Shokeen vs State Of Haryana And Another

CRM-M-51975-2023 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

203 CRM-M-51975-2023
Date of decision : 31.10.2026

SHOKEEN
... PETITIONER
Versus

STATE OF HARYANA AND ANOTHER
.. RESPONDENTS

CORAM : HON'BLE MR. JUSTICE H.S.GREWAL

Present:- Mr. Kunal Dawar, Senior Advocate with
Mr. Jagjot Singh, Advocate and
Mr. Shashikant Singh, Advocate for the petitioner.

Mr. Vijay Kumar, AAG, Haryana.

*

H.S. Grewal, J.(Oral)
1. The present petition has been filed under Section 482 Cr.P.C.,
seeking quashing of FIR No.19 dated 26.01.2021, registered under Sections
120-B, 336 and 420 IPC, Sections 3, 4 and 5 of the Medical Termination of
Pregnancy Act, 1971 (hereinafter referred to as ‘the MTP Act’), Section
18(a)(i) of the Drugs and Cosmetics Act, 1940 and Section 15(2) of the Indian
Medical Council Act, 1956, at Police Station Hathin, District Palwal, along
with all consequential proceedings arising therefrom, including the final
report/challan dated 15.09.2021, whereby the petitioner has been charge-
sheeted for offences under Section 336 IPC, Section 5 of the MTP Act and
Sections 28 and 18-D of the Drugs and Cosmetics Act, 1940.
2. The case of the prosecution is that the Civil Surgeon, Palwal,
received secret information that the petitioner, who was running Shokeen
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Medical Store near the Civil Hospital, Hathin, was illegally selling medicines
used for termination of pregnancy to pregnant women in lieu of huge amount.
Acting upon the said information, a raiding team comprising Dr. Santosh,
Female Specialist, Dr. Neeraj Solanki, Nodal Officer, PNDT, and Krishan
Kumar, Drug Control Officer, Palwal, was constituted. The raiding team
arranged a decoy customer, namely, Smt. Kumari Vivek, who was
accompanied by one Pankaj. She was provided with currency notes of Rs.500/-
denomination and was directed to approach the petitioner's medical store and
purchase medicines for termination of pregnancy. Upon reaching the store, the
decoy customer informed the petitioner that she was pregnant and did not wish
to continue with the pregnancy. The petitioner allegedly handed over an
abortion kit, namely, Mife Gest, containing Mifepristone tablets and
Misoprostol tablets, to her for a consideration of Rs.500/-. It is further alleged
that the petitioner explained the manner in which the medicines were to be
consumed and informed her that taking the medicines in the prescribed manner
would result in termination of pregnancy. After the decoy customer handed
over the amount of Rs.500/- to the petitioner, she gave a predetermined signal
to the raiding team. Thereafter, the team immediately reached the medical
store, disclosed their identity and recovered the abortion kit and the currency
note of Rs.500/- from the spot. The serial number of the recovered currency
note was allegedly found to match the number of the note which had earlier
been handed over to the decoy customer. The recovered medicines and
currency note were taken into possession by the raiding team through the
relevant seizure proceedings. Subsequent thereto, a complaint was submitted
by Dr. Neeraj Solanki, Nodal Officer, PNDT, pursuant to which the present
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FIR came to be registered against the petitioner and other accused. During the
course of investigation, the petitioner's father, Zakir Hussain, and his brother,
Wasim Akram were found innocent during the inquiry.
3. Learned Senior counsel for the petitioner submits that as per the
allegations levelled in the FIR and the material collected during investigation,
no offence is made out against the petitioner under the provisions invoked
against him. He submits that the petitioner is being prosecuted merely on the
allegation that he sold an abortion kit to a decoy customer for Rs.500/-,
whereas there is no allegation that the petitioner himself actually terminated
any pregnancy or performed any medical procedure for that purpose. It is
further submitted that Section 5 of the MTP Act does not create any offence
merely on account of the sale of abortion kits. The said provision deals with the
circumstances in which the restrictions contained in Sections 3 and 4 of the Act
would not apply to the termination of pregnancy by a registered medical
practitioner in certain circumstances. He, therefore, submitted that the essential
ingredients of the alleged offence under Section 5 of the Act are not attracted.
4. Learned Senior counsel further submits that there is no specific
provision under the Medical Termination of Pregnancy Act, 1971, which makes
the mere sale of abortion kits an offence. He contends that the prosecution has
failed to point out any provision under the said Act which prohibits the
petitioner from selling the medicines in question. In support of this submission,
he places reliance upon the judgments passed by the Coordinate Benches of
this Court in Sandeep Bhargwa versus State of Haryana, 2019 (4) RCR
(Criminal) 206 , Dr. Sarita Duhan vs. State of Haryana, 2022 Law Finder
(P&H) 7292 and Satbir vs. State of Haryana, 2023: PHHC:119090 , wherein
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in similar circumstances, the FIR was quashed after observing that no specific
provision under the Medical Termination of Pregnancy Act makes the sale of
such kits an offence.
5. It is further submitted by learned counsel that no offence under the
Drugs and Cosmetics Act, 1940 is made out against the petitioner. With regard
to Section 18-D of the said Act, he submits that there is no such provision in
the Act and, therefore, the prosecution has wrongly invoked the said section
against the petitioner. As regards Section 28 of the Drugs and Cosmetics Act,
