( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 580 OF 2009 Dr. Prabhodh s/o Uddhav Joshi, R/o Dr. Joshi Hospital, Shirdi, Tq. Rahata, Dist. Ahmednagar. PETITIONER VERSUS 1. Medical Superintendent, Rural Hospital, Rahata @ Appropriate Authority, Tq. Rahata, Dist. Ahmednagar. 2. The State of Maharashtra RESPONDENTS ..... Mr. Amol S. Gandhi, advocate for the petitioner. Mrs. R.D. Reddy, APP for the respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th July, 2009] PER COURT : 1. By this petition, the petitioner impugns order dated 21-02-2008 rendered by learned Judicial Magistrate (F.C.), Rahata, in criminal misc. application No. 151/2007 whereby he declined to allow removal of seal ( 2 ) and user of a Sonography Machine as was sought by the petitioner. 2. The Sonography Machine was attached by the concerned authority in exercise of powers under section 29 of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misus) Act, 1994 (for short, “the said Act”) read with Rule 9 (4) of the Preconception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short, “the said Rules”). It appears that notice was given to the petitioner regarding deficiencies found by the Medical Superintendent/competent authority. It was found during course of inspection dated 16th July, 2007 that the register required to be maintained was not properly filled up and some of the columns were not completely filled, including the column of findings as a result of sonography. It was also noticed that in March, 2007, seven (7) cases were registered though seventeen (17) patients were registered in the register of patients. It was noticed that on 13th July, 2007, sonography was conducted without consent form of the patient. In one ( 3 ) case, the consent form indicated that the sonography was conducted by the petitioner, but actually, it was so done by Dr. Bawle. 3. The Sonography Machine was attached and sealed. It is the contention of the petitioner that the machine is required to be used by him for diagnostic purposes in day-today work as a medical practitioner. His submission before the learned Magistrate was that he may be allowed to remove the seal and use the Sonography Machine. He was ready to give an undertaking that the Sonography Machine will not be misused for pre-natal diagnosis of sex of any child in woomb. The learned Judicial Magistrate rejected his application on the ground that there is no provision in the law to release the machine during pendency of the proceedings and particularly when registration of the petitioner has been suspended. 4. Rule 11 (2) of the said Rules would make it amply clear that the Sonography Machine can be released on accepting penalty equal to five (5) times of the ( 4 ) registration fees and on basis of an undertaking of the medical practitioner that it shall not be used for determination of sex of foetus or selection of sex before or after conception. As stated earlier, the petitioner was ready and willing to give the required undertaking. A plain reading of the above referred Rule 11 (2) reveals that the same is attracted where the Sonography Machine is found to be in use without registration. The petitioner is a registered medical practitioner and has obtained due license to use the Sonography Machine. Consequently, only due to some technical lapses noticed during course of inspection, the petitioner cannot be deprived of regular use of the Sonography Machine, which is an equipment to be used in day-today business of the medical practioner. Under the circumstances, the impugned order is quite arbitrary and unsustainable. 5. In the result, the writ petition is allowed. The impugned order is quashed. The learned Judicial Magistrate shall allow the application by passing specific order to permit use of the Sonography Machine ( 5 ) by the petitioner after removal of the seal thereof on giving intimation to the Medical Superintendent, Rural Hospital, Rahata to remain present at the time of removal of the seal of the Sonography Machine, and on giving an undertaking by the petitioner that the Sonography Machine will not be used for pre- determination of sex of foetus or child in woomb in any manner. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIWP580-09