Case Note & Summary
The petitioner, Dr. Sujit Govind Dange, a medical practitioner, challenged the legality of a notice/order dated 21.6.2011 passed by the Medical Officer of Health (respondent no.3) and the appellate order dated 9.11.2011 passed by the State Appellate Authority (respondent no.4) under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PC & PNDT Act). The respondent authorities had seized the petitioner's sonography machine on the ground that he failed to maintain records as required under the Act and Rules, leading to a presumption of contravention of sections 5 and 6. The petitioner contended that before drawing such presumption, he was entitled to an opportunity to disprove it as per the proviso to section 4(3) of the Act, which was not given. The court examined the scheme of section 4(3) and its proviso, which states that if a doctor fails to keep records, it may be presumed that sections 5 and 6 are contravened, but the doctor must be given a chance to rebut that presumption. The court held that the seizure order was passed without affording any opportunity of hearing to the petitioner, violating principles of natural justice. Consequently, the court quashed the seizure order and the appellate order, directing the return of the sonography machine to the petitioner. The court also allowed the civil application filed by Varsha Laxmanrao Deshpande, who sought intervention, but the main relief was in favor of the petitioner.
Headnote
A) Constitutional Law - Natural Justice - Opportunity of Hearing - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Section 4(3) proviso - The proviso to section 4(3) creates a presumption of contravention of sections 5 and 6 if records are not maintained, but the doctor must be given an opportunity to rebut that presumption before any adverse action is taken. Failure to provide such opportunity violates principles of natural justice. (Paras 3, 5, 6) B) Medical Law - Seizure of Equipment - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Sections 4, 5, 6, 30 - Seizure of sonography machine without prior notice or opportunity to show cause is illegal. The authorities must follow the procedure under the Act and Rules, including giving a chance to the doctor to explain before drawing any presumption or ordering seizure. (Paras 2, 4, 7) C) Administrative Law - Appellate Order - Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, Section 30 - The appellate authority's order confirming seizure without considering the violation of natural justice is unsustainable. The appellate authority must examine procedural compliance. (Paras 2, 8)
Issue of Consideration
Whether the seizure of sonography machine and the orders passed under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 without giving an opportunity to the petitioner to disprove the presumption under section 4(3) proviso are legal and valid.
Final Decision
The court quashed the notice/order dated 21.6.2011 and the order dated 9.11.2011, and directed the respondent authorities to release and return the sonography machine to the petitioner. Civil Application No.251 of 2012 was disposed of accordingly.
Law Points
- Natural justice
- opportunity of hearing
- presumption under section 4(3) proviso
- seizure without notice
- violation of principles of natural justice
