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Bombay HC To Hear Plea Against Black-Marketing And Profiteering On N-95 Masks

A Public Interest Litigation has been filed in the Bombay High Court by Padmashree Sucheta Dalal and Anti-corruption activist Anjali Damania seeking directions to cease black-marketing activities of N-95 masks and profiteering on it by the companies.

The matter was listed before the bench headed by the Chief Justice Dipankar Datta & Justice S.S. Shinde on May 19 but stands deferred till May 22.

Petitioner Sucheta Dalal, a Padma Shri recipient for journalism, and also a Founding Trustee of Moneylife Foundation an organisation that has undertaken to do COVID related relief work for 3 months with focus on meeting the gaps in personal protection and safety equipment required by doctors along with another petitioner Anjali Damania, who is an anti-corruption activist and a Founding Trustee of the Voice of Indian Taxpayers (VIT) has filed the petition before the High Court of Bombay.

Few Respondents among all were the various Offices of the State of Maharashtra that have a coordinated role to play in responding to the COVID Pandemic including the Municipal Corporation of Greater Mumbai, whereas other Respondents are Ministries / Departments of the Union of India and the company that manufactures N95 masks, their manufactured masks are freely available in the black market with prices marked up to 150% as said in the petition.

The Petitioners said that immediately after the first case of COVID-19 was reported in India, Government of India through its Ministry of Commerce & Industry in its Notification on 31st January, 2020 in exercise of its powers under section 3 of the Foreign Trade (Development & Regulation) Act, 1992 prohibited the export of Personal Protective Equipment including clothing and masks (which included Coveralls and N95 masks). Thereafter, in the Notification issued on 8th Feb, 2020 Ministry of Commerce & Industry amended its Notification of 31st January, 2020 to permit the export of surgical masks/disposable masks and gloves.

“As the number of confirmed cases grew, the demand for hand sanitizers and masks (including N95 masks) grew exponentially. Thus, the Government of India through the Ministry of Consumer Affairs, Food and Public Distribution promulgated an order on 13th March, 2020 under the provisions of the sub-section (2) of section 2A, of the Essential Commodities Act, 1955.

The said order included masks (2ply & 3ply surgical masks, N95 masks) and hand sanitizers in the Schedule to the Essential Commodities Act, 1955 thereby regulating the production, quality, distribution, logistics of masks (2ply & 3ply surgical masks, N95 masks) and hand sanitizers and further prevent hoarding, black marketing and profiteering on these items”, mentioned in the petition.

The Petitioners mentioned that despite the directions from the Government of India the State of Maharashtra has failed to take any measures to ensure sufficient availability of surgical masks and other masks, hand sanitizers and gloves at prices not exceeding the maximum retail prices and during the course of the pandemic a major issue that had come to the force and has been reported widely in the media was the rising number of frontline workers including doctors, nurses, ward boys, police personnel and sanitation workers who had tested positive for COVID-19.

Thereafter, it was said that when the Petitioners’ organizations sought to acquire the N95 masks so that the same could be supplied largely to government, municipal and charitable hospitals or those designated for COVID-19 treatment, the respondent company that manufactures N95 masks agreed to provide 5,000 and 3,200 N95 masks to both the Petitioner’s organizations at the rate of Rs.40/- + GST and Rs.60/- + GST per mask respectively.

Later, the petitioners alleged that when they approached Respondent Company for more N95 masks so that they could in turn be provided to the frontline workers, the Petitioners were informed that no orders would be accepted as all of their production was booked and then many Non-governmental organizations wrote to the Chief Secretary of the State of Maharashtra to bring to their notice the non-availability of N95 masks.

The Petitioners assumed that all the N95 masks that were being produced by the aforesaid manufacturers were being acquired by the Government of India and State of Maharashtra and thus, the respondent company had no stock to sell to the Petitioners. But, to the Petitioners shock and surprise soon after the Petitioners were stone walled by respondent Company, they started receiving unsolicited messages from multiple dealers and traders offering to sell to the Petitioners’ organizations the N95 masks at a mark up of over 150%. The Petitioners were flooded with WhatsApp messages, along with photographic proof of availability of 23 stocks of N95 masks being manufactured by Respondent Company and also some of the dealers were ready to provide as many as 1 lakh N95 masks at the price of Rs.210/- + GST. These dealers were selling N95 masks produced by Respondent Company, said in the petition.

The petitioners were appalled by the blatant and out in the open profiteering on N95 masks especially when the healthcare workers and essential service providers were forced to work without this essential protective equipment.

Lastly, it was highlighted that the acts of hoarding and profiteering had worsened an already dire situation. While the frontline workers were forced to perform their duties without adequate protective gear and mask. A scarcity of protective gear was being compounded further by hoarders and profiteers seeking to make a windfall by jeopardizing the health of crores of people.

Therefore, the petitioners sought directions to state of Maharashtra to ensure sufficient availability of surgical masks and N95 masks, hand sanitizers and gloves at fair prices as determined by the Respondent company and to exercise powers under the Essential Commodities act to confiscate the N95 masks that were being hoarded by profiteers and further initiate prosecutions against the companies and individuals indulging in hoarding, profiteering and black marketing.

-India Legal Bureau

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