1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 490 OF 2009 Dr. Dattatraya S/o Keshav Kanade } Age : 33 Years, Occ. : Medical Officer, } R/o : Kanade Hospital, Near Bus Stand, } ..... PETITIONER/ Taluka : Rahata, Dist. : Ahmadnagar. } (ORI.APPLICANT) V E R S U S 1. Medical Superintendent } Rural Hospital, Rahata Alias } Appropriate Authority, } Tq. Rahata, Dist. Ahmadnagar. } 2. The State of Maharashtra. } .... RESPONDENTS Shri. P.V. Mandlik , Advocate holding for Shri. Amol Gandhi, Advocate for Petitioner. Mrs. S.S. Autade, A.P.P. for State. [ CORAM : R.M.BORDE, J. ] DATE : 18/06/2009 ------------------------------------------------- 2 ORAL JUDGMENT : 1. Heard Shri. P.V. Mandlik, counsel holding for Shri. Amol Gandhi, counsel appearing for Petitioner and Mrs. S.S. Autade, A.P.P. for State. Rule, made returnable forthwith and heard finally by consent of parties. 2. The application tendered by the petitioner to the Judicial Magistrate (First Class), Rahata for release of Ultrasound Sonography machine, which has been attached by the competent authority in exercise of powers under Section 29 read with Rule 9 (4) of Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misus) Act, 1994 ( for short ‘ the Act ’ ), came to be rejected. 3. Being aggrieved by the order of rejection passed by the Judicial Magistrate (First Class), Rahata on 17/4/2008, the petitioner has approached this Court. A complaint came to be lodged against the petitioner, who is practicing medical professional at Rahata alleging violation of certain provisions of the Act. The violation alleged is in respect of maintenance of certain record prescribed as mandatory under the Act. The competent authority, in exercise of powers conferred upon 3 him, has lodged complaint to the Magistrate against the accused/petitioner, has attached Ultrasound Sonography machine and the same has been deposited with the accused after putting seal thereon. The offence has been registered in pursuance to the complaint lodged by the competent authority in the year 2007. Since the date of attachment, the machine is stated to be lying idle and is not put to use by the petitioner. The petitioner as such approached the Magistrate requesting for direction to remove the seal and the petitioner has also expressed his willingness to give an undertaking to the effect that he would not put the Ultrasound Sonography machine to use unless he secures appropriate permission from the competent authority . 4. The Magistrate,however, after hearing the concerned parties, rejected the application by his order dated 21/2/2008. It is the contention of the petitioner that since 2007, the medical equipment is under attachment and the petitioner, who is medical professional, needs the machine for diagnostic purpose. The petitioner has also contended that he is prepared to give undertaking to the effect that he would not put the medical equipment in use unless he secure appropriate authorization from the competent authority. 5. The application has been opposed by the State on the ground 4 that there is an alternate remedy under the provisions of Rule 11 (2) of the Preconception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 ( for short ‘ The Rules ’ ). Rule 11 (2) of the Rules reads thus : “ The appropriate Authority or the Officer authorized by it may seal and seize any ultrasound machine, scanner or any other equipment, capable of detecting sex of foetus, used by any organisation if the organisation has not got itself registered under the Act. These machines of the organizations may be released if such organisation pays penalty equal to five times of the registration fee to the Appropriate Authority concerned and gives as undertaking that it shall not undertake detection of sex of foetus or selection of sex before or after conception.” 6. On bare reading of the said Rule, it is clear that it has application in cases where the organization has not got itself registered under the Act. In the instant matter, it is not disputed that the 5 organization is registered under the provisions of the Act. The provisions of Code of Criminal Procedure are applicable to the proceedings initiated under the Act. Thus, the Criminal Court dealing with complaint, has powers to pass orders in respect of release of property put to attachment. It is to be noted that the petitioner is a medical professional. The offence alleged against the petitioner is merely of technical nature. What has been alleged is failure to maintain register as required under the provisions of the Act. There is no allegation in respect of user of machine for the purpose of sex determination by the medical professional. The petitioner has also tendered undertaking that he would not put the diagnostic machine for use till the order passed against him under Section 29 of the Act is stayed/set aside by the competent authority or till he gets permission from the Court. The undertaking tendered by the petitioner is accepted. The petitioner is also directed to tender similar undertaking to the competent authority i.e. Medical Superintendent Class I, Rural Hospital, Rahata within 15 days from the date of passing this order. On tendering such undertaking, the respondents are directed to remove the seal and hand over the custody of diagnostic machine to the petitioner. The petitioner shall abide by his undertaking tendered to this Court. 6 7. With aforesaid directions, Rule is made absolute. [ R.M.BORDE ] JUDGE knp/CRIWP490.09