1998 Supreme(SC) 1046

1998(7) Supreme 575
Supreme Court of India
(From Punjab & Haryana High Court)
M.M. Punchhi, CJI and K.T. Thomas & S.S. Mohammed Quadri, JJ.
Dr. Mukhtiar Chand & Ors. etc. -Appellants/Petitioners
versus
The State of Punjab & Ors. -Respondents
Civil Appeal No. 89 of 1987
With
C.A. No. 836/87, W.P. (C) Nos. 5/87, 1082/88, 359/91, SLP (C) No. 8422/95, W.P. (C) No. 423/97 & SLP (C) No. 4009/98)
Decided on 8-10-1998
Counsel for the Parties :
For the Appearing Parties : Kirit N. Raval, Additional Solicitor General, D.D. Thakur, P.C. Jain, Ms. Indira Jaising, G.L. Sanghi, Sr. Advocates, S.S. Khanduja, N.N. Bhatt, Y.P. Dhingra, Prem Malhotra, B.S. Chauhan, D.N. Misra, Krishan Datta, Umesh Kumar Bhore, Pradeep Aggarwal, Sushil Kr. Jain, K.T. Tulsi, (Jasbir Malik) Advocate for Chander Shekhar Ashri, Prashant Kumar, Joseph Pocckkett, Dhruv Mehta, (Mrs. Anil Katiyar), Advocate for P. Parmeshwaran, H.M. Singh, R.S. Sodhi, (M.K. Dua), Advocate (NP), Ms. Kamini Jaiswal, Advocate (NP), Ranjit Kumar, Ms. Anu Mohla, L. Nageshwar Rao, Braj K. Misra, Ejaz Maqbool, Sabir Ranjan, R.N. Karanjwala, Ms. Nandini Gore, Ms. Anitha Shenoy, Advocate for Ms. Manik Karanjwala, M.K. Garg, Advocate (N.P), H.K. Puri, Ujjwal Banerjee, Rajesh Srivastava, Davender Singh, Ms. Diva Singh, Surya Kant, Manu Mridul, Maninder Singh, K.S. Bhati, M.K. Singh, Advocates.

Very Important Point
Rule 2(ee) (iii) of Drugs and Cosmetic Rules, 1945 is valid and does not suffer from the vice of want of legislative competence and the notifications issued by the State Govts. thereunder are not ultra vires the said rule and are legal.

Headnote:(i) Drug and Cosmetic Rules, 1945-Clause (iii) of Rule 2(ee)-Meaning of Registered Medical Practitioner-Means medical practitioners other than qualified practitioners entitled to practise allopathic-Medi­cine-Whether bad for want of legislative competence? (No)-Whether the impugned notifications issued by the State Govts., under clause (iii) of the said Rule, declaring the categories of persons who were practising modern system of medicine are invalid in law? (No)-High Courts reversed.

       Held : A plain reading of clauses, extracted above, shows that the ambit of clause (iii) must necessarily exclude those who would fall under the first two clauses. There is no controversy that categories (i) and (ii) relate to practitioners of allopathic medicines. Hence, the third category falling under clause (iii) on which Vaids/Hakims (non-allopathic doctors) base their claim may be analysed here. (a) It takes in persons who are registered in a medical register of a State (it may be noticed here that such a register should not be meant for registration of Homeopathic practitioners but it need not be a regis­ter meant for registration of persons practising modern system of medicine); (b) such persons do not fall within category (i) or catego­ry (ii) of clause (ee), as noted above; (c) they must be declared as persons practising modern system of medicine by general or special order made by the State Government in that behalf; and (d) such a declaration would operate only for purposes of the Drugs Act and the Rules made there­under. (Para 26)

       The learned counsel argued at length on the question whether clause (iii) is also intended for left out qualified allopathic doc­tors. But if that interpretation is accepted, the said clause will become redundant as admittedly clauses (i) and (ii) exhaust all cate­gories of practitioners entitled to practice in allopathic medicine. It was conceded at the end of the day and, in our view rightly, that the clause takes in medical practitioners other than qualified prac­titioners entitled to practise allopathic medicine. And as practi­tioners of Homeopathic medicine are specifically excluded, it becomes evident that this category comprises of practitioners who are en­rolled in a medical register of a State and though not answering the description of clauses (i) and (ii), are de facto practising modern system of medicine (allopathic) and those facts are declared by the State Government concerned. By this sub-clause, a de facto practitio­ner of modern scientific medicine (allopathic) is recognized as a registered medical practitioner and is enabled to prescribe drugs covered by the Drugs Act. (Para 27)

       From the above discussion what emerges is that drugs can be sold or supplied by pharmacist or druggist only on the prescription of a ‘registered medical practitioner’ who can also store them for treat­ment of his patients. It has, therefore, became necessary for the rule-making authority to define the expression ‘registered medical practitioner’ for the purposes of the Act and the Rules. Rule 2(ee) does no more than defining that expression, which is within the scope of Section 33(1) as well as 33(2)(e). Therefore, it cannot be said that the rule making authority was lacking legislative compe­tence to make Rule 2(ee). The High Court misdirected itself by looking to the provisions of Sections 6 and 12 which do not contain the rule-making power. It is only Section 33 which contains the rule-making power. The High Court has also erred in searching for a power to frame rules for the registration of medical practitioners; obviously such a power is not conferred under the Act. The rule veritably does not deal with registration of the medical practitioner. It only defines the expression ‘registered medical practitioners’ by specifying the cate­gories of medical practitioners which fall within the definition for purposes of the Drugs Act and the Drugs Rules. For the aforementioned reasons, we are unable to sustain the view taken by the High Court of Rajasthan that the impugned Rule 2(ee)(iii) suffers from the vice of lack of legislative competence and is ultra vires the Drugs Act. (Para 31)

       Held finally : The upshot of the above discussion is that Rule 2(ee)(iii) as effected from May 14, 1960 is valid and does not suffer from the vice of want of the legislative competence and the notifications issued by the State Governments thereunder are not ultra vires the said rule and are legal. (Para 49)

       (ii) Drugs and Cosmetic Rules, 1945 - Rule 2(ee)(iii) - Impact of Indian Medical Council Act, 1956 and Indian Medical Central Council Act, 1970 on the Rule 2(ee)(iii) and the notifications issued thereun­der -Whether the persons who have qualified the integrated course in Ayurveda and Unani from various universities are entitled to practise in and prescribe allopathic medicines?

       Held, that if any State law relating to registration of Medical practitioners permits practise of allopathic medicine on the basis of degree in integrated medicines, the bar in Section 15(2)(b) of the 1956 Act will not apply. (Para 40)

       A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act. (Para 47)

       Held finally : However, after sub-section (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from June 16, 1964, the benefit of the said rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is con­ferred by the State Law under which practitioners of Indian Medicine are registered in the State, which is for the time being in force. The position with regard to Medical practitioners of Indian medicine holding degrees in integrated courses is on the same plain inasmuch as if any State Act recognizes their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply. (Para 49)