C. C. No. 10169/MS/2004
Decided on 14/08/2009
Mumbai Municipal Corporation
(Through Legal Assistant of G/N - Ward)
-Vs-
1. Chhaya Rajesh Tated, Aged 42 yrs.
2. Shubhangi Suresh Adkar, Age 62 yrs.
Hon’ble Judge :R. V. Jambkar.
Appearance : Ld. Adv. Mr. Engineer for Complainant,
Ld. Adv. Ghate for accused accused No.1.
Ld. Adv. Vedak for accused No.2.
CASE SUMMARY
This is the first case of conviction recorded under the Act in the State of Maharashtra and was
given wide publicity by the media, which it deserved, for the purpose of creating awareness and
sensitization among the general public and the doctor community.
The facts of this case are peculiar and they pertain to the publication of an advertisement in
the weekly magazine in connection with selection of the sex of foetus. In the weekly magazine, the
Lokprabha dated 19/11/2004 and 03/12/2004 one advertisement was released by accused No. 1 to
the effect that,
On 27/11/2004 P.W. No. 1 Dr. Kanchan after coming to know about the said advertisement,
carried out an inspection of Shri Maternity and Nursing Home and found that no board was displayed
there stating that sex of the foetus will not be determined. “”.Further, the registration certificate was
not displayed and register of cases was also not maintained. Hence both, accused No. 1 Dr. Chhaya
Tated who has issued the advertisement and accused No. 2 Dr. Adkar who was owner of the said
5 (3)Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 163
Cases of Conviction
Nursing Home were prosecuted for the contravention of the provisions u/s 22 (3) and Rules 6 (2), 4
(1), (2), 9 (1) of the Act.
Taking into consideration seriousness of the matter, the Court adopted the procedure laid down
for warrant triable cases. Both the accused pleaded not guilty. Prosecution examined 4 witnesses in
support of its case; whereas accused No. 1 examined herself in support of her defence that she has
actually communicated to issue the advertisement “want a child?” and not “want a son?” ¼eqy go;a\
and not eqyxk gok;\½ However there was mis-communication between her and her witness Sunil
Patni. Moreover when she came to know that the advertisement was published in the magazine, she
immediately informed the said publisher to issue a corrigendum which was accordingly published in
Lokprabha magazine dated 31/12/2004.
The Court considered in detail the entire evidence on record, appreciated it in proper perspective
and held that the defence raised by accused No. 1 was clearly an after thought. Both the accused
were therefore held guilty for all the offences alleged against them and convicted and sentenced
separately on each count to suffer R.I. for 3 years and to pay fine of Rs. 10,000/- each in default R.I.
for further 3 months. (Para 20 & 32)
The Judgment is positive in several aspects, like appreciation of evidence, adopting deterrent
approach while imposing punishment considering the serious nature of the offence and also having
regard to the object of the Act, the status of the accused in society as doctors and therefore expected
to follow the law and not to commit the breach there of.
JUDGMENt
Per Hon’ble Mr. R. V. Jambkar.
Charge : For the Offence Punishable u/s. 22(3) and Sec.23 for contravening provisions of Rules 4(1) (2), 6(2)
9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre-Conception & Pre-Natal Diagnostic
Techniques (Prohibition of Sex Section) Act, 2003.
(Here-in-after referred as “P.N.D.T. Act”.)
JUDGMENt
(Delivered on 14/8/2009 )
1. Accused – above named – are facing trial for the offence Punishable u/s. 22(3) and Sec.23 for contravening
provisions of Rules 4(1) (2), 6(2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The PreConception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003.
2 . The scenario of prosecution’s case unfurled during trial as;
(a) On 27/11/2004 P.W.N0.1 Dr. Kanchan Shrikant Banavalkiar was serving as Medical Officer, Health
Department, G/N – Ward, M.M.C., Mumbai. On that day, she received one letter from Deputy Director,
Health Service, Bombay Circle in which Deputy Officer, Health asked her to take action against
advertisement published by accused No.1 in weekly magazine “Lokprabha”, November 2004 in
connection of selection of sex of baby. So, immediately, she carried out inspection of “Shree Maternity
and Nursing Home, Dadar along with her Assistant Rathod, Sanitary Inspector Mr. Kadam and other
staff. During the course of her inspection, she noticed that no board was displayed at “Shree Maternity
and Nursing Home” Dadar, projecting “there will be no detection of the sex of the child”. Registration
certificate was also not displayed and register of cases was also not maintained by “Shree Maternity164 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
and Nursing Home” which belongs to accused No.2 Dr. Adkar.
(b) At the time of inspection, accused No.2 Dr. Adkar was present in the Nursing Home in the capacity
of owner of said Nursing Home. Complainant made inquiry with her. During the course of inquiry,
accused No.2 disclosed that accused No.1 Tated used to visit the Nursing Home on every second and
fourth Sunday from Aurangabad. To that extent, accused No.1 gave written statement to complainant
which is placed on record vide (Exh.P-5). Thereafter, P.W.N0.1 prepared panchnama in presence of
two panchas, recorded statement of accused No.1 Chhaya Tated, carried out inquiry with the publisher
and thereafter, came to conclusion that both the accused contravened the provisions u/s. 22 and Rules
6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre Conception
& Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003. Hence, she filed present
complaint .
(c) My Ld. Predecessor Mrs. Karnik issued process against both the accused for the offence punishable u/s.
22(3), Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre
Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003. In sequel, both
the accused appeared before the court and were released on bail. It appears from record that, looking
into seriousness of matter, it came to be disposed off by way of adopting procedure laid down for
warrant triable cases. Hence, evidence before charge of P.W.No.1 Dr. Banavalkiar came to be recorded,
vide (Exh.P-4). At the initial stage both the accused partly exercised their right of cross examination and
reserved their remaining cross. So, my Ld. Predecessor framed charge against both the accused for the
offence punishable u/s. 22(3), Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994
(Amended as The Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section)
Act, 2003. On perusal of charge, it is to be seen that my Ld. Predecessor readover and explained the
substance of charge to both the accused for which they pleaded not guilty and claimed to be tried.
(d) Complainant / Prosecution examined P.W.N0.1 Dr. K.S. Banavalkiar (Exh.P-4) in the capacity of
complainant, P.W.N0.2 Dr. D.G. Rathod (Exh.P-9) in the capacity of Medical Assistant, P.W.N0.3
Ramakrishnan T.K. Kunhappan Kunnath (Exh.P-15) on the point of proving of advertisement, P.W.N0.4
Vijay B. Padhey (Exh.P-22) in the capacity of Managing Director of P.Y. Padhey Publicity Private Ltd.
Apart from these oral evidence, prosecution relied upon documentary evidence i.e. statement of accused
No.1 recorded by complainant (Exh.P-5), panchnama (Exh.P-6), authority of P.W.N0.1 (Exh.P-7),
Government Gazette (Exh.P-8), registration certificate of accused (Article D and E), advertisements
dt. 19/11/2004 and 3/12/2004 are (Exh.P-17 and 18 respectively), corrigendum (Exh.P-19), payment
receipt (Exh.P-23).
(e) Statement of accused U/Sec. 313 of Cr. P. C. came to be recorded individually vide (Exh.P-26 and 27
respectively). In defiance, accused No.1 took the defence of miscommunication and relied upon the
explanation given by her to Vijay Padhey dt.19/11/2004 (Exh.P-24) and corrigendum (Exh.P-19). To
the buttress, she got examined herself u/s. 315 of Cr.P.C. and relied upon the oral evidence of D.W.N0.2
Vijay Patni on the point of proving of her defence of miscommunication.
(f) Perused oral and documentary evidence. Read memorandum of argument filed on record. Heard Ld.
Adv. Mr.Engineer for complainant and and Ld. Defence counsel Mr.Ghate for accused No.1 and
Mr.Vedak for accused No.2. Thereon following points arises for my determination to which I have
recorded my findings thereon for the reasons discussed thereunder -
Points Findings
1 ) Does prosecution proved that in the month of November 2000, at Weekly
Magazine “Lokprabha” accused No.1 published advertisement about selection of sex of baby
before conception at Shree Maternity and Nursing Home, Dadar and thereby committed an
offence punishable u/s.22(3) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The
Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003?Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 165
Cases of Conviction
...Proved.
2) Does the prosecution further proved that in the aforesaid period and place, both accused did not
get registered the Nursing Home in Form -A and thereby committed an offence punishable u/s.
23 for contravening the provisions of Rule 4(1)(2) of the P.N.D.T. Act ?
....Proved.
3) Does the prosecution further proved that in the aforesaid period and place accused failed to
display the duplicate certificate of registration in Form-B to conduct pre-natal diagnostic tests
or procedure, depending on the availability of place, equipments and qualified employees (no
and standard maintained by such laboratory separate sentence and thereby committed an offence
punishable passed) u/s.23 for contravening the provisions of Rule 6(2) of P.N.D.T. Act ?
..Proved.
4. Does the prosecution further proved that in the aforesaid period and place accused failed to
maintain a register showing serial order, names and address of patients given genetic counseling,
subjected to pre-natal diagnostic procedure or tests, the name of their spouse or father and the
date on which they reported for counseling and thereby committed an offence punishable u/s. 23
for contravening the provision of Rule 9(1) of the P.N.D.T. Act ?
...Proved.
5 ) What order ? As per final order.
REASoNS
As to point No. 1 :
3. At the out set, before marshaling of evidence, I would like to reproduce the provisions of Sec.22 of P.N.D.T
Act, which reads thus;
Sec.22 : Prohibition of advertisement relating to preconception and prenatal determination of sex and
publishment for contravention.
(1) No person, organization, Genetic Conselling Centre,Genetic Laboratory or Genetic Clinic including
clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other
technology capable of undertaking determination of sex of the foetus or sex selection shall issue,
publish, distribute, communicate or cause to be issued, published, distributed or communicated any
advertisement, in any form, including internet, regardingfacilities of pre-natal determination of sex or
sex selection before conception available at such Centre, Laboratory, Clinic or at any other place.
