Delhi High Court
Matrix Cellular (International) ... vs State (Nct Of Delhi) on 27 May, 2021
Equivalent citations: AIRONLINE 2021 DEL 866
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Delivered on : 27th May, 2021
+ W.P.(CRL) 975/2021
MATRIX CELLULAR (INTERNATIONAL)
SERVICES LIMITED ..... Petitioner
Through : Mr.Mohit Mathur, Mr.Trideep
Pais, Senior Advocates with
Mr.Samudra Sarangi, Ms.Shruti
Raina, Ms.Srishti Khare,
Ms.Abhilasha Khanna, Ms.Nishtha
Aggarwal, Ms.Moha Paranjpe,
Mr.Sumit Misra, and Ms.Sanya
Kumar, Advocates.
versus
STATE (NCT OF DELHI) ..... Respondent
Through : Mr.S.V.Raju, ASG with Mr.Sanjay
Lao, Standing Counsel (Crl),
Ms.Kamna Vohra, ASC with
Ms.Sairica Raju, Mr.A Venkatesh,
Mr.Guntur Pramod Kumar,
Ms.Zeal Shah, Mr.Shaurya R Rai,
Ms.Aarushi Singh and
Mr.Anshuman Singh, Advocates
for the State.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J. (Through Video Conferencing)
1. This writ petition is filed by the petitioner for direction to the
respondent to immediately release the products/stock seized by it from
the petitioner's Collection Centre at Lodhi Colony and the petitioner's
office premises at Mehrauli. Further, it is also prayed to restrain the
respondent from seizing any further products of the petitioner pursuant to
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the FIR, besides other reliefs or even otherwise. This prayer (b) has since
been withdrawn.
2. The gamut of the arguments raised by the learned senior counsel
for the petitioner is a raid conducted on 05.05.2021 by the SHO of police
station Lodhi Colony while patrolling in the area on the restaurant in the
name and style of Nege Ju in the Central Market, Lodhi Colony, New
Delhi. On search of aforesaid premises, 32 boxes of Oxygen
Concentrators of 09 and 05 liters capacity; one box of thermal scanner
and KN-95 Masks were recovered. In this regard, the FIR No.116/2021
dated 05.05.2021 under Section 3/7 of the Essential Commodities Act,
under Section 3 of the Epidemic Diseases Act and Section 420/188/
120B/34 IPC was registered at police station Lodhi Colony. Four
accused persons were also arrested therein.
3. During the course of investigation, at the instance of accused
persons, 387 oxygen concentrators; 112 boxes containing KN-95 marks,
95 Oximeter were recovered from Matrix Cellular International Services
Private Limited, 7, Khullar Farm House, Mandi Road, Fatehpur Beri,
New Delhi. During the investigation the accused persons allegedly
disclosed regarding black marketing of oxygen concentrators and other
Covid-19 treatment related equipment from various sources and supply/
sold to the highest payer and needy person.
4. On 06.05.2021, one day police custody remand was taken of two
accused persons and at their instances further recovery from Town Hall
Restaurant, Khan Market, New Delhi was effected. On 07.05.2021, 96
oxygen concentrators were also recovered from Khan Chacha
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Restaurant, Khan Market, New Delhi and further invoices in the name of
Dayal Opticals for selling of 250 oxygen concentrators were recovered at
the instance of accused Hitesh.
5. The allegations are in the year 2020 due to global pandemic the
work of the petitioner company was affected and they started dealing in
Covid-19 related items and imported oximeter, KN-95 mask and also
procured rest of the articles locally and sold them to the dealers and
corporates. The allegations are they are selling the oxygen concentrators
to the needy person with profit/margin of Rs.40,000/- to Rs.42,000/- per
piece.
6. The arguments of the learned senior counsel for the petitioner is
despite the FIR being registered on 05.05.2021, the entire seized material
was sent to the Deputy Commissioner and not to a local Magistrate hence
they have no remedy under Section 451 or 457 Cr P C to move an
appropriate application before learned Magistrate and since the seizure is
illegal, the remedy is only to file a Writ under Article 226 of the
Constitution.
7. It is argued the petitioner is dealing in oxygen concentrators and
not oxygen cylinders and the equipments which are seized from the
petitioner are sold over the counters and is not a regulated/controlled
item. These items are being sold by Amazon and other online portals and
the acts of petitioner have been carved out separately is a mischief of the
concerned Investigating Officer.
