Quashed

Dr. Suresh Hiralal Saboo v. the State of Mah and Ors.

Bombay HC24 Jan 2013WP/192/2013

Case brief

AI extract

What is this about?

The High Court of Bombay Bench at Aurangabad quashed the suspension of the petitioner's sonography center registration and the sealing of his machines. The court held that by issuing a show cause notice under Section 20(1), the authority was bound to grant a hearing under Section 20(2) before suspension, which it failed to do. Sealing was also struck down for lack of statutory grounds.

What did the court decide?

The order suspending the petitioner's sonography center registration and the order sealing the sonography machines were quashed and set aside.

Dr. Suresh Hiralal Saboo Vs the State of Mah and Ors. — Writ and Judicial Review | Bombay HC (2013)

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W.P. 192.2013- (J)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 192 OF 2013

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Dr. Suresh S/o Hiralal Saboo Age : 62 Yrs., Occ. : Medical Practitioner, R/o : Post Office Road, Jalna.

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.... PETITIONER

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V E R S U S

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The State of Maharashtra Through its Secretary Department of Public Health & Family Walfare, Mantralaya, Mumbai - 32.

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The Appropriate Authority Sub District Level/ Sub - Dist. Parbhani. Divisional Officer, under Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of sex selection) Act Jalna, Tq. & Dist. Jalna. 3. Appropriate Authority / Civil Surgeon, Civil Hospital, Jalna.

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The Collector

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W.P. 192.2013- (J)

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Jalna, Tq. & Dist. Jalna. .... RESPONDENTS

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Mr. S.G.Chapalgaonkar, Advocate for the Petitioner. Mr. S.K.Kadam, A.G.P. for the State.

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CORAM : S.V. GANGAPURWALA, J. DATE OF JUDGMENT: 24/01/2013

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ORAL JUDGMENT :

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Rule. Rule made returnable forthwith. With the consent of the learned counsel for the respective parties, taken up for final hearing.

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The diagnostic centre of the petitioner is registered under the provisions of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 [ For short, ' PCPNDT Act ' ]. On or about 16/06/2012, the inspection was carried out. It appears that some irregularities were found. On or about 26/06/2012, show cause notice was issued by the Sub District Appropriate Authority. The same was served to the petitioner on or about 12/07/2012. On or about 20/07/2012, the Appropriate Authority suspended the sonography centre of the petitioner, so also vide the panchanama sealed the sonography machines. It appears that Appeal came to be filed under Rule 19 of the PCPNDT Rules.

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W.P. 192.2013- (J)

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The Appeal was disposed of on the ground that the petitioner ought to have approached the State Appropriate Authority. Aggrieved thereby the present Writ Petition is filed.

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Mr. Chapalgaonkar, the learned counsel for the Petitioner submits that though the show cause notice was issued to the petitioner, the Appropriate Authority did not grant any opportunity of hearing before suspending the registration. The same is violative of sub Section (2) of Section 20 of the PCPNDT Act. According to the learned counsel, the sealing of machine is also not in consonance with Section 30 read with Rules 11 and 12 of the PCPNDT Act and Rules. The order of sealing does not depict any reason to believe on the part of the Appropriate Authority that the said machines were being used for the purpose of commission of offence under the PCPNDT Act and Rules.

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The learned A.G.P. submits that the irregularities were found at the time of inspection. As such, sonography machine of the petitioner was suspended under the provisions of sub Section (3) of Section 20 of the PCPNDT Act. The sonography machines were not actually sealed. According to the learned A.G.P., no illegality has been committed.

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With the assistance of the learned counsel, I have gone through

W.P. 192.2013- (J)

the impugned order.

The scheme of PCPNDT Act is such that if an action of suspension or cancellation of the registration of the sonography centre is to be undertaken, the Appropriate Authority has to issue the show cause notice. After receiving the reply under Sub Section (2) of Section 20 of the PCPNDT Act, it has to give an opportunity of hearing and then can take action either suspending or cancelling the registration as the case may be. An exception is carved out under sub section (3) of Section 20 of the PCPNDT Act, in that case, the Appropriate Authority can even suspend the registration without issuing show cause notice. But, then it has to be in the public interest. Sub section (3) of Section 20 of the PCPNDT Act is not to be resorted in normal course.

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The chronology of events would show that the Appropriate Authority had resorted to Sub Section (1) of Section 20 of the PCPNDT Act by issuing show cause notice and after the reply has been received, the action has been taken of suspending registration. Once having resorted to sub Section (1) of Section 20 of the PCPNDT Act, then it was imperative for the Appropriate Authority to comply sub Section (2) of Section 20 of the PCPNDT Act i.e. of giving opportunity of being heard, so also taking advise of the Advisory Committee. The order does not show that it was expedient

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W.P. 192.2013- (J)

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in the public interest for the Appropriate Authority to suspend the registration. On the contrary, the course of action adopted shows that the show cause notice was also issued and thereafter the registration of the sonography centre was suspended.

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In light of the above, the action of suspension of registration of the petitioner's sonography centre can not be sustained and deserves to be set aside.

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As far as sealing of sonography machine is concerned, in the affidavit in reply, it has been suggested by the respondent that the said machines were not sealed and an understanding was given to the petitioner that the said machines should not be used for the purpose of commission of an offence punishable under PCPNDT Act or any other Act. Such a course of action is not contemplated by any provisions of the statute or rules. The statute empowers the authority to seal machines if the said machines are being used for the purpose of commission of an offence under the PCPNDT Act. Perusal of the panchanama and the order sealing the machine does not even remotely suggest that the Appropriate Authority was satisfied or had reason to believe about the petitioner is indulging in the acts of commission of an offence under the PCPNDT Act. Section 30 and Rules 11 and 12 of the PCPNDT Act and Rules have been infringed. The

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W.P. 192.2013- (J)

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said action of sealing also can not be sustained.

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In light of the above, the order suspending registration of the petitioner's sonography centre and sealing of machine is quashed and set aside.

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Rule is accordingly made absolute in above terms. No costs.

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Needless to state that the present order would not be an impediment for the Authority to take action in accordance with the provisions of the Act and the Rules.

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KNP/W.P. 192.2013- (J)

Dr. Suresh Hiralal Saboo v. the State of Mah and Ors.

Case brief

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What did the court decide?

Dr. Suresh Hiralal Saboo v. the State of Mah and Ors.

Case brief

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What did the court decide?

What the court decided

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