PRABHAT KUMAR JAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) This is an application under Section 482 of the Code of Criminal Procedure assailing the Order dated 25.01.2008 passed by the learned S.D.J.M., Jharsuguda in C.T. No. 210 of 2008 taking cognizance of the offence punishable under Sections 23 and 25 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 against the present petitioner (hereinafter referred to as the "Act, 1994"). The impugned order was passed by the learned S.D.J.M., Jharsuguda on the complaint petition filed by the C.D.M.O., Jharsuguda being authorised by the District Magistrate and Collector, Jharsuguda, the appropriate authority under the Act, 1994 with the allegation that the Genetic Centre run by the present petitioner was visited by the Dr. Narayan Acharya, C.D.M.O. incharger on 27.04.2007 and it was found out that one Ultrasound Machine was functioning in the center in respect of which the registration had expired since 31.12.2006. It was alleged that functioning of the Ultrasound Machine without valid registration violated the provisions of Section 18(1) of the Act, 1994 and Rule 8 of the Rules framed there under. It was mentioned in the complaint petition that the machine was seized and sealed in presence of the witnesses. Necessary prayer was made to the Court to take cognizance of offence and punish the petitioner accused according to law.

(2.) In the present petition, the petitioner has assailed the legality of the impugned order of cognizance on the grounds that the search and seizure were not conducted as per statutory procedure and provisions and that it was conducted by an officer, who was not authorised under the law to conduct such inspection. It was also submitted that the C.D.M.O., Jharsuguda, who has filed the complaint petition, was also not legally entitled to file such a complaint. It was further submitted that the only allegation against the petitioner was that the period of registration certificate has expired and he had not made proper application for renewal. It was submitted that there was no other allegation of committing any offence or violating any provision of the Act, 1994, apart from the fact that only there was a delay in applying for the renewal of registration, which escaped notice of the petitioner. It was submitted that immediately after alleged search and seizure, the petitioner had made an application for renewal of the registration depositing the registration fee as well as five times of amount of registration fees towards penalty. The said amount in shape of Bank draft has already been received by the concerned authority. Thus, it was submitted that the prosecution of the petitioner after making application for renewal of registration paying the penalty for delay would put him to double jeopardy. It was also submitted that the said application for renewal as well as the payment of the amount were prior to filing of the complaint petition on 25.01.2008.

(3.) Per contra, it was submitted by learned Counsel for the State that all the formalities of search and seizure as well as of filing the complaint have been complied as per mandates of the Statute as well as of the Government Notification. It was further submitted that the petitioner having admitted that the validity of his registration to run the Ultrasound Clinic had expired and he had not made proper application for renewal, the commission of the offence under the Act, 1994 remained established.