Delhi High Court
M/S Mgs Super Speciality Hospital vs District Appropriate ... on 12 October, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 12th October, 2017
+ W.P.(C) 1021/2017
M/S MGS SUPER SPECIALITY HOSPITAL ..... Petitioner
versus
DISTRICT APPROPRIATE AUTHORITY-PNDT I DISTRICT
MAGISTRATE (WEST DISTRICT) ..... Respondent
+ W.P.(C) 3895/2017
M/S MGS SUPER SPECIALITY HOSPITAL ..... Petitioner
versus
DISTRICT APPROPRIATE AUTHORITYI DISTRICT
MAGISTRATE (WEST DISTRICT) ..... Respondent
Advocates who appeared in this case:
For the Petitioner : Mr. Sandeep P. Agarwal, Sr. Adv. with Mr. Rajesh Pathak, Adv.
For the Respondent : Mr. Raman Duggal, Standing Counsel with Ms. Aayushi Gupta,
Mr. Arun Kr. Panwar, Mr. Akshay Choudhary, Adv. and Dr.
Souharda Nath, Nodal Officer for GNCTD, Mr. Naushad Ahmed
Khan, ASC for GNCTD in W.P.(C) 1021/2017
Mr. Naushad Ahmed Khan, ASC for GNCTD in W.P.(C)
3895/2017
CORAM:-
HON'BLE MR JUSTICE SANJEEV SACHDEVA
JUDGEMENT
WP(C) 3895/2017
SANJEEV SACHDEVA, J
W.P.(C) 1021/2017& CM No.4672/2017 (for direction), CM
No.7722/2017 (for modification of order dated 13.02.2017) & CM
No.18116/2017 (for early hearing)
1. This petition has been filed by MGS (Super) Speciality Hospital
impugning the order dated 25.01.2017, passed by the State
Appropriate Authority under the Pre-conception and Pre-natal
Diagnostic Technique (PNDT) Act, 1994 (hereinafter referred to as
'the Act'). The Hospital also seeks quashing of the show cause notice
dated 10.02.2016, suspension order dated 10.02.2016 and cancellation
order dated 06.05.2016, passed by the Respondents.
2. By order dated 10.02.2016, the District Appropriate Authority
under the Act in exercise of powers under Section 20(3) suspended
the registration of the Petitioner Hospital (hereinafter referred to as
'the Hospital').
3. By the impugned order dated 06.05.2016, the Respondents
accepted the recommendations of the District Advisory Committee for
cancellation of the registration of the Hospital. By the impugned
order dated 25.01.2017, the appeal filed by the Hospital under Section
21 of the Act impugning the show cause notice dated 10.02.2016,
suspension order dated 10.02.2016 and order dated 06.05.2016 of the
appropriate authority cancelling the registration, has been rejected.
WP(C) 3895/2017
W.P.(C) 3895/2017 & CM No.17157/2017 (for direction)
4. This petition has also been filed by the Hospital seeking setting
aside of Minutes of meeting dated 24.04.2017 of the respondent,
wherein, the Hospital has been declined 'no objection' for purchasing
new ultrasound machines and for permission to the Hospital to use the
same under the Certificate of Registration, issued under the Act, dated
09.10.2012.
5. The Hospital which was established in the year 1996, is a 100
bedded Multi Super-Speciality Hospital and claims to be providing
high quality services and has been accredited by the National
Accreditation Board for Hospitals and Healthcare Providers and
National Accreditation Board for testing and calibration laboratories.
The Hospital is empanelled with the Central Government, Delhi
Government and Public Sector Undertakings.
6. The Hospital runs, inter alia, the following Departments:-
(i) Anesthesia
(ii) Burns & Plastic Surgery
(iii) Cardiology
(iv) CTVS
(v) Dental
(vi) Dermatology
(vii) Diabetes
(viii) Dietetics
(ix) ENT
(x) Gastroenterology
(xi) General Laparoscopic Surgery
(xii) Gynecology & Obstetrics
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(xiii) Internal Medicine
(xiv) Joint Replacement& Arthroscopy
(xv) Nephrology
(xvi) Neuro Surgery
(xvii) Neurology
(xviii) Ophthalmology
(xix) Orthopedics
(xx) Pathologist
(xxi) Pediatrics
(xxii) Physiotherapy
(xxiii) Psychiatry
(xxiv) Radiology
(xxv) Respiratory Medicine
(xxvi) Spine Surgery
(xxvii) Urology
7. As ultrasound facilities are required for the functioning of the
above-referred departments, the Hospital also has a Radiology
Department for diagnostic purposes like X-Ray, Ultrasound, Echo,
etc. It is stated to be both a necessity and a requirement for a Super-
Speciality Hospital.
