Madras High Court
Dr.Shivani Balaram vs Appropriate Authority on 21 November, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.No. 19948 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.11.2023
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.O.P.No. 19948 of 2021
and
Crl.M.P.Nos.10846 & 10847 of 2021
Dr.Shivani Balaram .... Petitioner
Vs
Appropriate Authority,
For Sub District under
Pre-conception & Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse)
Act (Central Act) No.57 of 1994 &
The Chief Medical Officer,
Kurinjipadi, Cuddalore District. .... Respondent
Prayer: Criminal Original petition filed under Section 482 of Code of
Criminal Procedure, to call for the records of C.C.No.207 of 2017
pending on the file of Principal District Munsif cum Judicial Magistrate,
Neyveli and quash the same as against the petitioner herein.
For Petitioner : Mr.Manoj Pandian
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
https://www.mhc.tn.gov.in/judis
1/13
Crl.O.P.No. 19948 of 2021
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in C.C.No.207 of 2017 on the file of the District Munsif
cum Judicial Magistrate, Neyveli.
2. Heard the learned counsel appearing on either side and
perused the materials available on record.
3. The case of the prosecution is that the respondent filed a
private complaint and the same has been taken cognizance by the Trial
Court in C.C.No.207 of 2017 for the offence under Section 28(1) of the
Pre-conception & Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act 1994 and Pre-conception & Pre-Natal
Diagnostic Techniques (Regulation and Prevention of Misuse) Rules
1996 and for the offences under Section 3B, 18(1), (5) and Rule 3A (1)
of PCPNDT Act Rules 1996 punishable under Sections 23(1) of the
Pre-conception & Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act (Central Act) No.57 of 1994.
https://www.mhc.tn.gov.in/judis
4. The crux of the complaint is that on 27.12.2016, the
respondent, along with Joint Director of Medical and Rural Health
Services, Cuddalore, State Inspection team members and Sub District
Appropriate Authority, Kurinjipadi, had inspected the private pharmacy,
viz., Sun Pharmacy, situated at Main Bazar, Block – 19, Neyveli and
seized an unregistered Ultra Sound Machine. The said facility is not
registered by the Appropriate Authority under PCPNDT Act to operate
Ultra Sound Machine in the inspected place viz., Sun Phramacy, Neyveli.
It is in violation of the provisions under Section 3B, 18(1), (5) of
PCPNDT Act 1994 and Rules 3(A) 1 of PCPNDT Rules 1996.
5. The first accused is the owner of the private pharmacy,
which was found in possession of Ultra Sound Machine, without any
license, in an unregistered facility. On enquiry with staff members of
Sun Pharmacy and based on the statement recorded by them, it came to
light that the second accused in the Sun Pharmacy had used the above
seized Ultra Sound Machine in her consulting room at Main Bazar,
Block – 19, Neyveli. She had obtained license to operate the Ultra
Sound Machine in the facility at No.15, Gandhi Nagar, Neyveli.
https://www.mhc.tn.gov.in/judis
Therefore, she violated the provision under Sections 3(3) and 18(5) of
the PCPNDT Act. Hence, the complaint.
6. The learned counsel appearing for the petitioner would
submit that there are totally two accused, in which the petitioner is
arrayed as A2. The first accused died. The petitioner is a Doctor by
profession and qualified as MBBS., DGO., She is one of the consulting
Doctors of Sun Pharmacy, situated at No.3/5, Main Bazzar, Block-19,
Neyveli. The petitioner was also working as a consulting Doctor at Sri
Janani Scan Centres at No.15, Gandhi Nagar Church Road, Neyveli. She
had purchased Ultra Sound Machine in the brand name of “Welcare” in
the year 2012 and also obtained license to use the machine for a period
from 18.12.2012 to 17.12.2017. However, in the year 2014, it was found
defective and was not in good working condition. Therefore, she
purchased a new machine on 22.08.2015. The old defective machine was
packed and kept ready to be taken by the Global Imaging Systems, from
whom Sun Pharmacy had purchased the said machine. It was kept in
dismantled position and sealed in a carton box.
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7. In the meanwhile, the respondent made inspection.
Therefore, it was not in working condition. There is absolutely no
material to show that the petitioner is working in all three pharmacies of
the first accused. After receipt of the show cause notice, the petitioner
submitted a detailed reply on 06.01.2017 stating that it was already sold
out and it was not in working condition. It was kept in a sealed carton
box. She never practiced in the said machine in the premises of the first
accused pharmacy.
8. On receipt of the reply, the Appropriate Authority did not
pass any orders as contemplated under Section 17(a) of the PCPNDT
Act. It is a fatal to the case of the prosecution. No provision is attracted
as against the petitioner. All the contravention, were allegedly made
only by the first accused. Insofar as the petitioner is concerned, she has
nothing to do with the contravention as alleged by the prosecution. The
only allegation as against the petitioner is that she practiced the said
machine without any license. There is no material produced by the
prosecution in order to attract all the contravention as alleged by the
prosecution.
https://www.mhc.tn.gov.in/judis
9. The learned Government Advocate (Crl.Side) appearing
for the respondent submitted that on investigation, it was found that the
machine in question was kept in the first accused pharmacy. Admittedly,
the petitioner is one of the consulting Doctors at Sun Pharmacy. She is
also qualified with M.B.B.S., D.G.O. Though she had license to practice
the said machine at Sri Janani Scan Centre, she had no license to practice
the machine at 3/5, Main Bazzar, Block – 19, Neyveli – 3. That apart,
the entire trial has been over. At the time of deliver of judgment, the
Trial Court noticed that no charges were framed. Therefore, the Trial
Court has framed the charges. Hence, this petition.
