RAVINDER KUMARversusSTATE OF HARYANA

                  [2024] 9 S.C.R. 397 : 2024 INSC 684

                              Ravinder Kumar
                                      v.
                              State of Haryana
                     (Criminal Appeal No. 3747 of 2024)
                              12 September 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]

                            Issue for Consideration
       FIR under Section 23 of the Pre Conception and Pre-natal
       Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and
       a complaint under Section 28(1) was filed against the appellant
       and co-accused persons. The allegation was of indulging in the
       illegal activity of sex determination using ultrasound. In the facts
       of the case, when there was no legal decision by the Appropriate
       Authority in terms of sub-section (1) of Section 30 to search for
       the appellant’s clinic and the decision to carry out the search
       was an individual decision of the Civil Surgeon-Chairman of the
       concerned Appropriate Authority, whether the search conducted
       would be illegal; meaning to be assigned to the expression “has
       reason to believe” under sub-section (1) of Section 30.

                                   Headnotes†
       Pre Conception and Pre-natal Diagnostic Techniques
       (Prohibition of Sex Selection) Act, 1994 – ss.30(1), 17, 2(a) –
       “has reason to believe” – Interpretation:
       Held: s.30 is a very drastic provision granting 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 and seal the same – The first part
       of sub-section (1) of s.30 safeguards these centres or laboratories
       from arbitrary search and seizure action – The condition precedent
       for the search of a clinic is that the Appropriate Authority must have
       reason to believe that an offence under the 1994 Act has been or is
       being committed – Interpretation of “reason to believe” will depend
       on the context in which it is used in a particular legislation – Under
       the 1994 Act, there is a power to initiate action under the statute if
       the authority has reason to believe that certain facts exist – Thus,
       the test is whether a reasonable man, under the circumstances

* Author
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       placed before him, would be propelled to take action under the
       statute – Considering the object of the 1994 Act, the expression
       “reason to believe” cannot be construed in a manner which would
       create a procedural roadblock – The reason is that 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, the complaint or other material received by
       the appropriate authority or its members should be immediately
       made available to all its members – After examining the same, the
       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 it is not required to record reasons for
       the same but, there has to be a rational basis to form that belief –
       However, the decision to take action under sub-section (1) of
       s.30 must be of the Appropriate Authority and not of its individual
       members otherwise the decision will be illegal – The Appropriate
       Authority for the district consisted of the Civil Surgeon, the District
       Program Officer of the Women and Child Development Department
       and the District Attorney – On facts, no legal decision was made
       by the Appropriate Authority in terms of sub-section (1) of s.30 to
       search for the appellant’s clinic and the decision to carry out the
       search was an individual decision of the Civil Surgeon-Chairman
       of the concerned Appropriate Authority – Thus, the action of search
       is itself vitiated – FIR and complaint were based on the material
       seized during the raid and since, the search itself is entirely illegal,
       continuing prosecution based on such an illegal search will be
       abuse of the process of law – Impugned judgment set aside – FIR
       and complaint quashed. [Paras 10-14, 16, 17]

                                 Case Law Cited
       Aslam Mohammad Merchant v. Competent Authority & Ors. [2008]
       10 SCR 332 : (2008) 14 SCC 186 – referred to.
                                    List of Acts
       Pre Conception and Pre-natal Diagnostic Techniques (Prohibition
       of Sex Selection) Act, 1994; Penal Code, 1860.

                                List of Keywords
       Sex determination of a foetus; Racket; Medical termination of
       the pregnancy; Illegal activity; Ultrasound; Decoy patient; Raid;
       Appropriate Authority; Clinic; Search of a clinic; Civil Surgeon;
[2024] 9 S.C.R.                                                       399

                    Ravinder Kumar v. State of Haryana


     Appropriate Authority, Search and seizure action; Search and
     seize records; “has reason to believe”; Reasonable man; Illegal
     search; Abuse of the process of law; FIR; Complaint; Quashing.

                           Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3747
     of 2024
     From the Judgment and Order dated 13.01.2023 of the High Court
     of Punjab & Haryana at Chandigarh in CRM-M No.13495 of 2018.
                         Appearances for Parties
     Vineet Bhagat, Kewal Singh, Mrs. Manju Bhagat, Mrs. Archna Midha,
     Aksveer Singh Saggu, Advs. for the Appellant.
     Deepak Thukral, A.A.G., Samar Vijay Singh, Saurabh Sachdeva,
     Sandeep Saxena, Ms. Sabarni Som, Fateh Singh, T. V. Surendranath,
     Prakhar Garg, Makrand Pratap Singh, Advs. for the Respondent.
                Judgment / Order of the Supreme Court

