Allahabad High Court
Alpha Diagnostic Centre Thru. Ajay ... vs State Appropriate Authority/State ... on 23 May, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Neutral Citation No. - 2025:AHC-LKO:30705 Judgment reserved on 06.05.2025 Judgment delivered on 23.05.2025 Case :- WRIT - C No. - 3795 of 2025 Petitioner :- Alpha Diagnostic Centre Though Ajay Singh Saktuka Purwa Lucknow And 3 Others Respondent :- State Appropriate Authority/State Appellate Authority P.C.P.N.D.T. Act Thru. Chairman And 3 Others Counsel for Petitioner :-Anurag Narain Srivastava,Shailendra Kumar Misra Counsel for Respondent :- C.S.C. Hon'ble Pankaj Bhatia,J.
1. Heard learned Counsel for the petitioner as well as learned Standing Counsel.
2. Present petition has been filed challenging an order dated 26.03.2025 passed by the State Appellate Authority as well as the order dated 13.10.2023 whereby, the registration of the petitioner's Ultrasound Centre was cancelled and the suspension order dated 12.05.2023.
3. The facts in brief are that the petitioner no.1 is a diagnostic centre running in the name of "Alpha Diagnostic Centre", which was registered on 08.09.2021 and was running in terms of the provisions contained in Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "the PCPNDT Act"). On the basis of an authorization letter dated 01.05.2023 issued by the SDM, Mohanlalganj, Lucknow, an inspection was carried out on 01.05.2023 and an order of seizure and sealing the ultrasound centre was passed on 01.05.2023 itself, which is contrary to the provisions of the PCPNDT Act. It is pleaded that in terms of the provisions of the PCPNDT Act satisfaction of the District Magistrate is required and no such satisfaction was recorded or any authority letter was issued to the respondent no.3 authorizing him to search and seized or seal the premises. It is stated that the District Magistrate was himself not present and thus the mandate of Section 30 of the PCPNDT Act was not observed.
4. It is argued by the Counsel for the petitioners that although in the search report, it is mentioned that information was given to the District Magistrate and he has delegated his power to the Nayab Tehsildar, however, no order was passed or shown in pursuance to the search. An order of cancellation came to be passed, however, no notice as prescribed under Section 20(2) was on record or served nor was there any recommendation of the Advisory Committee ever placed before the District Magistrate. It is further argued that no seizure memo was prepared on 01.05.2023 and the same was subsequently prepared on 24.05.2023 by making forged and fabricated signatures of the persons mentioned therein. The signatures are different and which makes it clear that the same was antedated. Even the signature of the Manager of the Centre was fabricated, by way of a comparison, both the signatures have been placed on a common sheet. It is further argued that the provisions of Section 30 and Rule 12 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules 1996 (in short "the PCPNDT Rules" as well as the provisions of Section 100 of Cr.P.C. were not followed and there were no independent witness. It is stated that after passing of the order dated 12.05.2023 and 13.10.2023, the petitioner preferred an Appeal No.109 of 2023 under Rule 19 of the PCPNDT Rules read with Section 21 of the PCPNDT Act on 07.11.2023.
5. It is further argued by the Counsel for the petitioners that during the pendency of the appeal, for the first time the seizure memo was provided to the petitioners on 16.10.2023 on his moving an application. It is further stated that the appellate authority had directed the respondent to produce the original records along with the report of the Advisory Committee and ultimately on 12.03.2025, the report of the Advisory Committee dated 10.05.2023 was produced and served upon the petitioners and in respect of Point No.8 of the said report, there was no recommendation of the Advisory Committee for suspension/ cancellation of the registration of the petitioner no.1, which is mandatory in terms of Sections 17(4)(d), 17 (4)(i) and Section 20(2) of the PCPNDT Act. It is further argued that the appellate authority without considering these important aspects passed the appellate order dated 26.03.2025 whereby, orders were passed confirming the order of cancellation and remanded the matter for providing an opportunity of hearing as prescribed under Section 20(1) and Section 20(2) of the Act.
