Mumbai high Court on decide all PNDT cases within a year


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTI ON
WRIT PETITION NO.7896 OF 2010
ALONGWITH
CIVIL APPLICATION NO.512 OF 2011
Dr. (Mrs.) Suhasini Umesh Karanjkar,
Aged 36 years, Occupation Medical Profession,
R/o. 741/1, Plot No.14, Shreekrishna Colony,
Main road, Sambhaji Nagar, Kolhapur,
Through her Constituted Attorney

Dr. Umesh Murlidhar Karanjkar,
Aged 40 years, Occ. Medical Profession,
Residing at above address. …Petitioner.
Vs.
1 Kolhapur Municipal Corporation
Through its Health Officer and
Appropriate Authorities,
Having Office at Municipal Corporation
Building, Shivaji Chowk, Kolhapur.
2 The District Collector, Kolhapur
having office at Nagala Park, Kolhapur.
…Respondents.
Mr. Sagar A. Mane i/by N .V.Bandiwadekar for the Petitioner.
Mr. S.R.Nargolkar, Additional Government Pleader for Respondent No.2.
Mr. Uday Warunjikar for intervenors in C.A.No.512 of 2011.

CORAM : MOHIT S. SHAH, C. J.,
DR. D.K CHANDRACH UD, J.
AND D.G. KARNIK, J.
JUDGMENT RESERVED ON 19TH APRIL, 2011
JUDGMENT DECLARED ON 6″‘ JUNE, 2011

JUDGMENT (Per Chief Justice)
This reference made by an order dated 23 December, 2010
of a Division Bench of this Court raises the following questions :-
1) Whether the power to search, seize and seal “any other material
object” conferred by Section 30 of the Pre-conception and pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 includes
the power to search, seize and seal an ultrasound machine or any other
machine or equipment, if the Appropriate Authority or Authorized Officer
has reason to believe that it may furnish evidence of the commission of
an offence punishable under the Act?
2) Whether the decision of a Division Bench of this Court at Aurangabad
Bench in Dadasaheb (Dr.) s/o Popatrao Tarte Vs. State of Maharashtra
and others, 2010 {2) Mah. L.J. 110 taking the view that Section 30 does
not confer such power in respect of an ultrasound machine lays down
the correct law?
2. The brief facts leading to filing of this writ petition are not in dispute.
The petitioner is a Gynecologist running a Maternity and Surgical
Hospital at Kolhapur with an ultrasound machine. The hospital has been
registered as a Genetic clinic/Ultrasound Clinic under the provisions of
the Pre-conception and Pre-natal Diagnostic Techniques Act, 1994 “(the
Act)” and the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Rules, 1996 “(the Rules)”.
Registration was granted by the competent authority on 3 September
2003 and has been extended from time to time till 31 March 2013. On 22
January 2009, the Appropriate Authority at Kolhapur along with his
officers went to the petitioner’s clinic in view of a complaint that the
petitioner was using the ultra sound machine for conducting sonography
on pregnant women for determination of sex of foetus. The Appropriate
Authority seized the record of the hospital and the ultrasound machine
and put his seal on the record and the ultrasound machine after drawing
a panchanama in presence of the petitioner’s husband, who is also a
Gynecologist.
On 17 February 2009, the Appropriate Authority issued a notice to the
petitioner to show cause why the registration granted in her favour
should not be suspended. The petitioner sent a reply dated 5 March
2009. The Appropriate Authority passed order on 7 March 2009
suspending the registration granted to the petitioner under the
provisions of the Act and the rules. Aggrieved by the order the petitioner
preferred an appeal before the District Collector, Kolhapur under Section
27 of the Act, on 31 August 2009.
