Deepak (Dr.) v. State Of Maharashtra

Colour Doppler Machine to Nandanwan and Sakkardara area. Shri Dadhe, learned counsel, submits that the said machine is duly registered on 17.02.2014 itself and as the petitioner is not practicing as Gynecologist and is not treating any ailment relating to birth of a child, there is no question of the petitioner using that machine for the purposes of sex determination or undertaking any Pre-natal Diagnostic procedure.

3. He invites attention to the fact that the petitioner has accordingly made a disclosure on an affidavit before this Court as also before Respondent No. 3, however, Respondent No. 3 by one line order, passed on 15.01.2015, rejected the application of the petitioner for permission to move and use that machine in other establishments.

4. Shri Kukday, learned counsel as also Shri Patil, learned AGP are strongly opposing the petition. They submit that the mobile machine is to be registered separately and no permission to shift such machine from one place to another place can be granted. They also submit that the judgment

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delivered at Aurangabad does not lay down any law in this respect.

5. A perusal of judgment dated 30.11.2015 in Writ Petition No. 3871 of 2012 shows that the petitioner before Aurangabad Bench happened to be an Echo-Cardiologist, operating private clinic. His wife was a Gynecologist. After noticing these facts in paragraph 4, the Division Bench has observed that law does not permit imposing prohibition on a medical practitioner practicing in a different stream merely because one of his family members can be subjected to restrictions under the provisions of Pre-Conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, (hereinafter referred to as 1994 Act). The Division Bench then notices that the petitioner - Doctor before it gave an undertaking that the Sonography machines registered with the authorities would not be used outside the hospital premises. It is also noticed that 2D Echo Colour Doppler machine is merely used for investigating cardiological disorder by the petitioner. The Division Bench has taken note of the interim order passed

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by it on 29.03.2012 whereby restriction on use of Sonography machine outside the hospital premises was maintained while the petitioner was permitted to use 2D Portable Colour Doppler outside the premises. It has also noted that the respondent before it had filed an affidavit stating that 2D Echo Cardiography machine can be used for sex determination if the Medical Practitioner changes the probe and attaches Convex Sector to it. However, after perusal of the opinion given in writing by the Professor and Head of Department, Radiology, Government Medical College, Aurangabad, the Division Bench found that said assertion was not correct. The Head of Department had communicated that unless type of probe was disclosed, no definite opinion could have been given.

6. It is in this background that in paragraph 6, the Division Bench proceeded to observe that merely because the machine being used for different investigation purpose and can be used for sex determination, the Medical Practitioner practicing in totally different stream cannot be subjected to unnecessary restrictions and such a course is beyond the scope

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of the 1994 Act. It has taken note of an affidavit filed by the petitioner and an undertaking furnished by him that he would not use Convex Sector probe since the said probe is used by Sonologist/ Gynecologist for scanning the abdomen and not by Echo Cardiologist for diagnostic purposes. The Division Bench also took note of installation of silent observer on 2D Echo Colour Doppler machine and found it a sufficient safeguard against its abuse. It also found that the petitioner - Echo Cardiologist, never earlier used that machine contrary to law, hence, the restrictions imposed upon him were held to be beyond the scope of 1994 Act. This finding is without commenting upon the sections contained in the Act and impact thereof.

7. Shri Dadhe, learned counsel, has submitted that the present petitioner has also furnished similar affidavit and is ready and willing to submit it once again with necessary undertaking. However, we find that this judgment does not lay down any law on the point. It takes note of the facts presented to it and then proceeds further to answer the controversy. It

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needs to be restricted only to said matter.

8. A perusal of Section 3A of the 1994 Act shows that it prohibits sex-selection. As per Section 3A, no person, including a specialist can conduct sex selection on a woman. Thus, the obligation or prohibition is not only against a Medical Practitioner but on everybody. Similarly, Section 3B, which deals with prohibition on sale of ultrasound machine etc., again stipulates that no person can sell such machines capable of detecting sex of foetus to any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or "any other person", not registered under the 1994 Act. Section 4 then prohibits use of an unregistered places for undertaking pre-natal diagnostic techniques. Section 18 prohibits a person from opening any Genetic Counselling Centres etc. or a centre having ultrasound or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus and sex selection, or render services to any of them, after coming into force of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 (hereinafter referred to as

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Amendment Act) unless it is registered under 1994 Act. The emphasis, therefore, is again not only on Medical Practitioner and on Genetic Counselling Centre, Genetic Laboratory or Genetic Clinics. The Parliament has mandated that such machines capable of being used for sex determination cannot be made available to or used by anybody at places not registered under the 1994 Act. Section 22 which prohibits advertisement relating to pre-conception and pre-natal determination of sex also employes the word "no person".

Section 23 dealing with offences and penalties on medical geneticist, gynecologist, registered medical practitioner also disqualifies "any person".

9. The provisions of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as 1996 Rules), need to be perused in this background.

10. Rule 3A is about sale of ultrasound machines/ imaging machines. This rule again uses the word "a person".

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Rule 3B is on regulation of portable machines. It stipulates that use of portable ultrasound machine or any other portable machine or device which has the potential for selection of sex before conception or detection of sex during pregnancy is permitted only in two conditions stipulated therein, viz., (a) the portable machine being used, within the premises it is registered, for providing services to the indoor patients; (b) as part of a mobile medical unit, offering a bouquet of other health and medical services. Explanation thereto clarifies that other health and medical services means the host of services provided by the mobile medical unit and the same are thereafter described under various heads like Curative, Reproductive and Child Health Services, Family Planning services and Emergency services.

11. Thus, we find that the Parliament by the 1994 enactment has permitted use of machines which are capable of being used or have potential to be used for sex determination, only in the registered establishments and in the conditions stipulated therein. These provisions apply to everybody as also

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all Medical Practitioners if they are using such machines in their establishments. Considering the pious object of the 1994 Act, no loophole in its Scheme can be worked out as the language is unambiguous and does not result in any absurdity.

12. However, in the facts before us, the petitioner already has got necessary registration as per Schedule III. That certificate of registration is valid for an Ultrasound Sonosite machine of Micromax module. It is issued on 17.02.2014 and is valid up to 16.02.2019. The name of place where machine can be used is Sane Heart Care Clinic, Nagpur.

13. Considering the above legal position, it is apparent that on the strength of such registration, the petitioner cannot carry that machine to any other place which is not registered. If he has to carry the machine to any other place, that place must also be similarly registered first. The application submitted by the petitioner does not show that I.C.C.U. at Nandanwan or then Critical Care Centre at Sakkardara, are accordingly registered under the 1994 Act. Similarly, the petitioner does

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not appear to be having a Mobile unit in which the said machine is installed.

14. In this situation, we find that the judgment delivered at Aurangabad Bench on 30.11.2015 does not help the petitioner at all.

15. Hence, we grant the petitioner leave to move necessary application as per law before the Competent Authority under the provisions of the 1994 Act or 1996 Rules stipulated supra. If such an application is moved by the petitioner within a period of four weeks from today, the same shall be scrutinized by the Competent Authority as per law within next eight weeks.

16. With this liberty, we dispose of the present writ petition. Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.

17. Respondent No. 1 is directed to supply copy of this

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judgment to all Nodal Officers in the State of Maharashtra.

JUDGE JUDGE

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*GS.

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C E R T I F I C A T E

"I certify that this Judgment uploaded is a true and correct copy of original signed Judgment."

Uploaded by : G. Shamdasani Uploaded on : 18.07.2016.

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