6. The Counsel for the petitioners relies upon the judgment passed by the appellate authority in respect of similarly placed centres wherein, it has upheld the contention of non adherence of the Rules and the Act, whereas a different view was taken in the case of the petitioners. In the light of the said, it is argued that all the orders deserve to be quashed and the writ petition is liable to be allowed.
7. Learned Standing Counsel has filed a counter affidavit denying the allegations as contained in the writ petition. It is argued that the Nayab Tehsildar was authorized for the search by the Sub-District Magistrate vide order dated 01.05.2025, who himself is delegatee the District Magistrate in terms of the Notification dated 30.11.2007 (Annexure-CA-2). It is argued that further through a Notification dated 08.02.2013, the SDM has been appointed as Tehsil Level appropriate authority for the Tehsil under his jurisdiction (Annexure-CA-3) with further power to sub-delegate. It is argued that in terms of the powers conferred upon the SDM, he was authorized to nominate the Nayab Tehsildar for carrying out the search. It is further stated that both the seizure memo were made available to the petitioner on the spot on the same day, which is indicated in the letter itself, which records 'received'. It is however admitted that the cancellation order was passed without issuance of a show cause notice. It is however stated that the petitioner himself has admitted that on the date in question, the authorized doctor, the petitioner no.4 was out of Lucknow. Reliance is also placed upon the Call Details Record of the authorized doctor to demonstrate that he was out of Lucknow. In the light of the said, it is argued that the writ petition is liable to be dismissed, moreso, when it is against an order of remand.
8. The Counsel for the petitioners places reliance in the case of Dr. Brij Pal Singh vs State of U.P. and another: Neutral Citation No. - 2024:AHC:159207. He further places reliance in the case of Ravinder Kumar vs State of Haryana: (2024) 9 SCR 397; District Appropriate Authority under the PNDT Act and Chief District Health Officer vs Jashmina Dilip Devda and another: (2024) 3 SCR 60; Dr. Anil Bansal vs The District Appropriate Authority, Gurugram: Neutral Citation No.2020:PHHC:026446; Rajesh and others vs The State of Madhya Pradesh: MANU/SC/1040/2023.
9. The learned Standing Counsel, on the other hand, places reliance on the judgment of Hon'ble Supreme Court rendered in the case of Federation of Obstetrics and Gynaecological Societies of India (FOGSI) vs Union of India and others: (2019) 6 SCC 283.
10. In the light of the abovesaid contentions, 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. In the light of the said statutory provisions as quoted above and on perusal of the order of seizure as passed on 01.05.2025 and as contained in Annexure-6, it transpires that the team visited the centre on 01.05.2023, where Sri Ajay Singh, Coordinator was present and on perusal of the Form-F, the same was found unfilled at various places. It is also recorded that the signature of the doctor on the Form-F were different from the reports. The requisite number of fetus of the pregnant woman were not recorded. There phone numbers were not recorded and on questioning the Manager Jaya Singh could not provide a satisfactory explanation. It further records that a telephone call was made to the doctor, who informed that his father was unwell and as such, he was not performing any ultrasound for last fifteen days, whereas in the reports dated 28.04.2023, 29.04.2023, 30.04.2023 and 01.05.2023, the name of the doctor was mentioned in Form-F. It further records that these facts were made aware to the authorized authority/ District Magistrate and on receiving instructions, the machines and the Form-F in respect of the certain patients were sealed and the seized machines were handed over in the Supurdagi of the Manager after sealing the same. It was further recorded that the said act of the licensee were contrary to the provisions of the Act and thus in the public interest, the license was suspended under Section 20(3) of the PCPNDT Act. In this regard, it is essential to notice the judgment of Hon'ble Supreme Court in the case of Ravinder Kumar (Supra), wherein the phrase "reason to believe" used in Section 30 was interpreted to mean that there has to be reason to believe in the context in which it is used, which would be propelled to take action considering the object of the Act. The relevant paragraphs no.10, 11, 12, 13, 14, 16 and 17 are reproduced below:
"10. The condition precedent for the search of a clinic is that the Appropriate Authority must have reason to believe that an offence under the 1994 Act has been or is being committed. The Appropriate Authority, as defined under Section 2(a), is the Appropriate Authority appointed under Section 17. Subsections (1) to (3) of Section 17 read thus:
"17. Appropriate Authority and Advisory Committee. - 1. The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union territories for the purposes of this Act.
