Dismissed

Pramod Padwal v. the State of Maharashtra and Anr.

Bombay HC4 Sept 2023APEAL/717/2012

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay dismissed an appeal challenging an acquittal under the Pre-conception and Pre-natal Diagnostic Techniques Act. The court held that due to a lack of independent witnesses for seizure, absence of a Panchanama, and other procedural defects, the evidence was insufficient for conviction.

What did the court decide?

The appeal was dismissed. The acquittal of the accused respondents was upheld.

Pramod Padwal Vs the State of Maharashtra and Anr. — Medical Negligence | Bombay HC (2023)

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Appeal-717-2012.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL APPEAL NO.717 OF 2012

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Dr.Pramod Padwal
Age 50 yrs. Occ :service,
Appropriate authority and authorized
officer, Mira Bhayendar Municipal
Corporation, Chatrapati Shivaji Maharaj
Marg, Bhayander (W)

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 …. Applicant.
 (Orig.Complainant)

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Versus

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1.State of Maharashtra

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2. Sister Soniya
Age:adult, having address c/o :
St.Ann’s Hospital, Kashimira Naka,
Kashi Mira, Mira Road(E)

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Digitally signed by CHITRA CHITRA SANJAY SANJAY SONAWANE SONAWANE Date: 2023.09.04 17:22:26 +0530

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3. Dr. Ratan Banka,
Age: adult, Occ.Medical Practitioner,
402, Cosmos Salasar Garden,
Near GCC club, Mira Bhayandar Road,
Mira Road (E)

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4. Dr. Sanjay Surana
Age : adult, Occ:Medical Practitioner,
201, Shree Sai Darshan,
Near Furniture Plaza, Near Hotel
Payade, Mira Bhayander Road,….Respondents/
Mira Road (E) (Resp.2 to 4 org.Accused)
Mr N.R.Bubna, Advocate for Appellant.

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Chitra Sonawane. Page No. 1 of 7 ____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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Ms Keral Mehta a/w Niranjan Mundargi, Advocate for
Respondent No.2.

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Ms MR Tidke, APP for State.

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...
 Coram : R.N.Laddha,J.
 Reserved on : 30 August 2023
 Pronounced on: 4 September 2023.
....

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Judgment :

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This Appeal is directed against the Judgment and Order
passed by the learned Judicial Magistrate, First Class, Thane,
in Summary Case No.13912 of 2011, whereby the accused
therein came to be acquitted of the offence punishable under
Section 25 of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 (for short
‘the Act’).

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2. The original Complainant, who was working as a Medical Officer of Health and was appointed as the appropriate authority under the Act, is the Appellant herein. The Accused, Respondents No.2 to 4, were operating a Diagnostic Centre called Saint Ann Hospital in Bhayander. It is alleged that the Accused did not maintain the records required by Rules 9(1) to 9(5) of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short ‘the said Rules’) and did not submit Chitra Sonawane. Page No. 2 of 7 ____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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them as required by Rule 9(8) of the said Rules. On
30.06.2011, the Complainant visited the hospital run by the
Accused and discovered that the records required by the Rules
were not properly maintained. As a result, he seized the USG
machine and records and filed a complaint against the
Accused vide Summary Criminal Case No.13912 of 2011.

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3.To prove its case, the prosecution examined the
Complainant, Dr.Pramod Padwal, only. After the completion
of prosecution evidence, statements of the accused were
recorded under Section 313 of the Code of Criminal
Procedure, 1973 (for short ‘Cr.P.C.’). In reply, the accused
pleaded innocence and false implication.

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4.Mr NR Bubna, learned Counsel appearing on behalf of
the Appellant, submitted that the learned trial Court
committed a manifest error in acquitting the
accused/respondents. According to him, the accused did not
produce any record allegedly maintained by them, and they
never disputed that the records seized by the Complainant
were not their own. He argued that the trial Court was erred
in not relying upon the records seized by the Complainant. It
is submitted that the inspection and the seizure were carried

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Chitra Sonawane. Page No. 3 of 7 ____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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out in the presence of Dr.Priya Fadke and Dr.Rahul Bhure.

