Dismissed

Sharma Ultrasound Centre Sarvahit Hospital and 2 Others v. State Appropriate Authority for Pc and Pndt (Appellate Authority) and 2 Others

Allahabad HC7 May 2022WRIC/29628/2019

Case brief

AI extract

What is this about?

The High Court directed the State to remove seals from petitioner's rented ultrasound centers while retaining seizure on machines pending sale. The petitioner, having cancelled registration, sought machine release for transfer; the Court ruled they aren't case property and sale is permissible under Rule 3A.

What did the court decide?

Directions to remove seal on premises but hold seal on machines until sale transaction is finalized and communicated under Rule 3A of the PCPNDT Rules, 1996.

Sharma Ultrasound Centre Sarvahit Hospital… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 38

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Case :- WRIT - C No. - 29628 of 2019

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Petitioner :- Sharma Ultrasound Centre Sarvahit Hospital And 2 Others Respondent :- State Appropriate Authority For Pc And Pndt (Appellate Authority) And 2 Others Counsel for Petitioner :- Nipun Singh Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Nipun Singh, learned counsel for the petitioners and learned Standing Counsel for the State.

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Upon amendment made to the writ petition, the present petition has been pressed for the following reliefs:

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ii. Issue a writ, order or direction in the nature of mandamus directing the respondent nos. 2 and 3 to forthwith remove the seal from the ultrasound machines and as well as from the ultrasound centers by further allowing the petitioner to sell out his ultrasound machines.

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vi. Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 10.08.2021 passed by the District Magistrate, Meerut. A copy of the order dated 10.08.2021 by the petitioner no.2 to the C.M.O. is being annexed as Annexure No. 2-B to this affidavit.

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vii. Issue a writ, order or direction in the nature of mandamus directing the respondents to forthwith release the ultrasound machines of petitioners and also to unlock both the rented premises so that the petitioner may surrender the same to their landlord.

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Having heard learned counsel for the parties and having perused the record, it transpires that petitioners were granted registration under Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as 'the Act'). Petitioner no.3 is a medical doctor. He was running two ultrasound centers, one at Sarvhit Hospital, Meerut and another at Sardhana Road Daurala, Meerut.

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According to the petitioners, on false allegations, an F.I.R. came to be lodged against them on 18.09.2017 in Case Crime No. 286 of 2017 at Police Station Pallav Puram, Meerut. The petitioner no.3 was also arrested and remained confined for some time. Later, he was enlarged on bail. Arising therefrom, criminal proceedings in Case No. 37212 of 2017 (State vs. Dr. Anil Sharma and another) are pending in the Court of Chief Judicial Magistrate, Meerut.

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According to the petitioners, by an ex parte order dated 18.11.2017, the petitioner's registration under the Act was cancelled. Their statutory appeal therefrom has also been rejected vide order dated 16.07.2019.

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Initially, the petitioners challenged the aforesaid orders dated 16.07.2019 and 18.11.2017 by means of the present petition. However, it is the case of the petitioner that they have lost interest in running the ultrasound centers and therefore, have no use of the ultrasound machines that have been seized pursuant to the F.I.R. lodged on 18.09.2017. Therefore, the petitioners applied for lifting of the seal over the premises where the ultrasound centers had been earlier run and also for removal of seal placed over the ultrasound machines, to allow for transfer to third party.

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On such prayers, this Court passed an order on 07.11.2019 calling for instructions from the State for any objection to the request for release of the premises and transfer of the ultrasound machines. The matter remained pending. Later, on 13.07.2021, this Court passed the below quoted order:

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"On 07 November 2019 this Court passed the following order:

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"Although this petition impugns the orders passed under the Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act, 1994, learned counsel at the outset and when the petition was taken for admission stated that he does not press the challenge to the orders impugned pursuant to which the registration of the petitioner under the aforesaid enactment has come to be cancelled. The only issue which has been canvassed is for the release of the Ultrasound machine and the equipment which has been seized during the pendency of the proceedings.

