Gujarat High Court
Jayesh Kantilal Shah vs Mehul Acharya, Appropriate Authority ... on 26 August, 2019
Equivalent citations: AIRONLINE 2019 GUJ 289
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/11262/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11262 of 2019
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JAYESH KANTILAL SHAH
Versus
MEHUL ACHARYA, APPROPRIATE AUTHORITY (PC AND PNDT) AND.
DY. HEALTH OFFICER
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Appearance:
MR AD OZA(515) for the Petitioner(s) No. 1
MR NIKHILESH J SHAH(3007) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 26/08/2019
ORAL ORDER
1. This petition under Article 226 of the Constitution of India is filed with the following reliefs :-
"B. This Hon'ble Court may be pleased to issue writ of mandamus or any other appropriate writ, order or direction or writ in the nature of certiorari, quashing and setting aside the action of sealing of sonography machine taken on 14.05.2019 as stated in the panchnama dated 14.05.2019 and panchnama drawn by the respondent authority (Annexure-B) and be pleased to declare that the action of sealing of sonography machine by the respondent authority is highly improper, unjust, illegal, mala-fide, arbitrary and violative of section 30 of the PC&PNDT Act and Rule-12 of the PC&PNDT Rules and further be pleased to direct the respondent authority to de-seal the Sonography machine of the petitioner forthwith;
C. Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to direct by way of an ad-interim relief to respondent authority to remove the seal forthwith which was applied on sonography as same is per se illegal; and in violation of principles of natural justice;Page 1 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER
D. Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to restrain the respondent from taking any coercive steps against the petitioner;"
2. However, during the course of arguments considering the subsequent development, learned Advocate for the petitioner has restricted his prayer only for the purpose of de-sealing of sonography machine by the respondent authorities.
3. Learned Advocate for the petitioner submits that the sonography machine was sealed under the Panchnama drawn on 14.05.2019 wherein certain irregularities pertaining to filling up of the Form have been noted. However, the recording of the panchnama does not disclose that the sonography machine was being used in breach of the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to in short as 'the Act') or that the same has been misused for the purpose of sex determination.
4. It is submitted that the premises where the petitioner ran his hospital consisted of two parts and on account of renovation being carried out in one part where the sonography machine was stationed, the said sonography machine was moved to another part of the premises and that too with the prior permission of the authorities. It is submitted that it is in respect of this and after the completion of the renovation when the petitioner had sought to re-shift the machine back, a surprise visit was carried out in response to the application dated 13.05.2018 to the appropriate authority for re-shifting of the machine and during this period, the panchnama was drawn, seizing the Form 'F' from the clinic of the petitioner and finding some discrepancy in filling up the said Form 'F'.
Page 2 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER5. It is submitted that the respondent authority has no authority or power to take such action in view of the provisions of Section 30 of the PC&PNDT Act and also has not followed the proper procedure prescribed under Rule 12 of the PC&PNDT Rules while sealing the sonography machines. The respondent authority has sealed the sonography machine without having reason to believe and without coming to the conclusion that the sonography machine was/is being used for committing offence under the said Act and would furnish evidence of commission of offence punishable under the Act. It is further submitted that the respondent authority has not followed the said procedure and has committed breach of the said Rule 12. The respondent authority has not sealed the sonography machine in the presence of two or more independent witnesses. The witnesses shown in the panchnama were called by the respondent authority from the office of Ahmedabad Municipal Corporation.
6. It is also submitted that if the impugned action of the respondent authority would not be stayed then the fundamental and statutory rights of the petitioner would be violated because the impugned action is absolutely illegal, improper, unjust, malafide, vindictive and against the principles of natural justice. The petitioner further states that the petitioner has been practicing in the medical field since last 29 years and therefore the reputation of the petitioner is tarnished on account of such high-handed and illegal and harsh action of sealing of sonography machine and continuation of the same.
