Bombay High Court Judgment on Seizure of Ultra-sound machines.

 Suhasini Umesh Karanjkar

Vs

Kolhapur Municipal Corporation

And

The District Collector, Kolhapur

Facts:

The petitioner herein was a gynecologist running a Maternity and Surgical Hospital at Kolhapur which had an ultra sound machine. The hospital had been registered as a Genetic Clinic / Ultrasound Clinic under the provisions of the Pre-conception and Pre-natal Techniques Act, 1994 and the Pre-conception and Pre-natal Rules,1996 with the competent authority and had been extended till 31st March 2013.

On 22nd January 2009, the appropriate authority went to the petitioner’s clinic and seized the records and the ultrasound machine and sealed them after issuing a panchnama. This was done in the event of a complaint that the petitioner was using the ultrasound machine for conducting a sonography on pregnant women for the purpose of sex selection. The appropriate authority subsequently suspended the registration of the hospital on 7th March 2009.

The petitioner filed an appeal challenging the authorities right to seize and seal the ultrasound machine.

Issues

  • Whether the appropriate authority has the power to seize and seal any machine under Section 30 of the Pre-conception and Pre- natal Diagonistic Techniques, 1994 if the authority has reason to believe that it may furnish evidence of commission of an offence punishable under the Act?
  • Whether the decision laid down by the Division Bench of this court of Aurangabad Bench Dadasaheb (Dr.) s/o Popatrao Tarte Vs. State of Maharashtra and others, 2010 (2) Mah. L.J. 110 taking the view that Section 30 does not confer such power in respect of an ultrasound machine lays down the correct law?

 

Discussion

The counsel for the petitioner cited the above mentioned division bench case which supports the fact that ultra sound machines are not within the power of the appropriate authority to seize and seal under the said Act.

The counsel for the petitioner also mentioned that under Section 30 of the Act ‘any other material object’ is not clearly defined and thus does not include equipment and specifically ultra sound machine, which has been further emphasized by using the rule of ‘ejusdem generis’.

The counsel for the respondent read rule 12 (2) with Section 30 to include ultra sound machine and any other object which  is used in determining the pre-natal sex of the foetus.

The counsel further cites that ultra sonography machines can be used for determination pre- natal sex of the foetus along with its other functions of determining congenital and genital malfunctions in the foetus.

The counsel for the respondent emphasizes the fact that section 30 was amended in 2003 to redress the anomaly of ultrasound machine being misused for pre-natal sex determination.

The counsel for the respondent negates the application of the rule of   ‘ejusdem generis’ in this case by stating that it cannot be applicable for limiting the interpretation to the preceding words and their genus and the court be permitted to give the words their plain and ordinary meaning.

The counsel on behalf of the respondent disagrees with the division bench judgment as it is argued that the case in question, based its judgment by citing an interim order, which cannot be used as a precedent alone.

 

Decision:

The Court held that the appropriate authority has the power to seize and seal an ultra sound machine and any other equipment used to in pre-natal sex determination of the foetus.

The court also over- ruled the division bench case of Dadasaheb vs. State of Mahrashtra & Ors.

The petition was thereby dismissed.

 

FULL TEXT OF THE JUDGMENT.