Dr. Tukaram Ramkrishana Karde vs The State Of Maharashtra And ...
2023 Latest Caselaw 9836 Bom

2023:BHC-AUG:20852
                                                         1

                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        BENCH AT AURANGABAD

                            CRIMINAL REVISION APPLICATION NO.183 OF 2021
                                       WITH APPLN/2726/2022

                 Dr. Tukaram s/o Ramkrishana Karde
                 Age : 45 yrs, Occu. Medical Practitioner,
                 R/o. Bhagwat Hospital, College Road, Washi,
                 Tq. Washi, District Osmanabad.                         ...Rev. Petitioner
                                                                      (Orig. Accused No.1)
                         VERSUS

                 1.      The State of Maharashtra
                         Through APP High Court Aurangabad.
                         (Copy to be served on APP High Court of
                         Judicature of Bombay Bench at Aurangabad).

                 2.      Dr. Rajabhau s/o Vishwanath Galande.
                         Age : 45 yrs, Occu. : Medical Officer,
                         R/o Rural Hospital, Washi,
                         Tq. Washi, Dist. Osmanabad.                    ...Respondents
                                                                      (Orig. Complainant)
                                               ...
                 Mr. Rajendra Deshmukh, Senior Advocate a/w Mr. Shriram V.
                 Deshmukh i/b Mr. V.M. Maney, Advocate for Petitioner.
                 Mr. S.B. Narwade, APP for Respondent Nos.1 & 2.
                                                 ...
                                                 CORAM : S.G. MEHARE, J.

RESERVED ON : JULY 05, 2023 PRONOUNCED ON : SEPTEMBER 25, 2023

JUDGMENT:-

1. Rule. Rule made returnable forthwith. Heard finally by

consent of the parties.

2. The petitioner has impugned the judgments and orders of

conviction passed by the learned Judicial Magistrate First Class, Washi,

District Osmanabad in R.C.C. No.30 of 2011, decided on 12.01.2016

and confirmed by the learned Additional Sessions Judge-1, Bhoom, by

judgment and order in Criminal Appeal No.03 of 2016 dated

30.11.2021.

3. The petitioner has been convicted for the offence

punishable under Section 23 of the Pre-Conception and Pre-natal

Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (For

short 'Act 1994') r/w Rule 9(4) of the Pre-Conception and Pre-natal

Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (For

short 'Rules 1996').

4. The facts giving rise to the prosecution case were that the

petitioner was the medical practitioner and owner of Hospital and

Genetic Clinic, under the name and style 'Bhagwant Hospital' at Washi.

The petitioner was BHMS. He obtained a Certificate of Registration to

run a Genetic Clinic for pre-natal diagnostic procedures for Ultrasound

on 10.05. 2002 from Civil Surgeon, General Hospital, Parbhani for five

years. Thereafter, he renewed the registration, and it was renewed for

a further five years from 15.05.2007. On 12.05.2005. The Civil

Surgeon had granted permission to Dr. D.M. Jagtap to operate the

machine at the Hospital of the applicant. In the said permission, a

specific condition was laid that Dr. Jagtap would be responsible for

maintaining the record of the Sonography Centre, and the applicant

shall take note thereof.

5. The prosecution has a case in brief that the Complainant

was the Taluka Appropriate Authority for inspecting the Sonography

Centers. On 17.02.2011, the Complainant and members of the District

Level squad inspected the Genetic Clinic of the accused. In the

inspection, they noticed many irregularities. The registers were not

maintained in the prescribed forms. The consent forms after

27.12.2009 were not available. The case record was also not available.

Dr. Jagtap stopped visiting the Centre from 06.01.2010 to conduct the

sonography. The petitioner had forwarded the 'nil' reports, although

the Radiologist was not visiting the Centre. They seized the necessary

papers and drew the seizer panchanama in the presence of the

accused. He put his signature and obtained the signatures of the

members of the squad on panchanama. Lastly, he filed the complaint.