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8. Reference is made to various invoices filed on record stating
interalia they have got these equipments imported for sale and the market
prices are controlled by demand and supply and as there is no order of the
Government controlling its prices, hence no case is made out against the
petitioner.
9. It is alleged even the Division Bench of this Court has not given
any direction qua concentrator. Reference is made to an order dated
06.05.2021 passed by the Division Bench of this Court in W.P.(C)
No.3031/2020, which interalia notes:-
"5.Mr.Sanjay Dhir, Professor, IIT-Delhi has also joined
the proceedings and submits that though the portal for
stock of medicine is operational qua Remdesivir, the NIC is
awaiting instructions from the DGHS regarding the names
of the other drugs to be added to the portal; thereafter, the
portal can be operated by the complete supply chain,
including the hospitals by adding in data from time to time.
The DGHS should take steps to include other essential
drugs in short supply for treatment of COVID-19."
10. The learned senior counsel for the petitioner refers to Section 102 ,
451, and 457 Cr P C to say as none of the seized properties/articles were
ever produced before learned Magistrate having the jurisdiction over the
area, hence no application under Section 457 CrP C could be made.
11. It is argued Section 2, 2A and 3 of the Epidemic Diseases Act and
Section 3 & 7 of the Essential Commodities Act are though relevant but
since there are no regulations and orders under the Act(s), hence the
seized articles being not the controlled items, its seizure is illegal.
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12. It was also argued the relevant notification was issued by the State
only on 07.05.2021 i.e. after the seizure and hence the seized articles
needs to be returned to the petitioner.
13. Qua the maintainability of this petition, the learned senior counsel
for the petitioner referred to Wazir Chand vs State of Himachal Pradesh
and the District Magistrate, Chamba AIR 1954 SC 415 which held:-
"10. Lastly it was argued that the petitioner made an
application under Section 523 CrPC, to the Magistrate and
that application was dismissed and that a petition for
revision against that order was still pending, and that when
another remedy had been taken, Article 226 could not be
availed of. This contention cannot be sustained, firstly in
view of the fact that Section 523 has no application to the
facts and circumstances of this case, and the Magistrate
had no jurisdiction to return these goods to the petitioner.
Secondly, the revision application has been dismissed on
the ground that there was no jurisdiction in this case to
grant relief to the petitioner under Section 523."
14. Further in Karam Chand Ganga Parsad And Another vs Union of
India 1970(3) SCC 694 the Supreme Court held:-
"3.The principal questions that arose for decision before
the High Court were - Was the ban on export lifted by the
State Government? If it did lift the ban was it competent to
do so? If the ban is held to have been validly lifted it
follows as a necessary corollary that the refusal on the part
of the railways to deliver the maize exported is illegal and
the authorities were not competent to seize or forfeit the
Maize exported. Further the prosecutions launched would
become unsustainable.
4. A Division Bench of the Delhi High Court after
elaborately hearing the arguments advanced in the case on
the various issues arising for decision in the case rejected
the writ petitions on the sole ground that in view of the
pendency of the criminal proceedings before some Courts
in the State of West Bengal, it is inappropriate for the High
Court to pronounce on the questions arising for decision in
the writ petitions. In our opinion the High Court seriously
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erred in coming to this conclusion. If the appellants are
able to establish their case that the ban on export of maize
from the State of Haryana had been validly lifted all the
proceedings taken against those who exported the Maize
automatically fall to the ground. Their maintainability
depends on the assumption that the exports were made
without the authority of law. It is a well-established
principle of law that the decisions of the civil courts are
binding on the criminal courts. The converse is not true.
The High Court after entertaining the writ petitions and
hearing arguments on the merits of the case should not
have dismissed the petitions merely because certain
consequential proceedings had been taken on the basis that
the exports in question were illegal. For the decision of the
controversy between the parties to the writ petitions neither
the presence of the State of West Bengal nor the authorities
who took penal action was necessary. The validity of the
steps taken by them, as mentioned earlier, would depend
upon the validity or otherwise of the export in question."
15. Thus, it was argued only if the State had regulated the import and
capped the price of concentrators only then these could have been seized;
hence without any order under Essential Commodities Act or without any
regulation under The Epidemic Diseases Act, the act of the State is
wholly illegal and hence the articles need be returned.
