Breaking News: BSMS Siddha Practitioners allowed to practice Modern Medicine in Tamil Nadu, says HC, imposes riders

Chennai: In a recent judgment, the Madras High Court held that the Siddha practitioners in the State of Tamil Nadu were allowed to practice modern medicine. However, the HC bench of Justice G Jayachandran also clarified that the TN Siddha Medical Council members were not permitted to store allopathy medicine as it would violate the Drugs and Cosmetics Act.

The Court observed that according to the Government Order issued by the Health Department on September 8, 2010, the registered Siddha doctors at the TN Siddha Medical Council were allowed to practice modern medicine, However, referring to Section 18(c) of the Drugs and Cosmetics Act 1940, the Court clarified that any drug could be stored for distribution, sale, exhibition etc only with license issued for the said purpose.

With this observation, the Court refused to quash a case registered against a Siddha doctor, who was booked for storing allopathy medicines violating the said Act.

"The petitioner is a holder of BSMS Degree issued by Tamil Nadu Dr.MGR Medical University, Chennai. She has also duly registered her name under Tamil Nadu Siddha Medical Council. G.O.Ms.No.248, dated 08.09.2010 issued by Health and Family Welfare Department, which permits registered members of the Tamil Nadu Siddha Medical Council to practice Modern Scientific System of Medicine for the purpose of Drugs and Cosmetics Act. Therefore, adopting modern Scientific System of medicine by the petitioner is not prohibited. However, the prosecution is for storing Allopathy Drugs in her clinic," observed the Court.

"Section 18(c) of the Drugs and Cosmetics Act, 1940 mandates storing for sale or for distribution, or sell or stock or exhibit or offer for sale or distribute any drug should be only with license issued for the said purpose. Section 27(b)(ii) provides penalty for contravening Section 18(c). The case against the petitioner is not for using modern scientific system, but for stocking and selling the drugs without license," the bench further noted.

The petitioner had a Bachelor of Siddha Medicine and Surgery (BSMS) degree and she was duly registered with the Tamil Nadu Siddha Medical Council. She was also running a clinic affiliated wi a hospital in Chennai.

On 28.02.2017, an official from the Office of Assistant Director of Drugs Control inspected her clinic and recovered allopathic medicines from the clinic alleging that they were in contravention of the Drugs and Cosmetics Act, 1940. A private complaint was filed by the Drugs Inspector under Section 200 CrPC for offence punishable under Section 27 (b) (ii) of the Drugs and Cosmetics Act.

Challenging the complaint, the petitioner filed a plea before the HC stating that the trial court failed to apply its mind before taking cognizance. It presumed that the petitioner was a quack doctor unmindful of her qualification.

Referring to a Government Order issued by the Tamil Nadu Government on 08.09.2010, the petitioner argued that the GO declares that every medical practitioner holding the qualification specified in the second, third or fourth schedule to the Indian Medicine Central Council Act, 1970 and Part III of the Schedule to the Tamil Nadu Siddha System of Medicine(Development and Registration of Practitioners) Act, 1997, are entitled to practise modern scientific system of medicine. Therefore, the doctor argued that the petitioner could prescribe Allopathy Medicine and did not violate the Drugs and Cosmetics Act of 1940. 

Referring to the judgment of the Supreme Court in S.Athilakshmi v. The State Rep by the Drugs Inspector, the petitioner's counsel argued being a registered practitioner in Siddha Medicine, possessing a small quantity of Allopathy medicine in her clinic will not amount to selling medicine and it is not an offence as per exception created under Schedule K read with Rule 123 of the Drugs Rules 1945.

Further, it was argued that the petitioner's reply to the show cause notice was not properly understood by the complainant. As per the counsel, when there is no criminal intention for possessing the drugs in the clinic, prosecuting a qualified Doctor is purely an abuse of process of law.

On the other hand, the Government Counsel submitted that under Rule 123 of the Drugs Rules, 1945, the drugs specified in Schedule K shall be exempted from the provisions of Chapter IV of the Act and Rules made thereunder to the extent and subject to the conditions specified in the schedule. Chapter IV of the Act deals with manufacture, sale and distribution of drugs and cosmetics. This Chapter is not applicable to Ayurvedic, Siddha and Unani drugs as per Section 33(A) of the Drugs and Cosmetics Act. However, it will squarely apply to the Allopathy drugs.

During the inspection, a large quantity of Allopathy drugs was found in the clinic of the petitioner premises. Hence, the show cause notice dated 27.12.2017 was caused to the petitioner for not possessing drugs license, which is in contravention to Section 18(c) of Drugs and Cosmetics Act. The reply of the petitioner was that the said Section would not attract and the show cause notice is a vague and unintelligible allegation. Since the explanation was not satisfactory, the complaint filed under Section 200 of Cr.P.C., for contravening Section 18(c) of the Drugs and Cosmetics Act 1940, punishable under Section 27(b)(ii) of the Drugs and Cosmetics Act, 1940, submitted the Government Counsel.

The Court noted that the petitioner was a holder of a BSMS Degree holder and duly registered under the TN Siddha Medical Council. It was also observed by the Court that as per the Government Order dated 08.09.2010 the petitioner was allowed to practice modern medicine. However, storing medicine without a proper license would violate the Drugs and Cosmetics Act of 1940.

"Hence, this Criminal Original Petition stands dismissed. However, since the case is of the year 2018, the learned X Metropolitan Magistrate is directed to dispose of the case as expeditiously as possible. Consequently, connected Miscellaneous Petitions are closed," the Court ordered.

To view the court order, click on the link below:

https://medicaldialogues.in/pdf_upload/madras-hc-order-257227.pdf

Also Read: SC Grants Relief to Doctor for Storing Small Quantity Medicines without Licence, Says Does Not Endanger Public Interest