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Monday, July 19, 2021

MP High Court on Black-Marketing of Remdesivir

 


INTRODUCTION

 

On today’s show, we will discuss two judicial pronouncements of Hon’ble High Court of Madhya Pradesh, namely, Sonu Bairwa v. State of M.P. & Others, 2021 SCC OnLine MP 1212, and Hariom v. State of Madhya Pradesh, M.Cr.C. No. 33471 of 2021. The first Judgment was pronounced by the Division Bench of Hon’ble Shri Justice Sujoy Paul and Hon’ble Shri Justice Anil Verma and was authored by Hon’ble Shri Justice Sujoy Paul, and the second Order was pronounced and authored by the Single Bench of Hon’ble Shri Justice Anil Verma. Vide such Orders, the Hon’ble High Court of Madhya Pradesh dealt with the important issue of black-marketing of life saving drugs like Remdesivir etc.

 

FIRST CASE - SONU BAIRWA V. STATE OF MP & OTHERS

 

In the case of Sonu Bairwa v. State of MP & Others, an Order passed under Section 3 and 3 of the National Security Act, 1980 (in short, “NSA”) detaining the Petitioner was under challenge. Briefly speaking, Section 3 of the NSA provides that the government may detain a person for preventing him from acting in any manner prejudicial, to the security of the state, or for maintenance of essential services or supplies or public order, and such period of detention could be extended from time to time.

 

The brief facts of the case are that the Petitioner in this case had indulged in black-marketing of Remdesivir Injections during the second wave that had caused serious threat to public order. The Petitioner was detained under the NSA Act. In order to gather a better understanding of the matter, let us go through the observations given by the Hon’ble Court.

 

OBSERVATIONS

 

Firstly, the Court observed that though the impugned Order incorrectly mentions that the Petitioner is ‘absconding’, yet the same in itself is not a sufficient ground to set aside the entire Order.

 

Secondly, the Court observed that Remdesivir is a life-saving drug that is in short supply. Consequently, its black-marketing has a direct impact on ‘public order’ and if the Petitioner is released from detention, he could indulge into the same activity again.

 

Thirdly, the Petitioner was relying upon a case-law that involved black-marketing of Oxyflow Meter. The Hon’ble Court distinguished such case from the present one as in the present, a life-saving drug that is in heavy demand is involved. According to the Court, “this is trite that a judgment of a Court cannot be read as Euclid's theorem” and “this is equally settled that little difference in facts or an additional fact may make a lot of difference in the precedential value of a decision.”

 

Fourthly, the Court discussed when a person who is already in custody could be detained further under the NSA Act.

 

a. Detaining authority had knowledge about detenu's custody;

b. There exists real possibility of detenu's release on bail;

c. Necessity of preventing him from indulging in activities prejudicial to the security of State or maintenance of public order upon his release on bail.

 

According to the Court, all the criteria are satisfied in the instant case.

 

Fifthly, the Court cited the case of Rajkumar Singh v. State of Bihar, (1986) 4 SCC 407, wherein it was observed that “hard and ugly facts make application of harsh laws imperative.” According to the Court, “blackmarketing of a drug like remedesivir in days of extreme crisis is certainly such an ugly act and fact which can very well be a reason for invoking Section 3 of NSA Act against the petitioner by District Magistrate.”

 

Sixthly, the Court discussed the Explanation appended to S. 3 of the NSA that provides that no order of detention could be made under NSA on any ground on which detention could be made under the Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act, 1980. The Court elucidated that an ‘explanation’ can be both additive or subtractive in nature and in the case, the ‘explanation’ does not “take away the right of detaining authority under the NSA Act regarding eventualities relating to maintenance of ‘public order’ or security of the State.” The Court supplemented its reasoning by interpreting S. 3 (2) and laying down the three contingencies for its invocation: -

 

a. Prejudice to security of State.

b. Prejudice to maintenance of public order.

c. Prejudice to maintenance of essential supplies and services.

