Janaki Ultra Sound Center vs The Appropriate Authority

ordjud

Bombay High Court

WP/1/2015 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 1 OF 2015

Janaki Ultra Sound Center, Jalna Road, Bhokardan, District Jalna, through authorized Handler Dr. Deelip Madhukarrao Patil, Age 45 years, Occ. Medical Practitioner, R/o Janaki Hospital, Bhagyanagar, Bhokardan, Dist. Jalna. ..Petitioner

Versus

1. The Appropriate Authority Under PCPNDT Act and Naib Tahsildar, Bhokardan, District Jalna.

2. The Appropriate Authority, Under PCPNDT Act and Civil Surgeon, Jalna.

3. The State of Maharashtra Through the Secretary, Health Department, Mantralaya, Mumbai. ..Respondents …

Advocates appearing for – Petitioner : Shri B.R.Warma and

Respondents : Shri D.R.Korde …

CORAM : RAVINDRA V. GHUGE,

J. Reserved on : February 26, 2015

Pronounced on : March 12, 2015

JUDGMENT :-

1. On 02/02/2015, after hearing the petitioner and the learned AGP, I had passed the following order :-

Bombay High Court WP/1/2015 2

“1. The petitioner whose Sonography Machine has been sealed on the ground of failure to maintain proper records and obtain the consent of the patient seeking to under go Sonography, is the only cause for the sealing of the Sonography machine.

2. The petitioner further submits that if at all documents are not properly maintained, they would evidence irregularity on the part of the petitioner. However, in the light of the judgment of this Court (Coram :- S.V.Gangapurwala, J.) dated 11-09-2012 delivered in Writ Petition No. 6557 of 2012 in the matter of Dr. Mrs. Sukhada W/o Dilip Mulay Vs State of Maharashtra & others, it clearly lays down the law in paragraph Nos. 16, 17 and 18 that the Sonography machines can be sealed by the appropriate authority only if it is satisfied that the said machine would furnish evidence of commission of offence punishable under the Act.

3. Shri Warma, therefore, submits that the impugned order passed by the District Appropriate Authority, Jalna under the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (‘PCPNDT Act, 1994’) has set out reasons only in paragraph 5 and there is no observation at all that the said machine has been misused or is likely to be further misused or it reveals such evidence which would prove the commission of offences punishable under the Act.

4. Learned A.G.P. appearing on behalf of the respondents prays for a short accommodation to file an affidavit in reply. He further submits that there is one more legal remedy available to the petitioner under Rule 19 (2) of 1996 Rules framed under the PCPNDT Act, 1994. Shri Warma refutes the said contention on the ground that the phraseology of Rule 19 (2) is “MAY” and not “SHALL”. 5. Respondent to file reply on or before the 13th Day of February, 2015. The respondent shall not seek extension of time. Stand over to 18-02-2015 for further consideration. The matter to appear on supplementary board.” 2. Rule. Rule made returnable forthwith and heard finally by the consent of the parties.

3. The petitioner is an establishment. It is operated by Dr. Deelip Madhukarrao Patil, who is a registered medical practitioner and possesses a certificate of registration issued by the appropriate authority under the provisions of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred as the said Act).

4. By the said certificate, the petitioner operates the Janki Hospital. The Janki Ultra Sound Centre is set up by the petitioner for carrying out Genetic Counselling / Genetic Laboratory / Genetic Clinic, per-natal Diagnostic Test, Ultra Sound Sonography as is prescribed under the said certificate of registration. The certificate of registration is for the period 07/03/2012 to 06/03/2017.

5. On 13/08/2014, respondent No.1 authority under the said Act and the Naib Tahsildar, Bhokardan, visited the petitioner’s Centre and carried out an inspection. Several registers and the record, said to be relevant, were seized. The Sonography Machine of the petitioner was sealed at Bhokardan.

6. A panchanama was drawn by respondent No.1 during the visit. After sealing the machine, the same was handed over to the petitioner. The petitioner, therefore, preferred WP No.8739/2014 before this Court, which was disposed of by order dated 31/10/2014, thereby permitting the petitioner to avail of the remedy prescribed under the said Act.

7. The petitioner, therefore, preferred an appeal under Rule 19 of the 1996 Rules. By the impugned order dated 19/12/2014, passed in Appeal No.01/2014, the petitioner’s appeal was dismissed.

8. Grievance of the petitioner is that the Appellate Authority did not consider the scope and ambit of Rule 12 of the 1996 Rules, which pertain to the procedure to be followed with regard to search and seizure.

