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2015 Supreme(Bom) 2578
IN THE HIGH COURT OF BOMBAY AT NAGPUR BENCH
V.M. Deshpande, J.
Dr. Anil son of Uddhavrao Madurwar and Ors. – Applicants
Versus
State of Maharashtra through Commissioner, Chandrapur Municipal Corporation, represented by its Authorised Medical Officer Dr. [Sau.] Anjali Ambatkar – Respondent
Criminal Application [Apl] No. 178 of 2015
Decided On : 02-09-2015
For the Applicant : Mr. M.P. Khajanchi
For the Respondent: Mr. P.V. Bhoyar
The validity of the Registration Certificate and its renewal influenced the court's decision on the use and desealing of the sonography machine.
Headnote:
Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act - Challenge to Judgment and Order - Section 3(1), 19(3), 23
Fact of the Case:
The applicants challenged a judgment related to the contravention of Sections 3(1) and 19(3) of the Pre-conception & Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003. The complaint alleged the use of an expired and unregistered sonography machine in violation of the Act and Rules.
Finding of the Court:
The court found that the renewal of the Registration Certificate was granted, and the machine could be used by the applicants. The court allowed the application and quashed the judgment to the extent prejudicial to the applicants' interests, granting the prayer to release the sonography machine but with a restriction on its use.
Issues: Challenge to judgment, validity of machine use, renewal of Registration Certificate, and desealing of the machine.
Ratio Decidendi: The renewal of the Registration Certificate and its validity allowed the use of the sonography machine by the applicants. The court emphasized that keeping the machine sealed would not serve any purpose as it was not used for prohibited activities.
Final Decision: The court allowed the application, quashed the judgment to the extent prejudicial to the applicants' interests, and granted the prayer to release the sonography machine with a restriction on its use.
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. 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 Com