8. The Hospital was granted registration on 09.10.2012 under the
Act for the following ultrasound machines:
(i) Acuson Alpha 300, Main Frame 1056614 (S
No.350484) (fixed)
(ii) RT 3200 (S. N0.219WG7) (fixed)
(iii) Logiq 100 (S. No.2910WG8) (Portable)
(iv) Logiq 400 MD, (S No.2234236) (Fixed)
(v) Vivid II Pro (P7863) (Fixed)
(vi) Logiq C-5, (S No.178733WX2) (Fixed)
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9. It is contended that the Hospital requires ultrasound machines
for various Departments to diagnose ailments of the patients. In
Trauma Department, the ultrasound machines is required to diagnose
the free fluid and solid organ injury, heart attack, breathlessness, acute
pain in abdomen, sudden obstruction in urine, blood vomiting.
Similarly, the patients of the pediatric, surgical, cardiac, respiratory,
urology, orthopedics departments are also dependent upon the
Department of Radiology. One ultrasound machine is exclusively
required in the department of cardiology for diagnosis of patients
suffering from heart attack / cardiac arrest. Likewise, a separate
ultrasound machine is also required for therapeutic i.e. plural fusion
tapping from the lungs.
10. As per the Hospital, it appoints qualified doctors in the
Department of Radiology for using the ultrasound and echo machines.
11. On 16.06.2014, the Hospital appointed one Dr. Arun Singh
Chauhan as the Head of the Department of the Radiology. Dr. Arun
Singh Chauhan had claimed to possess an experience of 25 years in
the field of Radiology. Pursuant to appointment of Dr. Arun Singh
Chauhan, the Hospital intimated the Respondents , by its letter dated
17.06.2014, regarding appointment of Dr. Arun Singh Chauhan.
12. It is contended that despite intimation to the Respondents with
regard to appointment of Dr. Arun Singh Chauhan as Radiologist with
the Hospital, the Respondents , at no point to time, either objected to
WP(C) 3895/2017
or intimated the Hospital regarding pendency of criminal proceedings
against Dr. Arun Singh Chauhan for violation of the Act in the past.
13. It is contended that several inspections were carried out by the
Respondents but no irregularities were ever point out to the Hospital
in the functioning of the Radiology Department. On 15.01.2016, an
inspection of the Radiology Department was carried out, no
irregularity was pointed out, and even, at that point of time, it was not
pointed out to the Hospital about pendency of criminal proceedings
against Dr. Arun Singh Chauhan under the Act.
14. It is contended that on 08.02.2016, one lady claiming to be Ms.
Deepa came to the Department of the Radiology of the Hospital with
some prescription advising ultrasound of whole abdomen. It was not
disclosed to the receptionist while depositing the fee for the
ultrasound that she was pregnant. At the time when Ms. Deepa was
being examined by Dr. Arun Singh Chauhan, a raid was carried out by
the Officers of the respondent. Dr. Arun Singh Chauhan was arrested
and an FIR No.115/2016, Police Station Punjabi Bagh (West), Delhi,
was registered.
15. It is contended that it is later that the Hospital learnt that the
said Ms. Deepa was a decoy patient and had come with two members
of the inspecting team for inspecting a complaint made against Dr.
Arun Singh Chauhan for his indulgence in sex determination.
WP(C) 3895/2017
16. It is contended that though there was no involvement of the
Hospital in the alleged sex determination, the officers of the
Respondents, ignoring the fact that the Hospital is a Super-Speciality
Hospital and provides emergency medical services/treatment to its
patients, sealed all the six ultrasound machines of the Radiology
Department.
17. The Hospital, immediately, on 09.02.2016, terminated the
service of Dr. Arun Singh Chauhan.
18. By the impugned order dated 10.02.2016, the Respondent
suspended the registration of the six ultrasound machines of the
Hospital.
19. Show cause notice dated 10.02.2016 was issued to the Hospital
contending that the following deficiencies were noticed during
inspection on 08.02.2016:
(i) USG report missing with Form F scrutinized
(ii) No ID Proofs of patients attached
(iii) No USG thermal films attached with Form F
(iv) Findings of report are written on the back of
thermal film Some of Form F was unsigned
20. It is contended that since the decoy patient was claiming
stomachache, requested the ultrasound of whole abdomen, and had
not disclosed that she was pregnant, in terms of the requirements of
WP(C) 3895/2017
the Act, the patient was not required to fulfill any mandatory
formalities as are required in the case of a pregnant lady. The request
of the ultrasound of the whole abdomen was made without disclosing
the fact that she was pregnant or wanted sex determination of the
fetus. It is submitted that the Hospital cannot be fastened with any
liability on the said count.
21. By the impugned order dated 06.05.2016, the registration of the
Hospital has been cancelled and by the impugned order dated
25.01.2017, the appeal filed by the Hospital, has been rejected.
22. On 21.10.2016, final report was filed in FIR No.115/2016,
Police Station Punjabi Bagh (West), Delhi. It is contended that the
said FIR has been registered showing only Dr. Arun Singh Chauhan
and one Aakash as the accused. Attention is further drawn to the final
report, filed under Section 173 Cr.P.C. and FIR No.115/2016, Police
Station Punjabi Bagh (West), Delhi, to contend that only Dr. Arun
Singh Chauhan, one Aakash and Dr. Sapna have been arrayed as the
accused. It is pointed out that the Hospital has neither been arrayed as
an accused nor sought to be examined as a witness as per the final
report.
