Delhi District Court
Deputy Commissioner (Sw) vs Rajesh Birman on 13 June, 2025
IN THE COURT OF CHIEF JUDICIAL MAGISTRATE : NEW DELHI
DISTRICT: PATIALA HOUSE COURTS : NEW DELHI
Presided by: Ms. Shriya Agrawal
Deputy Commissioner(SW) Vs. Rajesh Birman
Cr. Case no. 42/2013, 5001000/16
PS Najafgarh
Date of institution : 06.07.2013
Date of reserving : 16.05.2025
Date of pronouncement : 13.06.2025
JUDGMENT (ORAL)
a) Serial number of the case : Cr. Case no. 42/2013, 5001000/16
b) Date of commission of : 13.1.2012 offence
c) Name of the complainant : District Appropriate Authority, South West District
d) Name, parentage and : Dr. Rajesh Birman, Janhit address of the accused Imaging and Diagnostic Centre, R/o Flat No. 211 Sector 17 Pocket E, Dwarka, Delhi
e) Offence complained of : Sections 23/25 of the PC & PNDT Act
f) Plea of the accused : Accused pleaded not guilty.
g) Final order : Acquitted h) Date of final order : 13.06.2025 Ct. Case42/2013, 5001000/16 Page no. 1 of 25
Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The present case has been registered by way of a complaint filed under Section 28 of the Pre-Conception and Pre-Natal Diagnostic Techniques Act of 1994 (hereafter referred to as the "PC & PNDT Act") read with Rules of 1996 and Section 200 of the Cr. P.C. filed by the District Appropriate Authority (hereafter referred to as the "DAA") (under PC- PNDT Act 1994, Deputy Commissioner, South West District, appointed as appropriate authority vide Govt. of Delhi notification F.9/7/1/DSW/PNDT/03/PT/327-339 dated 18.05.2009 under the PC & PNDT Act and the rules framed there are under).
2. As per the complaint, it is alleged that it was brought to notice of the DAA that the District Inspecting Team consisting of Mr. Krishan Mohan, SDM, Dr. Vimal Kaushal (the then Nodal officer/District South West), Mr. Kuldeep Sharma (Dealing Assistant, PNDT) had inspected the Janhit Imaging and Diagnostic Centre ("the offending Centre") on 13.01.2012. The Offending Centre is registered under Section 19(1) of the PC & PNDT Act 1994 amended from time to time and has been provided the registration number DL-SW/2010/184 valid up to 05.05.2015. The inspecting team found that the offending Centre was violating certain provisions of the following PC & PNDT Act and rules. The said Centre was not maintaining record of statutory Form F over the recent months as specified under Rule 9 (4) of the PC & PNDT (Regulation and Prevention of Misuse) Rules, 1996 amended from time to time. The details of referral in serial no. 7 were not being mentioned and some cases were found without referral of the doctor. The referral note as specified in serial no. 7 was not preserved with the case papers.
Ct. Case42/2013, 5001000/16 Page no. 2 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh Some ultrasound scans were performed without indication as laid down in PC & PNDT Act at Serial no. 11 (i). The result of the ultrasound scan was also not written. The offending Center was also not maintaining registers regularly as specified under Rule 9(1) of PC& PNDT rules. The ultrasound machine GE Logiq P-3 Sl No. 60483WS5 was sealed on 19.03.2012, pursuant to Order of the DAA. The offending Centre submitted the reply to the DDA on 17.01.2012 and 13.03.2012 and the DAA passed a speaking order on 23.02.2012 and 15.03.2012 after considering the reply of offending Centre. In this background, an offence punishable under Section 4(3) and Section 29 read with Rule 9 of the PNDT Act punishable under Section 23 was found to have been committed. The Complainant being a public servant authorised the Prosecution of the owner of the offending Centre i.e. the Accused herein.
3. On the complaint having been filed by a public servant, the pre- summoning evidence was dispensed with and cognizance was taken vide Order dated 08.07.2013. The accused was thus summoned in the present case.
4. After supply of copies and consideration on the point of charge, charge was framed against the Accused vide Order dated 09.12.2013 for the offences punishable under Sections 23/25 of PC & PNDT Act. The accused pleaded not guilty to the charge and claimed trial.
