Section 102 provides that when continued
retention of the property seized in police custody is
not necessary for the purpose of investigation, the
property might be given in custody of any person on
his executing a bond. Section 457(1) provides that
whenever the seized property is not produced before
the Court during the enquiry or trial, the Magistrate
might make such order as he thinks fit for disposal of
such property or delivery of such property to the
person entitled to possession thereof etc.. In these
cases, admittedly, the ultrasound machines are not
produced before the Magistrate. Their retention in
sealed condition is not necessary for the purpose of
investigation. It is clear from the allegations that
no offence is alleged in respect of use or misuse of (10)
the ultrasound machines. So, the learned Magistrate
was right in holding that such machines should be
handed over to the applicants in unsealed condition.
In other words, he directed removal of the seal from
the machines. There is nothing illegal in these
orders.
BOMBAY HIGH COURT
State of Maharashtra v Dr Bhandari Prakash Mansukhlal
Coram: HON'BLE MR. JUSTICE A.V. NIRGUDE
Citation: 2009 ALL M R(CRI)2677
Dated: 20th April 2009
1. By consent, these revision applications are heard
finally and are disposed of by this common judgment.
2. On 8th August, 2007 the complainant, who is the
appropriate authority appointed under Section 17 of
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994, (Hereinafter
referred to as the ) visited the respondents
Diagnostic Centres and it was revealed to him that (3)
there were contravention of provisions of the said
Act. Therefore, the complainant seized and sealed the
record and the ultrasound machines and equipment which
were used by the respondents for the purpose of
determination of the sex fetus. The complainant, then
filed complaints before the learned Judicial
Magistrate, First Class, Karjat. The criminal cases
are still pending.
3. The respondents, then applied seeking permission
to de seal the ultrasound Machines and allow them to
use the same.
4. After hearing both the sides, the learned JMFC,
Karjat, directed the complainant to open the seal put
on the ultrasound machines and hand over them to the
respondents. These orders are challenged in these
revision applications.
5. Admittedly, before the complaints were lodged, the
respondents had registration of Genetic Clinic having
prenatal diagnostic techniques approved for using
ultrasound machine. The certificate of registration
were issued in favour of the respondents under Section
19 of the said Act. (4)
6. When, the complainant as said above, visited the
applicants Clinics and took inspection of the record
of the Clinics, he found various irregularities and
violation of the provisions of the said Act. The
complainant alleged that contrary to the provisions of
the said Act, the respondents had kept with them, the
key of the room where the Ultrasound machines were
kept. It was further revealed that the respondents
had not kept record in OPD section of the Clinics and
further that the respondents had not obtained the
consent letters in appropriate format. The
complainant found that the violation mentioned above,
would amount to an offence under Section 29(1) and (2)
and Rule 9(1), 10(1), 17(2) of the said Act and Rules
made thereunder. The complainant, thereafter, sealed
the ultrasound machines and recorded it in the
panchanamas. In view of this action, the applicants
were unable to run their Clinics and were unable to
use the ultrasound machines. Besides sealing of these
machines, the appropriate Authority appointed under
Section 17 of the said Act, passed an order under
Section 20 of the said Act, suspending the
registration of the Genetic Clinics of the
respondents. (5)
7. The respondents have so far not filed appeal under
Section 21 against the order suspending the
registration of their Clinics. They moved an
applications to remove the seals put on their
ultrasound machines.
8. The learned Magistrate, allowed the applications
holding that the seals put on the ultrasound machines,
should be opened in view of the provisions of Section
45 of the said Act, read with Section 102 of the Code
of Criminal Procedure, 1973.
9. The question is whether, this finding is correct.
The answer is in affirmative.
10. The learned Magistrate, has rightly placed
reliance on Section 30(2) of the said Act, which reads
as under :
"
(1) 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 authorised 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 (6)
Genetic Counselling Centre, Genetic
Laboratory, 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 this Act.
(2) The provisions of the Code of
Criminal Procedure, 1973 (2 of 1974)
relating to searches and seizures
shall, so far as may be, apply to every
search or seizure made under this Act."
11. Section 30 of the said Act read with Rule 12 of
the Pre-Conception and Pre-Natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996
(hereinafter referred to as, " ) gives power
to the Appropriate Authority to search and seize the
record etc..
