Delhi District Court
Dr. P.K.Bansal (Cdmo) vs . Dr. Sartaj Ahmad & Ors. on 22 June, 2023
IN THE COURT OF ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE (SOUTH
EAST):SAKETCOURTS:NEW DELHI
Presided by: Ms. SONAM SINGH-I
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad & Ors.
CC NO. 613428/2016
Police Station : New Friends Colony
Under Sections:
Section 3 (1) r/w Section 23 of
the Pre-conception and Pre-
natal Diagnostic Techniques
(Prohibition of Sex Selection)
Act, 1994 (in short "PC and
PNDT") r/w Section 4 & 5 of
the Medical Termination of
Pregnancy Act, 1971.(in short
"MTP Act").
Date of institution : 18.10.2006
Date of reserving : 09.05.2023
Date of pronouncement : 22.06.2023
JUDGMENT
a) Serial number of : 613428/2016 the case
b) Date of commission : 04.04.2006 of offence
c) Name of the : Dr. P.K.Bansal, CDMO, complainant Appropriate Authority, South Distt. Office of CDMO South District, Directorate of Health Services. Govt. of NCT of Delhi, Begum Pur, Malviya Nagar, New Delhi-110017.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 1 of 33
d) Name, parentage : 1) Dr. Sartaj Ahmad and address of the S/o Sh. Mustaq Ahmed accused persons Owner of M/s. Lokpriya Nursing Home & Maternity Center E-1 Abdul Fazal Enclave, New Delhi-110025.
2) Dr. Tariqa Khatoon, B.U.MS.
W/o Sh.Akkyar Ahmed.
C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25.
3) Dr. Sandhya Gupta W/o Dr. Umesh Gupta Gynaecologist & Obstetrician, 18/2, Bhogal Lane, Bhogal, New Delhi.
Presently at : C/o Port Moresby General Hospital Port Moresby Papua New Guinea(Near Australia).
4) Dr. Rashmi C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25. (Declared Proclaimed Offender vide order dated 22.08.2013).
5) Dr. Ruksana W/o Late Sh.Rajiv Ali.
C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25.
6) Dr. Nureja C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25. (Declared Proclaimed Offender vide order dated 22.08.2013).
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 2 of 33
e) Offences : Section 3 (1) r/w Section 23 of PC and PNDT r/w complained of Section 4 & 5 of MTP Act.
f) Plea of the accused : Accused persons pleaded not guilty.
persons
g) Final order : Accused persons namely Dr. Sartaj Ahmad, Dr. Tariqa Khatoon, Dr. Sandhya Gupta and Dr. Ruksana stands acquitted of the offences punishable under Section 3 (1) r/w Section 23 of PC and PNDT r/w Section 4 & 5 of MTP Act.
h) Date of final order : 22.06.2023 BRIEF FACTS OF THE PRESENT CASE:
1. The present complaint has been filed by Dr.PK Bansal, the then Chief District Medical Officer (CDMO), Appropriate Authority, South District who functions as the District Appropriate authority under the PNDT Act.
2. It is alleged that on 04.04.2006, premises of Lokpriya Nursing Home and Maternity Center, E-1, Abul Fazal Enclave, New Delhi-110025 (in short "nursing home") was raided. It is Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 3 of 33 stated that the National Monitoring Committee (PNDT) along with the then C.D.M.O. South and the Officers of the South District had raided the said premises. It is alleged that in the said nursing home, the Medical Termination of Pregnancy (MTP) and Ultrasound examination were being done without registration of the Centre for MTP as well as Ultrasound. It is also alleged that Ultrasound was being done for sex selection.
3. It is stated that it was revealed that accused No.1, Dr. Sartaj Ahmad is the owner and in charge of the nursing home. It is stated that the Accused No.2 Dr. Tariqa Khatoon was one of the Gynecologists working at the nursing home of accused No.1 and although she was B.U.M.S yet she was conducting MTP for which she was not qualified. It is alleged that Accused persons No.3 to 6, Dr. Sandhya Gupta, Dr. Rashmi, Dr. Ruksana and Dr. Nureja were Gynecologist and Obstetrician and conducted MTP at a nursing home which was unregistered under the said MTP Act.
4. It is alleged in the complaint that all the accused persons have committed the offences under Section 3 (1) r/w Section 23 of PC and PNDT r/w Section 4 & 5 of MTP Act.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 4 of 33 COURT PROCEEDINGS:
5. Since the present complaint was filed by a public servant/competent authority/CDMO, therefore, recording of pre- summoning evidence was dispensed with and cognizance was taken and accused persons summoned vide order dated 18.10.2006 by the Ld. Predecessor of this court.
