Court held that sealed property should not be kept indefinitely when parties are acquitted, emphasizing timely disposal while balancing rights of parties involved.

JUDGMENT :

PRASANNA B. VARALE, J.

1. Under challenge in these criminal appeals preferred by the District Appropriate Authority, Ahmedabad is the judgment and order dated 01.10.2012 of the Gujarat High Court wherein the issue regarding opening of the seal of the ceased sonography machine which was case property (mudammal) was decided by the court in favor of the Respondent. The court observed that the Respondent had been acquitted both by the Trial Court as well as the appellate Court, and thus directed the seal to be opened. The High Court further directed that if any data was to be recovered from the machine then the Appellant Authority was at liberty to keep their Engineer present at the time of the opening of the seal of the sonography machine and retrieve any such data, and the same to be done in the presence of the Appellant. The subsequent judgment and order dated 22.10.2012 is also under challenge wherein the recall application preferred by the Appellant was dismissed in limine.

2. The factual matrix giving rise to the present appeal is as follows-

2.1 A sting operation was conducted by the Appellant Authority on 26.05.2009 wherein the Respondent, Kaushik Babulal Shah had conducted a sonography test and examined the embryo of one Kailashben Nitinkumar Parmar (who was a part of the operation) at the Manthan Imaging Centre, situated at Shivanand Complex, Maninagar. After the completion of the sonography test, it was alleged that he had disclosed the sex of the foetus as “male child” in consideration for a total amount of Rs 10,000/- where a sum of Rs. 5000/- was paid prior to the examination and the balance of Rs. 5000/- was paid after the examination. Subsequent to the sting operation, a complaint was lodged by the District Appropriate Authority (Appellant) against the Respondent on 27.05.2009. During search and seizure, the sonography machine was sealed. In the process it was also discovered that Form ‘F’ which as per the provisions of the PRE-CONCEPTION AND PRE-NATAL DIAGNOSTIC TECHNIQUES ACT , 1994 (hereinafter ‘PC & PNDT Act’) are mandatory to be maintained was found to have been incompletely filled. A case was therefore registered against the Respondent and his agents under Section 4(1), 5(2), 6(1), 23 (1) of P.N.D.T. Act, 1994 and Rules 9(4), 10(1), 9(6), 18 (1) of the 1996 Rules.

2.2 Against the sealing of the sonography machine, the Respondent preferred Writ Petition SCA No. 5830/09 before the High Court of Gujarat to remove the seal of the machine. In the said Writ, the Learned Single Judge vide order dated 30.06.2009 quashed the action of the Appellant Authority in sealing the sonography machine and directed to open the seal. The said order was challenged before the Division Bench in LPA No. 1371 of 2009 wherein the Division Bench on 07.12.2009 allowed the appeal and set aside the order passed by the Learned Single Judge giving direction to the Learned Metropolitan Magistrate, Ahmedabad to decide Criminal Case No. 785 of 2009 against the Respondent as expeditiously as possible

2.3 On 04.12.2012, the Respondent was acquitted by the Metropolitan Magistrate, Ahmedabad of all charges and it was directed that the seized property that is the sonography machine and other items be returned back to the complainant after the expiry of the appeal period. This judgment was challenged by the Government of Gujarat in Criminal Appeal No. 109/2012 before the Sessions Court. The Sessions Court confirmed the order of acquittal of the Respondent passed by the Metropolitan Magistrate vide order dated 23.08.2012.

2.4 In the meantime on 14.06.2012, Special Criminal Application, No. 1503 of 2012 was filed by the Respondent