Court junks order to release seized Oxygen Concentrators for use by Police

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A Sessions Court in Delhi on Saturday has set aside a magistrate Court order that directed to put to use seized 12 oxygen concentrators either by Delhi Police Officials and the Judicial Officers and their families.

Dwarka court’s Principal District and Sessions Judge (South West Delhi) Narottam Kaushal set aside the order dated May 5 passed by the Metropolitan Magistrate (MM) and observed that MM in his zeal to provide life-saving machines to front line workers , was so dazzled that he forgot that a judge has to act and behave like a self-less, dispassionate saint.

“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,” Sessions Judge Kaushal said.

“As I pen down this order, the judicial fraternity has lost one more officer, who also succumbed to Covid-19 virus. 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 and behave like a self-less, dispassionate saint. “

The sessions Court said that magistrate has to rise above the interests of self and his ilk and 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, Ld. MM seems to have faltered. The impugned order dated 5.5.2021, thus, is not sustainable and is set aside,” the Court said.

The Court directed Investigating officer to move a fresh application before the appropriate authority viz. the District Magistrate, in terms of orders passed by the High Court in Venkateshwar Hospital’s case (supra) or on the basis of notification, if any, declaring the seized articles to be an essential commodity. Needless, to say he must act without wasting time.

The Court however noted that the Investigating officer was probably clear of this position, that is why the application for release of the case property was moved by him before the Ld. MM and not before the District Magistrate, as is the mandate of Sec.-6E of the Essential Commodities Act as 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 said.

The Sessions Court also noted Delhi High Court which grants power to District Commissioners to proceed to pass orders for release of the seized article like the medicines/oxygen cylinders.

“In view of the aforesaid observation of the Hon’ble High Court of Delhi, the investigation officer 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/ trial,” the Court said.

The court was hearing revision petition filed by the state through additional public prosecutor VK Swami, who argued citing Delhi High Court’s recent ordered that in case of seizure of Medicines/ Oxygen Cylinders, the same should be informed to the Concerned District Commissioner and the District Commissioner should proceed to pass orders for release.

Metropolitan Magistrate had directed Delhi Police to release 12 seized Oxygen concentrators seized on May 4, for the medication of police officers, judicial officers, and their family members infected with COVID-19.

The Metropolitan Magistrate Anuj Bahal in an order passed on Wednesday directed that, out of 12, two Oxygen Concentrator should be released to Dwarka Deputy Commissioner of Police, for the use of COVID-19 infected police personnel.

The magistrate order has said that three Oxygen Concentrator should be released for infected judicial officers at Tiz Hazari court; two to the office of Principal District and Session Judge in Dwarka; three to the office of Principal District and Session Judge in Saket; and two to Covid Health Centre, at Delhi Judicial Academy, Dwarka.

The magistrate court has also noted that a large number of judicial officers and their families in Delhi are infected with the COVID-19 virus and unfortunately two members of the Delhi Judiciary- Family Judge Kovai Venugopal and Metropolitan Magistrate, Dwarka Kamran Khan- have lost their lives due to COVID-19.

The application was filed by the investigation officer of Delhi Police who sought direction for releasing the Oxygen Concentrator and submitted that on May 4, 12 oxygen concentrators were seized from the accused persons– Vinay Agarwal and Akash Vashist– and all of them were deposited in Police Station Dwarka Malkhana.

It submitted that many police personnel, Judicial officers and their families are suffering from COVID-19 and therefore, these oxygen concentrators can be used for saving the lives of the police personnel.

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