23. It is contended that the entire case has been registered against
Dr. Arun Singh Chauhan and the above-referred accused and no case
is made out against the Hospital.
WP(C) 3895/2017
24. It is further contended that the impugned orders have been
passed on the basis of an assumption that the Hospital was in
connivance with Dr. Arun Singh Chauhan, whereas, neither in the FIR
nor in the final report filed, has the Hospital been arrayed as an
accused and further no culpability of the Hospital has been found.
25. It is further contended that the officers of the Respondents have
been regularly inspecting the working of the Hospital as also its
Radiology Department and no infirmity or infraction had ever been
found or pointed out. Further, the Respondents, being informed of the
appointment of Dr. Arun Singh Chauhan as Head of the Radiology
Department, neither objected to his appointment nor intimated to the
Hospital about the pendency of criminal cases against Dr. Arun Singh
Chauhan for having violated the provisions of the Act.
26. It is contented that the Hospital is a Super-Speciality Hospital
and performs public function and in the absence of the ultrasound
machines, the entire functioning of the Hospital, is likely to come to a
standstill and is being hampered.
27. Reliance is placed on the decision in the case of ABHILASHA
GARG VS. APPROPRIATE AUTHORITY: 2010 (171) DLT 775 to contend
that sting operations and complaints do not attract the Act.
WP(C) 3895/2017
28. The Hospital also impugns the action of the Respondent in not
permitting the Hospital to purchase new ultrasound machines to
facilitate the functioning of the Hospital.
29. Per contra, the Respondents have contended that the object of
the Act is to ban pre-conception sex selection technique and misuse of
pre-natal diagnostic techniques for sex selective abortion and to
provide for regulation of such abortion.
30. It is contended that the data stored in the said six sealed
ultrasound machines are case property in pending criminal
proceedings and are of immense evidentiary value and, in case, the
said machines are de-sealed then it would cause grave prejudice and
irreparable damage to the pending criminal proceedings against the
petitioner.
31. It is contended that since the act is committed by use of
sonography machines and the machines are the most important
component in the crime, which could be repetitive in nature,
prevention is best achieved by sealing the machines and if the seals
were to be opened, it may facilitate the accused in repeating the crime.
32. Reliance is placed on judgment dated 23.01.2013 of the High
Court of Judicature at Bombay in WP (C) No.4399/2012 in the case of
DR. VANDANA RAMCHANDRA PATIL VS. STATE OF MAHARASHTRA to
contend that opening of the seal and release of the machines could not
WP(C) 3895/2017
be made mechanically and the Court must consider the effect and
impact of such an order.
33. It is contended that the Hospital had not denied that Dr. Arun
Singh Chauhan had conducted the gender test by using the registered
ultrasound machines of the Hospital. Dr. Arun Singh Chauhan, being
head of the Radiology Department, was in-charge of the Radiology
Department and, therefore, was responsible for conduct of the
business of the Hospital and all the concerned Departments of
Radiology.
34. It is contended that the Hospital has violated the provisions of
Section 26 of the Act read with Rule 18 framed thereunder, and,
accordingly, the Hospital is liable for the illegal act committed by Dr.
Arun Singh Chauhan and cannot escape from its liability.
35. It is further contended that in terms of Section 23(2) of the Act,
the Respondent initiates action against any registered medical
practitioner only when the charges are framed by the Court against the
medical practitioner and since, in the FIR lodged against Dr. Arun
Singh Chauhan in the year 2014, no charges had been framed, the
Respondent was not under an obligation to inform the Hospital about
the pendency of the case against Dr. Arun Singh Chauhan.
36. It is, in these circumstances, that the impugned orders dated
10.02.2016, 06.05.2016 and 25.01.2017 are sought to be defended.
WP(C) 3895/2017
37. It is contended that the decision, in the impugned Minutes of
the meeting dated 24.04.2017 (impugned in WP (C) 3895/2017), has
been taken because the Hospital has already violated the provisions
the Act and the Rules framed thereunder, hence, NOC for purchasing
new ultrasound machines is not liable to be granted.
38. By an interim order dated 13.02.2017, this Court had stayed the
operation of order dated 10.02.2016 (suspending the registration) and
order dated 06.05.2016 (cancelling the registration) and the
Respondents were directed to forthwith de-seal the ultrasound
machines of the Hospital.
39. After the order dated 13.02.2017 was passed, an application
was filed by the Respondents being CM No.7722/2017 on the ground
that the data in the machines might be required for the purposes of
investigation and trial in FIR No.115/2016, Police Station Punjabi
Bagh (West), Delhi.
40. It is noticed that the FIR was registered on 08.02.2016 and the
final report was filed on 21.10.2016, no efforts were made by the
Investigating Officer to extract the data contained in the Hard Disks of
the ultrasound machines. When this was pointed out to learned
counsel for the Respondent, an application was filed by the
Respondents contending that the data in the machines might be
required for the purposes of investigation and trial in the said FIR
No.115/2016, Police Station Punjabi Bagh (West), Delhi.
