Chattisgarh High Court
Dr. A. A. Usman vs State Of Chhattisgarh on 1 October, 2015
Page No.1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CR.M.P. No. 288 of 2015
1. Dr. A. A. Usman, S/o. Late Abdul Sattar Usman, Aged About 61 Years,
Modern X-ray & Sonography Center, Behind Lalganga Shopping
Complex, Police Station Golbazar, Raipur, Distt. Raipur Chhattisgarh.
---- Petitioner
Versus
1. State of Chhattisgarh, Through Collector, Ex-Officio Chairman, PC
P.N.D.T. Act, Through Appropriate Authority, Raipur, District Raipur
(Chhattisgarh)
---- Respondent
For Petitioner : Ms. Fouzia Mirza, Advocate
For Respondent/State : Mr. S.C. Khakharia, Dy.A.G. with
Ms. M. Asha, Panel Lawyer
Hon'ble Shri Justice Goutam Bhaduri
C A V Order
01/10/2015
1. Challenge in this petition is to the order dated 13.04.2015, passed in Criminal Revision No.96/2015, passed by Additional Sessions Judge (Special Judge, C.B.I.), Raipur (C.G.), whereby the order dated 20.02.2015, passed by the Judicial Magistrate First Class, Raipur is affirmed. The order pertains to rejection of grant of custody of sonography machine, seized from the petitioner and order of refusal to open the seal.
2. Brief facts of the case are that under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the Act of 1994) and the rules made there under, a complaint was filed before the Judicial Magistrate First Class, Raipur that the petitioner is carrying on the profession under the name Page No.2 and style of Modern Digital X-ray Center at Lalganga Shopping Mall, G.E. Road, Raipur and there are violation of Act and Rules of 1994. It is alleged that when the center was inspected it was found that breach of Section 4 (3) (v) and Rule 9 (4) and 10 (1) (A) were committed. Consequently, as a result there off, the sonography machine was seized and sealed. Further during such seizure, certain forms were also seized which were blank, but were containing the signature of the doctor, the petitioner. Further register was also seized and on inspection it came to notice that sonography machine might have been used for determination of sex of child in womb.
3. Subsequently, after the seizure, an application under Section 457 of Cr.P.C. was filed by the petitioner to get the custody of the sonography machine and to open the seal of chamber of sonography. The learned Court of Judicial Magistrate First Class, Raipur has rejected the application by holding that the machine was seized according to the Act of 1994. It was further held that the documents could have been seized under Section 29 of the Act and the seized articles may be required during the course of evidence. It was further observed that if the sonography machine is handed over, it may be tampered which may damage the evidence, therefore, the application to get the custody of machine was rejected.
4. The said order was assailed before the Revisional Court, the Revisional Court too affirmed the order by holding that Section 29 (1) of the Act of 1994 mandates that the documents and the objects has to be preserved till the final disposal of proceedings if the criminal case is instituted. Consequently, dismissed the revision thereby the order of the Magistrate was upheld. The same is under challenge. Page No.3
5. Learned counsel for the petitioner vehemently submitted that sonography machine, which is seized may loose its evidentry value if natural decay is caused to the electronic data during the long procedure of trial as it may be corrupted. It is further submitted that even the hard-disc of the machine, wherein all the informations are stored could have been taken out and the machine can be handed over for further use as no necessary purpose would be served by keeping the machine under the seal and custody. Reliance was placed in case law reported in (2002) 10 SCC 283 and it is contended that as per the law laid down by the Hon'ble Supreme Court, the power under Section 451 of Cr.P.C. should be exercised expeditiously and judiciously and accordingly by preparation of proper panchnama, the machine could have been handed over.
6. Per contra, learned State counsel opposes the argument and would submit that the order passed by both the learned Courts below is well merited, which do not call for any interference.
