KIRAN AGRAWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The petitioner herein is Senior Gynecologist running hospital in the name of Arogya Niketan Hospital at Ambikapur. She also holds valid certificate of registration granted by the appropriate authority for performing sonography/ultrasound in exercise of powers conferred under Section 19 (1) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter called as 'the Act of 1994'), which is valid up to 10.7.2021. A team of National Inspection and Monitoring Committee (hereinafter called as 'NIMC') along with State representatives constituted under the direction of the Supreme Court in the matter of Centre for Enquiry Into Health and allied Themes (CEHAT) and others v. Union of India and others, 2003 AIR(SC) 3309 conducted inspection of her hospital particularly of ultrasound/sonography machine installed therein and noticed certain irregularities in maintaining images/records after performing sonography. The said committee immediately then and there on said centre sealed ultrasound machine installed by the petitioner and recommended to the District Appropriate Authority for sealing ultrasound machine and filing of criminal complaint before the jurisdictional Criminal Court under Section 28(1) of the Act of 1994, but unfortunately the District Appropriate Authority did not proceed further either to file complaint envisaged under Section 28 (1) of the Act of 1994 or proposed any other further proceeding to confirm the order of sealing passed by inspection team leading to filing of writ petition by the petitioner before this Court on 9.5.2018 praying for unsealing of ultrasound/sonography machine and any other reliefs which she is entitled stating inter-alia that the Committee constituted under the direction of the Supreme Court has no power and jurisdiction to seal her ultrasound machine as power and jurisdiction is vested with the District Appropriate Authority i.e. District Magistrate under Section 30(1) of the Act of 1994, therefore, ultrasound machine be unsealed by setting aside the order sealing her ultrasound machine.

(2.) Return has been filed by the respondents stating inter-alia that respondents No.2 to 4 have already filed criminal complaint before the Court of Chief Judicial Magistrate, Ambikapur, which is pending consideration and the petitioner's remedy is to file an application under Section 457 of the CrPC read with Section 30(2) of the Act of 1994 before the jurisdictional criminal Court for custody of ultrasound machine.

(3.) Ms Fouzia Mirza, learned counsel for the petitioner, would submit that under Section 30(1) of the Act of 1994 the authority and jurisdiction to seal ultrasound machine is vested with the appropriate authority i.e. District Magistrate and therefore, the act of sealing the petitioner's ultrasound machine by team of inspection (NIMC) is without jurisdiction and without authority of law. She would further submit that power and jurisdiction to seal ultrasound machine lies subject to recording finding that he has "reason to believe" that an offence under the Act of 1994 has been or is being committed at such centre, then only the power of sealing can be exercised. In the instant case, neither sealing has been done by the District Appropriate Authority nor the finding of "reason to believe" has been recorded, therefore, the impugned order is without jurisdiction and without authority of law and it deserves to be set aside.