(2) No person or organization including Genetic Counseling Centre, Genetic Laboratory or Genetic
Clinic shall issue, publish distribute, communicate or cause to be issued, published, distributed or
communicated any advertisement in any manner regarding pre-natal determination or pre-conception
selection of sex by any means whatsoever, scientific or otherwise.
(3) Any person who contravenes the provisions of sub section(1) or sub section(2) shall be punishable
with Imprisonment for a term which may extent to three years and with fine which may extent to ten
thousand rupees.
EXPLANAtIoN:For the purpose of this section, ‘advertisement’ includes any notice, circular,
lable, wrapper or any other document including advertisement through internet or any other media in
electronic or print form and also includes any visible representation made by means of any hoarding,
wall painting, signal, light, sound, smoke or gas.
4. In order to prove the advertisement, alleged to have been published by accused No.1 in Lokprabha Weekly
Magazine dt. 19/11/2004 and 3/12/2004, which are at (Exh.P-17 and P-18 respectively), prosecution got 166 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
examined P.W.N0..1 Dr. K.S. Banavalikar (Exh.P-4). According to her evidence that upon receiving the
letter from Public Health Department, dt. 6/12/2004 ( Article-F ), she carried out inspection of Shree Nursing
Home, Dadar and verified the said fact from accused No.2 Dr. Adkar, who is the owner of Shree Nursing
Home. According to the statement of accused No.2 (Exh.P-5), that accused No.1 Tated used to join Shree
Nursing Home on every second and fourth Sunday from Aurangabad. This fact is also duly proved by the
mouth of accused No.1, during the course of recording of her statement u/s. 313 of Cr.P.C.
5. Prosecution examined P.W.N0.2 Dr. Mr. D.G. Rathod (Exh.P-9) who on 27/11/2004 was accompanied
with P.W.N0.1. P.W.N0.2 deposed before the court that during the course of their inspection, they prepared
panchnama. Panchnama is placed before court vide (Exh.P-6).
6. Further, prosecution examined P.W.N0.3 Ramakrishnan T.K. Kunhappan Kunnath (Exh.P-15) in the capacity
of publisher of Lokprabha Magazine. According to his evidence that prior to 19/11/2004 he received D.T.P.
Material by accused No.1 through P.Y. Padhye, Publicity Pvt. Ltd. Accordingly, he released the advertisement
in Lokprabha magazine on 19/11/2004 and 3/12/2004. Thereafter, he also published corrigendum given by
accused on 31/12/2004.
7. Further, prosecution examined P.W.N0.4 V.B.Padhye (Exh.P-22). According to his evidence that he is in well
acquaintance with accused No.1 since 15 years and in the month of October first week accused No.1 Chhaya
Tated requested him to release the advertisement in weekly magazine Lokprabha for the month of November,
December and January and provided ready D.T.P.(Dest Top Printing) material. Accordingly, he send it to
the publisher of Lokprabha magazine, pursuant to which, Lokprabha magazine released advertisement on
19/11/2004 and 3/12/2004.
8. Now, let us see the advertisement which were released by accused on 19/11/2004 and 3/12/2004, which reads
thus;
Advertisement dt.19/11/2004:
"_wcJm hdm?'
J^©YmaUonyduM
{deof CnMma ! Xa 2 am, 4 Wm a{ddma
doi 12 Vo 6. S>m°. N>m`m VmVoS>; \$m°aoZ [aQ>Z©,
lr. Z{gªJ hmo_, goZm ^dZg_moa, XmXa n. _w§~B© 24464985
gmo_ _§Ji - nra~mOma, Am¡a§J~mX 2341180
Advertisement dt.3/12/2004:
"_wcJm hdm?'
J^©YmaUonwduM
{dfoe CnMma ! Xa 2 am, 4 Wm a{ddma
doi 12 Vo 6, S>m°. N>m`m VmVoS> ;\$m°aoZ [aQ>Z©,
lr. Z{gªJ hmo_, goZm ^dZg_moa, XmXa n. _w§~B© 24464985
gmo_ _§Ji - nra~mOma, Am¡a§J~mX 2341180
9. In the light of aforesaid advertisements, accused No.1 got examined herself, as defence evidence vide (Exh.P-
29) and took the defence of miscommunication. According to her, that she completed her graduation in
Homeopathic branch and in order to carry out her practice, she use to release advertisements in Lokprabha
magazine as well as in other newspapers. For that purpose, she use to supply information of advertisement on Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 167
Cases of Conviction
telephonic message to one Sunil Patani. Thereafter, Sunil Patani i.e. D.W.N0.2 use to provide that information
to D.T.P. operator and thereafter it goes to P.W.N0.4 Padhye for its advertisement.
10. She further deposed that never she supplied the information in order to release the advertisement dt.19/11/2004
and 3/12/2004. On the contrary, when she was giving telephonic information to Sunil Patani that time, he
listen “want a son”, instead of “want a child” and got prepared the D.T.P. material from concern and supplied
it to Shri. Padhye. So, it is telephonic miscommunication in between accused No.1 and D.W.N0.2 Sunil
Patani.
11. Further she deposed that on 17/11/2004 somebody informed her in respect of advertisements dt. 19/11/2004
published in Lokprabha Magazine which issue was came into market for sale, immediately, she informed the
said fact to P.W.N0.4 Padhye on telephonic message and wrote one letter to him and send it by hand delivery
with someone .Similarly, she also communicated this fact to Additional Director, Health Department, Pune in
written form on 7/12/2004.
12. In order to prove the defence of miscommunication, accused No.1 Tated relied upon the testimony of D.W.N0.2
Sunil Patani (Exh.P-35). According to his evidence, that since 10 years he is acquainted with accused No.1
on account of his business relations with accused No.1. At some occasion, when he used to come at Mumbai
for his business purpose, that time accused No.1 used to supply the material of D.T.P. for advertisement
thereafter he used to supply that material to Padhye Publicity Pvt. Ltd. He further deposed that, so far as
advertisements dt. 19/11/2004 and 3/12/2004 are concerned, he listened “want a son”, instead of “want a
child”. Accordingly, he got prepared D.T.P. material and supplied it to P.W.N0.4 Padhye. Pursuant to which,
Lokprabha Magazine projected those advertisements. In order to substantiate the contention of D.W.N0.2, he
relied upon his affidavit, which is placed before court vide (Exh.P-36).
13. The sum and substance of the defence taken by accused No.1 is concern, I would like to point out that in order
to substantiate the defence of miscommunication, apart from these oral evidence accused No.1 relied upon
the letter given by her to P.W.N0.4 Padhye, which is placed before court vide (Exh.P-24). Now, let us see the
contents of letter, which reads thus;
Letter (Exh.P-24): 19@11@2004
lr`wV {dO` nmÜ`o,
gg³oh Z_ñVo / {d. {d. _mJrc doir _r D.T.P. ~ZdyZ KoUm-`mcm "_yc hdo?'Ago {fe©H$ ¿`md`mg \$moZda gm§{JVco
hmoV. na§Vw \$moZda EoH$Ê`mV Ë`mÀ`mH$Sy>Z MyH$ Pmcr Am{U Ë`mZo "_yc hd§?' EodOr MwHy$Z _wcJm hdm? Ago {ef©H$
D.T.P. ~Z{dUm-`mH$Sy>Z H$adyZ KoVc§ Am{U nañna Vr D.T.P. Vw_À`mH$So> _w§~B© Am°{\$gmV AmUyZ {Xcr. hr D.T.P.
_r ñdV… nm{hcrhr Zmhr Am{U {edm` Ago MwH$sMo H$mhr KSo>c ho _cm AJXrM AZno{jV hmoV§. H$maU `mnyduhr Ë`mZo
D.T.P. ~ZdyZ KoVë`m hmoË`m Am{U nañna Vwåhm§cm _w§~B©À`m Am°{\$gmV _cm Z XmIdVm AmUyZhr {Xë`m hmoË`m.nU
`mnydu Ago Ë`mÀ`mH$Sy>Z {ef©H$ MwH$sMo EoH$co OmUo Am{U Vfr MwH$sMr D.T.P. hmoUo Ago AmOn`ªV H$YrM Pmco Zmhr.
`mdoiMm A§H$ hm {Xdmir A§H$ hmoVm. Ë`m_wio Vmo ~mOmamV cdH$a Amcm Agmdm. H$mc Hw$UmMm Var _cm \$moZ Amë`mda
Amnë`m Om{hamVr_Ü`o H$mhrVar MwH$sMo N>mnco Joë`mMo _cm cjmV Amco. _mPr ZwH$VrM \$moZ S>m`ar Hw$Ro>Var hadcr
Agë`mZo _cm Vwåhm§cm cJoM \$moZ H$aVm Amcm Zmhr. åhUyZ AmO Am¡a§Jm~mXhÿZ _w§~B©cm `oUmaè`m ì`ŠVrH$So> ho nÌ _r
EH$X_ JS>~S>rV {chÿZ nmR>{dV Amho. Iao åhUOo `m cmoH$n«^m _m{gH$mÀ`m proof reader Zo "_wcJm hdm?' Ago {ef©H$
{XgVmM hr Om{hamV ~mOycm H$mTy>Z Ro>dmd`mg hdr hmoVr. H$mXm{MV Ë`m§À`mH$Sy>Zhr Vr MwH$sZo ZOaoAmS> Pmcr Agmdr.
Agmo. _mÌ `mnyTo> hr MwH$sM Om{hamV A{O~mV hmoC Z`o Ago cmoH$n«^mcm Vm~S>Vmo~ H$i{dUo.