6. Admittedly, Dr. Jagtap was not arraigned as an accused in

the complaint. He was added as accused by the Court order dated

18.01.2012 below Ex. 51. However, this Court, by order in Criminal

Writ Petition No. 22 of 2014 dated January 5, 2015, discharged him

on the basis of the admission of the Complainant that the accused had

furnished the undertaking before the Civil Surgeon accepting the

responsibility to maintain and preserve the record. The trial Court

discharged the accused No. 2 by order dated 22.03. 2012. His prayer

for discharge was also refused by the High Court. Hence, the accused

faced the trial and was convicted, as mentioned above.

7. Learned senior counsel Mr. Rajendra Deshmukh for the

accused has argued that there are various apparent errors of law on

the face of the record. On 19.12.2005, by permission exhibit-137, Dr.

Jagtap was permitted to operate the sonography machine. Therefore,

he was responsible for the statutory compliances. Since the accused

was not the expert, he cannot be held responsible for the statutory

compliances. After Dr. Jagtap stopped visiting the Genetic Clinic, as

per the directions of the office of the first informant, the accused sent

the 'nil' monthly reports. Therefore, both Courts erred in law in not

believing it was a statutory compliance. The Court did not

appropriately consider the law in the facts and circumstances of the

case. The charges were also not properly framed. The Complainant,

who had given a surprise visit to the Clinic, had no authority. A

notification authorizing him to inspect/visit the Hospital was not

produced on record. Proviso to sub-section 3 of the Act 1994 fixes the

responsibility of the person to keep the complete record. The

procedure for search and seizure prescribed under Rule 12(2) and (3)

of Rule 1996), which was mandatory, has been violated. He also

referred to Section 28 and argued that PW-1 was not the Appropriate

Authority; hence, his inspection and complaint were illegal and

defective. He also referred to Rule 18-A (5), 9(i)(ii). He relied on a

bunch of case laws to bolster his arguments that the petitioner had

been wrongly held responsible for maintaining the record and

violating the provisions and rules of the Act 1994 and Rules 1996

framed thereunder and prayed to allow the criminal revision

application.

8. Per contra, the learned APP would submit that the Clinic

was registered in the name of the accused. Therefore, as per Section

4(3) r/w Rule 9(4)(6) of the Act 1994 and Rules 1996, the petitioner

was solely responsible for maintaining and preserving the record. He

had given an undertaking to be responsible for maintaining the record.

When there was no expert to operate the sonography machine, he

should have surrendered his Registration Certificate as provided under

Rule 6(6) of the Rules 1996 to the Appropriate Authority. The

authenticity of the Notification empowering the Complainant to

inspect the Clinic was never challenged. The question nos.14, 15, 26,

40 and 48 of the statement of the accused under Section 313 speaks a

large and sufficient to prove his responsibility. Both Courts have

correctly passed the judgments and order of the conviction with

correct reasons, and those are free from infirmity. There is no prima

facie error on the face of the record. There are two concurrent

judgments against the petitioner. A serious offence has been

committed. He relied on the case of the Federation of Obstetrics and

Gynecological Societies of India v Union of India, 2019 Mh.L.J. 448

(S.C.). He prayed to dismiss the criminal revision application.

9. The accused has raised the following broad objections;

(A) The Complainant was not the Appropriate Authority; hence,

his complaint was bad in law.

(B) The accused was not responsible for maintaining and

preserving the record as required under the Act and Rules.

(C) Sending monthly report 'NIL' is not an offence.

(D) The Appropriate Authority violated the mandatory Rule 12

of the Rules 1996 by not seizing the record in the presence of the

independent witness.

10. Before adverting to the controversy, the Court clarifies

that the Act 1994 and the Rules 1996 have been amended from time

to time. However, the alleged incident happened before the

amendment of 2003; hence, the law and rules before the 2003

amendment have been considered.

As to point A :

11. Section 28 of the Act provides that no Court shall take

cognizance of the offence under the Act except the complaint is made

by the Appropriate Authority concerned or any officer authorized in

this behalf by the Central or the State Government as the case may be.