3. In the present petition filed on 14 September 2010, the petitioner has
challenged the action of the Appropriate Authority seizing and sealing
the ultrasound machine on the ground that the Appropriate Authority
and the Authorized Officer does not have any power to seize and seal an
ultrasound machine. At the time of the preliminary hearing of this
petition, counsel for the petitioner placed reliance on the decision of a
Division Bench of this Court in 1 Dadasaheb Vs. State of Maharashtra, in
support of the contention that the Appropriate Authority has no power to
seize or seal an ultrasound sonography machine. The following
observations are contained in paragraph 12 of the judgmentz-
“On clear reading of the provisions under Section 30 of the Act of 1994
as well as the provisions under Rules of 1996 make it clear that the
Appropriate Authority is empowered to seize the documents, record,
register, book, pamphlet, advertisement or any other material object
found in the Genetic Clinic, Genetic Centre, or the General Laboratory.
But on clear and bare reading of the provision under the Act as well as
the rules it nowhere provides that the authority is empowered to seize
the machinery/the machine used in the Genetic Clinic. If it is so, the
authority is not empowered to seize the Ultra Sonography Machine under
the provisions of Law. In the premise, the case of the petitioner is
covered under the citation as the Rule given by the Principal Bench of
this Court in Writ Petition No. 7973/2008 is applicable to the present
case. In the premises, we set aside the order of the seizure of the ultra
sonography machine and direct to return the seized ultra sonography
machine to the petitioner.” (emphasis supplied)
4. While prima facie disagreeing with the above view, the Division Bench
making the reference has expressed a tentative opinion that the
provisions of Section 30 of the Act and Rule 12 of the Rules are widely
worded in order to provide for the power to seize and seal not only
registers and documents but also “any other material object” found in a
Genetic Counselling Centre, Genetic Laboratory/Genetic clinic or any
other place where an offence under the Act has been or is being
committed. Hence, the present reference which involves determination
of the questions set out in the opening paragraph of this judgment.
While making this reference, the Division Bench had also directed the
District Collector i.e. Appellate Authority to hear and decide the
petitioner’s appeal expeditiously.
5. The learned counsel for the petitioner placed reliance upon the
aforesaid decision of this Court and submitted that Section-30 of the Act
does not define “any other material object” and therefore, the definition
of “material object” in Explanation (2) to Rule 12 laying down the
procedure for search and seizure as “including machines and
equipments” cannot empower the Appropriate Authority under Section
30 to seize and seal an ultrasound machine. It was submitted that the
substantive power conferred by Section 30 of the Act cannot be enlarged
by a definition in the Rules made under the Act.
6. On the other hand, Mr. Nargolkar, learned Additional Government
Pleader has submitted that Explanation (2) to Rule 12 expressly defines
“material object” as including “machines and equipments” and therefore,
there is no scope whatsoever for any controversy. It is further submitted
that the Rules of 1996 were framed by the Central Government under
the provisions of Section 32 read with Section 30 and were laid before
each House of Parliament under Section 34. In absence of any
modification made by Parliament in Rule 12, the definition of “material
object” as including machines and equipments must be treated as having
received legislative acceptance by Parliament. It is further submitted that
even otherwise, on an examination of the scheme of the Act and the
Rules, the Appropriate Authority and the Authorized Officer do have the
power or authority to search, seize and seal ultrasound machines or
other equipments used in criminal acts of sex determination for sex
selection in contravention of the Act.
7. Before dealing with the rival submissions, it is necessary to refer to
the relevant provisions of the Act and the Rules and also to the
Statement of Objects & Reasons particularly, for Amendment Act 14 of
2003.
