SATYABRATA PATEL Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner Satyabrata Patel has filed this application under section 482 of Cr.P.C. challenging the impugned order dated 05.08.2017 passed by the learned S.D.J.M., Jharsuguda in 2(C) CC No. 1630 of 2012 in taking cognizance of the offences under sections 23 and 25 of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short, "PCPNDT Act") and issuance of process against him.

(2.) The complaint petition was filed by the DTO -cumAuthorised Officer of the District Appropriate Authority, Jharsuguda under the PCPNDT Act against the petitioner and others wherein it is stated that the State PC & PNDT monitoring team visited Jharsuguda on 22.08.2012 for a surprise inspection and met the Collector-cum- District Appropriate Authority, Jharsuguda and appraised the latter regarding one unregistered ultrasound clinic run by the petitioner. The Collector-cumDistrict Appropriate Authority authorized Dr.Hrushikesh Naik, the DTO vide order No.324 dated 22.08.2012 to inspect the ultrasound clinic along with the State team. The State team proceeded to the Doctors Chamber, Jyoti Medical Store near Hotel Gourav, Main Road, Behermal, Jharsuguda at about 1.30 p.m. During such inspection, the team found 2-3 patients were present in the ultrasound clinic and waiting for the ultrasound test and the petitioner was conducting ultrasound test of one patient namely, Debanda Patel, S/o. Late Laxman Patel, At/P.O.Jhirpali, P.S.Likera, District- Jharsuguda. It is stated in the complaint petition that the ultrasound clinic was run by the petitioner without registration and he unauthorisedly purchased the portable ultrasound machine bearing model No.DP-6600, Serial No.BE-75-5898 from Greaves Systems, P-597, Hemanta Mukhopadhaya Sarani (Keyatola Road), 3rd floor, Kolkata-700 029. During course of inspection, the petitioner himself admitted that the ultrasound clinic in the name and style of "Doctors Chamber" is not registered under the PCPNDT Act and he is not a trained person as per PCPNDT Rules, 1996 and that the clinic was not maintaining the mandatory records as per the said Act and that he had purchased the said un-registered ultrasound machine since 28.05.2007. During inspection, the statement of the petitioner was recorded in presence of the inspection team, the C.D.M.O. and other witnesses. It is also stated in the complaint petition that the petitioner is a Government doctor being posted as Medical Officer, O.S.A.P. Hospital, Jharsuguda and unauthorisedly he was conducting ultrasound test of the pregnant women involving sex selection practices in the said chamber by using the unregistered portable ultrasound machine and also doing infertility cases in the said clinic. It is also stated that the petitioner was not a qualified person to perform the ultrasound test as per Rule 3(3)(1)(b) of the PCPNDT Rules, 1996. It is also stated that the manufacturer of the said ultrasound machine MINDRAY knowing the provisions of the said Act, unauthorisedly sold the ultrasound machine to the petitioner through the dealer, Greaves Systems P-597, Hemanta Mukhopadhaya Sarani (Keyatola Road), 3rd Floor, Kolkata-700 029 violating the prevision of section 3-B of the PCPNDT Act and Rule 3-A of the PCPNDT Rules. The authorized signatory, namely, Debasish Chothria for Greaves Systems is also responsible along with MINDRAY ultrasound manufacturer for violation of the provisions of the PCPNDT Act and PCPNDT Rules. During course of inspection, the following articles of the said clinic were seized:

(3.) It appears that after filing of the complaint petition on 05.11.2012, the learned S.D.J.M., Jharsuguda took cognizance of the offence under section 28(2) of the PCPNDT Act and directed for issuance of process against the petitioner. The petitioner challenged the said order by filing an application under section 482 of Cr.P.C. before this Court vide CRLMC No. 215 of 2017 and this Court by order dated 14.07.2017 quashed the impugned order as cognizance was not taken under any penal provision and section 28(2) of the PCPNDT Act only specifies the jurisdiction of the Court, who can try the offences under the said Act. This Court held that penal provision is necessary to be mentioned so that the accused can know what charge is levelled against him and what punishment is prescribed for the offence. The matter was remitted back to the learned S.D.J.M., Jharsuguda for reconsideration on the question of taking cognizance of offences. After receipt of the order of this Court, the learned S.D.J.M., Jharsuguda perused the complaint petition, the notification of the Government as District Appropriate Authority, seizure list, statements of witnesses, invoice and chalan of the ultrasound machine and other equipments in favour of the petitioner, sanction order and other connected papers and being satisfied about the existence of prima facie case for commission of the offences under sections 23 and 25 of the PCPNDT Act, took cognizance of such offences and issued process against the petitioner.