Summary: The learned Principal District and Sessions Judge, Dwarka is found to have committed a grave error while disposing of the criminal revision petition filed by the state in the case titled ‘State (Government of NCT of Delhi) vs. Vinay Aggarwal & Anr.’ decided on 08.05.2021 by holding that the magistrate did not err in exercising or assuming jurisdiction in entertaining and releasing the seized oxygen concentrator, for the reason that the oxygen concentrator does not come within the definition of essential commodity under Essential Commodities Act, 1955. It is to be noted that in terms of gazette notification S.O. 648(E) dated 11th February, 2020 issued by the Ministry of Health and Family Welfare, Government of India read with gazette order S.O. 1232(E) dated 31st March, 2020 and Office Memorandum dated 29th June, 2020 issued by the Ministry of Chemicals and Fertilizers, Government of India, it can be safely concluded that with effect from 1st day of April, 2020, the oxygen concentrator as a device by reason of its intended function by such means for specific purpose of alleviation of any disorder, support of a physiological process or otherwise of supporting or sustaining life, is brought within the definition of drugs as notified within sub-clause (iv) of clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940, to be so accorded the status of an essential commodity under Section 2A read with Item No. 1 of the Schedule attached to the Essential Commodities (Amendment) Act, 2006 and shall accordingly be governed under the provisions of the Drug (Price Control) Order, 2013 so that it’s maximum retail price cannot be increased more than ten percent (10%) in a year.

“Injustice anywhere is a threat to justice everywhere. We are caught in an escapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly”–Martin Luther King, Jr. ‘Letter from a Birmingham Jail’ (16 April, 1963)

The tragic story begins to engulf and precipitate the suffocating yet peacefully scary and isolated lives of the citizens during COVID-19 pandemic in utter distress with unanswerable sets of questions, when a judicial order dated 05.05.2021 passed by Ld. Metropolitan Magistrate-04, Dwarka District Courts, Delhi in the case titled as ‘State Vs. Vinay Agarwal Vs. Akash Vashist’ FIR No. 197/21 P.S. Dwarka South comes to fore as being found widely circulated on the social media, by which the life of a common man was put on a toss with breach of enshrined constitutional norms, which in fact was created by the people of this country and was given to themselves, to ensure equality and right to life. The times are harrowing and equally dreadful when the ordinary citizensare found fighting with onerous and unprepared times of Corona Virus (COVID-19) sudden recurrence and surge in securing essential medical supplies and health care access after having experienced shattering and crumbling public and private health infrastructure particularly in the national capital, leading to prioritization of life saving exercise being witnessed as pervasive all across, and not forgetting the people’s continuous mental and physical fight between hunger and health. At such juncture of life with no surety of seeing the light of the day the next morning, with coming of such order from the judicial set-up, unfortunately secures widespread public shame which gets attributed to pious judicial office which is otherwise understood to be no less than a consequent deplorable attack on the foundation of public confidence in the judicial set-up, national unity and collective fight towards COVID-19 pandemic on account of its sheer immorality if not illegality, as people of this country still do not know the legal angles and may not ever be interested too to unfold them in any manner. The people have genuine concerns as well as coeval objections regarding the learned judicial officers, when they feel that a sitting at home, with or without mask, in all comforts of life, progressively and to the much extent, being funded by taxpayers money, hearing no or rather a handful of matters each day, cannot in any manner equate the unmatchable sacrifice of PPE-clad health and sanitation workers working in sweltering heat for disproportionate hours at stretch and with no social security and comforts, to be regarded front line COVID warriors or to be so regarded as exposed to deadly coronavirus in any manner. Mourning to the untimely demise of the learned judicial officers as everyone sincerely do, objectively it stands out that people have come to know through media reports that such learned officers died post receiving medical treatment or health care access, whether proper or improper, obviously to the exclusion of all other unfortunate poor and marginalized ordinary people of this country, regard being had to their proportionate and respective clout and positioning in the system. When the learned magistrate wrote that ‘No useful purpose would be solved to retain the oxygen concentrators in the police malkhana and the same should be circulated back for the use of needy patients.’, nobody could have got an inkling, that needy patients were meant and to be so considered, only the judicial and police officers and their families, as their lives were more important than others on the missing touchstone of fundamental right under Article 14 read with Article 21 of the Constitution of India.