6. It is pertinent to note that vide order dated 24.02.2023 the Hon'ble Delhi High Court directed this court to dispose of the case within 4 months from the date of the said order. Accordingly, the directions have been complied with.
PRE-CHARGE COMPLAINANT EVIDENCE:
7. Thereafter, pre-charge evidence was led in which six witnesses were examined who are as follows:-
Sr. No. Designation and Name of the Role in the present Witness case
1. CW1 Dr. Himanshu Bhushan, Member of PC Dy. Commissioner, Ministry PNDT Monitoring of Health and Family Welfare, Committee of Govt Govt. of India. of India. (Examined on 28.04.2014, 07.05.2014 and 28.05.2014) (In short: Part of the Raiding Team) Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 5 of 33
2. CW2 Dr. Ratan Chand, Chief Working as Director Director, Ministry of Health, (PNDT) and Nirman Bhawan, New Delhi. Convenor of National Inspection and Monitoring Committee at the relevant date and on receipt of complaint in the Ministry regarding pre-natal diagnostic technique being used by Lok Priya Nursing Home, Okhla made a surprise visit in consultation with Distt. Appropriate Authority of PNDT.
(Examined on
15.07.2014 and
08.08.2014).(In
short: Part of the
Raiding Team)
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 6 of 33
3. CW-3 Dr. Monika Rana, Working as CMO in CMO, Department of Health the office of CDMO and Family Welfare, Govt. of South Distt. At the NCT of Delhi. relevant time i.e. 04.04.2006 when a team from Govt. of India for PC & PNDT Inspections came and she was part of said team which went from the CDMO office for inspections and on said date inspected the Lok Priya Nursing Home in Abul Fazal Enclave.
(Examined on
06.01.2015).
(In short: Part of
the Raiding Team)
4. CW-4 Dr. Shashi Mehta, Retd. Working as CDMO CMO. in the year 2006 and part of the inspection team which visited the nursing home.
(Examined on
18.02.2016,
27.04.2017 and
03.03.2017
(In short: Part of
the Raiding Team)
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 7 of 33
5. CW-5 Dr. A.K.Mittal, Posted as CMO at Additional Director CPA Directorate of (Central Procurement Family Welfare at Agency). Malka Gang on relevant date i.e. 04.04.2006. He was part of the raiding team on 04.04.2006 and visited at nursing home.
(Examined on
03.11.2016,
18.07.2017,
18.08.2017,
14.09.2017,
26.10.2017 &
03.11.2017.
(In short: Part of
the Raiding Team)
6. CW-6 Dr. Mohini Gupta. She was posted in
South Distt as
District Leprosy
Officer and she also
visited the nursing
home on 04.04.2006.
(Examined on
18.01.2018 and
15.02.2018.
(In short: Part of
the Raiding Team)
8. In the pre-charge complainant evidence, the complainant has relied upon the following documents.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 8 of 33 Sr. No. Exhibits/Mark Nature of Documents
1. Ex.CW1/A Surprise Inspection /Survey Report under PCPNDT Act alongwith seizure memo.
2. Ex.CW1/B (colly) Statements of Dr. Sartaj Ahmad and his employee Ms. Anita and patient Rizwana's husband, namely, Naushad.
3. Ex.C-1 (colly) Photographs taken at the time of inspection and seizure along with negatives.
4. Ex.C-2 (colly) Blank Indoor Chart from Sl.No.292 to 200.
5. Ex.C-3 (colly) Blank letterheads of Lok Priya Nursing Home.
6. Ex.C-4 (colly) Indoor Chart Patient of Patients Nafisa, Rijwana, Salma, Saira, Shabana, Abida Parveen and Nazrin.
7. Ex.C-6 & C-7 Two cash books i.e No. 1601 respectively to 1700 and 1701 to 1800.
8. Ex. C-8 (colly) Three empty envelopes of SHADB Imagine and Diagnostic Center.
9. Ex. C-9 One empty envelope of Dr.Geetanjali Lab/Manavrashak Cancer Center.
10. Ex.C-10 One empty envelope of Lok Priya Nursing Home & Maternity Center.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 9 of 33
11. Ex.C-11 Daily accounts register from 01.04.2006 to 02.04.2006.
12. Ex.C-12 O.T. register upto 18.03.2006.
13. Ex.C-13 OPD and IPD register from 21.01.2006 to 03.04.2006.
14. Mark A (In Photocopy of Registration of deposition of CW-1 Dr. Sartaj Ahmad from Delhi while cross Bhartiya Chikitysa Parishad examination). vide registration No. BU/8206.
CHARGE:
9. Thereafter, arguments on charge were heard and on finding sufficient material to frame charge, charge was framed against the accused persons under Section 3 (1) r/w Section 23 of PC and PNDT r/w Section 4 & 5 of MTP Act on 30.05.2019.
