Kerala High Court
Dr.Jessy Joseph vs State Of Kerala on 5 June, 2017
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
THURSDAY, THE 20TH DAY OF JULY 2017/29TH ASHADHA, 1939
WP(C).No. 18757 of 2017 (T)
----------------------------
PETITIONER :
----------------------
DR.JESSY JOSEPH,
MG. DIRECTOR, PRASANTHI HOSPITAL,
POST BOX NO.82, COURT ROAD,
MANJERI, KERALA.
BY SRI.K.P.DANDAPANI,SENIOR ADVOCATE
ADV. SRI.MILLU DANDAPANI
RESPONDENT(S):
--------------------------
1. STATE OF KERALA,
REPRESENTED BY PRINCIPAL SECRETARY HEALTH DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001
2. THE DIRECTOR OF HEALTH SERVICE,
DIRECTORATE OF HEALTH SERVICE,
THIRUVANANTHAPURAM, PIN-695 033
(IN HIS CAPACITY AS THE APPELLATE AUTHORITY
UNDER THE PC & PNDT ACT).
3. DISTRICT MEDICAL OFFICER (H),
MALAPPURAM, PIN-676 505
(DISTRICT APPROPRIATE AUTHORITY UNDER PC & PNDT ACT).
4. DISTRICT RCH (REPRODUCTIVE & CHILD HEALTH) OFFICER,
DISTRICT MEDICAL OFFICE (H),
MANJERI, MALAPPURAM, PIN-676 121
5. THE NATIONAL INSPECTION AND MONITORING
COMMITTEE (NIMC) TEAM,
REPRESENTED BY THE DISTRICT RCH OFFICER,
DISTRICT MEDICAL OFFICE, MANJERI, PIN-676 121
BY GOVERNMENT PLEADER SRI.S.KANNAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 15-06-2017, ALONG WITH WPC.NO. 18887/2017 AND CONNECTED
CASES, THE COURT ON 20-07-2017 DELIVERED THE FOLLOWING:
sts
WP(C).No. 18757 of 2017 (T)
---------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS
--------------------------------------
EXHIBIT P1: TRUE COPY OF THE RECOMMENDATION DT. 2/6/2017 ISSUED BY THE
5TH RESPONDENT TO THE 3RD RESPONDENT.
EXHIBIT P2: TRUE COPY OF THE MAHAZAR BEARING NO.C2-16908/2017
DATED 05/06/2017.
RESPONDENT(S)' EXHIBITS: NIL
-------------------------------------------
/TRUE COPY/
P.A.TO JUDGE
sts
P.B.SURESH KUMAR, J.
--------------------------------------------
W.P.(C).Nos.18757, 18887, 19432
&
19718 of 2017
---------------------------------------------------------------
Dated this the 20th day of July, 2017
J U D G M E N T
These matters arise under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ('the Act'). The Act was introduced with a view to prohibit pre-natal diagnostic techniques for determination of sex of foetus leading to female foeticide. Having noticed that the purpose of the Act has not been achieved despite lapse of several years, the Apex Court in Voluntary Health Association of Punjab v. Union of India and Others [(2013) 4 SCC 1] issued certain W.P.(c).Nos.18757 of 2017 & connected cases.l : 2 : directions for the effective implementation of the provisions of the Act. The said directions include directions to genetic clinics to maintain strictly the records required to be maintained by them under the Act and directions to the authorities under the Act to take action against genetic clinics and other institutions covered by the Act, if they do not maintain the records in accordance with the provisions contained in the Act. It was also directed in the said case that the provisions of the Act shall be given effect to, if necessary, by seizing the machines used for providing pre- natal diagnostic services. In the light of the above directions, the Central Government constituted a National Level Inspection and Monitoring Committee ('the Committee') and the committee is now monitoring the implementation of the provisions of the Act.
