Allowed

Harichand @ Harischandra Ananta Roy v. the State of Maharashtra and Anr.

Bombay HC11 Apr 2012APPLN/176/2012

Case brief

AI extract

What is this about?

The High Court of Bombay (Bench at Aurangabad) quashed the FIR against a diploma holder of Naturopathy who was alleged to have practiced medicine by dispensing allopathy drugs without registration. The court held that mere possession of medicines does not establish the offense without proof of actual dispensing to patients.

What did the court decide?

FIR No. 3051 of 2011 registered under Section 33(2) of the Maharashtra Medical Practitioners Act, 1961, stands quashed.

Harichand @ Harischandra Ananta Roy Vs the State of… — Cheque Dishonour | Bombay HC (2012)

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Cri Apln 176/12

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO. 176 OF 2012

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Harichand @ Harishchandra s/o Ananta Roy,
Age52years,Occ.Practicing
Naturopathy, Resident of Jijamata Chowk,
Beed, Taluka and District Beed

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Applicant

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V E R S U S

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1 The State of Maharashtra Respondents

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2 Dr. Sudam Hajanrao Mogale, Age 54 years, Occupation Medical Practictioner, R/o Adarsha Nagar, Beed, District Beed

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Shri S.J. Salunke, Advocate for the applicant
Shri S.B. Pulkundwar, APP for the respondent No.1/State

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CORAM : A.V.NIRGUDE, J.
DATE : 11th April, 2012

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ORAL JUDGMENT :

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1.Learned A.P.P. is ready with papers and has no
objection for taking up the application for final
disposal.

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2. Heard the submissions made at the bar.

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3.This application is seeking quashment of F.I.R.
No. 3051 of 2011, dated 31st December, 2011, registered
with Police Station Beed (City), District Beed. The
police registered the said crime/FIR against the
applicant for the offence punishable under Section 33 (2)
of the Maharashtra Medical Practitioners Act, 1961.

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2 Cri Apln 176/12

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The facts leading to the litigation are almost
admitted. They are as under:-

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4.Applicant/accused is Diploma holder of
Naturopathy. He obtained this diploma from certain
institute at Nasik, which is recognized by the State of
Maharashtra. On perusal of the diploma certificate, it
is found that the applicant is not entitled to use drugs
while practicing Naturopathy, which is a recognized
stream of medicine. The applicant has a shop like
premises, where he practices medicine in Naturopathy.

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5.Complainant Dr.Sudam Mogle is the Resident
Medical Officer at Beed. He has stated that on 31st
December, 2011, he and his colleagues had a meeting with
the Collector, District Beed. In this meeting, it was
decided, he said, that they should take action against
the bogus doctors(medical practitioners having no
qualification and registration) practicing medicine in
Beed district. Accordingly, on the same day, he visited
the shop of the applicant alongwith his staff and police.
The police as well as the complainant found the applicant
present in his shop. It was further found that the shop
like premises was a medical dispensary. In the said
dispensary, the complainant as well as the police found
medicines in about four bottles. In a plastic bag, the
police also found bandages and injection syringe with
injection needle. The police seized the articles found

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Cri Apln 176/12

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in the so called dispensary and then registered the
offence. Panchnama was also recorded. The police then
recorded the statements of all the persons who were
present with the complainant at the time of visit. The
police arrested the applicant, and the applicant, I am
told, is waiting for the charge-sheet to be filed in the
Court.

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6.The learned A.P.P. produced before me a copy of
the charge-sheet, which is now ready to be filed in the
Court. The report submitted by the Investigation Officer
is also produced before me. It shows that the
investigation is almost over and the charge-sheet would
be filed shortly. However, on perusal of the charge-
sheet and the material collected against the applicant, I
found that the case against the applicant is not at all
tenable. There is no prima facie case to show that the
applicant practiced medicine in violation of the
provisions of Section 33 (2) of the Maharashtra Medical
Practitioners Act, 1961. I formed this opinion for
following reasons.

