Sunday 18 August 2013

Removal of seal of sonography machine sealed under PCPNDT ACT

Moreover, in
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO. 683 OF 2013
Dr. Sadanand M. Ingle,
.. Versus ..
1. State of Maharashtra

CORAM :        :   B. P. DHARMADHIKARI AND
           S. B. SHUKRE, JJ.

DATE OF PRONOUNCING JUDGMENT :     JUNE 21, 2013

J U D G M E N T (Per S. B. Shukre, J.)

1. By   this   writ   petition,   the   petitioner   assails   legality   and
validity   of   order   dated   21/12/2012   passed   by   the   Civil   Surgeon,
Buldana   thereby   rejecting   application   dated   03/8/2012   of   the
petitioner for renewal of the registration of his sonography centre at
Khamgaon.    This  Court,  by  order  dated  14/5/2013,  has listed  the
matter for final hearing at the stage of admission.  Accordingly, Rule,
returnable forthwith.
2. Heard.
3. Shri Madkholkar,  learned  Counsel   for   the   petitioner   has
submitted that the impugned order dated 21/12/2012 has been passed
by the Civil Surgeon, Buldana in complete disregard of the provisions
of the Pre­conception and Pre­natal Diagnostic Techniques (Prohibition
of Sex Selection) Act, 1994 (hereinafter referred to as ‘the Act, 1994’).
He points out  that  the petitioner, who  runs a sonography centre at
Khamgaon, was issued registration for the same in the year 2007 and it
was due to expire on 08/01/2012.   He submits that on 19/11/2011
the petitioner made an application for renewal of the registration of his
sonography   centre   and   before   any   decision   was   taken   on   it,   the
registration of the sonography centre was suspended on 21/12/2012
following seizure of sonography machine in a raid on  the centre on

17/12/2011.     He   has   further   submitted   that   the   order   dated
21/12/2011 was challenged by the petitioner in Writ Petition No. 163
of 2012 and  this Court by its judgment and order dated 07/3/2012
was   pleased   to   allow   the   petition   and   set   aside   the   order   dated
21/12/2011.   The learned Counsel has further submitted that in spite
of this order, the respondents rejected the application of the petitioner
for   renewal   of   registration   of   sonography   centre   on   21/12/2012
stating that the sonography machine was sealed on 17/12/2011 and
that the matter was sub judice.   According to him, the order of this
Court   dated   07/3/2012,   setting   aside   the   suspension   order   dated
21/12/2011,   nullified   the   sealing   action   that   took   place   on
17/12/2011   as   the   order   dated   21/12/2011   is   founded   on   it.
Therefore,   the   learned   Counsel   submits   that   the   impugned   order
smacks of mala fides and is arbitrary.  
4. The learned Counsel  for the petitioner has further argued
that the impugned order cannot be sustained in law for the reason that
it is not passed by an appropriate authority.  He has drawn attention of
this Court to the provisions of Section 17(2) and Section 20 of the Act,
1994.  He has submitted that under Section 17(2) of the Act, 1994, the
State Government has been empowered to appoint by notification in
the   official   gazette   one   or   more   appropriate   authorities   for   the
purposes   of   the   Act   and   sub­sections   (1)   and   (3)   of   Section   20

mandate that cancellation or suspension of a sonography centre must
be for reasons recorded in writing and also be in the public interest. He
has further submitted that none of these requirements of law is met by
the impugned order.
5. Learned Counsel  for  the  petitioner  has  further  submitted
that under rule 8(6) of  the  Pre­conception and Pre­natal Diagnostic
Techniques   (Prohibition   of   Sex   Selection)  Rules,   1996   (hereinafter
referred to as “Rules, 1996”), there is a deemed renewal of registration
of    the sonography centre, and, in  this case,  there was indeed such
renewal   as   after   making   of   the   application   on   03/8/2012,   the
petitioner   was   not   communicated   any   rejection   of   the   application
within the stipulated period of 90 days from the date of receipt of the
application.  This is another reason put forth by the learned Counsel
for the petitioner to term the impugned order as violative of provisions
of the Act, 1994.
6. Learned Counsel for the petitioner has further argued that
even   the   action   of   raiding   sonography   centre   of   the   petitioner   by
respondent Nos. 3 and 4 is illegal and actuated by malice arising out of
professional   rivalry.     He   submits   that   unless   there   is   an   order   of
suspension of the sonography centre passed in terms of the provisions
of   Section   20   of   the   Act,   1994,   sealing   of   the   machine   is   not

