ILNS: The Delhi High Court on Monday heard a plea from a trader who had imported oxygen concentrators and was selling them at what the police and related authorities assumed were at black market prices. The entire inventory of the trader (importer) was seized and the trader has now moved court, asking for directions to immediately release the products/stock seized from the company’s collection centre at Lodhi Colony and its office premises at Mehrauli. The court has sought the response of the Delhi government on the issue.
The next date of hearing is May 13.
The company, Matrix Cellular, initially dealt with telecommunication services for persons travelling abroad. However, since that business was impacted because of the pandemic (and no travel), the company decided to import oxygen concentrators and other Covid-19 related products.
Senior Advocate Mohit Mathur, appearing for the petitioner (Matrix Cellular), said that the arrest and confiscation was unlawful. He said: “In West Bengal also we see many instances where prosecution was ordered against innocents and the distributors/vendors. The judgment in Karam Chand Ganga Prasad ((1970) 3 SCC 694) is referred.
The counsel pointed out that the government order capping prices of concentrators was issued on May 7. The counsel said that bookings of 320 of the 419 concentrators had been completed. He said the company had net records. “I have sold a particular concentrator for Rs 30,000 and when the prices increased from the wholesaler themselves, with the rise in demand, I had to raise the price at my end also, in order to avoid loss. I am importing the concentrators legitimately. There are no fallacies at my end. All the documentation is done. In the FIR, section 3 of Epidemic Diseases Act is mentioned which, however, relates to violation of any order passed under section 2 or section 2A of the same Act. Section 3 relates the violations to section 188 of IPC. However, as of May 5 (when the goods were seized), no order had been passed for regulating the prices of oxygen concentrators,” the counsel said.
“Today, even masks, sanitizers, face shields, etc are sold at variable prices, it is up to the customer if he wants to buy the same or not. In the Essential Commodities Amendment Act, 2020, provisions regarding public distribution of food items were amended. Oxygen concentrators, masks etc. are not drugs. There is illegality in the procedure practised by the police while arresting a person for these offences.
“As per S 457 CrPC they have not produced the accused before the magistrate. The police is acting in haste, with which I have a problem. There is a statutory right’s violation. Under Art 226, I am saying that Executive Action has violated my statutory right. For the very important and significant fact, the police could not differentiate between oxygen cylinders and oxygen concentrators. It is illegal seizure.”
Justice Yogesh Khanna said: “Let the documents on records be there and in the meantime advocate Sanjay Lao shall also file the status report.”
Advocate Sanjay Lao for Respondent said: “I will file the status report. However, I need to make it very clear that no person can sell the products above the MRP (Maximum Retail Price) whether it is oxygen concentrator or anything else and he shall be booked for the same. The matter has already been transferred to Delhi Police Crime Branch on May 8.”
The plea had stated: “At its initial stages, customers use the online portal to purchase the oxygen concentrators and the same was thereafter delivered by the Petitioner to the customers. However, on account of urgency of their requirements, several customers started arriving at the offices of the Petitioner to urgently procure and access oxygen concentrators. This resulted in significant overcrowding at the Petitioner’s offices and not only did the same create significant problems in the functioning and operations of the Petitioner, but also posed a serious health risk for the Petitioner’s employees and also the gathered crowd.
Owing to the increase in numbers of COVID patients, there were several persons in dire need of the oxygen concentrators and as a result hundreds of people would queue outside the office of the Petitioner, sometimes arriving in ambulances to collect oxygen concentrators. COVID positive patients were also arriving at the office premises to procure the oxygen concentrators,” it said.
“Accordingly, the Petitioner decided to designate an alternate location as a collection point for the oxygen concentrators and related equipment and it was pursuant to the same, the Petitioner designated a restaurant – ‘Nege Ju’ situated at 9 & 10, near Veer Savarkar Park, Main Market, Block 8, Lodhi Colony, New Delhi – 13 (Collection Centre). Therefore, after completing the purchase of the oxygen concentrators on the said online portal, in the event the customers requested urgent delivery of the same, the Petitioner offered such customers the option of collecting the oxygen concentrators and allied product from the said Collection Centre,” the plea added.
The petitioner contended that on May 5, the respondent entered the premises of the Collection Centre and seized all the products located in the said Collection Centre on baseless and misconceived allegation that the same was as part of black market operation.
“Thereafter, the Respondent directed that the entire stock of oxygen concentrators be loaded on to trucks and dispatched to a location unknown to the Petitioner. There is no basis for the arbitrary, irresponsible and highly capricious conduct on part of the Respondent in seizing the essential commodities such as the oxygen concentrators when the people in Delhi are in dire need of the same. This seizure is baseless in law and is entirely without merit since the same fails to disclose any offence whatsoever and despite the same, the Petitioner is being subjected to arbitrary, whimsical and grossly irresponsible seizure of the Petitioner’s products from the Collection Centre and the office premises of the Petitioner,” the plea averred.
The Petitioner has sought the following directions:
a) Issue a writ of Mandamus, or a writ in the nature of a Mandamus, or any other appropriate writ, directing the Respondent to immediately release the products/stock seized by it from the Petitioner’s Collection Centre at Lodhi Colony and the Petitioner’s office premises at Mehrauli.
b) Issue a writ of Mandamus, or a writ in the nature of a Mandamus, or any other appropriate writ, restraining the Respondent from seizing any further products of the Petitioner pursuant to the FIR, or even otherwise.
c) Issue a writ of Mandamus, or a writ in the nature of a Mandamus, or any other appropriate writ, directing the Respondent to not create any third party rights of whatsoever nature on the products of the Petitioner which have been seized by them pursuant to the FIR.
d) Issue a writ of Mandamus, or a writ in the nature of a Mandamus, or any other appropriate writ, restraining the Respondent from, either directly or indirectly, taking any coercive steps against the Petitioner, its employees, directors, managers, officers, etc. in relation to and in furtherance of the said seizure and /or the FIR registered by them in the matter.
e) Issue a writ of Mandamus, or a writ in the nature of a Mandamus, or any other appropriate writ, restraining the Respondent making statements to the media proclaiming the guilt of the Petitioner’s employees and / or providing such documents to the members of the media, which are otherwise not available in the public domain, such as the FIR