The court considered the lack of evidence of actual practice of Allopathy Medicines and the availability of the recovered medicines in common households to reduce the sentence.

ORDER :

Vivek Rusia, J.

1. This is the revision filed under Section 397 and 401 of Cr.P.C., 1973 against the judgment dated 31.01.2016 passed by the Judicial Magistrate First Class, Jhabua in Criminal Case No. 253/2011 whereby he has been convicted under Section 24 of the M.P. Ayurvigyan Parishad Adhiniyam 1987 and sentence to six month R.I. with fine of Rs. 1,000/- with default stipulation. Against the aforesaid order, the applicant has preferred an appeal before the Sessions Court and vide judgment dated 05.01.2021 the Sessions Judge, Jhabua has affirmed the conviction but reduced the sentence from six months to three months with fine of Rs. 1,000/- and hence the present appeal is dismissed.

2. As per prosecution story, Dr. Kamlesh Paraste (PW/5) in-charge of the community health center, Jhabua along with Nayab Tehsildar Kumari Nidhi Verma (PW/4) and two panch witnesses conducted the raid in the clinic of the present applicant and found that the applicant is having the degree under the Electro Homeopathic System of Medicine but he is doing the practice of Allopathy Medicines. The search was conducted in his clinic and following medicines were found:-

Injection Mqueen, Injection Dexa, Injection Zone, Syrup Cetirizine Cold and Ambrol Plus. Accordingly, criminal case has been registered against the applicant. After completing the investigation, the challan was filed before the competent Court. In order to prove the charges prosecution has examined as many as nine witnesses and in defense the applicant did not examine any witnesses.

3. After appreciating the evidence came on record the learned JMFC, Jhabua has held that then applicant has no right to do the practice in Allopathy Medicines and since the medicines, injections and BP instruments were recovered from his clinic therefore, it is presumed that he was practicing in Allopathy Medicines without any degree hence committed the offence under Section 24 of the M.P. Ayurvigyan Parishad Adhiniyam 1987. The aforesaid findings have been affirmed by the appellate Court vide judgment dated 05.01.2021.

4. Learned counsel for the applicant submits that the applicant has wrongly been implicated in the case and he was practicing strictly as per his qualification and degrees. The medicines recovered from the possession of the applicant are easily available in the medical shops. It is further submitted that none of the patient or witnesses came forward to depose against the applicant that he has prescribed the Allopathy Medicines to him. The police has not recovered any prescription or treatment written by the present applicant prescribing Allopathy Medicines therefore, merely on the basis of recovery of few medicines and one or two injections from his clinic the presumption has wrongly been drawn that he was practicing in Allopathy Medicines. Hence the conviction sentence is bad in law.

5. Learned panel lawyer for the respondent/State argued in support of the case and submits that admittedly the applicant is having the degree in Electro Homeopathic System of Medicine and the Allopathy Medicines were recovered from his clinic therefore he has rightly been convicted.

6. Heard and perused the record.

7. A surprised raid was conducted by the Medical Officer along with the Nayab Tehsildar and the medicines as mentioned above have been recovered from the clinic of the applicant. As per the cross-examination of Medical Officer not a single patient was found in the clinic and no prescription or any record pertaining to the treatment given to the patients were seized from the possession of the applicant to established that he was practicing in the Allopathy Medicines. The medicines recovered from the applicant were not in large quantity and easily available in the house of a common man also. For these medicines no prescription is required to purchase from the medical shops. Even otherwise, the applicant is first offender, facing the agony of trial since 2011 and he is in jail since last one month therefo