permissible   under   the   law.     He   has   referred   to   a   document   titled
“Pawati   Supurdnama”   dated   30/12/2012,   whereby   the   sonography
machine, that was sealed in the action of search and seizure carried
out at the centre on 28/12/2012 and 29/12/2012, has been released
in sealed condition into the custody of the petitioner. This document,
he has pointed out, has been signed by the Medical Superintendent,
Rural Hospital, Khamgaon.   The learned Counsel has submitted  that
this document is not supported by any order under Section 20 of the
Act, 1994 and that it is not signed by the appropriate authority.  He
has  also  argued  that  the Medical Superintendent of Rural Hospital,
Khamgaon cannot be appropriate authority because the Rural Hospital
for Khamgaon area is situated at village Lakhanwada.  
7. Learned Counsel for the petitioner further submits that the
impugned order dated 21/12/2012 is violative of principles of natural
justice as it neither records any reasons nor indicates that it is in public
interest.  Rather, according to the learned Counsel for the petitioner,
the impugned order has been passed by a Government Officer, who
considers  himself   as   an   authority   above   the   law   and  who  has   set
himself   out   to   manipulate   the   law   to   serve   his   own   interest.     In
support, he has  referred  to  the law laid down by  the Hon’ble Apex
Court as regards recording of reasons in  the case of  Ravi Yashwant

Bhoiar Vs. District Collector, Raigarh & others  reported in  (2012) 4
SCC 407  (paras 42 and 46) and also the observations of the Hon’ble
Apex Court on the nature of law being science of what is good and just
and being protective of a civilized society recorded in para 1 of  the
judgment rendered in the case of Mehmood Nayyar Azam Vs. State of
Chhatisgarh & others reported in (2012) 8 SCC 1.
8. Learned Counsel for the petitioner also argues that passing
of the impugned order by the respondents constitutes contempt of this
Court  as it  has  been   passed  in   total   disregard  of  the   order   dated
07/3/2012 of this Court.
9. Learned Counsel for the petitioner has lastly submitted that
the   impugned   order   having   been   passed   without   authority   and
jurisdiction, the petitioner has directly approached this Court and for
this submission he seeks support from the observations of the learned
Single Judge in paragraph 19 of the judgment delivered in the case of
Sukhda w/o Dilip Mulay Vs. State of Maharashtra & others, reported in
2013(1) Mh.L.J.­638.
10. The   petition   is   strongly   opposed   by   the   respondents.
Smt. Dangre, Additional Government Pleader argues that the petition
is misconceived in law.  She submits that in compliance with the order
dated  07/3/2012  passed  by  this Court in Writ  Petition No.  163  of

2012, the respondents removed the seal of the sonography machine on
15/6/2012.  She has further submitted that the application for renewal
of registration dated 03/8/2012 has been rejected by the appropriate
authority duly appointed under  the provisions of the Act, 1994, and
that its basis has been the criminal cases initiated against the petitioner
in the Court of Judicial Magistrate, First Class, Khamgaon (for short,
J.M.F.C., Khamgaon) and not the search and seizure action carried out
on 17/11/2011.  She has further submitted that although, the order of
suspension of registration of sonography centre of the petitioner dated
21/12/2011 has been set aside by  this Court on 07/3/2012, it has
been made clear in the order itself that the respondents are free to take
such   further   action   in   the   matter   as   may   be   considered   advisable
under  the law.    She  has  further  submitted  that  the  criminal  cases,
which followed search and seizure action dated 17/12/2011 are still
pending in  the Court of J.M.F.C., Khamgaon and,  therefore, there is
nothing wrong  to make a reference  to  them and  reject  the renewal
application   on   the   ground   of   pendency   of   these   cases.     She   also
submits   that   with   the   liberty   given   by   this   Court   to   take   further
appropriate   steps   and   withdrawal   of   Contempt   Petition   by   the
petitioner on 11/10/2012, the contention that answering respondents
have committed contempt of this Court loses steam 

