{"id":16623,"date":"2009-08-14T00:00:00","date_gmt":"2009-08-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-dadasaheb-vs-the-state-of-maharashtra-on-14-august-2009"},"modified":"2017-05-18T06:48:10","modified_gmt":"2017-05-18T01:18:10","slug":"dr-dadasaheb-vs-the-state-of-maharashtra-on-14-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-dadasaheb-vs-the-state-of-maharashtra-on-14-august-2009","title":{"rendered":"Dr.Dadasaheb vs The State Of Maharashtra on 14 August, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dr.Dadasaheb vs The State Of Maharashtra on 14 August, 2009<\/div>\n
Bench: P.V. Hardas, A. V. Potdar<\/div>\n
                                         1\n\n\n\n\n                                                                          \n                IN THE HIGH COURT OF JUDICATURE OF BOMBAY\n\n\n\n\n                                                  \n                                BENCH AT AURANGABAD\n\n\n                       WRIT PETITION NO.1587 OF 2009\n\n\n\n\n                                                 \n    Dr.Dadasaheb S\/o.Popatrao Tarte,\n    Age-33 years, Occu-Medical Practitioner,\n    R\/o.Amalner, Tq.Patoda, \n\n\n\n\n                                        \n    Dist. Beed.                                               PETITIONER\n                        \n                       VERSUS\n                       \n    1.  The State of Maharashtra,\n         Through the Minister,\n         for Health and Family Welfare\n         Mantralaya, Mumbai,\n      \n\n\n    1A.The State Appropriate Authority\n   \n\n\n\n          and Additional Director of Health\n          Services, State Family Welfare\n          Department, Pune. \n\n\n\n\n\n    2. The District Counselling Authority,\n        and District Civil Surgeon\n        District Civil Hospital,\n        Beed, Dist. Beed.                                      RESPONDENTS<\/pre>\n
    Mr.V.D.Salunkhe, h\/f. Mr.B.A.Shinde, learned counsel for petitioner.
\n    Mr.K.B.Chaudhary, learned AGP for respondents.\n<\/p>\n
                             (CORAM : P.V.HARDAS AND
\n                                          A.V.POTDAR, J.J.)
\n                             RESERVED ON : 04\/08\/2009
\n                             PRONOUNCED ON : 14\/08\/2009<\/p>\n
    JUDGMENT : (Per A.V.Potdar, J.)<\/p>\n
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\n                                               2<\/span><\/p>\n
    1.     Rule.\n<\/p>\n
    2.     Rule made returnable forthwith.  By consent of the parties, the <\/p>\n
    writ petition is finally heard at the stage of admission.\n<\/p>\n
    3.     By the present writ petition under Article 14, 226 and 227 of <\/p>\n
    the   Constitution   of   India,   initially   the   petitioner   has   prayed   for <\/p>\n
    issuance of a writ of mandamus for direction to the first respondent <\/p>\n
    to   decide   the   appeal   challenging   the   order   passed   by   the   2nd <\/p>\n
    respondent dated 30th August 2008, with further prayers for issuance <\/p>\n
    of   writ   of   mandamus   directing   the   respondents   to   release   the <\/p>\n
    sonography machine in the light of directions issued by this Court in <\/p>\n
    Writ   Petition   No.7973\/2008   dated   17th  December   2008.     During <\/p>\n
    pendancy of the writ petition, the prayers were added to quash and <\/p>\n
    set aside the order dated 30\/08\/2008 passed by the 2nd  respondent <\/p>\n
    suspending   the   registration   of   Genetic   Clinic   of   the   petitioner   at <\/p>\n
    (Exh.I, paper book page no.39) and to quash and set aside the order <\/p>\n
    dated 24\/03\/2009 (Exh.L at paper book page no.52) passed by the <\/p>\n
    respondent   no.1A   dismissing   the   appeal   filed   by   the   present <\/p>\n
    petitioner.\n<\/p>\n
    4.     Before   dealing   with   the   submissions   across   the   bar,   it   is <\/p>\n
    necessary   to   consider   the   facts   which   gave   rise   to   file   the   writ <\/p>\n
