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Some irregularities in procedure to seize, shall not vitiate the seizure: High Court of Delhi

Even if there was an irregularity at the time of making a seizure, procedural or otherwise, it would not ipso facto vitiate the seizure. The Courts have consistently held the evidence obtained even through an “illegal” search or seizure will not be excluded or discarded only on the ground that it was obtained through illegal or irregular means. It has been consistently held unless prejudice and miscarriage of justice is pleaded and shown, a mere irregularity shall not result in setting aside of proceedings, or in relevant evidence being discarded. This was held in MATRIX CELLULAR (INTERNATIONAL) SERVICES LIMITED V. STATE (NCT OF DELHI) [W.P.(CRL) 975/2021] in the High Court of Delhi by a single bench consisting of JUSTICE YOGESH KHANNA.

The facts are that the petitioner is dealing in oxygen concentrators. FIR under Sections 3/7 of the Essential Commodities Act, under Section 3 of the Epidemic Diseases Act, and Section 420/188/ 120B/34 IPC was registered against the petitioner. The writ petition has been filed by the petitioner for direction to the respondent to immediately release the products/stock seized by it from the petitioner’s Collection Centre at Lodhi Colony and the petitioner’s office premises at Mehrauli on the basis if the FIR.

The counsel for the petitioner submitted that despite the FIR being registered on 05.05.2021, the entire seized material was sent to the Deputy Commissioner and not to a local Magistrate hence they have no remedy under Section 451 or 457 Cr P C to move an appropriate application before learned Magistrate and since the seizure is illegal, the remedy is only to file a Writ under Article 226 of the Constitution.

The counsel for the State relied upon order(s)/notification(s) issued by the appropriate government from time to time to fight this pandemic. The same included office memorandum dated 29.06.2020 issued by the Ministry of Chemicals and Fertilizers, National Pharmaceuticals Pricing Authority, Department of Pharmaceuticals, Government of India, and Order dated 07.05.2021 issued by the Drug Controller Department, GNCT of Delhi.

The court made reference to the judgment of Delhi High court in  Venkateshwar Hospital vs. Govt., wherein it was held that “Whenever any seizure is made of the medicines/Oxygen cylinders, the IOs should immediately inform the concerned District Commissioner about the same, and they should also proceed, without waiting for any further orders, to ascertain the genuineness of the said medicines. They should also ensure that the said case property is kept in refrigerated environment, so that the same does not lose its efficacy and become non-usable. The District Commissioners should proceed to pass orders for release of the same without any delay.”

The court also made reference to section 102 Crpc and observed that “seized items were found under suspicious circumstances where individuals were in alleged violation of the Covid-19 lockdown measures imposed at that time, and accordingly, police was authorised to seize the oxygen concentrators lying at the spot. The registration of the FIR was not mandatory for search and seizure under Section 102 Cr P C”. Also placing reliance on Commandant, 68 Bn. BSF, Gakulnagar v. Arjun Das (2006) 12 SCC 129 the court observed that, “it has been held an irregularity of the procedure is a matter of fact to be decided during trial. Hence, it cannot be the subject matter of current writ petition”.

Considering the facts of the case and the legal precedents, the court observed that,  the oxygen concentrators being a lifesaving machine, is covered within the definition of Drug per Section 3(b)(iv) of the Drugs and Cosmetics Act and per GOI notification all devises meant for diagnosis, prevention, monitoring, treatment or alleviation of any disease are covered under the definition of Drugs; thus there appears to be no illegality in the act of respondent especially when the State was reeling in acute shortage of drugs, cylinders, concentrators, and attendants of patients were running pillar to post. Thus dismissing the petition.

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