Rule 9 (7) further provides that in case the Genetic Clinic
etc. maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after
authentication by a person responsible for such record and further that
such centre is required to send a complete report in respect of all pre
conception or pregnancy related procedures/techniques /tests conducted
by them in respect of each month by fifth day of the following month to
the concerned Appropriate Authority.
Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by
it may seal and seize any ultrasound machine, scanner
or any other equipment, capable of detecting sex of
foetus, used by any organization if the organization has
not got itself registered under the Act.
These machines of the organizations may be released if
such organization pays penalty equal to five times of
the registration fee to the Appropriate Authority
concerned and gives an understanding that it shall not
undertake detection of sex of foetus or selection of sex
before or after conception (Mrs.) Suhasini Umesh Karanjkar, v 1
Kolhapur Municipal Corporation
reference made by an order dated 23 December, 2010
of a Division Bench of this Court raises the following questions :-
1)
Whether the power to search, seize and seal “any
other material object” conferred by Section 30 of the Pre-
conception
(Prohibition of Sex Selection) Act, 1994
power to search, seize and seal an ultrasound machine or
any other machine or equipment, if the Appropriate
Authority or Authorized Officer has reason to believe that it
may furnish evidence of the commission of an offence
punishable under the Act?
2)
Whether the decision of a Division Bench of this
Court at Aurangabad Bench in
Popatrao Tarte Vs. State of Maharashtra and others, 2010
(2) Mah. L.J. 110 taking the view that Section 30 does not
confer such power in respect of an ultrasound machine
lays down the correct law?
and
pre-natal
Diagnostic
2.
dispute. The petitioner
Surgical Hospital at Kolhapur with an ultrasound machine. The hospital
has been registered as a Genetic clinic/Ultrasound Clinic under the
provisions of the Pre-conception and Pre-natal Diagnostic Techniques
The brief facts leading to filing of this writ petition are not in
is a Gynecologist
running a Maternity and
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Act, 1994 "(the Act)" and the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996 “(the Rules)”.
Registration was granted by the competent authority on 3 September
2003 and has been extended from time to time till 31 March 2013. On 22
January 2009, the Appropriate Authority at Kolhapur along with his
officers went to the petitioner’s clinic in view of a complaint that the
petitioner was using the ultra sound machine for conducting sonography
on pregnant women for determination of sex of foetus. The Appropriate
Authority seized the record of the hospital and the ultrasound machine
and put his seal on the record and the ultrasound machine after drawing a
panchanama in presence of the petitioner’s husband, who is also a
Gynecologist.
On 17 February 2009, the Appropriate Authority issued a
notice to the petitioner to show cause why the registration granted in her
favour should not be suspended. The petitioner sent a reply dated 5
March 2009. The Appropriate Authority passed order on 7 March 2009
suspending the registration granted to the petitioner under the provisions
of the Act and the rules. Aggrieved by the order the petitioner preferred
an appeal before the District Collector, Kolhapur under Section 27 of the
Act, on 31 August 2009.
3.
petitioner has challenged the action of the Appropriate Authority seizing
and sealing the ultrasound machine on the ground that the Appropriate
In the present petition filed on 14 September 2010, the
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Authority and the Authorized Officer does not have any power to seize
and seal an ultrasound machine. At the time of the preliminary hearing of
this petition, counsel for the petitioner placed reliance on the decision of
a Division Bench of this Court in
Maharashtra, in support of the contention that the Appropriate
Authority has no power to seize or seal an
machine. The following observations are contained in paragraph 12 of
the judgment:-
1
Dadasaheb
“On clear reading of the provisions under Section 30
of the Act of 1994 as well as the provisions under Rules of
1996 make it clear that the Appropriate Authority is
empowered to seize the documents, record, register, book,
pamphlet, advertisement or any other material object found
in the Genetic Clinic, Genetic Centre, or the General
Laboratory. But on clear and bare reading of the provision
under the Act as well as the rules it nowhere provides that
the authority is empowered to seize the machinery/the
machine used in the Genetic Clinic. If it is so, the authority is
not empowered to seize the Ultra Sonography Machine
under the provisions of Law. In the premise, the case of the
petitioner is covered under the citation as the Rule given by
the Principal Bench of this Court in Writ Petition No.
7973/2008 is applicable to the present case. In the premises,
we set aside the order of the seizure of the ultra sonography
machine and direct to return the seized ultra sonography
machine to the petitioner.”
(emphasis supplied)
4.
Division Bench making the reference has expressed a tentative opinion
1 2010(2) Mah.L.J. 110
While prima facie disagreeing with the above view, the
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that the provisions of Section 30 of the Act and Rule 12 of the Rules
are widely worded in order to provide for the power to seize and seal
not only registers and documents but also “any other material object”
found in a Genetic Counselling Centre, Genetic Laboratory/Genetic
clinic or any other place where an offence under the Act has been or is
being
determination of the questions set out in the opening paragraph of this
judgment.
committed. Hence, the present
reference which involves
While making this reference, the Division Bench had also
directed the District Collector i.e. Appellate Authority to hear and decide
the petitioner’s appeal expeditiously.
5.
the aforesaid decision of this Court and submitted that Section-30 of the
Act
does not define “any other material object” and therefore, the
definition of “material object” in Explanation (2) to Rule 12 laying
down the procedure for search and seizure as “including machines and
equipments” cannot empower the Appropriate Authority under Section
30 to seize and seal an ultrasound machine. It was submitted that the
substantive power conferred by Section 30 of the Act cannot be enlarged
by a definition in the Rules made under the Act.
The learned counsel for the petitioner placed reliance upon
6.
Government Pleader has submitted that Explanation (2) to Rule 12
On the other hand, Mr. Nargolkar, learned Additional
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expressly defines “material object”
equipments” and therefore, there is no scope
controversy. It is further submitted that the Rules of 1996 were framed
by the Central Government under the provisions of Section 32 read with
Section 30
Section 34. In absence of any modification made by Parliament in Rule
12,
the definition of “material object” as including machines and
equipments must be treated as having received legislative acceptance by
Parliament.
examination of the scheme of the Act and the Rules, the Appropriate
Authority and the Authorized Officer do have the power or authority to
search, seize and seal ultrasound machines or other equipments used in
criminal acts of sex determination for sex selection in contravention of
the Act.
as including
and were laid
before each House of Parliament under
It is further submitted that
even otherwise, on an
7.
refer to the relevant provisions of the Act and the Rules and also to the
Statement of Objects & Reasons particularly, for Amendment Act 14 of
2003.
Before dealing with the rival submissions, it is necessary to
8.
on 1 January 1996. The Preamble to the Act provides that it is an Act to
provide for the prohibition of sex selection, before or after conception
and regulation of the use of pre-natal diagnostic techniques for the
purpose of detecting genetic abnormalities or metabolic disorders or
The Act and the Rules framed there under came into force
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chromosomal abnormalities or certain congenital mal-formations or sex
linked disorders and for the prevention of their
determination leading to female foeticide and, for matters connected
herewith or incidental thereto.
9.
