ORDER

% 10.07.2024 CRL.M.A. 19562/2024 Exemption allowed, subject to just exceptions.

Application stands disposed of.

CRL.M.C. 5130/2024 1. Petition under Section 482 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been preferred on behalf of petitioner against orders dated 04.06.2024 and 27.06.2024 passed by learned MM, South-West District, Dwarka Court, New Delhi in FIR No. 0567/2023, under Sections 3 A/4(3)/5/6/23/25 of Pre-Conception & Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and Section 34 of NMC Act, 2019, registered at PS: Dwarka North, thereby releasing the ultrasound machine seized during course of investigation.

2. Learned counsel for the respondent appears on advance notice and accepts notice.

3. In brief, as per the case of prosecution, a secret information was received on 17.09.2023 with respect to sex determination of an unborn child, whereupon, raid was conducted and FIR was registered under Sections 3 A/4(3)/5/6/23/25 of PC & PNDT Act, 1994 and Section 34 of NMC Act, 2019. During the course of investigation, ultrasound machine alleged to be used for the purpose of sex determination was seized on 18.09.2023.

4. Vide detailed order dated 04.06.2024, application preferred on behalf of the respondent for release of machine was allowed, subject to conditions listed in para 10 as under :

“10. The sole ground for opposing the application by the IO as well as the appropriate authority is that if released, chances of accused misusing the machine or tampering with the evidence in the hard disk cannot be ruled out. Other than this, IO as well as Ld. counsel for respondent have not putforth any ground to justify that machine be kept scaled and unused in the malkhana and in the absence of the same, the plea taken by the respondents seems untenable. Considering that investigation qua the machine has been completed and the main charge-sheet in the present matter has already been filed, as such, in opinion of this court, no prejudice would be caused on final determination of the case or to either party in case present application is allowed and machine kept in malkhana is released to the applicant as chances of tampering of evidence in the hard disk can be ruled out by imposing suitable conditions. Accordingly, present application is hereby allowed subject to following conditions:

(i) District Appropriate Authority as well as IO are directed to deseal the machine in presence of applicant subject to availability of all interested parties in malkhana of PS Dwarka North.

(ii) District Appropriate Authority as well as the IO shall be at liberty to make an effort to retrieve the data from the hard disk, or, in case same is not feasible without removing the hard disk, to remove the hard disk from the machine before handing over the physical possession of the machine to the applicant by taking assistance of duly qualified engineer/representative from the manufacturer i.e. Wipro G.E. Healthcare Pvt. Ltd, failing which, they shall have no right to raise objection on point of tampering of evidence contained in the hard disk.

Efforts to retrieve the data must be made by the IO within 07 working days from the date of receipt of this order, however, the aforesaid time is not inclusive of the time needed by engineer from the manufacturer company to retrieve the data from the hard disk or to remove the hard disk in usual course.

(iii) Once the data is retrieved from the hard disk or hard disk itself is removed from the machine as per satisfaction of the investigating agency, the same shall be seized by the IO as per proper procedure/rules and be sent to FSL for examination.

Once the data is retrieved from the hard disk or hard disk itself is removed from the machine as per satisfaction of the investigating agency or in case of failure of the investigating agency in making efforts to retrieve the data