1938   Present : De Kretser A.J.

PERKINS v. DEWADASAN.

 813-P. C. Kurunegala, 53,499.

Medical Ordinance-Unregistered medical practitioner-Charge of practising' for gain-Burden of proof-Ordinance No. 26 of 1927, s. 41 (b).

Where a person is charged under section 41 (b) of the Medical Ordinance with practising for gain, not being a registered medical practitioner, the burden of proving that he is a registered medical practitioner is on the accused.


THE charge against the accused respondent was that he did " not being a medical practitioner practise for gain in that he did. give an injection to one C. D. Horatala and recover a sum of rupees four for same in breach of section 41 (b) of Ordinance No. 26 of 1927 ".

The prosecution proved that the accused had a dispensary and that on December 12, 1936, Horatala went to the dispensary suffering from fever. An injection was given on the arm and a fee of four rupees was charged by the accused. A Gazette of April, 1937, was also produced to prove that the accused's name did not appear in the List of Registered Medical Practitioners, but that his name appeared among the Pharmacists.

At the close of the case for the prosecution the learned Magistrate discharged the accused without calling for a defence. From this order the complainant appealed with the sanction of the "Attorney-General.

E. H. T. Gunasekera, C.C., for complainant, appellant.-Section 42 and 43 of the Medical Ordinance, 1927, relate to vedaralas and dispensers. Sections 2 and 37 of the same Ordinance defines a medical practitioner. The burden of proving that he is not a medical practitioner does not lie on the prosecution. The words " not being a medical practitioner " create an exception and hence section 105 of the Evidence Ordinance applies. Section 106 of the Evidence Ordinance deals with facts which are especially within the knowledge of the accused. It is impracticable  and impossible to prove the negative in this case (Rex v. Turner [ (1816) 5 M. & S. 206 ; 105 E. R. 1026.] The Apothecaries Company v. Bentley[2(1824) l. C.& P 538 ; 171 E. B. 978.], Roche v. Wills'[ 3 (1934) 151 L. T. 154.], and Williams v. Russell[4 (1933) 149 L. T. 190.]). .

Even if the burden is on the prosecution the production of the Gazette under section 114 (e) and (/) of the Evidence Ordinance is a sufficient discharge of it.

N. Nadarajah (with him G. E. Chitty), for the accused, respondent.- A similar proposition came before the Court under section 80 (3) (b) of the Motor Car Ordinance, 1927 (Nair v. Saundias Appu[5 (1936) 6 C. L. W.1.]).

Section 33 of the Medical Ordinance, 1927, provides a mode of proof. The onus shifts on to the accused when a certified extract of the register is produced. The prosecution must adduce prima facie evidence. That the accused " is not a medical practitioner " is an element to be proved.

The exceptions in the Penal Code deal with an entirely different position where all the necessary elements for the offence are present. Then the exception must be proved as a defence.

[DE KRETSER A. J.- What is the purpose of section 32 ?]

Publication under that section is merely to give information to the public.

[DE KRETSER A.J.-Is there any provision for the rectification of the Gazette ? ]

There is no provision, except that it must be published every year. There may be omissions sometimes.

If the Crown's position is correct, then the Ordinance would have been worded differently (The King v. Attygalle [1 (1936) 37 N. L. R. 337 at p. 338.] Woolmington v. Director of Public Prosecutions'[ 2 (1935) 104 L. J. K. B. 433.]. In this case the prosecution did not give any assistance to the learned trial Judge when he pointed out the defect.

Cur. adv. vult.

 February 9, 1938. DE KRETSER A.J.-

The charge against the respondent was that he did " not being a medical practitioner practise for gain in that he did give an injection to one C. D. Horatala and recover a