CAPITAL DIAGNOSTIC & RESEARCH CENTER Vs. STATE OF RAJASTHAN & ORS.

judfile

{1}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
O R D E R
(1) S.B. CIVIL WRIT PETITION NO.21259/2013
CAPITAL DIAGNOSTIC & RESEARCH CENTER Vs. STATE OF RAJASTHAN & ORS.
&
(2) S.B. CIVIL WRIT PETITION NO.21260/2013
GETWELL POLY CLINIC AND HOSPITAL Vs. STATE OF RAJASTHAN & ORS.
DATE:16.05.2014
HON’BLE MR. JUSTICE M.N. BHANDARI
Mr. Naresh Gupta, for the petitioner/s.
Mr. Akshat Choudhary on behalf of
Mr. G.S. Gill(AAG), for the respondents.
****
By these writ petitions, a challenge is made to the seizure of
the sonography machine.
Learned counsel for the petitioner submits that the petitioner
was having registration of the sonography machine and was operating it
strictly as per the provisions of The Pre-conception and Pre-natal
Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 (for short,
the Act of 1994′) and the Rules of 1996 framed thereunder. As per the
Rules of 1996, an application for renewal has to be made. The petitioner
had submitted an application for renewal, but it has not yet been decided.
As per Rule 8(6) of the Rules of 1996, there is deeming provision of
registration, if the application is not decided within a period of 90 days
from the date of its receipt. As per the deeming clause, the petitioner was
even authorized to operate the machine till the disposal of the application
{2}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
within a period of 90 days and as the application for renewal was not
decided, there is deemed renewal of the registration. Hence, use of the
sonography machine was authorized. The allegation against the petitioner
is not to involve in sex determination or using the machine in violation of
the provisions of the Act of 1994 and the Rules of 1996, but the only
allegation is of non-renewal of the registration. In view of the above, while
quashing the seizure memo, the respondents may be directed to allow the
petitioner to operate the sonography machine.
Learned counsel for the respondents has opposed the prayer
and submits that renewal application has to be submitted as per Rule 8 of
the Rules of 1996 and there is a deeming clause, but it applies only when
the application is moved as per the provisions of law. As per Rule 8 of the
Rules of 1996, an application for renewal has to be submitted 30 days
before expiry of the period of registration. In the instant case, the
petitioner did not maintain application within the aforesaid period. The
application for renewal was not maintainable subsequent to the period
given under Rule 8(1) of the Rules of 1996. In the background aforesaid,
the question of application of deeming clause does not arise. The
petitioner was found to be operating the sonography machine without
registration, thus as per Section 30 read with Rule 12 of the Rules of 1996,
seizure was rightly made.
I have considered the rival submissions of the parties and
perused the record.
{3}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
Since the petitioner was having registration to operate the
sonography machine, he was under an obligation to apply for renewal as
per Rule 8 of the Rules of 1996. Since reference of the aforesaid Rule 8 has
been given by both the parties, therefore, it would be gainful to refer the
aforesaid Rule and is quoted thus:-
“8. Renewal of registration.- (1). An application
for renewal of certificate of registration shall be made in
duplicate in Form A, to the Appropriate Authority thirty
days before the date of expiry of the certificate of
registration. Acknowledgment of receipt of such
application shall be issued by the Appropriate Authority
in the manner specified in sub-rule (2) of rule 4.
(2) The Appropriate Authority shall, after holding
an enquiry and after satisfying itself that the applicant
has complied with all the requirements of the Act and
these rules and having regard to the advice of the
Advisory Committee in this behalf, renew the certificate
of registration, as specified in Form B, for a further
period of five years from the date of expiry of the
certificate of registration earlier granted.
(3) If, after enquiry and after giving an opportunity
of being heard to the applicant and having regard to the
advice of the Advisory Committee, the Appropriate
Authority is satisfied that the applicant has not complied
with the requirements of the Act and these rules, it
shall, for reasons to be recorded in writing, reject the
application for renewal of certificate of registration and
communicate such rejection to the applicant as specified
in Form C.
(4) The fees payable for renewal of certificate of
registration shall be one half of the fees provided in subrule
(1) of rule 5.
(5) On receipt of the renewed certificate of
registration in duplicate or on receipt of communication
of rejection of application for renewal, both copies of
the earlier certificate of registration shall be surrendered
immediately to the Appropriate Authority by the Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic,
Ultrasound Clinic or Imaging Centre.
{4}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
(6) In the event of failure of the Appropriate
Authority to renew the certificate of registration or to
communicate rejection of application for renewal of
registration within a period of ninety days from the date
of receipt of application for renewal of registration, the
certificate of registration shall be deemed to have been
renewed.”
The perusal of Rule 8(1) of the Rules of 1996 shows that an
application for renewal of registration has to be made 30 days before its
expiry. It is an admitted case that the application for renewal was not
submitted by the petitioner 30 days before its expiry. In the background
aforesaid, the further provision of the said Rule does not apply because if
the application has not been moved, as mandated by Rule 8(1) of the Rules
of 1996, the question of further procedure or application of Rule 8(6) of
deem registration does not arise. It would have been applied, if application
is moved 30 days before expiry of registration.
At this stage, the learned counsel for the petitioner gave
reference of Section 29(2) of the Act of 1994, which provides application of
Limitation Act, if limitation is not otherwise provided in the Act. It is to
claim benefit of condonation of delay. He was asked as to whether an
application for condonation of delay was moved if at all Section 29(2)
applies? He fairly conceded that no such application was maintained. If
that is the position, I need not to give interpretation of Section 29 as to
whether it applies to the facts of this case or not? The fact thus remains
that application for renewal was not made in time.
Now the question comes regarding consequences as to whether
seizure of the sonography machine can be made by the respondents or not?
{5}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
For the aforesaid purpose, reference of Section 30 of the Act of 1994 would
be relevant and is quoted 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 or Genetic Clinic or any other place, such
Authority or any officer authorised thereof 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 or
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
officer has reason to believe that it may furnish evidence
of the commission of an office punishable under this Act.
(2) The provisions of the Code of Criminal Procedure,
1973 (2 of 1974) relating to searches and seizures shall,
so far as may be, apply to every search or seizure made
under this Act.
The perusal of the provision quoted above reveals as to when
search and seizure can be made. Rule 12 of the Rules of 1996 also clarifies
the aforesaid and gives procedure. In the background aforesaid, it cannot
be said that seizure of the sonography machine was illegal because
application for renewal of registration was not moved within time so as to
apply deeming clause.
In view of the above, it becomes clear that without registration
of the sonography machine, the petitioner was operating it in violation of
the provisions of the Act of 1994 and the Rules of 1996. Accordingly, I do
not find any illegality in the action of the respondents.
{6}SB CIVIL WRIT PET. NOS.21259/2013 & 21260/2013
Consequently, the writ petitions so as the stay applications are
dismissed.
The petitioner would however be at liberty to make an
application for registration of the machine, afresh.
(M.N. BHANDARI),J.
/KKC/
Certificate:
All corrections made in the judgment/order have been incorporated in the
judgment/order being emailed.
KAMLESH KUMAR
P.A.

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