COMPLAINANT EVIDENCE
5. The complainant has examined a total of five witnesses to support its case against the accused.
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6. The first witness to depose was Dr. Vimal Kaushal, Medical Officer, Office of CTMO, South West District, DHS, District Complex, Dwarka, New Delhi. The witness (PW1) in his testimony recorded on 04.08.2014 stated that on 13.01.2012 he was posted as Medical Officer at the Office of CDMO, South West District when a team was organized by the DAA lead by Mr. Uppu Krishna Mohan, then SDM Najafgarh, comprising of the deponent himself and Mr. Kuldeep Sharma, Official of CDMO. On the same day at about 05/05.30 PM, they visited the offending Centre and upon inspection under the leadership of SDM it was found that there were some deficiencies were found in the Form F and PNDT register, like referral slips were not maintained and diagnosis was not written by the radiologists in some of the forms. For this the offending Centre was sealed by the team leader i.e. the SDM in their presence and a show cause notice was issued to the owner Dr. Rajesh Birman (Accused in the present case). The Accused was correctly identified during the testimony. On the day of inspection though the Accused was not present, but the witness could identify him on account of his previous visits to the Centre in the capacity of being the nodal officer appointed by the DAA. The witness was then posed the question by the court as to whether the team at the time of inspection had seized any documents from the offending Centre run by the Accused, to which the witness stated that no documents were seized as the Accused was served with the show cause notice to produce relevant documents before the authority within seven days. Even otherwise as per the provisions of PNDT Act the Accused was required to furnish original Form F every month showing compliance of various provisions of PNDT Act. The original form F was exhibited as Ex. PW-1/1 (running from pages 1 to Ct. Case42/2013, 5001000/16 Page no. 4 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh
86). The copy of the show cause notice was Ex. PW-1/2(OSR) and same was identified to be bearing the signature of witness at Pt. A. The ultrasound machine was sealed by the SDM in the presence of the team and handed over to the clinic on assurance that they will produce the same as and when required by any authority or by court of law. The witness could not remember whether the ultrasound was sealed on same day or not. The witness was cross examined at length and discharged.
7. The next witness was to depose was Mr. Kuldeep Sharma who was examined as CW-2. The witness stated that on 13.01.2012 he was posted as Dealing Assistant in the PC and PNDT Cell. The District Magistrate had made a team of three members comprising of Mr. Krishan Mohan, the then SDM Najafgarh, Dr. Vimal Kishore and the deponent to run inspections under the PC and PNDT Act. Inspection was carried out under the leadership of the SDM and on the sane day in the post lunch they visited Ananya Skin Care, Dwarka New Delhi for inspection of registration of Clinic. After inspection the SDM further told Dr. Vimal Kaushal that another inspection was needed to be carried out on the same day as they had ample time left. Thereafter, they reached at 05.30 PM at the offending Centre. No doctor was available there and the staff of the Centre was available. During inspection they asked the staff to show the records which were maintained under the PC& PNDT Act. It was found that there were some deficiencies in the registers as it was not having the specific columns which was directed to be maintained. Further during inspection it was found that some cases referral slips were not maintained and self referrals were done by the Radiologists. It was also found that there was deficiency in Form F already Ex. PW-1/1(colly.) which contained indications for ultrasound.
Ct. Case42/2013, 5001000/16 Page no. 5 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh Thereafter, show cause notice was issued in name of Dr. Rajesh Birman (Ex. PW-1/2) which was received was by one of his staff members Ms. Priyanka. On that day the Accused Dr. Rajesh Birman was not present at the clinic. Thereafter they came to their respective offices. The witness was cross-examined and discharged.
8. The third witness to depose was the SDM, Mr. Krishna Mohan Uppu, IAS, MOS Science and Technology, Earth and Sciences, Govt. of India. The witness while being examined as CW-3 stated that on 13.01.2012 he was posted as SDM Najafgarh. As per the directions of the District Magistrate, a team of three members consisting of himself, Dr. Vimal Kishore and Mr. Kuldeep Sharma Dealing Assistant PC and PNDT Cell, South West District carried out inspections under the PC & PNDT Act under his leadership. At about 05.30 PM when they reached the offending Centre at Najafgarh the concerned Doctor was not available there and the staff of the Centre was available. During the inspection they asked the staff to show the records required to be mandatorily maintained. It was then found that there were deficiencies in the registers as it was not having specific columns which are mandatorily required to be maintained. Further during inspection, it was found that in some cases referral slips were not maintained and self-referrals were done by the Radiologists. It was also found that there were deficiencies in Form F already Ex. PW-1/1 (colly.) which contain indications for ultrasound. Thereafter, notice was issued to the Accused Ex. PW-1/2 bearing signatures of the witness at point C. On the day, the Accused was not present at the clinic. The notice was received by his staff member Ms. Priyanka. On 17.03.2012 in compliance of directions of Deputy Commissioner the witness issued an Order to Naib Tehsildar to Ct. Case42/2013, 5001000/16 Page no. 6 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh immediately seal the ultrasound machine GE Logiq installed at the offending Centre, The copy of the Order which is on record was labelled as Ex. CW-3/1 on which the witness identified his signatures. The Naib tehsildar also submitted the report and the witness submitted the compliance report with Deputy Commissioner (Ex. CW-3/2). The witness was cross-examined at length and discharged.