Amncr {dídmgy
S>m° N>m`m O¡Z168 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
14. On close scrutiny of the contents of letter and oral evidence adduced by accused No.1, I found major
inconsistency between them because,as per the letter xh.P-24),it is to be seen that at the relevant time accused
No.1 misplaced her telephone diary so, she could not communicate this fact to P.W.N0.4 Padhye by telephonic
message. Thereby, she wrote this letter (Exh.P-24) and send it to P.W.N0.4 Padhye by hand delivery with the
help of one person. The said episode appears to be false simply for the reason that accused No.1 exposed in
her chief examination by admitting that immediately when she came to know about the advertisements, she
informed said fact to P.W.N0.4 Padhye on telephonic message and wrote one letter. This admission given
by accused No.1 in her evidence itself appears to be contrary with the contents of letter, because as per the
contents of letter that at the relevant time her telephone diary was misplaced, so she could not communicate
this fact to P.W.N0.4 Padhye, on telephonic message, thereby she handed over this letter to one person
who was coming towards Mumbai. If it was so, then question arises as to why accused No.1 deposed in
her evidence that she informed this fact to P.W.N0.4 on telephonic message. This appears to be a major
inconsistency in oral and documentary evidence adduced by accused No.1.
15. Furthermore, I would like to point out that as per the evidence of P.W.N0.4 Padhye that, he is in acquaintance
with accused No.1 since 15 years and he is having commercial relations with her. In this scenario, it is
necessary for the court to scrutinize the oral and documentary evidence placed on record by defence witness
and P.W.N0.4 Padhye with great care and caution. In sequel, while assessing the evidentary value of this
letter, I would like to point out that, as per the evidence of accused No.1, it was delivered by her to P.W.N0.4
Padhye by hand delivery. In order to prove this fact, it was necessary for her to examine that person who
delivered it to P.W.N0.4 Padhye. On this point, the evidence adduced by accused No.1 and P.W.N0.4 Padhye
remained silent as to who handed over this letter to P.W.N0.4 Padhye. In this background, had it been said
that it is a genuine document, particularly when it was placed on record by P.W.N0.4 during the course of his
cross examination when it was not called by accused or prosecution, from which only it could be gathered
that it is a fabricated document prepared by accused No.1 with the help of P.W.N0.4 with intent to save her
from this proceeding. So, there is a need to discard this evidence in toto.
16. Furthermore, I would like to point out that as per the evidence of D.W.N0.2 Patani that while receiving
information of advertisement, he listened “want a son”, instead of “want a child”. So, he got prepared D.T.P.
material and supplied it to P.W.N0.4 Padhye. Similarly, D.W.N0.2 also placed his affidavit before the court
vide (Exh.P-36), which is prepared by him before notary in which he retreated the same contentions. On
this point, assuming for a moment, that this defence adopted by accused No.1 is true, then question arises
as to why she failed to check out the contents of D.T.P. material prior to its advertisement. Is it not a duty of
accused No.1, to check it? But to that extent, there is no explanation given by accused. Moreover, during the
course of cross examination of D.W.N0.2, he exposed by admitting that at the time of preparation of affidavit
(Exh.P-36), he did not narrate the contents of affidavit to the typist. On the contrary, it came to be typed upon
the instructions given by accused No.1 Dr. Tated and she paid the fees of notary. Similarly, at the time of
preparation of affidavit notary did not administer oath to him. It means it is not a affidavit in true sense.
17. Furthermore, on perusal of (Exh.P-36), it is to be seen that at the time of preparation of affidavit, D.W.N0.2
stated before notary that he saved the contents of advertisement given by accused No.1 Chhaya Tated to
him and as per the requirements of accused No.1, he used to supply that ready material to P.W.N0.4 Padhye.
From this recitals, it is to be seen that already those advertisements were saved by D.W.N0.2 and upon the
instructions from accused No.1 and as per her requirements, he used to supply that material to P.W.N0.4
Padhye. This admission given by D.W.N0.2 before notary is also goes against the accused No.1 and it
expressly helps to the story of prosecution.
18. On this point, Ld. Defence Counsel vehemently argued that it is only part of miscommunication between
accused No.1 and D.W.N0.2 Patani. When accused No.1 came to know about the fact of advertisement,
immediately she published one corrigendum in Lokprabha magazine dt. 31/12/2004 (Exh.P-19). Now, let
us see the contents of corrigendum (Exh.P-19) and its comparison with disputed advertisement (Exh.P-17),
which reads thus;Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 169
Cases of Conviction
Corrigendum (Exh.P-19) Advertisement (Exh.P-17)
dt. 31/12/2009 dt.19/11/2004.
ewÜXrnÌH$
_wcJm hdm?
J^©YmaUonwduM {deof CnMma!
Xa 2am, 4Wm a{ddma doi 12 Vo 6
S>m°.N>m`m VmVoS> (\$m°aoZ [aQ>Z©)
lr.Z{gªJ hmo_, goZm ^dZg_moa, XmXa n._w§~B© 24464985
gmo_. _§Ji - nra~mOma, Am¡a§J~mX 2341180
"_yc hd§?' EodOr _mJrc A§H$mV "_wcJm hdm' Ago MwH$sZo N>mnco Joco.
Var J^©YmaUm Z hmoUm-`m§Zm AWdm J^©YmaUm hmoCZ ZD$ _{hZo nyU© Z hmoUm-`m Ho$goggmR>r
J^©YmaUonydu {deof hmo{_Amon°{WH$ CnMma .
S>m°. N>m`m VmVoS> hmo{_Amon°{WH$ Vk
_w§~B© Xa Xwgam / Mm¡Wm a{ddma
Am¡a§Jm~mX Xa gmo_ / _§Ji 2341180
19. On going through the contents of corrigendum and while comparing it with advertisement dt.19/11/2004
(Exh.P-17), it is to be seen that accused No.1 made three major changes in corrigendum dt.31/12/2004. She
changed the heading of advertisement i.e. “want a child”, instead of “want a son”, similarly, in corrigendum
she failed to mention her degree and address of Shree Nursing Home along with its phone number. On this
point, I would like to point out that in earlier advertisement dt.19/11/2004 (Exh.P-17) and dt.3/12/2004 (Exh.P-
18). accused personated herself as foreign returned doctor. But in corrigendum she mentioned Homeopathic
expert and failed to give her contact address at Mumbai. Considering these major changes made by accused in
corrigendum, it is to be seen that, if it was a part of miscommunication between accused No.1 and D.W.N0.2
in connection with the “heading of advertisement”, then question arises as to why she failed to mention her
degree as “foreign returned” Doctor and address of “Shree Nursing Home” along with “telephone number”
in corrigendum. It means, she tried to cope up this lacuna.
20. On this point, I hold that accused No.1 is not skilled person of Allopathy side because according to her evidence
that she has completed graduation in Homeopathic side. If it was so, then question arises as to whether
Homeopathy degree provides any such type of treatment. To that extent, the burden is shifted upon accused
No.1 but, she could not rebut it. On the contrary, the advertisement dt. 19/11/2004 (Exh.P-17) and 3/12/2004
(Exh.P-18), it is to be seen that she tried to personate herself as a foreign returned doctor and suppressed
the fact of her original qualification.But in corrigendum, she mentioned her qualification as Homeopathic
Expert. It means, at the time of releasing corrigendum she became more cautions and took all precautionary
measures with intent to save her from the proceeding, because as per her oral evidence that immediately when
she came to know about the advertisements dt. 19/11/2004 and 3/12/2004, she published corrigendum, but it
appears to be false. Because in present case on 27/11/2004 P.W.N0.1 carried out inspection of Shree Nursing
Home and recorded statement of accused No.2 on 29/11/2004. It means prior to releasing of advertisement
of corrigendum, she was well aware about the initiation of this proceeding. So, the entire defence evidence
brought on record by the mouth of accused, D.W.No.2 and letter dt.19/11/2004 (Exh.P-24) and letter (Exh.P-
30) which are written by accused to Additional Director, Health Department, Pune on 7/12/2004, is appears
to be a brought-up and fabricated evidence placed on record with intent to save accused No.1 from this
proceeding. So, it is liable to be straight way rejected.170 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
21. Furthermore, Ld. Defence Counsel for accused No.1 also raised objection in his memorandum of argument
by submitting therein that at the time of inspection P.W.No.1, was not having any valid authority to carry
out inspection under the P.N.D.T act. Despite this she acted and prepared panchnama. So, her act is an
ultra virus. In order to ascertain the answer of this question, I have taken the assistance of oral evidence
adduced by P.W.N0.1 (Exh.P-4), in which she categorically deposed that the then D.M.C. Mr. Doctor deputed
her at G/N-Ward as a Medical Offier Health Department. Similarly, Government Gazette (Exh.P-8) placed
before the court authorized every medical officer as a competent authority to the extent of their respective
territorial jurisdiction. In the present case it is not disputed that at the time of inspection P.W.N0.1 was
authorized by D.M.C. to act as medical officer for G/N-Ward. The said authority is not seriously challenged
in cross examination. Similarly, Gazette itself is having presumptive value as contemplated under Sec.81 of
the Evidence Act.Under these circumstances, I hold that P.W.N0.1 is authorized to exercise the powers given
under this Act
22. So far as involvement of accused No.2 Dr. Adkar is concerned, Ld. Defence Counsel Mr.Vedak for accused
No.2 submitted that whatever the practice carried out by accused No.1 at Shree Nursing Home was not having
any concern with accused No.2, because accused No.2 allowed her to carry out her practice as Homeopathic
Expert. So, she does not covered under the provision of Sec.22 of the P.N.D.T. Act. On this aspect, I failed to
understand the argument advanced by Ld. Defence Counsel simply for the reason that, when accused No.2
allowed accused No.1 to carry out her practice prior to two years, then it will be treated that accused No.2
is also having commercial terms with accused No.1, under these circumstances, there is also necessity to
scrutinize the evidence of both the accused with great care and caution. While scrutinizing it, firstly, I would
like to reproduce the definition of Genetic Counseling Centre, which is provided u/s.2(c) of the P.N.D.T. Act
which reads thus;
“Genetic Counseling Centre” means an institute, hospital, nursing home or any place, by whatever name
called, which provides for genetic counseling to patients;
“Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called,
which is used for conducting pre-natal diagnostic procedures;
EXPLANAtIoN:
For the purposes of this clause, “Genetic Clinic”includes a vehicle, where ultrasound machine or imaging
machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment
which has the potential for detection of sex during pregnancy or selection of sex before conception, is used;
23. On going through the definition of Genetic Counseling Centre, it is to be seen that any nursing home or any
place by whatever name called, came to be used for counseling to the patients is called, ‘Genetic Counseling
Centre’ and as per Sec.4 of the P.N.D.T. Act it is necessary for every Genetic Counseling Centre to get it
registered under the P.N.D.T. Act.
