1960 Present: Basnayake, C.J., H. N. G. Fernando, J.,
and Sinnetamby, J.

WADOOD, Appellant, and FERNANDO (Chief Preventive Officer),
Respondent

S. C. 530- M. C. Avissawella, 32341

    Excise Ordinance (Cap. 42)-Section 65-" Medical practitioner "-Applicability of expression to an indigenous medical practitioner-Indigenous Medicine Ordinance, No. 17 of 1941,8. 8-Medical Ordinance. ss.32,35,68.

An indigenous medical practitioner who is not registered as a medical practitioner under the Medical Ordinance is not a "medical practitioner" within the ambit of that expression in section 55 of the Excise Ordinance

Wadood v. Cooray (1956) 58 N. L. R. 234, overruled.

APPEAL from a judgment of the Magistrate's Court, Avissawella. This appeal was referred to a Bench of three Judges under section 48A of the Courts Ordinance.

Colvin R. de Silva, with M. L. de Silva and A. C. .M. Uvais, for Accused- Appellant.

Ananda Pereira, Senior Crown Counsel, with V. S. A. Pullenayegum, Crown Counsel, for Attorney-General.

Cur. adv. vult.

April 8, 1960. BASNAYAKE, C.J.-

The question for decision on this appeal is whether a registered indigenous medical practitioner is a " medical practitioner " within the meaning of that expression in section 55 of the Excise Ordinance. This appeal first came up for hearing before my brother Sinnetamby, but as there was a conflict between the case of Wadood v. Cooray1[1 (1956) 58N.L.R.234.] on the one side and the cases of Kone v. Illukkumbura2[2 (1956) 58N.L.R.377.] and Bulath8inhala v. Fernando 3[3 (1958) 60 N. L. R. 428.] on the other, he reserved the question under section 48 of the Courts Ordinance for the decision of more than one Judge of this Court and I made order under section 48A constituting the present bench for the hearing of the matter.

The appellant Ahamed JalaI Hadjiar Abdul Wadood is an indigenous medical practitioner registered in the Medical Register of Practitioners of Indigenous Medicine under section 8 of Ordinance No. 17 of 1941 and is described in the certificate of registration as an Ayurveda Waidya. He is not a medical practitioner registered under the Medical Ordinance. The charge against him is that he was in possession of an excisable article, popularly known as " Top ", which has been unlawfully manufactured, and that he thereby committed an offence under section 44 of the Excise Ordinance. It is not disputed that the liquid in the bottles found in the appellant's house came within the ambit of the expression "excisable article ", but it is claimed that it is a bona fide medicated article, -belonging to the class of Ayurvedic medicines called Arishtayas, meant to be sold for medicinal purposes. In support of that claim a book of Ayurvedic prescriptions has been produced to show that the liquid is an Arishtaya called Dhraksharishtaya. The appellant stated that the alcohol found in the liquid though not one of the ingredients in the prescription was added as a preservative. The appellant claimed the benefit of the exception in section 55 of the Excise Ordinance. That section declares that "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 ". It is therefore not an offence for a "medical practitioner " to possess without a licence for medicinal purposes a bona fide medicated article which comes within the ambit of the expression "excisable article " as defined in the Excise Ordinance. Now, who is

a medical practitioner? That expression is defined in section 68 of the Medical Ordinance thus: "medical practitioner mean a person registered as a medical practitioner under this Ordinance ". The persons entitled to be registered as medical practitioners under that Ordinance are described in' se