9. The fourth witness to be examined was Mr. D.P. Dwivedi, Retired as Special Secretary Finance and Director Planning, Govt. of India. The witness while being examined as CW-4 stated that on 23.02.2012 he issued an Order regarding suspension of PNDT registration granted by appropriate authority to the offending Centre. By the same order, he also issued show cause notice to the offending Centre regarding the cancellation of the PNDT registration and initiating prosecution against them. At this stage, the witness had produced the original copy of the aforesaid order Ex. CW-4/A (OSR). In response to the show cause notice the witness received a letter dated 13.03.2012 from the offending Centre under signatures of the Managing Director, Dr. S.K Gaur. The witness at this stage produced the original copy of the letter/reply which was labelled as Ex. CW-4/B. After receiving the reply and after the deponent's satisfaction regarding violation of PC & PNDT Rules and Act, he issued an Order dated 15.03.2012 regarding immediate sealing of ultrasound machine, GE Logiq and also advised the CDMO, South West to take necessary action for launching prosecution against the offending Centre. At this stage, the witness produced the original order dated 15.03.2012 Ex. CW-4/C. The witness was cross-examined and discharged.
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10.The last witness to depose for the complainant was Mr. Nikhil Kumar, Commissioner Finance, Andaman and Nicobar Island. The witness examined as CW5 stated in his testimony stated that in year 2013 he was posted as Deputy Commissioner, South West District and was holding the post of Appropriate Authority under PC and PNDT Act vide notification number F-9/7/1/DFW/PNDT/03/PT/327-339 dated 18.05.2009. While discharging his duty it was brought to his notice and knowledge that District Inspection Team consisting of SDM, Dr. Vimal Kaushal Nodal Officer, the Dealing Assistant, PC and PNDT Mr. Kuldeep Sharma had inspected the offending Centre on 13.01.2012. The Centre was registered with the registration valid up to 05.05.2015. The inspecting team found that the Centre was violating certain provisions of the PC & PNDT Act. It was not maintaining the record of statutory form F of the recent month, the details of referral in Serial no. 7 were not mentioned and some cases were found without referral to the doctor. The referral note as specified in serial no. 7 was not preserved with the case papers and some ultrasound scans were performed without indication as laid down in PC & PNDT Act. The result of ultrasound scan was also not written. The Centre was also not maintaining result regularly as specified under Rule 9 of PC and PNDT Act and Rules. The team had also sealed the ultrasound machine on 19.03.2012 by the Order of the Appropriate Authority. The reply was submitted by the offending Centre to the DAA dated 17.01.2012 and 13.03.2012, on which speaking orders dated 23.02.2012 and 15.03.2012 were passed by DAA. On the basis of this information offence under Sections 4(3) and 29 read with Rule 9 of PNDT Act was found to have been committed. Accordingly, the witness had filed the complaint under Section 28 of the Ct. Case42/2013, 5001000/16 Page no. 8 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh PC & PNDT Act, the complaint labelled as Ex. CW-5/A. This witness was also cross-examined and discharged.