2. The petitioner in W.P.(C) Nos.18757 of 2017 and 19718 of 2017 is the Director of a company running a genetic clinic on the strength of the registration obtained under the Act. The members of the Committee along with W.P.(c).Nos.18757 of 2017 & connected cases.l : 3 : the third respondent, the appropriate authority under the Act, inspected the genetic clinic of the petitioner on 02.06.2017. It was found in the course of the said inspection that the petitioner is not complying with the provisions contained in the Act and the Rules made thereunder viz, the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 ('the Rules'). Consequently, the Committee recommended to the appropriate authority to set criminal law in motion against the petitioner. W.P.(C).No.18757 of 2017 is instituted challenging the said recommendation. During the pendency of the writ petition, in compliance with the recommendation made by the Committee, the third respondent seized the ultrasound scanning machine used by the petitioner, its accessories and some of the records maintained by the petitioner in their genetic clinic. The petitioner, therefore, preferred an interlocutory application in the writ petition seeking orders for release of the machine, its accessories and the records seized from their clinic. Later, in compliance W.P.(c).Nos.18757 of 2017 & connected cases.l : 4 : with the recommendation made by the Committee, the third respondent suspended the registration granted to the petitioner under Section 19 of the Act. W.P.(C).No.19718 of 2017 is instituted challenging the said order.
3. The petitioner in W.P.(C).Nos.18887 of 2017 and 19432 of 2017 is the proprietor of a diagnostic centre. The said diagnostic centre is also providing anti-natal diagnostic services on the strength of the registration obtained under the Act. The Committee along with the third respondent, the appropriate authority appointed under the Act has inspected the diagnostic centre of the petitioner on 02.06.2017 and recommendation similar to the one made in the earlier case was made in this case also. In W.P.(C). No.18887 of 2017, the petitioner is challenging the said recommendation. Subsequently, as in the earlier case, the third respondent seized the ultrasound scanning machine, its accessories and some of the records maintained by the petitioner in their diagnostic centre and the registration of the petitioner was suspended. W.P.(C).No.19432 of 2017 is W.P.(c).Nos.18757 of 2017 & connected cases.l : 5 : preferred challenging the seizure and the order suspending the registration of the petitioner.
4. Heard the learned counsel for the petitioners as also the learned Government Pleader.
5. The learned counsel for the petitioners contended that the authorities under the Act are performing statutory functions and as such, they cannot be compelled to take action against the petitioners by the Committee. It was also contended by the learned counsel that the findings in the recommendations are all incorrect and the same have been arrived at without affording the petitioners an opportunity of hearing. It was further contended by the learned counsel that the seizure of the equipments and its accessories from the premises of the petitioners on the strength of the recommendation made by the Committee is also without jurisdiction. Relying on Section 30 of the Act, it was also contended by the learned counsel that the power of seizure of the equipments conferred on the authorities under the Act can be exercised by them only if they have reasons W.P.(c).Nos.18757 of 2017 & connected cases.l : 6 : to believe that an offence under the Act has been committed. According to the learned counsel, the materials on record do not indicate that the petitioners have committed any offence under the Act. As regards the suspension of registration, the learned counsel for the petitioners contended that an order suspending the registration under the Act cannot be passed without issuing notice to the petitioners.
6. Before adverting to the contentions advanced by the learned counsel for the petitioners, it is necessary to refer to the directions issued by the Apex Court in Voluntary Health Association of Punjab (supra). Paragraph 9 of the judgment in the said case which contains the directions reads thus:
"9. In such circumstances, the following directions are given:
9.1. The Central Supervisory Board and the State and Union Territories Supervisory Boards, constituted under Sections 7 and 16-A of PN & PNDT Act, would meet at least once in six months, so as to supervise and oversee how effective is the implementation of the PN & PNDT Act.
9.2. The State Advisory Committees and District Advisory W.P.(c).Nos.18757 of 2017 & connected cases.l : 7 : Committees should gather information relating to the breach of the provisions of the PN & PNDT Act and the Rules and take steps to seize records, seal machines and institute legal proceedings, if they notice violation of the provisions of the PN & PNDT Act. 9.3. The committees mentioned above should report the details of the charges framed and the conviction of the persons who have committed the offence, to the State Medical Councils for proper action, including suspension of the registration of the unit and cancellation of licence to practice.
9.4. The authorities should ensure also that all genetic counselling centres, genetic laboratories and genetic clinics, infertility clinics, scan centres, etc. using pre-conception and pre-natal diagnostic techniques and procedures should maintain all records and all forms, required to be maintained under the Act and the Rules and the duplicate copies of the same be sent to the district authorities concerned, in accordance with Rule 9(8) of the Rules. 9.5. States and District Advisory Boards should ensure that all manufacturers and sellers of ultrasonography machines do not sell any machine to any unregistered centre, as provided under Rule 3-
A and disclose, on a quarterly basis, to the State/Union Territory concerned and the Central Government, a list of persons to whom the machines have been sold, in accordance with Rule 3-A(2) of the Rules.
