R/CR.MA/10039/2014 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 10039 of 2014 ============================================= PRIYAKANT MOHANLAL KAPADIA….Applicant(s) Versus STATE OF GUJARAT & 1….Respondent(s) ============================================= Appearance: MR SAMIR J DAVE, ADVOCATE for the Applicant(s) No. 1 MR NIKHILESH J SHAH, ADVOCATE for the Respondent(s) No. 2 MS JIRGA JHAVERI, APP for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR.JUSTICE C.L. SONI Date : 23/03/2015 ORAL ORDER [1] The applicant who is Doctor by profession has filed present application under section 482 of the Code of Criminal Procedure (“the Code” for short) seeking to quash the complaint at Annexure A registered as Criminal Case No.1423 of 2013 on 15.10.2013 for the offence under sections 4(3), 29 of the PreConception and PreNatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the Act” for short) and Rules 9(1), 9(4), 9(6), 9(8), 10(1A) and 13 of the the PreConception and PreNatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (“the Rules” for short). [2] The gist of allegations as stated in the complaint reads as under : “During the search and seizure procedure on studying the records searched and produced by Dr. Kapadia, following contraventions were observed : Page 1 of 16 R/CR.MA/10039/2014 ORDER 1. A register with name and age of the pregnant women and men subjected to the Sonography, with spouse name, address etc. is not maintained at clinic since last 2 years (Rule 9(1) is contravened) 2. Deficiencies in Record keeping : On examination of 68 form “F” of time period from 3/11/2012 to 26/09/2013 were found filled up incompletely. Complete record of last 2 years was not produced (Section 4(3) and 29 is contravened) In these total 68 form “F” the deficiencies were encircled were given serial no.1 to 68 and were seized on 5/10/2013 in presence of the witnesses as the proof of the contravention of the Act. The deficiencies and inaccuracies in form F is shown below : i. In Sr.No. 3,4,8,9,11,12,14,16,17,23,37,50 and 62 of Form “F”, point no.4 “Number of children with sex of each child” was not filled up by Dr. Kapadia. ii. In Sr.No.4,12,17,19,21,23,26,27,28,36 and 50 of Form “F”, point no.6 “Full address with Tel. No. if any” was not filled up by Dr. Kapadia while Tel.No. Was not shown in Sr. No.1,2,3,5 to 11, 13 to 16, 18,20,22,24, 25, 29 to 35, 37 to 49, 51,52, 53, 55, 59, 60, 63, 66, 67 and 68 of Form F. iii. Particulars in all seized 68 forms point no.7 “Referred by (full name and address of Doctor (s) / Genetic Counseling Center”) were not shown by Dr. Kapadia. While in point no.8 “Last menstrual period / weeks of pregnancy” was not filled up in Sr. No.41 of Form F. iv. In Sr. No. 35, 38, 43 to 48 “Indication for prenatal diagnosis” is not filled up. Page 2 of 16 R/CR.MA/10039/2014 ORDER v. Particulars in all seized 68 forms point no. 14 “Result of ….” were not filled up by Dr. Kapadia. vi. In Sr. No.1 to 41 of Form F, point no.15 “Date(s) on which procedures carried out” is not filled up. vii. Particulars in all seized 68 forms, points nos.17, 18 and 19 were not filled up by Dr. Kapadia. viii. In Sr.No.9, 21, 36 and 41 of Form F in “Declaration of pregnant women” part of the form “F” signature of pregnant woman was not obtained by Dr. Kapadia and “Declaration of Doctor / person conducting ultrasonography / image scanning” part of Form “F” was not signed by Dr. Kapadia. ix. Form “F” of Sr. No.45 to 46 and 47 to 48 were found both original and carbon copies during the visit on 5/10/2013 and there are reasons to believe that it was not sent with a view to conceal the information from the appropriate authority showing bad intention of not submitting form F (Rule 9(8) is contravened). Sixty eight (68) such forms were seized as evidence of the offence marking the relevant parts of the form “F” with a circle and putting sign of the witnesses and DAA with the date. These totally 68 forms “F” given serial no.1 to 68 were seized on 05/10/2013 in presence of the witnesses, as the proof of the contraventions of the Act. Thus section 4(3), 29 and the Rules 9(1), 9(4), 9(6), 9(8) are contravened. 3. Registered Sonography machine at the time of clinic registration LOGIQ BOOK was not found during the visit on 5/10/2013. As per Doctor’s statement if was not as Buy back scheme Page 3 of 16 R/CR.MA/10039/2014 ORDER to the GE Company in September 2011 without any intimation to the DAA and new ultrasonography machine LOGIQ – C5, Sr. No. 199687 WX5 of GE Medi Systems was installed at the clinic on dated 12/09/2011. That is also not informed to the DAA (Rule 13 contravened) 4. On date 13/09/2013, a decoy pregnant lade was sent at Dr. Kapadia’s hospital for sonography purpose. Sonography was done and complete file with sonography report, prescription and image print of sonography done by Dr. Kapadia was given to the decoy, but her form “F” was not filled