10. It is pertinent to note here that the accused Dr. Sandhya Gupta impugned the order dated 30.05.2019 by way of filing a revision petition No. 424/2019 dated 20.07.2019. Vide order 01.07.2022 passed by Ld. Sessions court, the said revision petition was dismissed.
POST-CHARGE COMPLAINANT EVIDENCE:
11. Vide order dated 10.10.2019, the complainant adopted the pre-charge evidence in the post charge evidence.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 10 of 33
12. Vide order dated 12.12.2019, the ld. Predecessor of this court had asked learned defence counsels for compliance of Section 246(4) CrPC and to inform as to which of the witnesses of the complainant, the accused persons/defence wishes to cross examine. To which on 24.11.2021, it was submitted by accused persons that they would wish to cross examine all the witnesses of prosecution. The complainant examined five witnesses in post charge evidence which are as follows;-
Sr. No. Designation and Name of the Role in the present
Witness case
1. CW1 Dr. Himanshu Bhushan, Member of PCPNDT Dy. Commissioner, Ministry Monitoring of Health and Family Welfare, Committee of Govt Govt. of India. of India.
(In short: Part of
the Raiding Team)
(Cross examined in
post charge
evidence by accused
persons on
02.03.2022).
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 11 of 33
2. CW2 Dr. Ratan Chand, Chief Working as Director Director, Ministry of Health, (PNDT) and Nirman Bhawan, New Delhi. Convenor of National Inspection and Monitoring Committee at the relevant date.
(In short: Part of
the Raiding Team)
(Cross examined in
post charge
evidence by accused
persons on
30.03.2023, wherein
accused No.3 and
accused No.5
adopted their cross
examination
conducted on
08.08.2014).
3. CW-3 Dr. Monika Rana, Working as CMO in CMO, Department of Health the office of CDMO and Family Welfare, Govt. of South Distt and part NCT of Delhi. of the Raiding Team.
(Cross examined
on 30.08.2022,
accused no.3 and
accused No.5
adopted the cross
examination done
for accused No.1).
4. CW-4 Dr. Shashi Mehta, Retd. Working as CDMO CMO. in the year 2006 South Distt and part of the Raiding Team.
(Cross examined on 09.11.2022 and 10.11.2022).
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 12 of 33
5. CW-5, Dr. A.K.Mittal, Posted as CMO at Additional Director CPA Directorate of (Central Procurement Family Welfare at Agency). Malka Gang on relevant date i.e. 04.04.2006. He was part of the raiding team.
(Cross examined on
21.09.2011 besides
adopting cross
examination done
on 18.07.2017,
18.08.2017,
14.09.2017,
26.10.2017 &
03.11.2017).
13. During cross-examination, besides the documents relied upon during the pre-charge evidence, the following documents were also put to the witnesses in their cross examination; -
Sr. No. Exhibits/Mark Nature of Documents
1. Mark CW1/DX Photocopy of Advertisement published in Hindustan Times dated 19.03.2005 issued by Directorate of Family Welfare.
2. Mark CW4/D1 Copy of document addressed to the court of Ld. CMM, Patiala House Court, New Delhi.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 13 of 33
3. Ex. CW4/D2 Judgment and order dated 27.04.2019 in matter of Case No.613415/2016, titled: Dr. P.K.Bansal vs. Dr.K.P.Singh passed by the court of Ms. Gomti Manocha, ld.
ACMM/SED, Delhi.
STATEMENT OF ACCUSED PERSONS U/S. 313 CrPC/DEFENCE EVIDENCE:
14. After closure of the post-charge evidence, the statement of the accused persons was recorded under Section 313 Cr. P C. The accused persons did not wish to lead evidence in defence and hence the matter was fixed for final arguments.
FINAL ARGUMENTS:
15. I have heard the counsels for the parties at length, perused the record and given my thoughtful consideration to the rival contentions.
16. Ld. Counsel for the complainant has relied upon the following case laws:
a. Federation of Obstetrics and Gynecological Societies of India (FOGSI) Vs. Union of India and others [(2019) 6 SCC 283] Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 14 of 33 b. Manoj Krishan Ahuja Vs. State of NCT of Delhi & Anrs. [CRL.M.C.1352/2023& CRL.M.A. 5184/2023] c. Voluntary Health Association of Punjab Vs. Union of India & Ors. [(2013) 4 SCC 1] d. Suo Motu Vs. State of Gujarat [2008 SCC OnLine Guj 294] e. Rekha Sengar Vs. State of Madhya Pradesh [(2021) 3 SCC 729] f. Amita R. Patel Vs. State of Gujarat and Anr. [2008 SCC OnLine Guj 154] g. Tamil Nadu Ayush Sonologist Association Vs. Union of India & Ors. [W.P.Nos. 33547 to 33549 of 2017 and W.M.P. No. 37068 of 2017] ANALYSIS AND FINDINGS:
17. Before discussing the relevant law, it is pertinent to mention the object of PC & PNDT Act and MTP Act which is to check the abuse of Pre-natal diagnostic technique for determination of the sex of the foetus as it was found that some Centres have become Centres of female foeticide.