9. The petitioner further submits that though the respondents claimed that the petitioner did not maintain proper record and registers, the sonography machine was sealed in violation of the procedure prescribed. Respondent No.1 was accompanied by Mr. Daulatrao More, a retired person, Mr. Madhav Munde, a retired Civil Surgeon and one Advocate. None of the members of the visiting team were authorized under the said Act.

10. The Rules prescribe that for seizure and sealing of the sonography machine, the authorized person has to intimate the action of seizure to the concerned Magistrate immediately after sealling. The seizure and sealing of the sonography machine is therefore stated to be an illegal and unsustainable act.

11. The petitioner submits that there are no allegations levelled against the petitioner that the said sonography machine or the petitioner’s centre was indulging in sex determination. It is also not the contention of the respondent that the said machine was required to be produced in the Court as a piece of evidence.

12. It is submitted that this Court in the matter of Dr.Mrs.Sukhada w/o Dilip Mulay Vs. The State of Maharashtra and others, in WP No.6557/2012, has delivered an oral judgment on 11/09/2012 wherein the provisions to Section 30 of the Act have been considered. “Reason to believe” or “Reasonable belief” has been interpreted with by this Court (Coram : S.V. Gangapurwala, J.) in paragraph Nos. 16, 17 and 18 of the said judgment.

13. The petitioner has therefore restricted his prayers only to the issue of action of sealing and seizure of the sonography machine without the respondents coming to a conclusion that they have any reason to believe that the said machine was being used for committing an offence under the said Act.

14. The petitioner, draws my attention to the conclusions found below paragraph No.8 on page No.12 of the petition paper book which is a part of the “japti Panchnama” dated 13/08/2014. It is thus pointed out that the “japti panchanama” simply mentions that the original record has been seized by the respondent in its visit. Two copies of the registration certificate under the said Act have been taken.

15. The Committee, which is the Vibhagiya Dakshata Pathak i.e. the Divisional Vigilance Committee (Hereinafter referred to as the Committee), has merely noted that the petitioner has violated the provisions of the said Act and therefore the sonography machine SHIMIDZU SDU 350 XL was sealed in a cloth after the probes were removed. The probes were kept in a small box and the same were  also sealed. The original records and the sealed probes were taken in the custody of the Committee.

16. The petitioner therefore submits that there was no reason for the Committee to seize the sonography machine since there is no whisper in the report dated 13/08/2014, much less even a prima facie observation that the said machine has been used for committing any offence under the said Act. The petitioner therefore points out that this Court, in the case of Dr.Mrs.Sukhada judgment (supra), had quashed and set aside the order of seizing and sealing the machine.

17. The petitioner further points out that the Division Bench of this Court (Coram : R.M.Borde and P.R.Bora, JJ.) in the case of Dr.Prasanna S.Mishrikotkar Vs. State of Maharashtra and others, WP No.9252/2014, has delivered a judgment on 08/01/2015. The scope of Section 30(1) of the said Act was considered in paragraph Nos.4, 5, 6, 7 and 8. The petition was therefore allowed by directing the respondent to de-seal the sonography machine and hand over the probes to the petitioner within 15 days.

18. The petitioner has then relied upon the judgment of the Division Bench of this Court (Coram :- R.M.Borde and P.R.Bora, JJ.) in the matter of Dr. Deepesh s/o Bhagwanrao Chemate Vs. The State of Maharashtra, WP No.10578/2014, has delivered a judgment on 10/02/2015. The factual matrix and the scope of Section 30(1) of the said Act was considered in paragraph Nos. 3 to 8. The Division Bench therefore allowed the appeal and directed the respondent to de-seal the machine and return the probes with the registration certificate.

19. The petitioner, therefore, prays that this petition deserves to be allowed.

20. The learned AGP has vehemently opposed the petition on behalf of the respondents. An affidavit in reply on behalf of respondent No.1 and 2 has been filed through Digambar Bhagwanrao Korde, Naib Tahsildar, Tal.Bhokardan, Dist. Jalna. He submits that the appeal filed by the petitioner before the Appellate Authority has rightly been dismissed. The authorized representative of the petitioner Dr.Deelip S/o Madhukarrao Patil, is operating the petitioner’s centre and is also the registered medical practitioner presently working as Medical Superintendent, Government Hospital, Bhokardan.

