J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (“CrPC”), on behalf of M/s. Gautam Gambhir Foundation and its Trustees (“the Petitioners) for quashing of the Criminal Complaint for offences under Section 18(c) read with Section 27(b)(ii) Drugs and Cosmetics Act, 1940 (the D&C Act) and also to challenge the Summoning Order dated 26.07.2021 and the subsequent Order dated 26.08.2021 of the Learned Metropolitan Magistrate.

2. Briefly stated, Petitioner No. 1, Gautam Gambhir Foundation (―the Foundation‖), is a registered Trust established in 2014, engaged in various charitable activities, including running of Community Kitchens, supporting the education of martyrs‟ children and providing scholarships to the girl children of Sex Workers. During the unprecedented second wave of COVID-19 Pandemic, in around April-May 2021, the Healthcare system in Delhi was overwhelmed, leading to a catastrophic failure in providing essential life-saving drugs and oxygen to citizens, particularly to the poorest sections of Society. Witnessing this public health emergency and receiving numerous pleas for help, the Petitioners decided to render assistance for purely charitable purposes.

3. In collaboration with M/s. Garg Hospital, the Foundation organized a free Medical Camp from 22.04.2021 to 07.05.2021. On the advice of doctors of Garg Hospital, the Foundation provided financial support to procure Favipiravir Tablets, a protocol medicine for COVID-19 treatment. The medicine was purchased in a phased manner over eight days, from licensed Dealers against valid Invoices, to avoid creating any shortages. The medicines and oxygen were then dispensed for free, to the needy patients under the direct supervision of doctors from Garg Hospital, and only after strict verification of Medical Prescriptions and Identity Cards.

4. Writ Petition (Crl.) No. 953 of 2021 was filed before this Court by one Dr. Deepak Singh, alleging black-marketing of COVID-19 Medicines. Delhi Police filed two Status Reports dated 15.05.2021 and 22.05.2021, concluding therein that the Petitioners were engaged in helping people voluntarily and that “no cognizable offence” was found to be committed.

5. The Drugs Control Department/ Respondent also filed its first Status Report dated 30.05.2021 in the said Writ Petition, which also concluded that "no evidence of contravention under the Drugs and Cosmetics Act, 1940 and Rules made thereunder has been found during the enquiry so far‖. The Report confirmed that the medicines were procured from Dealers with sufficient stock, were dispensed under medical supervision and were provided free of cost.

6. However, the Respondent later changed its stance, alleging contravention of the Act. This change was purportedly based on a subsequent clarification from Garg Hospital that its role was limited to medical supervision and verification of prescriptions, but not in the procurement, stocking, or distribution of the drugs.

7. Based on this stand, the Respondent filed the impugned Criminal Complaint No. 6953 of 2021on 08.07.2021 for the offences under Section 18(c) read with Section 27(b)(ii) of the DCA for unlicensed stocking and distribution of Favipiravir tablets and oxygen during a free medical camp in April - May 2021.

8. The Learned Magistrate took cognizance and summoned the Petitioners vide Order dated 26.07.2021.

9. The Petitioners have challenged the impugned Complaint and the Summoning Order inter alia, on the grounds that the prohibition under Section 18(c) of the D&C Act applies to commercial activities of manufacture, sale, and distribution and not to the charitable distribution of medicines free of cost during a public health emergency. There was a complete absence of mens rea or any commercial intent. The actions were purely humanitarian, undertaken in good faith to save lives during a catastrophic failure of the State Health Machinery.

10. The