STATEMENT OF ACCUSED
11.Upon completion of complainant evidence, the statement of Accused was recorded under Section 313 Cr.P.C. without oath wherein he denied the allegations against him of commission of the alleged offences stating that the inspection was done in the evening in his absence on the relevant date. On the aspect of the offending Centre being sealed by SDM, a show cause notice having being served on his employee, the Accused stated that it was wrong to claim that the staff members had produced the documents and shown the machine to the inspecting team, as mostly staff members had to dispense in evening and the ultrasound room was locked in evening as standard practice of the clinic. As regards the sealing of the ultrasound machine and the assurance given that the Accused would produce the before court of law, the Accused explained that it was sealed in presence, however no written assurance was taken from him for production of same. The Accused denied the evidence that he had produced certain documents viz. Original Form F Ex. PW-1/1 (colly.) upon show cause notice being issued to him stating that the team had taken all original record with supporting documents with them and no copies were given to him or his team. The Accused acknowledged that the licence of his Centre was cancelled, stating that as regards issuance of show cause notice for cancellation of registration and initiation of prosecution, it was all a matter of record. He denied violating any rules of PC and PNDT Act stating that the action of sealing of machine was not as per the Act and the present complaint had Ct. Case42/2013, 5001000/16 Page no. 9 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh been wrongly instituted against him and his Centre. He further stated that he did not have any personal knowledge about the report being submitted by Naib Tehsildar or by the SDM. He denied the specific violations highlighted during the complainant evidence under the PC and PNDT Act. He stated that he was innocent and the Centre was running with partnership with one Dr. S.K Gaur. The ultrasound machine was registered in his own name and he was certified ultrasonologist and they had issued a licence in his name. Inspection was done in the evening where only one or two staff members were present for distribution of the reports, that too in the absence of the accused. The working time of ultrasound was 10 Am to 02.00 PM as per the standard procedure of the Centre. During the inspection, no two independent witnesses made part thereof, from the nearby area. They were maintaining all records and depositing Form F with regularly with DDA every month. They were maintaining all documents with referral slips and Form F. All of the documents were taken by the Inspecting team in original without giving a copy. No deficiency was mentioned in Form F by the department, in writing or orally. No complaint was lodged against them for sex determination and qua the other forms by the DAA before the date of inspection. After their action they had to close the offending Centre and shifted to Orthoplus Hospital with permission of DAA as per the PC and PNDT Act. All other Centers in the area were also inspected and sealed but were opened after two to three months, however, it was only the alleged offending Centre of the Accused, that was permanently closed due to malafide intent. The Accused claimed false implication.
Ct. Case42/2013, 5001000/16 Page no. 10 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh DEFENCE EVIDENCE
12.The witness Mr. Vikram has deposed for the Accused stating in his testimony that in the year 2012 one Diagnostic Centre was running in the name of Janhit Imaging Centre and was working as X-Ray Tech. In January 2012 four to five persons came at the lab at about 05/06 PM and informed that they are from SDM team. They asked for documents related to ultrasound from the receptionist which were provided to them. They took the documents and gave one acknowledgment of same to the receptionists. Thereafter, they left the lab with the said documents. The witness was cross examined and discharged.
13.Final arguments were heard at length over certain dates. Record has been perused carefully.
APPRAISAL & OBSERVATIONS
14.The PC-PNTD Act was enacted to "provide for the prohibition of sex selection, before or after conception, and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto" It, inter-alia, made provisions for regulation of pre-natal diagnostic techniques as under:
4. Regulation of pre-natal diagnostic techniques.--
Ct. Case42/2013, 5001000/16 Page no. 11 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh (1) no place including a registered Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except for the purposes specified in clause (2) and after satisfying any of the conditions specified in clause (3);
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:--
(i) chromosomal abnormalities;
(ii) genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is satisfied for reasons to be recorded in writing that any of the following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
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(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical deformities such as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the Board:
Provided that the person conducting ultrasonography on a pregnant woman shall keep complete record thereof in the clinic in such manner, as may be prescribed, and any deficiency or inaccuracy found therein shall amount to contravention of the provisions of section 5 or section 6 unless contrary is proved by the person conducting such ultrasonography;
(4) no person including a relative or husband of the pregnant woman shall seek or encourage the conduct of any pre-natal diagnostic techniques on her except for the purposes specified in clause (2);
(5) no person including a relative or husband of a woman shall seek or encourage the conduct of any sex selection technique on her or him or both.
15.The focus in the present case is on Section 4 (3) above whereunder there is a prohibition against "pre-natal diagnostic techniques to be used or conducted" without satisfaction being recorded by a Ct. Case42/2013, 5001000/16 Page no. 13 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh "person qualified to do so" as to fulfilment of any of the specified "conditions". For enabling scrutiny by the appropriate authorities, the law enjoins upon all engaging in such diagnostic procedures to abide by, amongst others, the following:
29. Maintenance of records.--
(1) All records, charts, forms, reports, consent letters and all other documents required to be maintained under this Act and the rules shall be preserved for a period of two years or for such period as may be prescribed:
Provided that, 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 proceedings.
