Gujarat High Court
Kantilal Bhikhabhai Parmar vs State Of Gujarat on 31 August, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/SCR.A/5495/2021 ORDER DATED: 31/08/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 5495 of 2021
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KANTILAL BHIKHABHAI PARMAR
Versus
STATE OF GUJARAT
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Appearance:
PARESH M MODI(9511) for the Applicant(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2
MR. J.K.SHAH, PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 31/08/2021
ORAL ORDER
1. Rule. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent-State. With the consent of learned advocates on both the sides, the matter is heard today finally.
2. This petition has been preferred under Articles 226 and 227 of the Constitution of India essentially seeking the relief to release the muddamal i.e. Sonography machines, ultrasound scanner model, (1) Mindray -DP 50 Machine (2) BPLUS9101, SLE 101 PC with signal rod container seized in relation to a private complaint being CC No. 2677 of 2020 registered with Addl. Chief Judicial Magistrate, Deesa under provisions of PCPNDT Act, 1994 and 1996 Rules 13, 9(1), 9(4) and 10 (1-A) and Sections 23, 25, 3(3), 4(3), 5(2) and 6(A)(B) of the Act, on suitable terms and conditions.
3. Mr. Paresh Modi, learned advocate for the petitioner submitted that the District Health Officer had received a secret Page 1 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022 R/SCR.A/5495/2021 ORDER DATED: 31/08/2021 information that the accused No.4, Dr. Kantilal Parmar is doing illegal use of the sonography machines for the test of gender of the fetal and the raid was conducted. He submitted that the said Sonography machines came to be seized on 15.9.2020 by the authority and submitted it to the Police Station and after finishing the investigation, chargesheet came to the filed in the Court of Additional Chief Judicial Magistrate, Deesa vide Criminal Case No. 2677 of 2020 on 11.11.2020.
3.1 Mr. Modi, referring to the statement of Chakuben @ Vijuba Ramsingh Darbar (Chauhan) dated 15.9.2020, submitted that in presence of Panchas and lady constable, statement of the Nurse was taken in the Dispensary of the present petitioner, who had admitted the fact that she had used the Sonography machine without the knowledge of the present petitioner and the alleged act of gender determination was done by the Nurse. Mr. Modi submitted that if the Sonography machine was kept in the custody of the Police unused, it would lose its portability and the body of the said sonography machines being made from steel and plastic fiber, the same may catch corrosion and the electronics parts like sensors, scanners and other sensitive parts may get failed and will be of no use if continued dust or virus of the air are allowed to enter if lying in the Police Station and the repair cost would be very high. Mr. Modi has thus prayed to release the said Muddamal, stating that it is used in day-to-day examination.
4. The material placed on record shows that the present petitioner is the owner of the said Sonography machines and the description of the said machine is also on record. The statement of the lady Ms. Chakuben@Vijuba Ramsing Darbar (Chauhan) is at Page 2 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022 R/SCR.A/5495/2021 ORDER DATED: 31/08/2021 Page 77/100 is also on record wherein she has admitted of using the sonography machine without the knowledge of the petitioner. The raid was conducted in exercise of power conferred by subsection (2) of Section 17 of the Pre-natal Diagnostic Techniques (Regulations and Prevention of Misuse) Act, 1994, which has been granted to appropriate authorities to fulfill the purpose of the said act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.
5. The statement of the Nurse before the authority on 15.9.2020 clarifies that Sonography machine was used by the Nurse for sex determination and the present petitioner was not having any knowledge of such illegal activity. The Sonography machine if not used in day-to-day basis, it would lose its value and further its internal mechanism would lose its frequency.
6. Learned Additional Public Prosecutor appearing for the respondent-State vehemently contended that the said Muddamal should not be released considering the intensity of the problem of pre-natal sex determination leading to female foeticide. It was, accordingly, urged that the present petition may not be entertained.