Well the order probably being propelled with bonafide intention on the part of the concerned learned magistrate to help his learned colleagues, their families and others, could not save itself from rightful contentions, doubts, discrepancies and other perversities which came to an indirect brief mention in the order dated 08.05.2021 passed by the learned Principal District & Sessions Judge, District South-West, Dwarka in the matter titled as ‘State Vs. Vinay Aggarwal and Akash Vashisht’ CR/76/2021 pursuant to filing of criminal revision petition as preferred by the state against the order dated 05.05.2021 passed by the Ld. Metropolitan Magistrate-04, Dwarka District Courts, Delhi in the case titled as ‘State Vs. Vinay Agarwal and Akash Vashist’ FIR No. 197/21 P.S. Dwarka South, reflecting and pointing towards the issue of having caused more systemic damage than good while setting aside the order and recording specifically vide para no. 8 that:

“8. A perusal of the impugned Order reveals that Ld. MM was greatly influenced by the fact that two Judicial Officers had lost their lives in battle with Covid 19. One of them being his own brother colleague with who he shared the corridors. As I pen down this order, judicial fraternity has lost one more officer, who also succumbed to be Covid-19 virus. Ld. MM in his zeal to provide life saving machines to front line workers i.e. the Delhi Police and to his judicial fraternity was so dazzled that he forgot that a judge on account of the office he occupies has to act & behave like a self-less, dispassionate saint. He has to rise above the interests of self and his ilk. Benevolent and well-intended, his act may be; the same cannot breach the Constitutional provisions of equality. On the touchstone of these morals & principles of law, Ld. MM seems to have faltered. Impugned order dtd. 5.5.2021, thus, is not sustainable and is set aside.”

– emphasis supplied

Such operative part of the order should have put the controversy to rest by now and must have proved to be a face saver for many, but a perusal of the entire order dated 08.05.2021somehow brings few new palpable issues and also some other grave errors, which have woefully continued the saga initiated by the learned magistrate, for all wrong reasons and onto the wrong path. The underlying genesis remains in the current situation of having misinformation, fake news, misleading and wrong messages, incomplete or old information and much more being poured into the minds and knowledge of the common man and the same is found to have infected the judicial order as well, although as appears, the same at the behest of the government itself which is found oblivious of the essential information required to regulate the entire governance and public affairs in these devastating times of unmanageable pandemic. The Hon’ble Court which has decided the referred criminal revision petition under Section 397 of the Code of Criminal Procedure, 1973 (as amended from time to time and as in force), unfathomably did decide the petition at the back of the respondents and even in the absence of the concerned Investigating Officer, blatantly violating the principles of natural justice, even while keeping all silence on deciding the oral request of the learned Additional Public Prosecutor, which is recorded in para no. 1.2 of the said order, the same being reproduced herein below for ready reference:

“1.2 Sh. V.K. Swami, Ld. Addl. PP for the State has submitted that notice of the present revision petition to the respondents i.e. the accused persons, from whose custody the articles were seized, can be dispensed with, at this stage.”

– emphasis supplied

The Hon’ble Court must have valued or at least should have taken the decision as to why the principles of natural justice be given a go by, as far as respondents were concerned since the entire state action perpetrated through the police generally and approved or disapproved by the judicial office as a necessary consequence regarding the conduct of raid, seizure of essential commodities and expropriation for self and connected use, concerns only an allegation of hoarding and black-marketing underlying therewith which should assume to prima facie regard or show innocence of the accused until proven guilty, and may, as the people are afraid to not hope so, prove out ultimately otherwise, later in the trial if not being by discharge simplicter then. The series of events at this time, may project such agencies and their officers to be heroes, even if they in the garb of saving lives, conduct illegal raids and foist inapplicable charges and get such straight sanction of the magisterial or revisional/appellate judicial authority, whether or not for self or connected use. The following relevant provisions of the Essential Commodities Act, 1955 post amendment through Essential Commodities (Amendment) Act, 2006 are significant to comprehend the importance of ensuring due representation of the respondents, if so elected by them post receipt of notice, in such legal proceedings, both before the learned magistrate exercising original jurisdiction as well as the Hon’ble Sessions Court while exercising revision powers:

Section 6A.   Confiscation of essential commodity.