(2) All such records shall, at all reasonable times, be made available for inspection to the Appropriate Authority or to any other person authorised by the Appropriate Authority in this behalf.
16. In exercise of enabling power under Section 32 of the PC-PNDT Act, the Central Government had notified the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1996 (for short, 'the PC-PNTD Rules"). Rule 9 envisages maintenance and preservation of records prescribing, inter alia, by Sub-Rule (4), maintenance of record "in respect of each man or woman subjected to Ct. Case42/2013, 5001000/16 Page no. 14 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh any pre-natal diagnostic procedure/technique/test" in a standardized Form F, all such records including Form F to be mandatorily submitted "in respect of each month by 5th day of the following month to the Appropriate Authority concerned".
17.The PC-PNTD Act makes certain violations penal offences and by Sections 23 and 25 provides as under:
23. 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 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 Ct. Case42/2013, 5001000/16 Page no. 15 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh years for the first offence and permanently for the subsequent offence.
(3) Any person who seeks the aid of any 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.
25. Penalty for contravention of the provisions of the Act or rules for which no specific punishment is provided.--Whoever contravenes any of the provisions of this Act or any rules made thereunder, for which no penalty has been elsewhere provided in this Act, shall be punishable with imprisonment for a term which may extend to three months or with fine, which may extend to one thousand rupees or with both and in the case of continuing Ct. Case42/2013, 5001000/16 Page no. 16 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh contravention with an additional fine which may extend to five hundred rupees for every day during which such contravention continues after conviction for the first such contravention.
18.The action under the law is through the Appropriate Authority appointed under Section 17, it being vested, inter alia, with power as under:
30. Power to search and seize records, etc.--[(1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act.
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19. The PC-PNTD Rules prescribe on the subject of search and seizure as under:
12. Procedure for search and seizure.-(1) The Appropriate Authority or any officer authorised in this behalf may enter and search at all reasonable times any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Imaging Centre or Ultrasound Clinic in the presence of two or more independent witnesses for the purposes of search and examination of any record, register, document, book, pamphlet, advertisement, or any other material object found therein and seal and seize the same if there is reason to believe that it may furnish evidence of commission of an offence punishable under the Act.
Explanation: -
In these Rules-- (1) 'Genetic Laboratory/Genetic Clinic/Genetic Counselling Centre' would include an ultrasound centre/imaging centre/nursing home/hospital/ institute or any other place, by whatever name called, where any of the machines or equipments capable of selection of sex before or after conception or performing any procedure, technique or test for pre-natal detection of sex of foetus, is used;
(2) 'material object' would include records, machines and equipments; and Ct. Case42/2013, 5001000/16 Page no. 18 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh (3) 'seize' and 'seizure' would include 'seal' and 'sealing' respectively.
(2) A list of any document, record, register, book, pamphlet, advertisement or any other material object found in the Genetic Counselling Centre, Genetic Laboratory 36, Genetic Clinic, Ultrasound Clinic or Imaging Centre and seized shall be prepared in duplicate at the place of effecting the seizure. Both copies of such list shall be signed on every page by the Appropriate Authority or the officer authorised in this behalf and by the witnesses to the seizure: Provided that the list may be prepared, in the presence of the witnesses, at a place other than the place of seizure if, for reasons to be recorded in writing, it is not practicable to make the list at the place of effecting the seizure.
(3) One copy of the list referred to in sub-rule (2) shall be handed over, under acknowledgement, to the person from whose custody the document, record, register, book, pamphlet, advertisement or any other material object has been seized: Provided that a copy of the list of such document, record, register, book, pamphlet, advertisement or other material object seized may be delivered under acknowledgement, or sent by registered post to the owner or manager of the Genetic Counselling Centre, Genetic Laboratory 37, Genetic Clinic, Ultrasound Clinic or Imaging Centre if no person acknowledging custody of the document, record, register, book, pamphlet, advertisement or other material object seized is available at the place of effecting the seizure.
