Monday 12 December 2016

Whether doctor can be permitted to use Echo machine at place which is not registered under PCPNDT Act?

The   provisions   of   Pre­conception   and   Pre­natal
Diagnostic   Techniques   (Prohibition   of   Sex   Selection)   Rules,
1996   (hereinafter   referred   to   as   1996   Rules),   need   to   be
perused in this background.
10. Rule   3A   is   about   sale   of   ultrasound   machines/
imaging machines.   This rule again uses the word “  a  person”.

Rule 3B is on regulation of portable machines.  It stipulates that
use   of   portable   ultrasound   machine   or   any   other   portable
machine or device which has the potential for selection of sex
before   conception   or   detection   of   sex   during   pregnancy   is
permitted only in two conditions stipulated therein, viz., (a) the
portable   machine   being   used,   within   the   premises   it   is
registered, for providing services to the indoor patients; (b) as
part   of   a   mobile   medical   unit,   offering   a   bouquet   of   other
health and medical services.  Explanation thereto clarifies that
other health and medical services means the host of services
provided   by   the   mobile   medical   unit   and   the   same   are
thereafter   described   under   various   heads   like   Curative,
Reproductive   and   Child   Health   Services,   Family   Planning
services and Emergency services.
11. Thus,   we   find   that   the   Parliament   by   the   1994
enactment has permitted use of machines which are capable of
being used or have potential to be used for sex determination,
only   in   the   registered   establishments   and   in   the   conditions
stipulated therein. These provisions apply to everybody as also

all Medical Practitioners if they are using such machines in
their establishments.  Considering the pious object of the 1994
Act,   no   loophole   in   its   Scheme   can   be   worked   out   as   the
language is unambiguous and does not result in any absurdity.
12. However,   in   the   facts   before   us,   the   petitioner
already has got necessary registration as per Schedule III.  That
certificate of registration is valid for an Ultrasound Sonosite
machine of Micromax module.  It is issued on 17.02.2014 and
is valid up to 16.02.2019.  The name of place where machine
can be used is Sane Heart Care Clinic, Nagpur.
13. Considering the above legal position, it is apparent
that on the strength of such registration, the petitioner cannot
carry that machine to any other place which is not registered. If
he has to carry the machine to any other place, that place must
also be similarly registered first.  The application submitted by
the petitioner does not show that I.C.C.U. at Nandanwan or
then   Critical   Care   Centre   at   Sakkardara,   are   accordingly
registered under the 1994 Act.   Similarly, the petitioner does

not   appear   to   be   having   a   Mobile   unit   in   which   the   said
machine is installed.
14. In   this   situation,   we   find   that   the   judgment
delivered at Aurangabad Bench on 30.11.2015 does not help
the petitioner at all.
15. Hence,   we   grant   the   petitioner   leave   to   move
necessary   application   as   per   law   before   the   Competent
Authority under the provisions of the 1994 Act or 1996 Rules
stipulated   supra.     If   such   an   application   is   moved   by   the
petitioner within a period of four weeks from today, the same
shall be scrutinized by the Competent Authority as per law
within next eight weeks.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION  NO.   2995  OF  2015
Dr. Deepak s/o Shyamsunder Sane,

V
 State of Maharashtra,

 CORAM :  B.P. DHARMADHIKARI &KUM. INDIRA JAIN, JJ.
     Dated:  JULY 14, 2016.
Citation:2016 (5) ALLMR716,2017 CRLJ(NOC) 11 Bom

Considering the nature of controversy, after hearing
the respective counsel on 12.07.2016, we adjourned the matter
to today.  Today, we have heard Shri Dadhe, learned counsel
for the petitioner, Shri Patil, learned AGP for respondent No. 1
and Shri Kukday, learned counsel for respondent Nos. 2 & 3,
finally by issuing Rule and making it returnable forthwith.
2. By   placing   reliance   upon   the   Division   Bench
judgment of this Court dated 30.11.2015 in Writ Petition No.
2871 of 2012 (Dr. Percy s/o Savakshaw Jilla vs. The State of
Maharashtra   &   Ors.)   delivered   at   Aurangabad   Bench,   Shri
Dadhe, learned counsel submits that the petitioner, who is a
leading   Medical   Practitioner   in   the   city   of   Nagpur,   dealing
exclusively with Heart treatment is required to use the 2D Echo
Colour Doppler Machine for treating his patients.  To attend the
patients, he is required to visit I.C.C.U. at Shravan Hospital,
Nandanwan and Sanjivani Critical Care at Sakkardara, Nagpur.
The  patients  in  critical  condition  at  those   places   cannot   be
shifted to his clinic and, therefore, he has to carry 2D Echo