WP(C) 3895/2017
41. No steps were taken by the Investigating Officer to extract the
data contained in the ultrasound machines or to even rely upon the
said data at the time of investigation and filing of the final report. The
Investigating Officer was put to notice by order dated 27.02.2017. It
is only on 21.03.2017 that the Investigating Officer removed the Hard
Disks from the ultrasound machines. It is still not clear as to whether
the data extracted from the ultrasound machines has been forensically
examined or relied upon as evidence in Case FIR No.115/2016, Police
Station Punjabi Bagh (West), Delhi.
42. For the purposes of deciding the controversy at hand, it would
be expedient to examine some of the relevant provisions of the Act
and the Rules.
43. Sections 4 to 6 of the Act read as under:
"4. Regulation of pre-natal diagnostic techniques.- On
and from the commencement of this Act,--
1. no place including a registered Genetic
Counselling Centre or Genetic Laboratory or Genetic
Clinic shall be used or caused to be used by any person
for conducting pre-natal diagnostic techniques except for
the purposes specified in clause (2) and after satisfying
any of the conditions specified in clause (3);
2. no pre-natal diagnostic techniques shall be
conducted except for the purposes of detection of any of
the following abnormalities, namely:-- (i) chromosomal
abnormalities; (ii) genetic metabolic diseases; (iii)
haemoglobinopathies; (iv) sex-linked genetic diseases;
WP(C) 3895/2017
(v) congenital anomalies; (vi) any other abnormalities or
diseases as may be specified by the Central Supervisory
Board;
3. no pre-natal diagnostic techniques shall be used or
conducted unless the person qualified to do so is satisfied
for reasons to be recorded in writing that any of the
following conditions are fulfilled, namely:--
(i) age of the pregnant woman is above thirty-five years;
(ii) the pregnant woman has undergone of two or more
spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially
teratogenic agents such as drugs, radiation, infection or
chemicals;
(iv) the pregnant woman or her spouse has a family
history of mental retardation or physical deformities such
as, spasticity or any other genetic disease;
(v) any other condition as may be specified by the
Central Supervisory Board;
Provided that the person conducting ultrasonography on
a pregnant woman shall keep complete record thereof in
the clinic in such manner, as may be prescribed, and any
deficiency or inaccuracy found therein shall amount to
contravention of provisions of section 5 or section 6
unless contrary is proved by the person conducting such
ultrasonography;
4. no person including a relative or husband of the
pregnant woman shall seek or encourage the conduct of
any pre-natal diagnostic techniques on her except for the
purposes specified in clause (2).
WP(C) 3895/2017
5. no person including a relative or husband of a
woman shall seek or encourage the conduct of any sex-
selection technique on her or him or both.
5. Written consent of pregnant woman and
prohibition of communicating the sex of foetus.
1. No person referred to in clause (2) of section 3
shall conduct the pre-natal diagnostic procedures
unless-- (a) he has explained all known side and after
effects of such procedures to the pregnant woman
concerned;
(b) he has obtained in the prescribed form her written
consent to undergo such procedures in the language
which she understands; and
(c) a copy of her written consent obtained under
clause (b) is given to the pregnant woman.
2. No person including the person conducting pre-
natal diagnostic procedures shall communicate to the
pregnant woman concerned or her relatives or any other
person the sex of the foetus by words, signs or in any
other manner.
6. Determination of sex prohibited.- On and from
the commencement of this Act,--
(a) no Genetic Counselling Centre or Genetic
Laboratory or Genetic Clinic shall conduct or cause to
be conducted in its Centre, Laboratory or Clinic, pre-
natal diagnostic techniques including ultrasonography,
for the purpose of determining the sex of a foetus;
(b) no person shall conduct or cause to be conducted
any pre-natal diagnostic techniques including
WP(C) 3895/2017
ultrasonography for the purpose of determining the sex
of a foetus;
(c) no person shall, by whatever means, cause or
allow to be caused selection of sex before or after
conception.
44. The scheme of the Act as apparent from Sections 4 to 6
of the Act, is to prohibit the conduct of pre-natal diagnostics
except for the detection of specified abnormalities. The
diagnostics for detection of the specified abnormalities is also
subject to the qualified person being satisfied that the
prescribed conditions are fulfilled and records reasons. It is
further subject to completion of the formalities of filling up of
the prescribed forms and obtaining requisite consent.
45. The case against the Hospital as per the show cause
notice dated 10.02.2016 is that during sting operation a decoy
patient named Deepa alias Jyoti with team members of
Haryana .lead by Dr Rakesh Mehra Nodal Officer/Dy C.S.
Jhajjar came to MGS Hospital where as per her statement she
was pregnant and her sex determination was done by Dr A.S.
Chauhan radiologist of the MGS Hospital, Rohtak Road, West
Punjabi Bagh, New Delhi-110026, cash receipt was found.