Sec.4 reads thus;
4. Regulation of pre-natal diagnostic techniques: On and form the commencement of this Act-
(1) no place including a registered Genetic Counseling Centre or Genetic Laboratory or Genetic Clinic
shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except
for the purposes specific in Cl.(2) and after satisfying any of the conditions specified in Cl.(3);
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the
following abnormalities, namely;
(i) chromosomal abnormalities.
(ii) genetic metabolic diseases;
(iii) haemogloginopathies;Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 171
Cases of Conviction
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is
satisfied for reasons to be recorded in writing.
(i) age of the pregnant woman is above thirty five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation,
infection or chemicals.
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical
deformities such as, spasticity or any other genetic diseases.
(v) any other condition as may be specified by the Board.
24. In present case, while assessing evidence against accused No.2, I hold that accused No.1 and accused No.2
are having cordial relations with each other, accused No.1 was practicing in Shree Nursing Home, which
belongs to accused No.2. Under these circumstances, whether is it possible to place reliance upon the defence
taken by accused No.2 in connection with her non involvement in the said crime? The rational answer of this
question goes into negative simply for the reason that in present case accused No.1 and 2 are having cordial
relations. Both are qualified doctors. For a moment if court assumes that accused No.2 came to know about
the act of accused No.1 after the date of inspection i.e. 27/11/2004 then question arises as to why immediately
she failed to inform the said fact to the appropriate authority i.e. Maharashtra Council of Homeopathy Board
in connection with professional misconduct of accused No.1 for taking serious action against her. When she
remained silent on this point, then only inference could be drawn that accused No.2 impliedly consented
accused No.1 to carry out her practice at her nursing home by way of providing aid to her at her nursing home,
which is not registered under P.N.D.T. Act. Hence, I hold that in present case both the accused contravened
the provisions of Sec.22 of P.N.D.T. Act. Therefore, I have no hitch to record my findings on Point No.1 in
the affirmative.
25. As to Point No.2 and 3:
Both the points are interlinked so discussed with each other. To that extent, let us see the provisions of Rule
4(1)(2) of the P.N.D.T. Act which reads thus;
4. Registration of Genetic Counseling Centre, Gentic Laboratory and Genetic Clinic – (1) An application
for registration shall be made to the Appropriate Authority, in duplicate, in Form A, duly accompanied
by an Affidavit containing-
(i) an undertaking to the effect that the Genetic Centre / Laboratory/ Clinic/ Ultrasound Clinic/
Imaging Centre / Combination thereof, as the case may be, shall not conduct any test or procedure,
by whatever name called, for selection of ‘sex’ before or after conception or for detection of sex
of foetus except for diseases specified in Section 4(2) nor shall the sex of foctus he disclosed to
any body; and
(ii) an undertaking to the effect that the genetic centre / Laboratory /clinic combination thereof as
the case may be shall display prominently a notice that they do not conduct any technique test
or procedure etc. by whatever name called for detection of sex of foetus or for selection of sex
before or after conception.
(2) The Appropriate Authority, or any person in his office authorized in this behalf, shall acknowledge
receipt of the application for registration, in the acknowledgment slip provided at the bottom of Form
A, immediately if delivered at the office of the Appropriate Authority, or not later than the next working
day if received by post. 172 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
26. After going through the provision of Rule 4 of the said Act, it is to be seen that it is necessary for every
Genetic Counseling Centre to get it registered before the appropriate authority because Genetic Counseling
Centre is a process, where qualified Genetic Counselor will conduct genetic test, evaluate family history to
know where the patients are passing some diseases from one generation to another. In present case, without
having any qualification to run genetic counseling center, both the accused run it at the nursing home, belongs
to accused No.2 Dr. Adkar. So, I am of the opinion that, it is not only contravention of Rule 4 but it is a false
impersonation of both the accused to the public who is innocent and not having sufficient knowledge about
the medical field and acts upon their advices. Hence, I hold that, prosecution duly succeed to prove that both
accused contravened Rule 4(1)(2) and Rule 6 of the P.N.D.T. Act. So far as, Point NO.3 is concerned, I hold
that the said point is already covered while deciding point No.2 hence, no need to pass separate sentence for
contravention of Rule 6(2) of the P.N.D.T. Act. Therefore, I have recorded my findings to point No.2 and 3
accordingly.
27. As to point No.4:
It has come in the evidence of P.W.N0.1 and P.W.N0.2 that at the time of inspection both the accused failed to
produce the registers showing names and addresses of men and women to whom they tendered the services
of counseling. To that extent, first of all, I would like to point out that, it is unauthorized genetic counseling
centre, established by both the accused. Under this circumstance, it is not expected from them to maintain the
register with intend to create evidence against them. So, there might be a chance that accused did not maintain
the register. Whatever-so-may-be, but the provisions of Rule 9(1) provides condition to maintain record at
Genetic Counseling Centre and in present case accused failed to maintain it, though it was not registered. So,
I hold that accused also contravened Rule 9(1) of the P.N.D.T. Act.
28. As to point No.5:
Cumulative effect of the aforesaid discussion and the findings thereon goes to suggest that in present case
prosecution duly succeed to prove the guilt against accused for the offence punishable u/s.22(3) and 23 for
contravening Rules 6(2),4(1)(2),9(1) of P.N.D.T. said Act. So, I have recorded my findings on Point No.4 in
the affirmative. My findings constrained me to pause here to hear the accused on the quantum of sentence.
Date: 14/8/2009.
Mumbai .
(R. V. Jambkar)
Metropolitan Magistrate,
41st Court, Shindewadi,
Dadar, Mumbai.
JUDGMENt RESUMED
29. On the quantum of sentence, accused No.1 submitted that she belongs to middle class family and bread and
butter of her children is depend upon her earning. So, she prayed for imposing minimum fine. Accused No.2
submitted that she is senior citizen and aged around 62 years. So, she prayed for imposing minimum fine.
30. Heard Ld. Defence counsel Mr. Ghate for accused No.1 and and Mr.Vedak for accused No.2. They also
retreated the same contention.
31. While considering the quantum of sentence, court has to consider the mitigating and aggravating circumstance.
Accused in the case at hand are doctors. Admittedly, they are reputed persons from the society. Society looks
towards them as their ideal persons and when such persons have committed the offence which is coming
within ambit of not only heinous but also against the existence of the society. Because, by their act they
have encouraged to the society for determination of sex of female with a view to prevent pregnancy of Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 173
Cases of Conviction
female foetus. So, definitely, it come within the ambit of aggravating form of circumstance. Under such
circumstances, they are not entitled for leniency.
32. Similarly, P.N.D.T Act views the offence committed under this act very seriously which makes every offence
under this act is cognizable, non-bailable and non-compoundable. The Legislature want to protect the dignity
and status of women. In this context Parliament introduced this act which never permit for showing leniency
while passing sentence thereon. Therefore, I proceed to pass following order.
oRDER
1. Accused 1. Chhaya Rajesh Tated and 2. Shubhangi Suresh Adkar are hereby convicted u/s. 248(2) of Cr.P.C.
of the offence punishable U/Sec. 22(3) for contravening the provisions of Sec.22(1)(2) and for the offence
punishable u/s.23 for contravening the provisions of Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic
Techniques Act, 1994 (Amended as The Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of
Sex Section) Act, 2003.
2. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 22(3) for
contravening the provisions of Sec.22 of P.N.D.T Act and do pay fine amount of Rs.10,000/- (Ten Thousand
only) each. In default of payment of fine, they shall suffer R.I. for three months.
3. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 23 for
contravening the provisions of Rule 4(1)(2) of P.N.D.T Act and do pay fine amount of Rs.10,000/- (Ten
Thousand only) each. In default of payment of fine they shall suffer R.I. for three months.
4. Both the accused are convicted for the offence punishable u/s. 23 for contravening the provisions of Rule
6(2), but no separate sentence passed for the same.
5. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 23 for
contravening the provisions of Rule 9(1) of P.N.D.TAct and do pay fine amount of Rs.10,000/- (Ten Thousand
only) each. In default of payment of fine they shall suffer R.I. for three months.
6. Accused shall surrender their bail bonds, if any for undergoing the sentence.
7. All sentences shall run concurrently.
8. Copy of Judgment be delivered to both the accused, free of costs, forthwith.
Date:14/8/2009.
Mumbai.
(R. V. Jambkar)
Metropolitan Magistrate,
41st Court, Shindewadi,
Dadar, Mumbai. Rgz.
Print Page
Decided on 14/08/2009
Mumbai Municipal Corporation
(Through Legal Assistant of G/N - Ward)
-Vs-
1. Chhaya Rajesh Tated, Aged 42 yrs.
2. Shubhangi Suresh Adkar, Age 62 yrs.
Hon’ble Judge :R. V. Jambkar.
Appearance : Ld. Adv. Mr. Engineer for Complainant,
Ld. Adv. Ghate for accused accused No.1.
Ld. Adv. Vedak for accused No.2.
