The Delhi High Court was today informed by the Drugs Controller General of India (DCGI) that the Gautam Gambhir Foundation had contravened section 3(b) of Drugs and Cosmetics Act for procuring Fabiflu medicine, to distribute to Covid-19 patients without a licence.
A bench of Justices Vipin Sanghi and Jasmeet Singh was informed by DCGI counsel Nandita Rao that various inquires were conducted by them. It was first done for Gautam Gambhir MP, in response to the memo dated May 25. At that Guatam Gambhir informed that he is one of the trustees of the foundation.
The counsel said that the foundation is not eligible to purchase licensed drugs as per rules of the Drugs and Cosmetics Act. Also, a reply is awaited from those firms who supplied it to the foundation.
The first part of notice to licensee is to suspend their licence and second part is for criminal liability.
It is found that the foundation had contravened the section 3(b) of the Drugs and Cosmetics Act for procuring this medicine without license.
Justice Sanghi said: “Have you served notice to the dealers? Have you done anything with regard to the foundation?”
Nandita said: “With respect to the first part of notice, we will take steps against the foundation. As per the criminal liability, the foundation has no purpose, but the dealers have a two-fold role. The same language is used for both dealers and the foundation,” she added.
Amicus Curiae Rajshekhar Rao submitted: “Perhaps they have not inquired into the aspect of procurement of oxygen.”
Justice Sanghi said: “See, we know where you are going. I am going to direct the drug controller to inquire all such matters. Ms Rao, you are bound to conduct your inquiry, find out all the cases. We don’t want others to say that they have not done anything wrong as per Drugs and Cosmetics Act.”
Justice Sanghi asked Ms Rao how does a foundation procured the medicine in such a large scale and whether there are past instances.
Justice Jasmeet Singh said: “Ms Rao, just have a look. Everybody should be coloured the same. There has to be the same yardstick.”
Justice Sanghi said: “We will again say, what Mr Gambhir did, he did it for the public. But the point is when you are taking such steps, you have to be wise. You are helping (some) people at the cost of others. Thousands of medicines were held by him for nearly two weeks, and even at the end of it you were left with 286 strips when there were people who needed it. The genuine patients who needed it, didn’t get it.
“There could have been other ways… maybe by giving money, sending message and name of patient to chemist to make it available. But this was not the way. This should not have happened.
“Now, saying that they are going to donate to particular section to society, that is not the criteria. If you do charity, it is regardless of anything. That is why we want you to take action so that it becomes an example,” he added.
The Delhi High Court noted in its order that “Miss Nandita Rao has filed a status report in respect of Gautam Gambhir Foundation (GGF) as well as wrt to Praveen Kumar MLA in response of our earlier order. The said status report states in conclusion that certain offences are committed both at the end of dealers (licensed) and procurers and part of GGF and part of Sh Praveen Kumar MLA. Notice has been issued to licensee under Drugs and Cosmetics Act. Their responses are awaited. Ms Rao seeks instructions from Assistant Drug Controller Mr Chawla. He states action would be taken in terms of show-cause notice and as per the said act without any delay. Not only in these particular cases but in other cases as well.”
The court directed: “We are of the view that looking into the acute shortage in medical oxygen during the current wave of Pandemic and shortage of oxygen beds though, technically, procurement of medical oxygen cylinders for personal use may also tantamount to breach of action and rules under the said act. All such cases need not be pursued and endeavour of drug controller should be to pursue such violators whose conduct was to choking the supply of relevant drugs and for medical oxygen for bona fide use of oxygen for treatment.
“Counsel for Petitioner Mr. Swain, Mr. Rizwan and Mr. Tiwari have advance their submission and they wish to point out a few aspect wrt drug controller for consideration. Not only cases related to GGF but in relation to other cases as well. It should be allowed to them to submit one page each to Drug Controller with copy to Ld. Amicus and be delivered to Ms. Nandita Rao,” the Court said.
“Let the further status report in progress of cases and show cause notice, be filed in next 6 weeks. July 29,” it directed.