7. Heard learned advocates on both the sides and perused the documents on record. There is no dispute on the issue that the petitioner is the owner of the Sonography machine, which has been seized in connection with the complaint in question. In Sunderbhai Ambalal Desai's case (supra), the Apex Court has made the following observations:-
Page 3 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022R/SCR.A/5495/2021 ORDER DATED: 31/08/2021 "4. Learned counsel further referred to the relevant Sections 451 and 457 of Code of Criminal Procedure, which read thus-
"451. Order for custody and disposal of property pending trial in certain cases.- When any property is produced before any Criminal Court during any 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 been used for the commission of any offence.
457. Procedure by police upon seizure of property.- (1) Whenever the seizure of property by any police officer is reported to a Magistrate under the provisions of this Code, and such property is not produced before a Criminal Court during an inquiry or trial, the Magistrate may make such order as he thinks fit respecting the disposal of such property or the delivery of such property to the person entitled to the possession thereof, or if such person cannot be ascertained, respecting the custody and production of such property. (2) If the person so entitled is known, the Magistrate may order the property to be delivered to him on such conditions (if any) as the Magistrate thinks fit and if such person is unknown, the Magistrate may detain it and shall, in such case, issue a proclamation specifying the articles of which such property Page 4 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022 R/SCR.A/5495/2021 ORDER DATED: 31/08/2021 consists, and requiring any person who may have a claim thereto, to appear before him and establish his claim within six months from the date of such proclamation."
5. Section 451 clearly empowers the Court to pass appropriate orders with regard to such property, such as- (1) for the proper custody pending conclusion of the inquiry or trial; (2) to order it to be sold or otherwise disposed of, after recording such evidence as it think necessary; (3) if the property is subject to speedy and natural decay, to dispose of the same.
6. It is submitted that despite wide powers proper orders are not passed by the Courts. It is also pointed out that in the State of Gujarat there is Gujarat Police Manual for disposal and custody of such articles. As per the Manual also, various circulars are issued for maintenance of proper registers for keeping the muddamal articles in safe custody.
7. In our view, the powers under Section 451 Cr.P.C. should be exercised expeditiously and judiciously. It would serve various purposes, namely:-
1. Owner of the article would not suffer because of its remaining unused or by its misappropriation;
2. Court or the police would not be required to keep the article in safe custody;
3. If the proper panchanama before handing over possession of article is prepared, that can be used in evidence instead of its production before the Court during the trial. If necessary, evidence could also be recorded describing the nature of the properly in detail; and
4. This jurisdiction of the Court to record evidence should be exercised promptly so that there may not be further chance of tampering with the articles."Page 5 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022
R/SCR.A/5495/2021 ORDER DATED: 31/08/2021
8. Considering the factual aspects of the case and the principle rendered in Sunderbhai Ambalal Desai's case (supra), this Court is of the considered opinion that the custody of the muddamal article, if granted in favour of the petitioner on certain terms and conditions, would not cause any prejudice to the prosecution.
9. In the result, the petition is allowed. The authority concerned is directed to release the muddamal i.e. Sonography machines, ultrasound scanner model, (1) Mindray -DP 50 Machine (2) BPLUS9101, SLE 101 PC with signal rod container seized in relation to a private complaint being CC No. 2677 of 2020 registered with Addl. Chief Judicial Magistrate, Deesa under provisions of PCPNDT Act, on condition that he shall furnish surety equivalent to the value of the muddamal, as stated in the seizure memo. Before handing over possession of the muddamal articles to the petitioner, necessary photographs shall be taken and a detailed panchnama in that regard, if not already drawn, shall be drawn for the purpose of trial.
10. Rule is made absolute. Direct service is permitted. Registry to send a writ of this order to the respondents via fax, email and / or any other suitable electronic mode.
(GITA GOPI,J) SAJ GEORGE Page 6 of 6 Downloaded on : Sun Jan 16 11:24:35 IST 2022