ORDER
1. The petitioner seeks for the issue of a writ of mandamus or any other writ or direction, directing the respondent not to interfere with the petitioner's practice in Homoeopathy System of Medicine in Thiruvithan Code, Kanyakumari District, Nagercoil and to direct the 3rd respondent to deliver the articles seized under mahazar dated 7-2-1988 from the premises of Baragath Clinic, Tinivithan Code to the petitioner.
2. The respondents have entered appearance through the Government Pleader. The respondents have not filed a counter in the writ petition despite they have been given sufficient time. Even at the lime of final hearing also, the respondents have not chosen to file their counter. The writ petition was taken up for hearing on 18-1-1997, 20-1-1997, 4-2-1997 and 10-2-1997. Despite sufficient opportunity being given even after listing of the case for final disposal, the Government Advocate has not chosen to file counter nor did he make valid submissions. This has also been recorded by this Court on 4-2-1997 as well as 10-2-1997. Excepting pleading that the bundle is not available, no attempt has been made by the Government Advocate to represent the case. Despite time being granted even after the listing of the writ petition for final disposal and even after it had been taken up for hearing and remained part heard, the respondent have kept quiet and they have not chosen to file their counter. At least they could have filed a counter affidavit. In the circumstances, this Court has reserved orders on10-2-1997.
3. It is also to be pointed out that the order of interim injunction granted by this court in W.M.P. No. 2386 of 1988 dated 26-2-1988 against the respondents 2 and 3 has been in force. The said respondents have not taken any steps to move this court to vacate the orders of interim injunction.
4. It is the specific case of the petitioner that he is a registered Homoeopathy Medical Practitioner and he is entitled to practise Homoeopathy system of Medicine only. To satisfy as to whether the petitioner is a registered Homoeopathy Medical Practitioner or not, this Court called upon the writ petitioner to produce the materials. The learned counsel for the petitioner (sic) placed before me, a copy of the Gazette dated 14-6-1989 wherein the notification issued by the Tamil nadu Homoeopathy Council, Madras had been published. The Register of Registered Homoeopathy Medical Practitioners from the year 1987 and 1988 have been published in the said Gazette. The name of the writ petitioner finds a place in Serial No. 234 his Registration No. being 1310 and he has registered himself as Homoeopathy Medical Practitioner on 20-3-1985. Thus, it is evident that the writ petitioner is a registered Homoeopathy Medical Practitioner and registered under the Tamil Nadu Homoeopathy System of Medicine and Practioners of Homoeopathy, Act, 1972. Chapter III of the Act provides for Registration of Practitioners under the Homoeopathy System of Medicine founded by Dr. Hahnemann. Homoeopathy has been defined in Section 2(5) which reads thus:--
'Homoeopathy' means the system of medicine founded by Dr. Hahnemann and includes Schussler's system of biochemic remedies and the expression 'homoeopathic' shall be construed accordingly'.
Section 15 of the Act provides for Registration of practitioners. As such, the petitioner, who is registered under the Tamil Nadu Homoeopathy Council, in terms of the statutory provisionsof the Tamil Nadu Act 5/72, is entitled to practice the Homoeopathy System of Medicine. It is also evident that he is not entitled to practise any other system of Medicine. So long as the petitioner, practises the Homoeopathy System of Medicine, his practice of Homoeopathy System of Medicine, cannot be interfered with by the respondents.
5. The petitioner is entitled to practise, Homoeopathy System of Medicine, so long as heconfirms to the statutory provisions of the Tamil Nadu Act 5/72. The petitioner claims that he has the fundamental right as enshrined in Article 19(1)(g) of the Constitution to practise Homoeopathy System of Medicine subject to the reasonable restrictions that could be imposed by the State, as provided in Article 19(6) of the Constitution. As seen from the certificate of Registration produced, it could be taken that the petitioner satisfied the requirement prescribed under Tamil Nadu Act 5/72 and he is a qualified person to practise Homoeopathy System of Medicine.
6. In the affidavit specific averments have been made by the petitioner against the 3rd respondent. It is essential to set out the very averments in the words of the writ petitioner himself. The relevant portion of the affidavit reads thus :--
'3. I submit that I have been registered as Homoeopathy Medical Practitioner in 'C' class and thereafter I also passed in the Examination conducted by the Tamil Nadu Homoeopathy Council (Authority constituted under Section 3 of the above said Act) during December, 1975 and I have been conferred with the status of Registered Medical Practitioner as per the certificate issued by the above council under certification No. 13010 dated 20th August, 1985 at Madras. I submit that as per Section 15 and 26of the Homoeopathy Act, 1971, I am entitled to practise Homoeopathy System of Medicines in the State of Tamil Nadu, I submit that the above said certificate is issued under Section 15(b) of the Act.