CASE SUMMARY
This is the first case of conviction recorded under the Act in the State of Maharashtra and was
given wide publicity by the media, which it deserved, for the purpose of creating awareness and
sensitization among the general public and the doctor community.
The facts of this case are peculiar and they pertain to the publication of an advertisement in
the weekly magazine in connection with selection of the sex of foetus. In the weekly magazine, the
Lokprabha dated 19/11/2004 and 03/12/2004 one advertisement was released by accused No. 1 to
the effect that,
On 27/11/2004 P.W. No. 1 Dr. Kanchan after coming to know about the said advertisement,
carried out an inspection of Shri Maternity and Nursing Home and found that no board was displayed
there stating that sex of the foetus will not be determined. “”.Further, the registration certificate was
not displayed and register of cases was also not maintained. Hence both, accused No. 1 Dr. Chhaya
Tated who has issued the advertisement and accused No. 2 Dr. Adkar who was owner of the said
5 (3)Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 163
Cases of Conviction
Nursing Home were prosecuted for the contravention of the provisions u/s 22 (3) and Rules 6 (2), 4
(1), (2), 9 (1) of the Act.
Taking into consideration seriousness of the matter, the Court adopted the procedure laid down
for warrant triable cases. Both the accused pleaded not guilty. Prosecution examined 4 witnesses in
support of its case; whereas accused No. 1 examined herself in support of her defence that she has
actually communicated to issue the advertisement “want a child?” and not “want a son?” ¼eqy go;a\
and not eqyxk gok;\½ However there was mis-communication between her and her witness Sunil
Patni. Moreover when she came to know that the advertisement was published in the magazine, she
immediately informed the said publisher to issue a corrigendum which was accordingly published in
Lokprabha magazine dated 31/12/2004.
The Court considered in detail the entire evidence on record, appreciated it in proper perspective
and held that the defence raised by accused No. 1 was clearly an after thought. Both the accused
were therefore held guilty for all the offences alleged against them and convicted and sentenced
separately on each count to suffer R.I. for 3 years and to pay fine of Rs. 10,000/- each in default R.I.
for further 3 months. (Para 20 & 32)
The Judgment is positive in several aspects, like appreciation of evidence, adopting deterrent
approach while imposing punishment considering the serious nature of the offence and also having
regard to the object of the Act, the status of the accused in society as doctors and therefore expected
to follow the law and not to commit the breach there of.
JUDGMENt
Per Hon’ble Mr. R. V. Jambkar.
Charge : For the Offence Punishable u/s. 22(3) and Sec.23 for contravening provisions of Rules 4(1) (2), 6(2)
9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre-Conception & Pre-Natal Diagnostic
Techniques (Prohibition of Sex Section) Act, 2003.
(Here-in-after referred as “P.N.D.T. Act”.)
JUDGMENt
(Delivered on 14/8/2009 )
1. Accused – above named – are facing trial for the offence Punishable u/s. 22(3) and Sec.23 for contravening
provisions of Rules 4(1) (2), 6(2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The PreConception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003.
2 . The scenario of prosecution’s case unfurled during trial as;
(a) On 27/11/2004 P.W.N0.1 Dr. Kanchan Shrikant Banavalkiar was serving as Medical Officer, Health
Department, G/N – Ward, M.M.C., Mumbai. On that day, she received one letter from Deputy Director,
Health Service, Bombay Circle in which Deputy Officer, Health asked her to take action against
advertisement published by accused No.1 in weekly magazine “Lokprabha”, November 2004 in
connection of selection of sex of baby. So, immediately, she carried out inspection of “Shree Maternity
and Nursing Home, Dadar along with her Assistant Rathod, Sanitary Inspector Mr. Kadam and other
staff. During the course of her inspection, she noticed that no board was displayed at “Shree Maternity
and Nursing Home” Dadar, projecting “there will be no detection of the sex of the child”. Registration
certificate was also not displayed and register of cases was also not maintained by “Shree Maternity164 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
and Nursing Home” which belongs to accused No.2 Dr. Adkar.
(b) At the time of inspection, accused No.2 Dr. Adkar was present in the Nursing Home in the capacity
of owner of said Nursing Home. Complainant made inquiry with her. During the course of inquiry,
accused No.2 disclosed that accused No.1 Tated used to visit the Nursing Home on every second and
fourth Sunday from Aurangabad. To that extent, accused No.1 gave written statement to complainant
which is placed on record vide (Exh.P-5). Thereafter, P.W.N0.1 prepared panchnama in presence of
two panchas, recorded statement of accused No.1 Chhaya Tated, carried out inquiry with the publisher
and thereafter, came to conclusion that both the accused contravened the provisions u/s. 22 and Rules
6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre Conception
& Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003. Hence, she filed present
complaint .
(c) My Ld. Predecessor Mrs. Karnik issued process against both the accused for the offence punishable u/s.
22(3), Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The Pre
Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003. In sequel, both
the accused appeared before the court and were released on bail. It appears from record that, looking
into seriousness of matter, it came to be disposed off by way of adopting procedure laid down for
warrant triable cases. Hence, evidence before charge of P.W.No.1 Dr. Banavalkiar came to be recorded,
vide (Exh.P-4). At the initial stage both the accused partly exercised their right of cross examination and
reserved their remaining cross. So, my Ld. Predecessor framed charge against both the accused for the
offence punishable u/s. 22(3), Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic Techniques Act, 1994
(Amended as The Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section)
Act, 2003. On perusal of charge, it is to be seen that my Ld. Predecessor readover and explained the
substance of charge to both the accused for which they pleaded not guilty and claimed to be tried.
(d) Complainant / Prosecution examined P.W.N0.1 Dr. K.S. Banavalkiar (Exh.P-4) in the capacity of
complainant, P.W.N0.2 Dr. D.G. Rathod (Exh.P-9) in the capacity of Medical Assistant, P.W.N0.3
Ramakrishnan T.K. Kunhappan Kunnath (Exh.P-15) on the point of proving of advertisement, P.W.N0.4
Vijay B. Padhey (Exh.P-22) in the capacity of Managing Director of P.Y. Padhey Publicity Private Ltd.
Apart from these oral evidence, prosecution relied upon documentary evidence i.e. statement of accused
No.1 recorded by complainant (Exh.P-5), panchnama (Exh.P-6), authority of P.W.N0.1 (Exh.P-7),
Government Gazette (Exh.P-8), registration certificate of accused (Article D and E), advertisements
dt. 19/11/2004 and 3/12/2004 are (Exh.P-17 and 18 respectively), corrigendum (Exh.P-19), payment
receipt (Exh.P-23).
(e) Statement of accused U/Sec. 313 of Cr. P. C. came to be recorded individually vide (Exh.P-26 and 27
respectively). In defiance, accused No.1 took the defence of miscommunication and relied upon the
explanation given by her to Vijay Padhey dt.19/11/2004 (Exh.P-24) and corrigendum (Exh.P-19). To
the buttress, she got examined herself u/s. 315 of Cr.P.C. and relied upon the oral evidence of D.W.N0.2
Vijay Patni on the point of proving of her defence of miscommunication.
(f) Perused oral and documentary evidence. Read memorandum of argument filed on record. Heard Ld.
Adv. Mr.Engineer for complainant and and Ld. Defence counsel Mr.Ghate for accused No.1 and
Mr.Vedak for accused No.2. Thereon following points arises for my determination to which I have
recorded my findings thereon for the reasons discussed thereunder -
Points Findings
1 ) Does prosecution proved that in the month of November 2000, at Weekly
Magazine “Lokprabha” accused No.1 published advertisement about selection of sex of baby
before conception at Shree Maternity and Nursing Home, Dadar and thereby committed an
offence punishable u/s.22(3) of Pre Natal Diagnostic Techniques Act, 1994 (Amended as The
Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Section) Act, 2003?Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 165
Cases of Conviction
...Proved.
2) Does the prosecution further proved that in the aforesaid period and place, both accused did not
get registered the Nursing Home in Form -A and thereby committed an offence punishable u/s.
23 for contravening the provisions of Rule 4(1)(2) of the P.N.D.T. Act ?
....Proved.
3) Does the prosecution further proved that in the aforesaid period and place accused failed to
display the duplicate certificate of registration in Form-B to conduct pre-natal diagnostic tests
or procedure, depending on the availability of place, equipments and qualified employees (no
and standard maintained by such laboratory separate sentence and thereby committed an offence
punishable passed) u/s.23 for contravening the provisions of Rule 6(2) of P.N.D.T. Act ?
..Proved.
4. Does the prosecution further proved that in the aforesaid period and place accused failed to
maintain a register showing serial order, names and address of patients given genetic counseling,
subjected to pre-natal diagnostic procedure or tests, the name of their spouse or father and the
date on which they reported for counseling and thereby committed an offence punishable u/s. 23
for contravening the provision of Rule 9(1) of the P.N.D.T. Act ?
...Proved.
5 ) What order ? As per final order.
REASoNS
As to point No. 1 :
3. At the out set, before marshaling of evidence, I would like to reproduce the provisions of Sec.22 of P.N.D.T
Act, which reads thus;
Sec.22 : Prohibition of advertisement relating to preconception and prenatal determination of sex and
publishment for contravention.
(1) No person, organization, Genetic Conselling Centre,Genetic Laboratory or Genetic Clinic including
clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other
technology capable of undertaking determination of sex of the foetus or sex selection shall issue,
publish, distribute, communicate or cause to be issued, published, distributed or communicated any
advertisement, in any form, including internet, regardingfacilities of pre-natal determination of sex or
sex selection before conception available at such Centre, Laboratory, Clinic or at any other place.
(2) No person or organization including Genetic Counseling Centre, Genetic Laboratory or Genetic
Clinic shall issue, publish distribute, communicate or cause to be issued, published, distributed or
communicated any advertisement in any manner regarding pre-natal determination or pre-conception
selection of sex by any means whatsoever, scientific or otherwise.