11. Learned   Additional   Government   Pleader   has   further
submitted that a document referred to by the learned Counsel for the
petitioner   vide   Annexure­D   (page   No.49   of   the   petition)   dated
28/12/2012   is   not   a   document,   which   can   be   termed   as   renewal
certificate because this document is in Form­F.  The renewal certificate
has to be in Form­C prescribed under Rule 8(3) of Rules, 1996.  She
has invited  attention  of   the   Court  to  Form­F  prescribed  under   the
Rules, 1996 to show that this form is actually used for maintenance of
record  in   respect   of   pregnant   women   and   not  for  issuing   renewal
certificate.     She   has   further   argued   that   the   registration   number
mentioned at Sl. No.2 of Annexure­D is not the registration number of
sonography centre of the petitioner.
12. The learned Additional Government Pleader has  taken us
through the various provisions of the Act, 1994 and also Rules, 1996 to
show   that   the   impugned   order   is   legal   and   not   violative   of   any
principles of natural justice and that it has been passed in the public
interest.     She   has   further   submitted   that   the   first   order   dated
07/01/2012, rejecting the first application dated 19/11/2011 made by
the   petitioner   for   renewal   of   his   sonography   centre,   was   never
challenged by the petitioner and, therefore, if his another application
for renewal of registration of sonography centre was rejected by the
respondents, it would be not open to him to put up any challenge to

the subsequent order, which is impugned herein.
13. Learned   Additional   Government   Pleader   has   further
submitted that the power to search and seizure of record, etc. at the
sonography centre emanates from Section 30 (2) of the Act, 1994 and
is independent of  the provisions contained in Section 20 of  the Act,
1994.  According to her, for exercise of power to search and seizure,
etc. under Section 30, it is not necessary to first proceed to suspend the
registration under Section 20(3) of  the Act, 1994.   She argues  that
Section 30 power comes into play when appropriate authority acts on
the basis of some inputs received and reasonably believed by him to
prima facie indicate that an offence under the Act, 1994 has been or is
being  committed  at  the  sonography  centre  and  on  the  other  hand,
Section 20(3) power would be invariably exercised if   action under
Section 30(2) is first taken.
14. Learned Additional Government Pleader has referred to us
the   Government   notifications   dated   11/9/1997   and   06/11/2001
showing   that   the   Civil   Surgeon   at   every   district   and   Medical
Superintendent at every taluka  of the State of Maharashtra has been
appointed   to   be   the   appropriate   authority   for   the   respective   areas
under his jurisdiction for the purposes of the Act, 1994.  Relying on
these  notifications,  she  has  submitted  that  the impugned  order  has

been passed by a competent authority.  She has also submitted that the
document  titled,  “Pavti  Supurdnama” is  not  an  order  passed  under
Section 20(3) of the Act, 1994 as sought to be canvassed on behalf of
the petitioner.  According to her, it is only a receipt obtained from the
petitioner in  acknowledgment of  the petitioner  receiving custody of
sealed sonography machine after the action of search and seizure was
taken at his hospital on 28/12/2012 and 29/12/2012.  She has further
submitted that even if it is to be construed as some kind of order, still
it cannot be termed as illegal because it has been admittedly signed by
the Medical  Superintendent of Rural Hospital, Khamgaon, who is  a
competent authority as per notification dated 06/11/2001.   She has
also submitted that Rural Hospital, Lakhanwada is a different hospital
than Rural Hospital, Khamgaon  and  the latter  has jurisdiction  over
Khamgaon taluka.
15. Learned   Additional   Government   Pleader   has   further
submitted  that  the  alternate  remedy in  the  nature  of  appeal  under
Section 21 of the Act, 1994 was available to the petitioner and he, not
having exhausted  that remedy, could not approach  this Court in its
writ   jurisdiction   for   redressal   of   his   grievances.     She   has   further
submitted that there has been no malice in law and facts in the entire
action and, therefore, the petition is liable to be rejected.

16. On  the  rival  submissions  raised,  the  points  arise  for  our
determination are as follows.  :
(1) Whether   the   impugned   order   dated
21/11/2012   is   unsustainable   under   law
and,   if   so,   whether   the   seal   of   the
sonography   machine   is   liable   to   be
removed?
(2) Whether there was any deemed renewal of
registration   of   sonography   centre   of   the
petitioner?
(3) Whether   passing   of   order   under   Section
20(3)   of   the   Act,   1994   is   a   condition
precedent   for   sealing   of   a   sonography
machine?
(4) Whether  any  contempt  of  this  Court  has
been committed by the respondent?
17. In order to answer these points, it would be necessary for us
to consider the important legal and factual aspects of the case. 
The   Act,   1994   has   been   enacted   with   some   definite
objectives,   they   being   prohibition   of   sex   selection,   regulation   of
modern diagnostic techniques involved in the detection of genetic or
metabolic disorders and  to prevent  the incidence of  female  foeticide
triggered by misuse  of  sex  determination  test.    For  achieving  these
objects, the Act, 1994 lays down a detailed scheme for regulating and
monitoring   genetic   counselling   centres,   genetic   laboratories   and
clinics,   pre­natal   diagnostic   techniques,   etc.     The   Act,   1994   also

