Summary
The Supreme Court quashed an FIR and complaint under the PC-PNDT Act against a radiologist because the raid on his clinic, the sole foundation of the prosecution, was authorised by the Civil Surgeon alone. Section 30(1) requires the multi-member Appropriate Authority itself to form a reason to believe that an offence is being committed; a search ordered by one member is illegal, and prosecuting on it is an abuse of process.
Issues
- Whether a search under Section 30(1) of the PC-PNDT Act authorised only by the Chairman of a multi-member District Appropriate Authority is valid.
- What the expression 'has reason to believe' in Section 30(1) requires of the Appropriate Authority.
- Whether a prosecution founded solely on material seized in an illegal search can continue.
Provisions considered
- Section 30(1), Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994Read as a drastic power with an inbuilt safeguard: search and seizure may be authorised only when the Appropriate Authority has reason to believe an offence has been or is being committed; the decision must be the Authority's, not that of its Chairman or any single member, so the search ordered by the Civil Surgeon alone was vitiated. (¶¶ 9, 10, 11, 12, 13, 14)
- Section 17(2) and (3), read with Section 2(a), Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994The Appropriate Authority is the body appointed under Section 17; under the Haryana notification of 07.11.2013 the district Authority comprised the Civil Surgeon (Chairman), the District Programme Officer and the District Attorney, all of whom had to take the decision. (¶¶ 5, 10, 13)
- Section 26, Indian Penal Code, 1860The definition of 'reason to believe' (sufficient cause to believe) was considered, with the caution that the expression takes its meaning from the context of the statute. (¶ 12)
- Sections 23 and 28(1), Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994The FIR and the complaint filed under Section 28(1) alleged an offence under Section 23, but rested entirely on what was seized in the illegal raid; the State's plea that the later decision to file the complaint cured the defect was not accepted. (¶¶ 3, 6, 7, 8, 16)
Held
- Under Section 30(1) the test for 'reason to believe' is whether a reasonable person on the material before the Authority would be moved to act; given the Act's object it must not become a procedural roadblock, and the Authority need not record reasons, but there must be a rational basis for the belief. (¶ 12)
- Any complaint or material received must be made available at once to all members of the Appropriate Authority, which must decide expeditiously; the decision to search must be that of the Authority and not of an individual member, and a search authorised by the Chairman or any single member acting alone is illegal. (¶¶ 12, 13)
- Urgency was no excuse: the Authority need not meet physically and could have decided by video meeting within minutes, provided every member was made aware of the material. (¶ 13)
- As the Civil Surgeon alone decided to conduct the search and the other two members were not party to it, no legal decision under Section 30(1) existed and the search was vitiated. (¶¶ 13, 14)
- Since nothing apart from the material found in the illegal search connected the accused with the offence under Section 23, continuing the prosecution would be an abuse of the process of law, and the High Court should have quashed it. (¶ 16)
Result
Appeal allowed; High Court judgment of 13.01.2023 set aside; FIR No. 408 of 27.04.2017 at Gurugram and complaint COMA No. 40 of 2018 before the CJM, Gurugram quashed.