7. I have heard the learned counsel for the parties, perused the facts and the case file.
8. Since the seizure is made under the Act of 1994, it would be relevant to go through the object of the Act of 1994. The preamble of the Act of 1994 would show that it was promulgated to provide for the prohibition of sex selection, before or after conception, and for regulation of pre- natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters concerned therewith or incidental thereto. In Page No.4 order to arrest the decline in the female child ratio all over the country, the Act was promulgated. The practice of eliminating female foetus by the use of pre-natal diagnostic techniques is widely prevalent in this country. Parliament wanted to prevent the same and enacted the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
9. Initially, the Act of 1994 was not effectively implemented, which resulted into mushrooming of various pre-natal diagnostic centers in almost all parts of the country. It was also felt that many of the ultrasonography clinics seldom maintain any record as per the rules. Many of the clinics are totally unaware of the government notifications. Therefore, the object of the 1994 Act was to provide for prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders. The Act is a welfare legislation. Parliament was fully conscious of the fact that the increasing imbalance between men and women leads to increased crimes against women, trafficking, sexual assault, polygamy etc.
10. Section 29 of the Act of 1994 provides for maintenance of records and preservation of such records for a period of two years or if any criminal or other proceedings are instituted against any Genetic Counselling Centre, the records and all other documents of such center, shall be preserved till the final disposal of such proceedings. Section 30 of the Act of 1994 confers power of search and seizure. Sub-section 2 of Section 30 of the Act of 1994 provides that relating to search and seizure, the provisions of Code of Criminal Procedure, 1973 would apply. Prior to its amendment in 2003, Section 30 was amended w.e.f Page No.5 14.02.2003.
11. Prior to its amendment in 2003, Section 30 did not provide for any power to seal, though explanation (3) to Rule 12 of the Rules provides that "seize" would include "seal" and sealing respectively. Section 30 as amended by Act 14 of 2003 with effect from 14 February 2003 specifically confers power not only to seize but also "to seal" any record, register documents, books, pamphlet, advertisement or "any other material object" found therein at any Genetic Centre. For the purpose, Section 30 (2) of the Act of 1994 is reproduced as under:-
"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 officer authorised 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 officer has reason to believe that it may furnish evidence of the commission of an offence 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."
12. Section 32 of the Act of 1994 confers upon the Central Government powers to make rules for carrying out the provisions of the Act, including:-
Page No.6
(xiii) the manner in which the seizure of documents, records, objects, etc., shall be made and the manner in which seizure list shall be prepared and delivered to the person from whose custody such documents, records or objects were seized under sub-section (1) of Section
30.
13. In exercise of the aforesaid powers under Section 32 read with Section 30, the Central Government has made the Pre-Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as "the Rules, 1996).
14. Rule 9 of the Rules, 1996 provides for maintenance and preservation of records. Sub Rule (4) of Rule -9 provides that record to be maintained by every Genetic Clinic including a mobile Genetic Clinic, in respect of each woman who is subjected to any pre-natal diagnostic procedure/technique/test. The form is provided as specified in Form-F. Further Sub-rule - (6) of Rule 9 of the Rules, 1996 provides for particulars of the manner in which the records are to be maintained and also provides that all case related records, forms of consent, laboratory results, microscopic pictures, sonographic plates or slides, recommendations and letters shall be preserved by Genetic Center etc., for a period of two years from the date of completion of counseling, pre-natal diagnostic procedure or pre-natal diagnostic test, as the case may be. In the event of any legal proceedings, the records etc. shall be preserved till final disposal of the legal proceedings, or till the expiry of the said period of two years, whichever is later.
15. Rule 12 of the Rules, 1996 lays down the procedure for search and seizure, which is reproduced as under :-
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"12. Procedure for search and seizure. - (1) The Appropriate Authority or any officer authorised 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 Ultrasound Centre/Imaging Centre/nursing home/hospital/institute or any other place, by whatever name called, where any of the machines of 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 and 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 authorised in this behalf and by the witnesses to the seizure.Page No.8
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 and 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 authorised 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 or Page No.9 Genetic Clinic 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 arrangements, by way of mounting a guard or sealing of the premises of the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and 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."
16. Reading of the Act and Rules, leads to mandate that the person conducting ultra sonography on a pregnant woman has to maintain a complete record thereof in the manner prescribed in the Rules and a deficiency or inaccuracy in maintaining such records would amount to an offence, unless the person conducting such sonography is able to show that there was no deficiency or inaccuracy. The fact that Section 3-B inserted by Amendment Act 14 of 2003 puts bar on sale of an ultra sound machine or other machines which are capable of detecting sex of foetus to any genetic clinic or any other place or to any person not registered under the Act itself should be sufficient to hold the object of the Act, which prohibits the sex determination at the inception and source.