Ct. Case42/2013, 5001000/16 Page no. 19 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh (4) If any material object seized is perishable in nature, the Appropriate Authority, or the officer authorised in this behalf shall make arrangements promptly for sealing, identification and preservation of the material object and also convey it to a facility for analysis or test, if analysis or test be required: Provided that the refrigerator or other equipment used by the Genetic Counselling Centre, Genetic Laboratory 38, Genetic Clinic, Ultrasound Clinic or Imaging Centre for preserving such perishable material object may be sealed until such time as arrangements can be made for safe removal of such perishable material object and in such eventuality, mention of keeping the material object seized, on the premises of the Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall be made in the list of seizure.
(5) In the case of non-completion of search and seizure operation, the Appropriate Authority or the officer authorized in this behalf may make arrangements, by way of mounting a guard or sealing of the premises of the Genetic Counselling Centre, Genetic Laboratory 39, Genetic Clinic, Ultrasound Clinic or Imaging Centre for safe-keeping, listing and removal of documents, records, books or any other material object to be seized, and to prevent any tampering with such documents, records, books or any other material object.
20. By provision contained in Section 28, the law inhibits cognizance of the offences under PC-PNDT Act to be taken "except on a complaint Ct. Case42/2013, 5001000/16 Page no. 20 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh made by the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority".
21.The case at hand arose out of Complaint presented on 06.07.2013 by Mr. Nikhil Kumar (CW-5), he being the Deputy Commissioner (DC) for South-west District of Delhi and ex-officio the Appropriate Authority under the law at the relevant point of time. It may be added that CW-5 admitted that he did not have any personal knowledge, his evidence and record showing that he had acted primarily on action earlier undertaken by his predecessor-in-office Mr. DP Dwivedi (CW-4) who was the DC and Appropriate Authority for the area in January 2012 to which the matter relates. CW-4, in turn, had acted on the report made to him by Mr. Krishna Mohan Uppu (CW-3), who was posted at the relevant point of time as the Sub-Divisional Magistrate (SDM) for Najafgarh area under the control of DC South-West.
22. It is stated in the complaint that the prosecution is based on facts discovered as a result of inspection carried out around 5.30 PM on 13.01.2012 by District Inspection Team led by CW-3, it comprising of two other members viz. Dr. Vimal Kaushal (PW-1), then posted as Medical Officer in office of CDMO, South-West District and Mr. Kuldeep Sharma (CW-2), then Dealing Assistant in office of PC-PNDT Cell for South-West District. It is stated that a Diagnostic Centre run in the name and style of Janhit Imaging and Diagnostic Centre i.e. the offending Centre operates from premises described as Opposite B.D.O. Office, Najafgarh, New Delhi - 110043. In his statement under Section 313 CrPC, the Accused has admitted evidence to the effect of he being Ct. Case42/2013, 5001000/16 Page no. 21 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh connected to the Centre, explaining that he has been a partner with its Managing Director Dr.S.K. Gaur. There was an ultrasound machine (GE Logiq P-3, Sl. No. 60483WS5) installed and operated in the said Centre, the Accused admittedly being the certified Ultrasonologist, in whose name the said Centre was registered for such ultra-sound procedures/tests, such registration being then valid up to 05.05.2015 (Mark DW-1/A).
23.The evidence of CW-1, CW-2 and CW-3, conjointly read shows that the said Inspection Team had visited the Centre around 5.30 PM on 13.01.2012, when no doctor was available. The inspection team checked the records maintained and found some discrepancies/deficiencies. Reference is made to a number of Forms in prescribed Form-F, referred to above, presented in evidence as running from page 1 to 86 vide Ex. PW-1/1 (colly.). A Show Cause Notice (SCN) was drawn up and served on a receptionist named Priyanka. The SCN (Ex. PW-1/2) was in fact a notice under Section 20 of PC-PNTD Act calling upon cause to be shown as to why registration of the Centre under the law be not cancelled. The Complaint states that a Reply to the said SCN was given by the Accused on 17.01.2012, but the same has not been filed with the complaint, a blank having been left in para 6.
24.Be that as it may, as per the Complaint, another SCN was issued on 23.02.2012 (Ex. CW-4/A), inter alia, stating that the Accused had not explained by reply the failure to comply with the law and the Rules, particularly concerning four aspects viz. (i) referral not clear; (ii) Fetal well Being (FWB) written in each slip; (iii) referral slips were not maintained; and (iv) no result of radiologist mentioned. This SCN Ct. Case42/2013, 5001000/16 Page no. 22 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh informed the Accused that the registration under PC-PNTD Act had been suspended and called him upon to show cause as to why the registration be not cancelled and he be not prosecuted for violation of law and rules. The Accused admits having been served with this SCN and also about a reply (Ex. CW-4/B) dated 13.03.2012 having been submitted under signatures of Dr. SK Gaur, explaining the deficiencies to be on account of staff negligence, poor handwriting and steps taken for proper maintenance of records.
