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2018 DIGILAW 148 (ORI)

Prabhat Kumar Jain v. State of Orissa

2018-02-01

J.P.DAS

body2018
JUDGMENT J.P.DAS, J. - This is an application under Section 482 of the Code of Criminal Procedure assailing the order dated 25.01.2008 passed by the learned S.D.J.M., Jharsuguda in C.T. No.210 of 2008 taking cognizance of the offence punishable under Sections 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 against the present petitioner (hereinafter referred to as the “Act, 1994”). 2. The impugned order was passed by the learned S.D.J.M., Jharsuguda on the complaint petition filed by the C.D.M.O., Jharsuguda being authorised by the District Magistrate and Collector, Jharsuguda, the appropriate authority under the Act, 1994 with the allegation that the Genetic Centre run by the present petitioner was visited by the Dr. Narayan Acharya, C.D.M.O.-in-charge on 27.04.2007 and it was found out that one Ultrasound Machine was functioning in the center in respect of which the registration had expired since 31.12.2006. It was alleged that functioning of the Ultrasound Machine without valid registration violated the provisions of Section 18 (1) of the Act, 1994 and Rule 8 of the Rules framed thereunder. It was mentioned in the complaint petition that the machine was seized and sealed in presence of the witnesses. Necessary prayer was made to the Court to take cognizance of offence and punish the petitioner accused according to law. 3. In the present petition, the petitioner has assailed the legality of the impugned order of cognizance on the grounds that the search and seizure were not conducted as per statutory procedure and provisions and that it was conducted by an officer, who was not authorised under the law to conduct such inspection. It was also submitted that the C.D.M.O., Jharsuguda, who has filed the complaint petition, was also not legally entitled to file such a complaint. It was further submitted that the only allegation against the petitioner was that the period of registration certificate has expired and he had not made proper application for renewal. It was submitted that there was no other allegation of committing any offence or violating any provision of the Act, 1994, apart from the fact that only there was a delay in applying for the renewal of registration, which escaped notice of the petitioner. It was submitted that there was no other allegation of committing any offence or violating any provision of the Act, 1994, apart from the fact that only there was a delay in applying for the renewal of registration, which escaped notice of the petitioner. It was submitted that immediately after alleged search and seizure, the petitioner had made an application for renewal of the registration depositing the registration fee as well as five times of amount of registration fees towards penalty. The said amount in shape of Bank draft has already been received by the concerned authority. Thus, it was submitted that the prosecution of the petitioner after making application for renewal of registration paying the penalty for delay would put him to double jeopardy. It was also submitted that the said application for renewal as well as the payment of the amount were prior to filing of the complaint petition on 25.01.2008. 4. Per contra, it was submitted by learned Counsel for the State that all the formalities of search and seizure as well as of filing the complaint have been complied as per mandates of the Statute as well as of the Government Notification. It was further submitted that the petitioner having admitted that the validity of his registration to run the Ultrasound Clinic had expired and he had not made proper application for renewal, the commission of the offence under the Act, 1994 remained established. 5. Coming to the point wise submissions, it was strenuously contended by the learned Counsel for the petitioner that the alleged inspection followed by seizure was conducted by Dr. Narayan Acharya, A.D.M.O., Jharsuguda on 27.07.2007 but as per the office Memorandum of the Health and Family Welfare Department, Government of Orissa dated 24.01.2002, the C.D.M.O. of the District was the appropriate authority. It was further submitted that the inspection having been conducted by the A.D.M.O., Jharsuguda was violative of the notification and hence, was illegal. It was also pointed out that on such inspection report, the said A.D.M.O., Jharsuguda has signed “for C.D.M.O., Jharsuguda” and not as the authorised officer. A copy of the said report is annexed to the application as Annexure-3. It was also pointed out that on such inspection report, the said A.D.M.O., Jharsuguda has signed “for C.D.M.O., Jharsuguda” and not as the authorised officer. A copy of the said report is annexed to the application as Annexure-3. It was further submitted that as per Rule 12 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rule, 1996, the appropriate authority or any officer authorised on this behalf may conduct search and seizure in presence of two or more independent witnesses but in the report as per Annexure-3, the search and seizure was conducted only in presence of one Executive Magistrate and one A.S.I. of Police, Jharsuguda Police Station. Thus, it was submitted that the alleged search and seizure as have been conducted to form the basis of the complaint petition was illegal for being not according to the statutory procedures. It was also submitted that mere admission of the petitioner of having no applied for registration would not exonerate the prosecution from carrying out the enquiry and filing of complaint according to statutory procedures. 6. In this regard, it was submitted by the learned Counsel for the State by placing the copies of certain documents that by an office order dated 26.07.2007, the Appropriate Authority-cum-District Medical Officer, Jharsuguda had authorised Dr. Narayan Acharya to conduct search and seizure of the unauthorised Ultrasound Machines for further action as per law. 7. In this regard, it was submitted by the learned Counsel for the petitioner that the said authorization was subsequently manufactured for the purpose of the case, otherwise the A.D.M.O., Jharsuguda could not have signed mentioning as “for C.D.M.O.” more so, the inspection report nowhere mentions that the A.D.M.O., Jharsuguda was duly authorized by the appropriate authority, namely, the C.D.M.O., Jharsuguda for the specific purpose. 