7. Against this, learned Advocate for the respondent Mr. Nikhilesh J. Shah has relied upon the Affidavit of the Page 3 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER respondent and has submitted that a false statement has been made by the petitioner in the memo of the petition. A false allegation has also been made by the petitioner about the authority having threatened the petitioner. As nothing is provided regarding that, answering respondent may be permitted to deal with as and when the same is provided. If Authority was having any malafide intention, then registration at the new place could not have been granted and instead the Authority could have asked the petitioner for applying for fresh registration. That has not been done by the Authority, instead the Authority has accommodated the petitioner. Further, the registration certificate of the petitioner in original and duplicate were seized so as to prevent any further misuse of the same.
8. It is submitted that the Advisory Committee meeting was held on 14.06.2019 and as reflected therein after considering the reply of the petitioner, a decision was taken in the Advisory Commission Meeting that registration of the Clinic of the petitioners be suspended till final decision of Criminal Case No.43671/2019 pending in the Court of Metropolitan Magistrate, Ahmedabad for breach of various sections. Owing to day to day work the answering respondent has to discharge, though a decision has been taken as per the Advisory Committee Meeting suspending the registration of the petitioner till final decision of the criminal case, the same could not be communicated to the petitioner. It is submitted that as regards contention of reason to believe is concerned, in the Panchnama it has been stated that there is breach of the provisions of the Act and hence for retrieving further evidence, the machine is sealed.
9. It is also submitted that the sealing of the sonography Page 4 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER machine is carried out by the competent authority only. It is the not the case of the petitioner that the authority has sealed the machine is not competent and why not competent. Thus the contention regarding granting of registration by another authority pales into yellow. Sex determination is not the only reason for which the Authority can act under the Act. The contention regarding human rights of the patient is not documented and hence, as per settled practice of law, is to be ignored only. The petitioner has already replied to the show cause notice and hence, it cannot be said that the principle of natural justice is violated.
10. Learned Advocate for the respondent has relied upon the judgment of the Apex Court in the case of Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India and Others reported in AIR 2019 SC 2214. In response to the rejoinder, learned Advocate for the respondent has filed an affidavit-in-reply in response to the rejoinder and has objected to the nature of language used in the affidavit-in-rejoinder especially the use of the word 'procured'.
11. Against this, in rejoinder, it is submitted that the order dated 16.07.2019 has not yet been communicated. Moreover, the date of the order itself suggests that the action has been taken after a period of more than two months after sealing, which would indicate that the action on part of the respondent is not bonafide. It is submitted that even the summons of Criminal Case No.43671/2019 as mentioned in the communication dated 16.07.2019 has also not been received by the petitioner. Learned Advocate for the petitioner has referred to the affidavit-in-rejoinder to given an explanation about the alleged six forms mentioned in the Page 5 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER Panchnama to submit that the deficiency if at all in the Form cannot be treated to be of such a gross nature and be termed as an act of offence of sex determination.
12. Learned Advocate for the petitioner has also relied upon the proceedings in Special Civil Application No.16489/2010 and Contempt Petition filed therein to indicate the high handed behavior of the authorities and instead of pursuing the object of the Act to prevent an offence like sex determination are deliberately focusing on the case like that of the petitioner which does not serve the object of the Act but only increases the harassment and instances of arm twisting methods for corrupt practices.
13. I have heard learned Advocates for the rival parties and perused the documents on record of the case.
14. I have considered the fact that the petition is to be considered restricting the relief only for the purpose of de- sealing of the sonography machine and that the departmental proceedings under the the provisions of the Act are in the offing, which the Court does not propose to scuttle at this stage, and therefore, refraining from entering into the merits of the case, leaving it open for the petitioner to pursue the departmental proceedings and the number of criminal offence in accordance with the provisions of the respective Act. However, when the Court is considering the primary relief for de-sealing of the machines, it would be appropriate to refer to the Panchnama under which the seal of the machine has been applied.