Form F was not filled, entry in ANC register found, No Id proof
found. No referral slip. The patient advised to contact for her
report at 5 PM along with sweets as her ultrasound report was
favorable i.e. having a male baby, as per statement recorded by
WP(C) 3895/2017
the decoy patient Deepa alias Jyoti.
46. The allegation of having conducted the sex
determination test as per the Show cause notice, the FIR and the
Final report filed is against Dr. Arun Singh Chauhan in
connivance with the other accused. There is no allegation
against the hospital. Neither the hospital nor any staff/officer of
the Hospital, other than Dr Arun Singh Chauhan has been
arrayed as an accused. The officers of the Hospital have not
even been cited as witnesses.
47. The case of the prosecution is that the decoy patient was
advised by one Dr. Sapna to get a slip for whole abdomen
ultrasound prepared from the OPD of the Hospital. Some
identification mark was put on the hands of the decoy patient,
which were to be shown to Dr Arun Singh Chauhan, who
would then conduct the test.
48. There is no allegation that the staff of the Hospital other
than Dr Arun Singh Chauhan was aware of the sex
determination test proposed to be conducted. It is not even the
case of the Respondent that the decoy customer disclosed to the
staff of the Hospital that she was pregnant. The case is that she
had hidden the fact that she was pregnant from the staff of the
hospital and complaining of a stomach pain got an examination
slip prepared for getting a whole abdomen test done.
WP(C) 3895/2017
49. Insofar as Dr. Arun Singh Chauhan is concerned, the case
of the Hospital is that at the time of appointment of Dr Arun
Singh Chauhan as the Head of the Department of Radiology,
intimation was sent to the Respondents . Even though an FIR
had been lodged against Dr. Arun Singh Chauhan for having
earlier violated the provisions of the Act, the Hospital was not
intimated about the same.
50. Section 20 of the Act, under which the impugned action
has been taken reads as under:
"20. Cancellation or suspension of registration.-
1. The Appropriate Authority may suo moto, or on
complaint, issue a notice to the Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic to show
cause why its registration should not be suspended or
cancelled for the reasons mentioned in the notice.
2. If, after giving a reasonable opportunity of being
heard to the Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic and having regard to the
advice of the Advisory Committee, the Appropriate
Authority is satisfied that there has been a breach of the
provisions of this Act or the rules, it may, without
prejudice to any criminal action that it may take against
such Centre, Laboratory or Clinic, suspend its
registration for such period as it may think fit or cancel
its registration, as the case may be.
3. Notwithstanding anything contained in sub-
sections (1) and (2), if the Appropriate Authority is, of
the opinion that it is necessary or expedient so to do in
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the public interest, it may, for reasons to be recorded in
writing, suspend the registration of any Genetic
Counselling Centre, Genetic Laboratory or Genetic
Clinic without issuing any such notice referred to in sub-
section (1).
51. In terms of Section 20 of the Act, after complying with
the principles of natural justice, the appropriate authority is
empowered to suspend the registration of the Centre,
Laboratory or Clinic for such period as it may think fit or
cancel the registration.
52. In the present case, initially the registration of the
Hospital was suspended and subsequently has been cancelled.
53. Section 20 of the Act does not mandate that in all
circumstances, the registration has to be cancelled. Said section
contemplates that if the Appropriate Authority is satisfied that
there has been a breach of the provisions of this Act or the
rules, it may, without prejudice to any criminal action that it
may take against such Centre, Laboratory or Clinic, suspend its
registration for such period as it may think fit or cancel its
registration, as the case may be. The expression used is ―may‖.
This implies that it is not mandatory that in all cases of
violation, the registration is to be cancelled. In appropriate
cases, the competent authority may need to resort to the
punishment of only suspension and may not need to impose the
punishment of permanent cancellation.
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54. This power of suspension and cancellation is without
prejudice to the criminal action that the competent authority
may take against the Centre, Laboratory or Clinic. In the
present case, as noticed above, no criminal action has been
taken or sought to be taken against the Hospital.
55. Section 23 of the Act which lays down the offences and
penalties for contravention of the Act reads as under:
23. Offences and penalties.- (1) Any medical geneticist,
gynaecologist, registered medical practitioner or any
person who owns a Genetic Counselling Centre, a
Genetic Laboratory or a Genetic Clinic or is employed in
such a Centre, Laboratory or Clinic and renders his
professional or technical services to or at such a Centre,
Laboratory or Clinic, whether on an honorary basis or
otherwise, and who contravenes any of the provisions of
this Act or rules made thereunder shall be punishable
with Act, 1994 & Amendments imprisonment for a term
which may extend to three years and with fine which may
extend to ten thousand rupees and on any subsequent
conviction, with imprisonment which may extend to five
years and with fine which may extend to fifty thousand
rupees.
2. The name of the registered medical practitioner
shall be reported by the Appropriate Authority to the
State Medical Council concerned for taking necessary
action including suspension of the registration if the
charges are framed by the court and till the case is
disposed of and on conviction for removal of his name
from the register of the Council for a period of five years
for the first offence and permanently for the subsequent
offence.