Colour Doppler Machine to Nandanwan and Sakkardara area.
Shri Dadhe, learned counsel, submits that the said machine is
duly registered on 17.02.2014 itself and as the petitioner is not
practicing   as   Gynecologist   and   is   not   treating   any   ailment
relating to birth of a child, there is no question of the petitioner
using that machine for the purposes of sex determination or
undertaking any Pre­natal Diagnostic procedure.
3. He invites attention to the fact that the petitioner
has accordingly made a disclosure on an affidavit before this
Court as also before Respondent No. 3, however, Respondent
No. 3 by one line order, passed on 15.01.2015, rejected the
application of the petitioner for permission to move and use
that machine in other establishments.
4. Shri   Kukday,   learned   counsel   as   also   Shri   Patil,
learned AGP are strongly opposing the petition.   They submit
that the mobile machine is to be registered separately and no
permission to shift such machine from one place to another
place can be granted.   They also submit that the judgment

delivered at Aurangabad does not lay down any law in this
respect.
5. A perusal of judgment dated 30.11.2015 in Writ
Petition No. 3871 of 2012 shows that the petitioner before
Aurangabad   Bench   happened   to   be   an   Echo­Cardiologist,
operating private clinic.   His wife was a Gynecologist.   After
noticing these facts in paragraph 4, the Division Bench has
observed that law does not permit imposing prohibition on a
medical   practitioner   practicing   in   a   different   stream   merely
because   one   of   his   family   members   can   be   subjected   to
restrictions under the provisions of Pre­Conception and PreNatal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994,   (hereinafter   referred   to   as   1994   Act).     The   Division
Bench then notices that the petitioner ­ Doctor before it gave an
undertaking that the Sonography machines registered with the
authorities would not be used outside the hospital premises.  It
is also noticed that 2D Echo Colour Doppler machine is merely
used for investigating cardiological disorder by the petitioner.
The Division Bench has taken note of the interim order passed

by it on 29.03.2012 whereby restriction on use of Sonography
machine outside the hospital premises was maintained while
the petitioner was permitted to use 2D Portable Colour Doppler
outside the premises.   It has also noted that the respondent
before   it   had   filed   an   affidavit   stating   that   2D   Echo
Cardiography machine can be used for sex determination if the
Medical Practitioner changes the probe and attaches Convex
Sector to it.   However, after perusal of the opinion given in
writing by the Professor and Head of Department, Radiology,
Government Medical College, Aurangabad, the Division Bench
found   that   said   assertion   was   not   correct.     The   Head   of
Department had communicated that unless type of probe was
disclosed, no definite opinion could have been given.
6. It is in this background that in paragraph 6, the
Division Bench proceeded to observe that merely because the
machine being used for different investigation purpose and can
be   used   for   sex   determination,   the   Medical   Practitioner
practicing in totally different stream cannot be subjected to
unnecessary restrictions and such a course is beyond the scope

of the 1994 Act.  It has taken note of an affidavit filed by the
petitioner and an undertaking furnished by him that he would
not use Convex Sector probe since the said probe is used by
Sonologist/ Gynecologist for scanning the abdomen and not by
Echo Cardiologist for diagnostic purposes.  The Division Bench
also took note of installation of silent observer on 2D Echo
Colour Doppler machine and found it a sufficient safeguard
against   its   abuse.     It   also   found  that   the  petitioner  ­   Echo
Cardiologist, never earlier used that machine contrary to law,
hence,   the   restrictions   imposed   upon   him   were   held   to   be
beyond   the   scope   of   1994   Act.   This   finding   is   without
commenting upon the sections contained in the Act and impact
thereof.
7. Shri Dadhe, learned counsel, has submitted that the
present petitioner has also furnished similar affidavit and is
ready   and   willing   to   submit   it   once   again   with   necessary
undertaking.  However, we find that this judgment does not lay
down any law on the point.  It takes note of the facts presented
to it and then proceeds further to answer the controversy.  It

needs to be restricted only to said matter.
8. A perusal of Section 3A of the 1994 Act shows that
it   prohibits   sex­selection.     As   per   Section   3A,   no   person,
including a specialist can conduct sex selection on a woman.
Thus, the obligation or prohibition is not only against a Medical
Practitioner but on everybody.   Similarly, Section 3B, which
deals with prohibition on sale of ultrasound machine etc., again
stipulates that no person can sell such machines capable of
detecting   sex   of   foetus   to   any   Genetic   Counselling   Centre,
Genetic Laboratory, Genetic Clinic or “any other person”, not
registered under the 1994 Act.  Section 4 then prohibits use of
an   unregistered   places   for   undertaking   pre­natal   diagnostic
techniques.   Section 18 prohibits a person from opening any
Genetic Counselling Centres etc. or a 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 coming into force of the
Pre­natal Diagnostic Techniques (Regulation and Prevention of
Misuse)   Amendment   Act,   2002   (hereinafter   referred   to   as