up under the provisions of the PC and PNDT Act. The decoy has given written statement to DAA to cooperate be be a decoy for exposing the offenders of the PC and PNDT Act. After undergoing the sonography, the decoy gave a written statement to DAA that before, during and after the sonography on 13/09/203, neither any form was filled up nor her signature was obtained by at the clinic of Dr. Kapadia. This was confirmed by studying the form “F” for September 2013 submitted by Dr. Kapadia where in the form “F” of the decoy was not sent to the office of Appropriate Authority, Ahmedabad. The statements of the decoy were shown to and read by the witnesses during the procedure on 05/10/2013. This shows that sonography of the decoy was done, form “F” was not filled up and was not sent to DAA (Rule 9(4) and 9(8) contravened). 5. As per the directions of the Hon’ble Gujarat High Court’s oral judgment dated 26/02/2010 in SCA No. 11531/2006, Dr. Kapadia has not started online reporting in spite of repeated instructions and also notice issued on dated 26/09/2013 and hence failed to obey the order of Hon’ble Gujarat High Court (Annexure). Page 4 of 16 R/CR.MA/10039/2014 ORDER The deficiencies and inaccuracies in record keeping as evident from the facts mentioned above is the breach of provisions of the Act. The decision for sealing of the USG machine of the clinic was taken to obtain further evidence of the offence. Hence, ultrasound machine Make – GE Medi System Model – Logiq C5 Sr.No.199687 WX 5 of the accused was sealed in presence of the witnesses and placed at the place, at the premises of the clinic of the accused as per written request of Dr. Kapadia, after written assurance by Dr. Kapadia to safeguard the machine and the seal a
pplied to it. A “panchnama” was done to document the transparency of the procedure, a list of the documents seized was prepared and both were signed by the witnesses and DAA handed over to Dr. Kapadia under acknowledgment.” [3] Learned advocate Mr. Dave for the applicant has urged that on two grounds the complaint filed before the lower Court is required to be quashed (1) search and seizure made at the clinic of the applicant was not with two independent witnesses but they were from the very District Panchayat where complainant is serving as District Health Officer and functioning as appropriate authority under the Act and (2) that prior to lodging the complaint no notice as contemplated under section 20(1) of the Act was issued to the applicant and therefore, the complaint itself is not maintainable. [4] Learned advocate Mr. Shah and Ms. Jhaveri for respondents submitted that the contents of the complaint do make out offences Page 5 of 16 R/CR.MA/10039/2014 ORDER alleged against the applicant. Mr. Shah submitted that whether witnesses who accompanied the complainant at the time of search and seizure were independent or not, is a matter of appreciation of evidence before the Court below. Mr. Shah submitted that the provisions of the Act clearly authorize the appropriate authority to make search of the place where breach of the Act is stated to have taken place and as stated in the complaint, search and seizure was carried out with the witnesses and as per provisions of section 30(2) of the Act, provisions of the Code of Criminal Procedure relating to search and seizure are to apply as far as possible and therefore, complaint at this stage cannot be quashed on the ground that the search was not made with the help of independent witnesses. Mr. Shah submitted that so far as service of notice as provided under section 20(1) of the Act is concerned, same is for the purpose of taking civil action and not for initiating any criminal action for breach of provisions of the Act and the Rules. [5] Having heard learned advocates for the parties, the Court finds from the contents of the FIR that several breaches punishable under the Act are alleged against the applicant. [6] The Act is to provide for the prohibition of sex selection before or after conception and for regulation of prenatal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex lined disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. [7] To achieve the object and purpose of the Act, various provisions are made in the Act which read as under : Page 6 of 16 R/CR.MA/10039/2014 ORDER Section 4 Regulation of prenatal diagnostic techniques. On and from the commencement of this Act, (1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting prenatal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3); (2) no prenatal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely: (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sexlinked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board; (3) no prenatal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied that any of the following conditions are fulfilled, namely: (i) age of the pregnant woman is above