SUJIT GOVIND DANGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) 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.

(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.