(3) Any person who contravenes the provisions of sub section(1) or sub section(2) shall be punishable
with Imprisonment for a term which may extent to three years and with fine which may extent to ten
thousand rupees.
EXPLANAtIoN:For the purpose of this section, ‘advertisement’ includes any notice, circular,
lable, wrapper or any other document including advertisement through internet or any other media in
electronic or print form and also includes any visible representation made by means of any hoarding,
wall painting, signal, light, sound, smoke or gas.
4. In order to prove the advertisement, alleged to have been published by accused No.1 in Lokprabha Weekly
Magazine dt. 19/11/2004 and 3/12/2004, which are at (Exh.P-17 and P-18 respectively), prosecution got 166 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
examined P.W.N0..1 Dr. K.S. Banavalikar (Exh.P-4). According to her evidence that upon receiving the
letter from Public Health Department, dt. 6/12/2004 ( Article-F ), she carried out inspection of Shree Nursing
Home, Dadar and verified the said fact from accused No.2 Dr. Adkar, who is the owner of Shree Nursing
Home. According to the statement of accused No.2 (Exh.P-5), that accused No.1 Tated used to join Shree
Nursing Home on every second and fourth Sunday from Aurangabad. This fact is also duly proved by the
mouth of accused No.1, during the course of recording of her statement u/s. 313 of Cr.P.C.
5. Prosecution examined P.W.N0.2 Dr. Mr. D.G. Rathod (Exh.P-9) who on 27/11/2004 was accompanied
with P.W.N0.1. P.W.N0.2 deposed before the court that during the course of their inspection, they prepared
panchnama. Panchnama is placed before court vide (Exh.P-6).
6. Further, prosecution examined P.W.N0.3 Ramakrishnan T.K. Kunhappan Kunnath (Exh.P-15) in the capacity
of publisher of Lokprabha Magazine. According to his evidence that prior to 19/11/2004 he received D.T.P.
Material by accused No.1 through P.Y. Padhye, Publicity Pvt. Ltd. Accordingly, he released the advertisement
in Lokprabha magazine on 19/11/2004 and 3/12/2004. Thereafter, he also published corrigendum given by
accused on 31/12/2004.
7. Further, prosecution examined P.W.N0.4 V.B.Padhye (Exh.P-22). According to his evidence that he is in well
acquaintance with accused No.1 since 15 years and in the month of October first week accused No.1 Chhaya
Tated requested him to release the advertisement in weekly magazine Lokprabha for the month of November,
December and January and provided ready D.T.P.(Dest Top Printing) material. Accordingly, he send it to
the publisher of Lokprabha magazine, pursuant to which, Lokprabha magazine released advertisement on
19/11/2004 and 3/12/2004.
8. Now, let us see the advertisement which were released by accused on 19/11/2004 and 3/12/2004, which reads
thus;
Advertisement dt.19/11/2004:
"_wcJm hdm?'
J^©YmaUonyduM
{deof CnMma ! Xa 2 am, 4 Wm a{ddma
doi 12 Vo 6. S>m°. N>m`m VmVoS>; \$m°aoZ [aQ>Z©,
lr. Z{gªJ hmo_, goZm ^dZg_moa, XmXa n. _w§~B© 24464985
gmo_ _§Ji - nra~mOma, Am¡a§J~mX 2341180
Advertisement dt.3/12/2004:
"_wcJm hdm?'
J^©YmaUonwduM
{dfoe CnMma ! Xa 2 am, 4 Wm a{ddma
doi 12 Vo 6, S>m°. N>m`m VmVoS> ;\$m°aoZ [aQ>Z©,
lr. Z{gªJ hmo_, goZm ^dZg_moa, XmXa n. _w§~B© 24464985
gmo_ _§Ji - nra~mOma, Am¡a§J~mX 2341180
9. In the light of aforesaid advertisements, accused No.1 got examined herself, as defence evidence vide (Exh.P-
29) and took the defence of miscommunication. According to her, that she completed her graduation in
Homeopathic branch and in order to carry out her practice, she use to release advertisements in Lokprabha
magazine as well as in other newspapers. For that purpose, she use to supply information of advertisement on Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 167
Cases of Conviction
telephonic message to one Sunil Patani. Thereafter, Sunil Patani i.e. D.W.N0.2 use to provide that information
to D.T.P. operator and thereafter it goes to P.W.N0.4 Padhye for its advertisement.
10. She further deposed that never she supplied the information in order to release the advertisement dt.19/11/2004
and 3/12/2004. On the contrary, when she was giving telephonic information to Sunil Patani that time, he
listen “want a son”, instead of “want a child” and got prepared the D.T.P. material from concern and supplied
it to Shri. Padhye. So, it is telephonic miscommunication in between accused No.1 and D.W.N0.2 Sunil
Patani.
11. Further she deposed that on 17/11/2004 somebody informed her in respect of advertisements dt. 19/11/2004
published in Lokprabha Magazine which issue was came into market for sale, immediately, she informed the
said fact to P.W.N0.4 Padhye on telephonic message and wrote one letter to him and send it by hand delivery
with someone .Similarly, she also communicated this fact to Additional Director, Health Department, Pune in
written form on 7/12/2004.
12. In order to prove the defence of miscommunication, accused No.1 Tated relied upon the testimony of D.W.N0.2
Sunil Patani (Exh.P-35). According to his evidence, that since 10 years he is acquainted with accused No.1
on account of his business relations with accused No.1. At some occasion, when he used to come at Mumbai
for his business purpose, that time accused No.1 used to supply the material of D.T.P. for advertisement
thereafter he used to supply that material to Padhye Publicity Pvt. Ltd. He further deposed that, so far as
advertisements dt. 19/11/2004 and 3/12/2004 are concerned, he listened “want a son”, instead of “want a
child”. Accordingly, he got prepared D.T.P. material and supplied it to P.W.N0.4 Padhye. Pursuant to which,
Lokprabha Magazine projected those advertisements. In order to substantiate the contention of D.W.N0.2, he
relied upon his affidavit, which is placed before court vide (Exh.P-36).
13. The sum and substance of the defence taken by accused No.1 is concern, I would like to point out that in order
to substantiate the defence of miscommunication, apart from these oral evidence accused No.1 relied upon
the letter given by her to P.W.N0.4 Padhye, which is placed before court vide (Exh.P-24). Now, let us see the
contents of letter, which reads thus;
Letter (Exh.P-24): 19@11@2004
lr`wV {dO` nmÜ`o,
gg³oh Z_ñVo / {d. {d. _mJrc doir _r D.T.P. ~ZdyZ KoUm-`mcm "_yc hdo?'Ago {fe©H$ ¿`md`mg \$moZda gm§{JVco
hmoV. na§Vw \$moZda EoH$Ê`mV Ë`mÀ`mH$Sy>Z MyH$ Pmcr Am{U Ë`mZo "_yc hd§?' EodOr MwHy$Z _wcJm hdm? Ago {ef©H$
D.T.P. ~Z{dUm-`mH$Sy>Z H$adyZ KoVc§ Am{U nañna Vr D.T.P. Vw_À`mH$So> _w§~B© Am°{\$gmV AmUyZ {Xcr. hr D.T.P.
_r ñdV… nm{hcrhr Zmhr Am{U {edm` Ago MwH$sMo H$mhr KSo>c ho _cm AJXrM AZno{jV hmoV§. H$maU `mnyduhr Ë`mZo
D.T.P. ~ZdyZ KoVë`m hmoË`m Am{U nañna Vwåhm§cm _w§~B©À`m Am°{\$gmV _cm Z XmIdVm AmUyZhr {Xë`m hmoË`m.nU
`mnydu Ago Ë`mÀ`mH$Sy>Z {ef©H$ MwH$sMo EoH$co OmUo Am{U Vfr MwH$sMr D.T.P. hmoUo Ago AmOn`ªV H$YrM Pmco Zmhr.
`mdoiMm A§H$ hm {Xdmir A§H$ hmoVm. Ë`m_wio Vmo ~mOmamV cdH$a Amcm Agmdm. H$mc Hw$UmMm Var _cm \$moZ Amë`mda
Amnë`m Om{hamVr_Ü`o H$mhrVar MwH$sMo N>mnco Joë`mMo _cm cjmV Amco. _mPr ZwH$VrM \$moZ S>m`ar Hw$Ro>Var hadcr
Agë`mZo _cm Vwåhm§cm cJoM \$moZ H$aVm Amcm Zmhr. åhUyZ AmO Am¡a§Jm~mXhÿZ _w§~B©cm `oUmaè`m ì`ŠVrH$So> ho nÌ _r
EH$X_ JS>~S>rV {chÿZ nmR>{dV Amho. Iao åhUOo `m cmoH$n«^m _m{gH$mÀ`m proof reader Zo "_wcJm hdm?' Ago {ef©H$
{XgVmM hr Om{hamV ~mOycm H$mTy>Z Ro>dmd`mg hdr hmoVr. H$mXm{MV Ë`m§À`mH$Sy>Zhr Vr MwH$sZo ZOaoAmS> Pmcr Agmdr.
Agmo. _mÌ `mnyTo> hr MwH$sM Om{hamV A{O~mV hmoC Z`o Ago cmoH$n«^mcm Vm~S>Vmo~ H$i{dUo.
Amncr {dídmgy
S>m° N>m`m O¡Z168 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
14. On close scrutiny of the contents of letter and oral evidence adduced by accused No.1, I found major
inconsistency between them because,as per the letter xh.P-24),it is to be seen that at the relevant time accused
No.1 misplaced her telephone diary so, she could not communicate this fact to P.W.N0.4 Padhye by telephonic
message. Thereby, she wrote this letter (Exh.P-24) and send it to P.W.N0.4 Padhye by hand delivery with the
help of one person. The said episode appears to be false simply for the reason that accused No.1 exposed in
her chief examination by admitting that immediately when she came to know about the advertisements, she
informed said fact to P.W.N0.4 Padhye on telephonic message and wrote one letter. This admission given
by accused No.1 in her evidence itself appears to be contrary with the contents of letter, because as per the
contents of letter that at the relevant time her telephone diary was misplaced, so she could not communicate
this fact to P.W.N0.4 Padhye, on telephonic message, thereby she handed over this letter to one person
who was coming towards Mumbai. If it was so, then question arises as to why accused No.1 deposed in
her evidence that she informed this fact to P.W.N0.4 on telephonic message. This appears to be a major
inconsistency in oral and documentary evidence adduced by accused No.1.