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Although learned Standing Counsel was directed to obtain instructions and address the Court on the sustainability of the action of the respondents in continuing to hold on to the equipment in question, the instructions provided do not prima facie proffer any justification. The Court notes that although in terms of Section 30 of the Act the respondents are empowered to search and seize equipment, that provision does not and at least at this stage establish a power to confiscate. The Court further notes that the Ultrasound machine and equipment are not stated to form case property of any criminal proceedings that may be pending against the petitioner. In view thereof, the State respondents are directed to file a counter affidavit on this petition within a period of two weeks from today.

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List this petition for final disposal on 29 November 2019."

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Although the State respondents were granted time thereafter on 04 March 2020 and 07 December 2020 to file a counter affidavit, no counter has been filed. This despite the peremptory nature of the directions which were issued in the aforementioned two orders.

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As was noticed by the Court in its detailed order of 07 November 2019, the petitioners had decided to forego their challenge to the impugned orders subject to the respondents releasing the ultrasound machine and equipment which had been seized during the pendency of those proceedings. The Court further takes note of the fact that with respect to the very same incident a first information report was also registered which was assailed by the petitioners in proceedings instituted before this Court in which interim protection was accorded. The charge sheet which subsequently came to be filed upon conclusion of investigation forms subject matter of challenge in Criminal Misc. Application U/S 482 Cr.P.C. No. 30615 of 2018. In that petition, further proceedings have been stayed. The Court also notices the concession that the ultrasound machine did not form case property in respect of any criminal case. The respondents till date have not been

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able to draw the attention of the Court to any provision either under the PCPNDT Act or the Rules framed thereunder which may empower them to either confiscate or permanently seize property. The property in question in this particular matter is the ultrasound machine and equipment and thus evidently not perishable.

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Since the respondents have failed to respond, the second respondent who is stated to be the competent authority for the purposes of evaluating the prayer of the petitioner for release of the ultrasound machine is hereby called upon to take a decision on the prayer of the petitioners as noticed above and pass a reasoned and speaking order dealing with the same. A copy of the order that shall be passed by the second respondent shall be produced on the records of this writ petition on or before the next date fixed.

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Include in the additional cause list of 29 July 2021."

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It, thus, transpires that the petitioners are not laying any challenge to the orders passed against them cancelling the registration to run ultrasound centers. Therefore, the order dated 18.11.2017 passed by the District Magistrate cancelling the petitioners' registration under the Act attains finality.

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With respect to the alternative prayer and the only prayer that is being pressed, it may be noted, despite stop order, no counter affidavit has been filed by the State. At the same time, it does appear that the ultrasound machines (that are property of the petitioner and are lying under seal placed by the respondent-authorities) are not wanted as case property in the above-noted criminal case. Also, there is no rationale shown to exist for continued seal of the ultrasound centers that are properties taken on rent, by the petitioners.

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In view of such facts, the present writ petition is disposed of with the following directions:

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(1)The respondent shall first remove the seal placed by them over the premises namely Sharma Ultrasound Center, Sarvhit Hospital, Meerut and Sharma Ultrasound Center, Sardhana Road, Meerut within a period of two weeks from today. However, at that stage, the seal placed over the ultrasound machines installed at those premises may not be removed.

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(2) Thereupon, the petitioner may be permitted to negotiate a sale of ultrasound machines that are lying sealed at the above described premises. Upon the petitioner's informing respondent no.2 in writing about sale transaction finalized by them to sell the aforesaid ultrasound machines to third party/parties, the said respondent shall remove the seal placed over the ultrasound machines and allow for the sale of such machines within a period of two weeks from the date of communication being made by the petitioner in accordance with law i.e. upon compliance of Rule 3A of Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.

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The above directions have been issued without prejudice to the rights of the parties in the pending criminal case which may be dealt with and decided on its own merits.

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Order Date :- 7.5.2022/Madhurima

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Digitally signed by MADHURIMA GARG Date: 2022.05.07 16:15:50 IST Reason: Location: High Court of Judicature at Allahabad

Sharma Ultrasound Centre Sarvahit Hospital and 2 Others v. State Appropriate Authority for Pc and Pndt (Appellate Authority) and 2 Others

Case brief

What is this about?

What did the court decide?

Sharma Ultrasound Centre Sarvahit Hospital and 2 Others v. State Appropriate Authority for Pc and Pndt (Appellate Authority) and 2 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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