New Delhi Sept 2(ILNS): Delhi Police has filed its Counter Affidavit in the Supreme Court, in a Plea by Matrix Cellular (International) Services Private Limited challenging the Delhi High Court judgment which had dismissed its appeal to release the Oxygen Concentrators seized by the Delhi Police amid the Covid pandemic.
It is pertinent to note that the three-Judge bench comprised of Justice R.F. Nariman, Justice K.M. Joseph, and Justice B.R. Gavai on June 29 issued a Notice to the NCT of Delhi after hearing Senior Advocate Mukul Rohatgi appearing on behalf of the Matrix Cellular.
The affidavit has been filed by Deputy Commissioner of Police, Monika Bhardwaj.
According to the affidavit, in March 2020, the COVID – 19 viruses began spreading across the country and the Government of India, as well as State Governments, imposed Lockdown and other restrictions to control its spread. Thereafter, in the last week of March 2021, the second wave of COVID – 19 started impacting the lives of the people of Delhi. The second wave of COVID – 19 infected even more people than the first wave and the disease was even more virulent and deadly. On April 19, 2021, the Government of Delhi imposed a lockdown and restricted the movement of the public to control the spread of the second wave.
The situation had deteriorated due to a shortage of medical oxygen and it was one of the main reasons for the hike in the death toll. There was a panic regarding the availability of Oxygen even in major hospitals. The situation became so bad that the Supreme Court as well as Delhi High Court took Suo Moto cognizance of the deteriorating situation and passed the directions to the Central Government as well as the Government of Delhi to supply the required Oxygen to the COVID hospitals, and it was also directed to be extremely vigilant on the black marketing of COVID drugs & Oxygen Cylinders, and the law enforcement agencies were also directed to provide the details of the black marketers so that contempt proceedings could be initiated against those persons, the affidavit states.
Delhi police said that on May 05, 2021, during Police patrolling to ensure the compliance of the COVID – 19 restrictions, 32 boxes containing Oxygen Concentrators Having a capacity of 09 Ltr . and 5 Ltr. , one box containing thermal scanners and KN – 95 Masks were recovered from the restaurant. During investigation further 387 Oxygen Concentrators, 112 boxes containing KN – 95 Masks, and 95 Oximeters were recovered from Matrix Cellular International Services Pvt. During interrogation, the accused persons disclosed facts regarding black marketing of Oxygen Concentrators and other Covid – 19 treatment-related equipment at very high prices to needy persons. On sustained interrogation, accused persons disclosed that they used to purchase Oxygen Concentrators and other COVID – 19 treatment-related equipment through various means and sell them at exorbitant prices to needy persons, who were suffering from COVID – 19 .
Accused, Gaurav Khanna was interrogated and disclosed that in the year 2020, due to the global pandemic, the work of the company was badly affected, and therefore they started dealing in COVID – 19 related items. They imported some articles like Oximeter, Oxygen Concentrates, Mask KN – 95, etc., and also procured some other articles. The accused company sold the oxygen concentrators to needy persons with the profit/margin of Rs 40.000 / – to 42.000 / – per piece, alleged the affidavit.
Delhi police referred to the Report of the Committee constituted by AIIMS, New Delhi dated May 17, 2021, giving their opinion on the seized concentrators in the present case. The Report stated that: i. The seized oxygen concentrators may not be suitable for the treatment of the COVID – 19 patients based on the efficacy of the oxygen concentrators as per the Laboratory Report. As per World Health Organization ( WHO ), Technical Specifications for Oxygen Concentrators should produce oxygen concentrations between 82 % to 96 %. ii. The seized oxygen concentrators may not be beneficial for COVID – 19 patients requiring oxygen .
Moreover, the Delhi police further referred to the opinion of the Chief Medical Officer, EMR, Ministry of Health and Family Welfare and the same is as under: i. The seized oxygen concentrators in the custody of Delhi Police are able to provide oxygen with purity levels between 32.7 % to 38.2%. Ideally, Oxygen concentrators should be able to provide oxygen with a purity between 87 % to 98 %. Hence, these concentrators are not suitable for use by COVID – 19 patients because even in mild and moderate patients of Covid – 19. Oxygen purity to be delivered by any concentrator should be more than 92 % . ii. Regarding. the question whether these concentrators would be harmful for Covid – 19 patients requiring oxygen, even mild to moderate patients of Covid – 19 require oxygen purity of more than 92 % and using these concentrators for even mild to moderate Covid – 19 patients will cause harın as these can deliver a maximum oxygen purity of 38.2%.
In light of those facts it is submitted in the affidavit that the concentrators being sold by Matrix & Navneet Kalra are of sub-standard quality and are useless for COVID treatment. However, the same were being sold for the purpose of their use in COVID treatment.
Further the Government through Notification dated April 30, 2021, notified the Oxygen Concentrators in exempted category, wherein custom clearance is sought as gifts. The government intended to extend the benefit of exemption to the patients, looking for some Oxygen Concentrators as a last hope in the absence of Oxygen supply in COVID – 19 treatment. But the accused persons misused this benefit for their own pecuniary gain .
From the investigation conducted so far , it has been found that the accused persons intentionally chose sub-standard Oxygen Concentrators for import and sold them to needy persons at exorbitant prices taking undue advantage of the COVID – 19 panic situation. At the time , when the Hon’ble Supreme Court and High Courts were also cognizant of the panic situation arising out of the shortage of Oxygen supply and directing the Governments to make all out efforts to fill the gap by using all means , the common man had to look for Oxygen Concentrators as an alternate to get instant relief from the shortage to some extent . The Government also took measures in this regard by exempting Custom Duty on import of Oxygen Concentrators , but the accused persons had taken undue advantage of this for their own pecuniary gain .
“It becomes abundantly clear that the Petitioner sought to sell faulty oxygen concentrators at exorbitant prices in a patently illegal manner to desperate , needy persons at a time when Delhi was acutely affected by the second wave of the COVID – 19 pandemic . Under the circumstances, the oxygen concentrators are integral for the purpose of investigation. It is therefore submitted that it can be clearly seen that the impugned judgment was passed upon a thorough consideration of all aspects of the matter, keeping in mind the grave nature of the offense and the investigation, and therefore does not suffer from any infirmity”, the affidavit reads.
The arguments before the High Court were that 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.
Later on July 23 , the Apex Court ordered to file Counter Affidavit in the matter within a period of three weeks./ILNS/SS/SNG