(1) Where any [essential commodity is seized in pursuance of an order made under section 3 in relation thereto, a report of such seizure shall, without unreasonable delay, be made to the Collector of the district or the Presidency town in which such essential commodity is seized and whether or not a prosecution is instituted for the contravention of such order, the Collector may, if he thinks it expedient so to do, direct the essential commodity so seized to be produced for inspection before him, and if he is satisfied] that there has been a contravention of the order may order confiscation of–

………………………….

…………………………..

Provided further that in the case of any animal, vehicle, vessel or other conveyance used for the carriage of goods or passengers for hire, the owner of such animal, vehicle, vessel or other conveyance shall be given an option to pay, in lieu of its confiscation, a fine not exceeding the market price at the date of seizure of the essential commodity sought to be carried by such animal, vehicle, vessel or other conveyance.

(2) Where the Collector, on receiving a report of seizure or on inspection of any essential commodity under sub-section (1), is of the opinion that the essential commodity is subject to speedy and natural decay or it is otherwise expedient in the public interest so to do, he may-

………………………………

(3) where any essential commodity is sold, as aforesaid, the sale proceeds thereof, after deduction of the expenses of any such sale or auction or other incidental expenses relating thereto, shall–

………………………………

(c) where in a prosecution instituted for the contravention of the order in respect of which an order of confiscation has been made under this section, the person concerned is acquitted, be paid to the owner thereof or the person from whom it is seized.

– emphasis supplied

At the very outset, the author believes that it was the utmost responsibility of the Hon’ble Court to have sought the appearance of the Investigating Officer to know and assess the status of the temporary or permanent disposal of the 12 oxygen concentrators so seized then, being the case property, before hearing or otherwise disposing the matter, to prevent the infructuous nature of the plea or of the judicial relief to be accorded to the revisionist, being the state itself, but the same was utterly left or missed for eternity. The matter proceeded ahead with reproduction of only Section 6E of the Essential Commodities Act, 1955 titled as ‘Bar of jurisdiction in certain cases’, while other provisions were given a complete miss altogether and the same act was found extended in a strategic or twisted form to the observations and directions of the Hon’ble High Court of Delhi in the matter W.P. (C) No.-5073/2021 titled as Venkateshwar Hospital Vs. Govt. of NCT & Ors. W.P. (C) No.-5073/2021 vide order dated 29.04.2021, being reproduced therein. Although Section 6Eof the Essential Commodities Act, 1955 clearly bars the jurisdiction of any Court, tribunal or other authority other than the District Collector when such essential commodity is seized pending confiscation under section 6Aor as the case may be, the State Government concerned under section 6C thereof, the interesting issue is the need to have correct and proportionally complete reproduction of the applicable paras from the Venkateshwar Hospital’s case (supra) to attempt to provide right perspective, which is provided herein below:

“16. Mr. Kawal Jeet Arora, learned Secretary, DSLSA is present. He states that the Delhi Police has made seizures of Remdesivir Drug, as well as Oxygen Cylinders upon their conducting raids on premises of persons alleged to be hoarding, and selling these essentials in black market. He submits that as on 27.04.2021, about 200 Oxygen Cylinders and 279 vials of Remdesivir have been seized.

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 nonusable. 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 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.”

– emphasis supplied

On this count of selective non-reproduction of the order of the Hon’ble High Court of Delhi, the order dated 08.05.2021 passed by the learned Principal District & Sessions Judge has created a skewed understanding of the applicable law, besides the similar approach being found adopted in decision making, which is otherwise to be regarded inappropriate. Nevertheless, the order was destined to pass during the day in the late evening as found later and it proceeded with the most momentous issue as to whether the seized articles viz. Oxygen Concentrators were notified as such to be an Essential Commodity, although the said issue to the limited knowledge of the author might not have been raised earlier in any other judicial or public forum as such. Unimaginably, the same Delhi Police being the investigating agency which is otherwise found registering cases under Essential Commodities Act, 1955, instructed the learned prosecutor through the concerned Investigating Officer, that no such notification was available and they opened their empty bags at the bare risk of public scrutiny and damage to ongoing investigations. Still to the credit of the learned prosecution which brought to the notice of the Hon’ble Court, one OM dtd. 29.06.2020 issued by GOI seeking to monitor the Maximum Retail Price of Medical Devices, including Oxygen Concentrators, solely relying upon the said research based submission, the Hon’ble Court got satisfied without seeking or making bonafide efforts to secure the complete information and factual status, made the following observations vide para nos. 5 and 6 in the order, the same being reproduced herein below for ready reference:

“5. …………………………….This OM, does not, in any case, declare Oxygen Concentrators to be Essential Commodity. In the aforesaid facts & circumstances, when no notification declaring the Oxygen Concentrators to be essential commodity has been placed on record by the IO; evidently the provisions of Sec.-3/7 of the Essential Commodities Act are not attracted.IO was probably clear of this position, that is why the application for release of the case property was moved by him before the Ld. MM and not before the District Magistrate, as is the mandate of Sec.-6E of the Essential Commodities Act.