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5. It is submitted that the accused did not properly
maintained the seized Register as required by the Rules. The
accused never claimed that the Register was tampered with or
that it was different Register. It is submitted that no
Panchanama was necessary, especially when the report had to
be submitted as a statutory obligation.

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6.Ms. Keral Mehta, learned Counsel for Respondents
No.2 to 4, submitted that the complaint did not mention the
names of Dr. Priya Fadke and Dr. Rahul Bhure, who were
alleged to have accompanied the complainant during the
inspection. There were no independent witnesses to
corroborate the testimony of the complainant. Furthermore,
the complainant did not prepare Panchanama for the seizure
of the records and USG machine. She invited the attention of
this Court to Section 30(2) of the Act, Rule 12 of the said
Rules, and Sections 100 and 204 of the Cr.P.C. and submitted
that failure to comply with mandatory requirements renders
the complaint invalid. To substantiate her contentions, she
relied upon the decision of this Court in Bhiku Yeshwant
Dhangat & Ors. Vs. Baban Maruti Barate & Anr.1

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1 2000 SCC OnLine Bom 323.

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Chitra Sonawane. Page No. 4 of 7

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____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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7.In the present case, the evidence of the complainant
shows that Dr.Priya Fadke and Dr.Rahul Bhure were present
during the inspection. However, their names were not
mentioned in the complaint and no effort was made to
examine them or any other witness. As a result, there is no
independent witness to corroborate the version of the
complainant. Additionally, the complaint did not provide a list
of witnesses with the complaint.

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8.It is an admitted fact that no seizure Panchanama was
prepared for the records and USG machine. This is
particularly relevant given that Section 30(2) of the Act
specifies that the Cr.P.C.’s search and seizure provisions
should be applied to searches or seizures conducted under the
Act. Section 100 of Cr.P.C. was enacted to provide greater
certainty and security. The object under sub-section (4) of
Section 100 Cr.P.C. to conduct the search in the presence of
respectable inhabitants is to ensure that the search or
inspection was appropriately conducted. However, in the
instant case the Panchnama was not prepared and no efforts
were made by the Complainant to secure the presence of
witnesses.

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Chitra Sonawane. Page No. 5 of 7

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____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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9.The complainant claimed that he had conducted an
inspection of the hospital on 30.06.2011, during which he
sealed the USG machine and the records of the hospital.
However, it can be seen from the cross-examination of the
complainant that the USG machine had already been seized
and sealed by the Corporation’s officers on 29.06.2011.
Additionally, the complaint was filed 25 days after the alleged
seizure of the records and USG machine, and no explanation
was given for the delay in filing the complaint.

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10. Rule 12 of the said Rules requires that at least two
independent witnesses be present during the search,
examination, and preparation of a list of seized items in
duplicate at the place of the seizure. Both copies of this list
shall be signed on each page by the appropriate authority and
the witnesses to the seizure. The provision states that if it is
not possible to prepare the list at the location of the seizure,
then the reasons for this must be recorded in writing.
However, no such list was prepared nor were any reasons
recorded as a result, there was a breach of Rule 12 of the said
Rules.

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11. The show cause notice (Exhibit 30), did not mention

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Chitra Sonawane. Page No. 6 of 7 ____________________________________________ 4 September 2023.

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Appeal-717-2012.doc

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the date of inspection as claimed by the complainant. It is
neither clarified in the complaint nor in the evidence of the
complainant how these accused Doctors were related to the
hospital. Furthermore, the complainant did not state in his
evidence that the machine he seized was capable of detecting
the sex of the foetus.

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12. It is a settled principle in law that an acquitted
individual benefits from a dual presumption in their favour.
The first presumption stems from the fundamental tenet of
criminal jurisprudence that every individual is presumed
innocent until proven guilty by a competent Court of law.
The second presumption arises post acquittal, where the
individual’s innocence is not only presumed but it further
fortified, validated, and amplified by the verdict of the trial
Court.

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13. In such circumstances, the trial Court, in my considered
opinion, rightly found the Respondents No.2 to 4 not guilty
of the offence for which they were charged.

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14. Resultantly, this Appeal fails and is hereby dismissed.

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 [R.N.Laddha, J.]

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Chitra Sonawane. Page No. 7 of 7 ____________________________________________ 4 September 2023.

Pramod Padwal v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Pramod Padwal v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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