Delhi District Court
State vs . Om Prakash Sharma on 3 November, 2020
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 420/2014
U/s 23 & Rule 13 of PC & PNDT Act
PS: Jahangir Puri
State vs. Om Prakash Sharma
Date of Institution of case:25.04.2017
Date of Judgment reserved: 27.10.2020
Date on which Judgment pronounced:03.11.2020
JUDGMENT
Case Number : 4550/2017
Date of Commission : From 22.09.2003 to 21.09.2008
of offence
Name of the : Sh. Onkar Marathe, SDM, Model Town
complainant
Name and address of : Om Prakash Sharma
the accused persons S/o Late Khem Chand Sharma
R/o D463/64, Jahangir Puri, Delhi
Offence complained : U/S 23 & Rule 13 of PC & PNDT Act
of
Plea of accused : Not guilty
Final Order : Convicted
Digitally signed
by RICHA
SHARMA
RICHA Date:
SHARMA 2020.11.03
15:27:42
+0530
FIR No. 420/14
State Vs. Om Prakash Sharma Page 1 of 20
BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that, accused Om Prakash Sharma was working as a General Secretary of Society for Social Service, which got registered one Ultrasound Machine at address of Clinic i.e. Basti Vikas Kender, CD Park, Jahangir Puri from 22.09.2003 to 21.09.2008. The said machine was not found at the above said address on 27.12.2013, rather it was found and seized from Bhalswa Dairy, Government Dispensary. Thereafter, upon investigation statements of witnesses were recorded and FIR was registered against the accused.
2. Investigation was completed and police report under section 173 Cr.P.C. was filed under section 23 Pre Conception & Pre Netal Diagnostic Techniques Act1994.
3. Copy of charge sheet and documents were supplied to the accused in compliance of section 207 code of criminal procedure.
4. Arguments on charge were heard and charge against accused was framed under section r/w 23 of Rule 12 of Pre Conception & Pre Netal Diagnostic Techniques Act 1994 by the Ld. Predecessor vide order dated 10.11.2017. Thereafter, accused pleaded not guilty and claimed trial.
5. List of witnesses and documents proved.
In order to prove its case, prosecution examined following witnesses and produced the following documents in its documentary evidence :
Digitally signed by RICHA SHARMA RICHA Date:
SHARMA 2020.11.03
15:27:49
+0530
FIR No. 420/14
State Vs. Om Prakash Sharma Page 2 of 20
Sr.No PW Name Document proved Ex. No.
No.
1 PW1 Vinod Dhattarwal
2 PW2 ASI Dev Dutt FIR Ex.PW2/A
Rukka Ex.PW2/B
Certificate u/s 165B Ex.PW2/C
3 PW3 Sh. Onkar Marathe Complaint Ex.PW3/A
Letter Ex.PW3/B
4 PW4 Dr. Kusum Arora Certificate Ex.PW4/A
of Registration of
Society
5 PW5 Rahul Handa
6 PW6 SI Naveen Kumar
7 PW7 Sh.Narender Complaint Ex.PW7/A
Kumar Dhama
8 PW8 Dr. Namrita Registration Certificate Ex.PW8/A
Application form for Ex.PW8/B
Nayyar
renewal or registration
of Counseling Centre/
Clinic is Ex.PW8/B
Show Cause Notice Ex.PW8/C
9 PW9 SI Manoj Kumar
6. PW1 is Vinod Dhattarwal, Section Officer, Office of Advisor to CM, Delhi Secretariat. He deposed, that on 30.12.2013, he was posted as Executive Magistrate/Tehsildar at Model Town, North District. On that day, SDM Model Town had informed him telephonically and instructed him to accompany team alongwith SDM Model Town. Then, he along with team consisting of SDM, one lady doctor & Other officers of PNDT Team including one Mr. Rahul, went to DBlock, Jahangir Puri in one clinic. Thereafter, they went to Bhalswa Dairy in one Govt. Dispensary. In one room, they found one portable ultrasound machine. Same was inspected by Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 FIR No. 420/14 15:27:57 +0530 State Vs. Om Prakash Sharma Page 3 of 20 doctors who were members of team. Machine was sealed by members of PNDT Team. Then, he came back to his office.
