MUMBAI: Observing that to protect the society from heading to a dark future the laws prohibiting determination of sex of a foetus was brought in, the Bombay High Court recently said that not maintaining proper records of sonography or other tests, by a clinic, can amount to an offence under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act 1994 (PCPNDT).
A bench of Justices Ravindra Ghuge and Sanjay Mehare accordingly ordered the restoration of the licence of a registered multispeciality clinic at Nanded.
The bench was moved by the clinic challenging the orders of the authorities seizing its sonography machines and premises in September 2019. This action was taken on the ground that the clinic didn't adhere to the 1994 act by maintaining all the records of tests done etc.
The authorities on this ground had cancelled the licence, which was valid till 2023.
In its defence, the clinic claimed that authorised officer had entered in its premises illegally and with mala fide intention and inspected the record. "However, no illegality was noticed. They took the entire record without preparing its list and didn't hand over the same to us," the counsel appearing for the clinic argued.
He claimed that the clinic had been maintaining all the records as provided under the Act and that it was not indulging in any illegal activities.
"The authorities did not consider that the clinic has not indulged in any act of sex selection or sex determination. The sonography machine was never used for the selection and determination of sex. But all this was not considered," the counsel argued.
The judges after considering the submissions, referred to the various provisions of the 1994 act which impose various obligations and duties on the centres, including the maintaining of records.
"The object behind enacting this Act is well known that the technique is primarily invented to be used to detect the prenatal genetic and metabolic disorders, chromosomal abnormalities, certain congenital malformations of sex-linked disorders," the bench emphasized, adding, "However, amniocentesis and sonography were being used on a large scale to detect the sex of the foetus and to terminate the pregnancy if the unborn child is found to be female. The techniques are also being developed to select the sex of the child before conception."
"This led to a large number of termination of pregnancies. Such technologies took society towards sex discrimination and made the future dark of severe imbalance in the male-female ratio. Therefore, to uphold society, the present Act is enacted," the bench noted.
The judges further said that the provisions of the Act provide for strict action against the violators, and the concerned have to follow it strictly.
"Even non maintaining the records as prescribed is also an offence under the Act. Non maintaining the record is very foundation of offence. There need not have graded offence on the basis of actual determination of sex and non-maintenance of record as undertaking the test without the pre-requisites is prohibited under the Act," the bench said.
Further the bench noted that the authorities in the present case didn't adhere to the norms while seizing the machines and sealing with premises.
"Since the offences under the Act are more serious, we are of the view that seizure panchanama was the backbone to prove the prima facie case against the clinic. However, such a material piece of evidence is not produced by the authorities, even the contention of the clinic that no such panchanama was drawn and its copy was handed over to it is not specifically denied. Thus it is a strong circumstance in favour of the clinic," the bench said while ordering restoration of the licence.