    petition, which can be summarized as.\n<\/p>\n
           a)       The petitioner is registered medical practitioner, holder of <\/p>\n
    requisite   certificate   of   registration   under   the   Maharashtra   Medical <\/p>\n
    Practitioner’s Act, 1961.  He is also holding Certificate of Registration <\/p>\n
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    under   Pre-conception   and   pre-natal   Diagnostic   Techniques.\n<\/p>\n
    (Prohibition of Sex Selection) Rules  (In short the P.C.P.N.D.T. Act, <\/p>\n
    under rules thereunder) (Hereinafter referred as the Act and the <\/p>\n
    rules thereunder)  (At Exh.A) in form “B” Rule 6(2)(5) and 8(2) and <\/p>\n
    under   section   19   of   the   Act   of   1994   issued   by   the   competent <\/p>\n
    designated   authority.   This   certificate   is   in   the   name   of   Padmavati <\/p>\n
    Hospital, Amalner, Tal.Patoda, Dist. Beed.   The certificate is issued <\/p>\n
    on 30\/03\/2003 and is valid upto 02\/07\/2008.   The petitioner also <\/p>\n
    claimed that he is holding valid license to run the Genetic Centre.\n<\/p>\n
    The petitioner is using Ultra Sonography Machine of Toshbro  S.D.U <\/p>\n
    350-A in Genetic Centre which is noted in the certificate.   Initially <\/p>\n
    services of one Dr.Deshpande, who is holding requisite qualification <\/p>\n
    of M.B.B.S. D.N.R.E. were engaged as the authorized radiologist to <\/p>\n
    operate   the   equipment.   After   his   demise,   services   of   one <\/p>\n
    Dr.Bhagyashree   Hambire   were   engaged.     This   radiologist   has <\/p>\n
    executed   necessary   agreement   (Exh.B)   with   the   petitioner.     The <\/p>\n
    petitioner claimed that he has maintained requisite registers in his <\/p>\n
    Genetic Centre run by him and is following all the procedures under <\/p>\n
    the Act and Rules framed thereunder.\n<\/p>\n
           b)     It is further alleged that on 06\/12\/2007 at about 2.00 <\/p>\n
    p.m. Taluka Counselling Authority, Incharge Medical Superintendent, <\/p>\n
    Rural Hospital, Patoda, Dist. Beed alongwith his squad has visited <\/p>\n
    the   centre   run   by   the   petitioner   under   the   allegations   that   the <\/p>\n
    petitioner   is   illegally   running   the   centre   without   maintaining   the <\/p>\n
    requisite record.  The said squad seized the sonography machine and <\/p>\n
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    the   record   maintained   at   the   centre.     Accordingly   complaint   was <\/p>\n
    lodged   with   J.M.F.C.   Patoda   against   the   petitioner   and   the   two <\/p>\n
    radiologists   u\/s.3(2),   4(3),   29(1)   of   the   Act   of   1994.     The   learned <\/p>\n
    J.M.F.C. took  cognizance of the said complaint under section 23(1), <\/p>\n
    25   of   The   P.C.   P.N.D.T.   Act   (Exh.C   collectively).     Accordingly   the <\/p>\n
    complaint   was   registered   as   R.C.C.No.   165\/2007.     The   petitioner <\/p>\n
    claimed that the time of visit of the said squad he was not present in <\/p>\n
    the centre.\n<\/p>\n
           c)      The petitioner has filed an application for return of the <\/p>\n
    Ultra Sonography Machine before J.M.F.C. Patoda, which application <\/p>\n
    was   rejected   on   31\/01\/2008.     Within   meantime   the   petitioner   has <\/p>\n
    also filed a Criminal Application numbered as 219\/2008 before this <\/p>\n
    Court to challenge the legality of RCC No.165\/2007.  On 16\/06\/2008, <\/p>\n
    this Court granted “Rule” and stayed the further proceedings in the <\/p>\n
    said   RCC   No.165\/2007   during   the   pendancy   of   the   Criminal <\/p>\n
    Application.     It   is   further   contended   that   the   order   passed   by   the <\/p>\n
    J.M.F.C.   Patoda   about   the   return   of   the   property   was   challenged <\/p>\n
    before the Court of Session by filing Criminal Revision application no.\n<\/p>\n