21. The learned AGP has pointed out that respondent No.1, acting under Rule 12 of the Rules has sealed the sonography machine. Rule 12 empowers the authority to seal the machine if there is a reason to believe that the said machine is likely to be used for committing a crime or offence in a repetitive manner and/or it may furnish evidence of the commission of the offence.

22. The learned AGP has pointed out the contents in paragraph No.12 of the affidavit in reply which read as under :- ” That the other contention of petitioner that as per the contents of Rule 12 the Machine can be sealed when there is reason to believe that it may furnish evidence of commission of offence. That the Respondent No.1 has sealed the machine, after the reasonable belief, which he arrived there. That the offence under PCPNDT act is essentially committed with the use of Sonography machine and so it is most important ingredient of crime and the offence is repetitive in nature and so the prevention of crime is best achieved by sealing the Machine and so sealing of machine is an important act in investigating this crime and if the seal is opened the accused is facilitate to repeat the crime. Once a case is made out repetition is to be prevented and it cannot be allowed to proliferate and so the machine cannot be desealed until the trial is over and so it cannot be released like any other property of crime and so, the Machine once sealed under the PCPNDT Act…….”

23. The learned AGP has therefore vehemently submitted that the impugned order is legally sustainable and cannot be termed as perverse or erroneous. I have considered the submissions of the litigating sides and have gone through the petition paper book. The “japti panchanama” is the vital document and decisive in the adjudication of this petition.

25. Rule 12 of the Rules of 1996 reads thus:-

“12. Procedure for search and seizure.-

1. The Appropriate Authority or any officer authorized in this behalf may enter and search at all reasonable times any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Imaging Centre or Ultrasound Clinic in the presence of two or more independent witnesses for the purposes of search and examination of any record, register, document, book, pamphlet, advertisement, or any other material object found therein and seal and seize the same if there is reason to believe that it may furnish evidence of commission of an offence punishable under the Act.

Explanation:- In these Rules- 1. ‘Genetic Laboratory/Genetic Clinic/Genetic Counselling Centre’ would include an ultra- sound centre/ imaging centre / nursing home / hospital / institute or any other place, by whatever name called, where any of the machines or equipments capable of selection of sex before or after conception or performing any procedure, technique or test for pre- natal detection of sex of foetus is used;

2. ‘material object’ would include records, machines and equipments; and

3. ‘seize’ and ‘seizure’ would include ‘seal’ and ‘sealing’ respectively.

2. A list of any document, record, register, book, pamphlet, advertisement or any other material object found in the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre and seized shall be prepared in duplicate at the place of effecting the seizure. Both copies of such list shall be signed on every page by the Appropriate Authority or the officer authorized in this behalf and by the witnesses to the seizure: Provided that the list may be prepared, in the presence of the witnesses, at a place other than the place of seizure if, for reasons to be recorded in writing, it is not practicable to make the list at the place of effecting the seizure.

3. One copy of the list referred to in sub-rule (2) shall be handed over, under acknowledgement, to the person from whose custody the document, record, register, book, pamphlet, advertisement or any other material object have been seized: Provided that a copy of the list of such document, record, register, book, pamphlet, advertisement or other material object seized may be delivered under acknowledgement, or sent by registered post to the owner or manager of the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre, if no person acknowledging custody of the document, record, register, book, pamphlet, advertisement or other material object seized is available at the place of effecting the seizure.

4. If any material object seized is perishable in nature, the Appropriate Authority, or the officer authorized in this behalf shall make arrangements promptly for sealing, identification and preservation of the material object and also convey it to a facility for analysis or test, if analysis or test be required: Provided that the refrigerator or other equipment used by the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre for preserving such perishable material object may be sealed until such time as arrangements can be made for safe removal of such perishable material object and in such eventuality, mention of keeping the material object seized, on the premises of the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre shall be made in the list of seizure. 5. In the case of non-completion of search and seizure operation, the Appropriate Authority or the officer authorized in this behalf may make arrangement, by way of mounting a guard or sealing of the premises of the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic Ultra- sound Clinic or Imaging Centre, for safe keeping, listing and removal of documents, records, book or any other material object to be seized, and to prevent any tampering with such documents, records, books or any other material object. ”

26. Upon going through the “japti panchanama” prepared by the Committee, Aurangabad/ Latur, it is specifically mentioned that the Committee found that the records were not properly maintained and there were several short-comings in the said record. Documents which were not maintained, as is required by Law, have been set out in Clause No.1 to 8 of the report. It is also observed that the original record available has been seized and taken into the custody of the Committee.