18. The relevant sections i.e. Section 3 , Section 23 of PC and PNDT Act and Section 4 & 5 of MTP Act are reproduced below:
"Section 3. of PC and PNDT Act: Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics.- On and from the commencement of this Act,--
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 15 of 33
1. no Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic unless registered under this Act, shall conduct or associate with, or help in, conducting activities relating to prenatal diagnostic techniques;
2. .No Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall employ or cause to be employed or take services of any person, whether on honorary basis or on payment who does not possess qualifications as may be prescribed;
3. no medical geneticist, gynaecologist, paediatrician, registered medical practitioner or any other person shall conduct or cause to be conducted or aid in conducting by himself or through any other person, any pre-natal diagnostic techniques at a place other than a place registered under this Act."
"Section 23 of PC and PNDT Act : Offences and penalties. " (1) Any medical geneticist, gynaecologist, registered medical practitioner or any person who owns a Genetic Counselling Centre, a Genetic Laboratory or a Genetic Clinic or is employed in such a Centre, Laboratory or Clinic and renders his professional or technical services to or at such a Centre, Laboratory or Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provisions of this Act or rules made thereunder shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees and on any subsequent conviction, with imprisonment which may extend to five years and with fine which may extend to fifty thousand rupees.
2. The name of the registered medical practitioner shall be Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 16 of 33 reported by the Appropriate Authority to the State Medical Council concerned for taking necessary action including suspension of the registration if the charges are framed by the court and till the case is disposed of and on conviction for removal of his name from the register of the Council for a period of five years for the first offence and permanently for the subsequent offence.
3. Any person who seeks the aid of a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or ultrasound clinic or imaging clinic or of a medical geneticist, gynaecologist, sonologist or imaging specialist or registered medical practitioner or any other person for sex selection or for conducting pre- natal diagnostic techniques on any pregnant women for the purposes other than those specified in sub-section (2) of section 4, he shall, be punishable with imprisonment for a term which may extend to three years and with fine which may extend to fifty thousand rupees for the first offence and for any subsequent offence with imprisonment which may extend to five years and with fine which may extend to one lakh rupees.
4. For the removal of doubts, it is hereby provided, that the provisions of sub-section (3) shall not apply to the woman who was compelled to undergo such diagnostic techniques or such selection."
Section 4 of MTP Act. Place where pregnancy may be terminated-
No termination of pregnancy shall be made in accordance with this Act at any place other than -
(a) A hospital established or maintained by Government, or
(b) A place for the time being approved for the purpose of this Act by the Government."
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 17 of 33 Section 5 of MTP Act: Sections 3 and 4 when not to apply -
(1)The provisions of section 4, and so much of the provisions of sub-section(2)of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that determination of such pregnancy is immediately necessary to save the life of the pregnant woman.
(2)Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of a pregnancy by a person who is not a registered medical practitioners shall be an offence punishable under that Code, and that Code shall, to this extent, stand modified.
Explanation-For the purposes of this section, so much of the provisions of clause (d) of section(2)as related to the possession, by a registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply."
19. The facts in brief are that Dr. P.K.Bansal, then then Chief District Medical Officer (CDMO), Appropriate Authority, South District filed a complaint against the six accused persons, namely, accused Dr. Sartaj Ahmad, Dr. Tariqa Khatoon, Dr. Sandhya Gupta, Dr. Ruksana, Dr. Rashmi and Dr. Nureja under Section 3 (1) r/w Section 23 of PC and PNDT r/w Section 4 & 5 of MTP Act.
20. It is alleged that on 04.04.2006, the nursing home was Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 18 of 33 raided by the National Monitoring Committee (PNDT) along with the then C.D.M.O. South and the Officers of the South District. Upon the raid, it was found that the MTP and Ultrasound examination were being done without registration of the nursing home for MTP or Ultrasound. It is alleged that the nursing home was found to be functioning with a Ultrasound Machine for the purpose of sex selection. It is alleged that various documents were seized and from it was revealed that accused No.1Dr. Sartaj Ahmad is the owner and In-charge of the nursing home. It is also stated that Accused No.2 Dr. Tariqa Khatoon was stated to be one of the Gynecologists practicing at the nursing home of accused No.1. and although she was B.U.M.S but she was conducting MTPs. It is also alleged that accused persons No.3 to 6, Dr. Sandhya Gupta, Dr. Rashmi, Dr. Ruksana and Dr. Nureja were Gynecologist and Obstetrician and conducted MTP at the nursing home which was unregistered. Thus, it is alleged that the accused persons were guilty of committing the offences punishable by Section 3 (1) r/w Section 23 of PC and PNDT r/w Section 4 & 5 of MTP Act.