    30\/2008,   but   the  Court   of   Revision   was  not   inclined   to  grant   any <\/p>\n
    relief   in   the   said   revision   application   on   the   ground   “further <\/p>\n
    proceedings in the criminal complaint are stayed by this Court.”\n<\/p>\n
           d)      It   is   further   contended   that   as   the   Ultra   Sonography <\/p>\n
    Machine   was  seized,   the   clinical  diagnosis   at   the   centre   are   stand <\/p>\n
    still.   It is further contended that in the identical situation, order of <\/p>\n
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    return   of   sonography   machine   was   passed   in   writ   petition   no.\n<\/p>\n
    7973\/2008   by   the   Principal   Bench   at   Bombay.   The   Centre   of   the <\/p>\n
    petitioner is situated in rural area, hence to provide better medical <\/p>\n
    services   to   the   patients,   the   petitioner   has   prayed   for   the   similar <\/p>\n
    reliefs about the return of the Ultra Sonography Machine.\n<\/p>\n
    e)     It is also contended by the petitioner that the registration of the <\/p>\n
    Genetic   Clinic   of   the   petitioner   is   cancelled   by   the   authorities   on <\/p>\n
    10\/12\/2007   (Exh.G)   which   order   is   challenged   by   way   of   appeal <\/p>\n
    before   the   Director   of   Family   Welfare   Bureau,   Pune.   The   State <\/p>\n
    Advisory   Committee have heard  the  appeal and  by   its  decision  set <\/p>\n
    aside   the   order   of   cancellation   of   registration,   but   suspended   the <\/p>\n
    registration vide order  dated 12\/08\/2008 (Exh.H)     In view  of this <\/p>\n
    order, respondent authority suspended the registration of the Genetic <\/p>\n
    Centre   of   the   petitioner   by   order   dated   30\/08\/2008   (Exh.I).     This <\/p>\n
    order   is   challenged   before   the   first   respondent   by   appeal   on <\/p>\n
    01\/10\/2008.   It  is further  alleged and contended by the petitioner <\/p>\n
    that   before   passing   the   suspension   order   of   the   registration   of <\/p>\n
    certificate of petitioner, no show cause notice was issued upon him.\n<\/p>\n
    It is also alleged that while taking action u\/s. 20(3) of the Act, the <\/p>\n
    competent   authority   to   record   the   reasoned   order   about   the <\/p>\n
    suspension of the registration certificate in the public interest as the <\/p>\n
    authority   has   not   recorded   the   reasoned   finding   about   the <\/p>\n
    suspension of the registration certificate of the petitioner.  Hence the <\/p>\n
    present  writ  petition for  the prayers as stated  in  para no.3  of this <\/p>\n
    judgment and as stated in para no.23(B), (C), (BB), (BBB)  of the writ <\/p>\n
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    petition on the grounds stated in para no.17(A) and 17(B) of the writ <\/p>\n
    petition.\n<\/p>\n
    5.     In response to the notice issued by this Court, the respondents <\/p>\n
    appeared   in  the   writ   petition   and   filed   an  affidavit   in   reply   of   one <\/p>\n
    Dr.Sudhakar Sudkoji Ambekar, the Assistant Director, State Family <\/p>\n
    Welfare, Pune to oppose the admission of the writ petition inter alia <\/p>\n
    contending that <\/p>\n
           a)      In most of the Indian family, female child is not welcomed <\/p>\n
    resulting   in   tremendous   growth   of   Genetic   Counseling   Centre   for <\/p>\n
    female   foeticide.     Such   abuse   of   technique   is   crying   against   the <\/p>\n
    female   sex   diminishing   the   dignity   and   honour   of   women.     The <\/p>\n
    P.N.D.T.   (Regulation   of   Prohibition   of   Misuse)   Act   of   1994   and <\/p>\n
    P.C.P.N.D.T.  (Prohibition  of  Sex  Selection)  Act  2003  was enacted to <\/p>\n
    control and misuse of such tests and techniques.     Accordingly the <\/p>\n
    Government   has   set   up   the   forum   and   various   authorities   for   the <\/p>\n