 

According to the Court, only in contingency (c), can the ‘explanation’ be applied and in the present case, black-marketing of remdesivir creates a threat to ‘public order.’

 

And lastly, the Court cited the case of Ajay Maken v. Adesh Kumar Gupta, (2013) 3 SCC 489, to underscore the point that the rule of literal construction cannot be applied in a sweeping manner to all situations as it may not subserve the purpose of the statute. As discussed, out of the three eventualities or contingencies, even if any one is satisfied, the same would be sufficient to invoke the NSA.

 

Therefore, in light of the above, the Division Bench dismissed the Writ Petition. Now, let us discuss the second Order in relation to Remdesivir and thereafter I shall provide my composite views in relation to both the judicial pronouncements.


SECOND CASE - HARIOM V. STATE OF MP

 

In the second case, similar factual matrix was involved as the Applicant in the present case was arrested by the Police for black-marketing of Remdesivir Injunctions and had applied for bail before the High Court. The Remdesivir Injunctions were recovered from the possession of the co-accused and high-grade antibiotics like Tozotum, Piperacillin and Tazobactum, were recovered from the Applicant. It is pertinent to note that apart from the anti-viral drug Remdesivir, high grade antibiotics like Tazobactum are also in high demand in the Covid-19 Pandemic Situation. These anti-bacterial drugs are used to manage the secondary infections that may occur in Covid-19 patients.

 

The charges against the Applicant for which he was arrested are under S. 188, 420, 120B of the Indian Penal Code (in short, “IPC”), S. 3 of the Epidemic Diseases Act, 1897, S. 24 of the Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987, S. 5 and 13 of M.P. Drug Control Act, 1949 and S. 3 and 7 of Essential Commodities Act, 1955. I am not discussing these provisions in detail for the sake of brevity, but anybody interested could read about them by searching on Google. The cumulative effect of these provisions is to book a person who has indulged in hoarding or black-marketing of life-saving drugs like Remdesivir.

 

Now, let us discuss the observations by the Court.

 

OBSERVATIONS

 

Firstly, the Court cited S. 3C of the Epidemic Diseases Act, 1897 that provides that “where a person is prosecuted for committing an offence punishable under sub-section (3) of section 3, the Court shall presume that such person has committed such offence, unless the contrary is proved.” According to the Court, the factum of no possession of Remdesivir Injunction would have helped the Applicant had this been a case of no evidence, but in the present case, even if no Remdesivir Injunction is directly recovered from the possession of the Applicant, it cannot mean that he has not committed any offence as the same were recovered from the co-accused persons and such prima facie evidence is available on record. Thus, the burden of proof to prove that no offence is made out is on the Applicant.

 

Secondly, the Court observed that during Covid-19 Pandemic, Oxygen, Remdesivir etc. are in high demand and thousands of patients on their death bed were making efforts to procure these medicines. Black-marketing of such life-saving medicines at exorbitant prices is a crime against humanity and the Court cannot “turn a nelson's eye to such incident.”

 

Therefore, upon cumulative consideration of the above, the Court was pleased to dismiss the Bail Application of the Applicant.

 

Those were the observations of the Court. So, what are my concluding remarks?

 

CONCLUDING REMARKS

 

It is needless to state that Covid-19 Pandemic has wreaked havoc all over the world and concerted efforts are being made everywhere to fight the disease. In such trying times, it is deplorable to see criminal elements indulging in black-marketing of drugs like Remdesivir. I welcome the reasoning given by the Division Bench that such black-marketing, at a time when thousands of needy people require life-saving drugs, indeed disturbs the public order and hence, NSA Act is liable to be invoked under such circumstances.

 

Though bail is the rule and jail is an exception under our criminal jurisprudence, yet in the cases that we just discussed, the Court rightly observed that if such persons are left scot-free, they might again indulge into black-marketing thereby disrupting the public order and the Court cannot remain as a mute spectator.

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