Delhi Court Sets Aside Order Directing Release Of 12 Oxygen Concentrators For Use Of Police Officers, Judicial Officers And Their Families

Allowing the revision petition, a Delhi Sessions Court on Saturday set aside the earlier order passed by the Metropolitan Magistrate directing release of 12 oxygen concentrators for the use of police officers, judicial officers and their families .

Principal District and Sessions Judge, Narottam Kaushal set aside the earlier order dated 5th may passed by Metropolitan Magistrate Anuj Bahal on an application filed by Delhi Police seeking the release of seized property "for the use by police personnel as well as public as and when required". Aggrieved by the aforesaid order, the revision petition was filed.

12 oxygen concentrators were seized from two accused persons namely Vinay Agarwal and Akash Vashisht and the same were deposited in the Dwarka Malkhana police station.

During the course of proceeding, it was argued by the Additional Public Prosecutor for the State that the order is in violation of sec. 6E of the Essential Commodities Act which provides for the Collector to be the competent authority to to order possession, delivery, disposal, release or distribution of the case property.

Furthermore, it was submitted that in terms of the Delhi High Court direction, seizure of medicines and oxygen cylinders must be informed to the Concerned District Commissioner and the District Commissioner who should then proceed to pass orders for release of the same without any delay.

In view of the same, it was argued by the APP that the said oxygen concentrators should be released to such facilities "where they could be used round the clock for those, who needed it the most."

The Court was also apprised by the APP that although oxygen concentrators were not notified to be an essential commodity, the Government of India's notification dated 29th June 2020 seeks to monitor the maximum retail price of Medical Devices, including Oxygen Concentrators.

Observing that the notification does not declare Oxygen Concentrators to be Essential Commodity, the Court ordered thus:

"The seized articles having not been notified to be essential commodity, reference to the provisions of Essential Commodities Act or the procedure prescribed therein for release of the case property, is misplaced. The trial court has, thus, not erred in exercise of the jurisdiction, so invoked by the IO. Order passed by Ld. MM on this score can not be said to be illegal."

The Court also noted that the IO ought to have immediately informed the District Magistrate and placed the seized machines at the disposal of District Magistrate for suitable utilization during the period of investigation or trial.

Observing that the Metropolitan Magistrate was "greatly influenced by the fact that two Judicial Officers had lost their lives in battle with Covid 19", the Court observed thus:

"One of them being his own brother colleague with who he shared the corridors. As I pen down this order, judicial fraternity has lost one more officer, who also succumbed to be Covid-19 virus . Ld. MM in his zeal to provide life saving machines to front line workers i.e. the Delhi Police and to his judicial fraternity was so dazzled that he forgot that a judge on account of the office he occupies has to act & behave like a self-less, dispassionate saint. He has to rise above the interests of self and his ilk. Benevolent and well-intended, his act may be; the same can-not breach the Constitutional provisions of equality. On the touchstone of these morals & principles of law, Ld. MM seems to have faltered. Impugned order dtd. 5.5.2021, thus, is not sustainable and is set aside."

With the aforesaid observations, the Court set aside the MM's order and allowed the revision petition.

Click Here To Download Order