1940, learned counsel submits that the said provision deals with the failure to
disclose the name of the manufacturer of a drug or medicinal preparation. He
points out that the FIR itself contains the particulars of the abortion kit
allegedly sold to the decoy customer, including its name, batch numbers,
manufacturing date and expiry date. He further submits that even the seizure
memo prepared by the raiding team records the particulars of the manufacturer
and the medicines recovered from the spot. Thus, there was no concealment of
the identity of the manufacturer and, consequently, no contravention of Section
28 of the Act is made out.
6. Learned Senior counsel further submits that the ingredients of
Section 336 IPC are also not attracted in the present case. He submits that to
constitute an offence under the said provision, the act complained of must be
done rashly or negligently so as to endanger human life or the personal safety
of others. In the present case, there is no allegation that the petitioner
performed any medical procedure or that any person suffered injury or was
exposed to danger on account of any rash or negligent act committed by him.
He, therefore, contends that the mere allegation of sale of an abortion kit
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cannot, by itself, constitute an offence under Section 336 IPC. It is further
contended that the petitioner was running a medical store under a licence issued
in his name and the prosecution itself has acknowledged that the medical store
was registered in the petitioner's name. On the basis of the aforesaid
submissions, learned Senior counsel prays that the impugned FIR, along with
all consequential proceedings, including the final report/challan dated
15.09.2021, be quashed qua the petitioner.
7. Per contra, learned State counsel, while vehemently opposing the
submissions made by learned counsel for the petitioner, submits that the
petitioner was caught red-handed while selling an abortion kit to the decoy
customer without any prescription of a registered medical practitioner. It is
further submitted that the petitioner not only sold the MTP kit but also
explained the manner in which the medicines were to be consumed for
termination of pregnancy. It is contended that the petitioner was running a
medical store and was not authorised to prescribe or advise medicines for
termination of pregnancy. Learned State counsel, therefore, submits that the
petitioner has actively facilitated the illegal termination of pregnancy and has
rightly been charge-sheeted for the offences in question. He, therefore, prays
for dismissal of this petition.
8. I have heard the learned counsel for the parties and perused the
material available on record.
9. The allegations against the petitioner primarily relate to the sale of
an abortion kit to a decoy customer for a consideration of Rs.500/-. The factum
of recovery of the said kit and the currency note from the petitioner's medical
store is not in dispute at this stage. However, the question which arises for
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consideration is whether the mere sale of an MTP kit, without any allegation of
actual termination of pregnancy by the petitioner, would constitute an offence
under the provisions of the MTP Act, 1971.
10. The aforesaid issue is no longer res integra. A Coordinate Bench
of this Court in Sandeep Bhargwa versus State of Haryana, 2019 (4) RCR
(Criminal) 206 , after examining the relevant provisions of the MTP Act, held
that there is no specific provision under the said Act which makes the mere sale
of an MTP kit an offence. The relevant extract thereof is reproduced
hereunder:-
“4. From the record, I find that the FIR in the present case has been
registered under the MTP Act on the basis of complaint of Deputy Civil
Surgeon. As per the FIR, on the basis of written order of Civil Surgeon,
Rewari, a team of Health Department was standing on Bawal Chowk.
On 1 of 3 the asking of decoy customer, they reached at Shree Ram
Medical Store. The decoy customer demanded medicine for pregnancy
termination from proprietor Sandeep Bhargva, who gave MTP kit for
`600/-. One currency note of denomination of `500/- LC 858650 and
one currency note of denomination of `100/- ES 453275, which were
handed over to the decoy customer by the office of Civil Surgeon,
Rewari, were given to the aforementioned proprietor by the decoy
customer. The MTP kit was given to the decoy customer without the slip
of doctor and without bill. Thereafter, MTP kit and `600/- were
recovered by the aforesaid Team from the proprietor of medical store.
5. Learned counsel for the petitioner argued that there is no
provision in the Medical Termination of Pregnancy Act (MTP Act ), by
which the petitioner can be punished or selling of MTP kit amounts to
an offence. I have gone through the provisions of the MTP Act . Section
3 deals with situation 'when pregnancies may be terminated by
registered medical practitioners'; Section 4 deals with 'place where
pregnancy may be terminated'; Section 5 deals with where ' Sections 3
and 4 when not to apply'; Section 6 provides 'power to make rules';
Section 7 provides 'Power to make regulations' and Section 8 deals with
'Protection of action taken in good faith'. There is no specific provision
under the Act where selling of MTP kit amounts to an offence.
Xxxx
8. Keeping in view the above discussions and provisions of MTP
Act, I find that no offence under teh MTP Act is made out in this case.”
11. The same view has been reiterated in the cases of Dr. Sarita
Duhan versus State of Haryana (supra) and Satbir versus State of
Haryana(supra) and it has been held that the penal provisions contained in
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CRM-M-51975-2023 -7-

