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Sunday, June 20, 2021

Delhi court sets aside order to release 12 seized oxygen concentrators to cops, judicial officers

Setting aside the Metropolitan Magistrate’s order, the court said the "judge has to act like a selfless, dispassionate saint".

Written by Anand Mohan J | New Delhi |
Updated: May 8, 2021 6:55:40 pm
Delhi, Oxygen concentratorsOxygen concentrators being taken away following the raid at Khan Chacha restaurant in Khan Market, New Delhi, on Friday. (Photo: PTI/Representational)

A Delhi court has set aside a Metropolitan Magistrate’s order directing the release of 12 oxygen concentrators seized by the Delhi Police for use among police officers and judicial officers, observing that the MM, in his “zeal to provide life-saving machines to frontline workers”, forgot that a judge has to act and behave like “a self-less, dispassionate saint”.

Principal District and Sessions Judge Narottam Kaushal passed the order on Saturday setting aside the order of MM Anuj Bahal. On May 5, Bahal had ordered the release of 12 oxygen concentrators seized from two accused persons, Vinay Agarwal and Akash Vashist.

DSJ Kaushal has directed the investigating officer of the case, who had earlier moved the application before MM Bahal, “to move a fresh application before the appropriate authority viz. the District Magistrate… or on the basis of notification, if any, declaring the seized articles to be essential commodity. Needless to say he must act without wasting time”.

The court in its order wrote: “A perusal of the impugned order reveals that MM was greatly influenced by the fact that two judicial officers had lost their lives in battle with Covid-19; 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 Covid-19 virus. MM, in his zeal to provide life-saving machines to frontline 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 and behave like a selfless, dispassionate saint. He has to rise above the interests of self and his ilk. Benevolent and well-intended, his act may be, the same cannot breach the Constitutional provisions of equality. On the touchstone of these morals and principles of law, MM seems to have faltered.”

Additional Public Prosecutor V K Swami, who appeared on behalf of the State, argued that “the oxygen concentrators should be released to such facilities where they could be used round the clock for those who needed it the most”.

He argued that the Metropolitan Magistrate’s order is in “violation of Section 6 (E) of Essential Commodities Act, which provides Collector to be the competent authority to order possession, delivery, disposal, release or distribution of case property”.

It was also argued that the Delhi High Court, in an order dated April 28, has “directed that in case of seizure of medicines/oxygen cylinders, the same should be informed to the district commissioner concerned, and the district commissioner should proceed to pass orders for release of the same without any delay”.

The court perused the Delhi High Court order and observed, “In view of the aforesaid observation of the High Court of Delhi, IO ought to have immediately informed the district magistrate and placed the seized machines at the disposal of district magistrate for suitable utilisation during the period of investigation/ trial.”

The court noted that “no notification declaring the oxygen concentrators to be essential commodity has been placed on record by the IO; evidently provisions of Section 3/7 of the Essential Commodities Act are not attracted.”

“The IO was probably clear of this position, that is why the application for release of case property was moved by him before the MM and not before the district magistrate, as is the mandate of Section 6E of the Essential Commodities Act,” the court noted.

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