21. It is observed by the court that the complainant has miserably failed to prove its case for the reasons mentioned below: -
NO DOCUMENT ON RECORD TO SHOW THAT ACCUSED NO.1 DR. SARTAJ AHMAD WAS THE IN-CHARGE OF THE NURSING HOME OR OWNED OR RENTED THE PREMISES FOR RUNNING IT:
22. It is rightly submitted by ld. Counsels for the accused Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 19 of 33 persons that except oral testimonies of the complainant witnesses, there is nothing on record to suggest that the accused no.1 Dr. Sartaj Ahmed was running the nursing home in the name of "Lokpriya Nursing Home and Maternity Center, E-1, Abul Fazal Enclave, New Delhi-110025". There is no document to prove that he was In-charge of the nursing home, as alleged by the complainant. Further, the complainant has also failed to file or prove the ownership documents which show that the accused no.1 Dr. Sartaj Ahmad was the owner of the premises wherein the said nursing home was being run. Further, in the alternative, the complainant has failed to place on record any document to show that the nursing home was being run at a tenanted premises which was rented out by the accused no.1 Dr. Sartaj Ahmad. In fact, CW-1 Dr. Himanshu Bhushan in his cross examination at the stage of post-charge complainant evidence deposed that, "the raiding team did not inspect any ownership document of the hospital". In the absence of these documents, it could not be proved by the complainant that the accused no.1 Dr. Sartaj Ahmad was either running the nursing home or In-charge of it, where MTP and/or Ultrasound were done without registration under the said Acts.
NEITHER THE ULTRASOUND MACHINE WAS RECOVERED NOR ANY ULTRASOUND REPORT WAS FILED TO SHOW THAT THE ULTRASOUND TESTS WERE BEING DONE FOR SEX SELECTION:
23. As per the allegations of the complainant, the accused no.1, Dr. Sartaj Ahmad was running the nursing home and Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 20 of 33 accused Dr. Tariqa Khatoon, Dr. Sandhya Gupta, Dr. Ruksana, Dr. Rashmi and Dr. Nureja were conducting ultrasound for sex selection at the nursing home without it being registered under the PC & PNDT Act.
24. CW-5 Dr. A.K.Mittal who was part of the raiding team and the then CMO, PNDT/MTP in his cross examination at the stage of pre charge evidence recorded on 03.11.2017 deposed that on 04.04.2006, he had not seen any Ultrasound machine in the premises of Lokpriya Nursing Home and Maternity Center nor he saw Dr. K.P.Singh with the alleged portable ultrasound machine.
25. CW-6 Dr. Mohini Gupta who was also part of the raiding team, in her cross examination, at the stage of pre-charge complainant evidence recorded on 15.02.2018 deposed that "It is correct that no ultrasound machine and ultrasound report was found on 04.04.2006 at the premises of Lokpriya Nursing Home and Maternity Center, E-1, Abul Fazal Enclave, New Delhi- 110025".
26. CW-4 Dr. Shashi Mehta, also a member of the raiding team in her cross examination at the stage of post charge complainant evidence also deposed that they did not find any instrument/machine regarding performing the ultrasound test.
27. In the present case, the scientific evidence which is the ultrasound machine itself or the reports/ data of the ultrasound machine are the best evidence to prove the fact that ultrasound was being conducted for pre-natal diagnosis. However, neither Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 21 of 33 the ultrasound machine nor the reports generated by the machine were seized. As per the presumption U/s. 114 of Indian Evidence Act, since the best evidence has not been produced, it leads to an adverse inference that the best evidence was not brought as it may not support the prosecution story.
28. It is pertinent to mention that none of the complainant witnesses had seen the ultrasound machine or the ultrasound report generated by the said machine which was allegedly being used at the said nursing home. As per the case of the complainant, Dr K.P.Singh used to visit the said nursing home with a portable ultrasound machine. However, none of the complainant witnesses or any other independent witnesses deposed that they have seen Dr. K.P.Singh visiting the said nursing home. Only CW-3 Dr. Monika Rana in her cross examination at the stage of post charge complainant evidence deposed that accused No.1 Dr. Sartaj Ahmad had provided information that Dr.K.P.Singh was visiting the nursing home but since, it is hearsay evidence, it cannot be relied upon
29. In view of the aforesaid discussion, the allegation that ultrasound machine was being used in the said nursing home for the purpose of sex selection could not be proved by the complainant.
