PCPNDT Act | Search Of Clinic Illegal If Not Authorized By All Three Members Of District Authority: Supreme Court

The Supreme Court recently held that a search and seizure operation under Section 30 of the Pre Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PCPNDT Act) must be authorised by all three members of the District Appropriate Authority under the Act collectively, and any decision by a single member is illegal.“Looking at the object of sub-section (1) of Section 30 and the express language used therein, only the Chairman or any other member acting alone cannot authorise search under sub section (1) of Section 30. It must be a decision of the Appropriate Authority. If a single member of the Appropriate Authority authorises a search, it will be completely illegal being contrary to sub-section (1) of Section 30. If the law requires a particular thing to be done in a particular manner, the same shall be done in that manner only”, the Court held.A bench of Justice Abhay Oka and Justice Augustine George Masih quashed a complaint and FIR filed against a doctor accused of performing sex determination tests and participating in an illegal medical termination of pregnancy (MTP) racket.Section 30(1) of the PCPNDT Act grants the Appropriate Authority constituted under Section 17 the power to search and seize records in a clinic if it has “reason to believe” that an offence under the Act is being committed. The phrase “reason to believe” in Section 30(1) is a safeguard to against arbitrary search and seizure, and the entire Authority must form that opinion, the Court observed.“what is needed is that the complaint or other material received by the appropriate authority or its members should be immediately made available to all its members. After examining the same, the Appropriate authority must expeditiously decide whether there is a reason to believe that an offence under the 1994 Act has been or is being committed. The Appropriate Authority is not required to record reasons for concluding that it has reason to believe that an offence under the 1994 Act has been or is being committed. But, there has to be a rational basis to form that belief. However, the decision to take action under sub-section (1) of Section 30 must be of the Appropriate Authority and not of its individual members”, the Court added.The Court allowed the doctor's appeal challenging a judgment of the Punjab and Haryana High Court, which had refused to quash the FIR and complaint.The appellant, a practicing physician and radiologist, was implicated in a sting operation conducted by the police and local authorities in Gurugram on April 27, 2017. The operation was triggered by allegations that the doctor's co-accused was involved in a racket related to sex determination and illegal abortions. A decoy patient and a shadow witness informed her that the sex of the foetus was known and sought confirmation through ultrasound as well as a an MTP.The co-accused allegedly arranged for the decoy patient to undergo sex determination through ultrasound at the appellant's clinic of the appellant for Rs.15,000. On the day of the sting operation, the decoy patient was taken to the appellant's clinic for the ultrasound. After the procedure, the police seized the money and a USG report signed by the appellant.An FIR was for offence under Section 23 of the PCPNDT Act, 1994, which prohibits sex determination procedures. Subsequently, the District Appropriate Authority filed a complaint against the appellant and the other accused before the Chief Judicial Magistrate in Gurugram. The appellant sought to quash both the complaint and the FIR, but the HC declined to grant such relief, leading to the present appeal.The appellant argued that the raid violated Section 30(1) of the PCPNDT Act, as the raid was authorized solely by the Civil Surgeon without the consent of the other two members of the District Appropriate Authority. The Civil Surgeon's affidavit confirmed this.The State conceded that only the Civil Surgeon authorized the raid but argued that urgent circumstances justified the action. The State contended that this was a curable defect, rectified by subsequent actions, including the filing of the complaint by an authorized officer.In the present case, the concerned Appropriate Authority constituted under section 17 of the Act consists of the Civil Surgeon, the District Program Manager of the Women and Child Development Department, and the District Attorney.The Court found that the raid was authorized solely by the Civil Surgeon, without the involvement of the other two members of the District Appropriate Authority, which vitiated the search.“Therefore, in the facts of the case, no legal decision was made by the Appropriate Authority in terms of sub-section (1) of Section 30 to search for the appellant's clinic. As stated earlier, sub-section (1) of Section 30 provides a safeguard by laying down that only if the Appropriate Authority has reason to believe that an offence under the 1994 Act has been committed or is being committed...

PCPNDT Act | Search Of Clinic Illegal If Not Authorized By All Three Members Of District Authority: Supreme Court

Amisha Shrivastava

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