Full Judgment Text
2025 INSC 637
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 1969-1970 OF 2017
DISTRICT APPROPRIATE AUTHORITY ……. APPELLANT (S)
VERSUS
KAUSHIK BABULAL SHAH & ANR. …….RESPONDENT(S)
J U D G M E N T
PRASANNA B. VARALE, J.
1. Under challenge in these criminal appeals preferred by the District
Appropriate Authority, Ahmedabad is the judgement and order dated
01.10.2012 of the Gujarat High Court wherein the issue regarding
Signature Not Verified
opening of the seal of the ceased sonography machine which was
Digitally signed by
RAVI ARORA
Date: 2025.05.07
10:53:23 IST
Reason:
case property (mudammal) was decided by the court in favor of the
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Respondent. The court observed that the Respondent had been
acquitted both by the Trial Court as well as the appellate Court, and
thus directed the seal to be opened. The High Court further directed
that if any data was to be recovered from the machine then the
Appellant Authority was at liberty to keep their Engineer present at
the time of the opening of the seal of the sonography machine and
retrieve any such data, and the same to be done in the presence of
the Appellant. The subsequent judgement and order dated
22.10.2012 is also under challenge wherein the recall application
preferred by the Appellant was dismissed in limine .
2. The factual matrix giving rise to the present appeal is as follows-
2.1 A sting operation was conducted by the Appellant Authority on
26.05.2009 wherein the Respondent, Kaushik Babulal Shah had
conducted a sonography test and examined the embryo of one
Kailashben Nitinkumar Parmar (who was a part of the operation) at
the Manthan Imaging Centre, situated at Shivanand Complex,
Maninagar. After the completion of the sonography test, it was
alleged that he had disclosed the sex of the foetus as “male child” in
consideration for a total amount of Rs 10,000/- where a sum of Rs.
5000/- was paid prior to the examination and the balance of Rs.
5000/- was paid after the examination. Subsequent to the sting
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operation, a complaint was lodged by the District Appropriate
Authority (Appellant) against the Respondent on 27.05.2009. During
search and seizure, the sonography machine was sealed. In the
process it was also discovered that Form ‘F’ which as per the
provisions of the Pre-Conception and Pre-Natal Diagnostic
Techniques Act, 1994 (hereinafter ‘PC & PNDT Act’) are mandatory
to be maintained was found to have been incompletely filled. A case
was therefore registered against the Respondent and his agents
under Section 4(1), 5(2), 6(1), 23 (1) of P.N.D.T. Act, 1994 and Rules
9(4), 10(1), 9(6), 18 (1) of the 1996 Rules.
2.2 Against the sealing of the sonography machine, the Respondent
preferred Writ Petition SCA No. 5830/09 before the High Court of
Gujarat to remove the seal of the machine. In the said Writ, the
Learned Single Judge vide order dated 30.06.2009 quashed the
action of the Appellant Authority in sealing the sonography machine
and directed to open the seal. The said order was challenged before
the Division Bench in LPA No. 1371 of 2009 wherein the Division
Bench on 07.12.2009 allowed the appeal and set aside the order
passed by the Learned Single Judge giving direction to the Learned
Metropolitan Magistrate, Ahmedabad to decide Criminal Case No.
785 of 2009 against the Respondent as expeditiously as possible
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2.3 On 04.12.2012, the Respondent was acquitted by the
Metropolitan Magistrate, Ahmedabad of all charges and it was
directed that the seized property that is the sonography machine and
other items be returned back to the complainant after the expiry of
the appeal period. This judgement was challenged by the
Government of Gujarat in Criminal Appeal No. 109/2012 before the
Sessions Court. The Sessions Court confirmed the order of acquittal
of the Respondent passed by the Metropolitan Magistrate vide order
dated 23.08.2012.
2.4 In the meantime on 14.06.2012, Special Criminal Application,
No. 1503 of 2012 was filed by the Respondent before the High Court
of Gujarat praying to remove the seal of sonography machine in view
of the acquittal of the Respondents and also taking into consideration
that the Appeal period was over. The High Court vide order dated
01.10.2012 allowed the petition and held-
“6. Therefore, considering the right of the present petitioner
original accused regarding the use of the machine for his
earning or livelihood or for his profession, it cannot be now
deprived since he has been acquitted by two courts, that is,
the trial court as well in appeal by the appellate court. Further,
even if such data is to be retrieved, respondent No.2 Authority
may keep their Engineer concerned present at the time of
opening of the seal of the sonography machine in presence of
the petitioner and may retrieve the data as required. However,
this exercise may be done within a period of 15 days from
today and if respondent No.2 Authority desires to have the
data retrieved, it may take appropriate measures after
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Intimating to the petitioner and shall open the seal within a
period of 15 days from today, i.e., on or before, 15.10.2012.”