Ld. APP for the State crossexamined the witness as he was not deposing complete facts regarding the name of SDM and lady doctor. Witness stated that in his cross examination conducted by the Ld. APP for the State, that the name of SDM was Onkar Marathe and the name of the lady doctor was Dr. Kusum Arora.
He was duly crossexamined by Ld. defense counsel.
7. PW2 is ASI Dev Dutt, No.40,NW, Delhi. He deposed, that on 06.06.2014, he was posted at Police Station Jahangir Puri as duty officer from 04.00 pm to 12:00 midnight. On that day, at about 09:10pm, a rukka was given to him by SI Narender on the basis of which, he registered present FIR vide computer generated copy Ex.PW2/A, which bears his signatures at pointA. He stated that, at the relevant time, the computer system was working properly and the FIR was properly saved in the system after it was typed on it and then no tempering was made with the computerized record. He also made endorsement on the original rukka vide Ex. PW2/B, bearing his signatures at point A. Copy of the FIR and original rukka were handed over to SI Narender. He further deposed, that he also executed the certificate regarding the genuineness of computerized FIR which is Ex.PW2/C, bearing his signatures at pointA. This witness was not cross examined by Ld. Defence Counsel.
8. PW3 is Sh. Onkar Marathe, Add. PS, Ministry PW3 of HRD, Govt. of India, Delhi. He deposed, that on 27.12.2013, he was posted as SDM Model Town. On that day, he alongwith other team members namely Dr. Kusum Arora, representative of CDMO North District had gone to the registered office of NGO namely Society for social Service at its registered address D46364 Jahangir Puri. According to its FIR No. 420/14 State Vs. Om Prakash Sharma Page 4 of 20 Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 15:28:08 +0530 registration certificate, one USG machine was entered which could be used at its registered address only. During inspection, they did not find that USG machine at the abovesaid premises. Accused met them at the spot on that day and accused informed him that the society was not using the machine since last one year and has placed the machine in Govt. Dispensary premises of Bhalswa Dairy. According to law, USG machine could have been used only on the registered address and not somewhere else without giving information of the same. No intimation was given by abovesaid society or accused regarding placing of machine in Bhalswa Dairy. Afterwards, on 30.12.2013, Sh. Vinod Dattarwal, the then Tehsildar, Model Town and Dr. Kusum Arora had conducted raid in the premises at Bhalswa Dairy and sealed the machine in the said premises. Sh. Vinod Dattarwal had reported the same to him. He further stated that, at the relevant time, Vidhan Sabha Elections were conducted in Delhi recently and he was having a lot of work at his office due to which he could not visit the said premises of Bhalaswa Dairy for sealing procedure. Then, on 30.12.2013, on the instruction of District Magistrate (North), he forwarded the complaint to SHO, Jahangir Puri which is Ex.PW3/A, bearing his Signatures at point A' and 'B. Later on, on the notice of IO, he forwarded another letter Ex.PW3/B to IO, bearing his Signatures at point 'A' and 'B'.
This witness was not cross examined by Ld. Defence counsel.
9. PW4 is Dr. Kusum Arora, CMO (NFSG), Dispensary DGD, Model Town, Delhi. He deposed, that on 27.12.2013, he was posted as CMO (NFSG). On that day, he was member of PNDT Committee. On that day, a team was constituted consisting of herself, Sh Onkar Marathe, the then SDM Model Town and one Mr. Rahul Handa. They visited the office of Society of Social service Jahangir Puri. During inspection, they found registration of that centre had already expired on 21.09.2013, according to PNDT Rules. They did not find the ultrasound machine at that centre regarding which FIR No. 420/14 State Vs. Om Prakash Sharma Page 5 of 20 Digitally signed by RICHA RICHA SHARMA SHARMA Date: 2020.11.03 15:28:15 +0530 the abovesaid certificate was given and the same stood expired. One Mr. O.P. Sharma (accused) was general secretary of the society. Accused O. P. Sharma met them there. Accused informed them that the machine had been shifted to premises of DGD dispensary, Bhalswa Dairy. Then, on 30.12.2013, they visited premises of DGD, Bhalswa dairy and they found the machinery lying there in one room and that room was not registered according to PNDT Rules. The society also did not take permission from Govt or competent authority to place that machine in that premises. Further, premises was not registered according to rule 12 so they seized the machines. SDM had conducted the writing proceedings. Later on, SDM referred the matter for registration of FIR. The certificate of registration of society is Ex.PW4/A. Ld. APP for the State crossexamined the witness as he was not supporting the prosecution case. Witness stated in his cross examination conducted by the Ld. APP for the State that the correct address of the society for Social Service was D463464.