The law mandates that the person authorized by the Government can

only put the Act into motion. Section 17 (2) of the Act 1994 states that

the State Government shall appoint the Appropriate Authority by

Notification in the Official Gazette for the State or part of the State.

12. Admittedly, on the alleged date of the incident, the

Complainant was serving as a Medical Officer Class II at Rural

Hospital. However, from February 2005 till 31.05.2011, he had an

additional charge of the Medical Superintendent, Class I, of Rural

Hospital Vashi. He had a case, the State Government Notification

dated February 21, 2008, authorized him to conduct the inspections

and take legal actions against the errant Clinics and Sonography

Centers. By another Government Notification dated April 9, 2007, he

was authorized to inspect the Sonography machines in Vashi Taluka.

The February 2, 2008, notification was on the record below Ex.22.

13. The State Government, by Notification dated

February,2,2008, appointed many Officers, including the Medical

Superintendent (Rural Hospital), as Appropriate Authority.

14. The learned APP submits that the Government

notification dated February 2, 2008, was in force on the day of the

alleged incident. The Complainant was holding the charge of the

Medical Superintendent on the day when the Clinic of the accused was

inspected. Hence, the Complainant was competent to inspect the

Clinic of the accused and file a Complaint.

15. The Complainant was cross-examined on his Authority,

but his case was that he was in charge of the Medical Superintendent

on the day of the incident. The accused had obtained the information

under the Right to Information Act. He received the information on

16.11.2018. It was obtained after the Judgment of the learned Trial

Court. However, it appears that the said information has been made a

part of the record of the learned first Appellate Court. The information

elicited under the R.T.I. Act by the accused showed that during the

period, particularly on the day of the incident, the Complainant was in

charge of the Medical Superintendent of Rural Hospital, Vashi. The

said information is against the objection raised by the accused and

supports the Complainant. The said document was part of the record

of the first appellate Court this way or the other. The question would

be whether such a document can be admitted in evidence.

16. The information in response to the application under the

R.T.I, Act elicited could be a certified copy. It is supplied on charges

and issued under the seal and signature of the Public Information

Officer. It had the character of a certified copy. Section 77 of the

Indian Evidence Act provides that the certified copy may be produced

in proof of the contents of the public documents or parts of the public

documents they purport to be copies. Section 79 of the Indian

Evidence Act presumes the certified copies are genuine. The said

document, being a certified copy, may be proved by its production in

the Court. The information collected regarding the Complainant in

charge was supplied by way of a certified copy. Hence, it may be

presumed a copy prepared from the documents forming the acts of the

public officer. The superior officers, by orders or general orders, keep

the charge of a particular post with a particular officer. Some

provisions and rules prescribe with whom the charge would be in the

absence of the regular officer. In the fact situation, this Court is of the

view that response letters from R.T.I. Officials are primary evidence of

public documents and should be admitted in evidence without any

corroborative oral evidence. The record reveals that the Complainant's

oral evidence had gone unchallenged that the Complainant was in

charge of the Medical Superintendent of the Rural Hospital, Vashi.

17. A serious objection was raised that the Complainant did

not file the Government Gazette dt. 9.4.2007, based on which the

complaint was filed. The gazette notification of 12.02.2008 was filed

at the time of evidence. By the said Notification, the Additional

Collector, S.D.O., Tahsildar, Naib Tahsildar, Commissioner of Municipal

Corporations and Councils, and Chief Officer (Nagar Parishad) were

appointed as the Appropriate Authority. It was a xerox copy. However,

the trial Court had wrongly Exhibited it. According to rule 18(5) (ii) of

the Rules 1996, the Appropriate Authority shall ensure that while

filing the case, all the notifications or the Government be produced in

original in the Court and other material objects attached to the case

file shall be in original. The copy of the Notification dated 12.2.2008

was xerox, but the trial Court had exhibited it and admitted in the

evidence erroneously. Both Courts have ignored such a legal

requirement, which directly affected the complaint.

