New Delhi, May 17 (ILNS) The Delhi Police today submitted before the Delhi High Court that it should not entertain a petition under Article 226 of the Constitution, while opposing the plea filed by Matrix Cellular, seeking release of 419 Oxygen Concentrators seized by police from its premises.
The Single-Judge Bench of Justice Yogesh Khana asked the parties to file their written submissions, while it was hearing the plea filed by Matrix Cellular, seeking release of its 419 Oxygen Concentrators seized by Delhi Police from its premises.
ASG SV Raju, appearing for the state, submitted “Even if there is discretion before this Court, which goes in favour of the black-marketers hoarding Oxygen concentrators, it is not a fit case where the discretion should be exercised under Article 226 by this Court.
Secondly, lets pre-suppose that if this court grants a relief in the favour of Matrix, then the order/directions passed by this Division Bench would be violative of that. Further, the Division Bench has already directed to approach the petitioner Matrix before the District Magistrate, since the seized material is under the supervision of the DM and no order has sought from the same.
The ASG cited Section 3(i) and (h) of the Essential Commodities Act, 1955. He also cited Section 20 of the Drug Price Control Act (DPCA), 2013 and submitted that if order of the DPCA, 2013 violates then also, it is punishable under Section 7 of the Essential Commodities Act.
“Oxygen Concentrators do not fall under the ambit of books and accounts mentioned under clause 3(i), so the seizure made by Police under Section 102 CRPC is lawful and in no way, it attracts ingredients of Section 3(i) of the ESC Act, 1955.
The ASG cited Para 18 of Venkateshwara Judgement of the apex court, wherein he referred to Section 6a of the Essential Commodities Act, 1955.
He further opposed that the relief seeking Matrix for no coercive shall be taken against him is no maintainable under Article 226, he should have gone for quashing under section 482 CrPC, and not seek relied under Writ 226.
Justice Yogesh asked from Additional Solicitor General that he referred to the WHO report, on the previous date of hearing. To Which, Mr Raju referred to Para 2.2.1 of the Guidelines of WHO.
Senior Advocate Mohit Mathur, appearing for Matrix, objected to the contentions of the ASG, stating that all grounds raised by him are not at all justified.
“The Concentrators are not covered under the ECA, 2013. Sections 451 (house trespass) and 457 (house-breaking by night) do not deal with the gravity of offence.
He also relied upon the apex court Judgement of Opto Circuit India Ltd vs Axis Bank and Ors, wherein the step was not taken by Police authority in accordance with Section 102(3) CRPC and the apex court defreeze the accounts of petitioner under the PMLA ACT and reiterated mandatory prerequisite at time of seizing goods.
“Sub-section (3) to Section 102 Code of Criminal Procedure requires that the Police Officer shall forthwith report the seizure to the Magistrate having jurisdiction, the compliance of which is also not shown, if the said provision was in fact invoked,” it added.
Mr Mathur said, “Your Lordship, there is a distinction between the Magistrate and the Metropolitan Magistrate, kindly have a look at CRPC.
“Section 457 is an interlocutory order, such application what we call as ‘superdari application,’ filed before the Trial Court is an interlocutory order and not a final order.
“The state failed to mention in their status report that to whom they have given seizure memo, and did not also annexe with the status report,” he added.
Further, he went on to state, “Procedure adopted by the State is bad and illegal. The state did not comply as per Section 457 CRPC. Your lordship, kindly see the office memorandum dated June 29, 2020 issued again on May 15, 2021 talks about monitoring of Maximum Retail Price of Pulse Oximeter and Oxygen Concentrator under the DPCO-2013 Regulation.
Mr Mathur said, “Referred to notification dated March 31, 2020, issued by DPCO, 2013. He argued that maximum retail price of medical device cannot be revised more than 10 percent in a year, as per the office memorandum.”
Mathur said –‘ I have paid 28 % duty and sold at Rs. 30,0000 and increased to 55,000/- and I have paid heavy duty cost on concentrators. Buyers also purchased for bulky price.
Mathur said– “ your lordship, section 6a of ECA, 2013 does not state anywhere that material can be confiscated without even giving notice to such person from against seizure has been made. can seizure memo i.e. Jamatalashi be denied for releasing the seizure goods even in case of grave nature ?The Petitioner is engaged in business of providing telecommunication services for persons travelling abroad.”
In the previous hearing on May 7, the State made submission that Matrix should seek appropriate remedy before concerned magistrate for releasing of concentrators and also such seized concentrators have already been deposited to Deputy Commissioner Office, South District, New Delhi. The Delhi High Court had noted that “it transpired from that such oxygen concentrators have been released to Covid centre/Hospitals. However the position is not clear as of today. In case those are released, the prayer to this effect shall become infructuous.” The Court had asked the Delhi Police to file its status report. ILNS/KR/RJ