8. The Act and the Rules framed there under came into force on 1
January 1996. The Preamble to the Act provides that it is an Act to
provide for the prohibition of sex selection, before or after conception
and regulation of the use of pre-natal diagnostic techniques for the
purpose of detecting genetic abnormalities or metabolic disorders or
chromosomal abnormalities or certain congenital mal-formations or sex
linked
disorders and for the prevention of their misuse for sex
determination leading to female foeticide and, for matters connected
herewith or incidental thereto. (emphasis supplied)
9. Section 3 of the Act provides for regulation of Genetic Counselling
Centres, Genetic Laboratories and Genetic clinics through the
requirement of registration under the Act. Section 4 provides that no
such place shall be used for conducting pre-natal diagnostic techniques
except for the purposes specified in Clause (2) of the said section and
requires a person conducting such techniques such as ultrasound
sonography on pregnant women to keep a complete record in the
manner prescribed in the Rules.,
Section 6 provides that no pre-natal diagnostic techniques including
sonography can be conducted for the purpose of determining the sex of
a foetus and that no person shall conduct or cause to be conducted any
pre-natal diagnostic techniques including ultra sonography for the
purpose of determining the sex of a foetus.
10. The Act came to be amended by Amendment Act 14 of 2003. The
Statement of Objects and Reasons to the Amendment Act, inter alia,
read as under :-
“Amendment Act 14 0f 2003 — Statement of Objects and Reasons.- The
Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse)
PL 1994 seeks to prohibit pre-natal diagnostic techniques for
determination of sex of the foetus leading to female foeticide. During
recent years, certain inadequacies and practical difficulties in the
administration 0f the said Act have come to the notice of the
Government, which has necessitated amendments in the said Act.
2. The pre-natal diagnostic techniques like amniocentesis and
sonography are useful for the detection of genetic or chromosomal
disorders or congenital malformations or sex linked disorders, etc.
However, the amniocentesis and sonography are being used on a large
scale to detect the sex of the foetus and to terminate the pregnancy of
the unborn child, if found to be female.
Techniques are also being developed to select the sex or child before
conception. These practices and techniques are considered
discriminatory to the female sex and not conducive to the dignity of
women.
3. The proliferation of the technologies mentioned above may, in future,
precipitate a catastrophe in the form of severe imbalance in male female
ratio. The State is also duty bound to intervene in such matters to
uphold the welfare of the society, especially of the women and children.
;,_
therefore, necessary to enact and implement in letter and spirit a
legislation to ban the pre conception sex selection techniques and the
misuse of pre-natal diagnostic techniques for sex selective abortions and
to provide for the regulation of such abortions. Such a law is also needed
to uphold medical ethics and initiate the process of regulation of medical
technology in the larger interests of the society.
4. Accordingly it is proposed to amend the aforesaid Act with a view to
banning the use of both sex selection techniques prior to conception as
well as the misuse of pre- natal diagnostic techniques for sex selective
abortions and
to regulate such techniques with a view to ensuring their scientific use
for which they are intended.” (emphasis supplied)
11. Some important amendments made by the said Amendment Act 14
of 2003, have a bearing on the questions under consideration.
Having realized that ultra sonography on a pregnant woman with an
ultrasound machine is an very important part of the sex determination
test and procedure, which is being misused, Parliament has made a
specific reference to sonography and ultrasound machine and other
machines in some of the newly inserted sections and also by
amendments to existing provisions.
12. The term “genetic clinic” is defined in Section 2(d) as “any clinic or
place by whatsoever may be called which is used for conducting pre
natal diagnostic procedures”. The Explanation thereto provides that
genetic clinic even includes a vehicle, where ultrasound machine or
imaging machine or scanner or other equipment capable of determining
sex of the foetus is used. Genetic laboratory is defined by Section 2 (e)
as including a place where facilities are provided for conducting analysis
or test samples received from a genetic clinic or pre natal diagnostic
tests. Explanation thereto provides that “genetic laboratory” includes a
place where an ultrasound machine capable of determining sex of
foetus, is used. Both these explanations provide that the definitions
would even include a portable equipment with a potential for detection
of sex during pregnancy or selection of sex before conception.
A pre natal diagnostic test is defined in Section 2(l<) as
“ultrasonography or any test or analysis of amniotic fluid …….. or fluid of
pregnant woman or conception or analysis …. blood or any other tissue
or blood of the pregnant woman or conceptus conducted to detect …..
genetic ….. or sex linked disease".