thirtyfive years; (ii) the pregnant woman has undergone of two or more spontaneous abortions or foetal loss; (iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals; (iv) the pregnant woman has a family history of mental retardation or physical deformities such as spasticity or any other genetic disease; (v) any other condition as may be specified by the Central Supervisory Board; Provided that the person conducting ultrasonography on a pregnant Page 7 of 16 R/CR.MA/10039/2014 ORDER women shall keep complete record thereof in the clinic in such manner, as may be prescribed and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or section 6 unless contrary is proved by the person conducting such utrasonography; (4) no person including a relative or the husband of the pregnant woman shall seek or encourage the conduct of any prenatal diagnostic techniques on her except for the purpose specified in clause (2). (5). no person inducing a relative or husband of a woman shall seek or encourage the conduct of any sex selection technique on her or him or both. Section 5. Written consent of pregnant woman and prohibition of communicating the sex of foetus. (1) No person referred to in clause (2) of section 3 shall conduct the prenatal diagnostic procedures unless (a) he has explained all known side and after effects of such procedures to the pregnant woman concerned; (b) he has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and (c) a copy of her written consent obtained under clause (b) is given to the pregnant woman. (2) No person including the person conducting prenatal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives the sex of the foetus by words, signs or in any other manner. Section 22 : Prohibition of advertisement relating to pre – conception and prenatal determination of sex and punishment for contravention. (1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall Page 8 of 16 R/CR.MA/10039/2014 ORDER issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any form, including internet, regarding facilities of prenatal determination of sex available at such Centre, Laboratory, Clinic or any other place. (2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated regarding prenatal determination of pre conception selection of sex by any means whatsoever, scientific or otherwise. (3) Any person who contravenes the provisions of subsection (1) or subsecti
on (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees. Section 24 : Presumption in the case of conduct of prenatal diagnostic techniques. Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872), the court shall presume unless the contrary is proved that the pregnant woman was compelled by her husband or the relative, as the case may be, to undergo prenatal diagnotic technique for the purposes other than those specified in subsection (2) of section 4 and such person shall be liable for abetment of offence under subsection (3) of section 23 and shall be punishable for the offence specified under that section. [8] Subsection (1) of Section 20 provides for issuance of show cause notice before taking any action for cancellation or registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic. Sub – section (2) of Section 20 provides for taking of action after giving reasonable opportunity of being heard. But such action as stated in subsection (2) is without prejudice to any criminal action that the authority may take against the Center or Laboratory or Clinic. Page 9 of 16 R/CR.MA/10039/2014 ORDER Subsection (3) of Section 20 starts with non obstance clause and in consonance with the object of the Act, it is provided that in public interest the authority may even take action for suspending registration of the clinic or laboratory by recording reasons even without issuing notice under subsection (1). [9] From section 20 of the Act, it clearly appears that two actions are independent to each other. One is civil action of cancellation of registration and / or suspending registration and another is of taking criminal action. If sub section (2) of section 20 provides for taking of action of cancellation of registration without prejudice to any criminal action, service of notice before taking criminal action, as submitted by Mr.Dave is not required. However, Mr. Dave relied on Full Bench decision of this Court in the case of Suo Motu v/s. State of Gujarat reported in 2009 Cri.L.J. 721 and submitted that the Full Bench has ruled that even for taking criminal action for breach of violation of sections 5 and 6 of the Act, prior notice is must and if there is no notice, then prosecution cannot be said to be validly instituted. [10] Before the Full Bench, following questions were referred by the learned Single Judge : “(i) Whether under the provisions of section 28 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in this behalf by the Appropriate Authority? (ii) Whether the provisions