Bombay High Court
Dr. Deppak S/O Shyamsunder Sane vs The State Of Maharashtra Through ... on 14 July, 2016
Bench: B.P. Dharmadhikari
wp2995.15 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 2995 OF 2015
Dr. Deepak s/o Shyamsunder Sane,
aged 45 years, occupation -
Cardiologist of Sane Heart Care
Clinic, 58, Gajanan Nagar, Omkar
Nagar Road, Nagpur 27, resident
of 34-B, Gajanan Nagar, Near
Omkar Nagar, Water Tank,
Nagpur 440 027. ig ... PETITIONER
Versus
1. The State of Maharashtra,
through its Secretary,
Ministry of Health and Family
Welfare, Mantralaya, Mumbai
400 021.
2. The Health Officer,
Nagpur Municipal Corporation,
Nagpur.
3. The Nodal Officer,
Pre-Conception and Pre-Natal
Diognostic Techniques (P.C.P.N.D.T.),
Nagpur Municipal Corporation,
Nagpur. ... RESPONDENTS
Shri K.N. Dadhe, Advocate for the petitioner.
Shri N.R. Patil, AGP for respondent No. 1.
Shri A.M. Kukday, Advocate for respondent Nos. 2 & 3.
.....
CORAM : B.P. DHARMADHIKARI &
KUM. INDIRA JAIN, JJ.
JULY 14, 2016.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Considering the nature of controversy, after hearing
the respective counsel on 12.07.2016, we adjourned the matter
to today. Today, we have heard Shri Dadhe, learned counsel
for the petitioner, Shri Patil, learned AGP for respondent No. 1
and Shri Kukday, learned counsel for respondent Nos. 2 & 3,
finally by issuing Rule and making it returnable forthwith.
2. By placing reliance upon the Division Bench
judgment of this Court dated 30.11.2015 in Writ Petition No.
2871 of 2012 (Dr. Percy s/o Savakshaw Jilla vs. The State of
Maharashtra & Ors.) delivered at Aurangabad Bench, Shri
Dadhe, learned counsel submits that the petitioner, who is a
leading Medical Practitioner in the city of Nagpur, dealing
exclusively with Heart treatment is required to use the 2D Echo
Colour Doppler Machine for treating his patients. To attend the
patients, he is required to visit I.C.C.U. at Shravan Hospital,
Nandanwan and Sanjivani Critical Care at Sakkardara, Nagpur.
The patients in critical condition at those places cannot be
shifted to his clinic and, therefore, he has to carry 2D Echo
Colour Doppler Machine to Nandanwan and Sakkardara area.
Shri Dadhe, learned counsel, submits that the said machine is
duly registered on 17.02.2014 itself and as the petitioner is not
practicing as Gynecologist and is not treating any ailment
relating to birth of a child, there is no question of the petitioner
using that machine for the purposes of sex determination or
undertaking any Pre-natal Diagnostic procedure.
3. He invites attention to the fact that the petitioner
has accordingly made a disclosure on an affidavit before this
Court as also before Respondent No. 3, however, Respondent
No. 3 by one line order, passed on 15.01.2015, rejected the
application of the petitioner for permission to move and use
that machine in other establishments.
4. Shri Kukday, learned counsel as also Shri Patil,
learned AGP are strongly opposing the petition. They submit
that the mobile machine is to be registered separately and no
permission to shift such machine from one place to another
place can be granted. They also submit that the judgment
delivered at Aurangabad does not lay down any law in this
respect.
5. A perusal of judgment dated 30.11.2015 in Writ
Petition No. 3871 of 2012 shows that the petitioner before
Aurangabad Bench happened to be an Echo-Cardiologist,
operating private clinic. His wife was a Gynecologist. After
noticing these facts in paragraph 4, the Division Bench has
observed that law does not permit imposing prohibition on a
medical practitioner practicing in a different stream merely
because one of his family members can be subjected to
restrictions under the provisions of Pre-Conception and Pre-
Natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, (hereinafter referred to as 1994 Act). The Division
Bench then notices that the petitioner - Doctor before it gave an
undertaking that the Sonography machines registered with the
authorities would not be used outside the hospital premises. It
is also noticed that 2D Echo Colour Doppler machine is merely
used for investigating cardiological disorder by the petitioner.
The Division Bench has taken note of the interim order passed
by it on 29.03.2012 whereby restriction on use of Sonography
machine outside the hospital premises was maintained while
the petitioner was permitted to use 2D Portable Colour Doppler
outside the premises. It has also noted that the respondent
before it had filed an affidavit stating that 2D Echo
Cardiography machine can be used for sex determination if the
Medical Practitioner changes the probe and attaches Convex
Sector to it. However, after perusal of the opinion given in
writing by the Professor and Head of Department, Radiology,
Government Medical College, Aurangabad, the Division Bench
found that said assertion was not correct. The Head of
Department had communicated that unless type of probe was
disclosed, no definite opinion could have been given.
