PNDT Act | Complaint Not Made By Appropriate Authority Against Diagnostic Centre Vitiates Conviction: Punjab & Haryana High Court

The Punjab & Haryana High Court has set aside the conviction order passed in 2008 under Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (PC and PNDT Act) after finding that the complaint against the diagnostic centre was not made by the appropriate authority.

According to Section 17 of PC and PNDT Act, the complaint can be made by the appropriate authority appointed by the State or UT, consisting of the following three members:—(i) an officer of or above the rank of the Joint Director of Health and Family Welfare— Chairperson; (ii) an eminent woman representing women's organisation; and (iii) an officer of Law Department of the State or the Union territory concerned.

Justice Jasjit Singh Bedi said, "The complaint was filed by Dr. S.K. Naval alone and it ought to have been filed by a three-member Committee, appointed by a Notification under Section 17 of the PC and PNDT Act. The same not having been done, the very complaint itself is not maintainable and therefore, the subsequent proceedings and conviction stands vitiated."

A complaint was made in 2006 against Kamboj Ultrasound and Diagnostic in Haryana's Hisar that it is running business of sex determination. Consequently, the centre was sealed along with the ultra sound machine. 

Spot memo and seizure memo were prepared. From a perusal of the seized records, it was found that prima-facie there was a gross contravention of the provisions of the PNDT Act and as such, registration of the accused was suspended under Section 23 of the Act. The accused were also asked not to engage in any activity under the Act till further orders.

The Trial Court convicted the Directors of the Diagnostic Centre for conducting pre-natal diagnostic in contravention of Section 4(3) read with Rule 9 punishable under Section 23 of PNDT Act among other sections and sentenced them for rigorous imprisonment of 3 years. The same was challenged before the High Court.

Counsel appearing the appellants argued that the complaint was not filed by a competent authority. The same could have only been filed by the District Appropriate Authority which was to be a three-member committee appointed by a Notification under Section 17 of the PC and PNDT Act.

However, in the instant case, the complaint had been filed by the Civil Surgeon-Dr. S.K. Naval alone claiming himself to be the District Appropriate Authority, he added.

After hearing the submissions, the Court took note of the provisions of Section 17 of the the Pre-Conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act.

Reliance was placed on Apex Court's decision in State of Haryana and anr. versus Ritu Prabhakar and anr, [CRLMP No(s).17069/2016] wherein it was held that, "As per provisions, the complaint is to be filed by the District Appropriate Authority, which consists of three members, whereas the impugned complaint has been filed by the District Nodal Officer. It is also held by the Court in Ishwar Singh Yadav's case (supra) that the District Appropriate Authority cannot delegate its powers, therefore, the procedure adopted by the District Appropriate Authority, Gurugram is totally illegal, which cannot be termed as an curable irregularity."

Justice Bedi highlighted that as per Section 17(3)(b), the District Level Appropriate Authority is also to be a three-members body and this interpretation of the law would deem to exist from 20th September, 1994 itself i.e. the date of promulgation of the Act.

In the light of the above, the Court set aside the conviction order.

Mr. S.S. Narula, Advocate for the petitioners.

Mr. Munish Sharma, DAG, Haryana.

Title: M/s Kamboj Ultrasound and Diagnostic Pvt. Ltd. & ors v. State of Haryana

Click here to read/download the order