Section 2(i) defines "pre-natal diagnostic procedures as "all
gynaecological or obstetrical or medical procedures such as @
sonography, ……… of a woman before or after conception for being sent
to genetic laboratory or genetic clinic for conducting any type of analysis
or pre natal diagnostic tests for selection of sex before or after
conception.
Section-2) (j) defines "pre-natal diagnostic techniques" as including all
pre natal diagnostic procedures and pre natal diagnostic tests.
13. Section 3B provides as follows : "@ Prohibition on sale of ultrasound
machine, etc., to persons, laboratories, clinics, etc., not registered under
the Act- @ person shall sell any ultrasound machine or imaging machine
or scanner or any other equipment capable of detecting sex of foetus to
any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any
other person not registered under the Act".
14. Amended section 4 now specifically provides that the person
conducting ultra sonography on a pregnant woman has to maintain the
complete record thereof in the manner prescribed in the Rules and any
deficiency or inaccuracy found therein amounts to contravention of
Section 5 and 6, unless contrary is proved by the person conducting such
ultra sonography.
Section 6 also specifically prohibits 'any genetic clinic …. or any person`
from conducting any pre natal diagnostic techniques including ultra
sonography for the purpose of detecting sex of foetus.
15. Sub Section (1) of Section 18 prior to amendment by Act 14
of 2003 read as under:-
(1) No person shall open any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic after the commencement of this Act unless
such Centre, Laboratory of Clinic is duly registered separately or jointly
under this Act.
After amendment in 2003, the provision reads as under : No person shall
open any Genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic, including clinic, laboratory or centre having ultrasound or imaging
machine or scanner or any other technology capable of undertaking
determination of sex of foetus and sex selection, or render services to
any of them, after the commencement of the Pre- natal Diagnostic
Techniques [Regulation and Prevention of Misuse) Amendment Act, 2002
unless such centre, laboratory or clinic is duly registered under the Act.
(emphasis supplied)
16 Section 22 provides for prohibition of advertisement relating pre
conception and pre natal determination of sex and punishment for
contravention and Section 23 provides that any medicval geneticist,
gynaecologist, registered medical practitioner or any person who owning
a Genetic Centre, etc., or is employed to render his professional or
technical services to or at such a centre, and who contravenes any of the
provisions of this Act or rules made thereunder shall be punishable with_
imprisonment for a period upto three years and with fine which may
extend to ten thousand rupees, which may extend to five years and with
fine which may extend to fifty thousand rupees, in case of subsequent
conviction.
Sub section (2) of Section 23 even provides that the name of the errant
registered medical practitioner shall be reported by the Appropriate
Authority to the State Medical Council concerned for taking necessary
action.
17. Section 17(4) of the Act, even prior to the Amendment Act of 2003,
provided that the Appropriate Authority shall perform various functions
including the following :-
(c) to investigate complaints of breach of the provisions of this Act or the
rules made there under and take immediate action;" and
(d) any other matter which may be prescribed.
Section 17-A inserted by the Amendment Act, 2003 confers additional
powers on the Appropriate Authority including the power in respect of :
(c) issuing search warrant for any place suspected to be indulging in sex
selection techniques or prenatal sex determination ; and
(d) any other matter which may be prescribed.
18. Section 29 provides for maintenance of records and preservation of
such record for a period of two years till the final disposal of proceeding
under the Act. Section 30 of the Act confers power to search and seize
records. Prior to its amendment in 2003, Section 30 did not provide for
any power to seal, though explanation (3) to Rule 12 of the Rules
provides that “seize” would include "seal”, Section 30 as amended by Act
14 of 2003 with effect from 14 February 2003 specifically confers power
not only to seize but also "to seal" any record, register documents,
books, pamphlet, advertisement or "any other material object" found
therein at any Genetic Centre etc., in the following words-
30. Power to search and seize records, etc. —
(1) If the Appropriate Authority has reason to believe that an offence
under this Act has been or is being committed at any Genetic Counselling
Centre, Genetic Laboratory or Genetic Clinic or any other place, such
Authority or any officer authorised thereof in this behalf may, subject to
such rules as may be prescribed, enter and search at all reasonable
times with such assistance, if any, as such authority or officer considers
necessary, such Genetic Counselling Centre, Genetic Laboratory or
Genetic Clinic or any other place and examine any record, register,
document, book, pamphlet, advertisement or any other material object
found therein @ seize and seal the same if such Authority or officer has
reason to believe that it may furnish evidence of the commission of an
office punishable under this Act.
