In Poonam Verma Vs Ashwin Patel case, the Supreme Court held: “Aperson who does not have knowledge of a particular system of medicine but practicesin that system is a quack and a mere pretender to medical knowledge or skill,or to put it differently, a charlatan.”
In the above landmark judgment the Supreme Court heldthat a homoeopathic practitioner could not practice ‘Modern Scientific Systemof Medicine’ and therefore could not prescribe allopathic medicines.
In spite of this Apex Court ruling there is today adistinct class of yurvedic and Unani medical practitioners who practice modernscientific medicine. This they do because of a Government Notificationproclaiming them to be ‘practitioners of modern scientific system of medicine’.A tricky problem that thus came up was - Could these Ayurvedic and Unanimedical practitioners prescribe allopathic drugs in spite of the Apex Courtdirectives? Another issue that also came up before the Court was whethermedical practitioners could store and sell drugs? This matter went right up,once again, to the Supreme Court which settled the issue much after the PoonamVerma case.
One Dr Sarwan Singh Dardi who was a medicalpractitioner, registered with the Board of Ayurveda and Unani System ofMedicines, Punjab was practicing modern system of medicines. He was served withan order of the District Drugs Inspector, Hoshiarpur, prohibiting him fromkeeping in his possession allopathic drugs for administration to patients. Ageneral direction was further issued to the local chemists not to issueallopathic drugs to patients on the prescription of Dr Sarwan Singh Dardi.
This action of the drug inspector was questioned by DrDardi in the Punjab and Haryana High Court. Dr Dardi relied upon a Notificationissued by the State of Punjab which declared all Vaids and Hakims who wereregistered under non-allopathic Medical Councils to be practitioners of ModernSystem of Medicine for purposes of the Drugs Act. He thus submitted that he wasentitled to store and dispense allopathic drugs.
The Division Bench of the Punjab and Haryana High Courtheld that the said Notification was ultra-vires the provisions of sub clause (iii)of clause (ee) of Rule 2 of the Drugs Rules and also contrary to the provisionsof Indian Medical Council Act, 1956 and accordingly dismissed the writpetition. Dr Sarwan Singh Dardi filed an appeal along with Special Leave in theSupreme Court.
The Hon’able Supreme Court discussed at length theprovisions of the Drugs and Cosmetics Act 1940 and the Rules framed thereunder.Section 33 of the Drugs Act empowered the Central Government to make rules forpurposes of giving effect to the manufacture, sale, and distribution of drugsand cosmetics and also prescribe the licenses for the same. It also laid downconditions subject to which such licenses may be issued; the authorityempowered to issue the same, the qualification for such authority, etc. Rule 65of the Drug Rules laid down conditions to sell and stock drugs. Varioussub-rules of Rule 65 makes it mandatory that the supply of drugs should be onthe prescription of a ‘registered medical practitioner’ only (conditions Nos.2, 3 (1), 5(1), 9 and 9(a)). From the above facts what emerged was that drugscould be sold or supplied, by pharmacists or druggists only on the prescriptionof a ‘registered medical practitioner’ who incidentally could also store themfor the treatment of his patients. The Court therefore held that the term‘registered medical practitioner’ was the epicenter of the entire issue.
Rule 2 of the Drug Rules defined the expression“registered medical practitioner” thus: Registered medical practitioner means aperson (i) holding a qualification granted by an authority specified ornotified under Section 3 of the Indian Medical Degrees Act, 1916 (7 of 1916),or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of1956); or (ii) registered or eligible for registration in a medical register ofa State meant for the registration of persons practicing the modern scientificsystem of medicine (excluding the Homoeopathic system of medicine); or (iii)registered in a medical register (other than a register for the registration ofHomoeopathic practitioners) of State, who although not falling withinsub-clause (i) or sub-clause (ii) is declared by a general or special ordermade by the State Government in this behalf as a person practicing the modemscientific system of medicine for the purposes of this Act.
Thus the Apex Court was of the opinion that Governmentwas empowered to come out with a Notification permitting non-allopaths topractice modern scientific medicine and thus the order of the High Court wasstruck down. The Supreme Court further opined that for purposes of Rule 2 whatwas required was not the qualification in modern scientific system of medicinebut a declaration by a State Government that a person was practicing modernscientific system and that he was registered in a medical register of the State(other than a register for registration of Homoeopathic practitioners). Anotification could be found defective only if those requirements were notsatisfied.
The Supreme Court further concluded that the saidcircular and the notification issued by the said State Governments declaringthe categories of Vaids and Hakims who were practicing modern system ofmedicine and were registered in the State Medical Registers, as valid in law.
Therefore as things stand today all registered medicalpractitioners can store reasonable quantities of drugs and also sell the samewithout any licenses and the drugs inspectors can take no action against them.All non- allopathic practitioners who are covered by any Government Notificationwhich classifies their practice as practice under the modern scientific systemof medicine can deal with allopathic drugs. The drug inspectors also cannotissue directives to the chemists and the druggist not to honor allopathicprescriptions written by such practitioners.
(The writer is a medico-legal consultant and specializes inthe defense of doctors in the Consumer Forums/Commissions all over India. He isa retired Member of the Consumer Court Mumbai - Govt. of Maharashtra. E-mail:[email protected])