Dr. Chandra Kiran Rohledar Vs State of Chhattisgarh

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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WPC No. 2726 of 2019

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Dr. Chandra Kiran Rohledar W/o Dr. Amritlal Rohledar Aged About 54 Years R/o Kutela Chowk. Kutela Saraypali, District- Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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---- Petitioner

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Versus

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State Of Chhattisgarh Through Its Secretary, Health And Family Welfare Department, Mantralaya Capital Complex, Mahanadi Bhawan, New Raipur, Police Station Raipur, Head Post OfÏce Raipur, Civil And Revenue DistrictRaipur, Chhattisgarh.

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Under Secretary Health And Family Welfare Department, Mantralaya, Capital Complex, Mahanadi Bhawan, New Raipur,police Station Raipur, Civil And Revenue District - Raipur, Chhattisgarh.

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Director Health Services, Directorate Of Health Services, Indrawati Bhawan, New Raipur, Police Station Raipur, Head Post OfÏce Raipur, Civil And Revenue District - Raipur, Chhattisgarh.

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Chief Medical And Health OfÏcer Mahasamund, Civil And Revenue District - Mahasamund , Chhattisgarh.

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The Collector District - Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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The Sub Divisional Magistrate (Revenue) Tahsil Saraypali, DistrictMahasamund, Chhattisgarh.

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The Naib Tahsildar Tahsil - Saraypali, District - Mahasamund, Chhattisgarh., District : Mahasamund, Chhattisgarh

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Jafar Ulla Khan District President Youth Intuc Mahasamund, District - Mahasamund, Chhattisgarh.

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---- Respondents

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(Cause Title taken from Case Information System)

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For Petitioner : Mr. Aakash Pandey Advocate For Respondents/State : Mr. Keshav Gupta, Government Advocate

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Hon’ble Mr. Justice Rakesh Mohan Pandey Order on Board

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05.03.2024

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1. The petitioner has filed this instant petition with the following prayer(s):-

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“ 10.1 . That this Hon'ble Court may kindly be pleased to direct to respondent authorities to release petitioner's sonography machine.

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10.2 . that this Hon'ble Court may kindly be pleased to grant any other ancillary relief by issuing any other suitable writ, direction or order, deems fit in the facts and circumstances of the case including cost of petition.”

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2. Brief facts of the case are that the petitioner is a qualified medical practitioner and she was having a sonography machine installed in her residence. A complaint was made by respondent No. 8 before the Sub-Divisional OfÏcer (Revenue), Saraipali against the petitioner to the effect that the petitioner was engaged in a sex determination test which was in contravention to the provisions contained in Section 17 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter called as “the Act of 1994”). The SDO (Revenue), Saraipali took cognizance of the matter and issued a show cause notice on 14.01.2019 and on the same day, directed the Nayab Tahsildar to take appropriate action. The Nayab Tahsildar, Saraipali on the basis of oral direction, entered into the clinic of the petitioner and sealed the sonography machine vide Annexure R/2 dated 14.01.2019. The husband of the petitioner filed a reply to the show cause notice on 16.01.2019 and the Sub-Divisional OfÏcer (Revenue), Saraipali forwarded the matter to the Collector, Mahasamund to accord permission according to the provisions of the Act of 1994. The Collector vide its letter dated 21.01.2019 directed the Chief Medical and Health OfÏcer, Saraipali to conduct an enquiry into the allegation made by respondent No. 8 against the petitioner. A notice was issued by the Chief Medical and Health OfÏcer, Saraipali seeking an explanation from the petitioner with regard to the complaint made by respondent No. 8.

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3. Learned counsel for the petitioner would submit that according to the provisions of Section 30 (1) of the Act of 1994, authority and jurisdiction to seal the sonography machine is vested with the District Magistrate at the district level and Block Medical

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OfÏcer at the block level, therefore, the act of sealing the petitioner's sonography machine by a team of Naib Tahsildar, Saraipli is without jurisdiction and without authority of law. He would further submit that in this regard, a notification was issued by the Government of India dated 12.02.2007 and another notification was issued by the State Government on 01.10.2007. He would also submit that in the present case at the instance of the SDO, (Revenue), the Tahsildar sealed the sonography machine of the petitioner which is contrary to the provisions contained in Section 30 of the Act of 1994 and the notifications issued in this regard by the Central Government as well as by the State Government. He would contend that the power and jurisdiction to seal sonography machine lies subject to recording finding that he has ‘reason to believe’ that an offence under the Act of 1994 has been or is being committed at such centre, then only the power of sealing can be exercised. In the present case, neither the sealing has been done by the appropriate authority nor the finding of ‘reason to believe’ has been recorded therefore the action taken by the Nayab Tahsildar was without jurisdiction and without the authority of law. He has placed reliance on the judgment passed by the Coordinate Bench of this Court in the matter of Dr. Smt. Kiran Agrawal Vs. State of Chhattisgarh & others¹ in support of his submissions.

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4. On the other hand, learned State counsel would oppose and submit that the petitioner was actively involved in illegal sex determination and after receiving a complaint in this regard, action was taken by the Sub-Divisional OfÏcer (Revenue). He would further submit that the matter was referred to the Collector and the Chief Medical and Health OfÏcer was also directed to look into the matter. He would also submit that pursuant to the instruction received from the superior authority, the action was taken by the Nayab Tahsildar. He would contend that the sonography machine was sealed by the Nayab Tahsildar strictly in accordance with law and the present petition deserves to be dismissed.

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5. I have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.