Counselling Centres, Genetic Laboratories and Genetic clinics through
the requirement of registration under the Act. Section 4 provides that no
such place shall be used for conducting pre-natal diagnostic techniques
except for the purposes specified in Clause (2) of the said section and
requires a person conducting such techniques such as ultrasound
sonography on pregnant women to keep a complete record in the manner
prescribed in the Rules..
Section 3 of the Act provides for regulation of Genetic
Section 6 provides that no pre-natal diagnostic techniques
including sonography can be conducted for the purpose of determining
the sex of a foetus and that no person shall conduct or cause to be
conducted any pre-natal
sonography for the purpose of determining the sex of a foetus.
diagnostic techniques
10.
2003. The Statement of Objects and Reasons to the Amendment Act,
inter alia, read as under :-
The Act came to be amended by Amendment Act 14 of
“Amendment Act 14 of 2003 – Statement of
Objects and Reasons.- The Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act,
1994 seeks to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female
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foeticide. During recent years, certain inadequacies and
practical difficulties in the administration of the said Act
have come to the notice of the Government, which has
necessitated amendments in the said Act.
2.
The
pre-natal
diagnostic
techniques
like
amniocentesis and sonography are useful for the detection
of genetic or chromosomal disorders or congenital
malformations or sex linked disorders, etc. However, the
amniocentesis and sonography are being used on a large
scale to detect the sex of the foetus and to terminate the
pregnancy of the unborn child, if found to be female.
Techniques are also being developed to select the sex or
child before conception. These practices and techniques are
considered discriminatory to the female sex and not
conducive to the dignity of women.
3.
The proliferation of the technologies mentioned above
may, in future, precipitate a catastrophe in the form of
severe imbalance in male female ratio. The State is also duty
bound to intervene in such matters to uphold the welfare of
the society, especially of the women and children. It is,
therefore, necessary to enact and implement in letter and
spirit a legislation to ban the pre conception sex selection
techniques and the misuse of pre-natal diagnostic techniques
for sex selective abortions and to provide for the regulation
of such abortions. Such a law is also needed to uphold
medical ethics and initiate the process of regulation of
medical technology in the larger interests of the society.
4.
Accordingly, it is proposed to amend the aforesaid Act
with a view to banning the use of both sex selection
techniques prior to conception as well as the misuse of pre-
natal diagnostic techniques for sex selective abortions and
to regulate such techniques with a view to ensuring their
scientific use for which they are intended.”
(emphasis supplied)
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11.
Act 14 of 2003, have a bearing on the questions under consideration.
Having realized that ultra sonography on a pregnant woman with an
ultrasound machine is an very important part of the sex determination
test and procedure, which is being misused, Parliament has made a
specific reference to sonography and ultrasound machine and other
machines in some of the newly inserted sections and also by amendments
to existing provisions.
Some important amendments made by the said Amendment
12.
clinic or place by whatsoever may be called which
conducting pre natal diagnostic procedures”. The Explanation thereto
provides that genetic clinic even includes a vehicle, where ultrasound
machine or imaging machine or scanner or other equipment capable of
determining sex of the foetus is used. Genetic laboratory is defined by
Section 2 (e) as including a place where facilities are provided for
conducting analysis or test samples received from a genetic clinic or pre
natal
diagnostic
laboratory” includes a place where an ultrasound machine capable of
determining sex of foetus, is used. Both these explanations provide that
the definitions would even include a portable equipment with a potential
for detection of sex during pregnancy or selection of sex before
conception.
The term “genetic clinic” is defined in Section 2(d) as “any
tests. Explanation thereto provides that
A pre natal diagnostic test is defined in Section 2(k) as
“ultrasonography or any test or analysis of amniotic fluid........ or fluid of
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pregnant woman or conception or analysis....blood or any other tissue or
blood of the pregnant woman or conceptus conducted to detect .....
genetic ..... or sex linked disease”.
Section 2(i) defines “pre-natal diagnostic procedures as
“all gynaecological or obstetrical or medical procedures such as ultra
sonography, ......... of a woman before or after conception for being sent
to genetic laboratory or genetic clinic for
analysis or pre natal diagnostic tests for selection of sex before or after
conception.
conducting any type of
Section-2) (j) defines "pre-natal diagnostic techniques" as
including all pre natal diagnostic procedures and pre natal diagnostic
tests.
13.
Section 3B provides as follows :
"3-B- Prohibition on sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the Act- No
person shall sell any ultrasound machine or imaging machine or scanner
or any other equipment capable of detecting sex of foetus to any Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic or any other
person not registered under the Act".
14.
conducting ultra sonography on a pregnant woman has to maintain the
complete record thereof in the manner prescribed in the Rules and any
deficiency or inaccuracy found
Amended section 4 now specifically provides that the person
therein amounts to contravention of
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Section 5 and 6, unless contrary is proved by the person conducting such
ultra sonography.
Section 6 also specifically prohibits 'any genetic clinic.... or
any person' from conducting any pre natal diagnostic techniques
including ultra sonography for the purpose of detecting sex of foetus.
15.
of 2003 read as under:-
Sub Section (1) of Section 18 prior to amendment by Act 14
(1) No person shall open any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic after the
commencement of this Act unless such Centre, Laboratory
of Clinic is duly registered separately or jointly under this
Act.
After amendment in 2003, the provision reads as under :
No person shall open any Genetic Counselling 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.
16
pre conception and pre natal determination of sex and punishment for
Section 22 provides for prohibition of advertisement relating
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contravention and Section 23 provides that any medicval geneticist,
gynaecologist, registered medical practitioner or any person who owning
a Genetic Centre, etc., or is employed to render his professional or
technical services to or at such a centre, and who contravenes any of the
provisions of this Act or rules made thereunder shall be punishable with
imprisonment for a period upto three years and with fine which may
extend to ten thousand rupees, which may extend to five years and with
fine which may extend to fifty thousand rupees, in case of subsequent
conviction.
Sub section (2) of Section 23 even provides that the name of
the errant registered medical practitioner shall be reported by the
Appropriate Authority to the State Medical Council concerned for taking
necessary action.
17.
of 2003, provided that the Appropriate Authority shall perform various
functions including the following :-
Section 17(4) of the Act, even prior to the Amendment Act
(c) to investigate complaints of breach of the provisions of
this Act or the rules made thereunder and take
immediate action;” and
(d) any other matter which may be prescribed.
Section 17-A inserted by the Amendment Act, 2003 confers
additional powers on the Appropriate Authority including the power in
respect of :
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(c) issuing search warrant for any place suspected to be
indulging in sex selection techniques or prenatal sex
determination ; and
(d) any other matter which may be prescribed.
18.
preservation of such record for a period of two years till the final disposal
of proceeding under the Act. Section 30 of the Act confers power to
search and seize records. Prior to its amendment in 2003, Section 30 did
not provide for any power to seal, though explanation (3) to Rule 12 of
the Rules provides that “seize” would include “seal”, Section 30 as
amended by Act 14 of 2003 with effect from 14 February 2003
specifically confers power not only to seize but also "to seal" any record,
register documents, books, pamphlet, advertisement or “any other
material object” found therein at any Genetic Centre etc., in the following
words:-
Section 29 provides for maintenance of records and
30. Power to search and seize records, etc. –
(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 or Genetic
Clinic or any other place, such Authority or any officer
authorised thereof 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
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reason to believe that it may furnish evidence of the
commission of an office punishable under this Act.