(2) ……………………..
(emphasis supplied)
Section 32 confers upon the Central Government powers to make rules
for carrying out the provisions of the Act, including;
(xiii) the manner in which the seizure of documents, records, objects,
etc., shall be made and the manner in which seized list shall be prepared
and delivered to the person from whose custody such documents,
records or objects were seized under sub section (1) of Section 30.
19. Section 34 provides that every rule and every regulation made under
the Act shall be laid as soon as may be after it is made, before each
House of Parliament while it is in session, for a total period of thirty days
and if both houses agree in making any modification in the rule or
regulation or both Houses agree that the rule and regulation should not
be made, the rule or regulation shall thereafter have effect only in such
modified form or be of no effect, as the case may be.
20. In exercise of the aforesaid powers under Section 32 read with
Section 30 the Central Government has made the Pre conception and
Pre- natal Diagnostic Techniques (Prohibition of Sex Selection) Rules
1996.
21. Rule 9 provides for maintenance and preservation of records and
sub-rule (6) provides for particulars of the manner in which the records
are to be maintained and also provides that all case related records,
forms of consent, laboratory results, microscopic pictures, sonographic
plates or slides, recommendations and letters shall be preserved by
Genetic Centre etc., for a period of two years from the date of
completion of counseling, pre- natal diagnostic procedure or pre-natal
diagnostic test, as the case may be. ln the event of any legal
proceedings, the records etc., shall be preserved till final disposal of the
legal proceedings.
Rule 9 (7) further provides that in case the Genetic Clinic etc. maintains
records on computer or other electronic equipment, a printed copy of the
record shall be taken and preserved after authentication by a person
responsible for such record and further that such centre is required to
send a complete report in respect of all pre conception or pregnancy
related procedures/techniques /tests conducted by them in respect of
each month by fifth day of the following month to the concerned
Appropriate Authority.
22. Sub rule (1) of Rule 11 provides that Every Genetic Centre,
Ultrasound Clinic etc., or any other place where any of the machines or
equipments capable or performing any procedure, techniques or g
capable of pre- natal determination of sex or selection of sex before or
after conception is used, shall afford all reasonable facilities for
inspection of the place, equipment and records to the Appropriate
Authority or to any other person authorized by the Appropriate Authority.

Sub rule (2) of Section 11 reads as under:
(2) The Appropriate Authority or the officer authorized by it may seal
and seize any ultrasound machine, scanner or any other equipment,
capable of detecting sex of foetus, used by any organization if the
organization has not got itself registered under the Act.
These machines of the organizations may be released if such
organization pays penalty equal to five times of the registration fee to
the Appropriate Authority concerned and gives an understanding that it
shall not undertake detection of sex of foetus or selection of sex before
or after conception.
23. Rule 12 lays down the procedure for search and seizure as
under :
12. The Appropriate Authority or any officer authorized in this behalf
may enter and search at all reasonable times any Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic, Imaging Centre or Ultrasound
Clinic in the presence of two or more independent witnesses, for the
purposes of search and examination of any record, register, document,
book, pamphlet, advertisement, or any other material object found
therein and seal and seize the same if there is reason to believe that it
may furnish evidence of commission of an offence punishable under the
Act.