He was duly crossexamined by Ld. defense counsel.
10. PW5 is Rahul Handa, CDEO, PNDT (North Distt.) DGD Building, Gulabi bagh Dispensary , Gulabi Bagh Delhi. He deposed, that on 27.12.2013, he was posted as a CDEO in department PNDT North Distt and he joined the team at the instruction of District appropriate authority i.e. District Magistrate (North). On 27.12.2013, he alongwith SDM Model Town Omkar Marathe, Dr Kusum Arora, inspected the Registered Premises under PNDT Act at D 463464 Jahangirpuri, Delhi. The registration of the registered premises at Jahangirpuri had already expired on 21.09.2013 . The registered Machine was not available at the registered premises at the time of inspection on 27.12.2013. He further stated that on that day O.P. Sharma gave undertaking that the registered machine (Ultrasound machine) has been shifted to DGD Bhalaswa dairy, which was having two rooms belonging to the registered society of the accused.
FIR No. 420/14 State Vs. Om Prakash Sharma Page 6 of 20 Digitally signed RICHA by RICHA
SHARMA
SHARMA Date: 2020.11.03
15:28:21 +0530
He further deposed, that on 30.12.2013, he alongwith Dr Kusum Arora, Omkar Marathe, Vinod Dhatrawal visited DGD Bhalaswa Dairy Kalander colony Bhalaswa Dairy, Delhi. On that day under the Supervision of the SDM, the registered machine was sealed. SDM was the Incharge of the District Inspection team under PNDT Act. He put his signature at point A on Sealing Order which is mark X. This witness was duly cross examined by Ld. Defence Counsel.
11. PW6 is SI Naveen Kumar, No. D570, PS Keshav Puram. He deposed, that on 10.12.2014, he was posted at PS Jahangir Puri as SI. He received the case file of above case from MHC ( R).
On, 04.02.2016, accused Om Prakash was interrogated and notice u/s 41.1A (Cr.P.C) was supplied to the accused and accused was set free after relevant instruction.
On 15.09.2016, he received the relevant photocopy of registration of Ultrasound Machine from SI Manoj Kumar PS Bhalswa Dairy and statement u/s 161 Cr.P.C was also recorded in this regard.
Thereafter, section 19 (3) was converted into section 23 of PNDT Rules. After completion of the investigation, chargesheet was filed by him.
This witness was cross examined by Ld. Defence Counsel.
12. PW7 is Sh. Narender Kumar Dhama, S/o Sh. Satya Pal Singh, R/o House no. 116, Gali no. 3, Shakti Vihar, Dayalpur, Delhi. He deposed, that on 06.06.2014, he was posted at PS Jahangir Puri as SI. On that day, he had got registered the present case on the basis of complaint filed by SDM Model Town North District. The complaint is already Ex.PW3/A, bearing his signature at point B. The endorsement made by him on the complaint is Ex.PW7/A, bearing his signature at point B. After registration of FIR, he handed the case file to MHCR as he was transferred from PS Jahangir Puri.
Digitally signedThis witness was cross examined by Ld. Defence Counsel. RICHA by RICHA SHARMA SHARMA Date:
2020.11.03 15:28:38 +0530 FIR No. 420/14 State Vs. Om Prakash Sharma Page 7 of 20
13. PW8 is Dr. Namrita Nayyar, CDMO, North. She deposed, that she was working as a CDMO, North. She brought the summoned record of Society for Social Services. As per record, Sh. O. P. Sharma was General Secretary of Society for Social Services. Sh. O. P. Sharma was running a clinic in the name and style of Society for Social Services at Basti Vikas Kendra , CD Park, Jahangir Puri, Delhi. The said clinic was registered at CDMO Office, North West as an Ultrasound Machine was being used in the said clinic. Moreover, the Ultrasound Machine number mentioned in the registration certificate was also registered at CDMO Office. The registration certificate is Ex.PW 8/A. The application form for renewal or registration of Counseling Centre/ Clinic is Ex.PW8/B. As per record, the registration of above mentioned centre expired on 21.09.2013. After expiry of registration certificate, one show cause notice was issue in the name of Social Service Society situated at D463/ 64 Jahangir Puri, Delhi, same is Ex.PW8/C. This witness was not cross examined by Ld. Defence Counsel.
