Bombay High Court
Registrar (Judicial), High Court Of ... vs The State Of Maharashtra And Others on 13 May, 2021
Author: B. U. Debadwar
Bench: Ravindra V. Ghuge, B. U. Debadwar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL SUO-MOTO PUBLIC INTEREST LITIGATION NO.2 OF 2021
REGISTRAR (JUDICIAL), HIGH COURT OF BOMBAY, BENCH AT
AURANGABAD
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
WITH
CRIMINAL APPLICATION NO.1060 OF 2021
IN CRSMP/2/2021
DATTATRAYA RADHAKISAN GORDE
VERSUS
THE REGISTRAR (JUDICIAL) AND OTHERS
WITH
CRIMINAL APPLICATION NO.1078 OF 2021
IN CRSMP/2/2021
GANESH VAIJNATHRAO MOHEKAR
VERSUS
THE UNION OF INDIA AND OTHERS
WITH
CRIMINAL APPLICATION NO.1093 OF 2021
SANDIPAN ASARAM BHUMARE
VERSUS
THE REGISTRAR (JUDICIAL) AND OTHERS
...
Advocate for the Petitioner : Shri Bora Satyajit S., appointed As Amicus
Curiae.
Chief Public Prosecutor for the Respondents/ State : Shri D.R. Kale
Advocate for the Applicant in 1060/2021 : Shri Yuvraj V. Kakde
Advocate for the Applicant in 1078/2021 : Shri G.V. Mohekar, advocate in
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person.
Advocate for the Applicant in 1093/2021 : Shri S.S.Thombre
Advocate for the Respondent/ Union of India : Shri A.G. Talhar
Advocate for the R/8 Aurangabad MC : Shri S.G. Chapalgaonkar
Advocate for the R/20 Jalgaon MC : Shri S.R. Patil
Advocate for the R/22 Ahmednagar MC : Shri K.N. Lokhande
Advocate for the R/23 Parbhani MC : Shri D.M.Shinde
Advocate for the R/25 Nanded MC : Shri R.K. Ingole Patil
...
CORAM : RAVINDRA V. GHUGE
&
B. U. DEBADWAR, JJ.
DATE :- 13th May, 2021 Per Court :-
Criminal Application No.1078/2021
1. This matter was heard for some time.
2. We appreciate the efforts put in by the Government insofar as the vaccination programme is concerned. We are equally conscious that those citizens, who have received their first vaccination dose, have to be treated as "on priority" insofar as administering the second dose within the period prescribed by the medical protocol is concerned. We also appreciate that the Government intends to vaccinate the citizens who are 45 plus and the State is likely to take an urgent decision to the extent of a ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *3* 901cspil2o21 vaccination programme for citizens between 18 to 45 years of age.
3. The learned advocate/ applicant-in-person desires to withdraw this application.
4. This Criminal Application No.1078/2021 is, therefore, dismissed as withdrawn.
Criminal Application No. 1093/2021
5. It is submitted by advocate Mr.Thombre on behalf of the Applicant Shri Bhumare that he is the Minister for Employment Guarantee Scheme (EGS) and Horticulture, State of Maharashtra. He was not aware as to whether, any ceremony was arranged on 07.05.2021 in Devgaon village, Taluka Paithan. He had no idea that there was any function arranged. He had reached the village casually for a routine visit. He was surprised by the collection of villagers. He had no intention of violating the lock-down restrictions. He tenders an apology for having participated in the functions on the said date. He had a desire to ensure that the various EGS schemes are implemented so that the unemployed persons would get work under the EGS.
6. The learned Chief Public Prosecutor submits that as the Honourable Minister has tendered an apology to the Court, there is no cause for registering an offence.