17. Having realized that ultra sonography on a pregnant woman with a ultrasound machine is a very important part of sex determination procedure specific reference is made to sonography machine. The generic clinic is defined in Section 2 (d) as any clinic or place by whatsoever may be called which is used for conducting pre-natal diagnostic procedure, the explanation there too provides that generic Page No.10 clinic even includes vehicle, where ultrasound machine capable to determining sex of the foetus is being used. Therefore, the person conducting ultrasonography on pregnant woman has to maintain complete record thereof in manner prescribed under Act & Rules and deficiency or inaccuracy in maintaining such record would amount to offence. So reading the entire scheme of the Act it would lead to show that Parliament has considered an ultrasound machine as a "material object" because it is capable of detecting sex of a foetus.
18. Under Section 30 of the Act, 1994 only confers power under the appropriate authority to seize ultrasound machine being used for sonography on a pregnant woman for the purpose determination of sex of the foetus, which may ultimately result into termination of pregnancy, therefore, the authorised officer has power to search and seize the material object which includes a ultrasound machine.
19. Analyzing the provisions of the Act, it can be stated that on contravention to comply with the Act & Rules, it would be deemed that offence is committed under the Act of 1994 and if any, ultra sound machine is used for conducting sonography on a pregnant woman for a sex determination test or sex selection procedure in contravention of the provisions of the Act, the power to seize and seal any other material object, besides the record and documents, would include the power to seize and seal ultrasound machines and other machinery and equipment. Therefore, the word "material object" has been placed at par to be as weapon used for an offence in normal parlance in any offence under I.P.C..
20. The Hon'ble Supreme Court in recent case law reported in (2013) 4 SCC 1, Voluntary Health Association of Punjab Vs. Union of India Page No.11 and Others, has expressed displeasure while examining the data placed by the Union of India and observed at para -7, which are as under :-
"7..............We have gone through the chart as well as the data made available by various States, which depicts a sorry and an alarming state of affairs. Lack of proper supervision and effective implementation of the Act by various States, are clearly demonstrated by the details made available to this Court. However, the State of Maharashtra has comparatively a better track record. Seldom, the ultrasound machines used for such sex determination in violation of the provisions of the Act are seized and, even if seized, they are being released to the violators of the law only to repeat the crime. Hardly few cases end in conviction. The cases booked under the Act are pending disposal for several years in many courts in the country and nobody takes any interest in their disposal and hence, seldom, those cases end in conviction and sentences, a fact well known to the violators of law. Many of the ultrasonography clinics seldom maintain any record as per rules and, in respect of the pregnant women, no records are kept for their treatment and the provisions of the Act and the Rules are being violated with impunity."
21. The Hon'ble Supreme Court in case of Voluntary Health Association of Punjab (supra) has further given different direction and in respect of seizure, the Court has observed at para 9.10, which are as under :-
"9.10 The authorities concerned should take steps to seize the machines which have been used illegally and contrary to the provisions of the Act and the Rules thereunder and the seized machines can also be confiscated under the provisions of the Code of Criminal Procedure and be sold, in accordance with law."Page No.12
22. Therefore, according to the Act, if the records are not maintained, as per the provisions, the presumption will follow that the offence is committed unless the accused rebut the presumption. The Court also can not ignore the observations of the Hon'ble Supreme Court since the Supreme Court has expressed it's displeasure when the ultrasound machines are released. Since as has been observed that the machine used in contravention of the Act, would be a material object when puts the machine at par with the definition of a weapon used in any offence, the same could not be released while the criminal case is pending.
23. For the forgoing reasons, the order passed by both the Courts below whereby the grant of custody of sonography machine has been refused, is upheld. In terms of the order passed by the Hon'ble Supreme Court in case of Voluntary Health Association of Punjab (supra), the Court of Judicial Magistrate First Class, Raipur is directed to dispose of the pending case under this Act, within further period of six months from the date of receipt of this order.
24. In a result, the petition has no merit and is dismissed accordingly with aforesaid direction.
Sd/-
(Goutam Bhaduri) Judge Balram