of the proviso to subsection (3) of section 4 of the PNDT Act require that the complaint should contain specific allegations regarding the contravention of the provisions of sections 5 Page 10 of 16 R/CR.MA/10039/2014 ORDER and 6 of the Act? (iii) Whether the burden lies on the authority to prove that there was contravention of the provisions of section 5 or 6 of the PNDT Act? (iv) Whether any deficiency of inaccuracy in filing FormF as required under the statutory provisions is merely a procedural lapse?” [11] In the context of above said questions referred, the Full Bench has held and observed in paragraph nos.8 and 9 as under : “8. It needs to be noted that improper maintenance of the record has also consequences other than prosecution for deemed violation of section 5 or 6. Section 20 of the Act provides for cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic in case of breach of the provisions of the Act or the Rules. Therefore, inaccuracy or deficiency in maintaining the prescribed record shall also amount to violation of the prohibition imposed by section 6 against the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and expose such clinic to proceedings under section 20 of the Act. Where, by virtue of the deeming provisions of the proviso to subsection (3) of section 4, contravention of the provisions of section 5 or 6 is legally presumed and actions are proposed to be taken under section 20, the person conducting ultrasonography on a pregnant woman shall also have to be given an opportunity to prove that the provisions of section 5 or 6 were not violated by him in conducting the procedure. Thus the burden shifts on to the person accused of not maintaining the prescribed record, after any inaccuracy or deficiency is established, and he gets the opportunity to prove that the provisions of sections 5 and 6 were not contravened in any respect. Although it is apparently a heavy burden, it is legal, proper and justified in view of the importance of the Rules regarding maintenance of record in the prescribed forms and the likely Page 11 of 16 R/CR.MA/10039/2014 ORDER failure of the Act and its purpose if procedural requirements were flouted. The proviso to subsection (3) of section 4 is crystal clear about the maintenance of the record in prescribed manner being an independent offence amounting to violation of section 5 or 6 and, therefore, the complaint need not necessarily also allege violation of the provisions of section 5 or 6 of the Act. A rebuttable presumption of violation of the provisions of section 5 or 6 will arise on proof of deficiency or inaccuracy in maintaining the record in the prescribed manner and equivalence with those provisions would arise for punishment as well as for disproving their violation by the accused person. That being the scheme of these provisions, it would be wholly inappropriate to quash the complaint alleging inaccuracy or deficiency in maintenance of the prescribed record only on the ground that violation of section 5 or 6 of the Act was not alleged or made out in the complaint. It would also be improper and premature to expect or allow the person accused of inaccuracy or deficiency in maintenance of the relevant record to show or prove that provisions of section 5 or 6 were not violated by him, before the deficiency or inaccuracy were established in court by the prosecuting agency or before the authority concerned in other proceedings. 9. Upon above analysis and appreciation of the scheme and provisions of the Act and Rules made thereunder, opinion on issues referred to the larger bench is as under: (i) Under the provisions of section 28 of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (“the PNDT Act”), a Court can take cognizance of an offence under the Act on a complaint made by any officer authorised in that behalf by the Appropriate Authority. (ii) The proviso to subsection (3) of section 4 of the PNDT Act does Page 12 of 16 R/CR.MA/10039/2014 ORDER not require that the complaint alleging inaccuracy or deficiency in maintaining record in
the prescribed manner should also contain allegation of contravention of the provisions of section 5 or 6 of the PNDT Act. (iii) In a case based upon allegation of deficiency or inaccuracy in maintenance of record in the prescribed manner as required under subsection (3) of section 4 of the PNDT Act, the burden to prove that there was contravention of the provisions of section 5 or 6 does not lie upon the prosecution. (iv) Deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the PNDT Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the PNDT Act and has to be treated and tried accordingly. It does not, however, mean that each inaccuracy or deficiency in maintaining the requisite record may be as serious as violation of the provisions of section 5 or 6 of the Act and the Court would be justified, while imposing punishment upon conviction, in