Explanation-In these rules-
(1) “Genetic Laboratory/Genetic Clinic/Genetic Counselling Centre” would
include an ultrasound centre/imaging centre/nursing
home/hospital/institute any other place, by whatever name called, where
any of the machines or equipments capable of selection of sex before or
after conception or performing any procedure technique or test for pre-natal detection of sex of foetus, is used;
(2) "material 0bject" would include records, machines and equipments;
and
(3) "seize" and "seizure" would include “seal" and "sealing" respectively.
(emphasis supplied)
24. A bare perusal of the aforesaid statutory provisions, both in the Act
and in the Rules framed thereunder, makes it abundantly clear that an
ultra sonography test on a pregnant woman is considered to be an
important part of a pre-natal diagnostic test or pre-natal diagnostic
procedure, which cannot be conducted except for the purpose of section
4(2). The person conducting ultrasonography on a pregnant woman has
to maintain a complete record thereof in the manner prescribed in the
Rules and a deficiency or inaccuracy in maintaining such records would
amount to an offence, unless the person conducting such sonography is
able to show that there was no deficiency or inaccuracy. The fact that
section 3-B inserted by Amendment Act 14 of 2003 specifically prohibits
even sale of an ultra sound machine or other machines capable of
detecting sex of foetus to any genetic clinic or any other place or to any
person not registered under the Act, itself should be sufficient to hold
that in the scheme of the Act, Parliament has considered an ultrasound
machine as a "material object" because it is capable of detecting sex of a
foetus.
25. While section 17-A(c) empowers the appropriate authority to issue
search warrant for any place suspected to be indulging in pre- natal sex
determination with an ultra sonography test on a pregnant woman, apart
from section 30, there is no other section in the Act which confers
powers upon the appropriate authority or authorised officer to seize or
seal a "material object” like an ultrasound machine at any place
suspected to be indulging in pre-natal diagnostic techniques such as an
ultra sonography test on a pregnant woman for determination of sex.
26. Now, if the petitioner's contentions were to be accepted, the
appropriate authority or the authorised officer will not have any power to
seize or seal such an ultra sound machine sold by a person to an
unregistered clinic. The Legislature which has condemned misuse of pre-natal diagnostic technique (such as ultra sonography on a pregnant
woman) for sex determination of foetus leading to female foeticide, and
made it a criminal offence punishable with imprisonment upto three
years, could not have intended that while a seller of an ultra sound
machine to an unregistered clinic should be prosecuted under section 23
for contravention of section 3-B of the Act, the ultra sound machine
should be allowed to be continued to be used by or on behalf of an
unregistered purchaser. But for section 30 of the Act, no action can be
taken by the appropriate authority or authorised officer in respect of the
ultra sound machine being used for sonography on a pregnant woman
for the purpose of determination of sex of the foetus, which may
ultimately result into termination of pregnancy of unborn child, if found
to be female- as stated in so many words in the Statement of Objects
and Reasons to the Amendment Act 14 of 2003. That is why Parliament,
which had already conferred on the appropriate authority authorized
officer the power to “search and seize" any material object, also
conferred the further power to "seal" such a material object.
27. In our opinion, the above analysis of the provisions of the Act is
sufficient to hold that the expression "material object" for which the
power to seize and seal is conferred upon the appropriate authority
/authorised officer, includes ultra sound machines, other machines and
equipment which are used for pre-natal diagnostic techniques or sex
selection techniques.
28. Further, the provisions of Rule 11, particularly sub-rule (2) thereof,
conferring power to seal and seize ultra sound machines or other
machines or equipments capable of detecting sex of foetus, sold to
unregistered purchasers and explanation (2) to Rule 12 (material object
would include records, machines and equipments) make it more than
clear that the expression "any other material object" in section 30
includes ultrasound machines, other machines and equipment capable of
detecting sex of foetus or capable of use for sex selection.
29. It is necessary to note that the Rules made under Section 32 of the
Act are required by Section 34 to be laid before each House of
Parliament and if no modification is made within a period of 30 days
while Parliament is in session, the rules continue to have effect as made.
lf any modification is made, then the Rules continue to have effect
subject to the modification . lf both the Houses agree that a rule should
not be made, the rule shall be of no effect from the date of annulment.