2. The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of prenatal sex determination leading to female foeticide.
3. The officers appointed as Appropriate Authorities under sub-section (1) or subsection (2) shall be,--
(a) when appointed for the whole of the State or the Union territory, consisting of the following three members:--
i) an officer of or above the rank of the Joint Director of Health and Family Welfare - Chairperson;
ii) an eminent woman representing women's organization; and
iii) an officer of Law Department of the State or the Union territory concerned:
Provided that it shall be the duty of the State or the Union territory concerned to constitute multimember State or Union territory level appropriate authority within three months of the coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002:
Provided further that any vacancy occurring therein shall be filled within three months of that occurrence.
(b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit.
.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .."
11. Now, coming back to Section 30, it is a very drastic provision which grants power to the Appropriate Authority or any officer authorized by it to enter a Genetic Laboratory, a Genetic Clinic, or any other place to examine the record found therein, to seize the same and even seal the same. The first part of sub-section (1) of Section 30 safeguards these centres or laboratories from arbitrary search and seizure action. The safeguard is that search and seizure can be authorized only if the Appropriate Authority has a reason to believe that an offence under the 1994 Act has been committed or is being committed.
12. The question is what meaning can be assigned to the expression "has reason to believe". Section 26 of the Penal Code, 1860 defines the expression "reason to believe", which reads thus:
"26. "Reason to believe".-- A person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise."
In the case of Aslam Mohammad Merchant v. Competent Authority:(2008) 14 SCC 186, this Court had an occasion to interpret the same expression. In paragraph 41, this Court held thus:
"41. It is now a trite law that whenever a statute provides for "reason to believe", either the reasons should appear on the face of the notice or they must be available on the materials which had been placed before him."
However, interpretation of the expression will depend on the context in which it is used in a particular legislation. In some statutes like the present one, there is a power to initiate action under the statute if the authority has reason to believe that certain facts exist. The test is whether a reasonable man, under the circumstances placed before him, would be propelled to take action under the statute. Considering the object of the 1994 Act, the expression "reason to believe" cannot be construed in a manner which would create a procedural roadblock. The reason is that once there is any material placed before the Appropriate Authority based on which action of search is required to be undertaken, if the action is delayed, the very object of passing orders of search would be frustrated. Therefore, what is needed is that the complaint or other material received by the appropriate authority or its members should be immediately made available to all its members. After examining the same, the Appropriate authority must expeditiously decide whether there is a reason to believe that an offence under the 1994 Act has been or is being committed. The Appropriate Authority is not required to record reasons for concluding that it has reason to believe that an offence under the 1994 Act has been or is being committed. But, there has to be a rational basis to form that belief. However, the decision to take action under sub-section (1) of Section 30 must be of the Appropriate Authority and not of its individual members.
13. Under the notification dated 7th November 2013, the Appropriate Authority for the district consists of the Civil Surgeon, the District Program Officer of the Women and Child Development Department, and the District Attorney. The Civil Surgeon is the Chairman of the appropriate authority. Looking at the object of sub-section (1) of Section 30 and the express language used therein, only the Chairman or any other member acting alone cannot authorise search under subsection (1) of Section 30. It must be a decision of the Appropriate Authority. If a single member of the Appropriate Authority authorises a search, it will be completely illegal being contrary to sub-section (1) of Section 30. If the law requires a particular thing to be done in a particular manner, the same shall be done in that manner only. In the present case, going by the affidavit filed by Dr. Virender Yadav, the Chairman of the District Appropriate Authority cum-Civil Surgeon, Gurugram, the decision to conduct a search by appointing three officers by order dated 27th April 2017 was only his decision purportedly taken in his capacity as the Chairman of the Appropriate Authority. Admittedly, the other two members of the appropriate authority are not parties to the said decision. The Civil Surgeon has given the excuse of urgency. The Appropriate authority doesn't need to have a physical meeting. The Civil Surgeon could have held a video meeting with the other two members. However, when a video meeting is held, every member must be made aware of the complaint or the material on which a decision will be made. It was a matter of a few minutes.