Section 5 of the MTP Act are attracted where a pregnancy is actually
terminated by a person who is not a registered medical practitioner or at a place
other than the one approved under Section 4 of the Act. Mere possession or
sale of an MTP kit, by itself, would not attract the said penal provisions. The
relevant extract of the judgment in the case of Satbir versus State of
Haryana(supra) reads as under:-
“3. The question 'as to whether mere sale of MTP kit amounts to
offence punishable under the provisions of MTP Act, 1971?” came up
before a Co-ordinate Bench of this Court in the case of Dr. Vandana
Malik vs. State of Haryana - CRM-M No.15860 of 2014 and the same
has been answered vide order dated 18th of September, 2014 observing
as under :
“Section 3 of the Act deals with 'when pregnancies may be
terminated by registered medical practitioners'. Section 4
provides for place where pregnancy may be terminated. Sub-
sections2, 3 and 4 of Section 5 provide for punishment in certain
eventualities. A relevant extract from Section 5 of the Act is
quoted hereinbelow;-
5.Sections 3 and 4 when not to apply.-
(1) xxxxx
(2)notwithstanding anything contained in the Indian Penal Code
(45 of 1860), the termination of a pregnancy by a person who is
not a registered medical practitioner shall, be an offence
punishable with rigorous imprisonment for a term which shall
not be less than two years but which may extend to seven years
under that Code, and that Code shall, to this extent, stand
modified.
(3)Who ever terminates any pregnancy in a place other than that
mentioned in Section 4, shall be punishable with rigorous
imprisonment for a term which shall not be less than two years
but which may extend to seven years.
(4)Any person being owner of a place which is not approved
under clause (b) of Section 4 shall be punishable with rigorous
imprisonment for a term which shall not be less than two years
but which may extend to seven years. xxxxxxxx”
A perusal of the aforesaid penal provisions of Section 5 of
the Act makes it evident that termination of a pregnancy by a
person who is not a registered medical practitioner shall be an
offence punishable under Section 5(2) of the Act. A person who
terminates any pregnancy in a place other than that mentioned in
Section 4 of the Act, shall be punished in view of Section 5(3) of
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the Act. The legislative intent and object behind this act is to
restrain termination of pregnancy by a person other than a
registered medical practitioner or at a place other than the place
provided for in Section 4 of the Act.
In the case at hand, the petitioner has been sought to be
indicted in the crime on the allegations that some instruments
used for termination of pregnancy, were found in the labour
room in Malik Hospital, Chand Garden, Samalkha, Panipat
during a raid, conducted by a team of doctors. However, during
investigation of the case, no evidence has been collected that Dr.
Vandana Malik petitioner ever conducted termination of
pregnancy. No person can be held guilty for committing a crime
on the basis of assumptions and presumptions. This apart, there
is nothing on record suggestive of the fact that these instruments
are not used for conducting delivery or any other medical
procedure, much less used only for termination of pregnancy.
Counsel for the State of Haryana otherwise failed to cite
any provision in law or a precedent that if instruments which
may be used for termination of pregnancy are found in a
hospital, it raises a legal presumption against the doctor running
that hospital or the owner of the place that the said hospital is
being used for termination of pregnancy or any person has
terminated the pregnancy. In this view of the matter, I find force
in the contention of the petitioner that even if the allegations
raised against the petitioner are accepted to be true on face
value, the same do not constitute any offence charged against the
petitioner, therefore, the proceedings are liable to be quashed. In
this context, reference can be made to a judgment of Hon'ble the
Supreme Court of India in State of Haryana and others vs. Ch.
Bhajan Lal and others, 1991 (1) R.C.R. (Criminal) 383. In Ch.
Bhajan Lal and others's case (supra), the Apex Court culled out
certain categories of cases by way of illustrations wherein power
under Article 226 or the inherent power under Section 482 of the
Code can be exercised either to prevent abuse of process of any
court or otherwise to secure ends of justice with the observations
that it may not be possible to lay down any precise, clearly
defined and sufficiently chennelized and inflexible guidelines or
rigid formulae and to give an exhaustive list of myriad kinds of
cases where such power should be exercised. The categories of
cases by way of illustrations have been described in clauses 1 to
7 of para 107. A relevant extract from clause (1) of the said para
reads thus:-
“Where the allegations made in the First Information Report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.”
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CRM-M-51975-2023 -9-