15. Furthermore, I would like to point out that as per the evidence of P.W.N0.4 Padhye that, he is in acquaintance
with accused No.1 since 15 years and he is having commercial relations with her. In this scenario, it is
necessary for the court to scrutinize the oral and documentary evidence placed on record by defence witness
and P.W.N0.4 Padhye with great care and caution. In sequel, while assessing the evidentary value of this
letter, I would like to point out that, as per the evidence of accused No.1, it was delivered by her to P.W.N0.4
Padhye by hand delivery. In order to prove this fact, it was necessary for her to examine that person who
delivered it to P.W.N0.4 Padhye. On this point, the evidence adduced by accused No.1 and P.W.N0.4 Padhye
remained silent as to who handed over this letter to P.W.N0.4 Padhye. In this background, had it been said
that it is a genuine document, particularly when it was placed on record by P.W.N0.4 during the course of his
cross examination when it was not called by accused or prosecution, from which only it could be gathered
that it is a fabricated document prepared by accused No.1 with the help of P.W.N0.4 with intent to save her
from this proceeding. So, there is a need to discard this evidence in toto.
16. Furthermore, I would like to point out that as per the evidence of D.W.N0.2 Patani that while receiving
information of advertisement, he listened “want a son”, instead of “want a child”. So, he got prepared D.T.P.
material and supplied it to P.W.N0.4 Padhye. Similarly, D.W.N0.2 also placed his affidavit before the court
vide (Exh.P-36), which is prepared by him before notary in which he retreated the same contentions. On
this point, assuming for a moment, that this defence adopted by accused No.1 is true, then question arises
as to why she failed to check out the contents of D.T.P. material prior to its advertisement. Is it not a duty of
accused No.1, to check it? But to that extent, there is no explanation given by accused. Moreover, during the
course of cross examination of D.W.N0.2, he exposed by admitting that at the time of preparation of affidavit
(Exh.P-36), he did not narrate the contents of affidavit to the typist. On the contrary, it came to be typed upon
the instructions given by accused No.1 Dr. Tated and she paid the fees of notary. Similarly, at the time of
preparation of affidavit notary did not administer oath to him. It means it is not a affidavit in true sense.
17. Furthermore, on perusal of (Exh.P-36), it is to be seen that at the time of preparation of affidavit, D.W.N0.2
stated before notary that he saved the contents of advertisement given by accused No.1 Chhaya Tated to
him and as per the requirements of accused No.1, he used to supply that ready material to P.W.N0.4 Padhye.
From this recitals, it is to be seen that already those advertisements were saved by D.W.N0.2 and upon the
instructions from accused No.1 and as per her requirements, he used to supply that material to P.W.N0.4
Padhye. This admission given by D.W.N0.2 before notary is also goes against the accused No.1 and it
expressly helps to the story of prosecution.
18. On this point, Ld. Defence Counsel vehemently argued that it is only part of miscommunication between
accused No.1 and D.W.N0.2 Patani. When accused No.1 came to know about the fact of advertisement,
immediately she published one corrigendum in Lokprabha magazine dt. 31/12/2004 (Exh.P-19). Now, let
us see the contents of corrigendum (Exh.P-19) and its comparison with disputed advertisement (Exh.P-17),
which reads thus;Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 169
Cases of Conviction
Corrigendum (Exh.P-19) Advertisement (Exh.P-17)
dt. 31/12/2009 dt.19/11/2004.
ewÜXrnÌH$
_wcJm hdm?
J^©YmaUonwduM {deof CnMma!
Xa 2am, 4Wm a{ddma doi 12 Vo 6
S>m°.N>m`m VmVoS> (\$m°aoZ [aQ>Z©)
lr.Z{gªJ hmo_, goZm ^dZg_moa, XmXa n._w§~B© 24464985
gmo_. _§Ji - nra~mOma, Am¡a§J~mX 2341180
"_yc hd§?' EodOr _mJrc A§H$mV "_wcJm hdm' Ago MwH$sZo N>mnco Joco.
Var J^©YmaUm Z hmoUm-`m§Zm AWdm J^©YmaUm hmoCZ ZD$ _{hZo nyU© Z hmoUm-`m Ho$goggmR>r
J^©YmaUonydu {deof hmo{_Amon°{WH$ CnMma .
S>m°. N>m`m VmVoS> hmo{_Amon°{WH$ Vk
_w§~B© Xa Xwgam / Mm¡Wm a{ddma
Am¡a§Jm~mX Xa gmo_ / _§Ji 2341180
19. On going through the contents of corrigendum and while comparing it with advertisement dt.19/11/2004
(Exh.P-17), it is to be seen that accused No.1 made three major changes in corrigendum dt.31/12/2004. She
changed the heading of advertisement i.e. “want a child”, instead of “want a son”, similarly, in corrigendum
she failed to mention her degree and address of Shree Nursing Home along with its phone number. On this
point, I would like to point out that in earlier advertisement dt.19/11/2004 (Exh.P-17) and dt.3/12/2004 (Exh.P-
18). accused personated herself as foreign returned doctor. But in corrigendum she mentioned Homeopathic
expert and failed to give her contact address at Mumbai. Considering these major changes made by accused in
corrigendum, it is to be seen that, if it was a part of miscommunication between accused No.1 and D.W.N0.2
in connection with the “heading of advertisement”, then question arises as to why she failed to mention her
degree as “foreign returned” Doctor and address of “Shree Nursing Home” along with “telephone number”
in corrigendum. It means, she tried to cope up this lacuna.
20. On this point, I hold that accused No.1 is not skilled person of Allopathy side because according to her evidence
that she has completed graduation in Homeopathic side. If it was so, then question arises as to whether
Homeopathy degree provides any such type of treatment. To that extent, the burden is shifted upon accused
No.1 but, she could not rebut it. On the contrary, the advertisement dt. 19/11/2004 (Exh.P-17) and 3/12/2004
(Exh.P-18), it is to be seen that she tried to personate herself as a foreign returned doctor and suppressed
the fact of her original qualification.But in corrigendum, she mentioned her qualification as Homeopathic
Expert. It means, at the time of releasing corrigendum she became more cautions and took all precautionary
measures with intent to save her from the proceeding, because as per her oral evidence that immediately when
she came to know about the advertisements dt. 19/11/2004 and 3/12/2004, she published corrigendum, but it
appears to be false. Because in present case on 27/11/2004 P.W.N0.1 carried out inspection of Shree Nursing
Home and recorded statement of accused No.2 on 29/11/2004. It means prior to releasing of advertisement
of corrigendum, she was well aware about the initiation of this proceeding. So, the entire defence evidence
brought on record by the mouth of accused, D.W.No.2 and letter dt.19/11/2004 (Exh.P-24) and letter (Exh.P-
30) which are written by accused to Additional Director, Health Department, Pune on 7/12/2004, is appears
to be a brought-up and fabricated evidence placed on record with intent to save accused No.1 from this
proceeding. So, it is liable to be straight way rejected.170 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
21. Furthermore, Ld. Defence Counsel for accused No.1 also raised objection in his memorandum of argument
by submitting therein that at the time of inspection P.W.No.1, was not having any valid authority to carry
out inspection under the P.N.D.T act. Despite this she acted and prepared panchnama. So, her act is an
ultra virus. In order to ascertain the answer of this question, I have taken the assistance of oral evidence
adduced by P.W.N0.1 (Exh.P-4), in which she categorically deposed that the then D.M.C. Mr. Doctor deputed
her at G/N-Ward as a Medical Offier Health Department. Similarly, Government Gazette (Exh.P-8) placed
before the court authorized every medical officer as a competent authority to the extent of their respective
territorial jurisdiction. In the present case it is not disputed that at the time of inspection P.W.N0.1 was
authorized by D.M.C. to act as medical officer for G/N-Ward. The said authority is not seriously challenged
in cross examination. Similarly, Gazette itself is having presumptive value as contemplated under Sec.81 of
the Evidence Act.Under these circumstances, I hold that P.W.N0.1 is authorized to exercise the powers given
under this Act
22. So far as involvement of accused No.2 Dr. Adkar is concerned, Ld. Defence Counsel Mr.Vedak for accused
No.2 submitted that whatever the practice carried out by accused No.1 at Shree Nursing Home was not having
any concern with accused No.2, because accused No.2 allowed her to carry out her practice as Homeopathic
Expert. So, she does not covered under the provision of Sec.22 of the P.N.D.T. Act. On this aspect, I failed to
understand the argument advanced by Ld. Defence Counsel simply for the reason that, when accused No.2
allowed accused No.1 to carry out her practice prior to two years, then it will be treated that accused No.2
is also having commercial terms with accused No.1, under these circumstances, there is also necessity to
scrutinize the evidence of both the accused with great care and caution. While scrutinizing it, firstly, I would
like to reproduce the definition of Genetic Counseling Centre, which is provided u/s.2(c) of the P.N.D.T. Act
which reads thus;
“Genetic Counseling Centre” means an institute, hospital, nursing home or any place, by whatever name
called, which provides for genetic counseling to patients;
“Genetic Clinic” means a clinic, institute, hospital, nursing home or any place, by whatever name called,
which is used for conducting pre-natal diagnostic procedures;
EXPLANAtIoN:
For the purposes of this clause, “Genetic Clinic”includes a vehicle, where ultrasound machine or imaging
machine or scanner or other equipment capable of determining sex of the foetus or a portable equipment
which has the potential for detection of sex during pregnancy or selection of sex before conception, is used;
23. On going through the definition of Genetic Counseling Centre, it is to be seen that any nursing home or any
place by whatever name called, came to be used for counseling to the patients is called, ‘Genetic Counseling
Centre’ and as per Sec.4 of the P.N.D.T. Act it is necessary for every Genetic Counseling Centre to get it
registered under the P.N.D.T. Act.