(2) ..........................
(emphasis supplied)
Section 32 confers upon the Central Government powers to
make rules for carrying out the provisions of the Act, including;
(xiii) the manner in which the seizure of documents,
records, objects, etc., shall be made and the manner in
which seized list shall be prepared and delivered to the
person from whose custody such documents, records or
objects were seized under sub section (1) of Section 30.
19.
made under the Act shall be laid as soon as may be after it is made,
before each House of Parliament while it is in session, for a total period
of thirty days and if both houses agree in making any modification in
the rule or regulation or both Houses agree that the rule and regulation
should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be.
Section 34 provides that every rule and every regulation
20.
with Section 30 the Central Government has made the Pre conception
and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules 1996.
In exercise of the aforesaid powers under Section 32 read
21.
and sub-rule (6) provides for particulars of the manner in which the
Rule 9 provides for maintenance and preservation of records
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records are to be maintained and also provides that all case related
records, forms of consent, laboratory results, microscopic pictures,
sonographic
preserved by Genetic Centre etc., for a period of two years from the date
of completion of counseling, pre- natal diagnostic procedure or pre-natal
diagnostic test, as the case may be. In the event of any legal proceedings,
the records etc., shall be preserved till final disposal of the legal
proceedings.
plates or slides, recommendations and letters shall be
Rule 9 (7) further provides that in case the Genetic Clinic
etc. maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after
authentication by a person responsible for such record and further that
such centre is required to send a complete report in respect of all pre
conception or pregnancy related procedures/techniques /tests conducted
by them in respect of each month by fifth day of the following month to
the concerned Appropriate Authority.
22.
Ultrasound Clinic etc., or any other place where any of the machines or
equipments capable or performing any procedure, techniques or test
capable of pre- natal determination of sex or selection of sex before or
after conception is used, shall
inspection of the place,
Authority or to any other person authorized by the Appropriate Authority.
Sub rule (1) of Rule 11 provides that Every Genetic Centre,
afford all reasonable facilities for
equipment and records to the Appropriate
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Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by
it may seal and seize any ultrasound machine, scanner
or any other equipment, capable of detecting sex of
foetus, used by any organization if the organization has
not got itself registered under the Act.
These machines of the organizations may be released if
such organization pays penalty equal to five times of
the registration fee to the Appropriate Authority
concerned and gives an understanding that it shall not
undertake detection of sex of foetus or selection of sex
before or after conception.
Rule 12 lays down the procedure for search and seizure as
23.
under :
12.
The Appropriate Authority or any officer authorized 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 under the Act.
Explanation-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;
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(2) “material object” would include records, machines
and equipments; and
(3)
“seize” and “seizure” would include “seal” and
“sealing” respectively.
(emphasis supplied)
24.
the Act and in the Rules framed thereunder, makes it abundantly clear
that an ultra sonography test on a pregnant woman is considered to be an
important part of a pre-natal diagnostic test or pre-natal diagnostic
procedure, which cannot be conducted except for the purpose of section
4(2). The person conducting ultra sonography on a pregnant woman has
to maintain a complete record thereof in the manner prescribed in the
Rules and a deficiency or inaccuracy in maintaining such records would
amount to an offence, unless the person conducting such sonography is
able to show that there was no deficiency or inaccuracy. The fact that
section 3-B inserted by Amendment Act 14 of 2003 specifically prohibits
even sale of an ultra sound machine or other machines capable of
detecting sex of foetus to any genetic clinic or any other place or to any
person not registered under the Act, itself should be sufficient to hold that
in the scheme of
machine as a "material object" because it is capable of detecting sex of a
foetus.
A bare perusal of the aforesaid statutory provisions, both in
the Act, Parliament has considered an ultrasound
25.
to issue search warrant for any place suspected to be indulging in pre-
While section 17-A(c) empowers the appropriate authority
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natal sex determination with an ultra sonography test on a pregnant
woman, apart from section 30, there is no other section in the Act which
confers powers upon the appropriate authority or authorised officer to
seize or seal a “material object” like an ultrasound machine at any place
suspected to be indulging in pre-natal diagnostic techniques such as an
ultra sonography test on a pregnant woman for determination of sex.
26.
appropriate authority or the authorised officer will not have any power to
seize or seal such an ultra sound machine sold by a person to an
unregistered clinic. The Legislature which has condemned misuse of
pre-natal diagnostic technique (such as ultra sonography on a pregnant
woman) for sex determination of foetus leading to female foeticide, and
made it a criminal offence punishable with imprisonment upto three
years, could not have intended that while a seller of an ultra sound
machine to an unregistered clinic should be prosecuted under section 23
for contravention of section 3-B of the Act, the ultra sound machine
should be allowed to be continued to be used by or on behalf of an
unregistered purchaser. But for section 30 of the Act, no action can be
taken by the appropriate authority or authorised officer in respect of the
ultra sound machine being used for sonography on a pregnant woman for
the purpose of determination of sex of the foetus, which may ultimately
result into termination of pregnancy of unborn child, if found to be
female- as stated in so many words in the Statement of Objects and
Reasons to the Amendment Act 14 of 2003. That is why Parliament,
Now, if the petitioner's contentions were to be accepted, the
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which had already conferred on the appropriate authority/ authorised
officer the power to “search and seize” any material object, also
conferred the further power to "seal" such a material object.
27.
Act is sufficient to hold that the expression “material object” for which
the power to seize and seal is conferred upon the appropriate authority/
authorised officer, includes ultra sound machines, other machines and
equipment which are used for pre-natal diagnostic techniques or sex
selection techniques.
In our opinion, the above analysis of the provisions of the
28.
thereof, conferring power to seal and seize ultra sound machines or other
machines or equipments capable of detecting sex of foetus, sold to
unregistered purchasers and explanation (2) to Rule 12 (material object
would include records, machines and equipments) make it more than
clear that the expression “any other material object” in section 30
includes ultrasound machines, other machines and equipment capable of
detecting sex of foetus or capable of use for sex selection.
Further, the provisions of Rule 11, particularly sub-rule (2)
29.
of the Act are required by Section 34 to be laid before each House of
Parliament and if no modification is made within a period of 30 days
while Parliament is in session, the rules continue to have effect as made.
If any modification is made, then the Rules continue to have effect
It is necessary to note that the Rules made under Section 32
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subject to the modification . If both the Houses agree that a rule should
not be made, the rule shall be of no effect from the date of annulment.
It is nobody’s case that the Rules have not been laid before
Parliament or after having been laid before Parliament, Parliament
resolved to delete or modify explanation (2) to Rule 12.
It must therefore, be held that the Rules have been accepted
by Parliament without any modification of explanation (2) to Rule 12.
30.
