P&H HC Quashes Case Against Store Owner Accused Of Selling Abortion Kit, Says Sale Alone Is No MTP Act Offence

The petitioner, who operated a medical store, was accused of selling an MTP kit to a decoy customer for ₹500 and explaining how to use it to terminate a pregnancy.

The raiding team recovered the kit and the marked currency note from the store.

The petitioner was charge-sheeted under Section 336 IPC, Section 5 of the Medical Termination of Pregnancy Act, 1971 (MTP Act), and Sections 28 and 18-D of the Drugs and Cosmetics Act, 1940.

He sought quashing of the FIR and consequential proceedings, arguing that the alleged sale did not constitute the charged offences.

Sections 3 and 4 of the MTP Act govern termination of pregnancy by registered medical practitioners and the places where termination may occur; Section 5(2) penalises termination by a person who is not a registered medical practitioner, and Section 5(3) penalises termination at a place other than one contemplated by Section 4.

The Court relied on Sandeep Bhargwa v. State of Haryana, Dr. Sarita Duhan v. State of Haryana, and Satbir v. State of Haryana for the rule that mere possession or sale of an MTP kit, without more, is not an offence under the MTP Act.

Section 336 IPC requires a rash or negligent act endangering human life or personal safety.

The Court also applied the Bhajan Lal principle that inherent jurisdiction may be exercised where allegations, taken at face value, do not prima facie constitute an offence.

The prosecution alleged that the petitioner sold the kit and explained its use, but did not allege that he performed a medical procedure or that a pregnancy was actually terminated by him.

Applying the cited MTP Act decisions, the Court held those allegations insufficient to satisfy the elements of Section 5.

For Section 336 IPC, the record identified no specific rash or negligent act endangering life or personal safety.

As to the Drugs and Cosmetics Act, the manufacturer and other particulars of the medicines appeared in the FIR and seizure memo, and no specific material was identified to establish the applicability of Section 28.

The Court concluded that continuation of the proceedings would be unjustified under the Bhajan Lal principles.

It allowed the petition and quashed the FIR and all consequential proceedings, including the final report/challan, qua the petitioner.