Sec.4 reads thus;
4. Regulation of pre-natal diagnostic techniques: On and form the commencement of this Act-
(1) no place including a registered Genetic Counseling Centre or Genetic Laboratory or Genetic Clinic
shall be used or caused to be used by any person for conducting pre-natal diagnostic techniques except
for the purposes specific in Cl.(2) and after satisfying any of the conditions specified in Cl.(3);
(2) no pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the
following abnormalities, namely;
(i) chromosomal abnormalities.
(ii) genetic metabolic diseases;
(iii) haemogloginopathies;Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 171
Cases of Conviction
(iv) sex-linked genetic diseases;
(v) congenital anomalies;
(vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board;
(3) no pre-natal diagnostic techniques shall be used or conducted unless the person qualified to do so is
satisfied for reasons to be recorded in writing.
(i) age of the pregnant woman is above thirty five years;
(ii) the pregnant woman has undergone two or more spontaneous abortions or foetal loss;
(iii) the pregnant woman had been exposed to potentially teratogenic agents such as drugs, radiation,
infection or chemicals.
(iv) the pregnant woman or her spouse has a family history of mental retardation or physical
deformities such as, spasticity or any other genetic diseases.
(v) any other condition as may be specified by the Board.
24. In present case, while assessing evidence against accused No.2, I hold that accused No.1 and accused No.2
are having cordial relations with each other, accused No.1 was practicing in Shree Nursing Home, which
belongs to accused No.2. Under these circumstances, whether is it possible to place reliance upon the defence
taken by accused No.2 in connection with her non involvement in the said crime? The rational answer of this
question goes into negative simply for the reason that in present case accused No.1 and 2 are having cordial
relations. Both are qualified doctors. For a moment if court assumes that accused No.2 came to know about
the act of accused No.1 after the date of inspection i.e. 27/11/2004 then question arises as to why immediately
she failed to inform the said fact to the appropriate authority i.e. Maharashtra Council of Homeopathy Board
in connection with professional misconduct of accused No.1 for taking serious action against her. When she
remained silent on this point, then only inference could be drawn that accused No.2 impliedly consented
accused No.1 to carry out her practice at her nursing home by way of providing aid to her at her nursing home,
which is not registered under P.N.D.T. Act. Hence, I hold that in present case both the accused contravened
the provisions of Sec.22 of P.N.D.T. Act. Therefore, I have no hitch to record my findings on Point No.1 in
the affirmative.
25. As to Point No.2 and 3:
Both the points are interlinked so discussed with each other. To that extent, let us see the provisions of Rule
4(1)(2) of the P.N.D.T. Act which reads thus;
4. Registration of Genetic Counseling Centre, Gentic Laboratory and Genetic Clinic – (1) An application
for registration shall be made to the Appropriate Authority, in duplicate, in Form A, duly accompanied
by an Affidavit containing-
(i) an undertaking to the effect that the Genetic Centre / Laboratory/ Clinic/ Ultrasound Clinic/
Imaging Centre / Combination thereof, as the case may be, shall not conduct any test or procedure,
by whatever name called, for selection of ‘sex’ before or after conception or for detection of sex
of foetus except for diseases specified in Section 4(2) nor shall the sex of foctus he disclosed to
any body; and
(ii) an undertaking to the effect that the genetic centre / Laboratory /clinic combination thereof as
the case may be shall display prominently a notice that they do not conduct any technique test
or procedure etc. by whatever name called for detection of sex of foetus or for selection of sex
before or after conception.
(2) The Appropriate Authority, or any person in his office authorized in this behalf, shall acknowledge
receipt of the application for registration, in the acknowledgment slip provided at the bottom of Form
A, immediately if delivered at the office of the Appropriate Authority, or not later than the next working
day if received by post. 172 | Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994
Cases of Conviction
26. After going through the provision of Rule 4 of the said Act, it is to be seen that it is necessary for every
Genetic Counseling Centre to get it registered before the appropriate authority because Genetic Counseling
Centre is a process, where qualified Genetic Counselor will conduct genetic test, evaluate family history to
know where the patients are passing some diseases from one generation to another. In present case, without
having any qualification to run genetic counseling center, both the accused run it at the nursing home, belongs
to accused No.2 Dr. Adkar. So, I am of the opinion that, it is not only contravention of Rule 4 but it is a false
impersonation of both the accused to the public who is innocent and not having sufficient knowledge about
the medical field and acts upon their advices. Hence, I hold that, prosecution duly succeed to prove that both
accused contravened Rule 4(1)(2) and Rule 6 of the P.N.D.T. Act. So far as, Point NO.3 is concerned, I hold
that the said point is already covered while deciding point No.2 hence, no need to pass separate sentence for
contravention of Rule 6(2) of the P.N.D.T. Act. Therefore, I have recorded my findings to point No.2 and 3
accordingly.
27. As to point No.4:
It has come in the evidence of P.W.N0.1 and P.W.N0.2 that at the time of inspection both the accused failed to
produce the registers showing names and addresses of men and women to whom they tendered the services
of counseling. To that extent, first of all, I would like to point out that, it is unauthorized genetic counseling
centre, established by both the accused. Under this circumstance, it is not expected from them to maintain the
register with intend to create evidence against them. So, there might be a chance that accused did not maintain
the register. Whatever-so-may-be, but the provisions of Rule 9(1) provides condition to maintain record at
Genetic Counseling Centre and in present case accused failed to maintain it, though it was not registered. So,
I hold that accused also contravened Rule 9(1) of the P.N.D.T. Act.
28. As to point No.5:
Cumulative effect of the aforesaid discussion and the findings thereon goes to suggest that in present case
prosecution duly succeed to prove the guilt against accused for the offence punishable u/s.22(3) and 23 for
contravening Rules 6(2),4(1)(2),9(1) of P.N.D.T. said Act. So, I have recorded my findings on Point No.4 in
the affirmative. My findings constrained me to pause here to hear the accused on the quantum of sentence.
Date: 14/8/2009.
Mumbai .
(R. V. Jambkar)
Metropolitan Magistrate,
41st Court, Shindewadi,
Dadar, Mumbai.
JUDGMENt RESUMED
29. On the quantum of sentence, accused No.1 submitted that she belongs to middle class family and bread and
butter of her children is depend upon her earning. So, she prayed for imposing minimum fine. Accused No.2
submitted that she is senior citizen and aged around 62 years. So, she prayed for imposing minimum fine.
30. Heard Ld. Defence counsel Mr. Ghate for accused No.1 and and Mr.Vedak for accused No.2. They also
retreated the same contention.
31. While considering the quantum of sentence, court has to consider the mitigating and aggravating circumstance.
Accused in the case at hand are doctors. Admittedly, they are reputed persons from the society. Society looks
towards them as their ideal persons and when such persons have committed the offence which is coming
within ambit of not only heinous but also against the existence of the society. Because, by their act they
have encouraged to the society for determination of sex of female with a view to prevent pregnancy of Compilation and Analysis of Case-laws on Pre-conception and Pre-natal Diagnostics Techniques (Prohibition of Sex Selection) Act, 1994 | 173
Cases of Conviction
female foetus. So, definitely, it come within the ambit of aggravating form of circumstance. Under such
circumstances, they are not entitled for leniency.
32. Similarly, P.N.D.T Act views the offence committed under this act very seriously which makes every offence
under this act is cognizable, non-bailable and non-compoundable. The Legislature want to protect the dignity
and status of women. In this context Parliament introduced this act which never permit for showing leniency
while passing sentence thereon. Therefore, I proceed to pass following order.
oRDER
1. Accused 1. Chhaya Rajesh Tated and 2. Shubhangi Suresh Adkar are hereby convicted u/s. 248(2) of Cr.P.C.
of the offence punishable U/Sec. 22(3) for contravening the provisions of Sec.22(1)(2) and for the offence
punishable u/s.23 for contravening the provisions of Rules 6(2), 4(1) (2), 9(1) of Pre Natal Diagnostic
Techniques Act, 1994 (Amended as The Pre Conception & Pre-Natal Diagnostic Techniques (Prohibition of
Sex Section) Act, 2003.
2. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 22(3) for
contravening the provisions of Sec.22 of P.N.D.T Act and do pay fine amount of Rs.10,000/- (Ten Thousand
only) each. In default of payment of fine, they shall suffer R.I. for three months.
3. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 23 for
contravening the provisions of Rule 4(1)(2) of P.N.D.T Act and do pay fine amount of Rs.10,000/- (Ten
Thousand only) each. In default of payment of fine they shall suffer R.I. for three months.
4. Both the accused are convicted for the offence punishable u/s. 23 for contravening the provisions of Rule
6(2), but no separate sentence passed for the same.
5. Both the accused are hereby sentenced to suffer R.I. for three years for the offence punishable u/s. 23 for
contravening the provisions of Rule 9(1) of P.N.D.TAct and do pay fine amount of Rs.10,000/- (Ten Thousand
only) each. In default of payment of fine they shall suffer R.I. for three months.
6. Accused shall surrender their bail bonds, if any for undergoing the sentence.
7. All sentences shall run concurrently.
8. Copy of Judgment be delivered to both the accused, free of costs, forthwith.
Date:14/8/2009.
Mumbai.
(R. V. Jambkar)
Metropolitan Magistrate,
41st Court, Shindewadi,
Dadar, Mumbai. Rgz.
No comments:
Post a Comment