7. We find that there is more to see than what meets the eye. It ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *4* 901cspil2o21 is difficult to believe that an Honourable Minister, without declaring his visit to his constituency, had casually visited the place and suddenly there was a gathering of crowd, suddenly a function started and suddenly a Bhoomipujan ceremony was also performed, as if it was a mighty coincidence that the Honourable Minister reached his constituency and a flood of ceremonies were performed. It is quite obvious to us that such a coincidence is impossible. More so, in view of the fact that the Gramsevak by name Mr.Vishal Subhash Wankhede lodged an FIR against five persons stating therein in clear words that he had received a phone call from the Honourable Minister's office on 04.05.2021 that the Honourable Minister desired the Bhoomipujan ceremony at the Primary Health Centre at Mauji Devgaon. This clearly indicates that the Honourable Minister, by his application before us, has attempted to create an eyewash.
8. In these circumstances and in the light of the provisions of the Criminal Procedure Code, we cannot entertain this Criminal Application No. 1093/2021 and we do not accept the unconditional apology of the applicant Shri Sandipan Asaram Bhumare. Accordingly, Criminal Application No.1093/2021 is disposed off.
Criminal Application No.1060/2021
9. Similarly, we are disposing off Criminal Application No.1060/2021 filed by Mr.Dattatraya Radhakisan Gorde. If he has any ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *5* 901cspil2o21 grievance about the acts and violation of lock-down restrictions committed by the Honourable Minister Shri Bhumare, he would be at liberty to record his statement with the concerned Police Station in FIR bearing Crime No.0134/2021 and the SHO of the said Police Station shall follow the due procedure laid down under the Criminal Procedure Code and investigate into the matter in the light of the law laid down by the Honourable Apex Court in Lalita Kumari vs. Government of U.P. and others, (2014) 2 SCC 1 (a Five Judge Bench) . Thereafter, if Mr.Gorde is dissatisfied by the manner of investigation, he is at liberty to avail of a remedy as is permissible in law.
Criminal Suo Moto PIL No.2/2021 Action against ACP (Traffic)
10. Insofar as the conduct of the Police Officer Shri Suresh Eknath Wankhede is concerned, the learned Chief Public Prosecutor has stated, on instructions from the officer who is present in the Court, that an unconditional apology is tendered since he had inadvertently committed a mistake of not gathering the import of our order dated 26.04.2021 in connection with the compulsory use of helmets. It is further stated that he withdraws all explanations tendered before the Court vide his affidavits X- 4 and X-7. It is further submitted that he would personally, in his capacity of being the ACP (Traffic), monitor the compulsory use of helmets. He ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *6* 901cspil2o21 would voluntarily deposit an amount of Rs.21,000/- in the office of the District Collector to be utilized towards the covid treatment programme.
11. We have called upon the learned Amicus Curiae to express his view on the above submission of the said officer. He states that a warning may be issued to the concerned officer and his apology and statement may be accepted. The learned ASGI is non committal and submits that the Court may pass an appropriate order. The learned Advocates Shri S.G. Chapalgaonkar, Shri R.K. Ingole Patil, and Shri S.R. Patil, representing the Aurangabad, Nanded Waghala and Jalgaon City Municipal Corporations, jointly submit that cautioning the police officer and accepting his statement would be appropriate.
12. We are conscious of the fact that the fear of contempt, instead of initiation of the contempt of court proceedings, would suffice when the person having faltered is sincere in his apology. The learned advocates for the respondents as well as the learned Amicus Curiae are united in submitting that the said police officer has a short duration of about nine months to his superannuation and in his entire career of about 32 years, he has not been subjected to any disciplinary action and has been awarded with meritorious service medals.
13. We are, therefore, warning the concerned police officer to ensure that henceforth he would make every effort to understand the orders of the Court and implement them. We also accept his statement ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *7* 901cspil2o21 that he would deposit an amount of Rs.21,000/- (Rupees Twenty One Thousand), towards the covid treatment programme, within four weeks with the District Collector's Office at Aurangabad. We, therefore, close this issue.
Ambulance Service for rural population.
