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 ()

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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:
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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:
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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 ()
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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.
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Crl.M.C.No. 1349 of 2016
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Dated this the 3rd day of January, 2017

ORDER

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