Can’t Prosecute The Samaritan Who Provided Oxygen When Both Centre And States Failed: Delhi HC

BACKGROUND OF THE CASE

• This matter came into light after Drugs Control Department informed the Court that it has launched a prosecution case in the court of law on 8 July, against some organisations and people.
• It included Gautam Gambhir Foundation, its trustees and CEO, as well as AAP MLAs Praveen Kumar and Imran Hussain.
• It case was initiated as it was contravening the provisions of Drugs & Cosmetics Act, 1940.
• Further, the Supreme Court had also refused to entertain a petition filed by Gautam Gambhir Foundation against the Delhi High Court order, seeking enquiry into the stocking up of COVID-19 drugs by the trust.

INFORMATION BY DRUG CONTROLLER

• The Drug Controller had informed the Court that Gautam Gambhir Foundation was found in contravention to the provisions of Drugs and Cosmetics Act for unauthorised stocking of COVID 19 drugs, during the previous hearing.
• The Court got information about the show cause notices which were sent to such firms who had violated the conditions of Drugs and Cosmetics Act.
• Such firms were liable for prosecution for selling medicines to an unlicensed firm i.e. Gautam Gambhir Foundation.
• After reviewing this, the Court had held the Drug Controller of the Delhi Government responsible for its "unsatisfactory inquiry/Investigation" in the matter.

ARGUMENTS BY DRUG CONTROLLER

• The Court asked the Drug Controller whether it wishes to initiate a prosecution case against all the people who have provided medical oxygen to the COVID 19 patients.
• The Court said that it would not permit only starting the prosecution case targeting the political parties and asked them to initiate action against all Gurudwaras, mandirs etc.
• While appearing on behalf of Drug Controller, Advocate Nandita Rao said that as per the previous order of the Court, the exemption can be provided for personal use.
• The Court discarded the aforesaid submissions and directed Rao to seek instructions for clearing its stand in relation to the aspect of initiation of prosecution against persons who were allegedly involved in distribution of free medical oxygen to the needy COVID 19 patients.

OBSERVATIONS BY THE COURT

• On Thursday, the Delhi High Court held the Drug Controller of the Delhi Government responsible for initiating prosecution against AAP MLA Praveen Kumar.
• Regarding the procurement of medical oxygen, a Division Bench comprising of Justice Vipin Sanghi and Justice Jasmeet Singh, after observing, held that such an action must not be initiated in a situation where both Centre and the Delhi Government has failed to provide sufficient oxygen to people.
• Some good Samaritans came forward and provided oxygen to the needy, and they can't be prosecuted.
• The Court said that this is just an action of targeting a particular political party.
• Following the same reasoning, the Court said that then all the Gurdwaras, temples and other organizations as well who had procured medical oxygen during the second COVID wave, must also be prosecuted.
• In view of the order dated June 3, the Court further observed that the issue of medical oxygen is a technical type of offence. It is very different from the issue of hoarding of COVID 19 drugs.
• The Bench remarked that it is so unfortunate that such a huge human tragedy is being used for political capital.

COMPARISION TO GAUTAM GAMBHIR’S CASE

• The Court distinguished this case from the allegations that were made against Gautam Gambhir Foundation.
• One person should not be picked who tries to help the society.
• The reason for picking up Mr. Gautam Gambhir's case, as held by the Court, he was very irresponsibly stocking up the COVID medicines. Although his intentions weren’t bad, but the Court cannot allow this.

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