16. Heard.
17. Before proceeding further, let me examine whether the act of
respondent in seizing the articles is legal? In this context the relevant
provision of the different Act(s) need to be noted.
18. The drug defined under Section 3 (b) (iv) of the Drugs and
Cosmetics Act, is as under:-
"3. Definitions. --In this Act, unless there is anything
repugnant in the subject or context:--
(a)xxx
(aa) xxx
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(aaa) xxx
(b) durg includes
(i) to (iii) xxxx
(iv) such devices intended for internal or external use in the
diagnosis, treatment, mitigation or prevention of disease
or disorder in human beings or animals, as may be
specified from time to time by the Central Government by
notification in the Official Gazette, after consultation with
the Board;
Epidemic Diseases Act
2. Power to take special measures and prescribe
regulations as to dangerous epidemic disease When at any
time the State Government is satisfied that the State] or any
part thereof is visited by, or threatened with an outbreak of
any dangerous epidemic disease, the State Government if it
thinks that the ordinary provisions of the law for the time
being in force are insufficient for the purpose, may take, or
require or empower any person to take, such measures and,
by public notice, prescribe such temporary regulations to
be observed by the public or by any person or class of
persons as it shall deem necessary to prevent the outbreak
of such disease or the spread thereof, and may determine in
what manner and by whom any expenses incurred
(including compensation if any) shall be defrayed.
2A. Powers of Central Government. When the Central
Government is satisfied that India or any part thereof is
visited by, or threatened with, an outbreak of any
dangerous epidemic disease and that the ordinary
provisions of the law for the time being in force are
insufficient to prevent the outbreak of such disease or the
spread thereof, the Central Government may take such
measures, as it deems fit and prescribe regulations for the
inspection of any bus or train or goods vehicle or ship or
vessel or aircraft leaving or arriving at any land port or
aerodrome, as the case may be, in the territories to which
this Act extends and for such detention thereof, or of any
person intending to travel therein, or arriving thereby, as
may be necessary.
3. Penalty :-- (1) Any person disobeying any regulation or
order made under this Act shall be deemed to have
committed an offence punishable under section 188 of the
Indian Penal Code
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(2) Whoever,
(i) commits or abets the commission of an act of violence
against a healthcare service personnel; or
Essential Commodities Act
3. Powers to control production, supply, distribution, etc.,
of essential commodities.
(1) If the Central Government is of opinion that it is
necessary or expedient so to do for maintaining or
increasing supplies of any essential commodity or for
securing their equitable distribution and availability at fair
prices, 1[or for securing any essential commodity for the
defence of India or the efficient conduct of military
operations], it may, by order, provide for regulating or
prohibiting the production, supply and distribution thereof
and trade and commerce therein.
7. Penalties:-(1) If any person contravenes any order made
under Section 3,--
(a) he shall be punishable,-- xxxx"
19. The State also relies upon order(s)/notification(s) issued by the
appropriate government from time to time to fight this pandemic. The
following notifications have been issued and are cited below.
20. An office memorandum dated 11.02.2020 issued by the
Government of India, is as under:-
"MINISTRY OF HEALTH AND FAMILY WELFARE
(Department of Health and Family Welfare)
NOTIFICATION
New Delhi, the 11th February, 2020
S.O. 648(E).-- In pursuance of sub-clause (iv) of clause (b) of
section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940),
the Central Government, after consultation with the Drugs
Technical Advisory Board, hereby specifies the following
devices intended for use in human beings or animals as drugs
with effect from the 1st day of April, 2020, namely:―
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All devices including an instrument, apparatus, appliance,
implant, material or other article, whether used alone or in
combination, including a software or an accessory, intended
by its manufacturer to be used specially for human beings or
animals which does not achieve the primary intended action in
or on human body or animals by any pharmacological or
immunological or metabolic means, but which may assist in its
intended function by such means for one or more of the specific
purposes of ―
(i) diagnosis, prevention, monitoring, treatment or alleviation
of any disease or disorder;
(ii) diagnosis, monitoring, treatment, alleviation or assistance
for, any injury or disability;
(iii) investigation, replacement or modification or support of
the anatomy or of a physiological process;
(iv) supporting or sustaining life;
(v) disinfection of medical devices; and
(vi) control of conception.
[F.No. X.11035/281/2018-DRS]
Dr. MANDEEP K. BHANDARI, Jt. Secy."
