Case Note & Summary
The petitioner, Janaki Ultra Sound Center, through its authorized handler Dr. Deelip Madhukarrao Patil, filed a writ petition challenging the order of the District Appropriate Authority, Jalna, which sealed its sonography machine under the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act). The sealing was based on the ground that the petitioner failed to maintain proper records and obtain the consent of patients undergoing sonography. The petitioner argued that while such failures may constitute irregularities, they do not justify sealing the machine unless the authority is satisfied that the machine would furnish evidence of an offence punishable under the Act. The petitioner relied on the judgment of this Court in Dr. Mrs. Sukhada W/o Dilip Mulay vs. State of Maharashtra & others (Writ Petition No. 6557 of 2012), which held that sealing can only be done if the machine is likely to furnish evidence of an offence. The court, after hearing both sides, found that the impugned order only mentioned the failure to maintain records and obtain consent in paragraph 5, but did not contain any observation that the machine had been misused or was likely to be misused or would reveal evidence of an offence. Consequently, the court allowed the petition, quashed the sealing order, and directed the respondents to de-seal the machine within one week. The court also clarified that the Appropriate Authority is at liberty to proceed against the petitioner in accordance with law for any irregularities.
Headnote
A) Pre-natal Diagnostic Techniques - Sealing of Equipment - Section 4(3) PCPNDT Act - The Appropriate Authority can seal a sonography machine only if it is satisfied that the machine would furnish evidence of commission of an offence punishable under the Act; mere failure to maintain records or obtain consent does not justify sealing. (Paras 1-3)
Issue of Consideration
Whether the sealing of a sonography machine by the Appropriate Authority under the PCPNDT Act is valid when the only grounds are failure to maintain proper records and obtain patient consent, without any finding that the machine would furnish evidence of an offence punishable under the Act.
Final Decision
The court allowed the writ petition, quashed the impugned order sealing the sonography machine, and directed the respondents to de-seal the machine within one week. The Appropriate Authority is at liberty to proceed against the petitioner in accordance with law for any irregularities.
Law Points
- Sealing of sonography machine under PCPNDT Act requires satisfaction that machine would furnish evidence of commission of offence
- mere failure to maintain records or obtain consent is insufficient
Case Details
2015 LawText (BOM) (03) 13
Writ Petition No. 1 of 2015
Petitioner: Shri B.R.Warma; Respondents: Shri D.R.Korde
Janaki Ultra Sound Center, through authorized Handler Dr. Deelip Madhukarrao Patil
1. The Appropriate Authority Under PCPNDT Act and Naib Tahsildar, Bhokardan, District Jalna; 2. The Appropriate Authority, Under PCPNDT Act and Civil Surgeon, Jalna; 3. The State of Maharashtra Through the Secretary, Health Department, Mantralaya, Mumbai
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Nature of Litigation
Writ petition challenging the order of the District Appropriate Authority sealing the petitioner's sonography machine under the PCPNDT Act.
Remedy Sought
Petitioner sought quashing of the sealing order and direction to de-seal the sonography machine.
Filing Reason
The petitioner's sonography machine was sealed on the ground of failure to maintain proper records and obtain consent of patients, which the petitioner argued was not a valid ground for sealing under the Act.
Previous Decisions
The court had passed an interim order on 02/02/2015 after hearing the petitioner and the AGP.
Issues
Whether the sealing of a sonography machine under the PCPNDT Act is valid when the only grounds are failure to maintain records and obtain patient consent, without any finding that the machine would furnish evidence of an offence.
Submissions/Arguments
Petitioner submitted that failure to maintain records and obtain consent may be irregularities but do not justify sealing; sealing can only be done if the authority is satisfied that the machine would furnish evidence of an offence, as held in Dr. Mrs. Sukhada Mulay case.
Respondents argued in support of the sealing order.
Ratio Decidendi
Under the PCPNDT Act, the Appropriate Authority can seal a sonography machine only if it is satisfied that the machine would furnish evidence of commission of an offence punishable under the Act; mere failure to maintain records or obtain patient consent does not constitute such satisfaction.
Judgment Excerpts
The petitioner whose Sonography Machine has been sealed on the ground of failure to maintain proper records and obtain the consent of the patient seeking to undergo Sonography, is the only cause for the sealing of the Sonography machine.
It clearly lays down the law in paragraph Nos. 16, 17 and 18 that the Sonography machines can be sealed by the appropriate authority only if it is satisfied that the said machine would furnish evidence of commission of offence punishable under the Act.
There is no observation at all that the said machine has been misused or is likely to be further misused or it reveals such evidence which would furnish evidence of commission of offence.
Procedural History
The petitioner filed Writ Petition No. 1 of 2015 before the Bombay High Court, Aurangabad Bench, challenging the sealing order. The court heard the petitioner and the AGP on 02/02/2015 and passed an interim order. The final judgment was reserved on February 26, 2015 and pronounced on March 12, 2015.
Acts & Sections
- Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994: Section 4(3)