Amendment Act) unless it is registered under 1994 Act.   The
emphasis, therefore, is again not only on Medical Practitioner
and   on   Genetic   Counselling   Centre,   Genetic   Laboratory   or
Genetic   Clinics.     The   Parliament   has   mandated   that   such
machines capable of being used for sex determination cannot
be   made   available   to   or   used   by   anybody   at   places   not
registered under the 1994 Act.   Section 22 which prohibits
advertisement   relating   to   pre­conception   and   pre­natal
determination   of   sex   also   employes   the   word   “no   person”.
Section   23   dealing   with   offences   and   penalties   on   medical
geneticist,   gynecologist,   registered   medical   practitioner   also
disqualifies “any person”.
9. The   provisions   of   Pre­conception   and   Pre­natal
Diagnostic   Techniques   (Prohibition   of   Sex   Selection)   Rules,
1996   (hereinafter   referred   to   as   1996   Rules),   need   to   be
perused in this background.
10. Rule   3A   is   about   sale   of   ultrasound   machines/
imaging machines.   This rule again uses the word “  a  person”.

Rule 3B is on regulation of portable machines.  It stipulates that
use   of   portable   ultrasound   machine   or   any   other   portable
machine or device which has the potential for selection of sex
before   conception   or   detection   of   sex   during   pregnancy   is
permitted only in two conditions stipulated therein, viz., (a) the
portable   machine   being   used,   within   the   premises   it   is
registered, for providing services to the indoor patients; (b) as
part   of   a   mobile   medical   unit,   offering   a   bouquet   of   other
health and medical services.  Explanation thereto clarifies that
other health and medical services means the host of services
provided   by   the   mobile   medical   unit   and   the   same   are
thereafter   described   under   various   heads   like   Curative,
Reproductive   and   Child   Health   Services,   Family   Planning
services and Emergency services.
11. Thus,   we   find   that   the   Parliament   by   the   1994
enactment has permitted use of machines which are capable of
being used or have potential to be used for sex determination,
only   in   the   registered   establishments   and   in   the   conditions
stipulated therein. These provisions apply to everybody as also

all Medical Practitioners if they are using such machines in
their establishments.  Considering the pious object of the 1994
Act,   no   loophole   in   its   Scheme   can   be   worked   out   as   the
language is unambiguous and does not result in any absurdity.
12. However,   in   the   facts   before   us,   the   petitioner
already has got necessary registration as per Schedule III.  That
certificate of registration is valid for an Ultrasound Sonosite
machine of Micromax module.  It is issued on 17.02.2014 and
is valid up to 16.02.2019.  The name of place where machine
can be used is Sane Heart Care Clinic, Nagpur.
13. Considering the above legal position, it is apparent
that on the strength of such registration, the petitioner cannot
carry that machine to any other place which is not registered. If
he has to carry the machine to any other place, that place must
also be similarly registered first.  The application submitted by
the petitioner does not show that I.C.C.U. at Nandanwan or
then   Critical   Care   Centre   at   Sakkardara,   are   accordingly
registered under the 1994 Act.   Similarly, the petitioner does

not   appear   to   be   having   a   Mobile   unit   in   which   the   said
machine is installed.
14. In   this   situation,   we   find   that   the   judgment
delivered at Aurangabad Bench on 30.11.2015 does not help
the petitioner at all.
15. Hence,   we   grant   the   petitioner   leave   to   move
necessary   application   as   per   law   before   the   Competent
Authority under the provisions of the 1994 Act or 1996 Rules
stipulated   supra.     If   such   an   application   is   moved   by   the
petitioner within a period of four weeks from today, the same
shall be scrutinized by the Competent Authority as per law
within next eight weeks.
16. With this liberty, we dispose of the present writ
petition.     Rule   accordingly.     However,   in   the   facts   and
circumstances of the case, there shall be no order as to costs.
17. Respondent No. 1 is directed to supply copy of this

judgment to all Nodal Officers in the State of Maharashtra.
JUDGE JUDGE

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