Upendra Goswami vs State Of U.P. Thru. Secy. Deptt. Medical ... on 17 July, 2025

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Allahabad High Court

Upendra Goswami vs State Of U.P. Thru. Secy. Deptt. Medical ... on 17 July, 2025

2. The present petition has been filed by the petitioner challenging the order dated 28.12.2019 passed by the opposite party no.5 whereby, the registration of the petitioner's Ultrasound Centre was cancelled; the order dated 08.08.2024 whereby the petitioner's First Appeal was rejected as well as the order dated 31.03.2025 whereby the petitioner's Second Appeal was also dismissed.

3. The facts, in brief, are that the petitioner is a doctor by profession and had established a Diagnostic Center named Goswami Hospital at Mathura and was also involved in conducting ultrasound examinations. It is stated that after the implementation of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, the petitioner had obtained a registration as prescribed and was granted a registration for a term of five years. The said registration continued till the passing of order in the name of the petitioner as well as his wife. It is stated that on 23.11.2019, the District Appropriate Authority, Palwal (Haryana) passed an order permitting the carrying out of search of the premises where the Ultrasound activity was being run. The said office order is on record as Annexure no.5.

4. It is stated that based upon the said authorization, an operation was conducted by a team from Palwal (Haryana) on 24.11.2019 at the petitioner's clinic on the basis of the information received by them. It is the case of the petitioner, that the said search was not carried out in terms of the provisions of the Act in question, there were no independent witnesses and even the petitioner was not present and even the machine sought to be sealed was not even described. Based upon the said action, a criminal complaint no.294 of 2020 was instituted before the CJM Mathura and a first information report was also registered on 25.11.2019 being FIR No.0716 of 2019 at Palwal (Haryana). It was further stated by the respondents that during investigation, the wife of the petitioner failed to provide proper documentation and there were irregularities noticed in the machine. In the criminal cases, the petitioner has been granted anticipatory bail and the proceedings are pending in the criminal court, which is not the subject matter of the present petition.

5. It is stated that by virtue of the actions as noticed above, the City Magistrate through his communication dated 28.12.2019 cancelled the petitioner's registration in purporting exercise of power under section 20(3) of the Act, which according to the petitioner is vague, without jurisdiction, arbitrary and illegal. Aggrieved against the said cancellation, the petitioner approached the appropriate authority under section 21 of the Act and preferred an appeal which was dismissed on 08.08.2024, which according to the petitioner is without considering the materials that were pleaded before the appellate court. Aggrieved against the said order of the State Appellate Authority, the petitioner preferred Second Appeal under section 21 read with Rule 19 of the Act and the Rules framed thereunder, which too has been dismissed and is impugned.

6. The counsel for the petitioner argues that the order passed against the petitioner in exercise of the power under section 20(3) of the Act are admittedly without jurisdiction. He further argues that no material existed even in the survey and inspection carried out. He further argues that no reasoning have been recorded while cancelling the registration. In the light of the said, he argues that the petition is liable to be allowed. Reliance is placed upon the judgment of the Supreme Court in the case of Ravinder Kumar vs. State of Haryana; 2024 SCC Online SC 2495 as well as the judgment of this court in Writ-C No3795 of 2025 (Alpha Diagnostic Centre vs. State Appropriate Authority) decided on 23.05.2025.

7. Standing Counsel opposes the writ petition and argues that complaints were received with regard to carrying out of illegal diagnostic test for determination of the fetus and based upon the said complaints, a team was constituted on 23.11.2019 by the authorities at Palwal (Haryana) authorizing three officers. It is stated that on 24.11.2019, a decoy customer reached Mathura and they were accompanied thereafter by a Deputy Collector as well as one Tehsildar of Palwal and one Nodal Officer joined the team. The said team stopped 500 meter away from the hospital where the ultrasound machine was operational, wherein a request was made to carry out the gender determination test and a tout demanded Rs.16000/- for carrying out the test and thereafter the decoy customer was taken to the hospital and was left inside the room. The decoy customer thereafter left the room after the ultrasound was carried out and based upon the said, the raid carried out, resulted in recovery of the amount deposited. Various other irregularities in running and maintaining the records of the ultrasound centre were also noticed and based upon the said, the entire orders were passed.

