"Under What Capacity You Keep Oxygen Concentrators Without License?": Delhi High Court To Navneet Kalra
In an evening hearing, the Delhi High Court on Thursday questioned Navneet Kalra, accused in connection with the recovery and seizure of Oxygen Concentrators by the Delhi Police recently, as to in what capacity was he holding 105 oxygen Concentrators when the same can be done only via valid licenses.A single judge bench comprising of Justice Subramonium Prasad was hearing an anticipatory...
In an evening hearing, the Delhi High Court on Thursday questioned Navneet Kalra, accused in connection with the recovery and seizure of Oxygen Concentrators by the Delhi Police recently, as to in what capacity was he holding 105 oxygen Concentrators when the same can be done only via valid licenses.
A single judge bench comprising of Justice Subramonium Prasad was hearing an anticipatory bail plea filed by Kalra after a Sessions Court rejected the same earlier yesterday.
"If you say you are neither an importer nor a manufacturer, under what capacity you were holding 105 Concentrators? Do you have the ability to have these Concentrators without a license? If they are drugs, then they can be sold and manufactured through valid licenses." The Court orally remarked.
The remarks came while hearing Senior Advocate Abhishek Singhvi appearing on behalf of the accused, Navneet Kalra who had submitted before the Court that it was a "classic case which shows that one has to get rid of the compulsion to conform, of what the media want us to do."
Denying the allegations of black marketing and Hoarding, Singhvi submitted before the Court that the oxygen concentrators were purchased by the importer namely Matrix Services Limited and that the same was done through proper legal channels including GST payments.
Hearing Singhvi, the Court relied on the notification of the Government of India dated 31 March 2020 under the Drugs Price Control Order and hinted that Drugs include medical devices and that if the same is applicable in the case, the punishment is 10 years.
"Ultimately the moot question is whether there was any restriction on you for selling at a price or not." Justice Prasad remarked at the outset.
To this, Singhvi while referring to sec. 3 of the Essential Commodities Act, argued that the Act has a dual system which requires a designate list of items which are declared as essential commodities. However, it's a misconceived notion that all such items are regulated.
"The same is completely conspicuous by its absence. Obviously there is no oxygen Concentrator in the list." Submitted Singhvi.
"Office Memorandum does not purport to be an order under sec. 3(1). It's just an information asking for MRP. The limitation of 10% is not fixing of the price." Singhvi submitted before the Court.
Hearing this, the Court however asked if a device is a drug controlled by the aforesaid order stating that a person cannot sell more than 10%, then what the Government is doing is to "call for MRP and ensure its not sold more than that and in such a case, its a violation."
Denying the said preposition, Singhvi submitted that the limitation of 10% has got nothing to do with the fixation of MRP.
"It has to be simple. If he has to arrest me, he has to show MRP, government cap and invoices. My point is that for any violation, criminality must flow from a statute which is unambiguous. Make the scheme and the mandate of legislation clear." Singhvi argued.
Furthermore, explaining the mandate of sec. 3 of the Essential Commodities Act, Singhvi argued thus:
"Under sec. 3(2), after an opinion is formed under sec. 3(1), but regulating only to the extent of price and disposal acquisition and then the next step is to show a benchmark which is unambiguous. This is the descending order. Admittedly there is no order which says qua price or sale. We are concerned only with one thing, Thou shall sell under sec. 3(1) and under a particular price. Show that order and I'll be out of court."
"I am asking myself a threshold question, whether they can change the structure of sec. 3. Unless they are not complying with sec. 3(1), where is the point of other questions?" Singhvi questioned.
During the course of hearing, ASG Raju made some preliminary submissions before the court by saying that it's is a classic case of black marketing by taking advantage of needy people and that this makes it an exceptional case.
"We have tested two of the Concentrators. They say that the Concentrators were of premium quality, made in German whereas the same are Chinese third class products.The report from the laboratory states that the same are not up to the mark. They said that the same are premium and sold them to people." ASG submitted at the outset.
Questioning the aforesaid conduct of cheating people, ASG argued thus:
"We're still to find out if a person has died in case he has not got sufficient oxygen. And if we find that even in one case, what happens? It may be an offence under 302 or 304 or attempt. We're at a threshold of investigation."
The Court will now hear the bail application at 12 PM followed by the submissions of ASG Raju.
A Delhi Court yesterday refused to grant anticipatory bail to businessman Navneet Kalra accused in connection with the recovery and seizure of Oxygen Concentrators by the Delhi Police recently.
Additional Sessions Judge Sandeep Garg dismissed the application of anticipatory bail filed by Kalra.
The Delhi Police had registered a case under sec. 420,188,120B,34 of the Indian Penal Code and sec. 3 and 7 of the Essential Commodity Act 1955 for recovery of over 500 oxygen Concentrators from some restaurants in the national capital. The case has been transferred to the Crime Branch.
The Court had yesterday reserved orders in the bail plea after hearing at length Senior Advocate Vikas Pahwa and Advocate Vineet Malhotra appearing for Kalra and Public Prosecutor Atul Shrivastava for the State.