14. PW9 is SI Manoj Kumar, No. D3967, PS North Rohini. He deposed, that on 15.09.2016, he was posted at PS Bhalswa Dairy as SI. At that time, he was doing investigation in case FIR no. 47/14 PS Bhalswa Dairy u/s 19 (3) PCPNDT Act. During the investigation, he had collected the photocopy of relevant documents from CDMO Office, Gulabi Bagh regarding the USG Machine No. DL/NWD/0003. The said USG machine was registered in the CDMO Office, Gulabi Bagh in the name of Om Prakash Sharma.
During investigation, IO SI Naveen met with him and SI Naveen informed him about the registration of case FIR no. 420/14 PS Jahangir Puri against the accused Om Prakash regarding the shifting of above mentioned USG Machine from the jurisdiction of PS Jahangir Puri to PS Bhalswa Dairy without prior permission of concerned Department. Thereafter, he had handed over the photocopies of documents Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 FIR No. 420/14 15:28:46 +0530 State Vs. Om Prakash Sharma Page 8 of 20 related to above mentioned USG Machine, which are already exhibited as Ex.PW8/A and Ex.PW8/B and other copies which are marked as PX1 to PX9.
He further deposed, that during the investigation of case FIR No. 47/14 PS Bhalswa Dairy, he had sealed the above mentioned USG Machine within the jurisdiction of PS Bhalswa Dairy. He had seized the original documents relating to above mentioned USG Machine in the case FIR no. 47/14 PS Bhalswa Dairy.
This witness was not cross examined by Ld. Defence Counsel.
15. Thereafter, PE was closed after examination of the aforesaid witnesses vide order dated 03.02.2020.
16. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. r/w section 281 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused sought opportunity to lead evidence in his defence.
17. Statement of accused Om Parkash Sharma u/s 315 cr.p.c was recorded. He stated that he is working as a General Secretary in a Society for Social Services. The registered office of above mentioned society is situated at D463/464, Jahangir Puri, Delhi. The Delhi Government has alloted two centres for running the society work, one is situated at CD Park, Jahangir Puri and other is situated at Kalander Colony, Bhalswa Dairy, Delhi. He further stated that the society was purely charitable and it was working on donation. The Ultrasound Machine in question was also donated to the Society by German High Commission in the year of 2002. He was appointed as Member of team of NorthWest District constituted under the PC & PNDT Act.
Digitally signedRICHA by RICHA SHARMA SHARMA Date: 2020.11.03 15:28:52 +0530 FIR No. 420/14 State Vs. Om Prakash Sharma Page 9 of 20
He further stated that on 20.05.2003, being a General Secretary for social services, he had moved an application for registration/ renewal of Genetic Clinic/ Ultrasound Clinic Centre in the office of CDMO office and at that time he mentioned three addresses i.e. D463/464, Jahangir Puri, Delhi, Basti Vikas Kendra, CD Park, Jahangir Puri, Delhi and Basti Vikas Kendra, Bhalswa Dairy, Delhi as office of society.
The then CDMO issued registration certificate of Ultrasound Machine in question/ Ultrasound Clinic at the address of Basti Vikas Kendra, CD Park, Jahangir Puri, Delhi. The registration certificate was valid till 21.09.2008. He further stated that, before the expiry of this registration certificate, being a secretary of society, he again moved an application to CDMO Office for renewal of registration for continuation running the above mentioned Ultrasound Clinic under the name and style of Society for Social Services but the CDMO office did not renew the registration certificate for above mentioned purposes.
He further stated that on 09.12.2009, he wrote a letter to the office of Deputy Commissioner, NorthWest, Kanjhawala, Delhi that he can not continue the services of society for social services/ working of Ultrasound Machine in question due to insufficient fund. On 12.11.2013, he received a letter from DM Office, North regarding the disposal of Ultrasound Machine in question or fresh registration of Ultrasound Centre. On 28.12.2013, he gave reply of this letter by stating that "please send us the registration form and the copy of our last registration certificate so that we can renew the certificate".