    purpose   to  implement   the   Act  at  various  levels   for   their   respective <\/p>\n
    jurisdiction.  In addition to this forum, Additional Director of Health <\/p>\n
    Services   (F.W.N.C.H.   And   S.H.)   Pune   has   been   declared   as   State <\/p>\n
    Appropriate Authority.  These forums and authorities are functioning <\/p>\n
    as per the provisions for the implementation of P.C. And P.N.D.T. Act <\/p>\n
    in the entire State.\n<\/p>\n
           b)      It is alleged that in the present case during the visit of <\/p>\n
    team   of   Taluka   Appropriate   Authority   to   the   Genetic   Clinic   of   the <\/p>\n
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    petitioner, they noticed (i) booklet of P.C.P.N.D.T. Act and rules as per <\/p>\n
    Rule   17(2)   was   not   found   kept,   (ii)   authorised   radiologist   was   not <\/p>\n
    found present in the sonography room, (iii) consent of some of the <\/p>\n
    patients was not obtained as required u\/s. 5 of The P.C.P.N.D.T. Act, <\/p>\n
    (iv) demise of authorized radiologist Mr.Deshpande was not informed <\/p>\n
    to   the   appropriate   authority,   (v)   appointment   of   new   radiologist <\/p>\n
    Dr.Hambire   was   not   informed   to   the   appropriate   authority,   (vi) <\/p>\n
    timetable about the visit of radiologist was not displayed in the clinic, <\/p>\n
    (vii)   monthly   report   about   the   sonography   centre   was   incomplete, <\/p>\n
    (viii) Form-F and Form-G are not update as required u\/s. 29(1) of The <\/p>\n
    P.C.P.N.D.T. Act of 2003.  According to the deponent, these acts of the <\/p>\n
    petitioner amount to be violation of the provisions of The P.C.P.N.D.T.\n<\/p>\n
    Act and rules thereunder.   Hence the sonography machine and the <\/p>\n
    record   of   the   clinic   of   the   petitioner   was   sealed   and   seized.\n<\/p>\n
    Thereafter complaint was lodged with a J.M.F.C. Patoda.  Initially, the <\/p>\n
    District Appropriate Authority and Civil Surgeon, Beed cancelled the <\/p>\n
    registration vide its letter dated 10\/12\/2007.\n<\/p>\n
           c)     It is further contended that the petitioner submitted an <\/p>\n
    appeal   u\/s.   21   of   the   Act   before   the   State   Appropriate   Authority, <\/p>\n
    Pune   which   appeal   was   received   on   25\/02\/2008,   and   was   placed <\/p>\n
    before   the   State   Advisory   Committee   meeting   held   on   24\/06\/2008 <\/p>\n
    wherein   the   order   of   cancellation   was   revised   and   the   registration <\/p>\n
    was suspended vide communication dated 12th  August 2008 to the <\/p>\n
    District Appropriate Authority and the same was communicated to <\/p>\n
    the petitioner vide letter dated 30th August 2008.\n<\/p>\n
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           d)      It   is   further   contended   by   the   respondent   that   the <\/p>\n
    petitioner   has   further   submitted   an   appeal   before   the   Minister   of <\/p>\n
    Health and Family Welfare, State of Maharashtra dated 29\/09\/2008 <\/p>\n
    which was kept before the Advisory Committee of which meeting was <\/p>\n
    held   on   23\/03\/2009.     This   appeal   was   not   considered   by   the <\/p>\n
    Committee as the case against the petitioner is subjudiced before the <\/p>\n
    competent criminal court and this decision was communicated to the <\/p>\n
    petitioner   vide   letter   dated   27\/04\/2009.     It   is   further   alleged   that <\/p>\n
    earlier on 24\/01\/2004, and on 06\/02\/2004, the District Appropriate <\/p>\n
    Authority   have   warned   the   petitioner   in   writing   for   not   properly <\/p>\n
    maintaining   the   record,   still   the   petitioner   has   ignored   these <\/p>\n
    warnings.   It is also urged that the acts of the petitioner indicates <\/p>\n
    that he has approached this Court with a malafied intention just to <\/p>\n
