Gujarat High Court
Bhupat Devayatbhai Chopda vs State Of Gujarat on 27 July, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/SCR.A/9304/2022 ORDER DATED: 27/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 9304 of 2022
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BHUPAT DEVAYATBHAI CHOPDA
Versus
STATE OF GUJARAT
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Appearance:
ADITYA A CHOKSI(7835) for the Applicant(s) No. 1
MR AJAYKUMAR CHOKSI(1853) for the Applicant(s) No. 1
MS RV ACHARYA(1124) for the Respondent(s) No. 2
MS ASMITA PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 27/07/2023
ORAL ORDER
1. Rule. Learned APP waives service of notice of rule for and on behalf of respondent - State.
2. The petitioner has filed this petition to invoke inherent jurisdiction vested under Articles 226 and 227 of the Constitution of India and read with Section 482 of the Code of Criminal Procedure to release the muddamal sonography machine in connection with Criminal Case No.433 of 2019 under sections 3, 23 and 26 of the Pre-Natal Diagnostic Techniques Act, 1994 as well under Rule 3(3)(1) of the Rule 1996.
3. Heard learned advocates for the parties
4. Brief facts of the prosecution case are that the petitioner is Managing Trustee of Shree Samarpan General Hospital and Maternity Home at Talaja, Bhavnagar. On 21.06.2019, the Chief District Health Officer, Bhavnagar carried out inspection at Samarpan General Hospital and Maternity Home and at that point of time petitioner was found medically examining the Page 1 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023 NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined pregnant patient. Therefore, after drawing panchnama, Sonography machine was seized. Thereafter, complaint was filed by respondent no.2 in the Court of learned Additional Chief Judicial Magistrate, Talja, District Bhavnagar being Criminal Case No.433 of 2019 alleging that the petitioner despite having no requisite qualification of Gynecologist, Pediatrician or registered medical practitioner as practitioner as prescribed under the said Act to carry out sonography through ultrasound machine was found examining the pregnant patient as well as carrying out the sonography and therefore, the compliant was filed. The petitioner and other six non-working and silent trustees of the trust are arraigned as accused nos.1 to 7. They have filed quashing application being Criminal Misc. Application No.21712 of 2019 and on 22.11.2019, this Court has stayed the proceedings of Criminal Case No.433 of 2019. The registration, which was granted by the authority on 13.01.2011 and renewed from time to time and it was suspended on 27.06.2019 and subsequent, the same was cancelled on 19.08.2019. Thereafter, petitioner filed appeal no.19 of 2019 before the State Authority, which was allowed and registration was renewed up to final outcome of Criminal Case No.433 of 2019. Thereafter, the petitioner approached this Court by filling Special Criminal Application No.10748 of 2021, which was disposed with a direction to the learned Magistrate to decide the application within 8 weeks from the date of receipt of this order. The petitioner thereafter approached the learned Trial Court by filing an application on 15.03.2022, however, the learned Trial Court has rejected the same vide order dated 05.07.2022. Being aggrieved by the said order, the petitioner filed Criminal Revision Application No.5 of 2022 before the learned 3 rd Additional Sessions Judge, Bhavnagar, and the learned Sessions Court vide Page 2 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023 NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined order dated 02.08.2022 rejected the appeal of the petitioner and therefore, the present petition is filed.
5. Learned Advocate for the petitioner submitted that the reasons assigned by both the Courts below appears to be vague considering the fact that since registration under the PC-PNDT Act is renewed, the facilities in accordance with law can be performed by purchasing new sonogprahy machine as well. However, the reasons assigned by the learned Trial Court and confirmed by the learned Sessions Court requires kind intervention of this Hon'ble Court, inter alia on the ground that the reasons are not tenable under the law, are beyond the object of section 451 of the Code of Criminal Procedure, 1973 and are assigned without appreciating the scheme of PC-PNDT Act. He also submitted that the FSL report is also placed before the learned Trial Court and therefore also, the custody of sonogrpahy machine is no more required for the purpose of gathering evidences from the said machine. It was accordingly urged that this Court may direct release of the muddamal machine in exercise of the extraordinary jurisdiction under Article 226 of the Constitution of India on suitable terms and conditions.
6. It is also contended that as per various judgments of this Court and Hon'ble Apex Court in case of Sundarbhai Ambalal Desai vs. State of Gujarat reported in AIR 2003 SC 638 and in case of Smt. Basava Kom Dyaman Gauda Patil Vs. State of Mysore reported in (1977) 4 SCC 358, wherein the captioned mudamal has been released.
7. Per contra, learned APP has heavily opposed and placed reliance upon the judgment dated 18.12.2017 passed by Co-ordinate Bench of this Court in case of Jhala Ghanshyamsingh Page 3 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023 NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined Mobatsingh vs. State of Gujarat in Special Criminal Application No. 9745 of 2017. Learned APP further contended that the order passed by the learned trial Court is just and proper.