21. An order No.PN/206/74/2020/F/F, No.8(74)/2020DP/NPPA/Div.-
II dated 31st March, 2020 is as under:-
"S.O. 1232(E)
In pursuance of Notification No. S.O. 648(E) dated 11th
February 2020 issued by Ministry of Health & Family
Welfare, Government of India whereby Medical Devices
intended for use in human beings or animals have been
notified as Drugs with effect from 1st April 2020; all
Medical Devices shall accordingly be governed under
provisions of the Drug (Price Control) Order. 2013."
Also vide Notification No. 4/2015-2020 New Delhi, Dated
30 April, 2021, it has been notified that effect of the
Notification: Para 2.25 of Foreign Trade Policy, 2015-20
is revised to include import of Oxygen Concentrator for
personal use through post, courier or e-commerce portals
in the list of exempted categories, where Customs
clearance is sought as gifts", till 31 July 2021."
22. An office memorandum dated 29.06.2020 issued by the Ministry
of Chemicals and Fertilizers, National Pharmaceuticals Pricing
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Authority, Department of Pharmaceuticals, Government of India is as
under:-
"File No.20(8)/09/2019/Div.III/NPPA
Government of India
Ministry of Chemicals and Fertilizers
Department of Pharmaceuticals,
National Pharmaceutical Pricing Authority
3rd and 5th Floor,
YMCA Cultural Centre Building,
1, Jai Singh Road, New Delhi
Dated 29th June 2020
OFFICE MEMORANDUM
Subj : Monitoring of maximum Retail Prices of (i)Pulse Oximeter
and (ii)Oxygen Concentrator under PDCO, 2013-Reg.
This is in reference to Notification No. 1232 (E) dated
st
31 March 2020 issued by this Office for regulation of
Medical Devices under Drugs (Prices Control) Order. 2013
read with Essential Commodities Act, 1955 w.e.f. 1st April
2020. Accordingly, Maximum Retail Price of Medical
Devices cannot be increased more than ten percent (10%) in
a year.
2. In order to monitor the price movements of critical
Medical Equipments required in clinical management of
COVID-19, It has been decided to call for MRP details for
the following Medical Devices viz. (1) Pulse Oximeter and
(i) Oxygen Concentrator in the prescribed format.
3. xxx xxx
4. xxx xxx
(Ratan K Khatwani)
Joint Director
E-mail : [email protected]"
23. An Order dated 07.05.2021 issued by the Drug Controller
Department, GNCT of Delhi is as under:-
"GOVERNMENT OF NATIONAL CAPITAL
TERRITORY OF DELHI
DRUGS CONTROL DEPARTMENT
F-I7, KARKARDOOMA, DELHI-110032
E-mail ID [email protected], Phone No. 011-22393703
No.F.52 /DCI HOO/2020/199 Dated 07.05.2021
ORDER
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Sub:-Regarding control over the sale of essential Covid 19 management drugs and ancillary equipments under Drugs Price Control Order Sir
1. Whereas, there are several essential drugs used being used in the clinical management of Moderate and Severe cases of COYID-J9. Therefore, ensuring adequate and uninterrupted supplies of these drugs is absolute necessity to save human lives in Delhi.
2. Whereas there have been some report regarding black marketing of COVID 19 management drugs by unscrupulous elements in the market and there is a need. for immediate enforcement and to keep strict vigil on the market to prevent black marketing.
3. Accordingly all the Inspectorate staff of this department is hereby instructed for keeping close watch over any such clandestine activity and take strict action, if any such case is detected. The assistance of Delhi Police/DM office may be taken so as to ensure coverage of all applicable legal provisions.
4. Further, all the stakeholders viz. Retailer/ Wholeseller/ Distributors of these items are hereby directed not to sell these items over and above the notified price/MRP and also to refrain from dealing in these items in a manner which is not permitted or unauthorized and should not get indulged in what so ever manner, in their black marketing.
Any deviation in this regard will be viewed seriously and stringent action as per law will be initiated against them.
(A. K. Nasa) Head of Office/ Controlling & Licensing Authority"
24. The oxygen concentrator, being a device is covered within the definition of Drug per Section 3 (b) (iv) of the Drugs and Cosmetics Act. Even if we ignore the notification dated 07.05.2021 (supra) at the present moment, being subsequent to seizure as alleged, yet there is a notification dated 11.02.2020 which says device includes an instrument, apparatus, used for treatment, sustaining life etc and an Order dated 31.03.2020 (supra) which says medical device, intending for use in human being W.P.(Crl) No.975/2021 Page 11 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23 shall be governed by the provisions of Drug Price Control order -2013.