9.6. There will be a direction to all genetic counselling centres, genetic laboratories, clinics, etc. to maintain Forms A, E, H and other statutory forms provided under the Rules and if these forms are not properly maintained, appropriate action should be taken by the authorities concerned.
9.7. Steps should also be taken by the State Government and the W.P.(c).Nos.18757 of 2017 & connected cases.l : 8 : authorities under the Act for mapping of all registered and unregistered ultrasonography clinics, in three months' time. 9.8. Steps should be taken by the State Governments and the Union Territories to educate the people of the necessity of implementing the provisions of the Act by conducting workshops as well as awareness camps at the State and district levels. 9.9. Special cell be constituted by the State Governments and the Union Territories to monitor the progress of various cases pending in the courts under the Act and take steps for their early disposal. 9.10. The authorities concerned should take steps to seize the machines which have been used illegally and contrary to the provisions of the Act and the Rules thereunder and the seized machines can also be confiscated under the provisions of the Code of Criminal Procedure and be sold, in accordance with law. 9.11. The various courts in this country should take steps to dispose of all pending cases under the Act, within a period of six months. Communicate this order to the Registrars of various High Courts, who will take appropriate follow-up action with due intimation to the courts concerned.
10. All the State Governments are directed to file a status report within a period of three months from today. Ordered accordingly." True, the Committee is not a statutory body under the Act and as such, the learned counsel for the petitioners was right in contending that the Committee cannot exercise any of the powers conferred under the Act. But, that does not W.P.(c).Nos.18757 of 2017 & connected cases.l : 9 : mean that the Committee cannot recommend for action under the Act when it finds that the provisions of the Act and the Rules made thereunder have been flouted by institutions covered by the Act, especially in the light of the directions of the Apex Court in Voluntary Health Association of Punjab (supra). As noted above, in the instant case, the Committee inspected the premises of the petitioners along with the appropriate authority who is competent to initiate action against the petitioners under the Act. The findings recorded in the recommendations are the findings arrived at by the appropriate authority also. As far as the petitioner in W.P.(C) Nos.18757 of 2017 and 19718 of 2017 is concerned, the recommendation made by the Committee recites, among others, that the petitioner is not maintaining the information required to be maintained in Form F as provided for in the Rules; that the petitioner is not keeping the documents to be kept along with the information in Form F; that the Anti-natal Register maintained in the clinic of the petitioner is incomplete; that the total number of patients W.P.(c).Nos.18757 of 2017 & connected cases.l : 10 : whose ultrasound scanning have been performed in the clinic do not match with the obligatory records maintained at the clinic and that the ultrasound machines show no records of patients nor did it store the images of the ultrasound scans performed. Similar findings are there in the case of the petitioner in W.P.(C).Nos.18887 of 2017 and 19432 of 2017. The findings recorded in the recommendations prima facie indicate that the provisions contained in the Act and the Rules made thereunder have been flouted by the petitioners. In the circumstances, I do not find any illegality in the said recommendations. Needless to say that the question whether the petitioners have committed any offence under the Act is a matter to be considered by the competent court at the appropriate stage of the proceedings directed to be initiated against the petitioners.
7. Section 30 of the Act dealing with the power of the authorities under the Act to search and seize records etc. reads thus:
W.P.(c).Nos.18757 of 2017 & connected cases.l : 11 : "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 or 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."
As rightly contended by the learned counsel for the petitioners that the appropriate authority under the Act is entitled to search and seize material objects referred to in Section 30 only if the appropriate authority has reason to believe that an offence under the Act has been committed and when the appropriate authority has reason to believe that the material objects seized may furnish evidence of the commission of the offence. Section 4 of the Act reads thus:
W.P.(c).Nos.18757 of 2017 & connected cases.l : 12 : "4. Regulation of pre-natal diagnostic techniques.- On and from the commencement of this Act,--
(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;
(iii) The pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation, infection or chemicals;
W.P.(c).Nos.18757 of 2017 & connected cases.l : 13 :
(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 Central Supervisory 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 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."
As evident from the proviso to Section 4(3) of the Act, it is obligatory for the person conducting ultrasonography on a pregnant women to 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 W.P.(c).Nos.18757 of 2017 & connected cases.l : 14 : unless contrary is proved by the person conducting such ultrasonography. It is, therefore, clear that if the records required to be maintained under the Act and the Rules are not maintained, it could be presumed that the person concerned have contravened the provisions contained in Sections 5 and 6 of the Act. Section 5 of the Act reads thus:
"5. Written consent of pregnant woman and prohibition of communicating the sex of foetus. (1) No person referred to in clause (2) of section 3 shall conduct the pre-natal diagnostic procedures unless--
(a) He has explained all known side and after effects of such procedures to the pregnant woman concerned;
(b) He has obtained in the prescribed form her written consent to undergo such procedures in the language which she understands; and
(c) A copy of her written consent obtained under clause
(b) is given to the pregnant woman.
