Delhi District Court
Naresh Gupta vs State on 8 September, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Revision No. 75/1/2017
U.I.D. No. 359/2016
P.S. Mianwali Nagar
Naresh Gupta,
R/o M253, Guru Har Kishan Nagar,
Paschim Vihar, New Delhi.
.....Revisionist
Versus
State
..... Respondent
Date of filing: 10.08.2017 Date of arguments: 08.09.2017 Date of order: 08.09.2017 O R D E R
1. This is a Criminal Revision under Section 397 of Code of Criminal Procedure (hereinafter called as Cr.P.C.) against the order dated 04.08.2017 passed by the Ld. Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi.
2. A case FIR No. 323/2017, under Section 25 of Pre UID No. 359/2017 Naresh Gupta Vs State 1 of 16 conception and PreNatal Diagnostic techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred as PC & PNDT Act) was registered in P.S. Mianwali Nagar on 14.07.2017 on the complaint of Sh. Santosh Kumar Rai, SDM, Punjabi Bagh, West, Delhi (District Nodal Officer, PC & PNDT Cell). There are allegations against the revisionist/accused for running workshop for unauthorized sale/distribution/dealing of MRI and other medical equipments without mandatory registration under State PNDT/ State Appropriate Authority/Act. During the search of the premises of the accused, some documents as per seizure memo were seized and the premises of accused was also sealed by District Appropriate Authority/Nodal Officer.
3. The revisionist/accused had moved an application before the Ld. Metropolitan Magistrate praying for return of the seized documents, desealing of sealed premises/work shop and permission to operate from the premises/workshop. The Ld. Metropolitan Magistrate vide the impugned order dated UID No. 359/2017 Naresh Gupta Vs State 2 of 16 04.08.2017 has dismissed the application moved by the revisionist/accused. The revisionist/accused being aggrieved by the said order has filed the present revision petition.
4. The notice of the revision petition was issued to the State through Ld. Addl. P.P. Notice was also issued to the District Nodal Officer, PC & PNDT (West) and State Appropriate Authority, PC& PNDT, Directorate of Family Welfare, Vikas BhawanII, Civil Lines, New Delhi. Doctor Souharda Nath, District Nodal Officer, PC & PNDT Cell, West and Doctor Satyajit Kumar, State Programme Officer, State PC & PNDT had put the appearance in terms of the notice. The reply by the IO also filed.
5. This Court vide order dated 04.09.2017 has passed the following interim directions:
(i) The District Appropriate Authority is directed to complete the process of search and seizure of the articles/evidence lying in premises bearing no. M208, Guru UID No. 359/2017 Naresh Gupta Vs State 3 of 16 Harkishan Marg, Paschim Vihar, Delhi110087 (lying sealed) within 48 hours from the time of receipt of this order.
(ii) The District Appropriate Authority shall also prepare the list/seizure memo/Panchnama of the articles searched after desealing the premises.
(iii) The District Appropriate Authority shall file a written report regarding the documents/articles searched and seized after passing of this order.
6. The action taken report in compliance of the order dated 04.09.2017 on behalf of the District Appropriate Authority is filed on record. In this report, it is stated that in compliance of the above directions, the premises of the revisionist/accused was opened on 07.09.2017 to complete the process of search and seizure of the articles lying in the premises. That the Inspection Team along with IO has completed the process of search and seizure in continuation of previous inspection done on 14.07.2017 and prepared action taken report and seizure UID No. 359/2017 Naresh Gupta Vs State 4 of 16 memo. In the action taken report, it is also reported that the articles/spare parts of the MRI Machine were lying scattered all around the rooms/halls of first floor (which was sealed) and it was not practically feasible to list out and take all the items after seizure. Accordingly, it was decided to keep the articles closed in one or two rooms out of the three rooms and one halls as the articles can not be handed over to the revisionist/accused. Accordingly, entire first floor of the building was again sealed on 07.09.2017, in the presence of the owner, by the inspecting team.
7. I have carefully perused the material on record and gone through the submissions made by Ms. Sujata Balchander, Ld. Counsel for the revisionist, Ld. Addl. PP for the State and Doctor Souharda Nath, District Nodal Officer, PC & PNDT Cell, West District, Delhi.
8. There is no allegations that the revisionist/accused was found involved in doing the sex determination test in violation UID No. 359/2017 Naresh Gupta Vs State 5 of 16 of PC & PNDT Act. There is the allegations only of running of the workshop of repairing the MRI Machine parts and dealing in sale of MRI machine.