                               Judgment
     Abhay S. Oka, J.
     FACTUAL ASPECTS
1.   The appellant claims that he has been practising as a general
     Physician since 2001 and as a Radiologist since 2007. On 27th April
     2017, a team comprising four officers raided the appellant’s clinic.
     Based on the complaint against one woman, Dhanpati (accused
     no.1), that she is running a racket of sex determination and medical
     termination of pregnancy, a decoy patient was selected. The allegation
     is that Dhanpati was contracted to do the medical termination of
     the pregnancy of the decoy patient. The decoy patient 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/-.
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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 entered the diagnostic centre. The cash amount was
       seized, and the team recovered even the USG report for the decoy
       patient. It was alleged that the appellant had signed the said report.
3.     A first information report was registered on 27th April 2017 in the
       Police Station, Gurugram, alleging the commission of an offence
       punishable under Section 23 of the Pre-Conception and Pre-natal
       Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for
       short, ‘the Act of 1994’). It was followed by a complaint filed by the
       District Appropriate Authority under Section 28(1) of the Act of 1994
       before the learned Chief Judicial Magistrate, Gurugram, alleging the
       commission of punishable offences against the appellant, the said
       Dhanpati and Anju. The allegation against the appellant and the co-
       accused was of indulging in the illegal activity of sex determination
       of a foetus by using ultrasound.
4.     The appellant filed a petition for quashing the complaint and the FIR
       before the High Court. By the impugned judgment, the High Court
       declined to quash both the complaint and FIR.
       SUBMISSIONS
5.     Learned counsel appearing for the appellant invited our attention to
       the provisions of the 1994 Act. He pointed out a notification issued
       on 7th November 2013 by the Government of Haryana under sub-
       section (2) read with clause (b) of sub-section (3) of Section 17 of
       the 1994 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.
       He submitted that the search /raid purportedly conducted under
       the orders of the Appropriate Authority of the District under Section
       30(1) of the 1994 Act was completely illegal as there was no order
[2024] 9 S.C.R.                                                         401

                    Ravinder Kumar v. State of Haryana


     passed by the Appropriate Authority authorising the conduct of the
     raid. He submitted 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 said order. He pointed out
     an affidavit filed by Dr. Virender Yadav, the Chairman of the District
     Appropriate Authority-cum-Civil Surgeon, Gurugram. He stated that
     the Civil Surgeon accepted that he alone constituted the raiding team
     vide order dated 27th April 2017 and issued the order authorising the
     search. He submitted that the so-called raid under Section 30(1) is
     the only 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 thus:
           “23. Offences and penalties.- (1) Any medical geneticist,
           gynaecologist, registered medical practitioner or any
           person who owns a Genetic Counselling Centre, a Genetic
           Laboratory or a Genetic Clinic or is employed in such a
           Centre, Laboratory or Clinic and renders his professional
           or technical services to or at such a Centre, Laboratory
           or Clinic, whether on an honorary basis or otherwise, and
           who contravenes any of the provisions of this Act or rules
           made thereunder shall be punishable with imprisonment
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           for a term which may extend to three years and with fine
           which may extend to ten thousand rupees and on any
           subsequent conviction, with imprisonment which may
           extend to five years and with fine which may extend to
           fifty thousand rupees.
           2. The name of the registered medical practitioner shall be
           reported by the appropriate authority to the State Medical
           Council concerned for taking necessary action including
           suspension of the registration if the charges are framed by
           the court and till the case is disposed of and on conviction
           for removal of his name from the register of the Council for
           a period of five years for the first offence and permanently
           for the subsequent offence.
           3. Any person who seeks the aid of a Genetic Counselling
           Centre, Genetic Laboratory, Genetic Clinic or ultrasound
           clinic or imaging clinic or of a medical geneticist,
           gynaecologist, sonologist or imaging specialist or
           registered medical practitioner or any other person for
           sex selection or for conducting pre- natal diagnostic
           techniques on any pregnant women for the purposes
           other than those specified in sub-section (2) of section
           4, he shall, be punishable with imprisonment for a term
           which may extend to three years and with fine which may
           extend to fifty thousand rupees for the first offence and
           for any subsequent offence with imprisonment which may
           extend to five years and with fine which may extend to
           one lakh rupees.
           4. For the removal of doubts, it is hereby provided, that
           the provisions of sub-section (3) shall not apply to the
           woman who was compelled to undergo such diagnostic
           techniques or such selection.”
8.     The procedure for cognizance is incorporated in Section 28, which
       reads thus:
           “28. Cognizance of offences. -
           1. No court shall take cognizance of an offence under this
           Act except on a complaint made by—
[2024] 9 S.C.R.                                                                    403