Company Ltd Vs. Gram Panchayat, Pimpri Waghere2, P. Kasilingam Vs.
P.S.G. College of Technology,3 Pali Devi Vs. Chairman, Managing
Committee,4 (para 8), Gujrat Pradesh Panchayat Parishad Vs. State of
Gujarat5 (para 39) the Supreme Court has held that “rules made under a
statute are a legitimate aid to construction of the statute as
contemporanea expositio.”. This is particularly so when Section 34 of the
Act requires Rules made under Section 32 of the Act to be laid before
each House of Parliament within a period of 30 days while Parliament is
in session.
In a catena of decisions (Tata Engineering and Locomotive
31.
by the learned counsel for the petitioner in support of the contention that
2
3
4
5
AIR1976 SC 2463 = (1976)4 SCC 177
AIR 1995 SC 1395 = 1995 Supp (2) SCC 348
AIR 1996 SC 1589 = 1996(3) SCC 296
2007(7) SCC 718
We may also refer to the rule of “ejusdem generis” invoked
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“any other material object” in Section 30 must take colour from the
preceding words. It is submitted that since all the preceding words
pertain to paper such as record, register, document, books, pamphlet and
advertisement the words “any other material object” must be construed
in light of the preceding words.
32.
AIR 1957 SC 521 (Para 11), the Apex Court laid down the following
principle:-
In Smt. Leelavati Bai Vs. State of Bombay, 1957 SCR 721 :
“The rule of ejusdem generis is intended to be applied where
general words have been used following particular and specific words of
the same nature on the
legislature presumed to use the general words in a restricted sense; that
is to say, as belonging to the same genus as the particular and specific
words. Such a restricted meaning has to be given to words of general
import only where the context of the whole scheme of legislation
requires it. But where the context and the object and mischief of the
enactment do not require such restricted meaning to be attached to words
of general import, it becomes the duty of the courts to give those words
their plain and ordinary meaning”.
established rule of construction that the
33.
and having regard to the legislative object and the mischief sought to be
avoided, as referred to in the preamble to the Act and also in the
As already discussed, on analysis of the scheme of the Act,
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Statement of Objects and Reasons to the Amendment Act 14 of 2003, we
have no manner of doubt in holding that the power under Section 30 to
seize and seal “any material object” includes power to seize and seal
ultrasound machines and other machines and equipments, capable of
selection of sex or capable of performing any procedure, technique or test
for pre natal detection of sex of foetus.
34.
Maharashtra (supra), we note that the Division Bench did not refer to
explanation (2) to Rule 12 of the PC and PNDT Rules, 1996, much less
to the legislative object and scheme of the Act discussed above .
Otherwise also, independently of reference to the said Rules, we are of
the view that on an analysis of the provisions of the Act, if any
ultrasound machine is used for conducting sonography on a pregnant
woman for a sex determination test or sex selection procedure in
contravention of the provisions of the Act, the power to seize and seal
any other material object, besides the record and documents, would
include the power to seize and seal ultrasound machines and other
machinery and equipment.
As regards the decision in Dadasaheb
35.
7973 of 2008 referred to in Paragraph 12 of the judgment in Dadasaheb’s
case. (Lata Mangeshkar Medical Foundation Vs. The Dy. Medical
Officer of Health Pune Municipal Corporation and others). That interim
order was passed in an all together different set of facts and
We may also refer to the interim order in Writ Petition No.
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circumstances. In that case, 8 ultrasound machines were seized from a
charitable hospital with 650 beds and 70 ICU beds and it was in that
background that a Division Bench of this Court (without holding that the
authority does not have the power to seize or seal ultra sound machines)
by an interim order, directed the authorities to return ultrasound machines
seized by the authorities on an allegation that “certain formalities were
not fulfilled whilst sonography on patients was conducted which raises
the suspicion that sonography might have been performed for detecting
sex of the foetus."
An interim order cannot be treated as a precedent while
interpreting the provisions of a statue, and that too when the Division
Bench did not refer to Section 30 of the Act.
36.
questions framed for determination are as under:-
In view of the above discussion, our answers to the
(i) The expression “any other material object” in Section 30
of
the
Techniques (Prohibition of Sex Selection) Act, 1994
includes ultrasound machines, other machines and
equipment capable of aiding or assisting in selection of
sex, or capable of performing any procedure, technique
or test for pre natal detection of sex of foetus.
Pre-conception
and
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(ii) The decision of the Division Bench of this Court in
Dadasaheb Vs. State of Maharashtra
L.J. 110, taking the contrary view does not lay down the
correct law and is hereby overruled.
37.
interpretation of the expression "any other material object” in Section 30
of the Act, we may not be treated to have expressed any opinion on the
question as regards the circumstances in which the power under Section
30 is to be exercised.
Since the only controversy raised in this petition was about
38.
machine was challenged only on the ground that the Appropriate
Authority or Authorized Officer does not have power or authority to take
such
action
Rule 12 and the petitioner’s contention has been repelled, we see no
merit in this petition. The petition is accordingly dismissed.
As the seizure and sealing of the petitioner's ultrasound
under
Section
30
of
the
39.
assistance rendered by Mr. Sagar A. Mane, learned counsel for the
petitioner, Mr. S.R.Nargolkar, learned Additional Government Pleader for
respondent No.2 and Mr.Uday Warunjikar, learned counsel for the
intervenors.
We place on record our appreciation for the valuable
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40.
disturbing figures of the declining National child sex ratio over the last
five decades, to which our attention has been invited by the learned
Additional Government Pleader :-
Before parting with the matter, we may refer
Year
1961
1971
1981
1991
2001
2011
In the State of Maharashtra also, the child sex ratio has gone down
No.of girls per 1000 boys
(in the age group 0-6 years)
976
965
962
945
927
914
from 913 in 2001 to 883 in 2011. It has gone down to as low as 801 in Beed
District. In Kolhapur District, where the offence in question is registered, it is
839.
41.
of offences registered under the Act are pending in Courts of the Judicial
Magistrate First Class for a long period, sometimes upto 6 years and in a few
cases as long as 6 to 8 years. It is, therefore, directed that all cases under the Act
shall be taken up on top priority basis and the Metropolitan Magistrates. Mumbai
and the J.M.F.Cs. in other Districts shall try and decide such cases with utmost
priority and preferably within one year. Criminal Cases instituted in the year
2010 and prior thereto shall be tried and decided by 31 December 2011.
We are also distressed by the fact that a number of cases for trial
42.
District Judges in all the districts of State of Maharashtra and State of
Goa and to the Chief Metropolitan Magistrate, Mumbai, who shall in turn
A copy of this judgment shall be circulated to
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circulate a copy of this judgment to the Metropolitan Magistrates, Mumbai and
all the Judicial Magistrates First Class in their respective districts for timely
compliance with the above direction.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD, J.
D.G. KARNIK, J.
Print Page
etc. maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after
authentication by a person responsible for such record and further that
such centre is required to send a complete report in respect of all pre
conception or pregnancy related procedures/techniques /tests conducted
by them in respect of each month by fifth day of the following month to
the concerned Appropriate Authority.
Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by
it may seal and seize any ultrasound machine, scanner
or any other equipment, capable of detecting sex of
foetus, used by any organization if the organization has
not got itself registered under the Act.
These machines of the organizations may be released if
such organization pays penalty equal to five times of
the registration fee to the Appropriate Authority
concerned and gives an understanding that it shall not
undertake detection of sex of foetus or selection of sex
before or after conception (Mrs.) Suhasini Umesh Karanjkar, v 1
Kolhapur Municipal Corporation
reference made by an order dated 23 December, 2010
of a Division Bench of this Court raises the following questions :-
1)
Whether the power to search, seize and seal “any
other material object” conferred by Section 30 of the Pre-
conception
(Prohibition of Sex Selection) Act, 1994
power to search, seize and seal an ultrasound machine or
any other machine or equipment, if the Appropriate
Authority or Authorized Officer has reason to believe that it
may furnish evidence of the commission of an offence
punishable under the Act?
2)
Whether the decision of a Division Bench of this
Court at Aurangabad Bench in
Popatrao Tarte Vs. State of Maharashtra and others, 2010
(2) Mah. L.J. 110 taking the view that Section 30 does not
confer such power in respect of an ultrasound machine
lays down the correct law?
and
pre-natal
Diagnostic
2.
dispute. The petitioner
Surgical Hospital at Kolhapur with an ultrasound machine. The hospital
has been registered as a Genetic clinic/Ultrasound Clinic under the
provisions of the Pre-conception and Pre-natal Diagnostic Techniques
The brief facts leading to filing of this writ petition are not in
is a Gynecologist
running a Maternity and
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Act, 1994 "(the Act)" and the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Rules, 1996 “(the Rules)”.
Registration was granted by the competent authority on 3 September
2003 and has been extended from time to time till 31 March 2013. On 22
January 2009, the Appropriate Authority at Kolhapur along with his
officers went to the petitioner’s clinic in view of a complaint that the
petitioner was using the ultra sound machine for conducting sonography
on pregnant women for determination of sex of foetus. The Appropriate
Authority seized the record of the hospital and the ultrasound machine
and put his seal on the record and the ultrasound machine after drawing a
panchanama in presence of the petitioner’s husband, who is also a
Gynecologist.
On 17 February 2009, the Appropriate Authority issued a
notice to the petitioner to show cause why the registration granted in her
favour should not be suspended. The petitioner sent a reply dated 5
March 2009. The Appropriate Authority passed order on 7 March 2009
suspending the registration granted to the petitioner under the provisions
of the Act and the rules. Aggrieved by the order the petitioner preferred
an appeal before the District Collector, Kolhapur under Section 27 of the
Act, on 31 August 2009.
3.
petitioner has challenged the action of the Appropriate Authority seizing
and sealing the ultrasound machine on the ground that the Appropriate
In the present petition filed on 14 September 2010, the
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Authority and the Authorized Officer does not have any power to seize
and seal an ultrasound machine. At the time of the preliminary hearing of
this petition, counsel for the petitioner placed reliance on the decision of
a Division Bench of this Court in
Maharashtra, in support of the contention that the Appropriate
Authority has no power to seize or seal an
machine. The following observations are contained in paragraph 12 of
the judgment:-
1
Dadasaheb
“On clear reading of the provisions under Section 30
of the Act of 1994 as well as the provisions under Rules of
1996 make it clear that the Appropriate Authority is
empowered to seize the documents, record, register, book,
pamphlet, advertisement or any other material object found
in the Genetic Clinic, Genetic Centre, or the General
Laboratory. But on clear and bare reading of the provision
under the Act as well as the rules it nowhere provides that
the authority is empowered to seize the machinery/the
machine used in the Genetic Clinic. If it is so, the authority is
not empowered to seize the Ultra Sonography Machine
under the provisions of Law. In the premise, the case of the
petitioner is covered under the citation as the Rule given by
the Principal Bench of this Court in Writ Petition No.
7973/2008 is applicable to the present case. In the premises,
we set aside the order of the seizure of the ultra sonography
machine and direct to return the seized ultra sonography
machine to the petitioner.”
(emphasis supplied)
4.
Division Bench making the reference has expressed a tentative opinion
1 2010(2) Mah.L.J. 110
While prima facie disagreeing with the above view, the
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that the provisions of Section 30 of the Act and Rule 12 of the Rules
are widely worded in order to provide for the power to seize and seal
not only registers and documents but also “any other material object”
found in a Genetic Counselling Centre, Genetic Laboratory/Genetic
clinic or any other place where an offence under the Act has been or is
being
determination of the questions set out in the opening paragraph of this
judgment.
committed. Hence, the present
reference which involves
While making this reference, the Division Bench had also
directed the District Collector i.e. Appellate Authority to hear and decide
the petitioner’s appeal expeditiously.
5.
the aforesaid decision of this Court and submitted that Section-30 of the
Act
does not define “any other material object” and therefore, the
definition of “material object” in Explanation (2) to Rule 12 laying
down the procedure for search and seizure as “including machines and
equipments” cannot empower the Appropriate Authority under Section
30 to seize and seal an ultrasound machine. It was submitted that the
substantive power conferred by Section 30 of the Act cannot be enlarged
by a definition in the Rules made under the Act.
The learned counsel for the petitioner placed reliance upon
6.
Government Pleader has submitted that Explanation (2) to Rule 12
On the other hand, Mr. Nargolkar, learned Additional
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expressly defines “material object”
equipments” and therefore, there is no scope
controversy. It is further submitted that the Rules of 1996 were framed
by the Central Government under the provisions of Section 32 read with
Section 30
Section 34. In absence of any modification made by Parliament in Rule
12,
the definition of “material object” as including machines and
equipments must be treated as having received legislative acceptance by
Parliament.
examination of the scheme of the Act and the Rules, the Appropriate
Authority and the Authorized Officer do have the power or authority to
search, seize and seal ultrasound machines or other equipments used in
criminal acts of sex determination for sex selection in contravention of
the Act.
as including
and were laid
before each House of Parliament under
It is further submitted that
even otherwise, on an
7.
refer to the relevant provisions of the Act and the Rules and also to the
Statement of Objects & Reasons particularly, for Amendment Act 14 of
2003.
Before dealing with the rival submissions, it is necessary to
8.
on 1 January 1996. The Preamble to the Act provides that it is an Act to
provide for the prohibition of sex selection, before or after conception
and regulation of the use of pre-natal diagnostic techniques for the
purpose of detecting genetic abnormalities or metabolic disorders or
The Act and the Rules framed there under came into force
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chromosomal abnormalities or certain congenital mal-formations or sex
linked disorders and for the prevention of their
determination leading to female foeticide and, for matters connected
herewith or incidental thereto.
9.
Counselling Centres, Genetic Laboratories and Genetic clinics through
the requirement of registration under the Act. Section 4 provides that no
such place shall be used for conducting pre-natal diagnostic techniques
except for the purposes specified in Clause (2) of the said section and
requires a person conducting such techniques such as ultrasound
sonography on pregnant women to keep a complete record in the manner
prescribed in the Rules..