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3. Any person who seeks the aid of a Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic
or ultrasound clinic or imaging clinic or of a medical
geneticist, gynaecologist, sonologist or imaging
specialist or registered medical practitioner or any other
person for sex selection or for conducting pre- natal
diagnostic techniques on any pregnant women for the
purposes other than those specified in sub-section (2) of
section 4, he shall, be punishable with imprisonment for
a term which may extend to three years and with fine
which may extend to fifty thousand rupees for the first
offence and for any subsequent offence with
imprisonment which may extend to five years and with
fine which may extend to one lakh rupees.
4. For the removal of doubts, it is hereby provided,
that the provisions of sub-section (3) shall not apply to
the woman who was compelled to undergo such
diagnostic techniques or such selection.
56. Reading of Section 23 of the Act shows that in case of
contravention by a registered practitioner, on conviction, his name is
to be removed from the register of the Council for a period of five
years for the first offence and permanently for the subsequent offence.
This shows that the even in cases of medical practitioners, the
punishment is not a permanent removal on the first offence.
57. The scheme of the Act is not to impose the punishment of
permanent removal of the medical practitioner from the register of
council and cancellation of registration of the Centre, Laboratory or
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Clinic, in all cases. Discretion is granted to the competent authority to
exercise such power in appropriate cases.
58. The action of cancellation of registration of the Hospital, which
is a 100 bedded Multi Super-Speciality Hospital and claims to be
providing high quality services where ultrasound facilities are
required for the functioning of the various departments of the
Hospital, appears in the facts and circumstances of the case to be very
harsh.
59. It is not denied by the Respondents that the Hospital requires
ultrasound machines for the functioning of its various Departments to
diagnose ailments of the patients. The contention of the Hospital, that
in the Trauma Department, the ultrasound machines is required to
diagnose the free fluid and solid organ injury, heart attack,
breathlessness, acute pain in abdomen, sudden obstruction in urine,
blood vomiting, has not been denied. Similarly, the patients of the
pediatric, surgical, cardiac, respiratory, urology, orthopedics
departments are also dependent upon the Department of Radiology,
has not been controverted by the Respondents. Further, it is not denied
that one ultrasound machine is exclusively required in the department
of cardiology for diagnosis of patients suffering from heart attack /
cardiac arrest and likewise, a separate ultrasound machine is also
required for therapeutic i.e. plural fusion tapping from the lungs.
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60. The action of cancellation of the Registration, is very harsh and
virtually amounts to the entire functioning of the Hospital coming to a
stand still. This is more so, in view of the fact that there is no
allegation that in the past, the Hospital or its staff was involved in any
such violation and further no criminal proceedings have been initiated
or sought to be initiated against the Hospital and/or its officers and
staff. It may also be noted that when the Hospital informed the
Respondents that they had employed Dr. Arun Singh Chauhan as the
head of Radiology Department, the Respondents did not inform the
hospital about the case already pending against the said doctor.
61. In view of the facts as noticed hereinabove, the order of
cancellation of Registration is accordingly liable to be set aside.
62. The question then arises is as to whether the ultrasound
machines that have been sealed are liable to be de-sealed and released
to the Hospital.
63. Section 451 and 457 of the Code of Criminal Procedure, 1973
read as under:
" 451. Order for custody and disposal of property
pending trial in certain cases.- When any property
is produced before any Criminal Court during any
inquiry or trial, the Court may make such order as
it thinks fit for the proper custody of such property
pending the conclusion of the inquiry or trial, and,
if the property is subject to speedy and natural
decay, or if it is otherwise expedient so to do, the
Court may, after recording such evidence as it
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thinks necessary, order it to be sold or otherwise
disposed of.
Explanation.- For the purposes of this section,
―property‖ includes -
(a) property of any kind or document which is
produced before the Court or which is in its
custody,
(b) any property regarding which an offence
appears to have been committed or which
appears to have been used for the
commission of any offence.
***** ***** *****
457. Procedure by police upon seizure of property.
(1) Whenever the seizure of property by any police
officer is reported to a Magistrate under the
provisions of this Code, and such property is not
produced before a Criminal Court during an
inquiry or trial, the Magistrate may make such
order as he thinks fit respecting the disposal of
such property or the delivery of such property to
the person entitled to the possession thereof, or if
such person cannot be ascertained, respecting the
custody and production of such property.
(2) If the person so entitled is known, the Magistrate
may order the property to be delivered to him on
such conditions (if any) as the Magistrate thinks fit
and if such person is unknown, the Magistrate may
detain it and shall, in such case, issue a
proclamation specifying the articles of which such
property consists, and requiring any person who
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may have a claim thereto, to appear before him
and establish his claim within six months from the
date of such proclamation.‖
64. In terms of section 451 CrPC, the Criminal Court is empowered
to make such orders as it thinks fit for the proper custody of such
property pending the conclusion of the inquiry or trial. In terms of
section 457 of the CrPC whenever the seizure of property by any
police officer is reported to a Magistrate and such property is not
produced before a Criminal Court during an inquiry or trial, the
Magistrate may make such order as he thinks fit respecting the
disposal of such property or the delivery of such property to the
person entitled to the possession thereof, or if such person cannot be
ascertained, respecting the custody and production of such property.
