1905 reproduced below :—
“ The words * legally qualified medical practitioner ’ or ‘ duly quali-fied medical practitioner ’ or any words importing a person recognized■ at law as a practitioner in medicine or surgery, where used in any■ -Ordinance or regulation, shall be construed to mean a practitionerregistered under thiii Ordinance.”
1 (1956) S8tf. L. R. 234.2 (1956) 58 N.L.B. 377.
.» (1914) 17 N. L. R. 321.
T% 8;’ FERNANDO, J.—Bulateinghala v. Fernando. 431
This same provision is'still retained in substantially the same form insection 35 of the Medical Ordinance (Oap. 90) which is in the followingterms:—' r
“ In any written law, whether passed or made before or after thecommencement of this Ordinance, the words ‘ legally qualified medicalpractitioner’, or ‘duly qualified medioalpractitioner ’ or‘Registeredmedical practitioner ’ or any words importing a person recognised-by.law as a practitioner in medicine or surgery shall be Construed as. meaning a medical practitioner registered under this Ordinance.”
P
I do not think the expression “ medical practitioner ” occurring insection 55 of the Excise Ordinance can reasonably be said to includeanyone other than a person who is a legally qualified medical practitioner;a duly qualified medical practitioner, a registered medical practitioneror a person recognized by law as a practitioner in medicine or surgery.If so, the medical practitioner who enjoys the protection of section 55 ofthe Excise Ordinance must necessarily mean a medical practitionerregistered under the Medical Ordinance. It is not disputed in the case -before me that the 1st accused is not such a medical practitioner. '
It may be mentioned that Swan J. in the case of Fernando v. Goone-leardene1 applied the decision in the Divisional Bench case and his judgmentshows that he understood the ratio decidendi of the majority of tireCourt in Ameresekera v. Lebbe {supra) to be that which I have indicatedabove. No argument based on the 1941 Ordinance was apparentlyaddressed to Swan J. and we may therefore assume that the vedaialaconvicted in that case was not a person registered under the 1941 Ordi-nance as a practitioner of indigenous medicine. But would the position -have been at all different had the vedarala been a person so registered 1Sinnetamby J. in Wadood v. Gooray {supra) appears to have consideredthat the ruling in the Divisional Bench case is no longer binding on theclass of persons registered under the 1941 Ordinance who* though theypractise indigenous medicine, are to be distinguished from vedaralas inthat they are holders of diplomas or certificates issued by the AyurvedicMedical-Council or similar body and are unlike other vedaralas entitledto registration under the 1941 Ordinance. I venture think that re-gistration under the,-1941 Ordinance does not avail the practitionerof indigenous medicine in the question I am how considering as he is stillpractising indigenous1 medicine and is not entitffed to practise medicine—to use thewords of Wood Benton A.C.J.—“according to modem scien-tific methods” or—to use an expression in everyday parlance—accordingto Western methods.
In Ameresekera v. Lebbe {supra) Wood Benton A.C.J. stated that thereare dear reasons of policy, as well as of law, in favour of the constructionhe placed on section 55 of the Excuse Ordinance. He added that, if theLegislature thought it fit to do so, it could easily remedy any hardshipwhich the law as it then stood may have caused to vedaralas by providingfor their registration under the Excise Ordinance as had been done in theircase under the Opium Ordinance. Over forty years have elapsed since
* (1953) 56 N. L. B. 238.
432T. S. FERNANDO, J.—BulaUinghala v. Fernando
—^
-f^e decision of the Divisiohal Bench, but the Legislature has not thoughtit necessary and perhaps expedient to introduce any legislative measuresto enable vedaralas to be so registered; nor did the Legislature think itnecessary at the time the 1941 Ordinance was enactedto introduce anysuch provision for registration under the Excise Ordinance of practi-tioners of indigenous medicine. It is of interest to mention in this connec-tion that the practical distinction between those registered as medicalpractitioners under the Medical Ordinance and vedaralas has beenobserved and preserved in the Poisons, Opium and Drugs Ordinance(Cap. 172) now in for9e since 1929. The 1941 Ordinance has not sought.to affect this distinction so far as it concerns practitioners of indigenousmedicine or confer on a registered practitioner of that system of medicineany greater right than that' enjoyed by a vedarala.
For the reasons which I* have indicated above I prefer to follow the■deeisibn in Kom v. IUukkumbura (supra) and I find myself, with greatrespect, unable to agree with the decision in Wadood v. Gooray (supra)that the 1941 Ordinance has altered the position in law of those practi-tioners of indigenous medicine who are not entitled to be registeredunder the Medical Ordinance but have obtained registration under the1941 Ordinance.
As the 1st accused is not a medical practitioner registered under theMedical Ordinance, 1 am of opinion that he is not entitled to pleadsection 55 of the Excise Ordinance as affording him immunity fromconviction on the the charges framed against him. I would thereforedismiss his appeal as well as the appeal of his servant, the 2nd accused.
, As the 1st accused is the holder of a patent for the manufacture ofan arista and as the prosecution did not show that the liquor seized wasnot arista manufactured according to the registered specification, I would,following the course adopted by De Silva J. in Kone v. IUukkumbura(supra), have been willing to reduce the fines imposed by the Magistrateon the accused but for the circumstance that the 1st accused has a prevvious conviction against him for a similar offence. If the 1st accused'wants to continue the manufacture of this liquor he should, notwithstand-ing his patent, obtain the licences required by the Excise Ordinance.
Appeals dismissed