Capital Diagnostic and Research Center and Others vs State of Rajasthan and Others

M.N. Bhandari, J.�By these writ petitions, a challenge is made to the seizure of the sonography machine.

Learned counsel for the petitioner submits that the petitioner was having registration of the sonography machine and was operating it strictly as per the provisions of The Pre-conception and Pre-natal Diagnostic Techniques(Prohibition of Sex Selection) Act, 1994 (for short, the Act of 1994'') and the Rules of 1996 framed thereunder. As per the Rules of 1996, an application for renewal has to be made. The petitioner had submitted an application for renewal, but it has not yet been decided. As per Rule 8(6) of the Rules of 1996, there is deeming provision of registration, if the application is not decided within a period of 90 days from the date of its receipt. As per the deeming clause, the petitioner was even authorized to operate the machine till the disposal of the application within a period of 90 days and as the application for renewal was not decided, there is deemed renewal of the registration. Hence, use of the sonography machine was authorized. The allegation against the petitioner is not to involve in sex determination or using the machine in violation of the provisions of the Act of 1994 and the Rules of 1996, but the only allegation is of non-renewal of the registration. In view of the above, while quashing the seizure memo, the respondents may be directed to allow the petitioner to operate the sonography machine.

Learned counsel for the respondents has opposed the prayer and submits that renewal application has to be submitted as per Rule 8 of the Rules of 1996 and there is a deeming clause, but it applies only when the application is moved as per the provisions of law. As per Rule 8 of the Rules of 1996, an application for renewal has to be submitted 30 days before expiry of the period of registration. In the instant case, the petitioner did not maintain application within the aforesaid period. The application for renewal was not maintainable subsequent to the period given under Rule 8(1) of the Rules of 1996. In the background aforesaid, the question of application of deeming clause does not arise. The petitioner was found to be operating the sonography machine without registration, thus as per Section 30 read with Rule 12 of the Rules of 1996, seizure was rightly made.

I have considered the rival submissions of the parties and perused the record.

Since the petitioner was having registration to operate the sonography machine, he was under an obligation to apply for renewal as per Rule 8 of the Rules of 1996. Since reference of the aforesaid Rule 8 has been given by both the parties, therefore, it would be gainful to refer the aforesaid Rule and is quoted thus:--

"8. Renewal of registration.--(1). An application for renewal of certificate of registration shall be made in duplicate in Form A, to the Appropriate Authority thirty days before the date of expiry of the certificate of registration. Acknowledgment of receipt of such application shall be issued by the Appropriate Authority in the manner specified in sub-rule (2) of rule 4.

(2) The Appropriate Authority shall, after holding an enquiry and after satisfying itself that the applicant has complied with all the requirements of the Act and these rules and having regard to the advice of the Advisory Committee in this behalf, renew the certificate of registration, as specified in Form B, for a further period of five years from the date of expiry of the certificate of registration earlier granted.

(3) If, after enquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of the Act and these rules, it shall, for reasons to be recorded in writing, reject the application for renewal of certificate of registration and communicate such rejection to the applicant as specified in Form C.

(4) The fees payable for renewal of certificate of registration shall be one half of the fees provided in sub-rule (1) of rule 5.

(5) On receipt of the renewed certificate of registration in duplicate or on receipt of communication of rejection of application for renewal, both copies of the earlier certificate of registration shall be surrendered immediately to the Appropriate Authority by the Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic or Imaging Centre.

(6) In the event of failure of the Appropriate Authority to renew the certificate of registration or to communicate rejection of application for renewal of registration within a period of ninety days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed."

The perusal of Rule 8(1) of the Rules of 1996 shows that an application for renewal of registration has to be made 30 days before its expiry. It is an admitted case that the application for renewal was not submitted by the petitioner 30 days before its expiry. In the background aforesaid, the further provision of the said Rule does not apply because if the application has not been moved, as mandated by Rule 8(1) of the Rules of 1996, the question of further procedure or application of Rule 8(6) of deem registration does not arise. It would have been applied, if application is moved 30 days before expiry of registration.

At this stage, the learned counsel for the petitioner gave reference of Section 29(2) of the Act of 1994, which provides application of Limitation Act, if limitation is not otherwise provided in the Act. It is to claim benefit of condonation of delay. He was asked as to whether an application for condonation of delay was moved if at all Section 29(2) applies? He fairly conceded that no such application was maintained. If that is the position, I need not to give interpretation of Section 29 as to whether it applies to the facts of this case or not? The fact thus remains that application for renewal was not made in time.

Now the question comes regarding consequences as to whether seizure of the sonography machine can be made by the respondents or not? For the aforesaid purpose, reference of Section 30 of the Act of 1994 would be relevant and is quoted thus:--

"30. Power to search and seize records, etc.--

[(1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic or any other place, such Authority or any officer authorised thereof in this behalf may, subject to such rules as may be prescribed, enter and, search at all reasonable times with such assistance, if any, as such authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an office punishable under this Act.

(2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act."

The perusal of the provision quoted above reveals as to when search and seizure can be made. Rule 12 of the Rules of 1996 also clarifies the aforesaid and gives procedure. In the background aforesaid, it cannot be said that seizure of the sonography machine was illegal because application for renewal of registration was not moved within time so as to apply deeming clause.

In view of the above, it becomes clear that without registration of the sonography machine, the petitioner was operating it in violation of the provisions of the Act of 1994 and the Rules of 1996. Accordingly, I do not find any illegality in the action of the respondents.

Consequently, the writ petitions so as the stay applications are dismissed.

The petitioner would however be at liberty to make an application for registration of the machine, afresh.