18. The accused did not raise an objection to the Exhibition

of the Notification dated 12.2.2008 when exhibited by the learned

trial Court nor put a single suggestion or question to the Complainant

that it was a Xerox copy of the Notification.

19. Rule 18 does not bear sub-rule 5 (ii). The arguments

before the first Appellate Court were advanced in the year 2021. Rule

18-A was inserted by G.S.R. 109(E) dated 24.02.2014 (w.e.f.

26.2.2014) and that bears sub-rule 5(ii). The complaint was filed in

2011; at that time, Rule 18-A was not born. Therefore, Rule 18-A

would not apply to the case at hand.

20. Considering the vehement objections raised above and on

examining the relevant provisions of the Act and Rules, the Court is of

the opinion that the Complainant was in charge of the Medical

Superintendent of Rural Hospital, Vashi and was the Appropriate

Authority as notified in the Government Gazette dated 12.02.2008.

There was no defect in the complaint. Hence, point A has been

answered Accordingly.

As to Point B :

21. The tone of the arguments of the learned senior counsel

for the accused, as regards the prescribed forms to be maintained by

the Clinic, was that the Forms which were allegedly seized from the

Clinic of the accused were supplied by the Civil Surgeon, which was

sent to him by the State Government; therefore, it can not be said that

the Forms were not in prescribed Forms.

22. A large number of Sections and Rules under the Act 1994

and Rules 1996 were substituted, inserted or amended by Act 14 of

2003 (w.e.f. 14.2.2003). The title of the Act was substituted in 2003.

Before 2003, the title of the Act and Rules were the Pre-natal

Diagnostic Techniques (Regulation and Prevention of Misuse) Act

1994 and Rules 1996. Form F was also substituted in 2003. Some

columns were added to old prescribed Forms, and the declaration of

the pregnant woman and Doctor/person conducting Ultrasonography/

Image Scanning were added to the foot of prescribed Form F in 2003.

However, the forms were mostly the same as before 2003.

23. The accused got the Registration Certificate for the first

time on 10.05.2002, and then the amendments were brought.

However, the Forms the accused claimed were prescribed Forms do not

match anywhere with the Forms as prescribed nor bear the

endorsement of its printing in the Government Printing Press.

Perhaps he might have printed the forms in the local market. There

were no facts and circumstances to believe that the Civil Surgeon had

supplied him with the Forms seized from his Genetic Clinic. However,

it was a fact that before the inspection/visit in question, the

Complainant never objected that the same Forms inspected by him

were not in the prescribed Forms.

24. The accused never denied that he did not own the

Genetic Clinic. However, he denied the responsibility to maintain and

preserve the record as per the Rules 1996. The Civil Surgeon and

District Appropriate Authority had granted permission by letter dated

19.05.2005 to Dr. D.M. Jagtap, M.D., the Gynecologist, to run the

machine situated in the Genetic Clinic of the accused by imposing the

responsibility upon him to maintain and preserve the record as per the

rules is not disputed. It was also undisputed that from January 2010,

Dr. Jagtap stopped visiting the Genetic Clinic. The Complainant

testified that at the time of the visit, the Sonography machine was

available there and was in order. The last Form, F (patient consent

form) was dated 27.09.2009, and the rest were blank. Dr. Jagtap last

signed the monthly report for December 2009. Thereafter, the accused

filled the forms as 'NIL'. However, the accused has put his signature on

the blank forms of the monthly report.

25. In the facts and circumstances, the core question is who

was responsible for complying with rule 9 of the Rules 1996.

26. Learned senior counsel for the petitioner has vehemently

argued that since there was a specific condition granting the

Registration Certificate that Dr. Jagtap would run the sonography

machine, he was the only person responsible for complying with the

Act 1994 and Rules 1996. He referred to a permission letter dated

19.12.2005 (Exhibit-137) to support his arguments. Referring to the

proviso clause to sub-section 3 of Section 4 of the Act 1994, he

vehemently argued that the person conducting the Ultrasonography

on a pregnant woman shall keep the complete record thereof in the

Clinic in such a manner as may be prescribed. In addition, he has also

referred to Rule 9 of the Rules 1996 and added that no specific person

has been named in the Rule upon whom a duty was cast to maintain

the register. In the Rule, the duty was cast upon the institution, not

any specific person.

