TaxTMI 
TaxTMI 
2024 (9) TMI 1900
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....tient and shadow witness, S.I. Usha Rani, informed Dhanpati that they knew the sex of the foetus. Dhanpati called the decoy patient on 27th April 2017 at 8 am for MTP. The shadow witness informed Dhanpati that family members of the decoy patient were suggesting reconfirming the sex of the foetus through ultrasound. Dhanpati called the shadow witness on 27th April 2017 at 7 am and stated that the Doctor who would perform the ultrasound would charge Rs. 20,000/- but ultimately, she fixed the deal at Rs. 15,000/-. 2. Accordingly, the decoy patient was given a sum of Rs. 15,000/-. The members of the search party, along with the police staff as well as the shadow witness and decoy patient, went to the Gurugram bus stand where Dhanpati asked for Rs. 15,000/- which amount was handed over to her. After that, a nurse, Anju (accused no. 2), was called by Dhanpati, and a part of the amount of Rs. 15,000/- was given to her. Thereafter, the decoy patient and others entered the appellant's clinic, known as the Divine Diagnostic Centre at Gurugram. The decoy patient was taken inside. When the decoy patient and Anju came out of the diagnostic centre, the police caught them. The search team ....
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.... basis of the FIR and the complaint. He submitted that the raid was completely illegal as it was not conducted by the officers authorised by the Appropriate Authority. 6. The learned counsel appearing for the State did not dispute that the order appointing officers to conduct the raid was issued and signed only by the Civil Surgeon, the Appropriate Authority's Chairman. He submitted that as there was an emergency, the Civil Surgeon had to take action. He submitted that the complaint under sub-Section (1) of Section 28 has been filed by an officer authorised by the Appropriate Authority. The decision to file the complaint is made by the Appropriate Authority. The learned counsel appearing for the respondent would, therefore, submit that even if there is a defect in the procedure adopted while appointing the officers to conduct the raid, it does not amount to illegality, but it is a curable irregularity which has been cured by subsequent order of the Appropriate Authority to file a complaint. CONSIDERATION OF SUBMISSIONS 7. To appreciate the submissions, we must refer to relevant provisions of the 1994 Act. Section 23 of the 1994 Act, which is a penal provision, reads th....
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....) the appropriate authority concerned, or any officer authorised in this behalf by the Central Government or State Government, as the case may be, or the appropriate authority; or (b) a person who has given notice of not less than fifteen days in the manner prescribed, to the appropriate authority, of the alleged offence and of his intention to make a complaint to the court. Explanation.-For the purpose of this clause, "person" includes a social organisation. 2. No court other than that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under this Act. 3. Where a complaint has been made under clause (b) of subsection (1), the court may, on demand by such person, direct the appropriate authority to make available copies of the relevant records in its possession to such person. 9. Section 30(1) deals with the power to search and seize records, which reads thus: "30. Power to search and seize records, etc. -(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 Genet....
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....e) Amendment Act, 2002: Provided further that any vacancy occurring therein shall be filled within three months of that occurrence. (b) when appointed for any part of the State or the Union territory, of such other rank as the State Government or the Central Government, as the case may be, may deem fit. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. " 11. Now, coming back to Section 30, it is a very drastic provision which grants power to the Appropriate Authority or any officer authorized by it to enter a Genetic Laboratory, a Genetic Clinic, or any other place to examine the record found therein, to seize the same and even seal the same. The first part of sub-section (1) of Section 30 safeguards these centres or laboratories from arbitrary search and seizure action. The safeguard is that search and seizure can be authorized only if the Appropriate Authority has a reason to believe that an offence under the 1994 Act has been committed or is being committed. 12. The question is what meaning can be assigned to the expression "has reason to believe". Section 26 of the Indian Penal Code defines the expression "reason to believe", which reads thus: ....
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.... authority. Looking at the object of sub-section (1) of Section 30 and the express language used therein, only the Chairman or any other member acting alone cannot authorise search under subsection (1) of Section 30. It must be a decision of the Appropriate Authority. If a single member of the Appropriate Authority authorises a search, it will be completely illegal being contrary to sub-section (1) of Section 30. If the law requires a particular thing to be done in a particular manner, the same shall be done in that manner only. In the present case, going by the affidavit filed by Dr Virender Yadav, the Chairman of the District Appropriate Authority cum-Civil Surgeon, Gurugram, the decision to conduct a search by appointing three officers by order dated 27th April 2017 was only his decision purportedly taken in his capacity as the Chairman of the Appropriate Authority. Admittedly, the other two members of the appropriate authority are not parties to the said decision. The Civil Surgeon has given the excuse of urgency. The Appropriate authority doesn't need to have a physical meeting. The Civil Surgeon could have held a video meeting with the other two members. However, when a v....