(2) No person including the person conducting pre-natal diagnostic procedures shall communicate to the pregnant woman concerned or her relatives or any other person the sex of the foetus by words, signs or in any other manner."
Section 6 of the Act reads thus:
"6. Determination of sex prohibited.- On and from the commencement of this Act,--
W.P.(c).Nos.18757 of 2017 & connected cases.l : 15 :
(a) no Genetic Counselling Centre or Genetic Laboratory or Genetic Clinic shall conduct or cause to be conducted in its Centre, Laboratory or Clinic, pre-natal diagnostic techniques including ultrasonography, for the purpose of determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted any pre-natal diagnostic techniques including ultrasonography for the purpose of determining the sex of a foetus;
(c) no person shall, by whatever means, cause or allow to be caused selection of sex before or after conception."
Non-compliance of the provisions contained in the Act and the Rules is an offence under Section 25 of the Act. The relevant portion of Ext.P2 mahazar in W.P.(C).No.18757 of 2017 reads thus:
?_ XmE^IHJ_W PC-PNDT ACT H_ONJ_fa \"8H" H?AaKa .Km H^WCW 'XXmfIfX &am gN^C_xy_Bm 5N_x_Oaf? y_gM^VG_fa %?_XmE^HJ_W ?_ H_ONdI5^x" %gdI^dI_gOxm %gD^y_x_O^O <_\o^ fNA_AW 3K`XV (&gx^7c") N\May"_fa gHdDcDbJ_W X_2_16908/17 <_.fN.3. (&) N\May" D`OD_ 05/06/2017 _f\ )JxUadI5^x" xbI`5x_:n ?`", gA^.f<X_ g<^XKm f<Hx_5m 5o_H_Am NgFx_ .K XmE^IJ_f\ fx<_XmxV f:Oq )I5xCB{a" gx65{a" (x<_XmxV, gK^Na5Z Nxm %HaLt gx65Z) ?`N_f\ U_F7mixaf? XY^OgJ^f? U_VFN^O_ Ix_gV^G_:nD_W H_Ka" 1994_f\ PC- PNDT &5m?_f\ H_ONBZAa" :GBZAa" U_xaiN^O_ D^f] IyOaK dIUVJHBZ/ U`]m:5Z gHx_Gm gL^GcfMGa.
1.&a_gHxW x<_Xmxy_W 01/03/2016 NaDW gx6fM?agJI U_UxBZ 5cDcN^O_ gx6fM?aJa5gO^ 20/02/2017_Hm gVW" gx6fM?aJ\a5Z 2Ka" DfK H?Ja5fO^ f:OqD^O_ 5^CaK_\o.
2. %gDXNO" <_\o^ %gdI^dI_gOxm %gD^y_x_5Z HWg5I dID_N^X y_gM^VG_W 20/02/2017_Hm gVW" N^V:nm 2017_W 18 7VM_C_5{af?
%Zd?^XlIm Xm5^H_"7a" 2017 /dI_\_W 03 7Vm_C_5{af? %Zd?^XlIm Xm5^H_"
7a" H?J_OD^O_ IyOaKa.e.K^W 2017 <HaUx_O_f\ y_gM^VGm <_\o^ %gdI^dI_gOxm %gD^y_x_Am HW5_O_GaN_\o.
3. H_VLtN^Oa" X`f_gAI %a_gHxW x<_XmxV, gIfNam W.P.(c).Nos.18757 of 2017 & connected cases.l : 16 : xV`D_, F gK^y", Nxm %HaLt gx65{_\a" gx^7_5{af? .HJ_W %Lx"
5^CaKa.
4. %Zd?^XlIm fNW`H_W Xm5^X f:Oq gx^7_5{af? U_UxB{a"
:_dDB{a" (Images) Xbf_:nD^O_ 5^CaK_\o.