provides for appointing various supervisory and competent authorities
and creates certain offences by prohibiting certain acts and lays down
penal consequences for the acts prohibited.  The objects and scheme of
the Act, 1994 being as they are, it would be necessary for the various
authorities thereunder to strictly follow the procedural requirements of
the Act. 
18. On going through the provisions of the Act, 1994, one does
not come across such expression as “sonography centre”, though there
is reference to such words as, “genetic clinic” or “ultra sound clinic” or
“imaging clinic”.  The impugned order and some other documents filed
in   this   petition,  however,  use   the   expression,  “sonography   centre”.
This   expression   has   to   be   construed   as   “genetic   clinic”   within   the
meaning  of  Section  2(d)  of  the  Act,  1994  for  the  reason  that  the
sonography   centre   of   the   petitioner   is   being   admittedly   used   for
conducting pre­natal diagnostic procedures. 
19. The State Government has power under Section 17(2) of
the Act, 1994  to appoint appropriate authorities  for  the purposes of
this Act and in exercise of this power, the State Government has issued
notifications   dated   11/9/1997   and   06/11/2001   appointing   Civil
Surgeons/Deans of Medical Colleges and Medical Superintendents of
Rural Hospitals at district and taluka levels as apporopriate authorities,
respectively   to   exercise   their   jurisdiction   in   the   areas   under   their

control.  
20. Important factual aspects arising from the facts admitted on
record are stated thus.  Initially, the registration for sonography centre
of  the petitioner was  granted in  the year 2007  for  a period of  five
years,   which   was   to   expire   on   08/01/2012.   Before   expiry   of   the
registration   centre,   the   petitioner   moved   an   application   before   the
appropriate authority on 19/11/2011  for renewal of  the registration
and this application was rejected on 07/01/2012 on the grounds that
the renewal proposal had certain deficiencies, registration of the centre
was already suspended and that the proceedings before the Court of
J.M.F.C., Khamgaon against the centre were pending.  This rejection
order signed by the Civil Surgeon, Buldana, an appropriate authority
under the Act, 1994 in view of notification dated 11/9/1997, was not
brought  to  the  notice  of  this Court when it  set  aside  the  order  of
suspension   of   registration   of   the   centre   dated   21/12/2011   on
07/3/2012 in Writ Petition No. 163/2012.  The order of suspension of
registration dated 21/12/2011 was passed as a sequel to the sealing of
sonography machine in a  raid on  the centre on 17/12/2011.   After
sealing of the machine, a Criminal Complaint Case No. 119/2011 was
filed against the petitioner before J.M.F.C., Khamgaon.  It was based
upon a complaint lodged by one Sarla Ravindra Khotare about alleged
disclosure of sex of foetus by the petitioner at his sonography centre.

There have been  two more criminal cases  filed later on against  the
petitioner by the respondents namely, Criminal Case Nos. 2/2012 and
7/2013.  
21. There  has  been  one letter issued  on  14/12/2012  by  the
Civil Surgeon, Buldana  to  the petitioner whereby  the petitioner has
been called upon  to  submit his M.B.B.S. degree certificate.    In  this
letter,  there is  a specific mention about grant of  registration  to  the
sonography  centre  of  the  petitioner.    There is  also  one  document,
which is in form­F, the form prescribed for maintenance of record in
respect of pregnant women by genetic clinic,  filed by the petitioner.
In   this   form,   registration   number   of   sonography   centre   of   the
petitioner has been mentioned as “New: Buldana/44 Old: 19” and the
document is dated 28/12/2012.
22. Now,   if   we   take   a   look   at   the   impugned   order   dated
21/12/2012, some startling facts come to the fore.  Although, it cannot
be said  that  the impugned order specifies no reason at all,  that  the
reasons mentioned  therein are extremely cryptic and incongruous  to
the own action of respondent Nos. 3 and 4 in opening the seal of the
sonography machine on 15/6/2012 in compliance with  the order of
this Court passed in Writ Petition No. 163/2012 on 07/3/2012.   This
Court,   on   07/3/2012,   had   quashed   and   set   aside   the   order   of