NONE OF THE PATIENTS WERE CITED AS WITNESSES:
30. As per the case of the prosecution and the testimonies of the complainant witnesses, on 04.04.2006, at the time of raid of Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 22 of 33 the nursing home, the raiding team had met with one lady patient, namely, Ms. Rizwana w/o Sh. Naushad. It is the case of the complainant that Ms. Rizwana was lying on a bed and was being administered an IV drip and waiting for the medical termination of her pregnancy. It is the case of the complainant that the raiding team had a conversation with her husband, namely, Sh. Naushad who told them that his wife had missed her periods for two months. He told them that he suspected that she was pregnant and had brought her for an abortion/MTP. It is alleged that the statement of Naushad was recorded which is Ex.CW1/B.
31. It is significant to note that neither Ms. Rizwana nor Sh. Naushad were made a witness in the present case. The said statement of Sh. Naushad cannot be relied upon for proving the guilt of accused persons as they were themselves not examined before the court. The omission by the complainant to make Rizwana and her husband Sh. Naushad as witnesses is not explained. Hence, the aforesaid facts also create a doubt upon the case of the complainant.
INDEPENDENT WITNESSES HAVE NOT BEEN JOINED; THE SEARCH AND SEIZURE WAS NOT DONE AS PER PNDT ACT:
32. In the present case, six witnesses have been examined by the complainant, at the time of pre-charge complainant evidence and out of those five witnesses were cross-examined at the time of post charge complainant evidence and all of them are government witnesses. Not even a single independent witness or Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 23 of 33 eyewitness has been examined in the present case. No local resident has been examined or joined the investigation. CW-1 Dr Himanshu Bhushan, who was part of the raiding team, in his cross examination at the stage of post charge complainant evidence recorded on 02.03.2022 deposed that, "neither me nor any member of team members asked any public person to join the alleged inspection". Further, CW-6 Dr. Mohini Gupta in her cross examination at the stage of pre-charge complainant evidence also deposed that no private person was accompanying them at the time of conducting raid. CW-4 Dr. Shashi Mehta in her cross examination recorded on 09.11.2022 in her post-charge complainant evidence deposed that,"no statement of any person was recorded in her presence nor the inspection team or her recorded statement of nearby residents in respect of existence of the nursing home in the premises."
33. As per Rule 12 of PNDT Act, the search and seizure were to be conducted in presence of two or more independent witnesses. However, none of the complainant witnesses deposed that there were independent witnesses present during search and seizure. The non-compliance of the proper procedure of seizure is fatal to the case of the complainant.
34. The recovery of prohibited articles, arrest and search before an independent witness imparts authenticity and creditworthiness to the proceedings carried out by the prosecution authorities. Moreover, it acts as a safeguard against the arbitrary conduct or high handedness, if any, of the prosecution agency. The absence of such a safeguard in the form Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 24 of 33 of a public witness is to be seen with suspicion. Hence, in the absence of any joinder of any independent witness in the investigation, false implication of the accused persons by the prosecution in the present case cannot be ruled out.
35. The aforesaid observation of the Court is fortified by following observations by the Hon'ble apex court in the case of Hem Raj v. State of Haryana AIR 2005 SC 2110, it has been observed that:
"8. The fact that no independent witness though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses(Kapur) one who was very much in the know of things from the beginning was not examined by the prosecution.
9. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eyewitnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance.
36. In the absence of non-joinder of public witnesses who are the independent witnesses, the credibility of the raid is also questionable and it also casts a serious doubt about the veracity of the entire prosecution case of the accused persons being involved in the alleged offences.
PHOTOGRAPH OF THE NURSING HOME ON RECORD NOT PROVED AS PER LAW:
37. CW-1 Dr. Himanshu Bhushan, CW-2 Dr. Rattan Chand, Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 25 of 33 CW-3 Dr. Monika Rana, CW-4 Dr. Shashi Mehta and CW-5 Dr. A.K.Mittal deposed that on 04.04.2006 at Lokpriya Nursing Home and Maternity Center during inspection, the District authorities called a local neighbour who took photographs of the nursing home, the sign board of the nursing home, OT and other areas for their records. CW-1 Dr. Himanshu Bhushan deposed in his pre-charge complainant evidence that Dr. Inderjit Kaur Additional CDMO, South East District had brought 19 photographs in this regard alongwith its negatives which are Ex.C-1 (colly) and he relied upon them. However, none of the photographs shows that the nursing home was using an Ultrasound Machine for sex determination or the doctors were practising MTP. Further, the photographs were not proved as per law, since the photographer was not made as a witness in the list of witnesses. In fact, CW-5 Dr. A.K.Mittal in his cross examination at the stage of pre-charge complainant evidence deposed that , "it is correct that I as well as raiding team member never recorded the statement of the photographer at the time of conducting raid". Moreover, the Certificate U/s. 65B of Indian Evidence Act was not filed along with the photographs. In the absence of deposition by the photographer who took the said photographs and the Certificate U/s. 65-B of Indian Evidence Act, the said photographs are not proved as per law.