27. He relied on the case of Dr. Sai w/o Santosh Shiradkar

Vs. The State of Maharashtra and Anr, 2016 S.C.C. Online Bom 8812 .

In this case, it is held that sub-section 3 of Section 4 creates a statutory

obligation on the person conducting Ultrasonography on a pregnant

woman to keep a complete record thereof in the Clinic in such a

manner as may be prescribed and any deficiency or inaccuracy found

therein shall amount to a contravention of provisions Section 5 or

Section 6 unless the contrary is proved by the person conducting

Ultrasonography.

28. Herein the case, it has been alleged that Form-F were not

filled up completely and the signatures of the pregnant woman were

missing. A sample Form-F dated 19.04.2009 Exhibit-31, 21.06.2009

Exhibit-32 and Exhibit-33 were inspected, on which the signatures of

the pregnant woman were not obtained. However, the declaration to

that Form was signed by Dr. D.M. Jagtap.

29. A Similar question arose for consideration before the

Bombay High Court in the case of Ranjeet Ghatge and Ors Vs. The

State of Maharashtra and Ors, in Cri. Writ Petition Nos. 4194 and

4195 of 2014 decided on 17.08.2015. In that case, the Court held that,

in my opinion, this proviso is to be read along with Rule 9(4) of the

Rules. A minute details mentioned in Form-F are, in my opinion, to be

filled in by the staff members of the Genetic Clinic. The person/Doctor

conducting Ultrasonography on a pregnant woman will keep a

complete record of the Ultrasonography done by him and not the

details of the Form-F. Harmonious reading of proviso to Sub-section 3

of Section 4 of the Act read with Rule 9(4) of the Rules leads one to

the conclusion that the clerical work is to be done by the staff

members of the Genetic Centre and only the Doctor will maintain the

record of the Ultrasonography done by him.

30. The Hon'ble Supreme Court in the case of Federation of

Obstetrics and Gynecological Societies of India Vs. Union of India and

others, 2019 (6) SCC 283, relied on by the prosecution, held that

filling up Form-F was a condition precedent to undertake the test. It is

not a clerical job. There is no barometer except Form-F to find out why

the diagnostic test was performed. In case such important information,

besides others, is kept vague or missing from the Form, it would defeat

the purpose of the Act and safeguards provided thereunder, and it

would become impossible to check violation of provisions of the Act. It

has also been observed that Form-F has to be prepared and signed by

either Gynaecologist/ Medical Geneticist/ Radiologist/ Paediatrician/

Director of the Clinic/ Centre/ Laboratory. Lastly, in paragraph no. 94,

it has been observed thus;

"94. There is no substance in the submission that the provision of Section 4(3) be read down. By virtue of the proviso to Section 4(3), a person conducting Ultrasonography on a pregnant woman is required to keep a complete record of the same in the prescribed manner and any deficiency or inaccuracy in the same amounts to contravention of Section 5 or Section 6 of the Act, unless the contrary is proved by the person conducting the said Ultrasonography. The aforementioned proviso to Section 4(3) reflects the importance of records in such cases, as they are often the only source to ensure that an establishment is not engaged in sex determination."

31. The above pronouncement of the Hon'ble Supreme Court

in the above case was that the person conducting Ultrasonography on

a pregnant woman is responsible for keeping the record as required

under rule 9 of the Rules 1996.

32. The prosecution had a case the accused had given the

undertaking that he would be responsible for complying with the

mandate of law i.e. filling the Form-F and complying with it. Here, the

factual difference was that the person in whose name the Registration

Certificate was issued and the person conducting the Ultrasonography

were different. The person eligible and qualified to do

Ultrasonography left visiting the Genetic Clinic of the accused in

January 2010. The accused did not possess the qualification to

conduct the Ultrasonography on the pregnant woman. In this

situation, the question is whether the accused could be held

responsible for complying with the statutory requirement.