27. It is quite conspicuous that the sonography machine has been seized under a single sentence, which is stated to be the conclusion of the Committee in the report. It is merely observed that Dr.D.M.Patil has violated the said Act and therefore the sonography machine is sealed. There is no observation appearing from the said report that the Committee had arrived at a conclusion that the machine was used for committing an offence or that the Committee had a “reason to believe” or had formed a “reasonable belief” about any offence committed with the use of the machine or that there was a high possibility of the said machine being used for committing offences in future. The ingredients of Rule 12 as are required, are obviously missing in the Report.

28. The observations of this Court in the case of Dr.Sukhada (supra), in paragraph Nos.16, 17 and 18 are relevant and which read as under :-

“16. Even Sec. 30 of the said Act lays down that, if the Appropriate Authority has reason to believe that an offence under this Act has been or is been committed, then he may personally or authorize any officer in that behalf to examine the record, register, documents and seize and seal the same.

Rule 12 of the Rules of 1996 also authorizes an Appropriate Authority or the Officer authorized in this behalf to enter and search at all reasonable time the said genetic counselling centre, ultra sound clinic, etc. and may seal and seize the record, register and evidence or any other material therein, if there is “reasonable belief” that it may furnish evidence of commission of offence punishable under the Act. 17. “Reason to believe” or “reasonable belief” means coming to factual conclusion on the basis of information that a thing, condition, statement or a fact exists. Reason to believe contemplates an objective determination based on intelligent care and deliberation as distinguished from purely subjective consideration. The said expression is not synonymous to subjective satisfaction of the authority. It postulates belief and existence of reason for that belief. The belief has to be held in good faith. It cannot be a mere pretense. The reason for the belief must have a rational connection or a relevant bearing to the formation of the belief and are not extraneous or irrelevant for the purpose of the section. 18. In the present case, no such reasons are given. It does not transpire that sonography machines have been sealed upon the Appropriate Authority satisfying itself or having reason to believe that the said object i. e. sonography machines would furnish evidence of commission of offence punishable under the Act.”

29. I had specifically called upon the learned AGP to point out from the report of the Committee dated 13/08/2014, which is the “japti panchanama” to indicate as regards its conclusions that there was a reasonable belief that the said machine was used for committing offences or was likely to be used for committing such offences. Despite his efforts, he was unable to point out any such observation from the “japti panchanama”, which would establish the case of the Committee.

30. In fact, I find from the “japti panchanama” that it is not the case of the respondent/Committee that they had a reason to believe that the sonography machine was used for committing any offence or was likely to be used for committing any offence or that the machine was an important piece of evidence.

31. The respondents have relied upon the judgment of this Court (Coram : Mrs.Roshan Dalvi, J.) dated 23/01/2013 in the case of Dr.Vandana Ramchandra Patil Vs. The State of Maharashtra and others in Cri.Writ Petition No.4399/2012. The said judgment is of no assistance to the respondents since it is not their case at all that the most important ingredient of a crime of a repetitive nature was the sonography machine.

32. The Division Bench of this Court, in the case of Dr.Prasanna Mishrikotkar (supra) has held in paragraph Nos. 4, 5, 6, 7 and 8 as under :- “4) The petitioner contends that on 1st October, 2014, the squad, constituted by Respondent No.2, along with panchas, visited the diagnostic centre of the petitioner and drawn a panchanama and put seal on the sonography machines installed in the diagnostic centre of the petitioner. The petitioner further contends that such action of sealing the sonography machines is not preceded by any order passed by Respondent No.2 – appropriate authority. It is contended that in fact after conducting the inspection on 24th June, 2014, a notice dated 27th August, 2014 was issued calling upon the petitioner to show cause in respect of certain irregularities and deficiencies as set out in the show cause notice. The petitioner tendered his reply to the said show cause notice on 30th August, 2014. The petitioner was directed to remain present himself for personal hearing on 24th September, 2014 at 3.30 p.m. The petitioner did submit relevant record on 1st October, 2014 in response to the communication issued to him earlier. However, on the same day, at the instance of Respondent No.2, action of sealing of the sonography machines was taken under the panchanama The petitioner contends that such action of sealing the sonography machines of the petitioner taken on behalf of Respondent No.2 is bad in law since the action is not preceded by any order passed by the Competent Authority. The impugned action is not referable to any of the provisions of the Rules of 1996 or the Act of 1994.