taking a lenient view in cases of only technical, formal or insignificant lapses in filling up the forms. For example, not maintaining the record of conducting ultrasonography on a pregnant woman at all or filling up incorrect particulars may be taken in all seriousness as if the provisions of section 5 or 6 were violated, but incomplete details of the full name and address of the pregnant woman may be treated leniently if her identity and address were otherwise mentioned in a manner sufficient to identify and trace her. (v) The judgment in Dr.Manish C. Dave v. State of Gujarat reported in 2008 (1) GLH 475 stands overruled to the extent it is inconsistent with the above opinion. The references stand disposed Page 13 of 16 R/CR.MA/10039/2014 ORDER accordingly.” [12] As rightly submitted by Mr. Shah that the Full Bench has nowhere laid down that absence of show cause notice under section 20(1) would in any way render prosecution invalid. [13] It is pertinent to note that as per proviso to subsection (3) of section 4 of the Act, any deficiency or inaccuracy in keeping complete record by the person conducting ultrasonography on female amounts to contravention of section 5 and 6 of the Act, unless contrary is proved by the person conducting such ultrasonography. As held by the Full Bench deficiency or inaccuracy in filling Form F prescribed under Rule 9 of the Rules made under the Act, being a deficiency or inaccuracy in keeping record in the prescribed manner, it is not a procedural lapse but an independent offence amounting to contravention of the provisions of section 5 or 6 of the Act and has to be treated and tried accordingly. Section 23 of the Act makes contravention of any provisions of the Act and Rules including section 5 and 6 of the Act and Rule 9 of the Rules punishable. [14] As stated above, subsection (2) of section 20 is for taking independent action of cancellation of registration without prejudice to any criminal action. It would be profitable to reproduce observations made by the Full Bench in Paragraph no.7 which reads as under : “7. As seen earlier, the Act and the Rules made thereunder provide for an elaborate scheme to ensure proper implementation of the relevant legal provisions and the possible loopholes in strict and full compliance are sought to be plugged by detailed provisions for maintenance and preservation of records. In order to fully Page 14 of 16 R/CR.MA/10039/2014 ORDER operationalise the restrictions and injunctions contained in the Act in general and in sections 4, 5 and 6 in particular, to regulate the use of prenatal diagnostic technique, to make the pregnant woman and the person conducting the prenatal diagnostic tests and procedures aware of the legal and other consequences and to prohibit determination of sex, the Rules prescribe the detailed forms in which records have to be maintained. Thus the Rules are made and forms are prescribed in aid of the Act and they are so important for implementation of the Act and for prosecution of the offenders, that any improper maintenance of such record is itself made equivalent to violation of the provisions of sections 5 and 6, by virtue of the proviso to subsection (3) of section 4 of the Act. It must, however, be noted that the proviso would apply only in cases of ultrasonography conducted on a pregnant woman. And any deficiency or inaccuracy in the prescribed record would amount to contravention of the provisions of sections 5 and 6 unless and until contrary is proved by the person conducting such ultrasonography. The deeming provision is restricted to the cases of ultrasonography on pregnant women and the person conducting ultrasonography is, during the course of trial or other proceeding, entitled to prove that the provisions of sections 5 and 6 were, in fact, not violated.” [15] Therefore, for contravention of Act or Rules, a separate criminal action can be taken under section 23 of the Act, for which no show cause notice before taking such criminal action is required to be issued under subsection (1) of section 20 of the Act. [16] Considering the allegations made in the FIR, the Court finds that serious allegations as regards breach of provisions of the Act and Page 15 of 16 R/CR.MA/10039/2014 ORDER Rules are made. In such view of the matter, it is not the case where inherent powers under section 482 of the Code can be exercised in favour of the applicant. [17] As stated above, the question whether witnesses who accompanied competent authority – complainant at the time of search and seizure were independent or not, is a matter of appreciation during trial and such ground is not available to the applicant to invoke powers under section 482 of the Code. [18] For the reasons stated above, the application is rejected. Notice is discharged. Interim relief stands vacated.
(C.L.SONI, J.) satish Page 16 of 16
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