Delhi District Court
State vs Sushil Kumar Garg on 8 February, 2021
IN THE COURT OF RAMESH KUMAR,
PRINCIPAL DISTRICT & SESSIONS JUDGE,
NORTH EAST, KARKARDOOMA COURTS, DELHI
CR No. 15/2020
CIS No. DLNE01-001002-2020
In the matter of:
State
Govt. of NCT of Delhi
Through Public Prosecutor
North-East District, Delhi ............ Revisionist
Versus
Sushil Kumar Garg
owner of Kavita Policlinic
R/o 293/3 Karawal Nagar Chowk,
Delhi. .......Respondent
Date of institution of case: 24.07.2020
Date of reserving the case for order: 08.02.2021
Date of passing of order: 08.02.2021
CRIMINAL REVISION UNDER SECTION 397/399 OF THE CODE
OF CRIMINAL PROCEDURE AGAINST THE IMPUGNED ORDER
DATED 11.02.2020 PASSED BY THE HON'BLE COURT OF
SH.PAWAN SINGH RAJAWAT, LD.CMM (NORTH-EAST) DISTRICT,
KARKARDOOMA COURT COMPLEX, DELHI, IN CASE FIR NO.
356/16, U/S 186/353/332/341/34 IPC AND 23/25 OF PNDT ACT PS
KARAWAL NAGAR, WHEREBY LD.CMM HAD RELEASED THE
CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 1/6
LOGIC 400 PRO SERIES, WIPRO GE MEDICAL SYSTEM MODEL
NO.2302111, SERIAL NO.35378W59, MASTER REGISTER, CASH
MEMO BOOK S.NO.34100, CERTIFICATE OF PNDT
REGISTRATION, REGISTER AND FORM F BOOKLET.
JUDGMENT:
1. The present revision petition is being preferred by the State (hereinafter referred to as revisionist) against the impugned order dated 11.02.2020 passed by the court of Sh. Pawan Singh Rajawat, ld. CMM, NorthEast District, Karkardooma Court Complex, Delhi, whereby the ld.Trial Court allowed an application u/sec. 451 Cr.P.C moved on behalf of Sushil Kumar Garg (hereinafter referred to as the respondent) seeking release of logic 400 Pro Series, Wipro GE Medical System model no.2302111, serial no.35378W59, Master Register, Cash memo book S.No.34100, Certificate of PNDT registration, Register and Form Booklet.
2. It is mentioned in the revision petition that the respondent is the owner of Kavita Polyclinic and the ld.Trial Court vide order dated 11.02.2020 released the articles i.e logic 400 Pro Series, Wipro GE Medical System model no.2302111, serial no.35378W59, Master Register, Cash memo book S.No.34100, Certificate of PNDT registration, Register and Form Booklet on superdari in favour of the respondent, who is an accused in case FIR no. 356/2016 under section 186/353/332/341/34 IPC and 23/25 of PNDT Act, PS Karawal Nagar. It is further mentioned that, as per Section 29 of the PNDT Act, if any criminal or other proceedings are instituted against any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, the records and all other documents of such Centre, Laboratory or Clinic shall be preserved till the final disposal of such CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 2/6 proceedings. The respondent had filed an appeal before the Principal Secretary H & FW Central Appellate Authority against the dismissal order of the State Appellate Authority in Appeal no.07/16, dated 20.04.2017, related to cancellation order, dated 07.03.2017, passed by the District Appropriate Authority. The said appeal was heard by the Central Appellate Authority and the Presiding Officer of Central Appellate Authority refused to interfere in the order of the District Appropriate Authority and the District Appropriate Authority cancelled the license of Kavita Polyclinic, owned by the respondent. It is further stated that, as per Section 18 of the PNDT Act, registration of ultrasound machines is must. Hence, it is prayed that impugned order dated 11.02.2020 be set aside.
3. I have heard Sh.V.K.Sharma, Chief Public Prosecutor for the State/Appellant and the respondent.
4. It is argued by ld. Chief Public Prosecutor for the State that as per Section 3 of PNDT Act, no Genetic Counselling Centre, unless registered under this Act, shall conduct or help in conducting prenatal diagnostic technique. It is further argued on behalf of State/revisionist that, as per this Section, registration or license is a precondition for running a Genetic Council Centre and, therefore, the respondent is not entitled to keep the machines because he has no license. Thus, it is prayed, on behalf of the State/revisionist, that the impugned order, dated 11.02.2020, be set aside.
5. On the other hand, it is submitted by the respondent that arguments of ld. Chief Public Prosecutor related to Section 3, 29 or 3B of PNDT Act is not tenable as no charge under these sections has been framed against him before the ld. Trial Court.
CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 3/66. I have perused the impugned order, dated 11.02.2020, and same is reproduced as under:
"An application for release of articles seized during the personal search has been moved on behalf of the applicant/accused. Reply filed by the IO stating that they have no objection if the articles be released to the applicant/accused. In view of the same, the application is allowed. Let the articles be released to the applicant as per personal search memo."
7. Section 451 Cr.P.C, which deals with the custody and disposal of the case property during the pendency of trial is reproduced as under:
Section 451 - Order for custody and disposal of property pending trial in certain cases "when any property is produced before any Criminal Court, during an inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of.
Explanation - For the purposes of this Section,
"property" includes:
(a) property of any kind or document which is
produced before the Court or which is in its custody.
(b) any property regarding which an offence appears to have been committed or which appears to have CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 4/6 been used for the commission of any offence."
8. Section 451 Cr.P.C envisages that any application moved under this section should be decided expeditiously and judiciously as it would serve various purposes, namely, owner of the article should not suffer because of it's lying unused. The Magistrate is duty bound to take immediate action to ensure that powers under Section 451 Cr.P.C are properly and promptly exercised and the articles as seized during the personal search are not kept for a long time at the Police Station, in any case, for not more than fifteen days to one month as is held in Sunderbhai Ambalal Desai V. State of Gujarat, AIR 2003 SC 638.
9. From the bare perusal of the impugned order, dated 11.02.2021, it is apparent that the articles which were seized, during the personal search of the accused/respondent, were released in his favour only when the concerned IO specifically stated in his reply filed before the ld. Trial Court that he had no objection, if the articles be released to the applicant/respondent. Therefore, the ld. Trial Court allowed respondent's application under section 451 Cr.P.C and ordered that the article be released in favour of the applicant/respondent.
10. In view of the aforesaid discussion, the ld. Trial Court has rightly and correctly ordered the release of articles seized, during the personal search, in favour of the respondent, by allowing his application under Section 451 Cr.P.C. The impugned order was passed after considering the reply filed by the IO. There is no infirmity or illegality in the impugned order. There is no merit in the revision petition and the impugned order, dated 11.02.2020, does not call for any interference. Hence, the present revision petition is CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 5/6 dismissed.
11. Copy of this order be send to the Trial Court for information. Revision file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT ON 8th FEBRUARY, 2021 (RAMESH KUMAR) PRINCIPAL DISTRICT AND SESSIONS JUDGE NORTH EAST DISTRICT KARKARDOOMA COURTS, DELHI CA No.15/2020 STATE VS. SUSHIL KUMAR GARG Page 6/6