1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Revision No.173/2009 (Dr. Yusufkha Baismillakha Pathan ..Vs.. State of Maharashtra) --------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders --------------------------------------------------------------------------------------------------------------------- Mr. A. V. Bhide, Advocate for the applicant. Mrs. T. D. Khade, A.P.P. for the respondent. CORAM:- R. Y. GANOO, J. DATED :- 9 th OCTOBER,2009 1) Learned Advocate Mr.Bhide had made available to the Court xerox copy of notes of evidence, scene of offence panchnama Exh.24, copy of F.I.R. and statement of the accused under Sec.313 of the Code of Criminal Procedure. 2) The applicant was prosecuted under Sec.33 (1) (2) of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as “said Act”) in the Court of Judicial Magistrate First Class, Malkapur in Regular Criminal Case No.41/2006. The learned J.M.F.C. (hereinafter referred to as “learned trial Judge) decided the case by judgment and order dated 31st March, 2007 and convicted the applicant under Sec.33 (1) (2) of the said Act and sentenced him to suffer rigorous imprisonment for one year. 2 3) Being aggrieved by the judgment and order dated 31st March, 2007 the present applicant filed Criminal Appeal No. 15/2007 in the Court of the Principal Sessions Judge, Buldana. The learned Principal Sessions Judge, Buldana by judgment and order dated 10th September, 2009 dismissed the appeal. Against both these orders, the present applicant has filed this criminal revision. 4) It is the case of the prosecution that the present applicant was practicing in allopathy medicine at village Dhamangaon Badhe. On learning this fact, Dr. Sonone (PW-3), who was then attached to Primary Health Center, Dhamangaon Badhe along with Police staff on 16th February 2003 visited the place where the applicant was running his clinic. The applicant was called upon to produce a certificate of registration as provided under Sec.33 (1) and (2) of the said Act. The applicant produced a certificate “Ayurvedic Visharad and Ratna” from Allahabad (U.P.) as well as “Electropathy” from Pune. It is the case of the prosecution that the applicant could not produce necessary registration certificate as envisaged under Sec.33 (1) and (2) of the said Act. Based on these facts, the investigation was carried out, scene of offence panchnama was conducted wherein various allopathy medicines, a 3 stethoscope, blood pressure measuring apparatus, disposable syringes and other equipments and articles concerning allopathy medical practice, a board titled “Khan Clinic, Dr. Y. B. Khan” were seized. The statement of one lady namely Suman was recorded and was cited as a witness PW-4. She was cited on account of the fact that according to the prosecution, she was found in the dispensary of the applicant as a patient. This witness has turned hostile and her evidence is of no use to the prosecution. The scene of offence panchnama at Exh.24 is duly proved by the witness Gulabrao More (PW-6), who was the Inspector of Police at the relevant time and had participated in the raid. The evidence of another Police constable Sk. Khalil (PW-7) was recorded. The evidence of PSI Bhausaheb Satpute (PW-8) was also recorded in this regard and this witness has also spoken about as to what has transpired at the time of the raid. The panchas, who had participated in the scene of offence panchnama turned hostile and did not support the prosecution case. Based on the aforesaid material, the trial was conducted. Applicant came to be convicted as mentioned aforesaid. 5) Before the matter was taken up for admission, the applicant had surrendered to his bail. In view of the 4 confirmation of conviction by the learned Principal Sessions Judge and the surrender certificate produced by the learned Advocate for the applicant, as of today the applicant is in custody. 6) I have extensively heard learned Advocate Mr. Bhide, appearing on behalf of the applicant. I have also heard Learned A.P.P. Mrs. Khade, who supported the impugned judgments and who opposed the admission of the matter. I have with the assistance of learned Advocates gone through the entire evidence on record. An effort was made by learned Advocate Mr.Bhide to challenge the evidence of Dr. Sonone (PW-3) by contending that Dr. Sonone had not given various names of medicines which were said to be taken charge of under scene of offence panchnama. This argument cannot be accepted because the scene of offence panchnama clearly indicates as to what articles were taken charge of. The scene of offence panchnama has been duly proved through evidence of P.W.6 More, a Police Officer, who had participated in investigation and merely because the panchas who had attended the scene of offence panchnama refused to give evidence in favour of the prosecution the scene of offence panchnama cannot be disbelieved. Law, on this point, is very clear viz if the 5 evidence of the police officer, who has participated in conducting the scene of offence panchnama is trustworthy, the said evidence may be accepted. Nothing could be pointed out by the counsel for the applicant to show that the scene of offence panchnama should be disbelieved. 