REGISTERS INCLUDING OPD/IPD NOT PROVED AS PER LAW:
38. In the present case, The said witnesses have also relied upon the OT Register which is Ex.C-12 and which is filled up to Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 26 of 33 18.03.2006 and Ex.C-13 which is stated to be the OPD and IPD register from 21.01.2006 to 03.04.2006 which were brought by Dr. Inderjit Kaur, Addl. CDMO, SED. CW-1 Dr. Himanshu Bhushan, CW-3 Dr. Monika Rana, CW-4 Dr. Shashi Mehta, CW- 5 Dr A.K.Mittal and CW-6 Dr. Mohini Gupta have relied upon the said registers in their testimonies. The bare reading of these registers shows that there are entries of the accused Doctors conducting MTP and hence, the complainant has relied upon it as incriminating material against the accused persons.
39. In this regard, it is relevant to observe that CW-3 Dr. Monika Rana in her cross examination at the stage of post-charge evidence deposed that the entries in the said registers Ex.C-12 and Ex.C-13 is the job of the administration department of the hospital. CW-4 Dr Shashi Mehta in her cross examination at the stage of post charge complainant evidence also deposed that the entries in the OPD/IPD register are entered by the staff and not by the doctor. However, the author of the said registers was neither made as a witness nor examined during trial and hence, the said registers were not also proved as per law.
NONE OF THE PATIENTS AS PER THE REGISTERS ON RECORD WERE EXAMINED:
40. As per the case of the complainant, OT register which is Ex.C-12 and IPD register which is Ex.C-13 shows the names of the various patients who had undergone ultrasound and MTP at Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 27 of 33 the nursing home which did not have registration as per the PC and PNDT and MTP Act. However, none of the patients were examined during the investigation or made as a witness during trial.
41. In this regard, it is pertinent to mention that CW-4 Dr Shashi Mehta in her cross examination at the stage of post charge complainant evidence deposed those patients at Sl. No.2 and 12 mentioned in the register Ex.C-13, namely, Reshma and Salma were neither examined by her or by her team at the spot or thereafter. She also deposed that they did not ask about the patient history/prescription regarding patients Reshma and Salma from the hospital or from the doctor.
42. Even, CW-5 Dr A.K.Mittal deposed in his cross examination also deposed at the stage of post-charge complainant evidence that he did not examine any patient whose name was found in the record during inspection at the nursing home in question.
43. CW-1 Dr. Himanshu Bhushan in his cross examination at the stage of post charge complainant evidence deposed that, "Inspection team did not make any independent inquiry from any of the patient named in the register regarding the procedure mentioned against their names".
44. In view of non-examination of the patients whose names are reflected in the said registers has made the case of the complainant weak as it could not be proved that the accused Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 28 of 33 persons were conducting MTP or Ultrasound at the nursing home which did not have registration as per the PC & PNDT and MTP Act.
CERTAIN DOCUMENTS FILED ON RECORD DO NOT REFER TO THE NURSING HOME IN QUESTION:
45. The complainant witnesses i.e., CW-2 Dr. Rattan Chand, CW-5 Dr. A.K.Mittal, CW-4, Dr. Monika Rana and CW-6 Dr. Mohini Gupta have relied upon cash books which are Ex.C-6 and Ex.C-7. However, CW-4 Dr. Shashi Mehta in her cross examination at the stage of post charge complainant evidence admitted that the said documents did not pertain to the nursing home in question. Specifically, she deposed that: "it is correct that Ex. C-7 and Ex.C-6 bears the name of hospital as Lokpriya Nursing Home and Maternity Center situated at B-Block, Lokpriya Vihar, Khora Colony, Noida and not of the nursing home i.e. Lokpriya Nursing Home and Maternity Center, E-1 Abul Fazal Enclave, New Delhi."
46. Further, CW-4 Dr. Shashi Mehta also admitted Ex. C-2 (colly) which is the blank Indoor Chart; Ex. C-3 (colly) which are the blank two letter heads of Lok Priya Nursing Home and Maternity Center at Noida and Ex.C-4 which are the Indoor Charts of patients namely Nafisa, Rizwana, Salma, Saira, Shabana, Abida, Praveen and Nazrin were not of the nursing home in question being run at Abdul Fazal Enclave but were of Lokpriya Vihar, Khora Colony, Noida.