He further stated that on 29.12.2013, a raiding team alongwith the SDM reached at the registered office of the above mentioned society i.e. D463/464, Jahangir Puri and asked about the details of the Ultrasound Machine in question to him. He told to the raiding team that the Ultrasound Machine has already been shifted to Basti Vikas Kendra, Bhalswa Dairy, Delhi. He further stated, that on next day, Digitally signed by RICHA RICHA SHARMA SHARMA Date:
2020.11.03 FIR No. 420/14 15:29:01 +0530 State Vs. Om Prakash Sharma Page 10 of 20 Tehsildar Sh. Vinod Kumar and one doctor reached at Basti Vikas Kendra, Bhalswa Dairy, Delhi, found the Ultrasound Machine there and sealed the above mentioned Ultrasound Machine from that place. He further deposed, that at that time, he was not aware at what place/office the above mentioned Ultrasound Machine was registered as the renewal registration certificate was not given to him till that day despite repeated request. On the day of sealing of Ultrasound Machine, the then SDM was not present.
18. Thereafter, DE stands closed.
19. At this stage, this court deems to fit to state that in the present case, charge was framed on 10.11.2017 by the Ld. Predecessor of this court. However, in the light of the facts and circumstances of the case, the charge was altered/ amended and reframed on 20.10.2020, U/s 23 & Rule 13 of PC & PNDT Act.
The alter and amended charge was read and explained to the accused in the presence of his counsel and he proceeded to plead not guilty and claim trial.
Further, the accused stated on oath that he chooses to adopt the statement u/s 313 cr.pc. as well as the defence evidence led by him.
20. I have heard the arguments addressed by the Learned APP for State and Ld. Counsel for accused and have carefully perused the record.
21. In the backdrop of the above facts and before delving into the merits of the present case, this court deems it fit to state that for proving the charges for the offence u/s 23 PNDT Act, it is pertinent to mention that section 28 PNDT Act prescribes that the procedure of taking cognizance into the offence by the court of law and it is worth to note the following provisions as extracted below: Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 FIR No. 420/14 15:29:13 +0530 State Vs. Om Prakash Sharma Page 11 of 20 " Section 28 cognizance of offences : (1) No court shall take cognizance of an offence under this Act except on a complaint made by:
(a) the appropriate authority concerned, or any officer authorized in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority; or
(b) a person who has given notice of not less than {fifteen days] in the manner prescribed, to the Appropriate Authority, or the alleged offence and of his intention to make a complaint to the court.
Explanation: For the purpose of this clause, "person" includes a social organisation. (2) No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this act. (3) Where a complaint has been made under clause (b) of sub section (1), the court may, on demand by such person, direct the Appropriate Authority to make available copies of the relevant records in its possession to such person.
22. Thus, in the light of the above settled provisions of law, its become incumbent upon the part of the court to see if the complaint was made by the Appropriate Authority under law. Perusal of record shows that Ex.PW7/A is the complaint, which was made by the then SDM, Model Town namely Sh. Onkar Marathe to the SHO, PS Jahangir Puri, whereby it was requested that an FIR be lodged under PC & PNDT Act, 1994 and Rule 13 of PC & PNDT Rules 1996. Bare perusal of the documents Ex.PW7/A, clearly shows that the same was duly signed by the SDM at point A of the said document. Ex.PW3/B also shows that again a letter was sent by the SDM, Model Town Sh. Onkar Marathe, whereby as per the letter dated 18.05.2014, received from PS Jahangir Puri seeking the information/ documents which were needed for the purpose of the investigation was duly detailed and sent vide the letter dated 30.05.2014 of the SDM concerned.
Digitally signedRICHA by RICHA SHARMA FIR No. 420/14 SHARMA Date: 2020.11.03 15:29:21 +0530 State Vs. Om Prakash Sharma Page 12 of 20
Perusal of the document Ex.PW3/B clearly shows that the same was duly signed by the SDM at point A and B of the said document.
Thus, certainly from the perusal of document Ex.PW7/A and Ex.PW3/B, it can be safely deduced that the complaint was made by proper authority as prescribed in the law.