8. As regards the absence of two independent witnesses, the prosecution had no answer. Another point was raised on behalf of the petitioner that the C.D.M.O., Jharsuguda was the appropriate authority till 26.07.2007, since because by the Health land Family Welfare Department, Government of Odisha Office Memorandum dated 27.07.2007, the District Magistrate of each district was appointed as the District Appropriate Authority for the district under the Act, 1994 superseding the earlier notification appointing the C.D.M.O. as the appropriate authority. Thus, it was submitted that on 27.07.2007 when the search and seizure were conducted in the clinic of the present petitioner, the C.D.M.O. was no more the appropriate authority so as to sustain his authorization to the A.D.M.O., Jharsuguda concerned to conduct the search and seizure. The fact of such notification dated 27.07.2007 is not in dispute and copy thereof is on record. It was tried to be submitted by learned Counsel for the State that the authorization was issued by the C.D.M.O., Jharsuguda concerned on the day before and it continued in its validity under the statutory provisions. But the contention made on behalf of the petitioner that the Office Memorandum of the Health and Family Welfare Department, Government of Odisha dated 27.07.2007 took away the authority of the C.D.M.O., cannot be lightly brushed aside. 9. In view of the Office Memorandum of the Health and Family Welfare Department, Government of Odisha, which specifically superseded the earlier notification it cannot be legally held that the C.D.M.O. concerned was the appropriate authority on the relevant day so as to validate the search and seizure conducted by the A.D.M.O., concerned on his authorization. 10. Now coming to the complaint petition, it was submitted by learned Counsel for the petitioner that the complaint can only be filed by the appropriate authority concerned and there can be no authorisation in view of Section 28 (1) (a) of the Act, 1994. The relevant provision is as under : “28. Cognizance of offence – (1) No Court shall take cognizance of offence under this Act except on a complaint made by- (a) the Appropriate Authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the Appropriate Authority.” Xx xx xx xx 11. Pointing out to the ‘comma’ given after the words “as the case may be”, it was submitted by learned Counsel for the petitioner that it makes mandatory that no Court shall take cognizance of an offence under the Act, 1994 except on the complaint made by the appropriate authority himself. In this respect, learned Counsel for the petitioner relied on a decision of Hon’ble Apex Court reported in A.I.R. 1996 Supreme Court 569. In this respect, learned Counsel for the petitioner relied on a decision of Hon’ble Apex Court reported in A.I.R. 1996 Supreme Court 569. With due respect to cited the decision, it may be stated that the facts and circumstances of the reported case were absolutely different as to the position of the ‘comma’ in the relevant provision. In this case, as per Section 28, the appropriate authority concerned has been mentioned at the first instance. Thereafter in case of any other officer to be authorised in this behalf by the Central Government or the State Government the words “as the case may be” have been used followed by the words “or the appropriate authority”. It obviously meant that authorisation can be by the Central Government or the State Government as the case may be or also by the appropriate authority. The ‘comma’ before and after the words “as the case may be” is only to differentiate the Central or the State Government. Thus, the contentions raised in this regard by learned Counsel for the petitioner are not tenable. 12. Lastly, it was submitted by learned Counsel for the petitioner that the only allegation against the petitioner was non-renewal of the registration certificate and it was not the case of non-registration so as to make out an offence under Section 18 (1) of the Act, 1994, which makes registration mandatory before opening of any genetic clinic. It was further submitted that the renewal of registration has been provided under Rule 8 of the relevant rules and there has been no provision for punishment in case of any delay in making application for renewal. In this regard, learned Counsel for the petitioner placed before the Court a copy of the letter issued by the Director of the Health and Family Welfare Department, Government of Odisha, the appropriate authority under the Act, 1994 dated 15.09.2011 addressed to all the Collector-cum-District Appropriate Authorities, wherein it has been mentioned that as per amendments to Rules 11 and 12 of the Act, 1994 by the Government of India providing confiscation of unregistered Ultrasound Machine and punishment to three years of imprisonment so also fine up to Rs.50,000/- for un-registered clinic, the earlier provision, which enables unregistered Ultrasound Machine/Clinics to go scot-free on payment of penalty of five times of registration fee stands deleted. Thus, it was submitted that by the time the inspection of the clinic of the petitioner was made in the year 2007, there was no prosecution for delay in obtaining the renewal of registration and the matter could have been settled by paying the registration fee along with penalty, which the petitioner has done at the right earnest. The copies of the renewal application along with the acceptance of the fees have been placed on record. 13. In the cumulative effect of the facts and circumstances as detailed hereinbefore, I am of the view that the prosecution of the petitioner for the alleged offences in the given circumstances was uncalled for, more so, for the statutory lacuna as pointed out in conducting the search and seizure. Accordingly, the CRLMC is allowed and the entire proceeding in Criminal Trial No.210 of 2008 on the file of learned S.D.J.M., Jharsuguda against the petitioner stands quashed. CRLMC allowed.