Further, an Order dated 29.06.2020 (supra) which warns of increasing MRP of the concentrators, more than 10% a year.
25. Now, the Hon'ble Division Bench of this Court in Venkateshwar Hospital vs. Govt. (NCT Of Delhi) 2021 SSC OnLine Del 1830, had noted:-
"17. Mr. Arora submits that when there is huge shortage of the medicines, the same should not be retained as case property, and the same should be released for use by the patients after ensuring that the same is in usable condition and is genuine. Similarly, for the cylinders, he submits that the same should be put back in circulation for use by the needy patients. He submits that an application was moved before the concerned CMM for release of the said case property. However that application has been rejected on the ground that the District Commissioner is empowered to pass the order under the Essential Commodities Act. Mr. Satyakam points out that while CMM, North has rejected the application for release of the said case property, other CMMs have been passing orders for release. In any event, since the power to pass release orders lie with the District Commissioners, we direct the District Commissioner to pass orders for release of both - the Oxygen Cylinders and the medicines, at the earliest. The released medicines and Oxygen cylinders be made available for use by the Hospitals of the GNCTD as allocated by the Secretary, Health.
18. Whenever any seizure is made of the medicines/Oxygen cylinders, the IOs should immediately inform the concerned District Commissioner about the same, and they should also proceed, without waiting for any further orders, to ascertain the genuineness of the said medicines. They should also ensure that the said case property is kept in refrigerated environment, so that the same does not lose its efficacy and become non-usable. The District Commissioners should proceed to pass orders for release of the same without any delay.
19. We also direct the Delhi Police to immediately release the seized Remdesivir or other Drug used for treating COVID-19, or any Oxygen cylinders, which are seized from W.P.(Crl) No.975/2021 Page 12 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23 the possession of the patients or their attendants, since they would have procured the same only out of desperation, and in need. However, the Delhi Police would be bound to conduct the investigation in the case with the assistance and cooperation of all concerned, which shall be rendered by the public at large. While releasing the case property, it shall be ensured by the Delhi Police that photographs/ copies of the relevant documents are retained, so that the case could proceed before the court concerned."
26. Also in Bram Health Care Private Limited vs. Union of India & Anr W.P.(C) No.4984/2021 per order dated 02.05.2021 the Hon'ble Division Bench had inter alia noted:-
"During the course of hearing, we have been informed that Oxygen gas cylinders, Oxygen flow meters, and medicines required for treatment of COVID-19 disease are being sold in the black market at a much higher price above the Maximum Retail Price (MRP).
We direct the State to ensure that none of the equipments, or medicines used in the treatment of COVID-19 disease are sold at prices above the MRP. Any person found indulging in malpractice of either hoarding the equipments or medicines, or selling the same at prices above the MRP shall be booked, and brought to the notice of this Court for initiating of independent contempt action against all such persons."
27. Thus, to say that respondent acted arbitrarily, or their action has no legal backing is all wrong. The police official when got information about black marketing and hoarding of medical devices (concentrator) and of violation of the law / orders (supra) had acted and seized the material. Now, restricting the orders of the Hon'ble Division Bench in Venkateshwar Hospital (supra) and Bram Health Care Private Limited (supra) only to cylinders and not concentrators would be giving a too narrow interpretation to such order(s).
W.P.(Crl) No.975/2021 Page 13 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:2328. The facts reveal the seizure has been made under Section 102 Cr P C. It gives the power to any police officer to seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence.
29. The seized items were found under suspicious circumstances where individuals were in alleged violation of the Covid-19 lockdown measures imposed at that time, and accordingly, police was authorised to seize the oxygen concentrators lying at the spot. The registration of the FIR was not mandatory for search and seizure under Section 102 Cr P C.
30. If one peruse Section 157(1) Cr PC viz the procedure for investigation and Section 2(h) Cr P C which defines investigation, the following inference can be drawn from its conjoint reading viz a police officer is empowered under Cr PC to investigate upon information received or otherwise, if he suspects the commission of a crime that he is empowered to investigate under Section 156 of the Cr PC, and since the investigation includes collection of evidence hence, it authorizes the Investigating Officer to seize any property for the purpose of the collection of evidence. Unlike Section 156 Cr P C, under Section 102 Cr P C the police is empowered to investigate cognizable cases and the police can seize any property without an FIR.