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 29 of 33
47. Regarding documents, such as daily account register which is Ex. C-11 and the OT Register upto 18.03.2006 which is Ex. C- 12, CW-4 Dr Shashi Mehta and CW-5 Dr. A.K.Mittal admitted that they did contain the name, stamp and seal of the nursing home in question.
48. Not a single document showing medical advice/prescription to link the accused doctors was filed on record. Further, no MTP pills were also recovered.Since, the said documents did not pertain to the nursing home in question, they cannot be relied upon for the purpose of proving the case of the complainant against the guilt of the accused persons.
SEIZURE OF MEDICAL INSTRUMENTS DOES NOT MEAN THAT THEY WERE EXCLUSIVELY USED FOR MTP & IMPROPER SEIZURE OF DOCUMENTS ALSO RAISES A DOUBT IN THE CASE OF THE PROSECUTION :
49. As per the case of the complainant, the raiding team had seized certain instruments which were being used by the doctors at the nursing home in question for the purpose of MTP. However, CW-5 Dr. A.K.Mittal in his cross examination at the stage of pre-charge complainant evidence admitted that the seized instruments are not exclusively meant for MTP only and can be used for ordinary surgeries. The said deposition also created a doubt in the case of the complainant.
50. Further, in the present case, the proper procedure regarding sealing, seizure and custody of crucial evidence has not been Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 30 of 33 followed. This is apparent from the testimony of CW-4 Dr Shashi Mehta, who deposed that the cash registers, cash receipts, OPD/IPD register, Indoor charts were seized and removed by her but not sealed with the seal of appropriate authority. She also deposed that all the cash registers, cash receipts, OPD/IPD registers, Indoor charts were seized by her, wrapped in a cloth and thereafter sealed by the seal of appropriate authority. The aforesaid position shows that the said documents were not sealed as per law as they had been sealed initially with the cloth rather than the seal. Hence, the said evidence/documents brought on record are of doubtful nature.
51. None of the judgments relied upon by the complainant were found applicable to the facts and circumstances of the present case.
CONCLUSION:
52. The burden of proof on the prosecution is to prove the case by convincing evidence to prove the guilt of accused persons beyond reasonable doubt. The accused persons cannot be convicted on the basis of mere probabilities or presumptions. Suspicion, however grave it may be, cannot take the place of proof. Every benefit of doubt goes in favour of accused persons.
53. In view of the above discussion, since the prosecution has failed to prove its case beyond all shadow of reasonable doubts, hence, all the 4 accused persons namely:
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 31 of 33
1) Dr. Sartaj Ahmad S/o Sh. Mustaq Ahmed ;
2) Dr. Tariqa Khatoon,W/o Sh.Akkyar Ahmed;
3) Dr. Sandhya Gupta W/o Dr. Umesh Gupta and;
4) Dr. Ruksana W/o Late Sh.Rajiv Ali stand acquitted of the offences punishable under Section 3 (1) r/w Section 23 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 r/w Section 4 & 5 of the Medical Termination of Pregnancy Act, 1971.
54. Bail bonds/Surety bonds U/s. 437 CrPC stands cancelled.
55. Copy of this judgment be sent to the Secretary, Health & Family Welfare Department, 9th Level, A-Wing, I. P. Extension, Delhi Secretariat, Delhi-110002 ,Director General Health Services, Directorate General of Health Services, F-17, Karkardooma, Delhi-110092 and the Divisional Commissioner, Revenue Department, Govt. of NCT of Delhi, 5 Sham Nath Marg, Delhi-110054 through The District Appropriate Authority for information and necessary action at their end.
56. File be consigned to Record Room with direction to preserve the same as two accused persons have been declared as absconders/proclaimed offenders. The names and particulars of said two accused persons who are declared proclaimed offenders are provided below:
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors.
CC No. 613428/2016, P.S. NFC Pages 32 of 33 1) Dr. Rashmi
C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25. (Declared Proclaimed Offender vide order dated 22.08.2013).
2) Dr. Nureja C/o M/s. Lokpriya Nursing Home & Maternity Center, E-1, Abdul Fazal Enclave, New Delhi-25.
(Declared Proclaimed Offender vide order dated 22.08.2013).
Dictated and announced (SONAM SINGH-I) in the Open Court ACMM (SOUTH EAST): on 22.06.2023 SAKET COURTS:NEW DELHI
Dr. P.K.Bansal (CDMO) vs. Dr. Sartaj Ahmad and ors. CC No. 613428/2016, P.S. NFC Pages 33 of 33