65. As noticed above, apart from sealing of the six ultrasound
machines by the Respondents, no action was taken by the
Investigating Officer, of the FIR No.115/2016, Police Station Punjabi
Bagh (West), Delhi with regard to the said ultrasound machines. It
was only after this court directed that the Hard Disks were extracted
from the said machines. By the time the Hard Disks were removed,
the charge sheet had already been filed. It is still not clear as to
whether the said Hard Disks or the data comprised therein or the
ultrasound machines have been relied upon in the said case. It may
also be noticed that the Hospital and/or its officers and staff are
neither named as accused nor cited as witnesses in the said FIR.
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66. The Supreme Court of India in SUNDERBHAI AMBALAL DESAI V.
STATE OF GUJARAT, (2002) 10 SCC 283 held as under:
―7. In our view, the powers under Section 451 CrPC
should be exercised expeditiously and judiciously. It
would serve various purposes, namely:
1. owner of the article would not suffer because of its
remaining unused or by its misappropriation;
2. court or the police would not be required to keep
the article in safe custody;
3. if the proper panchnama before handing over
possession of the article is prepared, that can be
used in evidence instead of its production before
the court during the trial. If necessary, evidence
could also be recorded describing the nature of the
property in detail; and
4. this jurisdiction of the court to record evidence
should be exercised promptly so that there may not
be further chance of tampering with the articles.
***** ***** *****
21. However, these powers are to be exercised by the
Magistrate concerned. We hope and trust that the
Magistrate concerned would take immediate action for
seeing that powers under Section 451 CrPC are properly
and promptly exercised and articles are not kept for a
long time at the police station, in any case, for not more
than fifteen days to one month. This object can also be
achieved if there is proper supervision by the Registry of
the High Court concerned in seeing that the rules framed
by the High Court with regard to such articles are
implemented properly.
(emphasis supplied) ‖
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67. A coordinate bench of this court in MANJIT SINGH VERSUS
STATE 2014 (214) DLT 646 relying upon the decision of the Supreme
Court in SUNDERBHAI AMBALAL DESAI (supra) and other decisions
summarised the principles of law as under:
"Summary of principles of law
The following principles emerge from the above
judgments:
54. The properties seized by the police during
investigation or trial have to be produced before the
competent Court within one week of the seizure and the
Court has to expeditiously pass an order for its custody
in terms of the directions of the Supreme Court
in Basavva Kom Dyamangouda Patil v. State of
Mysore ((1977) 4 SCC 358), Sunderbhai Ambalal
Desai v. State of Gujarat((2002) 10 SCC
283), Sunderbhai Ambalal Desai v. State of
Gujarat ((2002) 10 SCC 290) and General Insurance
Council v. State of A.P. ((2010) 6 SCC 768).
55. The Court has to ensure that the property seized by
the police should not be retained in the custody of the
Court or of the police for any time longer than what is
absolutely necessary and in any case, for not more than
one month.
56. If the property is subject to speedy and natural
decay or if it is otherwise expedient to do so, the Court
may, after recording such evidence as it thinks necessary,
order it to be sold or otherwise disposed of.
57. The expeditious and judicious disposal of a case
property would ensure that the owner of the article would
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not suffer because of its remaining unused or by its
misappropriation; Court or the police would not be
required to keep the article in safe custody; and onerous
cost to the public exchequer towards the cost of storage
and custody of the property would be saved.
Time limit for release
58. Whenever a property is seized by the police, it is
the duty of the seizing officer/SHO to produce it before
the concerned Magistrate within one week of the seizure
and the Court, after due notice to the concerned parties,
is required to pass an appropriate order for its disposal
within a period of one month.‖
68. This court in MANJIT SINGH (supra) has laid down that the
properties seized by the police during investigation or trial have to be
produced before the competent Court within one week of the seizure
and the Court has to expeditiously pass an order for its custody in
terms of the directions of the Supreme Court in BASAVVA KOM
DYAMANGOUDA PATIL V. STATE OF MYSORE (supra), SUNDERBHAI
AMBALAL DESAI V. STATE OF GUJARAT (supra 1), SUNDERBHAI
AMBALAL DESAI V. STATE OF GUJARAT (supra 2) and GENERAL
INSURANCE COUNCIL V. STATE OF A.P. (supra).
69. The Court has to ensure that the property seized by the police
should not be retained in the custody of the Court or of the police for
any time longer than what is absolutely necessary and in any case, for
not more than one month. It has further been directed that whenever a
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property is seized by the police, it is the duty of the seizing
officer/SHO to produce it before the concerned Magistrate within one
week of the seizure and the Court, after due notice to the concerned
parties, is required to pass an appropriate order for its disposal within
a period of one month.
