Leaving Loopholes In Law Would Form Protective Veneer To Violators: Karnataka HC Says State Authorities Must Follow Guidelines Under PCPNDT Act

The Bench of Justice M Nagaprasanna has held, “That guidelines issued by Government of India are said to have been adopted by the State. It appears to remain only in paper. None of the procedures which are stipulated in the guidelines in furtherance of the Act are followed in the case at hand. No doubt, a show cause notice is issued to the petitioners on 08-12- 2023. By then, the seizure had already happened and suspension had already taken place. But, the notice is issued as to why the registration should not be suspended. Therefore, it is for the State to henceforth adhere to the guidelines quoted supra and meaningfully bring about the violations of the Act. Leaving loopholes in law would only form a protective veneer to the violators of the law, if any. The loopholes should not blur the intent behind the enactment and the rigor of provisions of the Act. Therefore, the afore-quoted guidelines shall be strictly adhered to, by the Authorities, while conducting inspection and registration of criminal cases.”

Advocate Praveen S for the Petitioners while Additional SPP BN Jagadeesh appeared for the Respondents.

A criminal petition was filed seeking to quash the criminal proceedings against the Petitioners-Doctors for the alleged offences under Sections 23, 23(1)(2), 20(1)(2)(3) of the Act, 1994.

The 1st Petitioner was the proprietor of the Diagnostic Centre in the name and style of ‘Medizone Medical Centre’ (the Centre’). The 2nd petitioner was a certified registered operator of the ultrasound machine at the Diagnostic Centre. The ultrasound diagnostic procedures were conducted at the centre between 10.30 a.m. and 11.30 a.m. and between 6.00 p.m. and 7.00 p.m. on the prescription of doctors who direct a test to be conducted upon the patients.

The Respondent-Appropriate Authority under the Act, on receipt of certain information, conduct an inspection at 4.00 p.m. on December 8, 2023, at the Centre. At that time, it was found that the ultrasound room, which was situated opposite the reception counter, was open and in active mode. It was alleged that the lab technician admitted that scanning was done in the Centre. The medical centre was closed, and the scanning machine was locked.

The result of the conduct of inspection and seizure of materials was the filing of a complaint before the jurisdictional Magistrate invoking Section 200 of the Code of Criminal Procedure, 1973, read with Section 28 of the Act, by registering a crime for offences.

The Court discussed the intent of the Act and said that the Act is notified for the purpose of prohibition of sex selection before or after conception and for regulation of pre-natal diagnostic techniques to abolish this crude of female foeticide. It added that therefore, two factors would emerge from the present proceedings – the first being, that the diagnostic centre must be involved in activities which would contravene the provisions of the Act, the foundation of which is the determination of sex and the other being, prior to cancellation or suspension of registration, a reasonable opportunity should be granted to the person whose registration is sought to be suspended or cancelled.

The Court referred to the guidelines issued by the Government of India, Ministry of Health and Family Welfare publishing the standard operating guidelines of District Appropriate Authorities and observed, “The guidelines would direct all the appropriate authorities including the State and District notified under the Act inter alia to observe the conduct that is indicated under the guidelines for inspection and monitoring. They should conduct regular inspection of all the registered facilities once in every 90 days and preserve the inspection report as documentary evidence and copy of the same should be handed over to the owner of the facility inspected and obtain an acknowledgment in respect of the inspection. This is indicative of the fact that the functioning of both the authorities and the diagnostic centres would be accountable for any violation of the Act.”

The Court highlighted three guidelines specifically i.e. Guideline No.5 which deals with inspection of facilities and has various checks and balances; Guideline No.6 deals with search and seizure operations. The Appropriate Authorities do hold a right to enter and search any laboratory which is suspected to have contravened the Act, examine all the registers, seize and seal if the Appropriate Authority believes that these are likely to furnish evidence related to the offence; and Guideline No. 9 deals with filing of the criminal complaint.

Accordingly, the Court allowed the Criminal Petition.

Cause Title: Dr. Smt. Subhalakshmi N And Anr v. State by District Appropriate Authority and Anr

Appearances:

Petitioners: Advocate Praveen S

Respondents: Additional SPP BN Jagadeesh

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