Section 3 of the Act provides for regulation of Genetic
Section 6 provides that no pre-natal diagnostic techniques
including sonography can be conducted for the purpose of determining
the sex of a foetus and that no person shall conduct or cause to be
conducted any pre-natal
sonography for the purpose of determining the sex of a foetus.
diagnostic techniques
10.
2003. The Statement of Objects and Reasons to the Amendment Act,
inter alia, read as under :-
The Act came to be amended by Amendment Act 14 of
“Amendment Act 14 of 2003 – Statement of
Objects and Reasons.- The Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act,
1994 seeks to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female
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foeticide. During recent years, certain inadequacies and
practical difficulties in the administration of the said Act
have come to the notice of the Government, which has
necessitated amendments in the said Act.
2.
The
pre-natal
diagnostic
techniques
like
amniocentesis and sonography are useful for the detection
of genetic or chromosomal disorders or congenital
malformations or sex linked disorders, etc. However, the
amniocentesis and sonography are being used on a large
scale to detect the sex of the foetus and to terminate the
pregnancy of the unborn child, if found to be female.
Techniques are also being developed to select the sex or
child before conception. These practices and techniques are
considered discriminatory to the female sex and not
conducive to the dignity of women.
3.
The proliferation of the technologies mentioned above
may, in future, precipitate a catastrophe in the form of
severe imbalance in male female ratio. The State is also duty
bound to intervene in such matters to uphold the welfare of
the society, especially of the women and children. It is,
therefore, necessary to enact and implement in letter and
spirit a legislation to ban the pre conception sex selection
techniques and the misuse of pre-natal diagnostic techniques
for sex selective abortions and to provide for the regulation
of such abortions. Such a law is also needed to uphold
medical ethics and initiate the process of regulation of
medical technology in the larger interests of the society.
4.
Accordingly, it is proposed to amend the aforesaid Act
with a view to banning the use of both sex selection
techniques prior to conception as well as the misuse of pre-
natal diagnostic techniques for sex selective abortions and
to regulate such techniques with a view to ensuring their
scientific use for which they are intended.”
(emphasis supplied)
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11.
Act 14 of 2003, have a bearing on the questions under consideration.
Having realized that ultra sonography on a pregnant woman with an
ultrasound machine is an very important part of the sex determination
test and procedure, which is being misused, Parliament has made a
specific reference to sonography and ultrasound machine and other
machines in some of the newly inserted sections and also by amendments
to existing provisions.
Some important amendments made by the said Amendment
12.
clinic or place by whatsoever may be called which
conducting pre natal diagnostic procedures”. The Explanation thereto
provides that genetic clinic even includes a vehicle, where ultrasound
machine or imaging machine or scanner or other equipment capable of
determining sex of the foetus is used. Genetic laboratory is defined by
Section 2 (e) as including a place where facilities are provided for
conducting analysis or test samples received from a genetic clinic or pre
natal
diagnostic
laboratory” includes a place where an ultrasound machine capable of
determining sex of foetus, is used. Both these explanations provide that
the definitions would even include a portable equipment with a potential
for detection of sex during pregnancy or selection of sex before
conception.
The term “genetic clinic” is defined in Section 2(d) as “any
tests. Explanation thereto provides that
A pre natal diagnostic test is defined in Section 2(k) as
“ultrasonography or any test or analysis of amniotic fluid........ or fluid of
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pregnant woman or conception or analysis....blood or any other tissue or
blood of the pregnant woman or conceptus conducted to detect .....
genetic ..... or sex linked disease”.
Section 2(i) defines “pre-natal diagnostic procedures as
“all gynaecological or obstetrical or medical procedures such as ultra
sonography, ......... of a woman before or after conception for being sent
to genetic laboratory or genetic clinic for
analysis or pre natal diagnostic tests for selection of sex before or after
conception.
conducting any type of
Section-2) (j) defines "pre-natal diagnostic techniques" as
including all pre natal diagnostic procedures and pre natal diagnostic
tests.
13.
Section 3B provides as follows :
"3-B- Prohibition on sale of ultrasound machine, etc., to
persons, laboratories, clinics, etc., not registered under the Act- No
person shall sell any ultrasound machine or imaging machine or scanner
or any other equipment capable of detecting sex of foetus to any Genetic
Counselling Centre, Genetic Laboratory, Genetic Clinic or any other
person not registered under the Act".
14.
conducting ultra sonography on a pregnant woman has to maintain the
complete record thereof in the manner prescribed in the Rules and any
deficiency or inaccuracy found
Amended section 4 now specifically provides that the person
therein amounts to contravention of
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Section 5 and 6, unless contrary is proved by the person conducting such
ultra sonography.
Section 6 also specifically prohibits 'any genetic clinic.... or
any person' from conducting any pre natal diagnostic techniques
including ultra sonography for the purpose of detecting sex of foetus.
15.
of 2003 read as under:-
Sub Section (1) of Section 18 prior to amendment by Act 14
(1) No person shall open any Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic after the
commencement of this Act unless such Centre, Laboratory
of Clinic is duly registered separately or jointly under this
Act.
After amendment in 2003, the provision reads as under :
No person shall open any Genetic Counselling 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.
16
pre conception and pre natal determination of sex and punishment for
Section 22 provides for prohibition of advertisement relating
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contravention and Section 23 provides that any medicval geneticist,
gynaecologist, registered medical practitioner or any person who owning
a Genetic Centre, etc., or is employed to render his professional or
technical services to or at such a centre, and who contravenes any of the
provisions of this Act or rules made thereunder shall be punishable with
imprisonment for a period upto three years and with fine which may
extend to ten thousand rupees, which may extend to five years and with
fine which may extend to fifty thousand rupees, in case of subsequent
conviction.
Sub section (2) of Section 23 even provides that the name of
the errant registered medical practitioner shall be reported by the
Appropriate Authority to the State Medical Council concerned for taking
necessary action.
17.
of 2003, provided that the Appropriate Authority shall perform various
functions including the following :-
Section 17(4) of the Act, even prior to the Amendment Act
(c) to investigate complaints of breach of the provisions of
this Act or the rules made thereunder and take
immediate action;” and
(d) any other matter which may be prescribed.
Section 17-A inserted by the Amendment Act, 2003 confers
additional powers on the Appropriate Authority including the power in
respect of :
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(c) issuing search warrant for any place suspected to be
indulging in sex selection techniques or prenatal sex
determination ; and
(d) any other matter which may be prescribed.
18.
preservation of such record for a period of two years till the final disposal
of proceeding under the Act. Section 30 of the Act confers power to
search and seize records. Prior to its amendment in 2003, Section 30 did
not provide for any power to seal, though explanation (3) to Rule 12 of
the Rules provides that “seize” would include “seal”, Section 30 as
amended by Act 14 of 2003 with effect from 14 February 2003
specifically confers power not only to seize but also "to seal" any record,
register documents, books, pamphlet, advertisement or “any other
material object” found therein at any Genetic Centre etc., in the following
words:-
Section 29 provides for maintenance of records and
30. Power to search and seize records, etc. –
(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 or Genetic
Clinic or any other place, such Authority or any officer
authorised thereof 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
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reason to believe that it may furnish evidence of the
commission of an office punishable under this Act.
