D.D. Sinha, J.

Heard the learned counsel for the petitioner and the learned counsel appearing for the respective respondents.

2. The petitioner is challenging the legality and propriety of notice/order dated 21.6.2011 passed by the respondent no.3 and order dated 9.11.2011 passed by the respondent no.4. Similarly, a direction is sought against the respondent nos.2 and 3 to release and/or return to the petitioner sonography machine seized vide order dated 21.6.2011.

SUBMISSIONS OF THE PETITIONER :

3. Mr.Thorat, the learned counsel for the petitioner, has submitted that the action of the respondent-authorities is wholly illegal, incorrect and, therefore, cannot be sustained in law. It is contended that the provisions of the proviso to sub-section (3) of section 4 of the Act require the Doctor to keep a record in the clinic as prescribed under the Rules, failing which it can be presumed that the provisions of sections 5 and 6 are contravened by such Doctor. It is submitted that before drawing presumption of contravention of section 5 or 6, opportunity must be given to the Doctor to disprove the said presumption as per the scheme of subsection (3) of section 4 of the Act. The scheme of the Act, therefore, provides that before the said presumption is drawn, the Doctor conducting sonography on a pregnant woman is required to be given a chance to put forth his defence regarding maintenance of the record and it is only thereafter the authorities are entitled to consider whether there is a violation of section 5 or 6 of the Act. It is contended that if the appropriate authority is satisfied by the explanation of the Doctor, it may not be necessary to proceed against such Doctor by initiating criminal proceedings or take action of suspension of licence.

4. Mr.Thorat has contended that section 20 of the Act provides for cancellation or suspension of licence. Sub-section (1) of section 20 specially provides that the appropriate authority may suomotu or on complaint, issue a notice to the Genetic Clinic to show cause why its registration should not be suspended or cancelled. Sub-section

(2) of section 20 further provides that after giving reasonable opportunity of being heard to the Genetic Clinic and having regard to the advice of the Advisory Committee, if the appropriate authority is satisfied that there has been a breach of the provisions of the Act or the Rules, it may, without prejudice to any criminal action that it may take against such Centre, Clinic or Laboratory suspend its registration for such period as it may think fit or cancel its registration, as the case may be. Mr.Thorat, therefore, contended that sub-sections (1) and (2) of section 20 substantiates the contention canvassed by the petitioner that as per the scheme of the Act, it is necessary to first afford a reasonable opportunity of being heard to the Doctor and it is only thereafter action, if any, either of suspension or cancellation of licence can be taken.

5. The counsel for the petitioner has submitted that sub-section (3) of section 20 is an exception to the rule of giving reasonable opportunity of hearing to the Genetic Centre/Doctor provided as per sub-sections (1) and (2) of section 20. However, though the appropriate authority is vested with the emergency powers stipulated in sub-section

(3) and can suspend the licence if it is necessary or expedient to do so in public interest, it must record reasons in writing and it is only thereafter, it is entitled to suspend the registration of any Genetic Counselling Centre, etc., without issuing such notice.

6. It is submitted that in the hand-book prepared and published by Union of India which is in the form of guidelines, it is stipulated that though the appropriate authority has a right to suspend the registration of Genetic Laboratory, Clinic or Centre, without issuing a notice, however, such power should be exercised as an exception rather than a rule and only when it is essential in the public interes