    delay   the   proceeding   pending   before   the   Trial   Court,   hence   the <\/p>\n
    petitioner is not eligible for any reliefs as claimed for.\n<\/p>\n
    6.     In   the   further   affidavit   in   reply,   it   is   contended   by   the <\/p>\n
    respondent that the petitioner has not intimated about the demise of <\/p>\n
    authorized   radiologist   Shri.Deshpande   and   appointment   of   Dr. <\/p>\n
    Hambire to the appropriate authority.   According to the respondent, <\/p>\n
    considering the gravity of the case and the lapses committed by the <\/p>\n
    petitioner,   he   is   not   entitled   for   any   relief.     According   to   the <\/p>\n
    respondents that the facts on which the rule was given in W.P. No.<\/p>\n
    7973\/2008, can not be compared with the case that of the petitioner, <\/p>\n
    hence   that   citation   is   not   applicable   in   the   present   case.     The <\/p>\n
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\n                                                  9<\/span><\/p>\n
    respondents   support   the   decision   taken   by   the   State   Advisory <\/p>\n
    Committee about the suspension of the organization of the petitioner <\/p>\n
    vide   order   impugned   in   a   writ   petition   dated   23rd  March   2009 <\/p>\n
    communicated   to  the   petitioner   vide   letter   dated   27\/04\/2009,   and <\/p>\n
    lastly prayed for dismissal of the writ petition with costs.\n<\/p>\n
    7.      Heard respective counsels for the parties in the background of <\/p>\n
    these pleadings.\n<\/p>\n
    8.      Chapter   (vi)   of   The   P.N.D.T.   Act   of   1994   deals   with   the <\/p>\n
    registration of Genetic Counselling Centres, Genetic Laboratories and <\/p>\n
    Genetic   Clinics.     Section   20   of   the   said   chapter   deals   with   the <\/p>\n
    cancellation or suspension of the registration while section 21 of the <\/p>\n
    Act deals with the appeals provided under the Act.\n<\/p>\n
            Section 20 : Cancellation or suspension of registration :\n<\/p>\n
         1. The   Appropriate   Authority   may  suo   motu,  or   on   complaint,
\n            issue   a   notice   to   the   Genetic   Counselling   Centre,   Genetic
\n            Laboratory or Genetic Clinic to show cause why its registration
\n            should   not   be   suspended   or   cancelled   for   the   reasons
\n            mentioned in the notice.\n<\/p>\n
         2. If, after giving a reasonable opportunity of being heard to the
\n            Genetic   Counselling   Centre,   Genetic   Laboratory   or   Genetic
\n            Clinic   and   having   regard   to   the   advice   of   the   Advisory
\n            Committee,   and   Appropriate   Authority   is   satisfied   that   there
\n            has been a breach of the provisions of this Act or the Rules, it
\n            may, without prejudice to any criminal action that it may take
\n            against   such   Centre,   Laboratory   or   Clinic,   suspend   its
\n            registration   for   such   period   as   it   may   think   fit   or   cancel   its
\n            registration, as the case may be.\n<\/p>\n
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         3. Notwithstanding   anything   contained   in   sub-sections   (1)   and <\/p>\n
            (2),   if   the   Appropriate   Authority   is,   of   the   opinion   that   it   is
\n            necessary or expedient so to do in the public interest, it may,
\n            for reasons to be recorded in writing, suspend the registration
\n            of   any   Genetic   Counselling   Centre,   Genetic   Laboratory   or <\/p>\n
            Genetic Clinic without  issuing  any such notice referred to in
\n            sub-section (1).\n<\/p>\n
            Section 21 : Appeal : The Genetic Counselling Centre, Genetic <\/p>\n
            Laboratory or Genetic Clinic may, within thirty days from the
\n            date of receipt of the order of suspension or cancellation of <\/p>\n
