Allowed

Dr. Tushar Nanasaheb Patil v. Medical Officer Nashik Municipal Corporation and Anr.

Bombay HC24 Aug 2023WP/1555/2022

Case brief

AI extract

What is this about?

The Bombay High Court allowed a writ petition seeking discharge of the petitioner, a radiologist, from criminal proceedings under the PCPNDT Act. The court held that mere possession of medical equipment in a car did not prove unauthorized conduct of prenatal diagnostics, drawing a crystalized conclusion of non-application of mind in the lower judgment.

What did the court decide?

Writ petition allowed with order to discharge the petitioner from the pending case No.57/2018 immediately.

Dr. Tushar Nanasaheb Patil Vs Medical… — Constitutional and Fundamental Rights | Bombay HC (2023)

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rajshree

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Digitally signed by RAJSHREE RAJSHREE KISHOR KISHOR MORE MORE Date: 2023.08.29 18:27:34 +0530

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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WRIT PETITION NO.1555 OF 2022

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Dr.Tushar Nanasaheb Patil ] .. Petitioner

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vs.

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M.O. Nashik Mun. Corp. & Anr. ] .. Respondents

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Mr.V.M. Thorat a/w M.V. Thorat, Amar Bodke and Avinash Bailmare for the Petitioner.

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Ms.Chaitrali Deshmukh for Respondent No.1.

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Mr.S.R. Agarkar, APP for the State.

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CORAM : BHARATI DANGRE, J

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DATE : 24^th August, 2023.

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P.C.

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1] The Petitioner is a doctor, who possess an expertise in the field of Radiologyl and to make his services available as a Radiologist, he opened the following four centres in Nashik District:-

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1. Shakuntal Diagnostic Center, Satpur Nashik Cityl, Nashik.

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1. Dr.Patil Sonographyl Centre, Akashwani Tower Road, Nashik Cityl, Nashik.

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1. Shri Trambakeshwar Sonographyl Centre, TalukaTrambakeshwar, District Nashik.

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1. Shakuntal Sonographyl Centre, Chandwad, Taluka – Chandwad, District Nashik.

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Apart from this, in order to extend the benefit of his services in the field, he work as Radiologist in the two centres owned and controlled byl the State Government i.e. the Sub District Hospital Chandwad, Taluka Chandwad, District Nashik and Cottage Hospital, District Palghar.

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2] During the course of the aforesaid activityl, he intended to close his centre at Trambakeshwar and accordinglyl byl his communication dated 23.12.2016 addressed to the Civil Surgeon, Civil Hospital, Nashik, he informed that due to his personal problem, he intend to close the centre and he also sought permission to sale the USG machine to the Toshiba Dealer from whom the machine was purchased. Prior to this, he had obtained consent from the concerned for the purchase of said machine.

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3] In the meantime, on 25.10.2016, an anonylmous complaint was received byl the Nashik Municipal Corporation against the Petitioner where a vague allegation is made that he was carryling portable machine in his Innova car and undertaking sex determination in the car. Except sayling that there is strong evidence to that effect, the complainant did not offer anyl proof.

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Surprisinglyl upon this anonylmous complaint received, the Corporation, claim that it kept watch on the activities in the clinic as well as Innova car though the complainant did not even bother to give the number of the car.

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The Corporation authorities after 3 months took search of his car and on one fine dayl found two Sonographyl probes alongwith a printer and a laptop in the said car. Theyl also noted

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a mattress spread in the rear portion of the boot, alongwith two pillows. A keyl board, Sonographyl gel, tissue papers, different wires were also found in the car which was described to be suspicious material. It was alleged that probes and other material which was found in the vehicle should not have been carried in this wayl and therefore offence punishable under section 3(3), 4(3) alongwith Section 23 and 25 of the PreConception and Pre-Natal Diagnostic Techniques Act, 1994, (PCPNDT Act) came to be invoked.

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The Petitioner offered an explanation that the probes found in the car were from the Trambakeshwar Sonographyl Centre which was registered and permission was sought for its disclosure, but for the aforesaid act, another case was registered against him byl invoking section 3(3), 4(3), 25, 13, 19 (4), and Rule 13 (4)(1)(2), 17 (1) and 17(2) of the Pre-Conception and Pre-Natal Diagnostic Techniques Act (PCPNDT Act), and Rules of 1996, and this case was registered in form of RCC No.179/2018 which is sent to the Court of CJ Nashik.

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4] Being aggrieved byl the registration of present case, the Petitioner moved an application before the concerned Magistrate for discharge, who byl order dated 12.02.2021, rejected the same byl holding that there is sufficient material to frame the charge against the accused.

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Against the said order, revision was filed, and the Additional Sessions Judge Nashik rejected the revision byl upholding the order passed byl the JMFC on 04.12.2021 and hence the Petitioner has approached this Court.