33. Before adverting to the controversy, let us examine

whether the so-called undertaking given by the accused was really an

undertaking to accept the responsibility to comply with statutory

requirements and, if it is so, whether, by an agreement, the person

who is not legally entitled to operate the machine and conduct the

Ultrasonography on the pregnant women, be held responsible to

failure to comply with the statutory requirements.

34. The said undertaking is placed on Ex 26. It is titled as

'Hamipatra'. Not the title but the contents of the document decide the

nature of the document. Hence, the rule of evidence is that a

document should be read as a whole to understand the real intention

and terms of the contract, if any, of the parties to the document. The

said document is written on a general stamp of Rs 100, purchased on

5.6.2007. It was addressed to the District Civil Surgeon, District

Hospital, Osmanabad. Its contents are that he made a statement on

oath that he is aware that legal action will be taken if the Sonography

machine installed in his Hospital is operated by any person other than

Dr. Jagtap. He would not interfere in those proceedings. Further, it is

contended that he knew that PCPNDT Act came into force on January

1, 1996, as per the said Act, the following things i.e. violating the

provisions of the said Act, Sex determination, declaring the sex of

foetus, advertising the Sonography machine, not maintaining the

record is an offence. He would carefully avoid its violence. Reading

the document as a whole, he did not undertake a responsibility to

comply with the statutory requirements.

35. Section 3 sub-section 2 of the Act (before the amendment

of 2003) provides that no Genetic Counselling Centre or Genetic

Laboratory or Genetic Clinic shall employ or cause to be employed

who does not possess the qualification as may be prescribed. Rule 3 of

Rules 1996 speaks of the qualifications of the employees for a Genetic

Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound

Clinic and Imaging Centre. Sub-rule 1 permits the employment of a

gynaecologist or paediatrician with six months experience or four

weeks training in genetic counselling, or a medical geneticist. Sub-rule

3 specifically provides for employing a Gynaecologist with experience

performing at least 20 procedures in chorionic villi aspirations per

vagina or abdomen, etc. Reading these rules with the facts of the case

that Doctor Jagtap, who was rendering services till 2010, it can safely

be said that the accused was not a person qualified to conduct the

ultrasonography/image scanning on a pregnant woman. Dr. Jagtap,

who had rendered the services, was the only person competent to

conduct the ultrasonography/image scanning on a pregnant woman.

36. The Court is of the view that any agreement in

contravention of the law no person by undertaking saddled with the

responsibility to comply with the statutory compliances and any such

agreement is no agreement in the eyes of the law. That apart, the law

does not confer the powers on the Appropriate Authority to saddle the

statutory responsibility on the person who does not possess the

qualification and eligibility to conduct the Ultrasonography on a

pregnant woman. Where the law has specifically provided for fixing

the responsibility upon a certain person, none other may, by

agreement or undertaking as happened in this case, accept the

responsibility of complying with the mandatory provisions of rules to

maintain and preserve the record. Hence, the prosecution case that the

accused was responsible for maintaining and preserving the record as

prescribed under Rule 9 of the Rules 1996 could not be believed.

Therefore, it is difficult to fasten the responsibility upon the accused,

being a registered owner of the Clinic, responsible for maintaining and

preserving the record as prescribed under Rule 9 of the Rules 1996.

Hence, this point is answered in negative.

As to point C :

37. The next limb of the argument of the learned senior

counsel for the accused was, in the absence of any procedure

conducted on the Sonography machine, sending the monthly report

"NIL' is not an offence.

38. The learned A.P.P. submits that every breach under the Act

1994 is an offence. Accepting the case of the accused that since

January 2010, Dr. Jagtap stopped visiting the Genetic Clinic, he should

have surrendered the Registration Certificate as provided under Rule 6

sub-rule 6 of the Rules 1996.

