Factual aspects
Allegation against the appellant is that she is involved in medical termination of pregnancy
1. The appellant claims that he has been practising as a general Physician since 2001 and as a Radiologist since 2007. On 27th April 2017, a team comprising four officers raided the appellant’s clinic. Based on the complaint against one woman, Dhanpati (accused no.1), that she is running a racket of sex determination and medical termination of pregnancy, a decoy patient was selected. The allegation is that Dhanpati was contracted to do the medical termination of the pregnancy of the decoy patient. The decoy patient and shadow witness, S.I. Usha Rani, informed Dhanpati that they knew the sex of the foetus. Dhanpati called the decoy patient on 27th April 2017 at 8 am for MTP. The shadow witness informed Dhanpati that family members of the decoy patient were suggesting reconfirming the sex of the foetus through ultrasound. Dhanpati called the shadow witness on 27th April 2017 at 7 am and stated that the Doctor who would perform the ultrasound would charge Rs.20,000/- but ultimately, she fixed the deal at Rs.15,000/-.
Decoy operation was done
2. Accordingly, the decoy patient was given a sum of Rs.15,000/-. The members of the search party, along with the police staff as well as the shadow witness and decoy patient, went to the Gurugram bus stand where Dhanpati asked for Rs.15,000/- which amount was handed over to her. After that, a nurse, Anju (accused no.2), was called by Dhanpati, and a part of the amount of Rs.15,000/- was given to her. Thereafter, the decoy patient and others entered the appellant’s clinic, known as the Divine Diagnostic Centre at Gurugram. The decoy patient was taken inside. When the decoy patient and Anju came out of the diagnostic centre, the police caught them. The search team entered the diagnostic centre. The cash amount was seized, and the team recovered even the USG report for the decoy patient. It was alleged that the appellant had signed the said report.
FIR was registered and complaint was filed before the CJM
3. A first information report was registered on 27th April 2017 in the Police Station, Gurugram, alleging the commission of an offence punishable under Section 23 of the Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, ‘the Act of 1994’). It was followed by a complaint filed by the District Appropriate Authority under Section 28(1) of the Act of 1994 before the learned Chief Judicial Magistrate, Gurugram, alleging the commission of punishable offences against the appellant, the said Dhanpati and Anju. The allegation against the appellant and the co-accused was of indulging in the illegal activity of sex determination of a foetus by using ultrasound.
Quash petition was dismissed by the Hon’ble High Court
4. The appellant filed a petition for quashing the complaint and the FIR before the High Court. By the impugned judgment, the High Court declined to quash both the complaint and FIR.
Consideration of submissions
Laws in relation with the fact in issue
7. To appreciate the submissions, we must refer to relevant provisions of the 1994 Act. Section 23 of the 1994 Act, which is a penal provision, reads thus:
“23. Offences and penalties”
Procedure for cognizance
8. The procedure for cognizance is incorporated in Section 28, which reads thus:
“28. Cognizance of offences”
Power to search and seize records
9. Section 30(1) deals with the power to search and seize records, which reads thus:
“30. Power to search and seize records, etc”
Condition precedent for search of a clinic
10. The condition precedent for the search of a clinic is that the Appropriate Authority must have reason to believe that an offence under the 1994 Act has been or is being committed. The Appropriate Authority, as defined under Section 2 (a), is the Appropriate Authority appointed under Section 17. Sub sections (1) to (3) of Section 17 read thus: –
“17. Appropriate Authority and Advisory Committee”
Safeguard under Section 30
11. Now, coming back to Section 30, it is a very drastic provision which grants power to the Appropriate Authority or any officer authorized by it to enter a Genetic Laboratory, a Genetic Clinic, or any other place to examine the record found therein, to seize the same and even seal the same. The first part of sub-section (1) of Section 30 safeguards these centres or laboratories from arbitrary search and seizure action. The safeguard is that search and seizure can be authorized only if the Appropriate Authority has a reason to believe that an offence under the 1994 Act has been committed or is being committed.
Reason to believe
12. The question is what meaning can be assigned to the expression “has reason to believe”. Section 26 of the Indian Penal Code defines the expression “reason to believe”, which reads thus:
“26. “Reason to believe”.— A person is said to have “reason to believe” a thing, if he has sufficient cause to believe that thing but not otherwise.”
In the case of Aslam Mohammad Merchant v. Competent Authority & Ors. 1 , this Court had an occasion to interpret the same expression. In paragraph 41, this Court held thus:
“41. It is now a trite law that whenever a statute provides for “reason to believe”, either the reasons should appear on the face of the notice or they must be available on the materials which had been placed before him.”
However, interpretation of the expression will depend on the context in which it is used in a particular legislation. In some statutes like the present one, there is a power to initiate action under the statute if the authority has reason to believe that certain facts exist. The test is whether a reasonable man, under the circumstances placed before him, would be propelled to take action under the statute. Considering the object of the 1994 Act, the expression “reason to believe” cannot be construed in a manner which would create a procedural roadblock. The reason is that once there is any material placed before the Appropriate Authority based on which action of search is required to be undertaken, if the action is delayed, the very object of passing orders of search would be frustrated. Therefore, 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.
No legal decision was made by the appropriate authority in terms sub-section (1) of Section 30
14. 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 that a search can be authorized. In this case, there is no decision of the Appropriate Authority, and the decision to carry out the search is an individual decision of the Civil Surgeon, who was the Chairman of the concerned Appropriate Authority. Therefore, the action of search is itself vitiated.
Search was illegal
16. A perusal of the impugned FIR and impugned complaint shows that its foundation is the material seized during the raid on 27th April 2017. Except for what was found in the search and the seized documents, there is nothing to connect the accused with the offence punishable under Section 23 of the 1994 Act. As the search itself is entirely illegal, continuing prosecution based on such an illegal search will amount to abuse of the process of law. The High Court ought to have noticed the illegality we have pointed out.
Appeal allowed accused acquitted
17. Therefore, the appeal is allowed, and the impugned judgment dated 13th January 2023 is set aside. FIR No.408, dated 27th April 2017, registered in the Police Station, Gurugram at Gurugram, is hereby quashed. The complaint bearing no. COMA No.40 of 2018, pending before the court of learned Chief Judicial Magistrate, Gurugram, also stands quashed.
Party
Ravinder Kumar … Appellant versus State of Haryana … Respondent – Criminal Appeal No. 3747 of 2024 – 2024 INSC 684 – September 12, 2024.