6. Thus, the seized articles having not been notified to be essential commodity, reference to the provisions of Essential Commodities Act or the procedure prescribed therein for release of the case property, is misplaced. The trial court has, thus, not erred in exercise of the jurisdiction, so invoked by the IO. Order passed by Ld. MM on this score cannot be said to be illegal.

– emphasis supplied

What principally did the Hon’ble Court decide was that the oxygen concentrator was not notified to be an essential commodity, the jurisdiction of the learned Metropolitan Magistrate did not get barred by the implications of Section 6E of the Essential Commodities Act, 1955 and acknowledged that the Investigating Officer was clear of the prevailing legal position of having not preferred to make an application for releasing of case property before the District Collector (Deputy Commissioner/District Magistrate), while it overlooked to appreciate the fact that the Delhi Police in its entirety was unclear of the said legal position before conducting the raids and registering the First Information Reports (F.I.R.s) taking assistance of the same Essential Commodities Act, 1955.Since by then, the oxygen concentrator was held not to be an essential commodity, the author finds the famous quote of Aldous Huxley truly connecting and applicable concerning that, “Facts do not cease to exist because they are ignored” and therefore it is to be noted that in terms of gazette notification S.O. 648(E) dated 11th February, 2020 issued by the Ministry of Health and Family Welfare, Government of India read with gazette order S.O. 1232(E) dated 31st March, 2020 and Office Memorandum dated 29th June, 2020 issued by the Ministry of Chemicals and Fertilizers, Government of India, it can be safely concluded that with effect from 1st day of April, 2020, the oxygen concentrator as a device by reason of its intended function by such means for specific purpose of alleviation of any disorder, support of a physiological process or otherwise of supporting or sustaining life, is brought within the definition of drugs as notified within sub-clause (iv) of clause (b) of Section 3 of the Drugs and Cosmetics Act, 1940, to be so accorded the status of an essential commodity under Section 2A read with Item No. 1 of the Schedule attached to the Essential Commodities (Amendment) Act, 2006 and shall be accordingly governed under the provisions of the Drug (Price Control) Order, 2013 so that it’s maximum retail price cannot be increased more than ten percent (10%) in a year. The relevant and supporting extracts of notifications are reproduced herein below for ready reference:

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:―

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.

– emphasis supplied

MINISTRY OF CHEMICALS AND FERTILIZERS
(Department of Pharmaceuticals)
(NATIONAL PHARMACEUTICAL PRICING AUTHORITY)
ORDER
New Delhi, the 31st March, 2020

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 inhuman beings or animals have been notified as Drugs with effect from 1st April 2020; all Medical Devices shall accordingly be governed under the provisions of the Drug (Price Control) Order, 2013.

[PN/206/74/2020/F/F. No. 8(74)/2020/DP/NPPA/Div.-II]
ALOK RANJAN, Asstt. Director

– emphasis supplied

File No. 20(8)/09/2019/Div.lIl/NPPA
Government of India
Ministry of Chemicals & Fertilizers
Department of Pharmaceuticals
National Pharmaceutical Pricing Authority
OFFICE MEMORANDUM

Dated: Dated: 29th June, 2020

Sub: Monitoring of Maximum Retail Prices of (i) Pulse Oximeter and (ii) Oxygen Concentrator under DPCO, 2013-reg.

This is in reference to Notification No. 1232 (E) dated 31st 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.

