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IN THE HIGH COURT OF DELHI
Yogesh Khanna, J.
Matrix Cellular (International) Services Limited - Appellant
Versus
State (NCT of Delhi) - Respondent
W.P.(Crl.) 975 of 2021
Decided On : 27-05-2021
Seizure of oxygen concentrators is upheld as legal under the Essential Commodities Act and Epidemic Diseases Act, despite procedural irregularities, due to the nature of black marketing during a health crisis.
Headnote:(A) Essential Commodities Act, 1955 - Sections 3 and 7 - Epidemic Diseases Act, 1897 - Sections 2, 2A, and 3 - Illegality of seizure of medical devices - Seized oxygen concentrators were initially marketed at exorbitant prices during pandemic and were involved in black marketing - Court affirmed that police can seize property under Section 102 CrPC during investigation without prior FIR, emphasizing the importance of statutory definitions in determining regulated items. (Paras 28, 36)
(B) Judicial Review - The legality of administrative action - Court reiterated that errors in procedural aspects do not invalidate the seizure unless prejudice is shown. (Paras 31)
Facts of the case:
The petitioner sought the release of oxygen concentrators and associated medical equipment seized under FIR for black marketing during COVID-19. It was contended that the seizure was illegal since the items were not regulated and no authorization was provided under relevant laws in effect at the time of seizure. The respondent acted to prevent black marketing amidst a healthcare crisis.
Findings of Court:
The Court found the seizure legal due to suspicion of illegal sales during pandemic conditions and emphasized the role of District Magistrate in such investigations.
Issues: The main concerns were the legality of the seizure of oxygen concentrators and whether they constituted regulated items under relevant Acts.
Ratio Decidendi: The Court concluded that the definitions provided under the Drugs and Cosmetics Act covered the devices in question and upheld that police actions were founded on adequate legal authority, dismissing claims of illegality regarding the seizure process.
Result: Petition dismissed.
| Table of Content |
|---|
| 1. petitioner's request for release of seized items. (Para 1 , 2 , 3 , 4 , 5) |
| 2. arguments on legality of seizure and jurisdiction. (Para 6 , 7 , 8 , 10 , 11 , 12 , 13) |
| 3. court's observation on procedure and legality of seizure. (Para 17 , 19 , 28 , 30 , 31) |
| 4. definition and regulation of medical devices. (Para 24 , 25) |
| 5. petition dismissed; no action on seized items. (Para 36) |
JUDGMENT
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 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 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.
8. Reference is made to various invoices filed on record stating inter alia they have got these equipments imported for sale and the mark
