SANJAY DATTATRAYA DHADKAR Vs. THE STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant medical practitioner is invoking this Court's inherent powers being aggrieved by the judgment dated 05.04.2019 rendered by the Additional Sessions Judge, Mehkar in Criminal Revision 112 of 2019 whereby the order dated 01.09.2018 in Miscellaneous Criminal Application 63 of 2018 rendered by the learned Judicial Magistrate First Class (3rd Court), Mehkar directing the appropriate authority to de-seal the room in which the sonography machines are installed and further de-seal- release the sonography machines and the probes etc. is set aside.

(2.) In the light of the order which I propose to make, it would not be necessary to make any decisive observation on several contentions which are urged by Shri R.P. Joshi, the learned counsel for the applicant - medical practitioner and by the learned APP Shri T.A. Mirza and the appropriate authority Dr. Swati Rawate who has appeared in person and assisted the learned APP Shri T.A. Mirza. The thrust of the submission of Shri R.P. Joshi is that the order of sealing of the sonography machines falls foul of the enunciation of law by at least two Division Bench decisions of this Court in Dr. Prasanna S. Mishrikotkar v. The State of Maharashtra and others - Writ Petition 9252 of 2014, dated 08.01.2015, Dr. Deepesh Bhagwantrao Chemate v. The State of Maharashtra and another - Writ Petition 10578 of 2014, dated 10.02.2015 which are consistently followed thereafter. The submission is that the appropriate authority has not recorded satisfaction that the machines are required to be sealed since the machines shall furnish evidence of the commission of offence. Shri R.P. Joshi would submit that in the light of the articulation by the Division Bench, the action of sealing could not have been taken without recording such satisfaction, and indeed without passing an order under Section 30 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ('Act').

(3.) The learned APP Shri T.A. Mirza and the appropriate authority Dr. Swati Rawate would argue in unison that in view of the decision of the Apex Court in Federation of Obstetrics and Gynecological Societies of India (FOGSI) v. Union of India and others reported in 2019 (7) SCALE 314, notwithstanding the enunciation in the decisions of the High Court, it must be held and recognized that the power of the appropriate authority to seal the sonography machines are unfettered and is available even de hors Section 30 of the Act and Rules 11 and 12 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 ('Rules') on the premise that sealing of the machines would be necessary to prevent further misuse and commission of similar offence. The said submission does raise an arguable issue, which may need consideration in an appropriate case. The implication of the observation of the Apex Court and the impact thereof on the enunciation by the decisions of this Court will need a serious and in-depth consideration.