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2017 DIGILAW 2 (KER)

JESTINE v. STATE OF KERALA

2017-01-03

SUNIL THOMAS

body2017
ORDER : This petition under Section 482 Cr.P.C. is preferred by the accused in Crime No. 614/2014 of Kannamaly police station for offences punishable under Section 420 IPC read with Section 34 IPC and Section 57 of the Travancore Cochin Medical Practitioners Act 1953 (hereinafter referred to as the "TC Act"). 2. The first petitioner claims himself to be an Acupuncture Consultant with several decades practice in that field. It was further claimed that he had obtained a diploma in acupuncture from the Institute of Acupuncture therapy and is also a Diploma Holder in Acupuncture therapy from the Open International University of Complementary Medicines. He used to conduct acupuncture awareness medical camps at various places and had conducted acupuncture consultancy to spread awareness about the food supplements which were claimed to be useful in combating various kinds of diseases. The second petitioner claims to be a social worker and a career trainer. The 3rd petitioner is a house wife cum social worker. 3. According to the prosecution, on 3/9/2014, when accused were conducting a camp at a house, the police, on getting information intercepted. After verifying the certificates, the first petitioner was taken into custody. The bottles which they carried were also seized. Crime was registered and after investigation, final report was laid for various offences mentioned above. The petitioners seek to quash the entire proceedings contending that the first petitioner is a qualified medical practitioner, who is competent to perform acupuncture consultancy, treatment and awareness camps. Hence, they are not governed by the provisions of the Travancore Cochin Medical Practitioners Act 1953 and have not committed any offence. 4. Notice was given to the second respondent, who appeared. Heard the learned Public Prosecutor also. 5. The second respondent is stated to have booked several bottles of food supplements by remitting Rs.23,500/- in the bank. She was informed that the parcel had reached the post office and in the meanwhile, the accused were intercepted by the police. She has filed an affidavit stating that she was not cheated and that she has no grievance against the first petitioner. 6. Specific contention of the learned counsel for the petitioners is that the first petitioner is the holder of a certificate issued from the Institute of Acupuncture and Pain Control, Cochin (fully owned by Indian Alternate Medical Society No.ER26) Affiliated to Open International University for Complimentary Medicine issued on 23/5/2011. 6. Specific contention of the learned counsel for the petitioners is that the first petitioner is the holder of a certificate issued from the Institute of Acupuncture and Pain Control, Cochin (fully owned by Indian Alternate Medical Society No.ER26) Affiliated to Open International University for Complimentary Medicine issued on 23/5/2011. He is also holding a certificate of the Open International University for Complementary Medicines. The mahazar prepared by the police refers to the above details. The prosecution has no case that the above certificates are forged. According to the petitioner, he is then qualified to practice in that field of treatment and he cannot be prosecuted for any offence under Travancore Cochin Medical Practitioners Act. 7. Learned counsel for the petitioner contended that the Travancore Cochin Medical Practitioners Act deals with specific fields of treatment mentioned therein. Preamble of the said Statute reads as follows: "Preamble: Whereas it is expedient to regulate the qualifications and provide for the registration of practitioners of modern medicine, homeopathic medicine and indigenous medicine with a view to encourage the study and spread of such medicines and to enact a law relating to medical practitioners generally in the State of Travancore - Cochin." 8. Section 5 of the Act deals with membership, which prescribes that all the members shall be registered medical practitioners. Learned counsel contended that the question that arise is whether there is any legal bar in practicing the specialised field of acupuncture, if he is otherwise qualified in that field. Even according to the prosecution, at the time of search, the first petitioner was found to be administering acupuncture treatment. The Addl. District medical officer was summoned to the spot and her assistance was sought by the police. The statement given by the above officer, who is also the Deputy Director of Health Services and the Regional Vigilance Officer is that on verification of the certificate, it was found that the petitioner has received training in the above branch. She has given a statement that certificate does not permit treatment in the allopathic branch of medicine and the bottles which were seized were only dietary supplement and there was no prescription for administering any medicine. The prosecution has also no case that the first petitioner had practiced in the field of allopathic or any other field of medicines. 9. She has given a statement that certificate does not permit treatment in the allopathic branch of medicine and the bottles which were seized were only dietary supplement and there was no prescription for administering any medicine. The prosecution has also no case that the first petitioner had practiced in the field of allopathic or any other field of medicines. 9. Learned counsel to remove the cloud on the issue, relied on Annexure A8 which was the reply given by the concerned Union Minister of State in the Ministry of Health and Family Welfare, to a specific question of a Member of parliament dated 20/8/2004, about the guidelines issued by WHO to help national health authorities to develop reliable information for consumers, - guarding against adverse or fatal reactions to so called traditional or alternative medicines (herbal medicines, acupuncture etc.) purchased across the counter. Minister in his reply had stated that a committee was constituted to consider the claim of various organizations for regulation of different streams of alternative systems of medicine. The committee did not make any recommendation regarding such streams of Alternative medicines, except that to the already recognized traditional systems of medicine namely, Auyrveda, Siddha, Unani, Homeopathy and drugless therapies such as Yoga and Naturopathy which were found to fulfill the essential and desirable criteria developed by the committee. It was accepted by the Government and by notification No.R.14015/25/96-U & H (R) (Pt) dated 25/11/2003 prescribed that certain practices like acupuncture and Hypnotherapy which qualified as modes of therapy, could be allowed to be practised by registered practitioners or appropriately trained personnel. Learned counsel further referred to Annexure A9 which is the notification issued by the Ministry of Health and Family Welfare which directed that certain practices such as acupuncture and Hypnotherapy which were qualified as modes of therapy, could be allowed to be practised by registered practitioners or appropriately trained personnel. In the light of the above, there cannot be any dispute that the acupuncture is permitted to be practiced, subject to restrictions in Ext.P9. Hence, it cannot be held that acupuncture therapy is one offending the TC Act, if practised by a registered practitioner or appropriately trained person. 10. Learned counsel for the petitioners further relied on Section 44 of the TC. Act. Hence, it cannot be held that acupuncture therapy is one offending the TC Act, if practised by a registered practitioner or appropriately trained person. 10. Learned counsel for the petitioners further relied on Section 44 of the TC. Act. It provides that when the council is of the opinion that the prosecution of any person for breach of any of the provisions of the Act is necessary, then the council may by resolution recommend to the Government for institution of such prosecution. In the case at hand, admittedly there was no such resolution. Section 45 (2) further provides that court shall not take cognizance of any offence under the Act, except on a complaint in writing of an officer empowered by the Government in this behalf. Here the investigation was done and final report filed by the ASI. There is nothing to show that he was an empowered officer under the TC Act. 11. Having regard to the above, I find that the prosecution is not sustainable in law or on facts. Hence, Crl.M.C is liable to be allowed. In the result, the Crl.M.C. is allowed. All further proceedings pursuant to Annexure 6 final report in CC No.689/2015 of the Judicial First Class Magistrate Court-I, Kochi, in Crime No. 614/2014 of Kannamaly police station stand quashed.