15. At the outset, it appears that the petitioner has a long standing practice since 1990 and is a Gynecologist and has Page 6 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER received registration under the provisions of the Act and is operating the sonography machine after receiving all the necessary permission. To this, there is nothing to suggest that the petitioner has been practicing earlier in contravention of any provisions of the Act. It also appears from the record that the hospital of the petitioner is located on the 1st Floor of Mohanlal Gandhi Park Society and it consists of 1, Mohanlal Gandhi Park Society and 2, Mohanlal Gandhi Park Society, both situated on the first Floor of the Building. It appears that the machine for sonography was situated in the premises which was at 1, Mohanlal Gandhi Park Society and since the said premises was under
renovation, a communication dated 16.03.2018 was given by the petitioner to the appropriate authority seeking transfer of the sonography machine from 1, Mohanlal Gandhi Park Society to the adjoining 2, Mohanlal Gandhi Park Society. After the renovation work was over on 13.05.2019, an application was made by the petitioner to the appropriate authority for re-transferring the sonography machine from 2, Mohanlal Gandhi Park Society to the original place, i.e. 1, Mohanlal Gandhi Park Society. It appears that in response to this application, a surprise visit was paid by the concerned officers of the Department on 14.05.2019 during which some discrepancies were found which were recorded in the Panchnama as under:-
"1) As the repairing work is going on at his registered address being 1, Mohanlal Gandhi Park, Dr. Jayesh K. Shah gave application dated 16/03/2018 to shift Sonography Machine to 2/5, Mohanlal Gandhi Park.
Certificate has been issued from 30/04/2018 from his new address being 2/5, Mohanlal Gandhi Park. Therefore, form 'F' should necessarily be as per the new address. On examining the record, old address is printed in column no.1 of form 'F' filled in after 16/03/2018 in respect of anti-Natal Sonography.
Page 7 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDERTherefore, there is a reason to believe that Sonography has been done at the old registered place. Whereas Sonography machine is found at the new address. As an evidence, total 51 form 'F' from 16/03/2018 to 30/03/2018, total 73 form 'F' from date 01/04/2019 to 30/04/2019, total 44 form 'F' from 01/05/2019 to 14/05/2019 have been seized.
(2) Total 6 form 'F' having defects have been seized. Wherein following defects are found.
(i) Doctor has not put signature in declaration form dated 26/04/2018 of Hani Rahul Parmar and no detail has been mentioned in column No.16.
(ii) Patient Suchita Nitesh Pawar has not signed in patient's Declaration Form 'F' dated 22/09/2018.
(iii) There is no signature of doctor in declaration of the form dated 25/10/2018 of Palak Dhruval Chhaya and no detail has been mentioned in column Nos.12 to 16 and after the column No.16, there is no signature of doctor who carried out Sonography.
(iv) There is no signature of patient (Bhavika Vishal Lodha) in form 'F', dated 15/11/2018.
(v) There is no signature of doctor, who carried out Sonography, after column No.16 of form 'F' dated 09/01/2019 of Sumitraben Thakor and there is no signature of doctor on doctor's declaration.
(vi) There is no signature in patient's declaration form 'F' of Darshna Vipul Patel dated 01/03/2019.
(3) On examining form 'F' of last two years, it is not stated therein to have attached referral slip and Sonography images-plates with form."
16. From the pleadings, it appears that the action of sealing of the premises was widely published in the newspapers which appears to have affected the reputation of the petitioner and in respect of the discrepancies found during the panchnama, the petitioner had given a detailed reply :-
"2. In reference to Para-2, I will like to bring to your kind notice that I have submitted total no. of 1837 Form-Fs since 01/01/2017 (Annexed as ANNEXURE - A). In our hospital we have conducted 221 deliveries Page 8 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER during this period in which Male to Female ration is 114 to 107 (Annexed as ANNEXURE - B). During inspection only 6 (six) out of total 1837 Form-Fs are found deficient. I will like to bring to your kind notice that I have submitted all these Forms online also.