39. It is an admitted fact since 2010, the Genetic Clinic of the

accused ceased to function, and till the action against him, he did not

surrender his Registration Certificate. However, he kept sending

monthly reports as 'NIL', and the Appropriate Authority went on

accepting the same without objection. Whether the Ultrasound

procedure was done or not, the monthly reports were to be sent to the

Appropriate Authority. Where no pregnant women were coming to the

Clinic, naturally, the monthly report would be 'NIL'. The accused kept

submitting reports indicating that he was avoiding the violation of the

Act of 1994 and Rules 1996. There was no evidence the Sonography

machine was used for sex determination during that period. Sending

"NIL' report would not be an offence, particularly when there was no

evidence of violating the Act 1994 and Rule 1996 provisions and no

use of the Sonography machine for sex determination.

40. As far as the not surrendering the Registration Certificate

to the Appropriate Authority after the Clinic ceased to function due to

the absence of an eligible and qualified person is concerned, in the

peculiar circumstances and not prosecuting him for such an offence,

the Court is of the view that the Appropriate Authority may exercise

the powers under Section 20 of Act 1994.

41. In view of the above discussion, this point is answered in

negative.

As to Point D :

42. Another limb of arguments of the learned senior counsel

for the petitioner is that both Courts erred in believing the recovery of

the record from the Clinic of the petitioner, which was in violation of

Section 30 of Act 1994 and Rule 12 of the Rules, 1996.

43. Section 30 of the Act 1994 deals with the power to search

and seize records, etc. 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, Genetic Clinic,

or any other place, such Authority or any officer authorized 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 or any other place and

examine any record, register, document, book, pamphlet,

advertisement or any other material object found therein and seize

and seal the same if such Authority or officer has reason to believe

that it may furnish evidence of the commission of an offence

punishable under the said Act. The provisions of the Code of Criminal

Procedure, 1973, relating to searches and seizures shall, so far as may

be, apply to every search or seizure made under this Act.

44. Rule 12 of the Rules 1996 provides for the procedure for

search and seizure. Sub-rule 2 provides for preparing the seizure

memo. The seizure of any document record, register, etc., from such

Clinic shall be prepared in duplicate at the place of effecting the

seizure. Both copies of such list shall be signed on every page by the

Appropriate Authority or the officer authorized in this behalf and by

the witnesses to the seizure. One copy thereof shall be handed over,

under acknowledgement, to the person from whose custody the

document, record, register, etc., have been seized.

45. The Complainant PW-1 has categorically admitted in his

cross-examination that no independent witnesses were taken or called

for preparing the list of the records seized from the custody of the

accused. He deposed that it bears the signature of other officers who

were members of the squad. The said document has been marked as

Exhibit 29. The said list does not bear the signature of the appropriate

Authority or the officer authorized in that behalf on each page. It also

does not bear the signature of the accused on each page. Only on the

last page, there were around six signatures who were the members of

the squad and the signature of the accused was obtained on a paper

just before the page on which they put their signatures.

46. The learned trial Court in the impugned judgment has

observed that the Complainant is the person who initiated this

proceeding, and Dr. Mule (CW-2) was a member of the squad who had

conducted the raid on the basis of which the present proceeding was

initiated. However, these facts would not, ipso facto, render their

evidence inadmissible, untrustworthy or unreliable unless any special

reason, such as, a grudge against the accused, professional rivalry with

accused, bias against the accused, etc., is shown. Both of them are

public servants, and acts done by them were in their official capacity

as such. Though the accused has denied the seizure of records from

his Clinic and preparation of panchnama, he has not even denied the

record produced in Court not belonging to his Clinic. In the

circumstances, the accused now cannot escape from liability by saying

that the records Art. A, B and C were not seized as per rules. It has

also been observed that while determining the effect of such lapses i.e.

not securing the presence of two independent witnesses and supplying

the copies of panchnama, the object behind such provisions is to be

taken into account. The provisions of Section 30(2) of the said Act,

Section 100(4) of Cr.P.C. and Rule 12(2) and (3) seem to have been

incorporated to ensure the genuineness of search and seizure

procedure and to ensure that no fake search and seizure is made by

the raiding squad, committee or the appropriate Authority. The

accused did not deny the search of his record by the committee and

seized record belonging to the Clinic, non-preparation of search,

seizure and panchnama in presence of two independent witnesses as

required by Section 30(2) of the said Act r/w Section 100(4) of the

Cr.P.C. and non-providing copy of such panchnama to the accused as

required by Rule 12(2) and (3) of the Rules, would hardly make any

difference.

