"You Cannot First Penalize People Just For Hiding Your Failures" Delhi Court To Prosecution In Oxygen Concentrators Hoarding Case

"You cant first penalize people and then make a law. Can you make them guilty of offences which is no offence just to remain in good books? There is a vaccum. Just because of hiding your failures you can't run behind people. You can't create terror." Remarked a Delhi Court on Tuesday while reserving orders in the Oxygen Concentrators Hoarding case.

Chief Metropolitan Magistrate Arun Kumar Garg made the aforesaid oral remark after Public Prosecutor Atul Shrivastava apprised the Court about the facts of the case stating that the accused persons have hatched a conspiracy by taking advantage of the "pathetic situation of covid 19 pandemic" and sold the said oxygen Concentrators at higher prices.

It was submitted by Shrivastava that the accused persons who have sold oxygen concentrators by way of an application namely "XFactor" have allegedly induced the public and compelled such persons to buy products at a higher price and in turn sold "useless products".

Shrivastava also argued that after various persons started making complaints about the working condition of the products, the same were sent to Sriram Institute for checking. It was also stated that there were screenshots on record showing people complaining about the Concentrators and highlighting the issue of non refund. 

At this juncture, the Court questioned the PP as to whether there was any inducement in the matter.

When I downloaded the xfactor app, there was a specific condition in bold letter stating that the product non refundable and that you cannot cancel orders. Sec. 420 of IPC cannot be met in this case. Maximum remedy can be granted under Consumer Protection Act." The judge remarked.

Pulling up the Prosecution, the Court orally remarked thus:

"Demand supply rule will apply when the govt has not regulated the price. They have not regulated. Is doing business in this country an offence?"

On this, the Court also stated thus: 

"Yesterday only I have seen the documents shared by advocates. There is a requisition from the Ministry seeking 100 Concentrators. That means everybody was aware of it what was happening."

On the aspect of the High Court's direction to take strict action and registeration of FIRs against those indulged in hoarding and black marketing, the Court stated that when the High Court or Supreme Court expresses that the police must book hoarders, it doesn't ask them book him under "xyz sections". 

"It is saying that action can be taken for contempt of court, or you should see there is an existing law which takes care of it. You cant first penalize people and then make a law. Can you make them guilty of offences which is no offence just to remain in good books? There is a vacuum. Just because of hiding your failures you can't be behind people. You can't create terror." The Court stated.

Furthermore, the Court also went ahead to observe that Black marketing is a loose word which is not defined anywhere in law.

"There is no law and there is a vaccum, you don't want to create a law. You want to abrogate the responsibility. A businessman suddenly, I don't know about the credentials of accused here, but every business man sees such an opportunity. Just because you have to hide your faults, you cannot curtail the fundamental rights of other people." The Court orally remarked at the outset.

At this point, the Court went ahead to state that when there is an absence of any legislation and the same has been address by the judiciary, the duty of formulating a law lies on the law makers. 

On the conduct of the investigating agency and the prosecution for registering the FIRs, the Court expressed its displeasure on a "recent disturbing trend" followed by such agencies wherein the police starts investigating after registeration of FIR and arrest. 

"This is a very pathetic condition I am seeing on a regular basis. This is the reason why my orders are pretty harsh. The investigation should happen in a planned manner. The investigation should be fair. If they have done some wrong, they should be punished. But in cas they are not, then they shouldn't be. You should keep your prejudices and opinions aside and reach out the truth. You need to be fair to everyone. Because our inclination is not to send anybody behind bars. I know that black marketing is happening but everything should be fair. What was the hurry of seizing the goods? Whenever you do something, it should be planned." The Court observed.

Stating that the ultimate responsibility lies on the State, the Court remarked thus:

"You should not twist the facts. Twisting facts do not yield any result. You know the law, look for the truth. Not from an approach that because you have a direction, you need to make someone guilty."

Hearing the submissions of the counsel appearing for all the accused persons, the Court put up the matter for order at 11:30 AM tomorrow.