2.5 The Appellant Authority then preferred Criminal Misc.
Application No. 11045 of 2013 under seeking leave to appeal against
the orders of acquittal passed by the Trial Court and the Appellate
Court. This application is still pending. At this stage, the Appellant
also filed a recall application, Criminal Misc. Application Number
14839 of 2012 (in Special Criminal Application No. 1503 of 2012),
which was dismissed in limine vide order dated 22.10.2012.
2.6 Aggrieved by the order dated 1.10.2012 and order dt. 22.10.2012,
the Appellant Authority has filed the present Appeal before us.
SUBMISSIONS
3. It is the contention of the learned counsel for the appellant that as
per Section 29 of the PC & PNDT Act all the records and documents
have to be maintained and preserved till the criminal proceedings are
completely disposed of. It is submitted that in the order dated
01.10.2012 wherein the High Court has directed opening the seal of
the sealed sonography machine, the Court has not considered the
fact that a Criminal Appeal challenging the acquittal order passed by
the Trial Court and the appellate court is still pending before the High
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Court. An order directing the opening of the seal of the sealed
sonography machine during the pendency of the appeal is thus
contradictory to the law laid down in Section 29 and Section 30 of
the Act, and Rules 9 & 12 of the Rules 1996 and is liable to be set
aside.
4. Per Contra, the counsel for the Respondents have submitted that
the Respondent has been acquitted by the Trial Court as well as the
Appellate court of all charges that were levied against him. It is
submitted that the term “such proceedings” in interpreting Section
29 of the Act only applies to those proceedings which are pending
before the Trial Court and the same cannot be interpreted to extend
it further to any other court. The learned counsel has contended
that the application for release of the sealed sonography machine
was made to the High Court only after the criminal proceedings
against the Respondent were finally disposed of that is after he was
acquitted by the Ld. Metropolitan Magistrate and the same was
confirmed by the Ld. Sessions Court. Hence there is no violation of
Section 29 of the Act.
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ANALYSIS
5. Heard Learned Counsel for the appellant as well as Ld. Counsel
for the respondent. We have also perused relevant documents on
record and the judgment passed by the High Court.
6. The short question that falls for consideration before this court is
whether the High Court was justified in directing to open the seal of
the sonography machine while the criminal proceedings were still
pending.
7. At the cost of repetition, we may state a brief chronology of
events admitted in the matter. A complaint was filed on 27.05.2009
after the sting operation conducted on 26.05.2009. On 30.06.2009
the learned Single Judge of the High Court quashed the action of
the Appellant Authority and directed to open the seal. On
07.12.2009 the appeal was allowed by the Division Bench. The
Division Bench directed the Metropolitan Magistrate to decide the
criminal case against the respondent expeditiously. On 04.12.2012
the Metropolitan Magistrate acquitted the respondent of all charges
and directed the appellant authority to return the seized property
i.e. the sonography machine. On 23.08.2012 the learned Sessions
Court confirmed the order of acquittal. On 14.06.2012 Special
Criminal Application was filed by the respondent praying to remove
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the seal of the sonography machine. On 01.10.2012 the High Court
passed the order directing the appellant authority to open the seal
within a period of 15 days from the order i.e. on or before
15.10.2012. On 22.10.2012 the recall application was dismissed.
8. Taking into consideration, the above referred chronology of the
events, the fact emerges that the sonography machine was sealed
by the Appellant Authority in the year 2009 and till date is lying
with the appellant authority in the same condition.
9. Section 29 and 30 of the PC & PNDT Act, 1994 deals with the
maintenance and preservation of “records”. The Relevant Sections 29
and 30 of the PC & PNDT Act, 1994 read as under-
“29. Maintenance of records
(1) All records, charts, forms, reports, consent letters and all
the documents required to be maintained under this Act and
the rules shall be preserved for a period of two years or for
such period as may be prescribed:
PROVIDED that, if any criminal or other proceedings are
instituted against any Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, the records and all other
documents of such Centre, Laboratory or Clinic shall be
preserved till the final disposal of such proceedings.
(2) All such records shall, at all reasonable times, be made
available for inspection to the Appropriate Authority or to any
other person authorised by the Appropriate Authority in this
behalf.”
"30. Power to search and seize records, etc. -
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(1) If the Appropriate Authority has reason to believe that an
offence under this Act has been or is being committed at any
Genetic Counselling Centre, Genetic Laboratory or Genetic
Clinic or any other place, such Authority or any officer
authorised thereof in this behalf may, subject to such rules as
may be prescribed, enter and search at all reasonable times
with such assistance, if any, as such authority or officer
considers necessary, such Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic or any other place and
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
office punishable under this Act.
(2) The provisions of the Code of Criminal Procedure, 1973 (2
of 1974) relating to searches and seizures shall, so far as may
be, apply to every search or seizure made under this Act."