            registration passed by the Appropriate Authority under section
\n            20, prefer an appeal against such Order to —\n<\/p>\n
            (i) the Central Government, where the appeal is against the
\n                order of the Central Appropriate Authority; and\n<\/p>\n
            (ii) the State Government, where the appeal is against the order
\n                 of the State Appropriate Authority;\n<\/p>\n
                 in the prescribed manner.\n<\/p>\n
    On   plain   reading   of   sub   section   (1)   and   (2),   it   is   clear   that   the <\/p>\n
    Appropriate Authority is required to issue show cause notice before <\/p>\n
    suspension   or   cancellation   of   the   registration  as  the   case   may   be, <\/p>\n
    disclosing   the   reasons   mentioned   in   the   said   notice.     It   is   further <\/p>\n
    clear   that   the   reasonable   opportunity   of   hearing   be   given   to   the <\/p>\n
    concerned before taking the action of suspension or cancellation of <\/p>\n
    the   registration   as   the   case   may   be.     At   the   same   time,   the   plain <\/p>\n
    reading of sub section (3), it is clear that in case it is expedient in the <\/p>\n
    public interest, the competent authority may pass the reasoned order <\/p>\n
    of suspension or cancellation of the registration as the case may be <\/p>\n
    even without notice of such action to the concerned.\n<\/p>\n
    9.      On reading the order under challenge at Exh.I (at page no.39) <\/p>\n
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    and Exh.L (page no.55) as well as the contents of the affidavit in reply <\/p>\n
    filed by the respondent, it is further clear that before passing these <\/p>\n
    orders,   no   show   cause   notice   was   served   on   the   petitioner   or   any <\/p>\n
    opportunity   was   given   to   the   petitioner   before   the   action   of <\/p>\n
    cancellation   or   suspension   of   the   registration   of   the   clinic   of   the <\/p>\n
    petitioner   was   taken.     At   the   same   time,   order   impugned   is   not   a <\/p>\n
    reasoned order as contemplated under sub section 3 of section 20 of <\/p>\n
    the Act of 1994.  From these facts, it is apparent on the face of it that <\/p>\n
    the order impugned is not in conformity with the compliance of sub <\/p>\n
    section   1   to   sub   section   3   of   section   20   of   the   Act   of   1994.     The <\/p>\n
    second point required for consideration is abut the authority who has <\/p>\n
    passed the impugned order dated 24\/03\/1990.  The contents of the <\/p>\n
    order clearly discloses that the decision of the order under challenge <\/p>\n
    was taken in the meeting of the State Advisory Committee whereas <\/p>\n
    sub section (3) of section 20 contemplate the appellant authority is a <\/p>\n
    State Government against the order passed by the State Appropriate <\/p>\n
    Authority.  The copy of the appeal memo filed by the petitioner is at <\/p>\n
    Exh.7 (at page no.40) which is addressed to the Hon’ble Minister of <\/p>\n
    the State for Health and Family Welfare State of Maharashtra.  This <\/p>\n
    fact is also clear from the unnumbered para no.1 of the impugned <\/p>\n
    order   at   Exh.L   (page   no.55),   but   in   this   appeal,   the   decision   was <\/p>\n
    taken by the State Advisory Committee, which is not in accordance <\/p>\n
    with the provisions under sub section (ii) of section 21 of the Act of <\/p>\n
    1994.\n<\/p>\n
    10.     The prayers in terms of prayer clause “C” of the writ petition is <\/p>\n
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\n                                              12<\/span><\/p>\n
    about   the   return   of   property   seized   by   the   Appropriate   Authority <\/p>\n
    during their alleged visit dated 06\/12\/2007 to the Genetic Clinic of <\/p>\n
    the petitioner.   The attack of the learned advocate for the petitioner <\/p>\n
