1956 Present: K. D. de Silva, J.

P. R. KONE, Appellant, and L. ILLUKUMBURA (S. I. Police)
Respondent

S, C. 539-M. C. Kurunegala, 21,125

Excise Ordinance (Cap. 42)-Section 55-Ayurvedic physician-It he a " medical practitioner " ?-Indigenous Medicine Ordinance, No. 17 of 1941, s.9-Medical Ordinance (Cap. 90), ss. 32, 35-40, 68.

A practitioner of indigenous medicine registered under section 8 of the Indigenous Medicine Ordinance is not a medical practitioner within the meaning of that term as used in section 55 of the Excise Ordinance.

from a judgment of the Magistrate's Court, Kurunegala. K. G. Nadarajah, for the accused-appellant. P. Weerasinghe, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

December 20, 1956. K. D. DE SILVA, J.-

The accused appellant was convicted of two charges under section 44 of the Excise Ordinance (Cap. 42) and sentenced to pay a fine of Rs. 50. The first charge was that he did possess an excisable article to wit 3,600 drams of " Jeewanamirtha Asawam " an unlawfully manufactured liquor without a licence. The second charge related to the transport of the said 3600 drams of "Jeewanamirtha Asawam " without lawful authority. This quantity of " Jeewanamirtha Asawam" was contained in 600 bottles. The possession and transport of these 600 bottles were admitted by the appellant. He however contended that " Jeewanamirtha Asawam " is a recognized tonic prepared by Ayurvedic practitioners according to prescriptions set out in text books on Ayurvedic Medicine. It was the case of the appellant that the " Asawam " in question was manufactured by the witness Krishnan who is a registered practitioner of Indigenous Medicines under Ordinance 17 of 1941. It was so set out on the labels which were affixed to the bottles in question. That evidence stands uncontradicted. Krishnan also stated that this was a bona fide medicated article manufactured by him for the treatment of rheumatic troubles, piles and nervous disorders. The Registrar of the College of Indigenous Medicine deposed to the fact that Krishnan appeared before the Board of Examination set up under Ordinance 17 of 1941 and was registered as a practitioner. The learned Magistrate held that the " Asawam" in question was a bona fide medical preparation.

On an analysis of a sample of this " Asawam" the Government Analyst found that it contained 5.8 per cent, by volume of alcohol. Therefore it is an excisable article as defined by provisions of the Excise Ordinance. It is conceded by the defence that no licence or permit was obtained from the proper authority to manufacture or transport the " Asawam " in question. But it was argued that this was not an excisable article inasmuch as it was a bona fide medicated article to which section 44 does not apply. The appellant seeks to avail himself of the 1st part of section 55 which reads :-

" Nothing in the foregoing provisions of this Ordinance applies to the import, manufacture, possession, sale, or supply of any bona fide medicated article for medicinal purposes by medical practitioners, chemists, druggists, pharmacists, apothecaries or keepers of dispensaries ; "

The learned Counsel for the appellant argued that Krishnan who manufactured this bona fide medicated article was a medical practitioner or at least a keeper of a dispensary as contemplated by section 55. If that contention is correct the appellant cannot be held to have committed an offence. The learned Crown Counsel submitted that the " Medical Practitioner " contemplated by section 55 is a Medical Practitioner registered under the provisions of the Medical Practitioners, Pharmacists and Midwives Ordinance (Cap. 90). Section 32 of that Ordinance provides inter alia that no person shall be registered as a Medical Practitioner unless he,

(a) is registered or qualified to be registered under the Medical Acts,
or
(b) holds a Diploma in Medicine and Surgery issued by the Colle