8. Learned Advocate for the respondent no.2 vehemently argued that on 21.06.2019 respondent no.2 had visited Samarpan General Hospital and Maternity Home, Talaja, wherein thepetitioner was found to be conducting a sonography on a pregnant lady. It was found by the authority that the petitioner was not holding any medical degree for conducting the sonography. Upon inquiry it was found by the authority that the petitioner was holding a B.H.M.S. Degree which is not valid for conducting a sonography. The registration of the clinic of the petitioner was suspended on 27.06.2019. Thereafter, the matter was placed before the advisory committee wherein a decision was taken on 08.07.2019 to cancel the registration of the clinic of the petitioner. Pursuant to the same a criminal complaint came to be lodged against the present petitioner being criminal case No.433 of 2019 for violating the provisions of PCPNDT Act. She also submitted that petitioner was found violating the provisions of PC&PNDT Act a criminal case came to be registered under section 3, 23 and 26 and Rule 3(3)(1) of PC&PNDT Act. At the time of inspection carried out by respondent no.2, the petitioner was found medically examining pregnant patient. After drawing panchnama, the sonography, Form F of 3 months and CCTV camera footage as well as printed register and OPD register were seized by the respondent herein. It was found that the petitioner was not holding any requisite qualification of gynecologist, pediatrician or registered medical practitioner under the said Act to carry out sonography through ultra sound machine. She also submitted that the orders of both the Courts are just and proper Page 4 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023 NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined and does not call for any interference from this Hon'ble Court.
9. Having heard the arguments advanced by both the sides, while determining the other issues raised by the learned APP with reference to judgments of this Court and judgment dated 18.12.2017 in case of Jhala Ghanshyamsingh Mobatsingh vs. State of Gujarat and other provisions of the said Act and referring to that and the issues to be determined in future in appropriate proceedings being contentious issue, this Court is not inclined to enter into that arena in the present matter and instead exercised powers vested under Articles 226 and 227 of the Constitution of India.
10. This Court has also assistance of judgments and orders passed by the Co-ordinate Bench of this Court, which are as under:
(a) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.
(b) In case of Saramanbhai Devsibhai Barad vs. State of Gujarat order dated 10.06.2020 passed in Special Criminal Application No. 8601 of 2019.
(c) In case of Mahesh Mansukhbhai Dholaria vs. State of Gujarat order dated 19.08.2019 passed in Special Criminal Application No. 7806 of 2019.
(d) In case of Anirrudhsinh Pravinsinh Jadeja vs. State of Gujarat order dated 10.08.2018 passed in Special Criminal Application No. 6039 of 2018.
(e) In case of Dilipbhai Ramanbhai Chaudhari (Legal Heirs of Late Ramanbhai Chaudhari) vs. State of Gujarat order dated 14.08.2020 passed in Special Criminal Application No. 3387 of 2020.
(f) In case of Smitaben Kalpeshbhai Chaudhary vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2851 of 2020.Page 5 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023
NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined
(g) In case of Jignasha Kalpeshbhai Prajapati thro POA Kalpeshbhai Bhagwanbhai Prajapati vs. State of Gujarat order dated20.07.2020 passed in Special Criminal Application No. 2896 of 2020.
(h) In case of Devabhai Ranchhodbhai Ahir vs. State of Gujarat order dated 20.07.2020 passed in Special Criminal Application No. 2853 of 2020.
(i) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 15.06.2020 passed in Special Criminal Application No. 6957 of 2019.
(j) In case of Vipul Roshan Kumar Shah vs. State of Gujarat order dated 22.07.2020 passed in Special Criminal Application No. 7143 of 2019
11. This Court notices that Dr. Bhupat Devayatbhai Chopda is Managing Trustee of Shree Samarpan Seva Charitable Trust and is running the Samarpan General Hospital and Maternity Home at Talaja, Bhavnagar. The petitioner has obtained the degree of BHMS (Bachelor of Homeopathy and Medicine and Surgery) in year 2007 and practicing in District Bhavnagar since 2008. The petitioner is looking after the day-to-day affairs of the trust under the capacity of the Managing Trusty. It appears from the panchnama that the petitioner was examining the pregnant lady in clinic room and the sonogprahy machine was in another room and the petitioner was not performing any sonography test on the pregnant lady. Thereafter, the petitioner has approached this Court by way of Criminal Misc. Application and the Coordinate Bench of this Court has stayed the trial of Criminal Case No. 433 of 2019 and therefore, the matter is still pending before the learned Trial Court and therefore, there is no need to retain the sonography machine with the respondent authority.
12. Resultantly, this petition is allowed, and the order dated 02.08.2022 passed by the learned 3rd Additional Session Judge, Page 6 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023 NEUTRAL CITATION R/SCR.A/9304/2022 ORDER DATED: 27/07/2023 undefined Bhavnagar, and the order dated 11.10.2019 passed by the learned Additional Chief Judicial Magitrate, Talaja, Bhavnagar are set aside. The authority concerned is directed to release the sonography machine of petitioner in the terms and conditions that the petitioner:
1. shall furnish a solvent surety of the amount equivalent to the value of the machine in question as per the value disclosed in the seizure memo or panchnama.
2. shall file an undertaking before the trial Court that prior to alienation or transfer in any mode or manner, prior permission of the concerned Court shall be taken till conclusion of the trial,
3. shall also file an undertaking to produce the machine as an when directed by the trial Court
13. Before handing over the possession of the machine to the petitioner, necessary photographs shall be taken and a detailed Panchnama in that regard, if not already drawn, shall also be drawn for the purpose of trial.
14. If, the I.O. finds it necessary, Videography of the machine also shall be done. Expenses towards the photographs and the videography shall be borne by the petitioner. Rule is made absolute. Direct Service is permitted.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 7 of 7 Downloaded on : Sat Sep 16 23:10:57 IST 2023