70. Further, the impugned Minutes of meeting dated 24.04.2017 of
the Respondent (impugned in W.P.(C) 3895/2017), wherein, the
Hospital has been declined 'no objection' for purchasing new
ultrasound machines and for permission to the Hospital to use the
same under the Certificate of Registration dated 09.10.2012 record as
under:
―The file placed before the District Advisory Committee
to permission for purchase of New Ultrasound Machine
in the Hospital. District Advisory Committee has
unanimously recommended that since the applicant has
already violated the provisions and rules under PC &
PNDT Act 1994 hence NOC for purchasing a new
Ultrasound machine may not be allowed.‖
71. The District Advisory Committee (DAC) has not taken into
account the fact that no case has been filed against the Hospital for
having conducted the alleged examination. The DAC has also not
considered that the Hospital and/or its officers and staff are neither
named as accused nor cited as witnesses in the FIR registered. No
charge sheet has also been filed against the Hospital and/or its
officers/staff for having breached any provision of the Act.
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72. The DAC has also not noticed, that the provisions of section 20
of the Act do not mandate that in all cases, the registration has to be
cancelled. If it is not mandatory to cancel the registration in all cases,
then where is the question of denial of NOC for purchasing a new
ultrasound machine merely on the ground that the Hospital has
violated the provisions of the Act and the Rules.
73. The DAC has completely lost sight of the fact that the Hospital
is a 100 bedded Multi Super-Speciality Hospital and it is not possible
for a hospital to function without having the facilities of ultrasound.
Today ultrasound examination has become the very basic and
mandatory diagnostic technique for examination and treatment of
nearly all ailments.
74. Further in today's day and time, in the absence of availability of
adequate government medical facilities, private hospitals provide
requisite medical facilities to the public. The Hospitals in that sense
render public service.
75. Orders of the nature passed by the Respondent have the effect
of depriving the general public of medical facilities that a 100 bedded
Multi Super-Speciality Hospital has to offer. This becomes more
egregious in view of the fact that no case has been filed against the
Hospital and/or its officers/staff for having violated the provisions of
the Act and further the Respondents themselves failed to inform the
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Hospital about the pending case against Dr. Arun Singh Chauhan for
having, in the past, violated the provisions of the act.
76. The judgment in the case of DR. VANDANA RAMCHANDRA PATIL
(Supra), relied upon by learned counsel for the Respondents is not
applicable in the facts of the present case. In the present case, as
noticed above, there is no allegation against the Hospital or against
any of the officers of the petitioner. No criminal proceedings have
been have been filed against them. FIR has been filed only against Dr.
Arun Singh Chauhan and other persons, not connected with the
Hospital.
77. In view of the above, the Writ Petitions are disposed of as
under:
77.1 the orders (i) dated 10.02.2016 suspending the
registration of the Petitioner Hospital, (ii) dated
06.05.2016, whereby the recommendations of the District
Advisory Committee for cancellation of the registration
of the Hospital were accepted (iii) dated 25.01.2017
dismissing the appeal filed by the Hospital under Section
21 of the Act and (iv) the decision recorded in the
Minutes of Meeting dated 24.04.2017, are hereby set
aside; and
77.2 the registration of the Hospital under the Act dated
09.10.2012 is hereby restored; and
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77.3 the period between 10.02.2016 till date is treated to be
the period of suspension under section 20(2) of the Act;
and
77.4 the concerned magistrate before whom the proceedings in
respect of FIR No.115/2016, Police Station Punjabi Bagh
(West), Delhi are pending, is directed to comply with the
directions of the Supreme Court in SUNDERBHAI
AMBALAL DESAI (supra) and of this court in MANJIT
SINGH (Supra) and pass an appropriate order with regard
to the six ultrasound machines that have been sealed by
the Respondents ; and
77.5 in the event the concerned magistrate does not direct the
de-sealing of the ultrasound machines and/or does not
direct handing over of custody of the said ultrasound
machines to the petitioner, within a period of one month,
the Hospital shall be deemed to have been granted the
permission for procuring new ultrasound machines under
the existing registration certificate dated 09.10.2012,
subject to the Hospital complying with the requisite
formalities;
78. It is clarified that this judgment is without prejudice to the right
of the Respondents to initiate criminal proceedings, under the Act,
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against the Hospital and/or its officers/staff, if permissible in law and
the defence of the Hospital and its officers/staff to such proceedings.
79. The direction of treating the period from 10.02.2016 until date
as the period of suspension under section 20(2) of the Act is not to be
taken as any finding of culpability on the part of the Hospital or its
officers.
80. This judgment is also without prejudice to the criminal
proceedings already initiated, pursuant to FIR No.115/2016, Police
Station Punjabi Bagh (West), Delhi and the defence of Dr Arun Singh
Chauhan and other accused in the said proceedings.
81. There shall be no orders as to costs.
SANJEEV SACHDEVA, J
OCTOBER 12, 2017
St/HJ
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