23. Now, moving further it becomes imperative to state that the accused in the present case has been charges for violation of Rule 13 of PC & PNDT Rules, 1996, which provides as under: Intimation of changes in employees, place or equipments: Every [Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre] shall intimate every change of employee, place, address and equipments installed, to the Appropriate Authority [ atleast thirty days in advance of the expected date of such change, and seek reissuance of certificate of registration from the Appropriate Authority, with the changes duly incorporated.] Thus, in the light of the above settled provisions of law, it was incumbent upon the prosecution that in order to bring home the guilt of the accused, the prosecution had to prove that the accused did not intimate the change of address of the equipments installed to the appropriate authority atleast 30 days in advance of the expected date of such change and its further that the accused did not seek the re issuance of certificate of registration from the appropriate authority with the changes duly incorporated.
24. In order to prove its case, prosecution examined nine witnesses in total.
25. PW1 Vinod Dhattarwal categorically deposed in his examination in chief that on 30.12.2013, SDM Model Town informed and instructed him to accompany a team consisting of SDM himself, one lady Doctor and other officials of PNDT Team Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 15:29:28 +0530 FIR No. 420/14 State Vs. Om Prakash Sharma Page 13 of 20 to a clinic situated at D Block, Jahangir Puri. He further deposed that from the said clinic , they went to a Government Dispensary at Bhalswa Dairy and there they found one portable Ultrasound Machine. Thus, from the testimony of PW1, it can be safely deduced that the Ultrasound Machine was not found at the address of the clinic i.e. Basti Vikas Kender, CD Park, Jahangir Puri, where it was registered and on the contrary it was found and seized from a Government Dispensary at Bhalaswa Dairy.
26. Another, crucial witness in the present case is PW3 i.e. Onkar Marathe i.e. the SDM at whose instance the complaint was made and FIR was registered. PW3 deposed that on 27.12.2013, he was posted as SDM Model Town and on that day he alongwith other team members, which included Dr. Kusum Arora, went to the registered officer of NGO namely Society for Social Services, bearing its registered address at D463/464, Jahangir Puri, Delhi. He further deposed, that as per the registration certificate one new Ultrasound Machine was entered but during inspection the same could not be found at the registered address of the premises. He further deposed, that the accused informed him that the society had not been using the machine since last 1 year and the same has been placed in one Government Dispensary situated at Bhalaswa Dairy. He further stated, that on 30.12.2013, PW1 alongwith Dr. Kusum had conducted a raid at the Government Dispensary at Bhalswa Dairy and found a USG machine and same was sealed. He further deposed, that sealing was done at his direction and pursuant to that he forwarded the complaint to SHO Jahangir Puri and same is Ex.PW3/A and another letter Ex.PW3/B to the IO, both the documents bearing the signature of PW3.
27. Thus, on cumulative analyses of the testimony of PW1 and PW3, it can be safely deduced that the testimony of both the witnesses is in harmony and corroborative to each other.
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28. At this stage, court also deems it fit to state, that the perusal of document Ex.PW8/A i.e. the certificate of registration clearly shows that the same was granted for a period running from 22.09.2003 to 21.09.2008 at the address of Basti Vikas Kender, CD Park, Jahangir Puri, Delhi to the Society of Social Services. Further, bare perusal of the Ex.PW8/A, clearly shows that Ultrasound was the Pre Netal Diagnostic approve for the said society and the USG Machine was registered to the society for limited period of 22.09.2003 to 21.09.2008. Thus, it can safely be deduced that on the day on which the raid was the conducted i.e. on 27.12.2013, the USG Machine was not found at its registered address i.e. Basti Vikas Kender, CD Park, Jahangir Puri, Delhi, but was found at a Government Dispensary at Bhalswa Dairy and the same on the face of it amounts to a complete violation of Rule 13 of PC & PNDT Rules 1996.
29. At this stage, its become further relevant to scrutinies and analyse the testimony of PW4 i.e. Dr. Kusum Arora. She deposed that on 27.12.2013, a team constituting of herself, the then SDM Sh. Onkar Marathe and Rahul Handa was constituted and they visited the office of the society of Social Services at Jahangir Puri for inspection. She further stated, that during inspection they found that the registration of the said society had already expired on 21.09.2013 as per the PNDT Rules. She further deposed that they did not find the Ultrasound Machine at the society centre, pertaining to which the certificate was issued and the same got expired on 21.09.2013. The relevant extract of her examination in chief to the effect as, " we did not find the Ultrasound Machine at that centre regarding which the above said certificate was given and which had expired.". She further stated that the accused met them there and further informed them that the said machine had been shifted to the premised of DGP Dispensary, Bhalaswa Dairy. The team visited the premises of Government Dispensary, Bhalaswa Dairy on 30.12.2013, and found the machine lying there in one room and the said room was not registered according to PNDT Digitally signed by RICHA RICHA SHARMA FIR No. 420/14 SHARMA Date: 2020.11.03 15:29:42 +0530 State Vs. Om Prakash Sharma Page 15 of 20 Rules. She further deposed, that the society did not take any permission from the Government or the competent authority to place that machine at the said premises because the machine in question was not registered according to the rules and therefore the same was seized.