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7.The complainant probably knew before hand that
the applicant is practicing medicine by dispensing
allopathy drugs to his patients. With this belief, the
complainant went to see the applicant in his dispensary.
Fortunately for the complainant, the applicant was found
in his dispensary, but what was not found by the

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4 Cri Apln 176/12

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complainant and others is that the applicant was actually
dispensing medicines/drugs to his patients. They simply
found some skeletal paraphernalia in the dispensary to
indicate that the applicant probably is dispensing drugs
to his patients. However, until a patient had received
drug or allopathy medicine from the applicant during
treatment, the prosecution cannot show that the applicant
had practiced medicine in contravention of the provisions
of the Act. Why such a strict proof is required, is the
question that can be asked. The answer lies in the
peculiar provision of the Maharashtra Medical
Practitioners Act, 1961. Section 2 (2) of the Act, reads
as under:-

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“(2) For the purposes of Chapter VI, a person shall be deemed to practice any system of medicine who holds himself out as being able to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition or who, by any advertisement, demonstration, exhibition or teaching offers or undertakes, by any means or method whatsoever to diagnose, treat, operate or prescribe medicine or other remedy or to give medicine for any ailment, disease, injury, pain, deformity or physical condition :-

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Provided that, a person who,-

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(i) mechanically fits or sells lenses, artificial eyes, limbs or other apparatus or appliances; or

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(ii) is engaged in the mechanical examination of eyes for the purpose of constructing or adjusting spectacles, eye~glasses or lenses; or

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(iii) practices physiotherapy or electrotherapy or chiripody or naturopathy or hydropathy or yogic healing; or

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Cri Apln 176/12

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(iv) without personal gain furnishes medical treatment or does domestic administration of family remedies; or

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(v) being registered under the Dentists Act, 1948, limits his practice to the art of dentistry; or

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(vi) being a nurse, midwife or health visitor registered or enlisted under the Bombay Nurses, Midwives and Health Visitors Act, 1954, or any other corresponding law for the time being in force in the State or a Dai attends on a case of labour, shall not be deemed to practice medicine.

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Explanation.- In this sub-section,-

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(i) "advertisement" includes any word, letter, notice, circular, picture, illustration, model, sign, placard, board, or other document and any announcement made orally or by any means of producing or transmitting light sound, smoke or other audible or visible representation; and

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(ii)”physio-therapy” means treatment of any ailment, disease, injury, pain, deformity or physical condition, by message or other physical means, but does not include bone-setting. ”

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8.On careful perusal of above section, one finds
that it is more or less definition of the term “medical
practitioner”. The schedule annexed to the Act provide
various qualifications required for a person to get his
name registered as medical practitioner under the
provisions of the Act. Sub-section (2) quoted above,
particularly clause (iii) clearly mentions that a person
may practice Naturopathy, but such practice is not
practice of any system of medicine which requires
registration under the Act. This provision clearly shows
that there is possibility of some persons practicing

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6 Cri Apln 176/12

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physiotherapy or electrotherapy or chiripody or naturopathy or hydropathy or yogic healing, and yet they do not require registration under the Act. In view of this, the applicant here is certainly entitled to practice Naturopathy, but is not allowed to practice medicine as indicated by the above quoted provision. He is not entitled to use drugs during treatment of his patients. In other words, he cannot prescribe allopathy, homeopathy or ayurvedic medicines to his patients. So, unless the prosecution prima facie indicates that the applicant prescribed drugs or medicines to his patients, they cannot allege that he had violated the provisions of the Act.

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9.In this background, the prosecution case
prepared by the Investigating Officer is completely
lacking the necessary material. The learned A.P.P.
suggested that mere finding of medicine in the dispensary
would raise presumption that the applicant was dispensing
medicines found in his dispensary, and therefore, he
said, there is a prima facie case. I am afraid, it is
unacceptable though it appears quite attractive. Merely
possessing drugs -may be in bulk quantity- would not be
equivalent to dispensing those drugs to patients. So, a
case of this nature requires a new approach for
investigation. I need not suggest as to how such a case
is investigated. But it occurred to me that sending
decoy patient would be one of the methods for bringing

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prima facie material against bogus doctors. The
application should therefore succeed. F.I.R. No. 3051 of
2011, dated 31st December, 2011, registered with Police
Station Beed (City), District Beed, under Section 33 (2)
of the Maharashtra Medical Practitioners Act, 1961,
stands quashed.

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In view of above, criminal application stands

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disposed of.

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 ( A.V.NIRGUDE, J. )

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SRM/11/4/12

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***

Harichand @ Harischandra Ananta Roy v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Harichand @ Harischandra Ananta Roy v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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Statutes considered

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