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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