A. Ramesh Babu vs The Superintendent of Police

T.S. Sivagnanam, J.—The petitioner has filed this writ petition for a Mandamus forbearing the respondent from in any way preventing him from giving first aid to the patients permissible in law and for a further direction not to harass him in so for as rendering the first aid as a measure immediate relief to the patients.

The petitioner has secured a Diploma in D. Pharm Course. He claims that he is running a medical shop and besides injecting the patients with TT injection in the process of first aid. He is also engaged in medical service by taking samples of blood from the patients and assist the Medical officer in his treatment to the patients. The petitioner apprehends arrest by the police under the guise of preventing fake doctors in the society has approached this Court by way of this writ petition.

This Court by order dated 17.04.2009 directed the petitioner to file an affidavit by giving the name and address of his clinic, where the clinic is situated with medical shop. In compliance of the orders issued, the petitioner has filed an affidavit on 24.04.2009. In the affidavit, the petitioner has stated that he has changed his residence after filing of the writ petition and presently he is residing at No. 86, Chokkalingapuram Road, Panavadalichatram, Sankarankoil Taluk, Tirunelveli District and that he is running the medical shop in the name and style of "Grace Medicals" at Panavadalichatram, Sankarankovil Taluk, Tirunelveli. The petitioner would further state that he is the person holding D. Pharm diploma and he is providing First Aid to those who need at the exigency and not doing regular business for money. The petitioner''s apprehension is that the police authorities are threatening to arrest him since he is carrying on the provision as if he is a medical practitioner. This is being denied by the petitioner in the affidavit stating that he is a holder of diploma of pharmacy and can give First Aid.

The right of a person by calling himself a private medical practitioner, who holds a diploma or a degree issued under various other Indian systems of Medicine, was a cause of concern for several years. The Honurable Supreme Court in Dr. Mukhtiar Chand and Others Vs. The State of Punjab and Others, took up for consideration the question relating not only to the right to practice the medical profession, but also the right to life which includes the health and well being of a person. After elaborately considering various aspects namely, the provisions of Drugs and Cosmetics Act, the rules framed thereunder, the provision of the Medical Council Act and all the other systems of Medicine prevailing in India, ultimately held as follows;

Points 2 and 3 have some overlapping so it will be convenient to discuss them together. The right to practise any profession or to carry on any occupation, trade or business is no doubt a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. But, that right is subject to any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business enacted under Clause (6) of Article 19. The regulatory measures on the exercise of this right both with regard to the standard of professional qualifications and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment. There can, therefore, be no compromise on the professional standards of medical practitioners. With regard to ensuring professional standards required to practise allopathic medicine, the 1956 Act was passed which deals also with reconstitution of the Medical Council of India and maintenance of an Indian Medical Register. Thus, for the first time, an Indian Medical Register for the whole of India came to be maintained from 1956. In the 1956 Act, Section 2(f) defines "medicine" to mean "modern scientific medicine" in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery and the expression "recognised medical qualification" is defined in Section 2(h) to mean any of the medical qualifications included in the Schedules to the Act.

The Division Bench of this Court in 2002 (4) CTC 577 (All India Association of Private Medical Practitioners v. State of Tamil Nadu) was considering an appeal filed by the Association against an order dismissing a writ petition for issue of Writ of Mandamus to direct the State of Tamil Nadu to issue necessary certificate to enable the members of the association to carry on their avocation as medical practitioners. The Honourable Division Bench held after analysing the provisions of the Indian Medical Council Act that the persons who are possessing recognisied medical certificate can register their name as contemplated under the Act and they alone can practise Medicine. Further under the Act unless a person has degree qualification, he cannot register his name and regularised the practise of medicine. The Division Bench by relying the decision of the Honourable Supreme Court reported in Poonam Verma Vs. Ashwin Patel and others, has held as follows;

In the decision reported in Poonam Verma v. Ashwin Patel 1996 (4) SCC 332 it has been held by the Supreme Court as follows while considering the issue whether a person holding Diploma in Homeopathy Medicine and Surgery can administer Allopathic meedicine without having any qualification in the same: "30. The scheme of the Act, therefore, indicates that a person gets the right to practise in Homeopathy on being registered as a medical practitioner. The certificate of registration issued to such practitioner requires him to practise in Homeopathy Only as it clear from the words "And shall practise Homeopathy Only" used in Sub-section (12)(a) of Section 20. Apart from the right to practice, other rights which become immediately available to a person on registration of his name are indicated in Section 28 which, inter alia, includes right to treat patients according to the Homeopathic system of medicine.