30. PW4 was cross examined by the Ld. Defence Counsel but she with stood the litmus test of the crossexamination. She further deposed categorically in her crossexamination that she did not receive any application in her official capacity for renewal of the certificate. Thus, from the entire crossexamination of PW4, nothing could be culled out by the defence to shake the case of the prosecution.
31. Another witness examined by the prosecution is PW5 i.e. Rahul Handa and he also deposed on the same lines as that of PW3 and PW4. He stated, that on 27.12.2012, he was posted in the department of PNDT North District and he joined the team at the instruction of District Appropriate Authority i.e. District Magistrate (North). He further stated that on that day, he inspected the premises at D463464 Jahangirpuri, Delhi alongwith SDM Onkar Marathe and Dr. Kusum Arora and found out that the registration of the said premises had already expired on 21.09.2013. He further stated that the registered machine was not available at the registered premises at the time of inspection and that the accused admitted and gave undertaking that the registered machine has been shifted to DGD Bhalaswa Dairy. PW5 deposed that on 30.12.2013, the machine was sealed from Bhalaswa Dairy.
This witness was also cross examined by the Ld. Defence Counsel and he deposed in his crossexamination that as per the PC & PNDT Certificate, the premises at DGD Bhalaswa Dairy was not registered and that the premises at Jahangir Puri was registered under the PNDT Act.
Digitally signed by RICHA RICHA SHARMA
SHARMA Date: 2020.11.03
15:29:49 +0530
FIR No. 420/14
State Vs. Om Prakash Sharma Page 16 of 20
32. Moving further, it also become imperative to look into the testimony of PW8 i.e. Dr. Namrita Nayyar, CDMO North. She was the summoned witness and had brought the summoned record of the society of social services. As per the record, the accused was the General Secretary of the Society for Social Services and was running a clinic in the name and style of Society of Social Services at Basti Vikas Kender, CD Park, Jahangir Puri, Delhi. The said clinic as per the record was registered at CDMO Office, NW as an Ultrasound Machine was being used in the said clinic. She further deposed that as per the record the Ultrasound Machine number was duly mentioned in registration certificate at the CDMO Office. It is further crucial to mention that as per the record, the registration of the above mentioned centre expired on 21.09.2013 and further after the expiry of registration certificate, one show cause notice was issued to the Society of Social Service, same is Ex.PW8/C. PW8 in her evidence also got exhibited the original registration certificate i.e. PW8/A and the application form for renewal/ registration of clinic i.e. Ex.PW8/B. Cumulative perusal of Ex.PW8/A, Ex.PW8/B and Ex.PW8/C, clearly shows that the certificate of the registration was issued at the address of Basti Vikas Kender, CD Park, Jahangir Puri in the name of Society of Social Services and the validity of said certificate was for a period running from 22.09.2003 to 21.09.2008. Perusal of Ex.PW8/C, reveals that a show cause notice was issued by the DM to the Society on 21.09.2013 itself, thereby seeking an explanation regarding the failure on the part of the centre to submit the application for renewal under the provision of PC & PNDT Rules. No reasonable explanation has been tendered by the accused for such failure.
Digitally signedRICHA by RICHA SHARMA SHARMA Date: 2020.11.03 15:29:55 +0530 FIR No. 420/14 State Vs. Om Prakash Sharma Page 17 of 20
33. Further, perusal of document Mark X i.e. the sealing order clearly shows that the registration of the centre and the machine was suspended under the PC & PNDT Act with the observations that the machine was found at Unregistered Premises.
34. Further, the accused admitted in his defence evidence that on 28.12.2013, he gave reply to the letter of the DM regarding the sending of the copy of the registration certificate to the society so that the same could be renewed but as per the accused on admission, this letter was sent much beyond the expected period.
35. Also, the accused stated in his defence evidence that he told the raiding team that the Ultrasound Machine has already been shifted to Bhalaswa Dairy.