It is nobody’s case that the Rules have not been laid before Parliament
or after having been laid before Parliament, Parliament resolved to
delete or modify explanation (2) to Rule 12.
It must therefore, be held that the Rules have been accepted by
Parliament without any modification of explanation (2) to Rule 12.
30. ln a catena of decisions (Tata Engineering and Locomotive Company
Ltd Vs. Gram Panchayat, Pimpri Wagherez, R Kasilingam Vs. PSG.
College of Technology,3 Pali Devi Vs. Chairman, Managing Committee,4
(para 8), Gujrat Pradesh Panchayat Parishad Vs. State of Gujarat (para
39) the Supreme Court has held that "rules made under a statute are a
legitimate aid to construction of the statute as contemporanea
expositio.”. This is particularly so when Section 34 of the Act requires
Rules made under Section 32 of the Act to be laid before each House of
Parliament within a period of 30 days while Parliament is in session.
31. We may also refer to the rule of “ejusdem generis" invoked by the
learned counsel for the petitioner in support of the contention that
976)4 scc 177
a AIR 1995 sc 1395 = 1995 supp (2) scc 348
4 AIR 1996 sc 1589 = 1996(s) scc 296
5 2007(7) scc 718
"any other material object" in Section 30 must take colour from the
preceding words. It is submitted that since all the preceding words
pertain to paper such as record, register, document, books, pamphlet
and advertisement the words "any other material object” must be
construed in light of the preceding words.
32. In Smt. Leelavati Bai Vs. State of Bombay, 1957 SCR 721 : AIR 1957
SC 521 (Para 11), the Apex Court laid down the following principles-
"The rule of ejusdem generis is intended to be applied where general
words have been used following particular and specific words of the
same nature on the established rule of construction that the legislature
presumed to use the general words in a restricted sense; that is to say,
as belonging to the same genus as the particular and specific words.
Such a restricted meaning has to be given to words of general
importance where the context of the whole scheme of legislation
requires it. But where the context and the 0bject and mischief of the
enactment do not require such restricted meaning to be attached to
words of general import, it becomes the duty of the courts to give those
words their plain and ordinary meaning". (emphasis supplied)
33. As already discussed, on analysis of the scheme of the Act, and
having regard to the legislative object and the mischief sought to be
avoided, as referred to in the preamble to the Act and also in the
Statement of Objects and Reasons to the Amendment Act 14 of 2003,
we have no manner of doubt in holding that the power under Section 30
to seize and seal "any material object" includes power to seize and seal
ultrasound machines and other machines and equipments, capable of
selection of sex or capable of performing any procedure, technique or
test for pre natal detection of sex of foetus.
34. As regards the decision in Dadasaheb Vs. State of Maharashtra
(supra), we note that the Division Bench did not refer to explanation (2)
to Rule 12 of the PC and PNDT Rules, 1996, much less to the legislative
object and scheme of the Act discussed above .
Otherwise also, independently of reference to the said Rules, we are of
the view that on an analysis of the provisions of the Act, if any
ultrasound machine is used for conducting sonography on a pregnant
woman for a sex determination test or sex selection procedure in
contravention of the provisions of the Act, the power to seize and seal
any other material object, besides the record and documents, would
include the power to seize and seal ultrasound machines and other
machinery and equipment.
35. We may also refer to the interim order in Writ Petition No. 7973 of
2008 referred to in Paragraph 12 of the judgment in Dadasaheb’s case.
(Lata Mangeshkar Medical Foundation Vs. The Dy. Medical Officer of
Health Pune Municipal Corporation and others). That interim order was
passed in an all together different set of facts and circumstances. In that
case, 8 ultrasound machines were seized from a charitable hospital with
650 beds and 70 ICU beds and it was in that background that a Division
Bench of this Court (without holding that the authority does not have the
power to seize or seal ultra sound machines) by an interim order,
directed the authorities to return ultrasound machines seized by the
authorities on an allegation that “certain formalities were not fulfilled
whilst sonography on patients was conducted which raises the suspicion
that sonography might have been performed for detecting sex of the
foetus."