6. It is in this background that in paragraph 6, the
Division Bench proceeded to observe that merely because the
machine being used for different investigation purpose and can
be used for sex determination, the Medical Practitioner
practicing in totally different stream cannot be subjected to
unnecessary restrictions and such a course is beyond the scope
of the 1994 Act. It has taken note of an affidavit filed by the
petitioner and an undertaking furnished by him that he would
not use Convex Sector probe since the said probe is used by
Sonologist/ Gynecologist for scanning the abdomen and not by
Echo Cardiologist for diagnostic purposes. The Division Bench
also took note of installation of silent observer on 2D Echo
Colour Doppler machine and found it a sufficient safeguard
against its abuse. It also found that the petitioner - Echo
Cardiologist, never earlier used that machine contrary to law,
hence, the restrictions imposed upon him were held to be
beyond the scope of 1994 Act. This finding is without
commenting upon the sections contained in the Act and impact
thereof.
7. Shri Dadhe, learned counsel, has submitted that the
present petitioner has also furnished similar affidavit and is
ready and willing to submit it once again with necessary
undertaking. However, we find that this judgment does not lay
down any law on the point. It takes note of the facts presented
to it and then proceeds further to answer the controversy. It
needs to be restricted only to said matter.
8. A perusal of Section 3A of the 1994 Act shows that
it prohibits sex-selection. As per Section 3A, no person,
including a specialist can conduct sex selection on a woman.
Thus, the obligation or prohibition is not only against a Medical
Practitioner but on everybody. Similarly, Section 3B, which
deals with prohibition on sale of ultrasound machine etc., again
stipulates that no person can sell such machines capable of
detecting sex of foetus to any Genetic Counselling Centre,
Genetic Laboratory, Genetic Clinic or "any other person", not
registered under the 1994 Act. Section 4 then prohibits use of
an unregistered places for undertaking pre-natal diagnostic
techniques. Section 18 prohibits a person from opening any
Genetic Counselling Centres etc. or a centre having ultrasound
or imaging machine or scanner or any other technology capable
of undertaking determination of sex of foetus and sex selection,
or render services to any of them, after coming into force of the
Pre-natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Amendment Act, 2002 (hereinafter referred to as
Amendment Act) unless it is registered under 1994 Act. The
emphasis, therefore, is again not only on Medical Practitioner
and on Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinics. The Parliament has mandated that such
machines capable of being used for sex determination cannot
be made available to or used by anybody at places not
registered under the 1994 Act. Section 22 which prohibits
advertisement relating to pre-conception and pre-natal
determination of sex also employes the word "no person".
Section 23 dealing with offences and penalties on medical
geneticist, gynecologist, registered medical practitioner also
disqualifies "any person".
9. The provisions of Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Rules,
1996 (hereinafter referred to as 1996 Rules), need to be
perused in this background.
10. Rule 3A is about sale of ultrasound machines/
person".
imaging machines. This rule again uses the word "a
Rule 3B is on regulation of portable machines. It stipulates that
use of portable ultrasound machine or any other portable
machine or device which has the potential for selection of sex
before conception or detection of sex during pregnancy is
permitted only in two conditions stipulated therein, viz., (a) the
portable machine being used, within the premises it is
registered, for providing services to the indoor patients; (b) as
part of a mobile medical unit, offering a bouquet of other
health and medical services. Explanation thereto clarifies that
other health and medical services means the host of services
provided by the mobile medical unit and the same are
thereafter described under various heads like Curative,
Reproductive and Child Health Services, Family Planning
services and Emergency services.
11. Thus, we find that the Parliament by the 1994
enactment has permitted use of machines which are capable of
being used or have potential to be used for sex determination,
only in the registered establishments and in the conditions
stipulated therein. These provisions apply to everybody as also
all Medical Practitioners if they are using such machines in
their establishments. Considering the pious object of the 1994
Act, no loophole in its Scheme can be worked out as the
language is unambiguous and does not result in any absurdity.
12. However, in the facts before us, the petitioner
already has got necessary registration as per Schedule III. That
certificate of registration is valid for an Ultrasound Sonosite
machine of Micromax module. It is issued on 17.02.2014 and
is valid up to 16.02.2019. The name of place where machine
can be used is Sane Heart Care Clinic, Nagpur.
13. Considering the above legal position, it is apparent
that on the strength of such registration, the petitioner cannot
carry that machine to any other place which is not registered. If
he has to carry the machine to any other place, that place must
also be similarly registered first. The application submitted by
the petitioner does not show that I.C.C.U. at Nandanwan or
then Critical Care Centre at Sakkardara, are accordingly
registered under the 1994 Act. Similarly, the petitioner does
not appear to be having a Mobile unit in which the said
machine is installed.
14. In this situation, we find that the judgment
delivered at Aurangabad Bench on 30.11.2015 does not help
the petitioner at all.
15.
Hence, we grant the petitioner leave to move
necessary application as per law before the Competent
Authority under the provisions of the 1994 Act or 1996 Rules
stipulated supra. If such an application is moved by the
petitioner within a period of four weeks from today, the same
shall be scrutinized by the Competent Authority as per law
within next eight weeks.
16. With this liberty, we dispose of the present writ
petition. Rule accordingly. However, in the facts and
circumstances of the case, there shall be no order as to costs.
17. Respondent No. 1 is directed to supply copy of this
judgment to all Nodal Officers in the State of Maharashtra.
JUDGE JUDGE
******
*GS.
C E R T I F I C A T E
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