Moreover, one original copy of each Form-F is submitted in the esteemed office of Appropriate Authority at regular and within prescribed time. All Form-Fs questioned are of year 2018 and January 2019. I will like to draw your attention to the Judgment of Hon'ble Gujarat High Court in case of Dr. Prakash Patel vs State of Gujarat that A.A. should develop such mechanism to check Form-F before 15th day of the month in which Form-F are submitted before 5th. Taking action on the month in which Form-F are submitted before 5th. Taking action on somebody after so much delay for trifling clerical mistake is not a welcome step.
I will like to bring to your kind notice that Section 4(3) says that Person conducting sonography on a pregnant woman shall keep complete record thereof in clinic in such manner as may be prescribed, and any deficiency or inaccuracy found there in shall amount to contravention of provisions of Section-5 and Section-6 unless contrary is proved by the person conducting such Ultrasonography.
I will like to emphasize on last line and will like to prove contrary so that this action will not be applicable in my case one by one in all six cases.
1) Honey Rahul Parmar dated 26/04/2018 - Deficiency noted In declaration doctor's signature is missing and Column No. - 16 is left blank Clarification Form-F is of 26/04/2018 Online submission is also done in which all columns are filled and declaration is also tick-marked as online form is never accepted unless filled completely - No intention to hide anything One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice Patient's details Patient is primigravida - There is no reason to believe that patient undergo sex determination in 1st pregnancy Patient herself is a doctor Page 9 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER She has already delivered on 29/09/2018 Affidavit of patient is hereby attached which clarifies that determination of sex was not demanded by patient and not done by doctor as an ANNEXURE-C A copy of Form-F submitted online is attached hereby as an ANNEXURE-D.
2) Suchita Nitesh Pawar dated 22/09/2018 Deficiency noted Patient's signature is missing in Patient's declaration Clarification Form-F is of 22/09/2018 Online submission is also done in which all columns are filled as onlin form is never accepted unless filled completely - No intention to hide anything. One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice.
Patient's details She is 2nd Para and she has one male child already in 1st pregnancy She has delivered a female child this time Sonography was conducted when she had 28 weeks pregnancy so there is no reason to believe that she will undergo for sex determination Affidavit of patient is hereby attached which clarifies that determination of sex was not demanded by patient and not done by doctor as an ANNEXURE - E A copy of Form-F submitted online is attached hereby as an ANNEXURE - F Birth Certificate of Girl child is annexed hereby as an ANNEXURE - G
3) Palak Druval Chaya dated 25/10/2018 Deficiency noted In declaration doctor's signature is missing and Column no. 12 to 16 are left blank Signature of doctor is missing in Section - B after Column No. - 16 Clarification Form-F is of 25/10/2018 Online submission is also done in which all columns are filled and declaration is also tick-marked as online form is never accepted unless filled completely - No intention to hide anything One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice.
Patient's details Page 10 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER Patient is primigravida Sonography is conducted at 7 weeks of pregnancy when no machine can detect sex so there is no reason to believe that sex determination can be done in this case.
Affidavit of patient is hereby attached which clarifies that determination of sex was not demanded by patient and not done by doctor as an ANNEXURE - H A copy of Form-F submitted online is attached hereby as ANNEXURE - I
4) Bhavika Vishal Lodha dated 15/11/2018 Deficiency noted Patient's signature is missing in Patient's declaration Clarification Form-F is of 15/11/2018 Online submission is also done - No intention to hide anything.
One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice.
Patient's details Patient is primigravida Sonography was conducted at 36 weeks of pregnancy so there is no reason to believe that sex determination is done at 36 weeks at full term.
Affidavit of patient is hereby attached with clarifies that determination of sex was not demanded by patient and not done by doctor as an ANNEXURE - J A copy of Form-F submitted online is attached hereby as an ANNEXURE - K
5) Sumitraben Thakore dated 9/01/2019 Deficiency noted In declaration doctor's signature is missing and Signature of doctor is missing in Section - B after Column No. - 16 Clarification Form-F is of 09/01/2019 Online submission is also done in which all columns are filled and declaration is also tick-marked as online form is never accepted unless filled completely - No intention to hide anything.