(2) ..........................
(emphasis supplied)
Section 32 confers upon the Central Government powers to
make rules for carrying out the provisions of the Act, including;
(xiii) the manner in which the seizure of documents,
records, objects, etc., shall be made and the manner in
which seized list shall be prepared and delivered to the
person from whose custody such documents, records or
objects were seized under sub section (1) of Section 30.
19.
made under the Act shall be laid as soon as may be after it is made,
before each House of Parliament while it is in session, for a total period
of thirty days and if both houses agree in making any modification in
the rule or regulation or both Houses agree that the rule and regulation
should not be made, the rule or regulation shall thereafter have effect
only in such modified form or be of no effect, as the case may be.
Section 34 provides that every rule and every regulation
20.
with Section 30 the Central Government has made the Pre conception
and Pre- natal Diagnostic Techniques (Prohibition of Sex Selection)
Rules 1996.
In exercise of the aforesaid powers under Section 32 read
21.
and sub-rule (6) provides for particulars of the manner in which the
Rule 9 provides for maintenance and preservation of records
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records are to be maintained and also provides that all case related
records, forms of consent, laboratory results, microscopic pictures,
sonographic
preserved by Genetic Centre etc., for a period of two years from the date
of completion of counseling, pre- natal diagnostic procedure or pre-natal
diagnostic test, as the case may be. In the event of any legal proceedings,
the records etc., shall be preserved till final disposal of the legal
proceedings.
plates or slides, recommendations and letters shall be
Rule 9 (7) further provides that in case the Genetic Clinic
etc. maintains records on computer or other electronic equipment, a
printed copy of the record shall be taken and preserved after
authentication by a person responsible for such record and further that
such centre is required to send a complete report in respect of all pre
conception or pregnancy related procedures/techniques /tests conducted
by them in respect of each month by fifth day of the following month to
the concerned Appropriate Authority.
22.
Ultrasound Clinic etc., or any other place where any of the machines or
equipments capable or performing any procedure, techniques or test
capable of pre- natal determination of sex or selection of sex before or
after conception is used, shall
inspection of the place,
Authority or to any other person authorized by the Appropriate Authority.
Sub rule (1) of Rule 11 provides that Every Genetic Centre,
afford all reasonable facilities for
equipment and records to the Appropriate
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Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by
it may seal and seize any ultrasound machine, scanner
or any other equipment, capable of detecting sex of
foetus, used by any organization if the organization has
not got itself registered under the Act.
These machines of the organizations may be released if
such organization pays penalty equal to five times of
the registration fee to the Appropriate Authority
concerned and gives an understanding that it shall not
undertake detection of sex of foetus or selection of sex
before or after conception.
Rule 12 lays down the procedure for search and seizure as
23.
under :
12.
The Appropriate Authority or any officer authorized 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 under the Act.
Explanation-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;
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(2) “material object” would include records, machines
and equipments; and
(3)
“seize” and “seizure” would include “seal” and
“sealing” respectively.
(emphasis supplied)
24.
the Act and in the Rules framed thereunder, makes it abundantly clear
that an ultra sonography test on a pregnant woman is considered to be an
important part of a pre-natal diagnostic test or pre-natal diagnostic
procedure, which cannot be conducted except for the purpose of section
4(2). The person conducting ultra sonography on a pregnant woman has
to maintain a complete record thereof in the manner prescribed in the
Rules and a deficiency or inaccuracy in maintaining such records would
amount to an offence, unless the person conducting such sonography is
able to show that there was no deficiency or inaccuracy. The fact that
section 3-B inserted by Amendment Act 14 of 2003 specifically prohibits
even sale of an ultra sound machine or other machines capable of
detecting sex of foetus to any genetic clinic or any other place or to any
person not registered under the Act, itself should be sufficient to hold that
in the scheme of
machine as a "material object" because it is capable of detecting sex of a
foetus.
A bare perusal of the aforesaid statutory provisions, both in
the Act, Parliament has considered an ultrasound
25.
to issue search warrant for any place suspected to be indulging in pre-
While section 17-A(c) empowers the appropriate authority
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natal sex determination with an ultra sonography test on a pregnant
woman, apart from section 30, there is no other section in the Act which
confers powers upon the appropriate authority or authorised officer to
seize or seal a “material object” like an ultrasound machine at any place
suspected to be indulging in pre-natal diagnostic techniques such as an
ultra sonography test on a pregnant woman for determination of sex.
26.
appropriate authority or the authorised officer will not have any power to
seize or seal such an ultra sound machine sold by a person to an
unregistered clinic. The Legislature which has condemned misuse of
pre-natal diagnostic technique (such as ultra sonography on a pregnant
woman) for sex determination of foetus leading to female foeticide, and
made it a criminal offence punishable with imprisonment upto three
years, could not have intended that while a seller of an ultra sound
machine to an unregistered clinic should be prosecuted under section 23
for contravention of section 3-B of the Act, the ultra sound machine
should be allowed to be continued to be used by or on behalf of an
unregistered purchaser. But for section 30 of the Act, no action can be
taken by the appropriate authority or authorised officer in respect of the
ultra sound machine being used for sonography on a pregnant woman for
the purpose of determination of sex of the foetus, which may ultimately
result into termination of pregnancy of unborn child, if found to be
female- as stated in so many words in the Statement of Objects and
Reasons to the Amendment Act 14 of 2003. That is why Parliament,
Now, if the petitioner's contentions were to be accepted, the
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which had already conferred on the appropriate authority/ authorised
officer the power to “search and seize” any material object, also
conferred the further power to "seal" such a material object.
27.
Act is sufficient to hold that the expression “material object” for which
the power to seize and seal is conferred upon the appropriate authority/
authorised officer, includes ultra sound machines, other machines and
equipment which are used for pre-natal diagnostic techniques or sex
selection techniques.
In our opinion, the above analysis of the provisions of the
28.
thereof, conferring power to seal and seize ultra sound machines or other
machines or equipments capable of detecting sex of foetus, sold to
unregistered purchasers and explanation (2) to Rule 12 (material object
would include records, machines and equipments) make it more than
clear that the expression “any other material object” in section 30
includes ultrasound machines, other machines and equipment capable of
detecting sex of foetus or capable of use for sex selection.
Further, the provisions of Rule 11, particularly sub-rule (2)
29.
of the Act are required by Section 34 to be laid before each House of
Parliament and if no modification is made within a period of 30 days
while Parliament is in session, the rules continue to have effect as made.
If any modification is made, then the Rules continue to have effect
It is necessary to note that the Rules made under Section 32
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subject to the modification . If both the Houses agree that a rule should
not be made, the rule shall be of no effect from the date of annulment.
It is nobody’s case that the Rules have not been laid before
Parliament or after having been laid before Parliament, Parliament
resolved to delete or modify explanation (2) to Rule 12.