3. I submit that I have been practising Homoeopathy System of Medicine at Baragath Nanzil, New Street, Thiruvilhan Code for the last 18 years. I have my clinic, in the said address. I have also displayed a Board containing the particulars of practice. I have also to submit that inside my clinic I have displayed copy of the registration issued by the said council dated 20th August, 1985. I also submit that Homoeopathy System of Medicine is very well advanced, using of stethoscope is very much needed and syringe and injection needle are also essential for drawing out certain medicines from sealed containers and for preparation of various compound and medicines. I also submit that, while so, on 7-2-1988 at about 1 'O' clock, the third respondent herein the Sub-Inspector of Police, Thucklay attached to the Thucklay Police Station without a proper warrant issued by the competent authorityentered into the clinic in the abovesaid address and conducted an illegal search in the clinic premises and look away my stethoscope and injection syringe and other medical equipment. He also removed she hoard of my clinic and abused me of being fraudulent doctor and a cheat and showed out of my clinic into road. He warned me out carry on the profession of Homoeopathy Clinic or elsewhere and he threatened to arrest me. He took the above said articles and medical instruments and the hoard with him and gave a seizure mahazar copy to me intimating that he has taken the stethoscope injection needle and name board.
4. I submit that immediately I obtained anticipatory bail from the Sessions Court, Nagercoil. After that, the 3rd respondent herein tried to arrest me and when I showed the order of the Court, I was let out I submit that I am entitled to practise Homoeopathy as Practitioner as per Sections 15, 25 and 26 of the above said Act and I possess a valid certificate. I also submit that when I approached my counsel at Madras, My counsel also wrote a letter to the Registrar Tamil Nadu Homoeopathy.Council and obtained from them a letter slating that I am entitled to practise Homoeopathy system in the State of Tamil Nadu under his Ref. No. 68/TNHC/88 dated 15-2-1988. I submit that the respondents are violating my fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India to practise and profess any profession. I submit that 1 am a registered medical practitioner entitled to practise under the above said Act. The respondents are duly bound to see practice of my medical profession is not hindered by subordinate Police official like Sub-Inspector of Police Thucklay Police Station, Thucklay.'
7. The learned counsel for the respondent is unable to meet the specific averments set out in the affidavit filed by the petitioner. No counter has been filed. The learned counsel for the respondents is not in a position to controvert any one of the averments. In the circumstances in the above absence of denial by filing a counter-affidavit the averments set out in the affidavit have to be accepted and have to be taken as true and correct. In the absence of any denial and in the absence of any counter-filed by any one of the respondents and in particular the 3rd respondent, this Court has to accept what has been set out by petitioner and proceed on that basis. Thus, theentire action of the 3rd respondent is in violation of the petitioner's fundamental right guaranteed under Article 19(1)(g) of The Constitution. Had not the petitioner registered himself as a practitioner under the Tamil Nadu Act 5/72, the respondents are entitled to take action in terms of Chapter IV of the Act which provides for taking action against the writ petitioner. This is not the case here. Had the petitioner been practising in a system other than Homoeopathy System of Medicine, even then action could be taken by the 3rd respondent against the petitioner as the petitioner is not qualified to practise in the other system. There is restriction with respect to the practice of a particular system of medicine, unless otherwise qualified and permitted to practise under the Medical Council constituted for the purpose under the statutory provisions. Viewed from the said legal position, it is obvious that the action of the 3rd respondent is arbitrary, illegal and had resulted in violation of petitioner's fundamental right, besides causing serious prejudice to the petitioner. It is true that no averment had been made by the petitioner against respondents 1 and 2. Therefore, it is obvious that respondents 1 and 2 have not interfered with the petitioner's profession and practice of Homoeopathy System of Medicine. It was not brought to my notice that the 3rd respondent had prosecuted the petitioner for any offence either under the Indian Penal Code or under the provision of Tamil Nadu Homoeopathy System of Medicine and Practitioners of Homoeopathy Act, 1971 or Indian Medical Practitioners Act or under any other statutory provisions. The 3rd respondent. Inspector of Police, while investigating a crime has got the power to inspect, search or seize the materials, provided, he has the reason to believe that an offence has been or is being committed. The 3rd respondent has not come forward to file a counter to controvert the averments set out in the affidavit filed in support of the writ petition. After the incident dated 7-2-88 no action had been taken by the third respondent for any offence nor the writ petitioner had been prosecuted for any crime. The petitioner has the fundamental right to practise in Homoeopathy System of Medicine as he is a registered practitioner and the action of the 3rd respondent in interfering with the said practise of the petitioner is arbitrary and highhanded. If the 3rd respondent had come forward or if the 3rdrespondent prosecuted the petitioner for any offence or lodged a complaint with the council, there could he no difficulty as the prosecution that might have been launched against the petitioner would have received attentions of the competent Criminal Court or the connucil constituted under the Tamil Nadu Act 5/72. No such action has been taken by the respondents following the search conducted on 7-2-1988 and seizure of articles from the petitioner's premises. The search and seizure conducted by the third respondent and in particular the treatment mealed out by the petitioner in the hands of the 3rd respondent detailed above are uncalled for, illegal arbitrary and it is a clear abuse of power. In these circumstances, the petitioner is entitled to the relief prayed for in the writ petition.
