Chairman or any other Member acting alone, cannot authorise Search under Section 30(1) of PNDT Act: Supreme Court

Supreme Court: While considering the instant appeal challenging the decision of Punjab and Haryana High Court refusing to quash the complaint and FIR filed for offences under Pre-Conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, the Division Bench of Abhay S. Oka* and Augustine George Masih, JJ., held that as per the express language used in Section 30(1) of the PNDT Act, the Chairman or any other member acting alone, cannot authorise search; it must be a decision of the Appropriate Authority. If a single member of the Appropriate Authority authorises a search, then it will be completely illegal as being contrary to Section 30 (1). “If the law requires a particular thing to be done in a particular manner, the same shall be done in that manner only”.

Background and Contentions:

The appellant, along with other accused persons were alleged to be indulging in the illegal activity of sex determination of a foetus by using ultrasound. The appellant filed a petition for quashing the complaint and the FIR before the High Court. By the impugned judgment, Punjab and Haryana High Court declined to quash both the complaint and FIR.

Counsel for the appellant stated that Notification issued on 7-11-2013 by the Government of Haryana under S. 17 (2) read with S. 17(3)(b) of PNDT Act, by which Appropriate Authorities were constituted for each District consisting of Civil Surgeon, District Programme Officer, Women and Child Development Department and District Attorney. It was submitted that the search /raid purportedly conducted under the orders of the Appropriate Authority of the District under Section 30(1) of the PNDT Act was completely illegal as there was no order passed by the Appropriate Authority. It was stated that only the Civil Surgeon signed the order authorising officers to conduct the raid; but two other members of the Appropriate Authority did not sign the search order.

Per contra, the respondent argued that, since there was an emergency, the Civil Surgeon had to act. It was further submitted that even if there was a defect in the procedure adopted while appointing the officers to conduct the raid, it did not amount to illegality, but it is a curable irregularity which had been cured by subsequent order of the Appropriate Authority to file a complaint.

Court’s Assessment:

Perusing the facts and contentions of the case, the Court, firstly, took note of Sections 23, 28 and 30(1) of the PNDT Act, 1994 dealing with offences, cognizance and power to search and seize records respectively.

The Court also took note of Section 17 of the PNDT Act which deals with appointing Appropriate Authority for search and seizure as enumerated under Section 30. The condition precedent for the search of a clinic is that the Appropriate Authority must have reason to believe that an offence under the PNDT Act has been or is being committed. The Appropriate Authority, as defined under Section 2(a), is the Appropriate Authority appointed under Section 17.

The Court commended that Section 30, 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. Furthermore, the Court observed that Section 30(1) safeguards the health centres and laboratories from arbitrary searches by mandating 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.

Deliberating over the meaning that can be assigned to “reason to believe” under S. 30(1), the Court noted that Section 26 of Penal Code, 1860 defines this expression to mean that a person has a sufficient cause to believe that thing but not otherwise.

However, the Court pointed out that interpretation of “reason to believe” will depend on the context in which it is used in a particular legislation. In some statutes like the PNDT Act, there is a power to initiate action under the statute if the authority has reason to believe that certain facts exist. “The test is whether a reasonable man, under the circumstances placed before him, would be propelled to take action under the statute”. Hence, taking note of the object of the PNDT Act, 1994, the Court stated that “reason to believe” cannot be construed in a manner which would create a procedural roadblock. The reason being, once there is any material placed before the Appropriate Authority based on which action of search is required to be undertaken, if the action is delayed, the very object of passing orders of search would be frustrated. “Therefore, what is needed is that the complaint or other material received by the appropriate authority or its members should be immediately made available to all its members”.

Appropriate authority must expeditiously decide whether there is a reason to believe that an offence under the 1994 Act has been or is being committed and is not required to record reasons for their conclusion. However, there must be a rational basis to form that belief and the decision to act under Section 30 (1) must be of the Appropriate Authority and not of its individual members.

In the instant case, the Court pointed out that Appropriate Authority for District constituted via notification dated 7-11-2013 consisted of Civil Surgeon (Chairman), District Program Officer and District Attorney.

Taking note of the express language used in Section 30(1), PNDT Act, the Court concluded that any one of members acting alone, cannot authorise search and seizure under the provision.

In the instant case, the Civil Surgeon had 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 video meeting is held, every member must be made aware of the complaint or the material on which a decision will be made. It was a matter of a few minutes”.

Therefore, no legal decision was made by the Appropriate Authority in terms of Section 30(1) to search the appellant’s clinic. “In this case, there was no decision of the Appropriate Authority, and the decision to carry out the search was an individual decision of the Civil Surgeon, who was the Chairman of the concerned Appropriate Authority. Therefore, the action of search was itself vitiated”.

Pointing out that the High Court ought to have noticed the illegality and the seized documents did not connect the accused with the offence under S. 23, PNDT Act and since the search itself was illegal, the Court therefore set aside the impugned judgment, the FIR and the complaint.

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