suspension of registration dated 21/12/2011, which was based upon
the action of sealing of the machine taken precisely on 17/12/2011.
As a consequence thereof, the authorities had to remove the seal and
they indeed removed it on 15/6/2012.  The impugned order, however,
refers  to  sealing   of   the   machine   on   17/12/2011  and   pendency   of
judicial proceedings in  respect  thereof which  form very basis of  the
order.   Thus, the reasons stated in just one line take us back to the
position  as it  obtained  on  21/12/2011,  which  position  changed in
favour  of  the  petitioner  after  the  order  dated  21/12/2011 was  set
aside   by   this   Court   on   07/3/2012   and   seals   were   removed   on
15/6/2012 in compliance with  the order.   No doubt,  the impugned
order has   been passed by duly appointed appropriate authority, i.e.
Civil Surgeon, Buldana, but, fact remains that its foundation and tenor
are inconsistent with the order of this Court passed on 07/3/2012 and
own actions of respondent Nos. 3 and 4 that followed thereafter. 
23. Learned   Additional   Government   Pleader   submits   that   a
general   reference   to  pending  judicial  proceedings in   the  impugned
order envisages pendency of not just one Criminal Case No. 119/2011
filed  after  sealing  of  the machine  on  17/12/2011,  but  also  second
Criminal Case No. 2/12, which was filed against the petitioner.  She
also submits  that order dated 07/3/2012 passed by  this Court does

make it clear that the respondents may take any such further action in
the   matter   as   they   may   be   advised,   in   accordance   with   law   and,
therefore,  the  respondents pursued  these criminal cases.   Therefore,
according   to   her,   the   pendency   of   two   criminal   cases   should   be
considered as additional reason apart from the reason of sealing of the
machine,  for  refusal  to  grant  renewal  of  registration  of  sonography
centre of the petitioner. 
24. While  there is no doubt  about  the liberty  granted  to  the
respondents   to   take   further   appropriate   action   in   the   matter,   the
argument   that   reference   to   the   judicial   proceedings   made   in   the
impugned   order   has   to   be   construed   as   reference   to   not   just   one
criminal case but also another criminal case, cannot be accepted.  The
impugned order clearly shows  that  reference of judicial proceedings
made thereunder is only in the context of 17/12/2011 sealing action
and nothing more.  If the consideration of pendency of second criminal
case lay at  the back of  the mind of  the appropriate authority while
passing  the impugned order, nothing had prevented  the appropriate
authority from making a specific reference to the second criminal case.
This,  not having been done, it has to be held that the impugned order
is inconsistent with  the order of  this Court passed on 07/3/2012 in
Writ Petition No. 163/2012 and the own action of respondent Nos. 3

and 4 in removing the seal of the machine on 15/6/2012.  There was
no reason for the appropriate authority to have made any reference to
sealing of  the machine in  the inspection  taken on 17/12/2011  and
filing of a criminal case following sealing of the machine, when this
Court had on 07/3/2012 already  found  the action of suspension of
registration   upon   sealing   of   the   machine   on   17/12/2011   as
unsustainable in law and the respondent Nos. 3 and 4  too, on their
part, had complied with the order of this Court by removing the seal of
the machine. 
25. The impugned  order is  of  21/12/2012  and  there is  one
letter   dated   14/12/2012   issued   by   Civil   Surgeon,   Buldana   to   the
petitioner,   wherein   it   is   stated   in   no   uncertain   terms   that   the
sonography centre of the petitioner has been granted registration.  This
letter finds no reference in the impugned order.  We do not understand
as  to why  the impugned order does not make any  reference  to  the
letter   of   14/12/2012.     No   explanation   in   this   regard   nor   any
clarification in respect of issuance of this letter itself has been provided
by the respondent  to  the Court.   Similarly, no explanation has been
given by the respondents in respect of registration No. Buldana/44, as
mentioned in Form­F (Annexure­D filed at page No.49 of the petition).
It   is   pertinent   to   note   here   that   this   document,   Form­F,   is   of