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1 WPC No. 1494 of 2018, decided on 03.07.2018

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6. It is correct to say that the committee constituted pursuant to the direction of the Hon’ble Supreme Court in Centre for Enquiry Into Health and Allied Themes (CEHAT) and others v. Union of India and others² inspected the sonography centre of the petitioner and noticed certain discrepancies/irregularities in maintaining the records as well as images, but the committee itself sealed the ultrasound machine at said centre installed by the petitioner. The said inspection committee made the recommendation to the District Magistrate-cum-appropriate authority regarding sealing the ultrasound machine of the petitioner.

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7. In order to appreciate the point raised here, it would be appropriate to notice Section 17 of the Act which is included in Chapter V of the Act of 1994 which states as under:-

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“ 17. Appropriate Authority and Advisory Committee .-(1) The Central Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for each of the Union Territories for the purposes of this Act.

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(2) The State Government shall appoint, by notification in the Official Gazette, one or more Appropriate Authorities for the whole or part of the State for the purposes of this Act having regard to the intensity of the problem of pre-natal sex determination leading to female foeticide.

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(3) to (9) xxx xxx xxx”

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‘Appropriate authority’ has been defined under Section 2(a) which reads as

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under:-

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“ 2. Definitions .- In this Act, unless the context otherwise

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requires,-

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(a)”Appropriate Authority” means the Appropriate Authority appointed under Section 17;

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8. The Central Government has issued an office memorandum in this regard vide memo dated 12.02.2007 with reference to Section 17(2) of the Act of 1994, which states as under:-

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“No.24026/III/06-PNDT Ministry of Health & Family Welfare Government of India

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Nirman Bhawan, New Delhi Dated :- 12^th Feb.2007

2 AIR 2003 SC 3309

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OFFICE MEMORENDUM

Under Section 17(2) of the Pre Conception & Pre-Natal Diagnostic Techniques Act, 1994 amended in 2002, State Govt. shall appoint, by notification in the Official Gazette one or more Appropriate Authorities for the whole or part of the State for the purpose of the Act having regard to the intensity of the problem of pre-natal sex determination leading to female Foeticide. The Central Supervisory Board, constituted under the Act, in its 15^th meeting held on 09^th January, 2007 under the Chairmanship of Union Minister of Health & Family Welfare has decided that District Appropriate Authority shall be the District Magistrate (DM) for the District. The DM may nominate an executive magistrate of the district as his/her nominee to assist him/her in monitoring the implementation of the PC & PNDT Act, as deemed necessary.

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All State Governments are requested to issue necessary notification to implement the decision with immediate effect.

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Sushma Rath Under Secretary to the Govt. of India Secretary (H&FW) All States/Uts

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Copy to:-

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Ms. Ena Singh,UNFPA.”

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9. The above-stated office memorandum states that the District Magistrate of the District shall be the District Appropriate Authority for the purpose of Section 17(2) of the Act of 1994. Thereafter, the State Government on 01.10.2007 issued a notification appointing the District Magistrate for the District and the Block Medical Officer for the Block as “Appropriate Authority” under Section 17(2) of the Act of 1994, which states as under:-

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“Raipur, the 15^th October, 2007

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NOTIFICATION

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No.F 21-03/2007/IX/55.-In exercise of the powers conferred by clause (b) of sub-section (3) of Section 17 read with subsection (2) of Section 17 of the “Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (No.57 of 1994)” and in supersession of Department Notification No.977/4169/2001/H., dated 30-102001, the State Government, hereby, appoints the District Magistrate for the District and the Block Medical Officer for the Block as “Appropriate Authority within their respective jurisdiction.

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By order and in the name of the Governor of Chhattisgarh P. Ramesh Kumar, Secretary”

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10. At this stage, it would be appropriate to notice Section 30 of the Act of 1994

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which states as under:-

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“30. Power to search and seize records, etc. - (1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, such Authority or any officer authorised thereof in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an office punishable under this Act.

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(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act.”

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11. Rule 12 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter called 'the Rules of 1996') states as under:-

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“12. Procedure for search and seizure .-(1) The Appropriate Authority or any officer authorised in this behalf may enter and search at all reasonable times any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Imaging Centre or Ultrasound Clinic in the presence of two or more independent witnesses for the purposes of search and examination of any record, register, document, book, pamphlet, advertisement, or any other material object found therein and seal and seize the same if there is reason to believe that it may furnish evidence of commission of an offence punishable under the Act.

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(2) to (5) xxx xxx xxx”

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12. A focused perusal of Section 30 of the Act of 1994 would show that the power to seal the material object which includes the sonography machine has been conferred upon the appropriate authority and condition precedent for directing sealing of the sonography machine lies with the appropriate authority or with any other authorized officer in that behalf and that authority or officer must have reason to believe that an offence has been or is being committed, then only the appropriate authority/officer can exercise the power of sealing ultrasound machine.

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13. “Reason to believe” or “reasonable belief” means coming to a factual conclusion on the basis of information that a thing, condition, statement or fact exists. ‘Reason to believe’ contemplates an objective determination based on intelligent care and deliberation as distinguished from purely subjective consideration. The said expression is not synonymous with the subjective satisfaction of the authority. It postulates belief and the existence of a reason for that belief. The belief has to be held in good faith. It cannot be a mere pretence. The reason for the belief must have a rational connection or a relevant bearing to the formation of the belief and is not extraneous or irrelevant for the purpose of the section.

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14. As a fallout and consequence of the above-stated discussion, the sealing of the sonography machine of the petitioner at her hospital premises is hereby quashed. The respondents are directed to unseal the sonography machine of the petitioner forthwith upon receipt of a certified copy of this order. While unsealing, the respondents are at liberty to collect data from the sonography machine for the purpose of evidence.

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Sd/-

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(Rakesh Mohan Pandey) Judge

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amita

Dr. Chandra Kiran Rohledar v. State of Chhattisgarh

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Dr. Chandra Kiran Rohledar v. State of Chhattisgarh

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