31. Arguments have been raised qua the alleged irregularities in seizure. Even if it is assumed, there were some irregularities in its procedure to seize, it shall not vitiate the seizure. The only requirement is the Court needs to be careful in scrutinizing the seizure memo, as the law W.P.(Crl) No.975/2021 Page 14 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23 is crystalized over the years viz Pooran Mal v. Director of Inspection (Investigation) (1974) 1 SCC 345 and State of Maharashtra v. Natwarlal Damodardas Soni (1980) 4 SCC 669. A bare perusal of above decisions would show even if there was an irregularity at the time of making a seizure, procedural or otherwise, it would not ipso facto vitiate the seizure. The Courts have consistently held the evidence obtained even through an "illegal" search or seizure will not be excluded or discarded only on the ground that it was obtained through illegal or irregular means. It has been consistently held unless prejudice and miscarriage of justice is pleaded and shown, a mere irregularity shall not result in setting aside of proceedings, or in relevant evidence being discarded.
32. In Commandant, 68 Bn. BSF, Gakulnagar v. Arjun Das (2006) 12 SCC 129 it has been held an irregularity of the procedure is a matter of fact to be decided during trial. Hence, it cannot be the subject matter of current writ petition.
33. Prima facie the act of the petitioner is in violation of an Office Memorandum, Ministry of Chemicals and Fertilizers, Government of India, of dated 29.06.2020 (supra) which had directed the petitioners and others like him, selling oxygen concentrators, to not increase prices of oxygen concentrators by more than 10% of the maximum retail price in a year of the Drugs Pricing Control Order, 2013. Now, all manufacturers / importers were directed to ensure compliance of the provisions of Para 20 of the DPCO failing which action may be initiated for violation of provisions of DPCO read with the EC Act. The DPCO being an order passed under Section 3 of the EC Act any violation thereof is punishable W.P.(Crl) No.975/2021 Page 15 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23 under Section 7 of the EC Act. It was only in compliance with Section 6A (2) of the EC Act and the Order dated 29.4.2021 (supra), as also the directions in Venkateshwar Hospital (supra), a report was rather made to concerned District Magistrate who is now in possession of a majority of the seized oxygen concentrators. Admittedly, the District Magistrate has not been made a party in this writ petition.
34. Thus, a conjoint reading of the FIR, invoices and receipts produced by the petitioner along with the fact that the seized oxygen concentrators were allegedly sold at a huge profit margins in contravention of laws, rules and executive orders pointed out above. The facts show the petitioner was engaged in selling untested oxygen concentrators to people desparate for these devices and at an exorbitant prices through false representations, especially, when the State and the whole country saw a unprecedented surge of covid-19 infections and sever lack of oxygen cylinders and/or concentrators.
35. Lastly, the relief sought qua release of seized oxygen concentrators, is in conflict with the orders passed by the Hon'ble Division Bench dated 29.04.2021 in Venkateshwar Hospital (supra) and also Bram Health Care Private Limited (supra) wherein it is directed whenever any drugs etc. used in treatment of Covid-19 are seized by the authorities or Delhi Police, they shall, without any delay inform the District Magistrate, who shall take the necessary steps to ascertain genuineness of the drugs etc. and pass orders for release of the same before the items seized are rendered unusable; the oxygen concentrators being a lifesaving machine, is covered within the definition of Drug per W.P.(Crl) No.975/2021 Page 16 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23 Section 3(b)(iv) of the Drugs and Cosmetics Act and per notification dated 11.02.2021 (supra) all devises meant for diagnosis, prevention, monitoring, treatment or alleviation of any disease are covered under the definition of Drugs; thus there appears to be no illegality in the act of respondent especially when the State was reeling in acute shortage of drugs, cylinders, concentrators and attendants of patients were running pillar to post, ready to part with their life savings for its purchase.
36. Hence, the investigation being at initial stage, the reliefs sought for in this petition cannot be granted by this Court except the concentrators so seized be put an identification mark(s) and its coloured photographs be kept for future reference, by the respondent.
37. In view of above, the petition is dismissed. Pending application, if any, also stands disposed of.
YOGESH KHANNA, J.
MAY 27, 2021 M W.P.(Crl) No.975/2021 Page 17 of 17 Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:27.05.2021 15:23