14. The learned Chief Public Prosecutor has placed before us a chart setting forth details as regards the availability of vehicles being utilized as ambulances. The State owned ambulances as well as those provided by the NGOs are also mentioned. The rates to be charged for such services are also mentioned. On page 2 of the chart, details as regards the Health Department of Maharashtra having supplied new ambulances as on 10.05.2021, are also mentioned. We are taking the said chart on record to be marked as X-8 for identification.
15. It is further submitted on behalf of the respondents that new vehicles are likely to be received from the State so as to be utilized as ambulances which would be transporting patients from rural areas to such places where the covid treatment facility is available.
16. Shri Chapalgaonkar and the learned Chief Public Prosecutor submit that every Primary Health Centre has an ambulance. So also, those ambulances mentioned in X-8, have specific drivers, whose telephone numbers are intimated to the Auxiliary Nurse Midwife (ANM), Asha ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *8* 901cspil2o21 Workers and Multipurpose Health Workers (MHW). The Asha workers and MHWs are available in each village, who have details of ambulances available at the nearest point. They assist the villagers to transport covid- 19 patients for treatment to the covid facility. The State is doing it's best to ensure that not a single villager is required to use a bullock cart or any other vehicle which would be unworthy to carry a covid patient, insofar as the rural areas are concerned.
17. Considering the news reports that the drivers of some ambulances are arrogant, are drunkards, over charge relatives of patients, etc., we direct the respondents to ensure that the drivers without serious vices are deployed on such ambulances and none of the drivers should be of such character that they would extract/ over charge money from the relatives of the patients. They shall keep the record of persons transported, shall account for the amount that has been charged in accordance with the details set out in X-8 and shall maintain the vehicles. Any errant driver of such ambulances provided by the State, shall be dealt with strictly and those drivers deployed on ambulances belonging to the NGOs, in the event of misbehaviour, would make the NGO liable for deregistration.
18. The learned Chief Public Prosecutor submits that the ambulances are available upon dialing 108 and 102 numbers. However, the Government does not have vehicles which are idle or of such type that ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *9* 901cspil2o21 they could be utilized as ambulances.
19. We appreciate the measures adopted by the State Government in the light of X-8 and we would request the respondents to update the Court on every date of hearing as regards the facility of ambulances being made available in the rural areas.
Status as regards supply of oxygen
20. On the last date, an issue as regards supply of oxygen was raised before us. Today, the Divisional Commissioner of Aurangabad Division Shri Sunil Kendrekar is present before the Court. With the leave of the Court, he has tendered two communications addressed by him to the Commissioner, Food and Drugs Administration, Maharashtra State, Mumbai on 09.05.2021 and an earlier communication addressed to the Principal Secretary, Public Health Department, Mantralaya, Mumbai dated 30.04.2021. Since we desired accurate information about the need of oxygen in the Aurangabad division, consumption of oxygen and the actual supply of oxygen, that we have permitted the Divisional Commissioner to address the Court considering the intricate issues involved. Since he was referring to the details set out in his communications mentioned above, we called upon the Chief Public Prosecutor to supply us the copies of the said communications as they contain details of the demand, supply and use of oxygen. Upon being supplied with the above mentioned two ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *10* 901cspil2o21 communications (a total of 7 pages), we have taken the same on record and marked "X-9" collectively for identification.