    about   this   statement   is   two   fold.   First   that   the   Ultra   Sonography <\/p>\n
    Machine which was seized by the visiting squad to the Genetic Clinic <\/p>\n
    of the petitioner is otherwise also used for the clinical diagnosis of <\/p>\n
    the   patients   coming   in  the  dispensary  i.e.   Padmavati  Hospital  and <\/p>\n
    hence it is necessary to release the Ultra Sonography Machine and <\/p>\n
    second   considering   the   provisions   under   the   Act   of   1994   and   the <\/p>\n
    rules made thereunder, the authority is not empowered to seize the <\/p>\n
    Ultra Sonography Machine.\n<\/p>\n
    11.    Section 30 in Chapter (viii) of the Act of 1994 deals with powers <\/p>\n
    to search and seize records, which read as follows :\n<\/p>\n
           Section 30 : Power to search and seize records etc. : (1) If
\n           the Appropriate Authority has reason to believe that an offence <\/p>\n
           under this Act has been or it being committed at any Genetic
\n           Counselling Centre, Genetic Laboratory of Genetic Clinic, such
\n           Authority or any Officer authorized thereof in this behalf may,
\n           subject to such Rules as may be prescribed, enter and search
\n           at all reasonable times with such assistance, if any, as such  <\/p>\n
           authority   or   Officer   considers   necessary,   such   Genetic
\n           Counselling Centre, Genetic Laboratory or Genetic Clinic and
\n           examine   any   record,   register,   document   book,   pamphlet,
\n           advertisement or any other material object found therein and
\n           seize   the   same   if   such   Authority   or   Officers   has   reason   to
\n           believe that it may furnish evidence of the commission of an
\n           offence punishable under this Act.\n<\/p><\/blockquote>\n
           (2)    The provisions of the Code of Criminal Procedure, 1973
\n           relating to searches and seizures shall, so far as may be apply
\n           to every search or seizure made under this Act.\n<\/p><\/blockquote>\n
                                                           ::: Downloaded on – 09\/06\/2013 14:54:19 :::<\/span>
\n                                                13<\/span><\/p>\n
    At   the   same   time,   Rule   12   of   the   Rules   of   1996   deals   with   the <\/p>\n
    procedure for search and seizure by the Appropriate Authority which <\/p>\n
    read as follows.\n<\/p>\n
           Rule   12   :   Procedure   for   search   and   seizure   :  (1)   The  <\/p>\n
           Appropriate Authority or any Officer authorized in this behalf
\n           may   enter   and   search   at   all   reasonable   times   any   Genetic
\n           Counselling Centre, Genetic Laboratory or Genetic Clinic, in
\n           the   presence   of   two   or   more   independent   and   respectable  <\/p>\n
           persons, for the purposes of section 30.\n<\/p>\n
           (2) A list  of any  document, record, register, book, pamphlet,
\n           advertisement or any other material object found in the Genetic <\/p>\n
           Counselling Centre, Genetic Laboratory or Genetic Clinic and
\n           seized shall be prepared in duplicate at the place of effecting
\n           the seizure.  Both copies of such list shall be signed on every
\n           page by the Appropriate Authority or the Officer authorised in <\/p>\n
           this behalf and by the witnesses to the seizure :\n<\/p>\n
                  Provided that the list may be prepared, in the presence of
\n           the witnesses, at a place other than the place of seizure if, for
\n           reasons to be recorded in writing, it is not practicable to make
\n           the list at the place of effecting the seizure…………….\n<\/p>\n
    12.    On clear reading of the provisions u\/s. 30 of the Act of 1994 as <\/p>\n
    well   as  the   provisions   under   Rules   of   1966   made   it   clear   that   the <\/p>\n
    Appropriate Authority is empowered to seize the documents, record, <\/p>\n
