Hon'ble Ravi Nath Tilhari,J.
Heard Sri S.B. Singh, learned counsel for the petitioner, learned Standing Counsel for the Respondent Nos. 1 to 4 and perused the record.
The prayer in this petition is to quash the order dated 27.9.2019 (Annexure-5 to the petition) passed by the 4th respondent (Sub Divisional Magistrate, Budhanpur, Azamgarh) by which the genital clinic of the petitioner has been sealed.
The petitioner has challenged the impugned order inter alia on the ground that there is no notice issued under Section 20 of the Pre Conception and Pre Natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (for short 'Act No. 57 of 1994') and that Section 30 of the Act authorizes the appropriate authority only to cease and seal the records and register but not to seal the clinic without recording any reasons.
According to the petitioner the business establishment of the petitioner by the name of Unnati Sonography Centre at Budhanpur, Azamgarh was accorded certificate of registration by the Chief Medical Officer/appropriate authority, Azamgarh on 8.3.2019 which is valid till 7.3.2024. The said licence is subsisting and the same has neither been canceled nor suspended by the competent authority in law.
The grievance of the petitioner is that a team raided/inspected the centre of the petitioner on 25.9.2019 and pursuant to the inspection carried out, the premises of the petitioner from where he had been running the diagnostic centre was sealed on 27.9.2019 without any proper opportunity of hearing to the petitioner.
The submission of the learned counsel for the petitioner is that under the Act No. 57 of 1994 there is power to cancel or suspend the registration. Such cancellation or suspension of the registration can only be made after issuance of show cause notice to the person concerned and after giving a reasonable opportunity of being heard to him. It has been submitted that since no opportunity was given to the petitioner, the orders sealing the centre of the petitioner, amounts to suspension of his registration and, therefore, the same is illegal. He has further submitted that the power to search and seize as well as seal is conferred upon the appropriate authority by Section 30 of the Act No. 57 of 1994 but such power can be exercised only where the officer has reason to believe that it may furnish evidence of the commission of offence punishable under the Act.
Sub Section (2) of Section 30 of the Act No. 57 of 1994 provides that the provisions of the Code of Criminal Procedure, 1973 relating to search and seizure shall, so far as may be, apply to every search and seizure made under the Act.
It has been submitted that provisions of the Code of Criminal Procedure are not applicable in respect of sealing of the premises and, therefore, if any order to seal the premises has been passed, the same would have to be challenged in the writ jurisdiction.
Learned counsel for the petitioner has submitted that the search, seizure and sealing memo does not record any reason which may justify the action and, therefore, the sealing operation is contrary to the mandate of Section 30 of the Act No. 57 of 1994.
A counter affidavit has been filed on behalf of Respondents 1 and 3. In the counter affidavit it is stated that on 25.9.2020 and inspection was conducted by a joint team constituted by the District Magistrate, Azamgarh in which Sub Divisional Magistrate, Budhanpur, Azamarh, Additional Chief Medical Officer and Circle Officer were members. Upon inspection it was found that sonography was being unauthorizedly conducted. At the time of inspection the centre 10-12 patients were also found there. It is stated in paragraph 9 of the counter affidavit that District Magistrate is the appropriate authority under the Act No. 57 of 1994 and at the tehsil level, the Sub Divisional Magistrate is the appropriate authority as per the government order dated 30th November, 2007 amended by order dated 8.2.2013. In paragraph 10 it has been stated that photographs were taken at the time of raid of Sonography Centre and it was found that sonography was being conducted against the provisions of the Rules and, therefore, the seizure proceeding was brought into effect.
In the entire counter affidavit there is nothing to show that registration of the petitioner has been cancelled of suspended. Further there is nothing to show that there has been conviction of the petitioner for violation of the provisions of Act No. 57 of 1994. It is also not disputed in the counter affidavit that no opportunity of hearing was provided to the petitioner before sealing his shop.
The learned Standing Counsel who represents respondents has submitted that there is no specific requirement under Section 30 of the Act No. 57 of 1994 and the rules framed thereunder with regard to recording specific reasons in the seizure memo itself. The reason to believe, as is required to dispossess to enable an action under Section 30 of the Act there can be found on the record. It has been submitted that since there had been a complaint against the petitioner of consequence to the raid conducted on 25.9.2019 by making allegation that there had been violation of the provisions of the Act No. 57 of 1994, it can be assumed that there were reasons to believe that there had been violation of the provisions of the Act No. 57 of 1994, thereby justifying an action under Section 30 of the said Act.
We have considered the rival submissions and have perused the record carefully.
What we find from the record is that though an action has been taken by the respondents in exercise of their power under Section 30 of the Act No. 57 of 1994 but there is nothing on record to show that pursuant to the inspection carried out a proceeding for cancellation/suspension of the Registration was also brought against the petitioner.
No doubt, if a violation of the provisions of the Act No. 57 of 1994 is found by appropriate authority, on inspection, they can take recourse their power under Section 30 of the Act but there cannot be any permanent sealing of the premises of the Sonography Center in absence of any proceeding for cancellation or suspension of the registration. The object of sealing the premises is essentially to ensure that the evidence in respect of violation of the provisions of the Act may not disappear or remove but once a search and seizure memo is prepared, continued sealing of the premises is not justified but clearly when nothing is shown that the registration has been cancelled or suspended.
Under the circumstances, we deem it appropriate to dispose of this petition by giving liberty to the petitioner to move an application before the 2nd respondent (District Magistrate)/appropriate authority, Azamgarh for removal of the seal put on the establishment of the petitioner. If any such application is filed within three weeks from today, the District Magistrate/appropriate authority, Azamgarh shall call for report from the registering authority with regard to pendency of any registration, cancellation/suspension proceedings and the status thereof.
We find that there is no cancellation or suspension of the registration of the petitioner after taking necessary steps to collect the evidence that might requires seizure, he shall direct for reopening of the seal of the establishment of the petitioner. The reopening of the seal of the establishment of the petitioner shall not on its own authorize the petitioner to conduct sonography operations unless and until there is a subsisting registration in his favour.
It is expected that the aforesaid exercise shall be carried out by the 2nd respondent within a period of four weeks from the date of filing of such representation along with the copy of this order.
With the aforesaid observations, the petition is disposed of.
Order Date :- 18.1.2021 Manish Tripathi