IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938
Crl.MC.No. 1349 of 2016 ()
---------------------------
AGAINST THE ORDER/JUDGMENT IN CC 689/2015 of J.M.F.C.-I,KOCHI
CRIME NO. 614/2014 OF KANNAMALI POLICE STATION , ERNAKULAM,KOCHI
PETITIONER(S)/ACCUSED:
---------------------
1. JESTINE, AGED 66 YEARS,
S/O.JACOB, ELENJIKKAL HOUSE, VALLUVALLY, KOTTUVALLY
VILLAGE, ERNAKULAM DISTRICT.
2. THOMAS ANDREWS, AGED 57,
S/O.ANDREWS, SASTHAMPURAKKAL HOUSE, STATUE JUNCTION,
RAMESWARAM VILLAGE, KOCHI-2.
3. BABY @ MARY CHRISTOPHER,
W/O.CHRISTOPHER, KURANGANTHARA HOUSE, KANNAMALY,
KUMBALANGI VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SRI.SHERRY J. THOMAS
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. STATE OF KERALA
REPRESENTED BY STATION HOUSE OFFICER,
KANNAMALY POLICE STATION THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. TREESA LILLY,
W/O.JOSEPH, PALAKKAL HOUSE, PUTHENTHODE, KANNAMALY,
ERNAKULAM DISTRICT.
R2 BY ADV. SRI.ARUN ALEX
R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-
12-2016, THE COURT ON 3/1/2017 PASSED THE FOLLOWING:
Crl.MC.No. 1349 of 2016 ()
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE-A1: THE TRUE COPY OF THE FIRST INORMATION REPORT IN CRIME
NO.614/2014 OF KANNAMALY POLICE STATION, KOCHI.
ANNEXURE-A2: THE TRUE COPY OF THE SEIZURE MAHASSAR
DATED 3.9.14 F1051/2015 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, KOCHI.
ANNEXURE-A3: THE TRUE COPY OF THE STATEMENT GIVEN BY THE CW1.
ANNEXURE-A4: TRUE COPY OF THE STATEMENT OF CW2.
ANNEXURE-A5: TRUE COPY OF THE STATEMENT GIVEN BY CW3.
ANNEXURE-A6: THE CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.614/2014 OF KANNAMALY POLICE STATION, KOCHI.
ANNEXURE-A7: THE ORIGINAL AFFIDAVIT FILED BY THE 2ND
RESPONDENT.
ANNEXURE-A8: THE TRUE COPY OF THE ANSWER GIVEN IN
RAJYASABHA DATED 20.8.04.
ANNEXURE-A9: THE QUESTION DATED 12.11.11 AND REPLY
UNDER RTI.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/ PS TO JUDGE.
CR
SUNIL THOMAS, J.
- - - - - - - - - - - - - - - - - -
Crl.M.C.No. 1349 of 2016
- - - - - - - - - - - - - - - - - -
Dated this the 3rd day of January, 2017
O R D E R
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
Crl.M.C.No.1349/2016 2
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
Crl.M.C.No.1349/2016 3
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. 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:
Crl.M.C.No.1349/2016 4
"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
Crl.M.C.No.1349/2016 5
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
Crl.M.C.No.1349/2016 6
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. It provides that when
Crl.M.C.No.1349/2016 7
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.
SUNIL THOMAS
Judge
dpk
/true copy/ PS to Judge.
Crl.M.C.No.1349/2016 8
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938
Crl.MC.No. 1349 of 2016 ()
---------------------------
AGAINST THE ORDER/JUDGMENT IN CC 689/2015 of J.M.F.C.-I,KOCHI
CRIME NO. 614/2014 OF KANNAMALI POLICE STATION , ERNAKULAM,KOCHI
PETITIONER(S)/ACCUSED:
---------------------
1. JESTINE, AGED 66 YEARS,
S/O.JACOB, ELENJIKKAL HOUSE, VALLUVALLY, KOTTUVALLY
VILLAGE, ERNAKULAM DISTRICT.
2. THOMAS ANDREWS, AGED 57,
S/O.ANDREWS, SASTHAMPURAKKAL HOUSE, STATUE JUNCTION,
RAMESWARAM VILLAGE, KOCHI-2.
3. BABY @ MARY CHRISTOPHER,
W/O.CHRISTOPHER, KURANGANTHARA HOUSE, KANNAMALY,
KUMBALANGI VILLAGE, ERNAKULAM DISTRICT.
BY ADV. SRI.SHERRY J. THOMAS
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. STATE OF KERALA
REPRESENTED BY STATION HOUSE OFFICER,
KANNAMALY POLICE STATION THROUGH PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
2. TREESA LILLY,
W/O.JOSEPH, PALAKKAL HOUSE, PUTHENTHODE, KANNAMALY,
ERNAKULAM DISTRICT.
R2 BY ADV. SRI.ARUN ALEX
R BY PUBLIC PROSECUTOR SRI.RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-
12-2016, THE COURT ON 3/1/2017 PASSED THE FOLLOWING:
Crl.MC.No. 1349 of 2016 ()
---------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
-----------------------
ANNEXURE-A1: THE TRUE COPY OF THE FIRST INORMATION REPORT IN CRIME
NO.614/2014 OF KANNAMALY POLICE STATION, KOCHI.
ANNEXURE-A2: THE TRUE COPY OF THE SEIZURE MAHASSAR
DATED 3.9.14 F1051/2015 OF JUDICIAL FIRST CLASS
MAGISTRATE COURT-I, KOCHI.
ANNEXURE-A3: THE TRUE COPY OF THE STATEMENT GIVEN BY THE CW1.
ANNEXURE-A4: TRUE COPY OF THE STATEMENT OF CW2.
ANNEXURE-A5: TRUE COPY OF THE STATEMENT GIVEN BY CW3.
ANNEXURE-A6: THE CERTIFIED COPY OF THE FINAL REPORT IN
CRIME NO.614/2014 OF KANNAMALY POLICE STATION, KOCHI.
ANNEXURE-A7: THE ORIGINAL AFFIDAVIT FILED BY THE 2ND
RESPONDENT.
ANNEXURE-A8: THE TRUE COPY OF THE ANSWER GIVEN IN
RAJYASABHA DATED 20.8.04.
ANNEXURE-A9: THE QUESTION DATED 12.11.11 AND REPLY
UNDER RTI.
RESPONDENT(S)' EXHIBITS
----------------------- NIL
/TRUE COPY/ PS TO JUDGE.
CR
SUNIL THOMAS, J.
- - - - - - - - - - - - - - - - - -
Crl.M.C.No. 1349 of 2016
- - - - - - - - - - - - - - - - - -
Dated this the 3rd day of January, 2017
O R D E R
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
Crl.M.C.No.1349/2016 2
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
Crl.M.C.No.1349/2016 3
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. 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:
Crl.M.C.No.1349/2016 4
"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
Crl.M.C.No.1349/2016 5
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
Crl.M.C.No.1349/2016 6
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. It provides that when
Crl.M.C.No.1349/2016 7
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.
SUNIL THOMAS
Judge
dpk
/true copy/ PS to Judge.
Crl.M.C.No.1349/2016 8
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