YOGESHEAR JAYRAM KAMBLE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant, who is the original accused in R.C.C. No.457 of 2008, has preferred this Criminal Revision Application against the judgment and order dated 02.01.2018 passed by the Sessions Judge, Parbhani in Criminal Appeal No.45 of 2012 confirming thereby the conviction of the accused under Section 33(2)(a) of the Maharashtra Medical Practitioners Act, 1961.

(2.) Brief facts giving rise to the present Criminal Revision Application are as follows:

(3.) Learned counsel for the applicant submits that there is an inordinate delay of two days in filing the FIR without any explanation. Learned counsel submits that the present Criminal Revision Application has been preferred only to the extent of the confirmation order passed by the learned Sessions Judge in the appeal to the extent of the conviction recorded against the applicant under Section 33(2)(a) of the Act of 1961. Learned counsel submits that the description of the said medicine alleged to have been seized from the possession of the applicant has not been mentioned either in the panchnama or in the muddemal list. The prosecutrix Padminbai has not deposed about handing over of the medicine to the Investigating Officer at the time of lodging of the complaint or subsequent thereto. Learned counsel submits that the Investigating Officer has not sealed the said medicines allegedly seized from the possession of the applicant/accused and also not sent the said medicines or sample thereof to the Government lab. The Investigating Officer has sent those medicines to one Medical Officer attached to the Primary Health Center, Daithana. The prosecution has examined PW 7Dr. Farookh Sharif Maniyar, who happened to the said Medical Officer attached to the Primary Health Center, Daithana. Learned counsel submits that the evidence of PW 7 is inconsistent and vague. He has failed to describe the medicines sent to him by the Investigating Officer along with a letter. The said letter has also not been produced on record, nor the prosecution has examined the said constable who had taken the said medicines to this witness. Learned counsel submits that even the certificate Exhibit 48 issued by PW 7 Dr. Farookh Maniyar only refers the medicines brought before him as allopathic medicine and the medicines can be prescribed by only a registered medical practitioner and not by any private unregistered practitioner. PW 7 Dr. Farookh Maniyar has not given details of the said medicines in the certificate Exhibit 48. Learned counsel submits that both the courts below have not considered this material aspect of the case and convicted the accused for the offence punishable under Section 33(2)(a) of the Act of 1961. Learned counsel submits that in terms of the provisions of Proviso (iv) to Section 2(2) of the Act of 1961, a person who, without personal gain furnishes medical treatment or does domestic administration of family remedies, shall not be deemed to practise medicine for the purpose of Section 33 of the Act of 1961. The judgment and order of conviction under Section 33(2)(a) of the Act of 1961 by the courts below is thus liable to be quashed and set aside and the applicant/accused may be acquitted of the aforesaid offence under the Act of 1961.