One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice Patient's details Affidavit of patient is hereby attached which clarifies that determination of sex was not demanded by patient Page 11 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER and not done by doctor as an ANNEXURE - L A copy of Form-F submitted online is attached hereby an an ANNEXURE - M Patient was suffering from Missed abortion at 8 weeks. Her report of other hospital is also available and attached hereby as an ANNEXURE (Colly) - N When patient is carrying 8 weeks pregnancy and it is already missed abortion there is no reason to believe that sex determination is done.
6) Darshana Vipul Patel dated 1/03/2019 Deficiency noted Patient's signature is missing in Patient's declaration Clarification Form-F IS OF 01/03/2019 Online submission is also done - No intention to hide anything.
One original copy of Form-F is submitted in time in A.A. Office but till date no such deficiency was brought to our notice.
Patient's details Patient is primigravida She was carrying 8 weeks pregnancy when sonography was done. So at 8 weeks no machine can detect sex of fetus so there is no reason to believe that sex determination can be done.
Affidavit of patient is hereby attached which clarifies that determination of sex was not demanded by patient and not done by doctor as an ANNEXURE - O A copy of Form-F submitted online is attached hereby as an ANNEXURE - P
17. Reliance placed on the decision of the Apex Court in Federation of Obstetrics and Gynecological Societies of India (FOGSI) (supra), where the Apex Court was addressing the larger issue in light of the social evils and considering the object of the social welfare legislation, Paragraph 92 reads as under :-
"92. Non maintenance of record is spring board for commission of offence of foeticide, not just a clerical error. In order to effectively implement the various provisions of the Act, the detailed forms in which records have to be maintained have been provided for by the Rules. These Rules are necessary for the implementation of the Act and improper maintenance of Page 12 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER such record amounts to violation of provisions of Sections 5 and 6 of the Act, by virtue of proviso to Section 4(3) of the Act. In addition, any breach of the provisions of the Act or its Rules would attract cancellation or suspension of registration of Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic by the Appropriate Authority as provided under Section 20 of the Act.
18. This Court is therefore, not interfering with the proceedings initiated against the petitioner under the provisions of the Act and is only considering the issue of whether the sonography machine should continue to be in a sealed condition and for how long. From the records before this Court, the admitted position that arises from the affidavit of the respondent is that the communication dated 16.07.2019 is yet to be communicated to the petitioner. It also refers to a criminal case No.43671/2019. Further, whether any summons is issued or cognizance is taken, is not brought before this Court.
19. Considering the manner in which the sealing of the machine has taken place especially on an application of the petitioner for transfer / re-transfer of location of machine, and the nature of breaches against the petitioner, prima-facie the Court finds there not being involvement of the machine for the purpose of sex determination.
20. Reliance is placed by learned Advocate for the respondent on the decision of the Supreme Court in the case of Appropriate Authority v. H.G. Thakkar Hari X-Ray & Colour Doppler Sonography & Ors in Civil Appeal No.8269/2009 with regard to exercise of powers under Article 226 of the Constitution of India and in this case, the Apex Court was examining the case whether the order under Article 226 of the Constitution of India permitting the Page 13 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019 C/SCA/11262/2019 ORDER sonography machine to be sealed when the property was seized in a criminal offence investigation. The chronology of events in the present case indicate that the sonography machine is yet to be treated as a 'muddamal' article in a criminal investigation. In that view of the matter, it may not be prudent to continue the machine under the seal indefinitely.
21. In view of the foregoing reasons, it is directed that the sonography machine of the petitioner lying at 1/2, Mohanlal Gandhi Park Society be ordered to be de-sealed within a period of two (2) weeks from the date of receipt of order of this Court.
22. The Court has touched upon the merits of the case only for considering the issue of sealing of the sonography machine. Both the parties are left to raise all the contentions available under the law in connection with the any other action under the provisions of the PC&PNDT Act.
23. The petition stands allowed to the aforesaid extent.
Direct Service is permitted.
Sd/-
(A.Y. KOGJE, J) Caroline Page 14 of 14 Downloaded on : Tue Aug 27 21:14:23 IST 2019