21. It appears from the submissions of the Divisional Commissioner and the learned Chief Public Prosecutor that until March, 2021, the supply of oxygen was approximately 160 Metric Tons (MT). As the severity of the virus infection escalated and the patients from surrounding places like Nashik, Ahmednagar, Jalgaon, Dhule, Nanded and other districts were being sent to Aurangabad, the local administration started grappling with the supply of oxygen from around 11.04.2021. The oxygen supplied to Aurangabad is utilized for catering to the need at Jalna, Parbhani, Hingoli, Nanded, Latur, Osmanabad and Beed. The situation saw a growth in demand for oxygen as patients from Nashik, Ahmednagar, Dhule, Jalgaon, Nandurbar, Washim, Buldhana, etc. in the State of Maharashtra, Bidar in the State of Karnataka and surrounding districts of Telangana, started traveling to Aurangabad for treatment. Today, the need of oxygen for the Aurangabad Division has grown to 250 MT per day, out of which, 32 MT is manufactured locally by various facilities installed by the hospitals and industries. Therefore, 218 MT liquid medical oxygen is required to be supplied per day. Earlier oxygen was supplied from Bellary, which has now been discontinued in view of the order passed by the Karnataka High Court for increasing supply within the State of Karnataka and the said order has been sustained by the ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *11* 901cspil2o21 Honourable Apex Court.
22. It is further submitted that at least 10 MT oxygen is necessary as a buffer stock taking into account the unpredictable fluctuation in the number of patients. On an average, 10 litres of oxygen per minute per patient is required and in some cases where the patient faces a threat of death, the demand could even increase to 50 litres per minute per patient. A tanker normally contains 18 MT oxygen. Due to the turn around period, leakage resulting in wastage and some other climatic reasons, a quantity of 16 MT is actually delivered. The new variant of the virus occupies the lungs within a period of two to three days and the HRCT score suddenly skyrockets putting the life of the patient in serious danger, unlike the variant in the first wave where it could take about 6 to 8 days to occupy the lungs, prior to which the treatment could be started and the patient would recover with less quantity of oxygen. The new variant has put forth a serious challenge to medical science and as it rushes into the lungs of a patient within two to three days, more quantity of oxygen is required and at times, requiring a longer duration of hospitalization by occupying an oxygen bed. There have been instances where the superspecialty hospitals like MGM and Kamalnayan Bajaj, have faced a situation of the oxygen supply having exhausted.
23. When called upon to explain further, we are informed that the State Government is making an effort to acquire oxygen from Jamnagar, ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *12* 901cspil2o21 Gujarat State and Angul, Orissa State for jacking up the supply of oxygen.
24. We have gone through the two communications at X-9, which are in Marathi, addressed to the Commissioner, Food and Drugs Administration and the Principal Secretary, Public Health Department. The learned Amicus Curiae submits that some of the newspapers have reported the shortage in oxygen supply. He prays that this Court should issue directions to ensure that the supply of 218 MT of oxygen is restored as against the supply of 187 MT, which further suffers a leakage of 7 MT due to the turn around time, making it 180 MT. The turn around time involves the transportation of empty specially manufactured oxygen container tankers for filling up at the place of supply of oxygen at Jamnagar and Angul and the said tankers being delivered to the Aurangabad Division, thereby requiring about 7 days and in this period, there could be loss of large number of lives due to shortage of oxygen.
25. From the material placed before us and the submissions of the learned Amicus Curiae, the Divisional Commissioner and the learned Chief Public Prosecutor, it is apparent that oxygen is an extremely important part of the treatment against the covid infection. We have learnt that this Court at Goa has taken a serious note of the death of 26 patients due to non supply of oxygen. We have also learnt from various newspaper reports that the Delhi High Court had also ordered supply of specific quantity of oxygen in view of it's shortage leading to several deaths and the ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *13* 901cspil2o21 Honourable Apex Court having passed orders to ensure such supply. There can be no debate that, notwithstanding the adequate supply of injections (Remdesivir, Virafin, etc.) and the assistance of doctors, any treatment would be a futile exercise if the supply of oxygen is inadequate, as there is no dispute that non supply or less supply of oxygen to a patient is likely to prove fatal.