    register, book, pamphlet, advertisement or any other material object <\/p>\n
    found   in   the   Genetic   Clinic,   Genetic   Centre,   or   the   Genetic <\/p>\n
    Laboratory.  But on clear and bare reading of the provision under the <\/p>\n
    Act   as   well   as   the   rules   it   nowhere   provides   that   the   authority   is <\/p>\n
    empowered to seize the machinery\/the machine used in the Genetic <\/p>\n
    Clinic.   If it is so, the authority is not empowered to seize the Ultra <\/p>\n
    Sonography Machine under the provisions of Law.   In the premise, <\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:54:19 :::<\/span>
\n                                                14<\/span><\/p>\n
    the case of the petitioner is covered under the citation as the rule <\/p>\n
    given   by   the   Principle   Bench   of   this   Court   in   Writ   Petition   No.<\/p>\n
    7973\/2008 is applicable to the present case.  In the premise, we set <\/p>\n
    aside the order of the seizure of the Ultra Sonography Machine and <\/p>\n
    direct   to   return   the   seized   Ultra   Sonography   Machine   to   the <\/p>\n
    petitioner.\n<\/p>\n
    13.    For the discussion made in the above foregoing paragraphs, it <\/p>\n
    is  apparent   that  the  order   under  challenge  was  not  passed by  the <\/p>\n
    authority   empowered   under   the   law   or   otherwise   the   order   was <\/p>\n
    passed   without   any   authority   as   contemplated   under   section   21(ii) <\/p>\n
    and also in contravention of the provisions u\/s. 20(1) to (3) of the Act <\/p>\n
    of   1994.     If   it   is   so,   then   these   orders   impugned   under   the   writ <\/p>\n
    petition liable to be quashed and set aside.   Accordingly we quash <\/p>\n
    and   set   aside   the   impugned   orders   dated   30\/08\/2008   and <\/p>\n
    24\/03\/2009   and   remit   the   matter   back   for   hearing   afresh   in <\/p>\n
    accordance with Law within the period of 4 weeks from the date of <\/p>\n
    communication of this order before the authority where the appeal is <\/p>\n
    filed by the present petitioner.   The Appellate Authority to dispose of <\/p>\n
    the appeal within the period of 3 months thereafter in accordance <\/p>\n
    with Law after giving proper opportunity to all the concerned.   The <\/p>\n
    Appellate Authority to decide the pending appeal without influencing <\/p>\n
    the fact that the criminal case is pending before the J.M.F.C.Patoda, <\/p>\n
    Dist. Beed.\n<\/p>\n
    14.    Rule   thus   made   absolute   as   indicated   above   and   the   writ <\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:54:19 :::<\/span>
\n                                       15<\/span><\/p>\n
    petition stands disposed of accordingly with no order as to costs.\n<\/p>\n
           (A.V.POTDAR, J.)                           (P.V.HARDAS, J.)\n\n\n\n\n                                                \n                                     \n                       \n                      \n      \n   \n\n\n\n\n\n\n    khs\/JULY 2009\/wp1587-09\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:54:19 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dr.Dadasaheb vs The State Of Maharashtra on 14 August, 2009 Bench: P.V. Hardas, A. V. Potdar 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.1587 OF 2009 Dr.Dadasaheb S\/o.Popatrao Tarte, Age-33 years, Occu-Medical Practitioner, R\/o.Amalner, Tq.Patoda, Dist. Beed. PETITIONER VERSUS 1. The State of Maharashtra, Through […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-16623","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDr.Dadasaheb vs The State Of Maharashtra on 14 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-dadasaheb-vs-the-state-of-maharashtra-on-14-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.Dadasaheb vs The State Of Maharashtra on 14 August, 2009 - 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