9. It is submitted by the Doctor Souharda Nath, District Nodal Officer, PC & PNDT Cell, West, Delhi that the act of repair of the part of MRI Machine/equipments have been inserted into definition of "offence' by the Notification/Circular bearing number F.No. 9 (10) 65/PNDT/DFW/14/4308, Dated 27.05.2015, issued by the Directorate of Family Welfare, Government of NCT of Delhi, Vikas BhawanII, Civil Lines, New Delhi.
10. The Ld. Addl. P.P. for the State has objected for issuance of any directions on the application moved by the revisionist/ accused for desealing of the premises/release of the articles.
11. The provisions of the Cr.P.C. lays down that where the property, which has been subject matter of an offence, is seized by the police, it ought not to be retained in the custody of the UID No. 359/2017 Naresh Gupta Vs State 6 of 16 court or of the police for any time longer than what is absolutely necessary. I have relied upon one judgment of Hon'ble Supreme Court of India titled as Basavva Kom Dyamangouda Patil Vs State of Mysore (1997) 4 SCC 358 wherein it is held as under: "Para 4 The object and scheme of the various provisions of the Code appear to be that where the property which has been the subject matter of an offence is seized by the police it ought not to be retained in the custody of the court or of the police for any time longer than what is absolutely necessary".
12. In view of the judgment Basavva Kom (Supra) of Hon'ble Supreme Court of India, the contention raised by the Ld. Addl. P.P. for the State is not tenable. The application for the disposal of the case property lying in the custody needs to be dealt.
13. The present FIR is registered under the provision of PC & PNDT Act. Therefore, the proceedings are required to be governed by the provisions of PC & PNDT Act. Ld. Counsel UID No. 359/2017 Naresh Gupta Vs State 7 of 16 for the revisionist/accused has drawn the attention of this Court towards Rule 18(A) incorporated under the Act vide amendment substituted by G.S. R. 119 (E) dated 24.02.2014. The provision under Rule 18 (A) (3) (iii) would reveal that the Appropriate Authority including State District and Sub District Authority notified under the Act are required to follow the procedure given in this section for processing of the complaint and the investigation. It cast an obligation upon them to maintain transparency in follow up action on the complaint. It also lays down that all complaints be investigated within 24 hours of the receipt of the complaint and they are also obliged to complete the investigation within 48 hours of receipt of such complaint.
14. This Court in terms of Rule 18 (A) (3) (iii) incorporated vide amendments substituted by G.S. R. 119 (E) dated 24.02.2014 has directed the District Appropriate Authority including State District and Sub District Authority to complete UID No. 359/2017 Naresh Gupta Vs State 8 of 16 the search and seizure within 48 hours vide order dated 04.09.2017.
15. The premises could be sealed only in case of non completion of search and seizure. In the present case, it has been reported vide report dated 08.09.2017 by the Appropriate Authority that search and seizure has been completed. Therefore, there does not seems to be any justified ground to keep the premises sealed for indefinite period. The premises of the applicant/accused cannot be allowed to be remained sealed for indefinite period. This premises is lying sealed since 14.07.2017, and there is no further justification to keep the premises of the applicant/accused sealed for indefinite period. The inability to seize the articles lying in premises, does not seems to be bonafide, because there was sufficient time since 14.07.2017 till the issuance of directions by this order. Accordingly, District Appropriate Authority is required to be directed to deseal the premises of the applicant/accused UID No. 359/2017 Naresh Gupta Vs State 9 of 16 bearing no. M208, Guru Harkishan Marg, Paschim Vihar, Delhi110087, within 48 hours from the time of the receipt of this order.
16. The District Appropriate Authority, despite issuance of specific directions have fails to prepare the list/seizure memo/Panchnama of the articles searched after desealing the premises of the applicant/accused. However, in the interest of justice, one more opportunity is granted to the District Appropriate Authority to prepare the list/seizure memo/Panchnama of the articles and take it in their possessions, (if required), otherwise, they shall have no right to raise the objection for release of the said articles to the applicant/accused.
17. The Ld. Counsel for the revisionist/accused during the course of arguments has submitted that the documents seized by the District Appropriate Authority/Investigating Officer in terms of the seizure memo dated 14.07.2017 are required by the UID No. 359/2017 Naresh Gupta Vs State 10 of 16 revisionist/accused to be produced before the Income Tax Authority/Custom Authority/Other Authorities. The revisionist/ accused has not specified which of the documents is required by him to be produced before the said authority. This request has been strongly opposed by Ld. Addl. P.P. for the State on the ground that the documents are the relevant piece of evidence to bring home the guilt of the accused.