8. The 2nd respondent also being the head of the Police force in the District had not taken any action against the 3rd respondent nor he had filed a counter-affidavit, being a party to the writ petition. The entire conduct and action of the 3rd respondent as detailed above is complained of in the writ petition. The said action of the 3rd respondent has to be viewed seriously as he had interfered with the fundamental rights of the writ petitioner. The very fact that the 3rd respondent had not been taken any further action or follow up the action against the writ petitioner would show that there is no basis or whatsoever for the interference by the 3rd respondent with the practice of profession by the writ petitioner. Therefore, the action of the 3rd respondent has to be viewed seriously. As already stated above, had there been a follow up action or prosecution or any other action, by the 3rd respondent or any other police officers, this Court may not be inclined to draw adverse inference as there may be room to suggest that he had acted with reasonable belief and may as well have the protection as a public servant. But there has been total inaction after the search and seizure. No particulars have been placed before the Court by the 3rd respondent or that matter, the 2nd respondent as to whether any further action or stage have been taken against the writ petitioner.
9. The learned counsel appearing for the petitioner placed a copy of the First Information Report in Crime No. 942 of 1987 registered by third respondent for an alleged offence under Section 420, I.P.C. on the file of Thucklay P. S.registered against the petitioner. The First Information has been received on 16-12-1987 at 7.00 a.m. and one Ramaswamy had given the information. On 16-12-1987 it has been alleged by the said Ramaswamy that the writ petitioner had been practicing for the last two years and he had been cheating the public by representing that he is a Doctor while actually he is not educated himself and he is not a qualified Doctor. This information has been given on 16-12-1987. Nothing prevented the 3rd respondent to investigate or take action immediately thereof while so, only on 7-2-1988, he had entered into the petitioners' clinic and conducted search and seized some materials without a proper mahazar. The first information is dated 16-12-1987 and if that is being the factual position, the 3rd respondent could have taken action immediately thereof or within a reasonable time and lie need not wait till 7-2-1988. Thus, it is clear that turns out that the third respondent had attempted to rely upon the said FIR as a ruse and the action taken on the part of the 3rd respondent is illegal and nothing hut abuse of power. The conduct of the 3rd respondent in the absence of any counter-affidavit and the failure on the part of the 3rd respondent to explain his conduct in conducting to search in the petitioner's premises seizure of articles is illegal, highly arbitrary and uncalled for. The Apex Court in Krishnan Kakkanath v. Govt. of Kcrala reported in : AIR1997SC128 had held thus (at page 135; of AIR) :
'Fundamental rights guaranteed under Article 19 of the Constitution arc not absolute but the same arc subject to reasonable restrictions to be imposed against enjoyment of such rights. Such reasonable restriction seeks to strike a balance between the freedom guaranteed by any of the clause under Article 19(1) and the social control permitted by the Cls. (2) to (6) under Article 19.
25. The reasonableness of restriction is to be determined in an objective manner and from the stand point of the interests of general public and not from the standpoint of the interests of the persons upon whom the restrictions are imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly and even if the persons affected be petty traders ( : [1959]1SCR629 , Hanif v. State of Biliar). In determining theinfringement of the right guaranteed under Article 19(1) the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, enter into judicial verdict. : [1981]3SCR92 , Laxmi v. State of U.P. ; Treveil v. State of Gujarat (sic) and Harakchand v. Union of India. : [1970]1SCR479 ).
26. Under Clause (1)(g) of Article 19, every citizen has a freedom and rights to choose his own employment or take up any trade or calling subject only to the limits as may be imposed by the State in the interests of public welfare and the other grounds mentioned in Clause (6) of Article 19.....'
10. In the circumstances, this Court had to view the action taken by the 3rd respondent seriously. This Court expects that necessary action v ill be initiated by the Chief of Police force in the Suite against the concerned individual Inspector of Police, who had conducted the illegal search and seizure of the petitioner's premises on 7-2-1988. A copy of this order is ordered to be communicated to the Director General of Police for necessary action,
11. This Court is not granting any relief against the 1st respondent as no averment has been made by the petitioner in his affidavit. However, relief is granted not only against the 3rd respondent but also against the 2nd respondent, as the 2nd respondent is the controlling Authority at the District level and who supervise the 3rd respondent or other police officials in the District, as the fundamental.
12. In the circumstances, the writ petition is allowed with exemplary costs of Rs. 5000/-against third respondent. It is further directed that the said costs of Rs. 5,000/- be recovered from the individual who held that post of Inspector of Police. Thucklay as on 7-2-1988. The individual Inspector of Police at whose hands the writ petitioner suffered humiliation and harassment had to pay the cost. Rule NISI is made absolute. It is made clear that the petitioner could practice Homeopathy system of Medicine alone.
W.M.P. No. 2387 of 1988
The 3rd respondent is directed to handover the articles seized from the petitioner's premises on7-2-1988. However, the details of articles could not be specified since no list of articles have been mentioned even in this W.M.P. filed by the petitioner for this purpose. There will be a direction in this W.M.P. as prayed for.
13. Petition allowed.