5. H_VLtN^Oa" Ibx_M_gAI Form F M^7`5N^O_ Ibx_M_:nD^O_ 5^CaKa.e2017 N^V:nm, /dI_W, fNOm N^XB{_W Form F 5CaK_\o.
?_ dIUVJHBZ PC-PNDT ACT f\ U_U_G U5aMa5{a", :GB{a"
dI5^x" 5ax5xUa", V_f^VYUaN^OD_H^W D^f] IxOaK fNW`Ha5{a"
x<_Xmxya5{a" Nxm X^GH X^Nd7_5{a" H_ON H?I?_Oaf? M^7N^O_ LLUT_W .?aAaKa.
The relevant portion of Ext.P3 mahazar in W.P.(C).No.19432 of 2017 reads thus:
"?_ XmE^IHJ_W PC-PNDT Act H_ONJ_fa \"8H" H?AaKa .Km H^WCW 'XXmfIfX &am gN^C_xy_Bm 5N_x_Oaf? y_gM^VG_fa %?_XmE^HJ_W ?_ H_ONdI5^x" %gdI^dI_gOxm %gD^y_x_O^O <_\o^ fNA_AW 3K`XV (&gx^7c") N\May"_fa gHdDcDbJ_W X_2_16908/2017 <_\o^ fNA_AW 3K`XV (&gx^7c") N\May" D`OD_ 05/06/2017 _f\ )JxUadI5^x"
xbI`5x_:n ?`", gA^.<_\bXm Xm5^X & AOgo^Xmx_Am fXaV .K XmE^IJ_f\ fx<_XmxV f:Oq )I5xCB{a" gx65{a" (x<_XmxV, gK^Na5Z Nxm %HaLt gx65Z) ?`N_f\ U_F7mixaf? XY^OgJ^f? U_VFN^O_ Ix_gV^G_:nD_W H_Ka" 1994_f\ PC-PNDT &5m?_f\ H_ONBZAa"
:GBZAa" U_xaiN^O_ D^f] IyOaK dIUVJHBZ/ U`]m:5Z gHx_Gm gL^GcfMGa.
1. /D^Ha" .Km gK^Na5Z D`fxOa" Ibx_M_A^fDOa" Nxm :_\U M^7`5N^Oa"
Ibx_M_:nD^O_ 5^CaKa.e.Km gK^Na5{af?5bf? )ZfA^U_:na gx^7_Oaf? XNDIdDB{_W gx^7_Oaf? 2Mm N^dDN^O^Cm 5^CaKDm.
2. H_VLtN^Oa" Xbf_gAI %a_gHxW x<_XmxV U{fx %Ixc^IqN^O^Cm Ibx_M_:n_x_AaKDm 5b?^fD %a_gHxW x<_XmxV .K gIx_W xIm x<_Xmxya5Z (yKm & fKOV) Xbf_:n_x_AaKa.e( xIm x<_Xmxya5{a"
DN_W A^x5{_W 7CcN^O UcDc^X" 5^CaKa.e)F^YxCN^O_ yKm x<_Xmxy_W /dI_W 30, 2017_Hm gVW" <bY 2, 2017 Hm N^dDN^Cm .Xd?_5Z 5^CaKDm.e%DagI^f\ fKOV x<_Xmxy_W /dI_W 30, 2017 Hm gVW" 2Ka"
gx6fM?aJ_O_G_\o.
%gDXNO" %gdI^dI_gOxm %gD^y_x_Am XNVM_:nD^OaU g5^M_5{_W 2017 N^V:nm N^XJ_W 52 7VM_C_5{af? %Zd?^XlIm, /dI_\_W 41 7VM_C_5 {af? %Zd?^XlIa" f:OqD^O_ 5^CaKa.
3. 02/06/2017 D`OD_O_W ( XmE^IHJ_W ?`" XwVVH" H?JagO^Z gA^.<_\b g<^Om 2xa 7VM_C_Oaf? %Zd?^XlIm f:Oqmf5^I_xaKDm y_gM^VG_W 5^C_:n_xaKDm .Km gK^" D`fxOa" Ibx_M_A^J H_\O_\^O_xaKa.e( gx^7_Oaf? %UXmEfOAay_:nm Missed Abortion .K^Cm gA^5m?V IyEDm.
4. &G_5^x_5N^O_ Xbf_gAI &a_gHxW x<_Xm?V, gK^" .Ka5Z, %Zd?^XlIm y_gM^VGm .K_U5{_W gx^7_5{af? .HBZ DN_W %LxNaIm.
