Preet Nursing Home vs State of Punjab and others

CWP_647_2013_30_10_2014_FINAL_ORDER

CWP No.647 of 2013 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.647 of 2013
Date of Decision.30.10.2014
Preet Nursing Home ……Petitioner
Versus
State of Punjab and others ……Respondents
Present: Mr. Ajit Singh Sodhi, Advocate
for the petitioner.
Mr. Ranbir Singh Pathania, DAG, Punjab.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
-.-
K. KANNAN J.
1. The petitioner Nursing Home through its proprietor Harjinder
Singh, a surgeon, had an ultrasound clinic and installed a sonogram for
which registration had been obtained on 19.04.2002. It was issued for a
period of five years which was renewed in the year 2007 on 19.04.2007
that was to expire on 18.04.2012. As per the provisions of the Preconception
and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994, there is a statutory mandate for registration of
genetic clinic and any person or clinic, which has an ultrasound machine
or imaging machine without registration, is liable to be proceeded
against for offences and penalties prescribed under Chapter VII of the
Act. As per the provisions of the Act, the petitioner should have applied
for renewal of licence some time prior to the expiry of the period
namely on 17.03.2012 but he failed to do so. The licence had expired
CWP No.647 of 2013 -2-
on 18.04.2012 and he applied for renewal on 27.04.2012 before the
appropriate authorities. He submitted the requisite registration fee of
Rs.2000/- and on a penalty being assessed which was ten times the
registration fee, he paid the same as well. The application was rejected
by the appropriate District Authority on 01.06.2012 stating that it was
delayed. He preferred an appeal before the State Appellate Authority,
Chandigarh which was also rejected on 05.10.2012 which is the subject
of challenge before this Court.
2. The impugned order sets out two reasons. One, that it was
delayed and two, that Rule 8 which provided renewal of registration did
not contemplate an application for renewal beyond the last date. The
Authority, therefore, observed that after the day when the licence
expired after 17.04.2012, the possession of the ultrasound machine
without registration constituted an offence and if he had committed an
offence, there was no scope for either allowing for a fresh application
for registration or renewal made.
3. The Act and the Rules cannot be understood in such a way that
if a person had failed to renew the licence within time, an application
for renewal cannot be entertained at all. On the other hand,
the manner of looking at such a situation could be in such a way as to
promote the object of the Act. The Act is to bring a control regime of
use of ultrasound and imaging techniques which are significant scientific
advancements to detect abnormalities in foetus and other
related issues for genetic counselling. The imaging included also a
scope for detection of sex which became a serious aberration of sex
selection and causing foeticide for avoiding birth of a female child. It
CWP No.647 of 2013 -3-
was, therefore, appropriate that there is a prohibition and stringent
punishment for maintaining such technical equipments without
registration. If a person does not apply for renewal within time, the
possession of the machine and putting it to use without such registration
surely invites punishment. There would always be a scope for the
Authorities to initiate appropriate action contemplated in Chapter VII
and the attendant Rules, if there had been use of an equipment without
licence. There surely could be also instances of lapse of renewal for
genuine reasons. In this case, the reason stated was that the hospital
remained closed and the doctor, who was running the same was
suffering from illness. We cannot treat a person who is guilty of a
criminal offence of keeping an unregistered machine and doing an act
which was a regulated act at par with another person who had no past
history of any offence under the Act who held the machine under due
licence for more than a decade and an application for renewal was made
beyond 10 days from the stipulated time on account of illness. The
possession of the machine without registration could have, therefore,
surely invited criminal prosecution. If the Authorities, therefore,
slapped a penalty of Rs.22,000/- and did not choose to prosecute him
independently, it must be taken as resulting in a situation where
appropriate punishment had been meted out for the breach of the
provisions. There is no warrant for allowing such a penalty to remain for
the rest of his life and deny to him the prayer for renewal. Even if a
renewal were to be taken as not possible since the Rules do not
specifically provide for the same, it should still be possible for a person
to apply for a fresh licence after being subjected to appropriate penalty
CWP No.647 of 2013 -4-
for retention of a machine without registration. So long as there was no
charge or proof that the petitioner had used the machine during the
period of failure of renewal of registration and when the clinic had
remained closed, it would be appropriate that the application which he
had filed for renewal was granted favourably, if not as a renewal but as
a plea for a fresh registration.
4. I quash the impugned order and direct the licence to be
issued. If any statutory compliance is necessary for undertaking a fresh
inspection of the equipment and the location of the machine, the same
be undertaken and the licence be issued in accordance with law within a
period of 8 weeks. The writ petition is allowed on the above terms.
(K. KANNAN)
JUDGE
October 30, 2014
Pankaj*

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