47. Reading Section 30(2) and Rule 12(2) and (3),

compliance with said section is mandatory. When the law describes or

requires a thing to be done in a particular manner, it should be done in

that manner and not at all. Definitely, there was a purpose in

incorporating the mandatory provisions of having two independent

witnesses at the time of the seizure of the record. The offences under

the Act 1994 are serious and technical. Therefore, the Authority

should have adhered to the prescribed procedure and rules. The

appropriate Authority or a person authorized to search and seize the

record were imposed a duty to draw a seizer panchanama in the

presence of the independent witness, so they had to follow the rules

prescribed strictly to avoid the shadow of doubt on the action taken by

them. The mandate of law binds every person or Authority. Avoiding

any mandatory provision of law may affect the rights of the accused.

The rights conferred upon the accused under the law shall be

protected. Therefore, the reasons assigned by the Judicial Magistrate,

as discussed above, appear not legally correct and proper. It was a

criminal trial, so every lapse on the part of the prosecution gives the

benefit of the doubt to the accused. At the cost of repetition, it is

stated that the provisions of Section 30(2) of the Act and Rule 12(2)

and (3) of the Rules are mandatory. The appropriate Authority did not

follow these mandatory provisions. Hence, the prosecution case falls

under the shadow of doubt, and the benefit of the doubt goes to the

accused. Therefore, this point is answered in the affirmative.

48. The above discussion on law leads this Court to record

the findings that both Court erred in holding that the offences against

the accused were proved beyond reasonable doubt and erroneously

convicted him. Both Judgments and Orders are erroneous and illegal.

Hence, it warrants interference at the hands of this Court. The Court

now proceeds to pass the following order :

ORDER

(I) Criminal Revision Application stands allowed.

(II) The Judgments and Orders of the learned Judicial Magistrate,

First Class, Washi, District, Osmanabad passed in Regular Criminal

Case no. 30/2011 dated 12.01.2016 and confirmed by the learned

Additional Sessions Judge, at Bhoom, District, Osmanabad, in

Criminal appeal No. 3/2016 dated 30.11.2021, stands quashed and set

aside.

(III) The accused Dr. Tukaram Ramkrishna Karde, is acquitted under

Section 248(1) of the Criminal Procedure Code for the offences

punishable under Section 23 of the Pre-conception and Pre-natal

Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 r/w

Rule 9 (4) of the Pre-conception and Pre-natal Diagnostic Techniques

(Prohibition of Sex Selection) Rules 1996.

(IV) The fine deposited by the accused shall be returned to him.

(V) The Sonography machine seized in the case shall be returned to

the accused if not disposed of by the Government. If disposed of, the

price recovered on its sale, if any, shall be returned to the accused

without interest within four months from today.

(VI) The seized registers Article A, B, and C shall be preserved for

ten months, or the appeal is preferred to the Hon'ble Supreme Court,

which ever is earlier and then disposed of as per the Criminal Manual.

(VII) A copy of this Judgment and Order shall be sent to the

Maharashtra Medical Council for information.

(VIII) The bail and surety bond of the accused and surety stands

cancelled.

 (IX)         The surety stands discharged.

 (X)          Record and proceeding be returned to the Court of the learned

 Judicial Magistrate, First Class, Washi.

 (XI)         The Criminal Application No. 2726 of 2022 stands disposed of

 in terms of the order dated December 8, 2021.

 (XII) Rule is made absolute in above terms.



                                                  (S.G. MEHARE. J.)




 Mujaheed//