10. There are totally two accused, in which, the petitioner
is arrayed as second accused. She is qualified with M.B.B.S., D.G.O.
She has license to use the Ultra Sound Machine at Sri Janani Scan Centre
at No.15, Gandhi Nagar Church Road, Neyveli. The respondent and
other team inspected the premises of the first accused and found the
unregistered Ultra Sound Machine. The first accused is the owner of the
pharmacy and he was in possession of the Ultra Sound Machine, thereby,
the accused contravened the provision under Section 3B, 18(1), (5) of
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PCPNDT Act 1994 and Rule 3(A) 1 of PCPNDT Act Rules 1996. It is
relevant to extract the provision under Section (1) of the PCPNDT Act
1994, which is as follows :
“Section 18(1) “No person shall open any
Genetic Counseling Centre, Genetic Laboratory or
Genetic Clinic, including Clinic, Laboratory or 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 the commencement
of the Pre-natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Amendment Act 2002 unless such
centre, Laboratory or clinic is duly registered under the
Act”.
11. Admittedly, the Ultra Sound Machine was in
possession of the first accused, though the petitioner was one of the
consulting Doctor of the Sun Pharmacy. Therefore, the contravention of
Section 18(1) is not applicable to the petitioner. It is relevant to extract
the provision under Section 18(5) of the said Act is as follows :
“Section 18(5) – No Genetic Counseling
Center, Genetic Laboratory or Genetic Clinic shall be
registered under this Act unless, the Appropriate
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Authority is satisfied that such Center, Laboratory or
Clinic is in position to provide such facilities, maintain
such equipment and standards as may be prescribed”.
12. It is also applicable only as against the first accused and
not against the petitioner, who was a consulting Doctor of Sun
Pharmacy. A perusal of the complaint reveals that the petitioner has
been implicated as an accused only based on the statement recorded
from the staff members of Sun Pharmacy, Neyveli. Whereas, the
respondent failed to cite any one of the employee as witness to the
complaint. In fact, no statement was recorded from any of the employee.
Whereas, only on the statement recorded from the staff members of Sun
Pharmacy, the petitioner has been implicated as an accused as if she used
the said Ultrasound Machine in her consulting room in Sun Pharmacy.
13. The specific case of the petitioner is that she has license
to use the Ultrasound Machine in Sri Janani Scan Centres, No.15,
Gandhi Nagar Church Road, Neyveli. However, the said machine got
repaired and she sold out the said machine in favour of Global Imaging
System. In the meanwhile, it was kept in Sun Pharmacy in a sealed box,
https://www.mhc.tn.gov.in/judis
that too at a dismantled position. There is no evidence to show that the
machine was under working condition and the petitioner is practicing
with the said machine.
14. On receipt of the show cause notice, the petitioner
submitted a detailed reply on 06.01.2017. However, after receipt of the
reply from the petitioner for the show cause notice, the authority
concerned did not pass any order. As per Section 17A of the Act, the
appropriate authority shall have the powers to summon any person who
is in possession of any information relating to violation of the provision
of this Act or the Rules. However, no action has been taken by the
appropriate authority as against the petitioner. It shows that the reply
submitted for the show cause notice was accepted by the authority
concerned.
15. In this regard, the learned counsel appearing for the
petitioner relied upon the Judgment of the Hon'ble High Court of
Telugana in Crl.O.P.No.15649 and 15793 of 2014, dated 17.02.2022,
held as follows :-
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“27. The role and power of Appropriate
Authority is clearly mentioned under Sectin 17 and 17-A
of the PNDT Act. By the contents of those provisions, it
is clear that the role of the Appropriate Authority and the
part to be played by it is exhaustive and it cannot just
receive information in the form of a complaint or just act
suo motu and lodge a complaint without proper
verification. It is not out of place to mention that if
proper enquiry is conducted and the case is investigated
into, the collection of material would even help the
Appropriate Authority to place sufficient proof before the
Court of law and to get the Accused convicted. But
without doing so i.e, without exercising the power of
enquiry, without enquiring into the allegations levelled
and the information received, if the complaint is lodged
and criminal proceedings are initiated, the same may not
yield the desired result of the Appropriate Authority.
Further, unhesitatingly, it can be said that the person
roped in as an accused would be put to enormous loss
and hardship. That is not the intention of the Legislature
which has passed the PNDT Act.”
16. Thus, it is clear that the role of the Appropriate
Authority and the part to be played by it is exhaustive and it cannot be
just receive information in the form of a complaint or just act suo motu
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and lodge a complaint without proper verification. Therefore, in order to
prevent abuse of process of Court and also to secure the ends of justice,
this Court would not hesitate to invoke the power under Section 482 of
Cr.P.C. to quash the entire proceedings on the allegations made in the
compliant if it failed to make out a prima-facie case to proceed as against
the petitioner.
17. In view of the above, the proceedings in C.C.No.207 of
2017 pending on the file of Principal District Munsif cum Judicial
Magistrate, Neyveli, is hereby quashed. Accordingly, this Criminal
Original Petition stands allowed.
21.11.2023
Internet: Yes
Index : Yes/No
Lpp
https://www.mhc.tn.gov.in/judis
To
1. The Principal District Munsif cum Judicial Magistrate,
Neyveli
2. The Appropriate Authority,
For Sub District under
Pre-conception & Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse)
Act (Central Act) No.57 of 1994 &
The Chief Medical Officer,
Kurinjipadi, Cuddalore District.
3.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
G.K.ILANTHIRAIYAN. J,
Lpp
and Crl.M.P.No. 5908 & 5909 of 2021
21.11.2023
https://www.mhc.tn.gov.in/judis