18. The matter is at the initial stage. Thus, at this stage, I am not inclined to release these documents to accused as there may tempering/destruction of these documents, which may be used against him during trial. In the present fact and circumstances, the revisionist/accused is at liberty to file an application specifically detailing the documents required by him to be produced before the authorities concerned. The District Appropriate Authority, on receipt of the said application within 3 days shall issue an attested copy of the said seized documents to the revisionist/accused. The revisionist/accused may UID No. 359/2017 Naresh Gupta Vs State 11 of 16 produce the said attested copies before the concerned authority for redressal of his grievance. The said authority would be at liberty to verify the original documents by calling the same from the Appropriate Authority/I.O., who has seized the documents.
19. The revisionist/accused has also prayed for grant of permission to recommence the operation at the workshop at M 208, Guru Harkishan Marg, Paschim Vihar, Delhi87. In this regard, I have no hesitation to state that it is beyond the power of the Court of the Ld. Metropolitan Magistrate to grant permission to recommence the operation of the activities at the workshop by the revisionist/accused. Hence, this request cannot be considered.
20. During the course of arguments, the reliance has been placed by the Nodal Officer on a Notification/Circular bearing number F.No. 9 (10) 65/PNDT/DFW/14/4308, Dated 27.05.2015, issued by the Directorate of Family Welfare, UID No. 359/2017 Naresh Gupta Vs State 12 of 16 Government of NCT of Delhi, Vikas BhawanII, Civil Lines, New Delhi. The perusal of this circular would reveals that the definition of the offence under Section 3 (B) of the PC & PNDT Act, 1994 and Rule 3A of the PC & PNDT Rules 1996 have been widened. Certain actions/non actions have been brought within the definition of the "offence" given under the PC & PNDT Act, 1994 and Rule 3A of the PC & PNDT Rules 1996. This circular has been issued by the Chairperson, State Appropriate Authority.
21. In this regard, the provisions of Section 32, 33 and 34 of the PC & PNDT Act are relevant to be considered. Section 32 of PC & PNDT Act lays down that the Central Government may make rules for carrying out the provisions of the Act. Section 33 of PC & PNDT Act gives powers to the Board to make regulation with the previous sanction of the Central Government, by notification in the Official Gazette. Section 34 of PC & PNDT Act lays down that every rule or regulation UID No. 359/2017 Naresh Gupta Vs State 13 of 16 made under this Act shall be laid, as soon as it is made before the each house of the Parliament.
22. The District Nodal Officer or the State Programme Officer on behalf of State Appropriate Authority, who appeared in the court, have fails to satisfy the court regarding the compliance of Section 33 & 34 of the Act with regard to the notification/circular dated 27.05.2015. Article 21 of The Constitution of India lays down that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. The right of life is one of the basic human right and even the State does not have authority to violate that right. It is one of the fundamental right guaranteed by the Constitution of India. In view of the non filing/absence of the previous sanction of the Central Government in terms of Section 33 or ratification by the Parliament of India in terms of Section 34 of the Act, this fact needs to be brought within the knowledge of authorities concerned. Accordingly, a copy of UID No. 359/2017 Naresh Gupta Vs State 14 of 16 this order (Para no. 20,21 & 22) be also sent to Chief Secretary, Govt of NCT of Delhi and Principal Secretary (Health), Family and Welfare, Govt of NCT of Delhi, for information and necessary action, (if any) at their end under intimation to this court.
23. In view of above discussions, the revision petition filed by the revisionist/accused is allowed. The order dated 04.08.2017 passed by the Ld. Metropolitan Magistrate is modified with the following directions:
(i) The District Appropriate Authority is directed to deseal the premises of the revisionist/accused bearing no. M208, guru Harkishan Marg, Paschim Vihar, Delhi, within 48 hours from the time of receipt of this order.
(ii) The District Appropriate Authority shall prepare a list/seizure memo/Panchnama of the articles and take it in their possessions (if required), otherwise, they shall have no right to raise the objection for release of the said articles to the UID No. 359/2017 Naresh Gupta Vs State 15 of 16 applicant/accused.
(iii) The request for release of the documents seized on 14.07.2017 is declined. However, the revisionist/accused is at liberty to move an application before the District Appropriate Authority detailing the documents required by him to be produced before the concerned Authorities.
(iv) The request for grant of permission to recommence the operation at the workshop at premises bearing no. M208, guru Harkishan Marg, Paschim Vihar, Delhi by the revisionist/accused is not considered.
24. Revision file be consigned to record room after completion of necessary formalities.
25. TCR be sent back along with copy of this order. Copy of this order be given dasti.
Announced in the open court today i.e. 08th September, 2017 (DEVENDER KUMAR JANGALA) ASJ03, WEST/DELHI UID No. 359/2017 Naresh Gupta Vs State 16 of 16