Read Order: Jitender v. State of Haryana 

Monika Rahar

Chandigarh, March 8, 2022: While dealing with a case wherein the accused conducted a sex determination test in a car using a probe machine already available in the car, the Punjab and Haryana High court has held that from the definition of the term ‘Genetic Clinic’ as given under Section 2(d) of the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (P.N.D.T. Act) it is clear that it will include even a vehicle, where ultrasound machine or imaging machine or scanner is used. 

The Court also held that the car in question comes within the ambit of “genetic clinic” as it was being used for keeping sex determination equipment capable of determining the sex of the foetus at the time of the raid and as such, it was required to be sealed and seized being a “material object” and was subjected to confiscation. 

The Bench of Justice Sant Prakash also added regarding the object of the Act, “In view of the possibility of use of pre-natal diagnostic techniques for determination of sex and then for termination of pregnancy of unborn child, the provisions of P.C. and P.N.D.T. Act are made, which should be observed and followed in letter and spirit while dealing with the matters like the one in hand.”

In this case, on receiving information of sex determination tests being conducted by the accused, the District Appropriate Authority constituted a raiding party which, along with currency notes and shadow witness, was sent to a village where the accused-petitioner along with co-accused was found sitting in a car and after receiving money from the said raiding party, a test was conducted using a probe machine already lying in the car. 

At this, the petitioner and co-accused were arrested along with material objects and the vehicle in question was taken into police custody. An FIR was registered under Sections 34, 120-B of IPC, Sections 4, 3, 5. 6, 18 and 29 of the P.N.D.T. Act. The petitioner (registered owner of the offending vehicle) moved an application for the release of the same, but the Trial Court denied it. Aggrieved, the petitioner preferred a revision, which was also dismissed. Hence, the present quashing plea was made seeking setting aside of these two orders. 

The petitioner’s counsel contended the vehicle in question can not be termed as Genetic Clinic (defined in Section 2(d) of P.N.D.T. Act) as, during the course of police remand, the accused admitted that they were not determining the sex of the foetus but were cheating people to earn money from them. It was further contended that using the power vested by virtue of Section 3 of P.N.D.T. Act, although the authorities can regulate the Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics, the provision of search and seizure of records etc. (under Section 30 of P.N.D.T. Act) nowhere authorizes the appropriate authority to confiscate the vehicle. 

The Counsel added that it only authorized the appropriate authority to 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 offence punishable under the aforesaid Act. Further, it was argued that there was no provision under the P.C. and P.N.D.T. Act to confiscate the vehicle in question. The Counsel also submitted that the petitioner was ready to furnish an undertaking before the Court with regard to not selling or changing the ownership of the said vehicle until the decision of the main case. 

Controverting the petitioner’s counsel and placing reliance on Section 2(d) of P.C. and P.N.D.T. Act and further on Rule 11(2) and 12 of P.C. and P.N.D.T. Rules, 1996, the State counsel submitted that every machine, material object or equipment seized under P.N.D.T. Act for violation of the said Act, is liable for confiscation straightaway. The counsel added that the offending vehicle also comes within the ambit of the genetic clinic, which is required to be sealed and seized being a material object and is subject to confiscation. The release of the same will defeat the very purpose of the P.N.D.T. Act when it is also alleged that the petitioner was apprehended a second time committing the same offence of illegal sex determination, added the counsel. 

Regarding the question of whether the offending vehicle was a Genetic Clinic, the Court concluded that ‘Genetic Clinic’ (Section 2 (d)) will include even a vehicle where an ultrasound machine or imaging machine or scanner is used. In the present case, the Court opined that the vehicle in question was rightly termed as ‘Genetic Clinic’ as the same was being used for keeping the sex determination equipment and at the time of the raid, the petitioner was found doing the illegal act of sex determination in the said vehicle only. 

Further, for determining the issue of search, seizure and confiscation of the vehicle, reliance was placed on Section 30 and Rules 11(1)(2) & 12 of the P.C. and P.N.D.T. Rules, 1996. The Court opined in this respect that an ultrasonography test on a pregnant woman is considered to be an important part of a pre-natal diagnostic test or procedure. Further, after making reference to the relevant rules, the Court opined that the expression “any other material object” in Section 30 includes ultrasound machines, other machines and equipment capable of detecting sex of the foetus or capable of use for sex selection. 

The case in hand, the Court observed that illegal determination of sex of a foetus with illegal and unauthorized equipment for money consideration was carried out by the petitioner. Thus, the Court asserted,

“… car in question comes within the ambit of “genetic clinic” as it was being used for keeping sex determination equipment capable of determination of sex of foetus at the time of raid and as such, it was required to be sealed and seized being a “material object” and was subjected to confiscation. As per the aforesaid rules, confiscation of the vehicle in question by the Appropriate Authority is very much justified as admittedly, it had not been registered  under the P.C. and P.N.D.T. Act and was used for sex determination illegally.”

On the confiscation of the vehicle, the Court remarked that every machine, material object or equipment seized under the Act for violation of the Act, is liable for confiscation straightaway. The vehicle in question was used against the said provisions of the Act and Rules leading to the abuse of process of law and therefore, its confiscation and consequent non-release is very much justified, added the Court. 

Additionally, noting the fact that the petitioner was apprehended for the second time committing the same offence of illegal sex determination, the Court decided against releasing the offending vehicle.

Thus, the impugned were upheld and the instant petition was dismissed.

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