8. It is argued that the act itself was framed for prohibition of carrying out of diagnostic test and based upon the material available, the orders impugned were passed warranting no interference.

9. In rejoinder, the counsel for the petitioner states that neither the tests were carried out in the presence of independent witnesses and even if the statement of decoy customer is taken into account, she had stated that, after carrying out the ultrasound, the doctor had only stated that "हाँ सब ठीक है" (Yes everything is all right). He argues that even if the statement is treated to be gospel truth, no material exists to form an opinion that the petitioner was involved in carrying out any unauthorized sex determination test.

10. In the light of the pleadings contained herein, it is essential to notice the scheme of the PCPNDT Act, which was enacted to provide for the prohibition of sex selection, before or after conception and for regulating the techniques. Section 3 of Chapter II prohibits any genetic counselling centres, genetic laboratories and genetic clinics to conduct any activities to pre-natal diagnostic techniques. Section 3-A specifically prohibits that no person including a specialist shall conduct or cause to be conducted sex selection of a woman or a man. Section 3-B prohibits the sale of ultrasound machine to a person not registered under the Act. Chapter III provides for regulation of pre-natal diagnostic techniques. Chapter IV provides for constitution of a Central Supervisory Board and Section 16-A provides for constitution of State Supervisory Board and Union Territory Supervisory Board. Section 17 provides for appointment of Appropriate Authority for whole or any part of the State to be constituting of the members as specified under Section 17(3). The functions of Appropriate Authority has been specified under Section 17(4). Section 17-A provides the powers of the Appropriate Authorities to be exercised. Section 20 confers the power of cancellation or suspension of registration. Sections 20, 22 and 23 are quoted below:

"20. Cancellation or suspension of registration.--(1) The Appropriate Authority may suo motu, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.

(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advise of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.

(3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1).

22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.--(1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of the foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including Internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such Centre, Laboratory, Clinic or at any other place.

(2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.

(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.

Explanation.--For the purposes of this section, "advertisement" includes any notice, circular, label, wrapper or any other document including advertisement through Internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.

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 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."

11. Section 29 provides for maintenance of records. Section 30 confers the power to search and seize the records, which reads 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."

12. From plain reading of the order whereby the machines were sealed in exercise of the power under section 20(3) was referred. Section 20(3), only empowers the appropriate authority to suspend the registration of any Genetic Counselling Centre, no power of cancellation is vested by virtue of section 20(3). Even if, the said order is presumed for the sake of argument to be passed under section 20(1) or 20(2) of the Act, admittedly, no show cause notice has been given and there are no reasons mentioned. Thus, on the said infractions itself, the order of suspension of registration cannot be justified.

13. Hon'ble the Supreme Court in the case of Ravinder Kumar (supra) had dealt with exactly similar situation and referring to Section 17 had held that no decision taken and impugned therein would fall within the legal definition of a legal decision.

14. In the present case also, the order apart from being without jurisdiction has not been taken in the manner prescribed under section 17 of the Act and no reasons to believe exists as interpreted in para 12 of the judgment in the case of Ravinder Kumar (supra). These facts and discrepancy as noticed above with regard to jurisdiction, non-existence of reasoning have not even been considered by the appellate authority. It is well settled that the order without jurisdiction is nullity in the eyes of law. Finding that the order impugned, is without any jurisdiction and following the mandatory requirements prescribed under the Act and Rules, the same cannot be sustained, as such, the orders dated 28.12.2019, 08.08.2024 and 31.03.2025 are quashed.

15. The writ petition stands allowed.

16. The petitioner would be entitled to apply for registration of the Ultrasound Clinic which shall be permitted in accordance with law.

Order Date :- 17.7.2025 VNP/-

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Allahabad High Court