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5] Heard the learned counsel for the Petitioner Mr. V.M. Thorat, the learned counsel for Respondent No.1, Ms. Chaitrali Deshmukh and Mr.S.R. Agarkar, learned APP for the State.

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Ms.Deshmukh would vehementlyl submit that on the concrete information received, the Corporation succeeded in tracking the car of the Petitioner in which objectionable material was found. Based on this, an assumption is raised that he was performing Sonographyl tests in his vehicle and this was without permission of the concerned authorities under the PCPNDT Act of 2003.

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Apart from this, as it was not permissible for him to remove anyl part of the machineryl from Trambakeshwar clinic as even till date the Competent Authorityl has not granted permission for closure of the said centre, it amounted to an offence.

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Worth to mention that the permission was sought in the ylear 2016 and Ms.Deshmukh state that til date the application is not decided.

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6] On consideration of the the arguments of Ms.Deshmukh as against provisions of PCPNDT Act which have been invoked, the argument appear to be completelyl hollow.

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On the basis of Complaint, sub section (3) of Section 3 has been invoked on reading of the complaint as well as material collected, but there is no justiciable reason for invoking sub section (3) which reads thus :

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“3. Regulation of Genetic Counselling Centres,

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Genetic Laboratories and Genetic Clinics :-

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(3) no medical geneticist, gylnaecologist paediatrician registered medical practitioner or anyl other person shall conduct or cause to be conducted or aid in conducting byl himself or through anyl other person, anyl pre-natal diagnostic techniques at a place other than a place registered under this Act.”

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The aforesaid section impose a restriction in conducting or cause to be conducted or aid in conducting byl himself or through anyl other person,anyl prenatal diagnostic techniques at a place other than the place registered under the Act. Apart from this, what is invoked is sub section (3) of Section 4 and Ms.Deshmukh has failed to justifyl the invocation of the said provision.

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7] When repeatedlyl asked as to what is the material to infer that the Petitioner had indulged himself or as per Ms.Deshmukh, he is caused to have conducted the pre-natal diagnostic test at the place other than the registered clinic, except tracking the material in the form of sonographyl gel, tissues, mattress and probes found in the Innova car, there is no other evidence to that effect. Not a single instance is placed on record to establish that the Petitioner was in fact engaged in extending his services, through the said vehicle as is alleged in the complaint and mere suspicion of the authorities, in myl considered opinion, would not justifyl the trial to proceed against the Petitioner.

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8] Mr.Thorat has invited myl attention to a veryl pertinent document, i.e. the document addressed byl the Medical Officer of

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Nashik Municipal Corporation to the Additional Director Public Health Services on 07.06.2017, when on referring to the material that has been recovered from the vehicle belonging to the Petitioner, and on considering the explanation offered, that the probe belong to the Trambkeshwar Centre and byl recording that since it is not proved that Dr.Tushar Patil was operating the Sonographyl Centre in his car in the jurisdiction of Nashik Municipal Corporation, guidance was sought in the background facts and, Mr. Thorat has placed on record the response, from the Additional Director Public Health Services dated 16.10.2017, where it is stated that despite existence of these facts, since the vehicle of the Petitioner is found within the jurisdiction of the Municipal Corporation, action shall be continued.

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The said communication, clearlyl demonstrate the non application of mind.

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Ms.Deshmukh would raise strong objection that this document is not part of the proceedings, but I do not find anyl reason not to deal with this communication as it bears the outward number and if this is not to be found true, the Corporation can veryl well use its power to take appropriate action.

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9] In the background circumstances, the onlyl submission advanced on behalf of the Petitioner is, that he is alreadyl facing a trial in form of RCC No.179/2018 for the alleged unauthorized removal of the Probes from the Centre at Trambakeshwar in respect of which permission was sought for its closure, but awaiting the permission, the probes were moved in his vehicle.

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However, in the absence of anyl material collected byl the Respondent-Authorityl which would justifyl the accusation under sub section (3) of Section 3, that he was conducting or caused to be conducted or aiding anyl pre natal diagnostic procedure in the vehicle, the rigmarole of the trial which he must undergo is unwarranted and can be avoided.

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In anyl case for all the alleged acts which according to the Corporation are illegal according to the Act, of 1994 and Rules framed thereunder, the Petitioner alreadyl face action in distinct case.

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10] In these circumstances, absence of the material sufficient to sustain conviction under the aforesaid section, deserve prompt discharge of the Petitioner in Case No.57/2018.

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Writ Petition stands allowed with a clarification that observations made herein shall not be considered as finding in the other RCC Case No.179/2018, which the Petitioner is facing.

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[BHARATI DANGRE, J]

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Dr. Tushar Nanasaheb Patil v. Medical Officer Nashik Municipal Corporation and Anr.

Case brief

What is this about?

What did the court decide?

Dr. Tushar Nanasaheb Patil v. Medical Officer Nashik Municipal Corporation and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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Parties & counsel

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