Thursday, 2 May 2013

Sealing of Sonography Machine is necessary to prevent female foeticide


It may  be mentioned  that  the  provision  of  sealing is like  the
provision of sealing the premises of a brothel in case of an offence committed
under Section 18 of the Immoral Traffic Prevention Act, 1986 (ITPA).  It is
this  power   of   the Magistrate   that is  the  most  potent  weapon  in   case  of
prevention and further incurrance of the offence.  That power has to be used
under both these legislations in the interest of the general public where the
State is bound to protect under the law


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 4399 OF 2012 
Dr. Vandana Ramchandra Patil ..  Petitioner
Vs.
The State of Maharashtra & Anr. ..  Respondents

CORAM :  MRS. ROSHAN DALVI, J.
DATE :  23rd JANUARY, 2013.



1. Rule.  Made returnable forthwith.
2. The   case   has  been   filed   against   respondent  No.2   the   Doctor,
under the provisions of Pre Conception and Pre Natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 2003 (PCPNDT Act).  Pending the criminal
trial the electronic machine for sonography used by respondent No.2 in his
clinic has been sealed.  The licence of respondent No.2 has been suspended.
The sealing is required to be made under the law.  The sealing is legal and
proper.
3. Respondent No.2 applied  for opening  the seal  to use  the USG
machine.  The learned 8th  J.M.F.C., Thane under the impugned order dated
02.11.2012 directed the complainant/petitioner herein to open the seal of the
machine.  That order has been challenged in this petition.
4. The offence under the PCPNDT Act is committed essentially with
the use of USG machine.  That is the most important ingredient in the crime.

The crime is essentially repetitive in nature.  The prevention of the crime is
best achieved by sealing the machine.  Hence the sealing of the machine is an
important act in investigation of such crime.
5. It may  be mentioned  that  the  provision  of  sealing is like  the
provision of sealing the premises of a brothel in case of an offence committed
under Section 18 of the Immoral Traffic Prevention Act, 1986 (ITPA).  It is
this  power   of   the Magistrate   that is  the  most  potent  weapon  in   case  of
prevention and further incurrance of the offence.  That power has to be used
under both these legislations in the interest of the general public where the
State is bound to protect under the law.
6. If  the  seal is opened,  the  accused in  the case is  facilitated  to
repeat the crime.  Once a case is made out, repetition of such crime has to be
prevented.    It  cannot  be  allowed  to  proliferate.    The  accused,  therefore,
cannot use his machine until the trial is over.  
7. The order of release is mechanically made as for releasing of any
other property which may not be used in the commission of the crime.  The
order wholly lacks sensitivity.   The Court must consider  the effect and the
impact of each order.   The vast and broad effect of such an order has not
been considered by the learned Judge. 
8. A machine sealed in any case registered under the PCPNDT Act
cannot be directed to be opened.  In fact, it is the duty of the Investigating
Officer as also the Magistrate to seal the machine and to see that it has been
sealed promptly.
9. Respondent   No.2   argued   that   the   machine   is   an   electronic

instrument.  It has to be constantly maintained by use.  The machine is seen
to have been abused and misused.  Citizens have no legal right to claim user
of their machines if they are seen to have abused such equipment.  Hence it
cannot be allowed to be used by the accused pending trial.   
10. Counsel on behalf of the petitioner/complainant rightly argued
that whilst the license of respondent No.2 is under suspension, he cannot use
the machine by which he carries on his business.  Hence at best it can be used
by   the   Mira­Bhayander   Municipal   Corporation   by   itself,   who   is   the
complainant   in  this case,  for proper, legitimate  and lawful use upon  the
patients of the hospital of Mira­Bhayander Municipal Corporation if it has to
be maintained by continuous use. 
11. Respondent  No.2  states  to  Court  that  he  has  no  objection  to
transfer   his   machine   to   the   hospital   of   the   Mira­Bhayander   Municipal
Corporation for its use for the hospital by the doctors of that hospital upon
patients of that hospital.  That can be allowed for the machine not to junk.  It
would be for respondent No.2 to transfer the machine to the hospital of Mira­
Bhayander Municipal Corporation.
12. The Corporation itself has not been able to shift the machine and
hence   has   sealed   the   machine   in   the   premises   of   respondent   No.2.     If
respondent No.2 can himself shift the machine, he may do so after contacting
the  petitioner.   The petitioner may in consultation with  the  gynecological
consultant in the hospital make arrangement for placing the said machine in
the hospital premises.  The seal of the machine shall not be opened until after
it is shifted.  The photographs of shifting shall be taken if that is done.   A
report then shall be filed by the petitioner of such shifting in the trial Court.
The petitioner  shall  then  open  the  seal  and use  the USG machine in  her

hospital   for   the   patients   of   the   hospital.     Respondent   No.2   shall   not   be
allowed to operate the machine in the hospital at any time.
13. The   impugned   order   of   the   learned   Magistrate   dated   2nd
November, 2012 is set aside.
14. The   USG   machine   of   respondent   No.2   in   the   premises   of
respondent No.2 shall remain sealed until it is shifted as aforesaid or until the
trial is over.  The Investigating Officer shall regularly inspect the machine and
keep record of the inspection.   
15. The Registrar (Judicial) of this Court shall send the copies of this
order   to   all   the   J.M.F.Cs.   and   Sessions   Court   Judges   at   all   levels   in
Maharashtra.
(ROSHAN DALVI, J.)


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