25.The evidence shows that under directions of his superior, CW-3 issued an order on 17.03.2012 directing the ultrasound machine functional at the Centre to be sealed and this order was compiled by Naib Tehsildar vide report (Ex. CW-3/2) formally submitted. The Accused has admitted this evidence and terms it to be arbitrary action. By the same order directions were also issued to CDMO for launching prosecution.
26.The five witnesses examined have proved the above-mentioned documents. As said before, CW-4 and CW-5 have no personal knowledge. The inspection was carried out by team comprising of PW-1, CW-2 and CW-3. It is they who saw the records maintained in the Centre and found reasons to issue SCN, then and there. What were the records that were seen and found deficient is not clarified any which way. The witnesses for prosecution are on record to state that the eighty- six Forms (Form-F) produced in evidence as Ex. C PW-1/1 (colly.) were not taken over. PW-1 was categorical in answering the court question to say that no documents were seized. Similar admission of CW-2 was recorded particularly by his statement on 07.10.2013. In these Ct. Case42/2013, 5001000/16 Page no. 23 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh circumstances, it is not clarified as to from whose custody this all- important material had been taken over and brought as evidence.
27.The Complaint (Ex. CW-5/A) sums up the incriminating material to be reflecting the deficiencies as (i) details of referral in serial no. 7 to be not mentioned; (ii) referral note as specified in Sl. No. 7 to be not preserved with case papers; (iii) some ultrasound scan was performed without indication as laid in the PC-PNTD Act at S. No. 11 (i); and (iv) result of ultrasound scan not having been written. None of the witnesses examined for prosecution has been asked to explain these deficiencies with reference to specific Forms-F. Their evidence is vague and non- specific. If the custody of these papers is doubtful, the Accused cannot be expected to explain if any papers are not found tagged.
28.It has been admitted by PW-1 that the Accused was regular in submitting Form-F reports in terms of the Rules. The submission of such Reports is not empty formality. They were expected to be subjected to scrutiny and if any deficiencies were noticed the same were to be pointed out by the office of Complainant. In absence of clarity, the possibility that the above-mentioned eighty-six reports - Ex. PW-1/1 (colly.) were the reports submitted from time to time by the accused cannot be ruled out. If so, one wonders as to what was the record seen at the Centre that prompted the first SCN to be issued.
29.It has been held in Navi Mumbai Municipal Corporation v M/s Manjushree Diagnostic Centre & Ors [ DOD 25.10.2018, (10) ALP No. 4882013] by the Hon'ble HC of Judicature at Bombay that the law mandates that before search , services of two or more independent and respectable inhabitants of the locality should be availed. The inspection Ct. Case42/2013, 5001000/16 Page no. 24 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh which is the basis of this case was wholly illegal. It is admitted that no independent public witnesses were joined as was mandatory in terms of Rule 12 quoted earlier. This breach of express mandate of the law cannot be permitted or overlooked. Crucially, CW-3, the head of the Inspection team himself termed the deficiencies in records to be irregularities. If so, the element of mens rea cannot be found.
CONCLUSION
30.For the foregoing reasons, it is found that the prosecution cannot succeed. Serious doubts have arisen as to the veracity of the prosecution evidence of which the benefit will have to be extended to the accused. Thus, in the result, the accused is acquitted. As requested by him, with consent of his surety, the bail bonds presented by him earlier for trial shall stand extended for purposes of Section 437-A of CrPC.
31.Copy of this judgment pronounced and dictated in open court once readied and signed be provided to the Accused free of cost.
32.The file of the case shall be sent back to the concerned Court for being consigned to the Record Room for South-West district at Dwarka courts; complex, as per rules.
Dictated and announced in the open Court on 13.06.2025.
(SHRIYA AGRAWAL) Chief Judicial Magistrate, New Delhi District, Patiala House Courts New Delhi (Previously posted as CJM, South West District, Dwarka Courts) Ct. Case42/2013, 5001000/16 Page no. 25 of 25 Deputy Commissioner (SW) Vs. Rajesh Birman PS Najafgarh