28/12/2012,   i.e.   seven   days   after   refusal   of   grant   of   renewal   of
registration   of   the   centre   on   21/12/2012.     In   absence   of   any
explanation having been submitted by  the  respondents, it has  to be
found that the impugned order is not only contrary to what is stated in
the letter dated 14/12/2012 but also unfair in law.  Having regard to
penal consequences provided under the Act, 1994, any action of the
appropriate   authorities   thereunder   must   be   seen   as   answering   the
requirements   of   fair   play   and   proper   compliance   with   procedure
prescribed thereunder.  It must be stated here that  Respondent Nos. 3
and 4 are appropriate authorities under the Act,1994 and are entrusted
with onerous responsibility of ensuring that genetic clinics or centres
are kept within the bounds of law and no one covered under the Act,
1994 violates or misuses the provisions of the Act and whosoever does
that, is brought to book.  Therefore, it was expected that the action of
these authorities would be consistent with  the provisions of the Act,
1994 and fair in law.  That being not the position here, we agree with
the submissions of the learned Counsel for the petitioner made in this
regard and find that the impugned order cannot be sustained in law.
26. At this stage, it is necessary to advert to the law laid down
by the Hon’ble Apex Court as regards necessity of recording of reasons
in the case of Ravi Bhoiar (supra).  When the law requires recording of

reasons for taking a decision, law also demands that reasons recorded
are adequate and show application of mind so that anyone aggrieved
by the decision, gets sufficient notice of material used against him and
can adopt appropriate course of action to redress his grievance.  If the
recorded reasons exhibit non­application of mind or are insufficient,
there would be no reasons in law.  In this case, as already discussed
above, there have been some reasons recorded in the impugned order,
but,   the   reasons   so   recorded   do   not   seem   to   be   showing   any
application  of  mind  to  the   facts  and  circumstances  of  the  case  by
respondent Nos. 3 and 4 and, therefore, applying ratio of the law so
laid   down,   we   find   that   in   the   instant   case   also   there   have   been
virtually no cogent reasons recorded for passing of the impugned order
and as such, the impugned order is unfair and arbitrary on this count
also.   The Apex Court has, in judgment reported at (1978) 1 SCC 405
in the case of Mohinder Singh Gill and another Vs. The Chief Election
Commissioner, New Delhi & others, declared that the reasons recorded
in the order, cannot be supplemented later on.   
27. Renewal  of  registration is  dealt with  by  rule  8  of Rules,
1996 and the provisions relating to deeming effect for and renewal of
the registration are to be found in sub rule (6), which reads as under.
“In the event of failure of the Appropriate Authority
to   renew   the   certificate   of   registration   or   to

communicate rejection  of  application for  renewal of
registration within a period of ninety days from the
date   of   receipt   of   application   for   renewal   of
registration,   the   certificate   of   registration   shall   be
deemed to have been renewed.”
28. It is clear from the above provision that upon failure of the
appropriate authority to either renew the certificate of registration or
communicate its rejection within a period of ninety days from the date
of application,  the certificate of registration is deemed  to have been
renewed.   For  giving deeming effect  to  the  renewal of  registration,
fulfillment of either of  two conditions namely;  failure  to  renew  the
registration   or   failure   to   communicate   rejection   of   application   for
renewal is necessary.  In this case, there is no dispute about making of
an application for renewal of registration by the petitioner second time
in the month of August, 2012 and also about it’s being made on the
advise of respondent Nos. 3 and 4.   According to the petitioner, the
application was made on 03/8/2012 and according to the impugned
order   dated   21/12/2012,   the   date   of   renewal   application   is
06/8/2012.   There is one letter dated 23/8/2012  addressed  to  the
appropriate   authority/Medical   Superintendent,   General   Hospital,
Khamgaon by the Civil Surgeon, Buldana on the subject of renewal of
registration of sonography centre of the petitioner filed on record by