It must therefore, be held that the Rules have been accepted
by Parliament without any modification of explanation (2) to Rule 12.
30.
Company Ltd Vs. Gram Panchayat, Pimpri Waghere2, P. Kasilingam Vs.
P.S.G. College of Technology,3 Pali Devi Vs. Chairman, Managing
Committee,4 (para 8), Gujrat Pradesh Panchayat Parishad Vs. State of
Gujarat5 (para 39) the Supreme Court has held that “rules made under a
statute are a legitimate aid to construction of the statute as
contemporanea expositio.”. This is particularly so when Section 34 of the
Act requires Rules made under Section 32 of the Act to be laid before
each House of Parliament within a period of 30 days while Parliament is
in session.
In a catena of decisions (Tata Engineering and Locomotive
31.
by the learned counsel for the petitioner in support of the contention that
2
3
4
5
AIR1976 SC 2463 = (1976)4 SCC 177
AIR 1995 SC 1395 = 1995 Supp (2) SCC 348
AIR 1996 SC 1589 = 1996(3) SCC 296
2007(7) SCC 718
We may also refer to the rule of “ejusdem generis” invoked
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“any other material object” in Section 30 must take colour from the
preceding words. It is submitted that since all the preceding words
pertain to paper such as record, register, document, books, pamphlet and
advertisement the words “any other material object” must be construed
in light of the preceding words.
32.
AIR 1957 SC 521 (Para 11), the Apex Court laid down the following
principle:-
In Smt. Leelavati Bai Vs. State of Bombay, 1957 SCR 721 :
“The rule of ejusdem generis is intended to be applied where
general words have been used following particular and specific words of
the same nature on the
legislature presumed to use the general words in a restricted sense; that
is to say, as belonging to the same genus as the particular and specific
words. Such a restricted meaning has to be given to words of general
import only where the context of the whole scheme of legislation
requires it. But where the context and the object and mischief of the
enactment do not require such restricted meaning to be attached to words
of general import, it becomes the duty of the courts to give those words
their plain and ordinary meaning”.
established rule of construction that the
33.
and having regard to the legislative object and the mischief sought to be
avoided, as referred to in the preamble to the Act and also in the
As already discussed, on analysis of the scheme of the Act,
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Statement of Objects and Reasons to the Amendment Act 14 of 2003, we
have no manner of doubt in holding that the power under Section 30 to
seize and seal “any material object” includes power to seize and seal
ultrasound machines and other machines and equipments, capable of
selection of sex or capable of performing any procedure, technique or test
for pre natal detection of sex of foetus.
34.
Maharashtra (supra), we note that the Division Bench did not refer to
explanation (2) to Rule 12 of the PC and PNDT Rules, 1996, much less
to the legislative object and scheme of the Act discussed above .
Otherwise also, independently of reference to the said Rules, we are of
the view that on an analysis of the provisions of the Act, if any
ultrasound machine is used for conducting sonography on a pregnant
woman for a sex determination test or sex selection procedure in
contravention of the provisions of the Act, the power to seize and seal
any other material object, besides the record and documents, would
include the power to seize and seal ultrasound machines and other
machinery and equipment.
As regards the decision in Dadasaheb
35.
7973 of 2008 referred to in Paragraph 12 of the judgment in Dadasaheb’s
case. (Lata Mangeshkar Medical Foundation Vs. The Dy. Medical
Officer of Health Pune Municipal Corporation and others). That interim
order was passed in an all together different set of facts and
We may also refer to the interim order in Writ Petition No.
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circumstances. In that case, 8 ultrasound machines were seized from a
charitable hospital with 650 beds and 70 ICU beds and it was in that
background that a Division Bench of this Court (without holding that the
authority does not have the power to seize or seal ultra sound machines)
by an interim order, directed the authorities to return ultrasound machines
seized by the authorities on an allegation that “certain formalities were
not fulfilled whilst sonography on patients was conducted which raises
the suspicion that sonography might have been performed for detecting
sex of the foetus."
An interim order cannot be treated as a precedent while
interpreting the provisions of a statue, and that too when the Division
Bench did not refer to Section 30 of the Act.
36.
questions framed for determination are as under:-
In view of the above discussion, our answers to the
(i) The expression “any other material object” in Section 30
of
the
Techniques (Prohibition of Sex Selection) Act, 1994
includes ultrasound machines, other machines and
equipment capable of aiding or assisting in selection of
sex, or capable of performing any procedure, technique
or test for pre natal detection of sex of foetus.
Pre-conception
and
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(ii) The decision of the Division Bench of this Court in
Dadasaheb Vs. State of Maharashtra
L.J. 110, taking the contrary view does not lay down the
correct law and is hereby overruled.
37.
interpretation of the expression "any other material object” in Section 30
of the Act, we may not be treated to have expressed any opinion on the
question as regards the circumstances in which the power under Section
30 is to be exercised.
Since the only controversy raised in this petition was about
38.
machine was challenged only on the ground that the Appropriate
Authority or Authorized Officer does not have power or authority to take
such
action
Rule 12 and the petitioner’s contention has been repelled, we see no
merit in this petition. The petition is accordingly dismissed.
As the seizure and sealing of the petitioner's ultrasound
under
Section
30
of
the
39.
assistance rendered by Mr. Sagar A. Mane, learned counsel for the
petitioner, Mr. S.R.Nargolkar, learned Additional Government Pleader for
respondent No.2 and Mr.Uday Warunjikar, learned counsel for the
intervenors.
We place on record our appreciation for the valuable
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40.
disturbing figures of the declining National child sex ratio over the last
five decades, to which our attention has been invited by the learned
Additional Government Pleader :-
Before parting with the matter, we may refer
Year
1961
1971
1981
1991
2001
2011
In the State of Maharashtra also, the child sex ratio has gone down
No.of girls per 1000 boys
(in the age group 0-6 years)
976
965
962
945
927
914
from 913 in 2001 to 883 in 2011. It has gone down to as low as 801 in Beed
District. In Kolhapur District, where the offence in question is registered, it is
839.
41.
of offences registered under the Act are pending in Courts of the Judicial
Magistrate First Class for a long period, sometimes upto 6 years and in a few
cases as long as 6 to 8 years. It is, therefore, directed that all cases under the Act
shall be taken up on top priority basis and the Metropolitan Magistrates. Mumbai
and the J.M.F.Cs. in other Districts shall try and decide such cases with utmost
priority and preferably within one year. Criminal Cases instituted in the year
2010 and prior thereto shall be tried and decided by 31 December 2011.
We are also distressed by the fact that a number of cases for trial
42.
District Judges in all the districts of State of Maharashtra and State of
Goa and to the Chief Metropolitan Magistrate, Mumbai, who shall in turn
A copy of this judgment shall be circulated to
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circulate a copy of this judgment to the Metropolitan Magistrates, Mumbai and
all the Judicial Magistrates First Class in their respective districts for timely
compliance with the above direction.
CHIEF JUSTICE
DR. D.Y. CHANDRACHUD, J.
D.G. KARNIK, J.
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