10. As stated above Section 29(1) provides for preservation of the
record for a period of two years or for such period as may be
prescribed. Section 29(2) requires that such record shall be made
available for inspection to the Appropriate Authority or any other
person authorized by the Appropriate Authority at all reasonable
times. A conjoint reading of these two provisions show that firstly
the period for preservation of the record is either two years or the
period as prescribed. And secondly, all such records should be
available to the Appropriate Authority for inspection at all
reasonable times. The proviso to Section 29(1) mentions that in a
case where any criminal or other proceedings are pending then the
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records and other relevant documents are to be preserved till the
final disposal of proceedings. However, given the facts in the present
case, we are only concerned with the reasonability of the period for
which such a record is to be preserved.
11. After perusal of the chronology of events referred above, and the
provisions of law under the PC & PNDT Act, 1994, it is clear that in
Section 29(1) there is no prescription of a specified period for which
such record needs to be preserved. The words used in Section 29(1)
are either ‘two years’ or ‘as may be prescribed’, and in Section 29(2)
the words used are at all reasonable times. Admittedly, there is
nothing on record to show that there is any prescription of period
specified by way of any notification issued by either the government
or the competent authority.
12. The sonography machine which was sealed way back in the year
2009 has been kept in the same situation i.e. under the sealed
condition for 16 years now. No purpose would be served by
accepting the submission of the learned counsel for the Appellant
Authority to keep the machine sealed even after nearly 16 years.
Not even any justifiable reason is coming forward from the Appellant
Authority so as to why the sonography machine must be kept in a
sealed condition for an indefinite period except an insistence that
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the proceeding is still pending and had not attained finality.
Another aspect of consideration is that keeping the sonography
machine in a sealed condition for a further indefinite period would
only result in making the machine either useless or worthless.
13. Chapter XXXIV of CRPC deals with Disposal of Property. Section 451
as reproduced below provides for Order for custody and disposal of
property pending trial in certain cases-
“451. Order for custody and disposal of property pending trial
in certain cases-
When any property is produced before any Criminal Court
during any inquiry or trial, the Court may make such order as
it thinks fit for the proper custody of such property pending
the conclusion of the inquiry or trial, and, if the property is
subject to speedy and natural decay, or if it is otherwise
expedient so to do, the Court may, after recording such
evidence as it thinks necessary, order it to be sold or
otherwise disposed of.
Explanation For the purposes of this section, "property"
includes -
(a) property of any kind or document which is produced before
the Court or which is in its custody,
(b) any property regarding which an offence appears to have
been committed or which appears to have been used for the
commission of any offence.”
14. As stated above, Section 451 of the Code of Criminal Procedure
provides the discretion to the Court to pass an appropriate order to
release the property if the Court is of the opinion that the property
is subject to speedy and natural decay or it is otherwise expedient
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to release the property. The Court, after recording the evidence as
it thinks necessary, can pass the order either to sell the property or
to dispose it.
15. We may also refer to the case decided by this Court in Ashok
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Kumar v. State of Bihar & Ors. wherein the Court on the
question of keeping the sealed property, in this case the vehicle,
held that:
“We do not think it necessary to keep the vehicle in the
compound of the court indefinitely for a very long time till
the final disposal of this case. It is more advisable to
entrust it to the registered owner on behalf of the court
under certain conditions. We, therefore, direct the court in
whose custody the vehicle
e is presently kept to release the same to the
appellant…….”
(Emphasis supplied)
16. In the present matter, after a series of litigation and
proceedings, the High Court passed the order on 01.10.2012 for
release of the sonography machine by recording valid reasons
including that the use of the machine is necessary for the
respondent’s earning and the livelihood of the respondent is
dependent on it. The respondent has been acquitted by two courts
1
(2001) 9 SCC 718
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i.e. the Trial Court and the Appellate Court. The High Court also
directed as a cautionary measure that if any data from the machine
is to be retrieved by the authority, then the same can be done by
keeping the concerned engineer present at the time of opening the
seal of the sonography machine in the presence of respondent to
retrieve such data. Thus, this direction very well takes care of the
interest of the Appellate Authority. At the cost of repetition, we may
state that no justifiable reason worth consideration is coming
forward from the appellant authority to keep the sonography
machine in a sealed condition for an indefinite period till the
conclusion of the proceedings.
17. Considering all these facts and the reasons stated above, we see
no reason to interfere with the impugned order in the present
petitions. Therefore, the appeals being devoid of any merit, are
liable to be dismissed. Accordingly, same are dismissed. The
question of law, if any, is kept open.
..................................J.
[BELA M. TRIVEDI]
….….............................J.
[PRASANNA B. VARALE]
NEW DELHI;
MAY 6, 2025.
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