26. We have been apprised by the Divisional Commissioner that the administration has interacted with doctors and has apprised them of the need of use of optimum oxygen quantity so as to avoid unnecessary excessive supply of oxygen to a patient, which in itself is likely to be life threatening. Presently, on account of the severity of the infection due to mutations, the number of patients has grown. Oxygen is wasted if there is lack of proper monitoring of it's supply to the patients as the patients remove masks while going to the washroom, sometimes fiddle with the nobs of the cylinder resulting in leakage or excessive supply. The doctors have been advised to monitor such supply and pressure of oxygen and also use BiPAP machines so as to ensure optimum use of oxygen and eliminate wastage. The Divisional Commissioner is candid in submitting that, over a period of time, if it is found that oxygen, over and above the buffer stock of 10 MT per day, is available with the division, the same could also be returned to the State. The administration has initiated steps to advise the industrialists to manufacture oxygen and the response has been ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *14* 901cspil2o21 encouraging.
27. We do realize that there is a pressing need for oxygen and there have been news reports informing that several patients and their relatives have been demanding oxygen in view of the shortfall. In the first order that we had passed on 22.04.2021, we had noted the concern voiced by the Divisional Commissioner, reported in daily "Sakal" dated 20.04.2021 that the private hospitals are directed to erect their oxygen generation plants. Daily "Lokmat" has reported on 20.04.2021 that due to disruption in oxygen supply, the relatives of corona patients were advised to seek discharge from such hospitals who suffered lack of supply of oxygen so as to approach another hospital, which had proper oxygen supply.
28. We find from X-9 that the Divisional Commissioner had realized the seriousness of shortage of oxygen and had initiated proactive steps vide the two communications at X-9, pleading to the Commissioner, Food and Drugs Administration and the Principal Secretary, Public Health Department to restore the supply of 218 MT of oxygen per day. We also find that these two authorities, may have tried to restore the supply, but have been unable to achieve the same till today.
29. We are convinced that the supply of 218 MT of oxygen per day is necessary keeping in view the need of the 12 districts (amenable to the jurisdiction of this Bench) and of Nashik, Buldhana, Yeotmal, Washim, ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *15* 901cspil2o21 Nandurbar districts from the State of Maharashtra. We appreciate the statement of the Divisional Commissioner that no hospital and no doctor can morally refuse to admit patients from the districts outside the eight districts comprising of the Aurangabad Division as it is the duty of the hospitals and doctors to save human lives. The rise in demand of oxygen to 218 MT per day is a result of patients having traveled to hospitals in Aurangabad from adjoining districts and adjoining States. Patients seeking treatment after the ailment has worsened is also an important reason for rise in consumption of oxygen. Hundreds of cylinders of oxygen, accounting for 25 MT are supplied from Aurangabad to places like Malegaon, Chalisgaon, Buldhan, Washim, Dondaicha, Solapur, Bidar, etc., every day.
30. We, therefore, with an intention of saving lives of patients, which could be threatened due to shortage of oxygen supply, direct the Secretary, Medical Education Department, who has been given the charge of the Food and Drugs Department of the State of Maharashtra to monitor the supply of oxygen, to ensure the supply of 218 MT of oxygen per day to the Aurangabad Division. We expect that the continuous supply of 218 MT oxygen per day is commenced at the earliest and preferably within a period of 48 hours so as to ensure that there is no loss of life only on account of inadequate supply of oxygen, which has been termed by the Honourable Apex Court in one of it's orders recently passed, that this is ::: Uploaded on - 13/05/2021 ::: Downloaded on - 14/05/2021 00:03:19 ::: *16* 901cspil2o21 violative of Article 21 of the Constitution of India.
Public gathering/ functions
31. We have already directed in our order dated 12.05.2021, in the light of clause 10 of the order of the State Government dated 13.04.2021 that all religious, social, political and cultural functions are prohibited during the lock-down period, which has now been extended upto 31.05.2021. Needless to state, this would also be a mandate as against any agitation and the same restrictions would be continued till the State comes out with a further circular.
32. Stand over to 19.05.2021 (Wednesday) at 11:00 AM.
kps (B. U. DEBADWAR, J.) (RAVINDRA V. GHUGE, J.)
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