                      Ravinder Kumar v. State of Haryana


           (a) 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 Genetic Clinic or any other place, such Authority or
           any officer authorised thereof in this behalf may, subject
           to such rules as may be prescribed, enter and search at
           all reasonable times with such assistance, if any, as such
           authority or officer considers necessary, such Genetic
           Counselling Centre, Genetic Laboratory or Genetic Clinic or
           any other place and examine any record, register, document,
           book, pamphlet, advertisement or any other material object
           found therein and seize and seal the same if such Authority
           or officer has reason to believe that it may furnish evidence
           of the commission of an office punishable under this Act.
           .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..”
                                                                 (emphasis added)
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10. The condition precedent for the search of a clinic is that the Appropriate
    Authority must have reason to believe that an offence under the 1994
    Act has been or is being committed. The Appropriate Authority, as
    defined under Section 2(a), is the Appropriate Authority appointed
    under Section 17. Sub-sections (1) to (3) of Section 17 read thus: -
           “17. Appropriate Authority and Advisory Committee. -
           1. The Central Government shall appoint, by notification in
           the Official Gazette, one or more Appropriate Authorities for
           each of the Union territories for the purposes of this Act.
           2. The State Government shall appoint, by notification in
           the Official Gazette, one or more Appropriate Authorities
           for the whole or part of the State for the purposes of this
           Act having regard to the intensity of the problem of pre-
           natal sex determination leading to female foeticide.
           3. The officers appointed as Appropriate Authorities under
           sub-section (1) or sub-section (2) shall be,—
           (a) when appointed for the whole of the State or the Union
           territory, consisting of the following three members:-
                  i) an officer of or above the rank of the Joint Director
                  of Health and Family Welfare - Chairperson;
                  ii) an eminent woman representing women’s
                  organization; and
                  iii) an officer of Law Department of the State or the
                  Union territory concerned:
           Provided that it shall be the duty of the State or the
           Union territory concerned to constitute multimember
           State or Union territory level appropriate authority within
           three months of the coming into force of the Pre-natal
           Diagnostic Techniques (Regulation and Prevention of
           Misuse) 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.
           .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ”
[2024] 9 S.C.R.                                                          405

                       Ravinder Kumar v. State of Haryana


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:
            “26. “Reason to believe”.— A person is said to have
            “reason to believe” a thing, if he has sufficient cause to
            believe that thing but not otherwise.”
     In the case of Aslam Mohammad Merchant v. Competent Authority
     & Ors.,1 this Court had an occasion to interpret the same expression.
     In paragraph 41, this Court held thus:
            “41. It is now a trite law that whenever a statute provides
            for “reason to believe”, either the reasons should appear
            on the face of the notice or they must be available on the
            materials which had been placed before him.”
     However, interpretation of the expression will depend on the context
     in which it is used in a particular legislation. In some statutes like
     the present one, 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.
     Considering the object of the 1994 Act, the expression “reason to
     believe” cannot be construed in a manner which would create a
     procedural roadblock. The reason is that 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,


1   [2008] 10 SCR 332 : (2008) 14 SCC 186
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       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. After examining the same, the
       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. The Appropriate Authority is not required to record
       reasons for concluding that it has reason to believe that an offence
       under the 1994 Act has been or is being committed. But, there has to
       be a rational basis to form that belief. However, the decision to take
       action under sub-section (1) of Section 30 must be of the Appropriate
       Authority and not of its individual members.
13. Under the notification dated 7th November 2013, the Appropriate
    Authority for the district consists of the Civil Surgeon, the District
    Program Officer of the Women and Child Development Department,
    and the District Attorney. The Civil Surgeon is the Chairman of
    the appropriate 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 sub-section (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 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.
14. Therefore, in the facts of the case, no legal decision was made by
    the Appropriate Authority in terms of sub-section (1) of Section 30
    to search for the appellant’s clinic. As stated earlier, sub-section (1)
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                     Ravinder Kumar v. State of Haryana


     of Section 30 provides a safeguard by laying down that only if the
     Appropriate Authority has reason to believe that an offence under
     the 1994 Act has been committed or is being committed that a
     search can be authorized. In this case, there is no decision of the
     Appropriate Authority, and the decision to carry out the search is an
     individual decision of the Civil Surgeon, who was the Chairman of
     the concerned Appropriate Authority. Therefore, the action of search
     is itself vitiated.
15. There is another factual aspect of the case. The seizure Memo
    dated 27th April 2017 (Annexure P-4) contains the names of three
    persons. The Seizure Memo records that on 27th April 2017, the
    District Appropriate Authority constituted a team comprising three
    members whose names were stated in the seizure memo. However,
    a letter dated 27th April 2017 (annexure P-3) addressed by Deputy
    Civil Surgeon Rewari to Deputy Civil Surgeon Gurugram records that
    the team comprised four members, and the raid was conducted by
    the said four members.
16. A perusal of the impugned FIR and impugned complaint shows that
    its foundation is the material seized during the raid on 27th April 2017.
    Except for what was found in the search and the seized documents,
    there is nothing to connect the accused with the offence punishable
    under Section 23 of the 1994 Act. As the search itself is entirely
    illegal, continuing prosecution based on such an illegal search will
    amount to abuse of the process of law. The High Court ought to
    have noticed the illegality we have pointed out.
17. Therefore, the appeal is allowed, and the impugned judgment dated
    13th January 2023 is set aside. FIR No.408, dated 27th April 2017,
    registered in the Police Station, Gurugram at Gurugram, is hereby
    quashed. The complaint bearing no. COMA No.40 of 2018, pending
    before the court of learned Chief Judicial Magistrate, Gurugram, also
    stands quashed.

     Result of the Case: Appeal allowed.



     †
         Headnotes prepared by: Divya Pandey