7) It was sought to be argued that no patient has been examined by the prosecution to show that the applicant was practicing in medicine. As far as this aspect is concerned, one patient by name Suman (PW-4) was undoubtedly examined. However, she did not support the prosecution. Be that as it may, the articles which came to be seized in the course of scene of offence panchnama clearly indicate that the applicant was practicing as a Doctor. The board which is referred to in the scene of offence panchnama described the applicant as “Dr. Khan”. The board as “Khan Clinic, Dr. Y. B. Khan” goes to show that applicant represented to the people at large that he has been practicing in medicine. This board cannot be seen in isolation as argued by learned Advocate Mr.Bhide. The seized medicines, the board and other articles such as stethoscope, blood pressure measuring instrument, disposal syringes and other equipments cannot be seen in isolation. All the above items will have to be considered to 6 judge the case of prosecution. On doing that it is clear the applicant was representing that he is a doctor and was carrying on his activity without proper registration under Section 33 (1) (2) of said Act in allopathy medicine. 8) It is not the case of the applicant that the place where the scene of offence panchnama and raid were conducted was his house so as to say that certain medicines could be kept in the house. The board seized in the course of investigation is a clinching evidence to show that the applicant was practicing in allopathy medicine. 9) I have with the assistance of learned Advocates on both the sides, perused the entire evidence. The evidence of Dr.Sonone (PW-3), Gulabrao More (PW-6), the Police staff Sk. Khalil (PW-7), Bhausaheb Satpute (PW-8) clearly go to show that suggestions were given to these witnesses that the applicant is practicing in Ayurvedic Faculty. If it has been the case of the applicant that he was practicing in Ayurvedic Faculty on the basis of certificate held by him, it was necessary for him to register in accordance with the provisions of Sec.33 (1) and (2) of the said Act and in absence of such a registration, the offence under Sec.33 (1) and (2) of the said Act was made out by the prosecution 7 beyond shadow of reasonable doubt. It is required to be mentioned that the applicant could not produce a certificate, as required under Sec.33 (1) (2) of the said Act, before the learned trial Judge, before the learned Principal Sessions Judge or even before this Court. The cross examination of the various witnesses will clearly go to show that the accused had taken a stand that he was practicing in Ayurvedic Faculty and even taking such a stand was contrary to his interest inasmuch as a person practicing in Ayurvedic Faculty is also required to be registered as per provisions of Sec.33 (1) and (2) of the said Act. Before the learned Principal Sessions Judge, a faint suggestion was made by the applicant to suggest that he was practicing in naturopathy or in electropathy medicines. This stand is again found to be contrary to what is discussed above. A person practicing in naturopathy or even in electropathy system would not keep with him the allopathy medicines, injections and would not style himself as a Doctor as is sought to be done by putting the board. 10) Learned Advocate Mr. Bhide had made strenuous effort to suggest that the evidence placed before the Court is not convincing so as to say that the offence is proved by the prosecution. I am not in agreement with the submission 8 of Mr.Bhide. In fact, the evidence placed before the Court is absolutely trustworthy. The scene of offence panchnama is not put to challenge. The various witnesses have stood the test of cross-examination. The investigation has been carried out in a proper manner. The prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and to that extent the courts below have appreciated the evidence in the proper perspective. 11) A faint argument was made that the F.I.R. does disclose in detail as to what articles were found in the premises, where the raid was conducted. It need not be restated that an F.I.R. need not be an encyclopedia. The prosecution itself is on a very limited footing that when Dr.Sonone (PW-3) and the investigating party went into the premises of the applicant by seeing what is at site an impression was created that the applicant is practicing in medicine and the applicant could not produce the necessary registration certificate. The crux of the matter before the learned trial Judge was non-production of required medical registration certificate in the face of the various articles found in the seizure panchnama at Exh.24. 12) Looking to the facts and circumstances and the record 9 from any angle, I am inclined to hold that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. Both the courts below appreciated the evidence in a proper perspective and no fault can be found to say that they have committed any error while deciding the matter. It is not the case of the applicant that he was not permitted to put up his defence in the proper perspective. Record clearly indicates that the applicant had full dressed trial and had a full opportunity to put his defence and to that extent there is no violation of principles of natural justice. 13) Insofar as the question of sentence is concerned, the learned J.M.F.C. has sentenced the applicant to suffer rigorous imprisonment for one year, which is the minimum sentence provided under Sec.33 (1) and (2) of the said Act. In fact, it was necessary for the learned trial Judge to impose fine as provided in the said Act. To the good luck of the applicant, the fine has not been imposed. At this juncture, I do not wish to interfere on the question of imposition of any fine upon the applicant. The learned trial Judge has imposed minimum punishment and there is no reason to interfere in the same. 10 14) For the reasons mentioned aforesaid, no interference is required in revisional jurisdiction of this Court and the revision is required to be dismissed at the stage of admission itself. Hence, I pass the following order. The revision application is dismissed. JUDGE Khunte