An interim order cannot be treated as a precedent while interpreting the
provisions of a statue, and that too when the Division Bench did not
refer to Section 30 of the Act.
36. ln view of the above discussion, our answers to the questions framed
for determination are as under:-
(i) The expression "any other material object" in Section 30 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 includes ultrasound machines, other machines and
equipment capable of aiding or assisting in selection of sex, or capable of
performing any procedure, technique or test for pre natal detection of
sex of foetus.
(ii) The decision of the Division Bench of this Court in Dadasaheb Vs.
State of Maharashtra 2010 (2) Mah. L.J. 110, taking the contrary view
does not lay down the correct law and is hereby overruled.
37. Since the only controversy raised in this petition was about
interpretation of the expression "any other material object" in Section 30
of the Act, we may not be treated to have expressed any opinion on the
question as regards the circumstances in which the power under Section
30 is to be exercised.
38. As the seizure and sealing of the petitioner's ultrasound machine was
challenged only on the ground that the Appropriate Authority or
Authorized Officer does not have power or authority to take such action
under Section 30 of the Act read with Rule 12 and the petitioner’s
contention has been repelled, we see no merit in this petition. The
petition is accordingly dismissed.
39. We place on record our appreciation for the valuable assistance
rendered by Mr. Sagar A. Mane, learned counsel for the petitioner, Mr.
S.R.Nargoll<ar, learned Additional Government Pleader for respondent
No.2 and Mr.Uday Warunjikar, learned counsel for the intervenors.
40. Before parting with the matter, we may refer to the disturbing
figures of the declining National child sex ratio over the last five decades,
to which our attention has been invited by the learned Additional
Government Pleader :-
Year No.of girls per 1000 boys {in the age group 0-6 years;
1961 976
1971 965
1981 962
1991 945
2001 927
2011 914
In the State of Maharashtra also, the child sex ratio has gone down from
913 in 2001 to 883 in 2011. lt has gone down to as low as 801 in Beed
District. In Kolhapur District, where the offence in question is registered,
it is 839.
41. We are also distressed by the fact that a number of cases for trial of
offences registered under the Act are pending in Courts of the Judicial
Magistrate First Class for a long period, sometimes upto 6 years and in a
few cases as long as 6 to 8 years. It is, therefore, directed that all cases
under the Act shall be taken up on top priority basis and the
Metropolitan Magistrates. Mumbai and the J .M.F.Cs. in other Districts
shall try and decide such cases with utmost priority and preferably within
one year. Criminal Cases instituted in the year 2010 and prior thereto
shall be tried and decided by 31 December 2011.
42. A copy of this judgment shall be circulated to the Principal District
Judges in all the districts of State of Maharashtra and State of Goa and
to the Chief Metropolitan Magistrate, Mumbai, who shall in turn circulate
a copy of this judgment to the Metropolitan Magistrates, Mumbai and all
the Judicial Magistrates First Class in their respective districts for timely
compliance with the above direction.
CHIEF JUSTICE
DR. D.Y: CHANDRACH UD, J.
D.G. KARNIK, J.

2 thoughts on “Mumbai high Court on decide all PNDT cases within a year

  1. lagerahonatubhai says:

    surat becomes top ten killer of girls by census 2011 reort of CSR(0-6),
    local CDHO dr.rajendra kanchhal is most corrupted and want to earn more and more so do not work on violating doctors even enough proofs given after sting with CD and others.
    lageraho natubhai
    narendra patel
    genderbalancingmovement@gmail.com,lokandolansurat@gmail.com,lagerahonatubhai@gmail.com
    surat gujarat m-09228484459

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