- (1.) The petitioner challenges the seizure effected of certain objects, namely, the gadgets for MRI and CT scan under the Preconception and Pre-Natal Diagnostic Technique (Prohibition of Sex Selection) Act, 1994 (for short, the PC & PNDT Act). The petitioner is admittedly a registered "genetic clinic" under Section 91(1) of the PC & PNDT Act for a period of 5 years commencing from 28.11.2005 to 23.11.2010. The petitioner has made an application for renewal on 09.11.2010 and he has stated on affidavit that the incumbent radiologist had gone on leave and they were employing new radiologist and would soon intimate the same. This application for renewal has been rejected on the ground that there was no qualified operator available. The point of challenge is that the very same genetic clinic has MRI and CT scan machines and since there is no qualified radiologist, the machines were being seized. The orders impugned are at Annexures P5, P8 to P10. Annexure P8 is the order justifying the seizure of the machines on the ground that MRI and CT Scan could also be used for determining sex of the fetus and those machines would also require to be registered. The argument made that the CT scan and MRI machines cannot be used for determining sex of the foetus due to harmful effect on the mother and the child, apart from the same being prohibitively costly, was rejected on the ground that sex of the foetus could always be determined by any of these machines thought the two machines are not normally used for the said purpose. Annexure P9 is issued in Form-C rejecting an application for renewal of registration on the ground that a case was pending in Karnal court against the applicant and, therefore, it was being rejected. Annexure P10 is a show cause notice issued under Section 20(1) of the PC & PNDT Act stating that the centre had not been registered under the PC & PNDT Act and on checking, the MRI and CT scan were in found in working condition at an unregistered place and they were not sending the monthly report on the spirit of PC & PNDT Act.
(2.) I find the whole exercise undertaken by the respondents to be untenable! There are any number of x-rays and imaging machines which perhaps may also be used as equipments for determination of sex. If the petitioner also had an ultrasound machine and had originally registered under the PC & PNDT Act, he was making an admission that by such installation of such ultrasound machine, he was in possession of a machine which could make possible pre-natal detection of sex and, therefore, it was required to be licensed. If the same clinic which is registered as "genetic clinic" also has MRI and CT scan, I would take it to be only as incidental and a mere possession of those machines would not require any registration under the PC & PNDT Act. The whole approach of the authorities is that since they are capable of detection of sex, it must be understood that there had been a violation under the Act. This is setting new restrictions which will be disastrous for an ordinary clinic which is not registered as a genetic clinic but it has MRI or CT scan for purposes, other than for determination abnormalities that may have no reference at all to performance of any of the pre-sex determination. Section 20 of the PC & PNDT Act which talks about cancellation or suspension of registration would require to be considered in a situation where registration exists and cancellation of such registration is undertaken that there is a breach of the provisions of the Act. Here is a case where there had been a registration of the clinic and there had been a request for renewal of registration. If there are any offences which are shown to have been committed, it must relate to any particular provision under the Act which would require a clinic that is mandated to be registered as a genetic clinic by mere possession of x-rays, MRI or CT scan machines. The possession of these equipments in working condition ought not to be taken as a possession of the equipments which could be used for sex determination and, therefore, would require registration. If there was a duly registered genetic clinic with an ultrasound and the petitioner himself had given an affidavit stating that the competent person was not available and they are not putting the ultrasound machine in use and he was, however, making an application for renewal, the renewal could be considered on a requirement of employment of a technical personnel such as radiologist if any of the rules required the same for issuance of renewal. I cannot understand as to how a mere possession of MRI or CT scan as involving any offences if there was no charge any time that scan machines were put to use for genetic counselling or determining of sex. The seizure of two machines would mean casting an undue requirement of applying for licence whom no such regime exists. At least, I have not been shown through any relevant provisions under the PC & PNDT Act that would require a person to register as genetic counselling clinic for mere possession of MRI or CT scan machines. Indeed, the petitioner has shown that it is one of the approved clinics for carrying out investigations through MRI, CAT and CT scan for patients from government hospitals and the letter of the Principal Medical Officer, Karnal on 18.07.2009 itself reveals that the petitioner has been empanelled for services of government hospitals of the District Karnal at specified concessional rates for CT scan and MRI.
(3.) I am aware that there is poor detection of violations under the Act and convictions under the Act for brazen violations are abysmally poor. The requirement for licensing for MRI & CT scan machines is being deliberated upon to bring a stricter vigil that there is no misuse of these machines. An expert Committee constituted to examine the provisions of PC & PNDT Act on 10th December, 2013 is reported to be contemplating to prevent misuse of MRI & CT scan machines for tele-reporting. To a query raised in the Parliament on 12.02.2014, I find that the Minister for Personnel, Public Grievances & Pensions, Shri Narayanasamy replied that CT scan would be required to be registered under Atomic Energy Regulatory Board (AERB) but MRI machine does not require such registration. Perhaps, there is a case made for a registration initiative to require licensing and registration for MRI and CT scan machines in future. So long as there is no specific law on the subject now, I will hold the seizure of the machines to be bad.;