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Judgment
Sudhanshu Dhulia, J
Petitioner no. 1 before this Court is a nursing home and petitioner no. 2 is the doctor who runs the said nursing home. On an inspection being made of the hospital of the petitioner under the provisions of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (from hereinafter referred to as the Act) and the Rules framed therein called "Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (from hereinafter referred to as the Rules), it was found that a portable ultrasound machine which was being used in the hospital was also "being used for OPD patient as well". Thereafter specific reasons were assigned and the portable ultrasound machine of the petitioner was sealed. The specific reasons were as follows:
"Recommended show cause notice under Rule 3B(1) A of PNPNDT Act amended in Feb., 2012 and the case to be put up in the District Advisory Committee as soon as possible."
The reasons assigned above are as per Rule 3-B(1) (a) of the Rules, which have been amended in February, 2012 vide notification dated 07.02.2012. Relevant portion of Rule 3-B(1) of the Rules reads as under:
"3B (1) Regulation of portable machines - The use of portable ultrasound machine or any other portable machine or device which has the potential for selection of sex before conception or detection of sex during pregnancy shall be permitted only in the following conditions, namely:-
(a) the portable machine being used, within the premises it is registered, for providing services to the indoor patients;
(b) as part of a mobile medical unit, offering a bouquet of other health and medical services;
Explanation. - For the purpose of this sub-rule, the expression "other health and medical services" means the host of services provided by the mobile medical unit which may include the following, namely - ..."
In other words, in a nursing home the use of portable ultrasound machine is restricted. Since it was found that portable ultrasound machine was being used in the petitioner's nursing home for OPD patients as well, the Chief Medical Officer vide order dated 22.05.2013 seized the portable machine of the petitioner.
This Court has been informed that when the order was passed on 22.05.2013, the Chief Medical Officer was working as District Appropriate Authority. The District Appropriate Authority is now the District Magistrate.
Subsequently, the District Magistrate (who is now the District Appropriate Authority) vide order dated 25.02.2014 passed an order for releasing the portable machines. The order of the District Appropriate Authority was challenged by the State Government before the State Appropriate Authority, which has come to the conclusion that there are no such powers given to the District Appropriate Authority for releasing the machine and in any case the order of the District Appropriate Authority is a non-speaking order.
Both the Act as well as the Rules are not clear as to whether once the machine is sealed, such de-sealing order can be passed by the District Appropriate Authority. No reason whatsoever has been assigned as to why the machine is released in favour of the petitioner to be returned to the company i.e. the manufacturer.
Learned State Counsel would argue that the District Appropriate Authority ought to have come to the conclusion that whether an offence is made out against the petitioner or not. Learned State Counsel submits that on the basis of the inspection report, an offence is made out against the petitioner under Section 23 of the Act.
Section 23 of the Act reads as under:-
"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 of Clinic, whether on an honorary basis or otherwise, and who contravenes any of the provision 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, sinologist 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."
Cognizance of the offence under the Act can be taken on a complaint filed by the District Appropriate Authority before a court of appropriate Magistrate under Section 28 of the Act. Section 28 of the Act reads as under:
"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 other officer authorised in this behalf by the Central Government or the 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, of 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."
Therefore the District Appropriate Authority has to apply its mind to the inspection report and thereafter after appraisal of other material and conducting an inquiry, if he comes to the conclusion that no offence is made out, he may take appropriate measure in accordance with law and if permissible pass an order for release of the machine, however, if prima facie he comes to the conclusion that an offence has been committed by the petitioner, he is duty bound to make a complaint, which he has not done.
Therefore, the order of the State Appropriate Authority to the extent it cancelled the order passed by the District Magistrate/District Appropriate Authority for releasing the ultrasound machine of the petitioner is correct and no interference is liable to be made.
Writ petition is, however, disposed of with the direction to the State Appropriate Authority/appellate authority to take appropriate action against the petitioner in accordance with law.
The Registrar General is directed to communicate this order to the Secretary, Health, State of Uttarakhand.