5) Our attention is invited to Section 30(1) of the Act of 1994, which reads thus, “ 30. Power to search and seize records, etc – (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling centre, Genetic Laboratory, Genetic clinic or any other place, such Authority or any office authorized in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic counselling Centre, Genetic Laboratory, Genetic clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or office has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.”

6) It is contended that the Authority or the officer has not recorded reasons, in writing, for its/his satisfaction to take action as regards sealing of the sonography machines and that he has no reason to believe that the said machines may furnished evidence of the commission of the offence punishable under the Act.

7) In the instant matter, since the impugned action is not preceded by any order, there arises no question of satisfaction or recording the reasons by the Authority empowered to take action. Thus, the impugned action is in breach of Section 30(1) of the Act of 1994. It was open for the Respondent No.2 to pass appropriate order, on recording his satisfaction, as contemplated under Section 30(1) of the Act and then to proceed to take action.

8) It is also noticed that in fact, a notice was issued to the petitioner in pursuance to the inspection carried on 24th June, 2014, which has been appropriately replied by the petitioner and the case/matter was, in fact, posted for hearing. In such circumstances, it was incumbent upon the Respondent No.2 to pass an order and thereafter, if warranted, upon compliance of the provisions contained in Section 30(1) of the Act of 1994, to proceed to take appropriate action against the petitioner. Since the impugned action taken on behalf of respondent No.2 is not within the provisions of the Act of 1994 and the Rules framed thereunder, the said action deserves to be quashed and set aside.”

33. Similar are the observations of the Division Bench of this Court in paragraph Nos. 6, 7 and 8 of Dr.Deepesh Bhagwanrao Chemate judgment (supra), which read as under :-

“6) It is contended that the Authority or the officer has not recorded reasons, in writing, for its/his satisfaction to take action as regards sealing of the sonography machines and that he has no reason to believe that the said machines may furnished evidence of the commission of the offence punishable under the Act.

7) In the instant matter, since the impugned action is not preceded by any order, there arises no question of satisfaction or recording the reasons by the Authority empowered to take action. Thus, the impugned action is in breach of Section 30(1) of the Act of 1994. It was open for the Respondent No.2 to pass appropriate order, on recording his satisfaction, as contemplated under Section 30(1) of the Act and then to proceed to take action.

8) In view of the above, writ petition is allowed. The action taken on behalf of Respondent no.2 of sealing the Sonography machines and the probes and taking away the registration documents, is quashed and set aside. Respondent No.2 is directed to deseal the said Sonography machines as well as probes and return back the registration documents to the petitioner within a period of fifteen days from the date of the order. It is needless to point out that it would be open for authorities to take appropriate steps in accordance with the provisions of Act of 1994 and the Rules framed there under. ”

34. In the cases of Dr.Prasanna and Dr.Deepesh (supra), a criminal case was registered. The next date of hearing in the said matters before the Chief Judicial Magistrate, Aurangabad and the J.M.F.C.Paithan, respectively are scheduled on 17/03/2015 and 23/03/2015. The Division Bench, in both these above stated cases, has directed the respondent to de-seal the sonography machines, return the probes and the registration documents to the petitioners within a period of 15 days. However, in both these cases, it was left open to the respondents to take appropriate steps in  accordance with the provisions of the said Act and the rules framed thereunder.

35. In the light of the above, I therefore do not find that the impugned order dated 19/12/2014, passed by the Appellate Authority on the appeal filed by the petitioner under Rule 19(1) of 1996 Rules, can be said to be sustainable in the eyes of Law.

36. As such, in the light of the above, the impugned order dated 19/12/2014 is quashed and set aside. Appeal No.1/2015 filed by the petitioner is therefore allowed. The sonography machine sealed by the respondents shall be de-sealed and the said machine shall be returned to the petitioner within a period of 3 (three) weeks from today. The probes sealed and seized by the respondents along with the registration documents shall be returned to the petitioner within 3 (three) weeks from today.

37. The respondents authorities are however at liberty to resort to appropriate steps in accordance with the provisions of the said Act and the Rules framed thereunder. So also, the criminal case registered against the petitioner shall proceed in accordance with Law and shall be decided by the appropriate authorities on its own merits. This judgment shall not come in way of the concerned authorities in exercising their powers under Section 30 of the said Act and Rule 12 of the said Rules, vis-a-vis the petitioner in future.

38. This petition is, therefore, allowed. Rule is made absolute accordingly.

(RAVINDRA V. GHUGE, J.) ..:

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