………………………………………………………

………………………………………………………

(Ratan K. Khatwani)
Joint Director

– emphasis supplied

The factual position cannot be denied and on this count as well as giving logical orientation to the prevailing circumstances in the country, one could not have strongly held the oxygen concentrator not to be an essential commodity, but the order within next few paragraphs regards the directions of the Hon’ble Court of Delhi in Venkateshwar Hospital’s case (supra) as mere observations, however with a track change by noting that the concerned Investigating Officer ought to have immediately informed the District Magistrate and placed the seized machines at the disposal of District Magistrate for suitable utilization during the period of investigation/ trial, while disregarding its own recorded reason of holding the legal position vis-à-visthe noted observations (as against the understood ‘directions’). It may be noted herein, that the directions and/or observations of the Hon’ble Courts are to be understood in their context and in totality and not as disconnected and extracted disjoints pieces so as to derive or conclude something against the legal position in any manner.

The order dealing with the second aspect of behavioural concerns of a learned officer presiding a judicial office, found itself questionable on the touchstone of the famous words of Aristotle i.e. “Law is reason, free of passion” on account of previously held reasoning, although it did rightfully note that, “a judge on account of the office he occupies has to act & behave like a self-less, dispassionate saint. He has to rise above the interests of self and his ilk. Benevolent and well-intended, his act may be; the same can-not breach the Constitutional provisions of equality.”, but otherwise failed in co-jointly and authoritatively hold the law for its doubtful implementation, by passing a mixed direction in the following terms, as recorded in para no. 9 of the order, the same being reproduced herein:

“9. IO shall be, within his rights to move a fresh application before the appropriate authority viz. the District Magistrate, in terms of orders passed by Hon’ble High Court in Venkateshwar Hospital’s case (supra) or on the basis of notification, if any, declaring the seized articles to be essential commodity. Needless, to say he must act without wasting time.”

– emphasis supplied

The decision might be succour for the state and probably for all others, but it is important to know as to who shall really be accountable for the wrong message it has conveyed to the public at large, and as to how the agencies could be misinformed or otherwise remain oblivious to the factual position. Although there are many precedents to add which may be regarded rhetoric at this juncture, it is humbly reproduced what Lord Macmillan had famously observed in Liversidge v Anderson, “The fact that the nation is at war is no justification for  any relaxation of the vigilance of the courts in seeing that the law is duly observed.”, and also what the political thinker Edmund Burke said, that judges are trained so that they can detect misgovernment, and especially, “sniff the approach of tyranny in every political breeze”, however the breeze and message along with that, has sadly come out from our own subordinate judicial set-up, due to haste and passionate exercise of powers. The message that oxygen concentrators are not essential commodities at one end clearly, while leaving the same open ended at the last, being put in the minds of the ordinary citizens of this country, is frightful and disintegrating for our nation. The people of this country who still blindly believe in all media reports and very miniscule remain interested to actually peruse and understand the orders, majority of which being written in English language caters only to a few, have been led astray dividing us across individual segments and guiding us to think about oneself alone. The general tendency which has developed in general now is to think about oneself as the state has virtually being found failed and as believed, whoever has whatever means, would try to stock oxygen cylinder, oxygen concentrator, medical kit or apparatus, life-saving drugs and what not, since no one wants to die and yes, they know that they are not supposedly the privileged or protected class of our society. Since the present times are equivalent to a war time, everything will become fair even it leads to culpable criminality as the intention would remain good to protect oneself and to survive this devastating time.

Since a detailed protest letter was submitted before the Hon’ble High Court of Delhi on 08.05.2021 concerning the order passed by the learned magistrate, in fact just before the passing of order by the learned Principal District & Session Judge, Dwarka Court on the same date as being informed through the reply of the learned Registrar General, the author still sincerely and vehemently objects to the line written in para no. 8 of the order i.e. “As I pen down this order, judicial fraternity has lost one more officer, who also succumbed to be Covid-19 virus”, which is nothing less than the surplusage again, as it gives the same momentum initiated by the learned magistrate, and is found carried forward herein, though unduly and without even acknowledging the loss of thousands or even lakhs of lives of common citizens across the country. My closing remark with this decision, partly agreeing to the setting aside of the order of Ld. MM as a special exclusion herein, in the words of famous fictional character of Harvey Specter on the USA Network series Suitsthat, “I could agree with you, but then we’d both be wrong.” Thus, Oxygen Concentrator is an essential commodity for all purposes, in the humble opinion of the author.

*****

About Author: Author MOHIT KUMAR GUPTA is an advocate at High Court of Delhi and District Courts-Delhi NCR. He primarily practices in the areas of Access to Justice, Access to Information (RTI), Criminal Laws, Child Rights, Education and Consumer Laws and engages in public policy matters. He can be reached at [email protected]

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