the petitioner at page 48 of the petition.  This letter mentions date of
renewal  application  as 03/8/2012.   The petitioner has not  filed on
record a copy of his second renewal application filed in the month of
August,  2012.   However,  there  being  no  dispute  about  the  second
renewal   application   and   variation   in   the   dates   of   application,   as
mentioned in  two documents above referred  to, being marginal, not
much difference would eventually be caused in computing the period
of ninety days for the purposes of rule 8(6) of the Rules, 1996. If we
take the date 06/8/2012 as mentioned in the impugned order as the
date of receipt of the renewal application, the prescribed period of 90
days would  be  over  on  04/11/2012.    So,  from  this  date,  deeming
provision under rule 8(6) would be applicable and as such it would
have to be held that the registration of the centre was deemed to be
renewed w.e.f. 04/11/2012.  
29. The above  referred conclusion also  receives support  from
the documents dated 14/12/2012 and 28/12/2012 about which we
have  already made  a  detailed  discussion in  the earlier  paragraphs.
Accordingly, we find that in this case there was a deemed renewal of
registration of the sonography centre of the petitioner.
30. Thus, the impugned order can be seen to be not only unfair
and arbitrary but also inconsistent with the provisions of the Act, 1994

in the sense that deeming effect of renewal of the registration in view
of  the  provisions  of Rule  8(6)  has  been  completely ignored  by  the
appropriate   authority   when   it   passed   the   impugned   order   on
21/12/2012.  It appears that the appropriate authority has forgotten
that there is a rule providing for deemed renewal of registration of a
genetic or sonography centre.  While we refrain from commenting on
what could be  the possible  reasons  for  the appropriate authority  to
ignore the provisions of rule 8(6) in passing of the impugned order, we
would like to draw support from the observations of the Hon’ble Apex
Court in the case of  Mehmood Nayyar Azam vs. State of Chhatisgarh
(supra) made in paragraph 1, page 6; “..law is the science of what is
good and just and, in  the very nature of  things, protective of civilized
society..”, referred to us by learned Counsel for the petitioner in saying
that the concerned authorities should have been more mindful of the
provisions of the Act, 1994 in passing of the impugned order.  For this
reason  also, we  find  that  the impugned  order is  unsustainable  and
liable to be quashed and set aside.  Consequently, we further hold that
seal of the sonography machine is liable to be removed.
The first two questions are answered accordingly.
31. Section   20   of   the   Act,   1994   deals   with   cancellation   or
suspension of registration. We are concerned in this case with Section
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wp683.13.odt 23/28
20(3), which reads thus :
“Notwithstanding anything contained in sub­
sections (1) and (2), if the Appropriate Authority is of
the opinion that it is necessary or expedient so to do
in   the   public   interest,   it   may,   for   reasons   to   be
recorded in writing, suspend  the registration of any
Genetic   Counselling   Centre,   Genetic   Laboratory   or
Genetic Clinic without issuing any such notice referred
to in sub­section (1).”
The above referred provision requires appropriate authority
to   form   an   opinion   based   on   some   objective   material   that   it   is
necessary or expedient in the public interest to suspend registration of
a genetic clinic or centre.  The provision also mandates the appropriate
authority  to  record  reasons in writing.    This  provision  begins  with
non­obstante clause and, therefore, the sub­section stands on its own
footing empowering the appropriate authority to suspend registration
for a temporary period or cancel it without even issuing show cause
notice and giving a reasonable opportunity of hearing to the genetic
clinic or centre.  This sub­section and also sub­sections (1) and (2), it
may  be  stressed,  do  not  refer  to  seal  or  seizure  of  the  sonography
machine.
32. Section 30 confers power upon the appropriate authority or
other authorized officer to carry out search and seizure at the genetic

clinic or centre where the appropriate authority has a reason to believe
that some offence under the Act, 1994 has been or is being committed.
It also authorizes the appropriate authority or other authorized officer
to seize and seal any record or material object found at the centre.  In
the   explanation   to   rule   12   of   Rules,   1996,   the   terms,   ‘seize’   and
‘seizure’   have   been   explained   to   include,   ‘seal’   and   ‘sealing’,
respectively.  The explanation reads thus :
“(1)   ‘Genetic   Laboratory/Genetic   Clinic/Genetic
Counselling   Centre’   would   include   an   Ultrasound
Centre/Imaging   Centre/   nursing   home/   hospital/
institute or any other place, by whatever name called,
where any of the machines or equipments capable of
selection   of   sex   before   or   after   conception   or
performing any procedure  technique or  test for pre­
natal detection of sex of foetus, is used;
(2) ‘material object’ would include records, machines
and equipments; and
(3)   ‘seize’   and   ‘seizure’   would   include   ‘seal’   and
‘sealing’ respectively.” 
So, Section 30 of  the Act, 1994 read with rule 12 of  the
Rules, 1996 makes it abundantly clear that the appropriate authority
can carry out not only the search at the genetic clinic or centre but also
seal the relevant record and material objects with a view to use them
as   evidence   of   the   commission   of   offence   punishable   under   the