36. It is averred by the accused, that he was not aware at what place / office the above mentioned ultrasound machine was registered as the renewal registration certificate was not given to him despite repeated request, but the said defence does not inspire the confidence of the court as nothing has been placed on record by the accused to show that despite his repeated endeavors / request letter the same was not entertained. No document/ request letter/ renewal letter is placed on record by the accused to substantiate his averments. Moreover, court can not be unmindful of the fact that ignorantia non excused is no defence. Also, the accused in his cross examination conducted by the Ld. APP for the State categorically admitted that as per the certificate of the registration i.e. Ex.PW8/A the Ultrasound Machine was registered at Basti Vikas Kender, CD Park, Jahangir Puri, Delhi. He further admitted that the abovesaid machine was recovered from Bhalaswa Dairy and not from its registered address. He further admitted that he did not take approval from the concerned authority to shift the above machine from Jahangir Puri to Bhalaswa Digitally signed by RICHA RICHA SHARMA FIR No. 420/14 SHARMA Date: 2020.11.03 15:30:04 +0530 State Vs. Om Prakash Sharma Page 18 of 20 Dairy. Also, what is startling is that the accused was a member of District Advisory Committee constituted under PC & PNDT Act from 2002 to 2011 and despite that he made the averments of the certificate not being issued to him and of the process and the mechanism to be adopted and ignorance regarding the process of mechanism for seeking change of place of registered machine. He also categorically admitted that the ultrasound machine was under his control till the same was sealed and also he did not dispute the identity of the ultrasound machine.
The relevant extract of his crossexamination to this effect are " It is correct that as per certificate of registration Ex.PW8/A, the Ultrasound Machine in question was registered at Basti Vikas Kendra, CD Park, Jahangir Puri, Delhi. Vol. This certificate was never given to me by concerned authority. It is correct that the above mentioned machine was recovered from Bhalswa Dairy, Delhi. It is correct that I did not take approval from the concerned authority to shift the above mentioned Ultrasound Machine from Jahangir Puri to Bhalswa Dairy. It is correct that I was Member of District Advisory Committee constituted under PC & PNDT Act from 2002 to 2011. It is correct that the above mentioned Ultrasound Machine was under
my control till the same was sealed. It is correct that I am not disputing the identity of Ultrasound Machine ".
37. Thus, in the light of the above testimonies, it can be harmoniously summarized that the accused was the General Secretary of the Society of Social Services and the said society was registered under the PNDT Act. Also, an Ultrasound Machine was registered in the name of the society, but pursuant to the expiration of its license on 21.09.2008, neither was it renewed nor was the machine found at the said premises. Further, the society acted in flagrant breach of Rule 13 which categorically states that every change pertaining to the employee/ place / address and equipments installed at every genetic counsel centre/ genetic laboratory Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 FIR No. 420/14 15:30:12 +0530 State Vs. Om Prakash Sharma Page 19 of 20 or genetic clinic, shall be intimated to the appropriate authority within a period of 30 days from the said change. However, in the present case the same was not done and at this stage it becomes imperative to state, that the accused categorically stated in his defence evidence that the certificate was valid till 21.09.2008. He further categorically stated that on 09.12.2009, he wrote a letter to the Deputy Commissioner, NW, Kanjhawala, Delhi, that he can not continue the services of the Society of Social Services/ working of Ultrasound Machine in question due to insufficient funds and this perse amounts to an admission that the said letter was written way beyond the expiration of the registration certificate i.e. 21.09.2008.
38. Therefore, it is pellucid from the aforesaid comprehensive discussion and convincing testimonies of the prosecution witnesses, amply substantiated by the documents adduced on record by the prosecution, that the prosecution has discharged the burden placed upon it in the present case to bring home the guilt of the accused. This court has no hesitation to hold that the offence Under Section 23 & Rule 13 of PC & PNDT Act stands proved against the accused beyond any reasonable doubt. Hence, the accused is hereby convicted for offence of Section 23 & Rule 13 of PC & PNDT Act. Digitally signed RICHA by RICHA SHARMA SHARMA Date: 2020.11.03 15:30:20 +0530 (Richa Sharma) Metropolitan Magistrate07 North District Court/Delhi 03.11.2020 FIR No. 420/14 State Vs. Om Prakash Sharma Page 20 of 20