14. Therefore, in the facts of the case, no legal decision was made by the Appropriate Authority in terms of sub-section (1) of Section 30 to search for the appellant's clinic. As stated earlier, sub-section (1) of Section 30 provides a safeguard by laying down that only if the Appropriate Authority has reason to believe that an offence under the 1994 Act has been committed or is being committed that a search can be authorized. In this case, there is no decision of the Appropriate Authority, and the decision to carry out the search is an individual decision of the Civil Surgeon, who was the Chairman of the concerned Appropriate Authority. Therefore, the action of search is itself vitiated.
15. There is another factual aspect of the case. The seizure Memo dated 27th April 2017 (Annexure P-4) contains the names of three persons. The Seizure Memo records that on 27th April 2017, the District Appropriate Authority constituted a team comprising three members whose names were stated in the seizure memo. However, a letter dated 27th April 2017 (annexure P-3) addressed by Deputy Civil Surgeon Rewari to Deputy Civil Surgeon Gurugram records that the team comprised four members, and the raid was conducted by the said four members.
16. A perusal of the impugned FIR and impugned complaint shows that its foundation is the material seized during the raid on 27th April 2017. Except for what was found in the search and the seized documents, there is nothing to connect the accused with the offence punishable under Section 23 of the 1994 Act. As the search itself is entirely illegal, continuing prosecution based on such an illegal search will amount to abuse of the process of law. The High Court ought to have noticed the illegality we have pointed out.
17. Therefore, the appeal is allowed, and the impugned judgment dated 13th January 2023 is set aside. FIR No. 408, dated 27th April 2017, registered in the Police Station, Gurugram at Gurugram, is hereby quashed. The complaint bearing no. COMA No. 40 of 2018, pending before the court of learned Chief Judicial Magistrate, Gurugram, also stands quashed."
13. In the present case, there is no material whatsoever placed before this Court regarding any "regions to believe" recorded by the Appropriate Authority, to form a belief that there was any violation of the Act; considering the 'object of the Act', warranting action under Section 30, thus, following the said judgment and there being no material present, the search and seizure itself was contrary to the mandate of the Act. Coming to the next question with regard to the exercise of power under Section 20(3), which authorizes the authority concerned to suspend the registration, if any opinion is found that the same is necessary and expedient to do so in the 'public interest'. In the present case, there is no material whatsoever from the suspension order, to demonstrate that the alleged infractions as noticed in the suspension order, were contrary to the public interest, the infractions noticed were with regard to non-fulfilling of the forms. There is no material whatsoever to form a view that the petitioners were engaged in doing any act which are prohibited under Chapter II punishable under Sections 22 or 23 of the PCPNDT Act.
14. In absence of any material to form a view that the action of suspension was necessary in the public interest, even the suspension on that count cannot be justified. Admittedly even as per the appellate order, no show cause notice was issued prior to cancellation, based upon which, the appellate authority has remanded the matter; there being an admission to the effect that no show cause notice was issued, the order of cancellation in the absence of any material justifying invoking of Section 20(3) also cannot be justified which in any case cannot even be invoked for cancellation and is confined only to suspension. Thus on overall conspectus of the material, it is clear that there is no material whatsoever existed to form a view that the petitioners were indulging in any acts, which are prohibited under Chapter II or can be termed as offences under Sections 22 and 23, thus on that count, the writ petition deserves to be allowed.
15. The order of suspension dated 12.05.2023 and the cancellation of registration dated 13.10.2023 falling short of the requirement under the PCPNDT Act cannot be sustained and are quashed. The appellate order dated 26.03.2025 is also quashed. The writ petition stands allowed.
Order Date:23.05.2025
akverma (Pankaj Bhatia,J.)