Dr. Sunil Fakay vs Gnctd, Directorate Of Family ...
2011 Latest Caselaw 124 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI


                      W.P.(C) 7736/2010 & CM 22012/2010


       DR. SUNIL FAKAY                                      ..... Petitioner
                               Through: Mr. Shivek Trehan, Mr Udit Mendiratta
                               and Mr. Arjun Mahajan, Advocates.

                      versus


       GOVERNMENT OF NCT OF DELHI, DIRECTORATE OF
       FAMILY WELFARE & ORS                      ..... Respondents
                   Through: Ms. Anju Bhattacharya, Addl. Standing
                   Counsel with Ms. Shifalika Dalmia, Adv.

       CORAM: JUSTICE S. MURALIDHAR

                    ORDER

% 10.01.2011

1. The prayer in this writ petition is to revoke the effect of order dated 16th

July 2010 passed by the Appropriate Authority under the Pre-Conception &

Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994

['PNDT Act'] pursuant to order dated 23rd September 2010 passed by the

Appellate Authority whereby the case had been remanded to the District

Appropriate Authority.

2. The Petitioner runs a diagnostic centre under the name 'Sunil Fakay

Imaging'. On the basis of the complaint of one Shri S. K. Sharma, Secretary,

Beti Bachao Samiti, a criminal case was registered against the Petitioner under

Section 384 read with Section 34 of the Indian Penal Code, 1860. The

allegation against the Petitioner was that it was revealed in a 'sting' operation

that he had conducted an ultrasound of the foetus of a pregnant woman (a

decoy customer) and disclosed to her the sex of the foetus. An order dated 16th

July 2010 was passed by the District Appropriate Authority (Respondent No.

2), cancelling the registration of the Petitioner's diagnostic centre. On the very

same day, i.e. 16th July 2010, the Sub-Divisional Magistrate, Model Town

(Respondent No. 3) passed an order sealing the Petitioner's clinic. The

Petitioner then filed an appeal before the Appellate Authority against the

cancellation of his registration. On 23rd September 2010, the Appellate

Authority passed an order, setting aside the order dated 16th July 2010 of the

District Appropriate Authority. The case was remanded to the District

Appropriate Authority to follow the due procedure under the PNDT Act and

pass a fresh order within one month.

3. Having not received any communication from the District Appropriate

Authority for more than a month, the Petitioner filed this petition against the

sealing of his clinic and the cancellation of his registration under the PNDT

Act.

4. On 2nd December 2010, learned counsel for the Respondents handed over a

copy of the minutes of a meeting of the Advisory Committee under the PNDT

Act held on 20th October 2010 in the Office of Dy. Commissioner (North-

West) Kanjhawla, Delhi. The Advisory Committee recommended that the

earlier order of cancellation of the registration under the PNDT Act be

substituted with an order of suspension of the Petitioner's licence till the

completion of investigation by the police.

5. The Petitioner filed CM No. 22012/10 pointing out that the said minutes of

the meeting of the Advisory Committee did not amount to an order by the

Respondent No. 2.

6. Learned counsel for the Petitioner submitted that since no order had been

passed by the District Appropriate Authority despite the expiry of one month

after the date of the order of the Appellate Authority, the due procedure under

the PNDT Act was not complied with and, therefore, the Petitioner's clinic

should be de-sealed and his registration restored.

7. Learned counsel for the Respondents submits that a formal order of the

District Appropriate Authority, on the basis of the recommendation of the

Appellate Authority, is likely to be issued in a week's time.

8. The minutes of the meeting of the Advisory Committee dated 20th October

2010 records the fact that the Petitioner appeared before the said Committee

and was asked whether he would like to view the CD containing the video of

the sting operation in the presence of the Committee. The Petitioner, however,

declined the offer. He maintained that the CD was doctored and that he had

committed no violation of the PNDT Act. A perusal of the transcript of the

CD, which has been placed on record by the Petitioner along with CM 22012

of 2010 shows that the Petitioner did perform the ultrasound on the decoy

customer and that he confirmed to her the sex of the foetus. As regards the

Petitioner's contention that the CD was doctored, this will have to await the

conclusion of the criminal investigation. It is, however, clarified that it will be

open to the Petitioner to produce any scientific report in support of his

contention that the CD in question has been doctored or manipulated and, on

that basis, apply to the District Appropriate Authority to consider lifting the

order of suspension of his licence.

9. This Court takes on record the statement of learned counsel for the

Respondents that a formal order will be passed by the District Appropriate

Authority within one week, on the basis of the recommendation of the

Appellate Authority.

10. In the circumstances, this Court finds, prima facie, that the

recommendation of the Advisory Committee that the order cancelling the

Petitioner's registration passed by the Appropriate Authority on 16th July 2010

should be converted into one of suspension of his licence till the completion

of investigation by the police is not unreasonable.

11. The writ petition is disposed of in the above terms. The pending

application also stands disposed of.

S. MURALIDHAR, J JANUARY 10, 2011 SK