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2015 DIGILAW 2067 (BOM)

Anil son of Uddhavrao Madurwar v. State of Maharashtra through Commissioner, Chandrapur Municipal Corporation, represented by its Authorised Medical Officer Dr. [Sau. ] Anjali Ambatkar

2015-09-02

V.M.DESHPANDE

body2015
JUDGMENT: V.M. Deshpande, J. Rule. Rule is made returnable forthwith. Learned Addl. Public Prosecutor Mr. P.V. Bhoyar waives service for respondent sole. Heard learned Adv. Mr. M.P. Khajanchi for the Applicants and learned Addl. Public Prosecutor Mr. P.V. Bhoyar for the respondent sole in extenso. By consent of rival parties, this Criminal Application is taken up for final hearing and disposed of by this Judgment and Order. 2. By the present Application under Section 482, Criminal Procedure Code, the Applicants are challenging the Judgment and Order dated 19th January, 2015 passed by learned Additional Sessions Judge-1, Chandrapur, in Criminal Revision No. 89 of 2013, by which though the learned Revisional Court has directed to return the seized Sonography Machine having Registration No.2 on execution of a bond of Rs.2,00,000-00, no order in respect of de-sealing thereof is passed. Few facts giving rise to the present proceedings are narrated hereunder:- 3. A complaint was lodged by the Commissioner of Municipal Corporation of City of Chandrapur against the present Applicants for contravention of Sections 3 (1) and 19 (3) punishable under Section 23 of the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003 [hereinafter referred to as "the Act", for short]. According to the complaint, during inspection of the clinic premises of the applicants, it was noticed that a Non-portable Machine, namely Toshiba Colour Doppler Core Vision, having Registration No.2, which was used by the Applicants, was having validity only upto 2nd January, 2012, and its registration was not renewed and in spite of that, the said machine was used for conducting USG till 16th June, 2012 in violation of the provisions of the Act and Rules made thereunder. In the complaint itself, it is averred that during inspection, it was also observed that the applicants have applied for renewal on 1st February, 2012, i.e., one month after expiry of the validity date, which is in contravention of the provisions of the Act. Those proceedings were registered as Regular Criminal Complaint Case No. 274 of 2012 on the file of Chief Judicial Magistrate, Chandrapur. 4. In the meanwhile, Writ Petitions were filed by the applicants before this Court. The said Writ Petitions were registered as Writ Petition Nos. 1288 and 1215 both of 2013. Those proceedings were registered as Regular Criminal Complaint Case No. 274 of 2012 on the file of Chief Judicial Magistrate, Chandrapur. 4. In the meanwhile, Writ Petitions were filed by the applicants before this Court. The said Writ Petitions were registered as Writ Petition Nos. 1288 and 1215 both of 2013. While disposing of those Writ Petitions, this Court on 30th April, 2013 observed as under:- "In the peculiar facts and circumstances of the case, specially when the petitioners are running the Sonography Centre in a proper manner and in accordance with the provisions of the Act and the Rules, it would be necessary to direct the respondent no.2 to consider the applications filed by the petitioners for renewal of the certificate of registration and renew the same, if they are otherwise found in order." The aforesaid Judgment of this Court was questioned before the Hon'ble Apex Court by the respondent by filing a Petition for Special Leave to Appeal (Civil) No. 17964 of 2013. The Hon'ble Apex Court on 10th May, 2013 disposed of the said Petition for Special Leave to Appeal by permitting the petitioner therein to withdraw the Special Leave Petition, to approach this Court by way of an application. Accordingly, Misc. Civil Application No. 482 of 2013 for review was filed before this Court and this Court on 20th September, 2013 rejected the said Review Application. 5. Be that as it may, renewal of Registration Certificate was granted in respect of the said machine with effect from 14th May, 2013 and it is valid upto 13th May, 2018. 6. An application was filed before the learned Magistrate on 14th June, 2013 with following prayers:- "(i) allow the instant application. (ii) be pleased to deseal & for release of the sonography machine namely Toshiba Color Doppler core vision (Non-portable) having the registration No.2 to the applicants and permit them to use in their clinic;" The said application is at Exh.37 in Regular Criminal Complaint Case No. 274 of 2012 filed against the present applicants. 7. On 30th July, 2013, learned Magistrate was pleased to reject the said application. 8. Feeling dissatisfied with the said order, a Revision was carried before Revisional Court. The said Revision was registered as Criminal Revision No. 89 of 2013. After hearing the parties to the Revision, learned Revisional Court, vide Order dated 19th January, 2015, partly allowed the Revision. 7. On 30th July, 2013, learned Magistrate was pleased to reject the said application. 8. Feeling dissatisfied with the said order, a Revision was carried before Revisional Court. The said Revision was registered as Criminal Revision No. 89 of 2013. After hearing the parties to the Revision, learned Revisional Court, vide Order dated 19th January, 2015, partly allowed the Revision. Though the Revisional Court granted relief to return the Sonography Machine, the order of desealing was not passed. 9. After having heard respective counsels and after perusing the Complaint against the present applicants, it is clear that the machine, in question, was sealed, since, at the time of inspection, the validity period of registration had expired. The complaint itself states that the application for renewal was made by the applicants, though beleatedly, after one month of its validity period. 10. It is to be noted that in the petitions filed before this Court, this Court specifically directed to consider the application made on behalf of the applicants for grant of renewal of the Registration Certificate of the machine and ultimately, the renewal of Registration Certificate is granted with effect from 14th May, 2013 to 13th May, 2018. In that view of the matter, since renewal of Registration Certificate is granted in favour of applicants and it is valid upto 13th May, 2018, in my view, the machine can be used by the applicants. In fact, the learned Revisional Court has virtually allowed the Revision filed on behalf of the applicants but for the order of desealing. It makes no good by just handing over the machine on the Supratnama in a sealed condition, especially when it is not the allegation against the present applicants in the complaint that the machine was used for determination of sex. In my view, keeping the machine in a sealed condition will not serve the purpose of anybody. That leads me to pass the following order:- ORDER (a) Criminal Application [APL] No. 178 of 2015 is allowed. (b) The Judgment and Order dated 19th January, 2015 passed by learned Additional Sessions Judge-1, Chandrapur, in Criminal Revision No. 89 of 2013 is quashed and set aside to the extent it is prejudicial to the interests of the applicants. (c) The prayer made by the applicants in Exh.37 filed in Regular Criminal Complaint Case No. 274 of 2012 is granted. (c) The prayer made by the applicants in Exh.37 filed in Regular Criminal Complaint Case No. 274 of 2012 is granted. However, the Applicants shall not use the said machine for any object which is prohibited under the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. (d) Rule is made absolute in above terms. No costs.