provisions of the Act, 1994.  The power under this Section comes alive
only   when   the   appropriate   authority   reasonably   believes   that   an
offence under the Act, 1994 has been or is being committed.  This is
the only condition precedent prescribed under Section 30 for exercise
of power under it.  But, there is no reference therein, whatsoever, for
suspension of the registration of genetic clinic or centre.  Moreover, in
the present facts, the act of putting seal is under the impression that as
renewal was refused on 21/12/2012, use of the machine for genetic
procedures by present petitioner thereafter was not legal. 
33. From   the   characteristic   features   of   Section   20(3)   and
Section   30,   as   discussed   above,   it   would   be   clear   that   both   are
independent  sections  and  do  not  require  action  to  be  taken  under
another section as a prelude  to  taking   of action under one section.
There can be suspension of registration under Section 20 (3) and it
may or may not necessarily follow sealing of the machine thereafter
and  there can be sealing of  the machine without  suspension of  the
registration under Section 20(3) of the Act, 1994.  The third question
is answered accordingly.
34. Learned Counsel for the petitioner has urged before us that
there has been a contempt of this Court committed by the respondents
as  they  have in willful disobedience of  the  directions  given  by  this

Court   on   07/3/2012   in   Writ   Petition   No.   163/2012   passed   the
impugned order.  We are not inclined to accept this argument for the
reason that no material has been brought on record to show us that
there has been a willful disobedience of  the order dated 07/3/2012
passed by this Court or that it was out of some mala fides on the part
of  the respondents.   The order dated 07/3/2012 only sets aside  the
order dated 21/12/2012 and gives liberty to the respondents to take
such further action in the matter as may be advised in accordance with
law.     Accordingly,   respondent   Nos.   3   and   4   proceeded   with   the
prosecution  of  criminal  cases  against  the  petitioner in  the Court  of
J.M.F.C., Khamgaon.   But, it appears  that  respondent Nos. 3 and 4
were ill advised in referring to sealing of the machine and pendency of
criminal case relating to it in the impugned order.  At the most, such
reference could only be described as erroneous in law and facts and
nothing more.  For initiating contempt action, it is absolutely necessary
to show  that  there is either willful disobedience of  the order of  the
Court or some mala  fide intention on  the part of  the contemnor in
committing   the   act   complained   of   and   which   resulted   in   lowering
down   of   the   dignity   or   esteem   of   the   Court   or   amounted   to
interference with administration of justice.  No material having been
brought on record to enable this Court to draw such an inference, we
find that no case is made out for taking any action for contempt of the

Court   as   urged   by   the   petitioner.     The   question   is   answered
accordingly.  
35. Before parting with the judgment, we would like to address
the point of  availability of alternate  remedy  to  the petitioner under
Section 21 of the Act, 1994 put  forth by the learned A.G.P.   In this
case,   there   has   been   complete   ignorance   by   the   respondents   of
quashing   of   the   order   of   suspension   of   the   registration   of   the
sonography centre dated 21/11/2011 by this Court on 07/3/2012 and
own admissions of respondent Nos. 3 and 4 as mentioned in the letter
dated 14/12/2012, while passing the impugned order.  Similarly, they
missed   the   important   legal   aspect   of   deemed   renewal   of   the
registration of the sonography centre.  These factors would make the
impugned order as one without authority of law and jurisdiction.  The
objection about availability of an alternate remedy also needs  to be
rejected because of earlier judgment of  this Court dated 07/3/2012
and cognizance  taken  therein.   Here, it is apparent  that  though  the
registration stood renewed for next five years, on 21/12/2012 under
erroneous impression,  the  renewal of  registration has been  refused.
Said order or the affidavit filed in support thereof, nowhere referes to
the   recommendation   or   opinion,   if   any,   expressed   by   the   State
Advisory Committee.  The facts noticed by us, as above, also indicate

that alternate remedy is not made out to be efficacious.  
36. In the result, the petition is allowed.  Impugned order dated
21/12/2012 is set aside.  The respondents are directed to remove the
seal of sonography machine, forthwith.  However, it is made clear that
the respondents would be at liberty to take such further action in the
matter as may be advised to them, in accordance with law.
Rule is made absolute in the above terms with no order as
to costs. 

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