5. %a_gHxW yKm x<_Xmxy_W 25/01/2017 NaDW 30/04/2017 Ufx A^x^5 {_W Missing 5^CaKaIm.e5b?^fD 01/05/2017 NaDW 01/06/2017 Ufx .Xd?_5Z 2Ka" 5^C^fD 02/06/2017 NaDW .Xd?_ U`Ia" 5^CaKa.
6. M^7`7N^O_ Ibx_M_:n D`OD_ gx6fM?aJ^J <_. gK^Na5{a", W.P.(c).Nos.18757 of 2017 & connected cases.l : 17 : M^7`7N^O_ Ibx_M_:n .Km gK^Na5{a" &Cm )UDm.
?_ dIUVJHB{_W PC-PNDT %5m?_f\ U_U_G U5aMa5{a :GB{a"
dI5^x" 5ax5xUa" V_f^VYUaN^OD_H^W D^f]IyOaK fNW`Ha5{a"
x<_Xmxya5{a" Nxm X^GH X^Nd7_5{a" H_ONH H?I?_Oaf? M^7N^O_ LLUT_W .?aAaKa.
A scrutiny of the aforesaid mahazars prepared while effecting seizure of the machines from the premises of the petitioners indicates beyond doubt the reasons, on the basis of which the appropriate authority believed that offences under the Act have been committed by the petitioners. There is, therefore, absolutely no merit in the contention that the seizure of the machines, its accessories and the records from the premises of the petitioners have been effected contrary to the provisions contained in Section 30 of the Act.
8. The learned counsel for the petitioners contended that the machines that are seized from the premises of the petitioners are worth crores and there is no need to retain the machines until the proceedings initiated against the petitioners under the Act is over. In so far as the machines and its accessories are seized from the W.P.(c).Nos.18757 of 2017 & connected cases.l : 18 : premises of the petitioners in furtherance to the criminal proceedings contemplated against the petitioners, the question whether they should remain as such until the trial is over, is a matter to be considered by the concerned criminal court and I do not find any impediment for the petitioners to move the criminal court concerned for release of their properties in accordance with the provisions contain in Chapter XXXIV of the Code of Criminal Procedure.
9. The question remaining to be considered is the correctness of the orders suspending the registration of the petitioners under Section 19 of the Act. Section 20 of the Act deals with the cancellation and suspension of registration granted under Section 19 of the Act. Section 20 of the Act reads thus:
"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 advice of the Advisory Committee, W.P.(c).Nos.18757 of 2017 & connected cases.l : 19 : 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)."
As evident from the provisions extracted above, the appropriate authority is empowered to suspend or cancel the registration granted under Section 19 of the Act. Section 20(1), however, provides that before the registration granted under the Act is cancelled or suspended, a show cause notice has to be given to the person concerned indicating the reasons, on the basis of which registration is proposed to be suspended or cancelled. Under Section 20 (2), the registration is liable to be cancelled or suspended only if, after affording the party concerned an opportunity of hearing, the appropriate authority is satisfied that there has W.P.(c).Nos.18757 of 2017 & connected cases.l : 20 : been a breach of the provisions of the Act and the Rules made thereunder. Section 20(3), however, clarifies that 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 clinic or diagnostic centre without issuing notice provided for under Section 20(1). Admittedly, the petitioners have not been given any notice before their registration under Section 19 have been suspended. The impugned orders recite that the registrations of the petitioners have been suspended in public interest. True, in the light of the provision contained in Section 20(3), registration granted to a person can be suspended if the appropriate authority is of the opinion that it is necessary or expedient so to do in the public interest. As evident from the said provision, in such cases, the competent authority shall record its reasons for arriving at the conclusion that it is necessary in public interest to suspend the registration without notice to the party. Ext.P3 order in W.P.(C). W.P.(c).Nos.18757 of 2017 & connected cases.l : 21 : No.19718 of 2017 and Ext.P4 order in W.P.(C). No.19432/2017 do not indicate the reasons on which the competent authority decided to suspend the registration of the petitioners without issuing notice to them in public interest. In the said view of the matter, the said orders are liable to be interfered with.
In the result, the writ petitions are allowed in part, Ext.P3 order in W.P.(C).No.19718 of 2017 and Ext.P4 order in W.P.(C).No.19432/2017 are quashed and the registration of the petitioners under the Act are restored. It is, however, made clear that this judgment will not preclude the authorities under the Act in suspending/cancelling the registration of the petitioners in accordance with the provisions contained in the Act, if circumstances warrant.
P.B.SURESH KUMAR JUDGE rsr