Right to practise in Allopathic system of medicine as also the right to practise in Ayurvedic or Unani system of medicine is regulated by separate independent Central and local Acts. Indian Medical Council Act, 1956 deals, inter alia, with the registration of persons possessing requisite qualifications as medical practitioner in Allopathic system as also recognition of medical qualification and examinations by Universities or Medical Institutions in India.

But merely because the anatomy and Physiology are similar, it does not mean that a person having studied one system of medicine can claim to treat the patient by drugs of another system which he might not have studied at any stage. No doubt, study of Physiology and Anatomy is common in all systems of medicines and the students belonging to different systems of medicines may be taught Physiology and Anatomy together, but so far as the study of drugs is concerned, the Pharmacology of all systems is entirely different.

Since the law, under which respondent-1, was registered as a medical practitioner, required him to practise in Homeopathy Only, he was under a statutory duty not to enter the field of any other system of medicines as, admittedly, he was not qualified in the other system. Allopathy, to be precise. He trespassed into a prohibited field and was liable to be prosecuted u/s 15(3) of the Indian Medical Council Act, 1956. His conduct amounted to an actionable negligence particularly as the duty of care indicated by this Court in Dr. Laxman Joshi case was breached by him on all the three counts indicated therein.

Ultimately the Division Bench relying on the decision of the Honurable Supreme Court in Dr. Mukhtiar Chand v. State of Punjab (cited supra) dismissed the writ appeal.

The petitioner claims to a holder of a diploma in Pharmacy. The Pharmacists are regulated by the provisions of the Pharmacy Act, 1948. Under the said Act, Section 2(f) defines who is a Medical Practitioner. Section 2(i) defines registered pharmacist which means a person whose name is for the time being entered in the register of the State in which he is for the time being residing or carrying on his profession or business of pharmacy. Section 31 prescribes qualification for entry in the registration of Pharmacist. Section 36 speaks about removal from the register under certain contingencies. In terms of Section 36(1)(ii) a registered pharmacist who has been convicted of any offence or has been guilty of any infamous conduct in any professional respect which in the opinion of the Executive Committee, renders him unfit to be kept in the register. Section 42 prescribes that no person other than a registered pharmacist shall compound, prepare, mix, or dispense any medicine on the prescription of a medical practitioner.

The petitioner has filed the Chart of duties and responsibilities of Pharmacists in the typed set of papers. Even under the said chart a pharmacist is only entitled to dispense with the drugs and he shall not do so without prescription by the medical officer. Therefore, merely because the petitioner possessing a Diploma in pharmacy and stated to be running a medical shop, he is not entitled to dispense drugs without a prescription from an authorised medical officer. Further the petitioner has stated in the affidavit that he is assisting the patients by administering injunction and taking blood samples, at no stretch of imagination the petitioner shall go on with such activities in his medical shop on the strength of having studied such procedure in his diploma course. The Chart of duties also placed an embargo on the petitioner that he should not on any account prescribe medicine for patient on his own. An inclusion of a particular subject or a nature of studies in the curriculum of a course, cannot be used by the petitioner to state that he is entitled to practise the same. If such interpretation is given, then the very purpose of enacting the Indian Medical Council Act and maintaining the list of registered practitioner would be an empty formality. It is needless to state that as long as the petitioner confines himself to the sphere of activity for which he is authorised and for which purpose he holds the qualification, he cannot apprehend of any harassment in the hands of the police. Further in the event of a complaint being lodged with the jurisdictional police, the petitioner cannot seek for a blanket order that such complaint cannot be investigated.

For the above reasons, the writ petition is thoroughly devoid of merits and the same is liable to be dismissed. Accordingly, the writ petition is dismissed. Consequently, the connected miscellaneous petition is closed. No costs.