By LE Desk

New Delhi, May 11: As India gasps for oxygen amidst the Covid-19 pandemic, public anger is increasing at people hoarding oxygen cylinders, oxygen concentrators, and medicines, and selling them at high prices. 

The Delhi High Court has asked the Centre and the Delhi government why a notification under the Essential Commodities Act has not yet been issued to classify concentrators as “essential commodities”, India Today reported.

However, while oxygen gas, cylinders, and essential medicines are “essential commodities” under the Law, the Law is not so clear when it comes to other medical equipment.

There are many provisions in the Law that monitor and regulate the price of medical equipment and medicines. The Drugs Pricing Control order (DPCO) 2013, issued by the National Pharmaceutical Pricing Authority (NPPA), which comes under the Ministry of Chemicals and Fertilizers has set limits on prices of Drugs– which include medicines and several classes of medical equipment. NPPA has the authority to set maximum pricing for drugs and to monitor the current prices without setting limits. It can also make rules to control prices.

The Essential Commodities Act 1955 also allows the Government to pass orders classifying any commodity, agricultural or manufactured as an “essential commodity”. The Government can then pass directions for controlling the price at which essential commodity may be bought or sold; regulating by licenses, permits or otherwise the storage, transport, distribution, disposal, acquisition, use or consumption of, any essential commodity; and for prohibiting the withholding from sale of any essential commodity ordinarily kept for sale. Any violation of the government orders would lead to punishment of up to 7 years, in addition to fines, seizure of property, and other penalties.

Another law for regulating black-marketing is the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1980. This act allows government officials– of the rank of District Magistrate, Police commissioner, or a Secretary of the State government to pass orders for preventive detention of any person who is “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community.” This Act allows for preventive detention of any person who could be either themselves committing or instigating someone to commit an offence under the Essential Commodities Act or could be dealing in the Commodities that have been classed as “essential commodities.

However, for any of these provisions to apply, the first requirement is that the “commodity” must be notified as an “essential commodity” by the government.

On March 31, 2020, the NPPA, issued an order stating that “medical devices” would be reclassified as “drugs”, which can be regulated under the Drugs Pricing Control Order (DPCO) 2013 read with the Essential Commodities Act 1955.

Under this provision, the MRP of the medical devices would be monitored, to ensure that no manufacturer/importer increases the MRP of a drug by more than 10% of the MRP during one year. If anyone does so, they would be faced with a penalty.

Following this order, on June 29, 2020, the NPPA issued an Office Memorandum(OM) to monitor MRP of Pulse Oximeters and Oxygen concentrators. A Notice was issued to all importers/manufacturers to submit MRP details under the DPCO 2013. The OM also reiterated that the price of medical devices cannot be increased more than 10% in a year.

However, while the hike in prices is being monitored, the two medical devices have not yet been declared as “essential commodities” under the specific provisions, according to India Today.

An order passed by the NPPA on September 26, 2020, specifically noted that Medical Oxygen is an Essential Public Health Commodity, and set the pricing limit for Liquid Medical oxygen (LMO) at Rs 15.22 per cubic meter, and for Oxygen Inhalation (Medicinal gas) in a cylinder at Rs 25.71 per cubic meter. This order was extended in March 2021 for a further six months.

On May 6, a Delhi High Court bench of justices Vipin Sanghi and Rekha Palli had also heard a PIL for capping prices of Oxygen Concentrators. In its order, the HC had observed that concentrators were being sold at “exorbitant prices” and had asked the Centre to examine the issue.

The bench had noted that “importers cannot be allowed to charge exorbitantly and their profit margins may be fixed at a reasonable limit.”

In fact, on May 8, 2021, a district court in Dwarka specifically noted in its order that this June 29, 2020, OM, “does not, in any case, declare Oxygen Concentrators to be Essential Commodity.”

The district court, which was hearing a case relating to seizure of oxygen concentrators being allegedly hoarded and sold at a higher price, has held that “In the aforesaid facts & circumstances when no notification declaring the Oxygen Concentrators to be essential commodity has been placed on record by the IO; evidently the provisions of Section 3/7 of the Essential Commodities Act are not attracted.”

Even, in the now highlighted Navneet Kalra oxygen concentrator hoarding case, the plea taken by Kalra in his anticipatory bail plea is that the provisions under the Essential Commodities Act cannot apply, since the concentrators are not a notified essential commodity.

The Police, in various states, while filing FIRs against persons found hoarding oxygen cylinders and oxygen concentrators, have included Sections 3/7 of the Essential Commodities Act, Sections of the Epidemic Diseases Act, and provisions relating to Cheating (s420 IPC), and violation of orders passed by Government (s188 IPC).

Senior advocate Ramesh Gupta, speaking to India Today, said that while there is no legal definition of “hoarding”, there are regulations in place regarding illegal hikes in the pricing of goods. However, Gupta also said that he had “not been able to find any notification or government order regarding such regulation of oxygen concentrators.”

Senior Advocate Geeta Luthra also points out that recently the High court had “requested” the Central government to pass orders to cap prices.

“I believe this is morally and ethically wrong and unacceptable, however, there does not seem to be an infraction of the Law, because there appears to be no notification so far. The offence will be of cheating if the people selling the Concentrators are promising some cure or a higher level of medical aid while selling at inflated prices,” said Luthra.

https://www.indiatoday.in/coronavirus-outbreak/story/why-are-oxygen-concentrators-not-classified-as-essential-commodity-asks-delhi-high-court-1800947-2021-05-10

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