For the foregoing reasons, the petition is allowed, FIR no. 476 dated
16.09.2013, for offence under Section 3, 4, 5 of MTP Act, 1971
(hereinafter referred to as Act), registered at Police Station Samalkha,
District Panipat, order dated 16.04.2014, charge sheet dated
16.04.2014 and proceedings emanating therefrom are ordered to be
quashed.”
4. In view of the aforesaid settled proposition of law, this Court finds that
sale of MTP Kit itself cannot be said to be an offence punishable under
the MTP Act. Finding it to be a case which would fall within the
parameters of law laid down by Apex Court in the case of State of
Haryana and others vs. Ch. Bhajan Lal and others, 1991 (1) R.C.R.
(Criminal) 383, this Court finds that the present FIR and the proceedings
subsequent thereto cannot be allowed to continue.”

12. Now adverting to the case in hand, it is apparent that there is no
allegation that the petitioner himself performed any medical procedure or
actually terminated the pregnancy of the decoy customer. The prosecution case
is confined to the allegation that he sold an abortion kit and explained the
manner in which the medicines were to be consumed. Even if these allegations
are taken at their face value by themselves, do not satisfy the essential
ingredients of the offence punishable under Section 5 of the MTP Act.
13. Insofar as the offence under Section 336 IPC is concerned, there is
no specific allegation that the petitioner committed any rash or negligent act
which endangered human life or the personal safety of any person. Similarly, in
respect of the provisions of the Drugs and Cosmetics Act, 1940, the material
placed on record, as noticed above, reflects that the particulars of the
medicines, including the manufacturer, batch number and other relevant details,
were duly recorded in the FIR and the seizure memo. No specific material has
been pointed out to demonstrate the applicability of Section 28 of the said Act.
14. In view of the aforesaid discussion and the overall facts and
circumstances of the case, this Court is of the considered view that the
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continuation of the impugned proceedings against the petitioner would serve no
useful purpose and would amount to permitting the criminal process to
continue despite the absence of the essential ingredients of the offence alleged.
Therefore, the present case squarelly falls within the parameters laid down by
the Hon'ble Supreme Court in State of Haryana and others versus Ch.
Bhajan Lal and others, 1991 (1) R.C.R. (Criminal) 383 , warranting exercise
of inherent jurisdiction of this Court.
15. Consequently, the present petition is allowed and FIR No.19 dated
26.01.2021, registered under Sections 120-B, 336 and 420 IPC, Sections 3, 4
and 5 of the Medical Termination of Pregnancy Act, , Section 18(a)(i) of the
Drugs and Cosmetics Act, 1940 and Section 15(2) of the Indian Medical
Council Act, 1956, at Police Station Hathin, District Palwal, along with all
consequential proceedings arising therefrom, including the final report/challan
dated 15.09.2021 are hereby quashed qua the petitioner.
16. Pending application, if any, shall stand disposed of accordingly.


(H.S.GREWAL)
31.10.2026 JUDGE
Sonia
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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