12. Rule 12 of the Rules 1996, reads as under:
"
(1) The Appropriate Authority
or any officer authorised in this
behalf may enter and search at all
reasonable times any Genetic
Counselling Centre, Genetic
Laboratory, Genetic Clinic, Imaging
Centre or Ultrasound Clinic in the
presence of two or more independent
witnesses for the purposes of search
and examination of any record,
register, document, book, pamphlet,
advertisement, or any other material
object found therein and seal and
seize the same if there is reason to
believe that it may furnish evidence
of commission of an offence punishable (7)
under the Act.
In these rules-
(1) "Genetic Laboratory/Genetic
Clinic/Genetic Counselling Centre"
would include an ultrasound
centre/imaging centre/nursing
home/hospital/institute or any other
place, by whatever name called, where
any of the machines or equipments
capable of selection of sex before or
after conception or performing any
procedure technique or test for
pre-natal detection of sex of foetus,
is used;
(2) "material object" would include
records, machines and equipments; and
(3) "seize" and "seizure" would
include "seal" and "sealing"
respectively."
. However, Subsection (2) of Section 30 makes it
clear that the provisions of Cr.P.C. relating to
searches and seizures shall, so far as may be, apply
to every search or seizure made under this Act.
13. The relevant provisions in Code of Criminal
Procedure, 1973 are under Sections 102 and 457. They
are as under:
(1) Any police officer may seize any
property which may be alleged or
suspected to have been stolen, or
which may be found under circumstances
which create suspicion of the (8)
commission of any offence.
(2) Such police officer, if
subordinate to the officer in charge
of a police station, shall forthwith
report the seizure to that officer.
(3) Every police officer acting under
sub-section (1) shall forthwith report
the seizure to the Magistrate having
jurisdiction and where the property
seized is such that it cannot be
conveniently transported to the Court
( or where there is difficulty in
securing proper accommodation for the
custody of such property, or where the
continued retention of the property in
police custody may not be considered
necessary for the purpose of
investigation), he may give custody
thereof to any person on his executing
a bond undertaking to produce the
property before the Court as and when
required and to give effect to the
further orders of the Court as to the
disposal of the same:
that where the property
seized under sub-section (1) is
subject to speedy and natural decay
and if the person entitled to the
possession of such property is unknown
or absent and the value of such
property is less than five hundred
rupees, it may forthwith be sold by
auction under the orders of the
Superintendent of Police and the
provisions of Section 457 and 458
shall, as nearly as may be
practicable, apply to the net proceeds
of such sale.)
(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 (9)
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
may have a claim thereto, to appear
before him and establish his claim
within six months from the date of
such proclamation."
14. Section 102 provides that when continued
retention of the property seized in police custody is
not necessary for the purpose of investigation, the
property might be given in custody of any person on
his executing a bond. Section 457(1) provides that
whenever the seized property is not produced before
the Court during the enquiry or trial, the Magistrate
might make such order as he thinks fit for disposal of
such property or delivery of such property to the
person entitled to possession thereof etc.. In these
cases, admittedly, the ultrasound machines are not
produced before the Magistrate. Their retention in
sealed condition is not necessary for the purpose of
investigation. It is clear from the allegations that
no offence is alleged in respect of use or misuse of (10)
the ultrasound machines. So, the learned Magistrate
was right in holding that such machines should be
handed over to the applicants in unsealed condition.
In other words, he directed removal of the seal from
the machines. There is nothing illegal in these
orders. The only hitch that remains in the
respondents’ way is that the certificate of
registration of the Genetic Clinics are still under
suspension and unless such suspension is set aside by
the appropriate Authority, the respondents will not be
able to use the ultrasound machines. So, on one hand,
even if I pass an order dismissing these revisions, it
would still be incumbent upon the respondents to get
the orders of suspension of the certificate of
registration set aside by filing the appeal under
Section 21 of the said Act. Hence, the order.
i) The revisions are dismissed. Rule is discharged.
ii) The complainant shall remove the seals on the
ultrasound machines of the respondents as soon as the
competent Authority, under Section 21 of the said Act,
set aside or stay the orders suspending the
certificates of registration of the respondents
Genetic Clinics. (11)
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