Written By: – UTKARSH AGRAWAL (ADVOCATE)
HIGH COURT OF M.P.
BBA-LLB (Hons.), LLM
1. THE PANDEMIC:
The pandemic Covid-19 has wreaked havoc. People from every stratum have been affected by it; fortunate were those who were able to overcome it. The first wave destroyed the economy; India while fighting back, was on its way back to stability but was again struck by an unexpected second wave which is even more deadly.
As per the Indian Council of Medical Research (ICMR) report, the second wave is characterized by unprecedented demand for medical-grade oxygen leading to severe shortages. As a result whereof, life-saving Anti-viral drugs like Remdesivir, Favipiravir, Tocilizumab injection, and Dexamethasone Tablets are in high demand. Amidst all this suffering, Black-marketing is at its all-time high. The challenge for Administration is to tackle this menace effectively.
2. ACTION AGAINST CULPRITS:
Of Late, an FIR has been registered as crime No. 252/2021 at PS- Omti, Jabalpur (M.P.) against various persons for an offense under the provisions of the Essential Commodities Act, 1955, Indian Penal Code, 1860, and the Disaster Management Act, 2005. The charge in the said FIR is ‘non-maintenance of records of life-saving drugs’ and ‘sale of fake life-saving drugs’. The FIR contains some big names of Jabalpur.
Since the time this crime has come to light, there has been a clamor for invocation of provisions of the National Security Act, 1980 (Hereinafter- ‘NSA‘ for brevity) against the accused in the aforesaid crime. It is learned through newspaper [Ref. Dainik Bhaskar, Jabalpur edition dated 12/05/2021] that upon the report of Superintendent of Police (SP) a warrant has been issued by the District Magistrate (DM) provisions of NSA.
3. MOOT QUESTION:
The moot question is whether provisions of NSA can be invoked for the accused in an aforesaid crime or not? I have reservations regarding the invocation of the provisions of NSA which made me write this piece so that the accused don’t take advantage of technicalities of law in the Courts.
4. WHAT LAW SAYS:
The provisions of the NSA can be invoked only on the parameters envisaged in Sub-section (2) of Section 3 of the NSA i.e. to prevent any person from acting:
(i) In any manner prejudicial to the security of the State, or
(ii) In any manner prejudicial to the maintenance of public order, or
(iii) In any manner prejudicial to the maintenance of supplies and services essential to the community.
It is obvious that ‘non-maintenance of records of life-saving drugs’ and ‘sale of fake life-saving drugs’ will not come under 1st aforementioned contingency. For 2nd contingency, it is seen that the words ‘Public order‘ are of wide amplitude and may not directly attract charges in the FIR, to, invoke NSA. The 3rd contingency is excluded under Explanation to Section-3(2) of the NSA. The explanation is reproduced as under:
“Explanation—For this sub-section, “acting in any manner prejudicial to the maintenance of supplies and services essential to the community” does not include “acting in any manner prejudicial to the maintenance of supplies of commodities essential to the community” as defined in the Explanation to sub-section (1) of section 3 of the Prevention of Black Marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (7 of 1980), and accordingly, no order of detention”
Hence, from above it is clear that provisions of NSA may not be attracted against the accused in the aforementioned crime number due to enactment of Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 (Hereinafter- ‘Black-marketing Act’ for brevity).
5. CONCLUSION:
As seen hereinabove that provisions of NSA cannot be invoked as the conduct of the accused in the aforementioned crime number is not covered under four corners of Section-3(2) of the NSA Act but certainly provisions of Prevention of ‘Black-marketing Act’ can be invoked as Section-3(2) (a) thereof empowers the District Magistrate to pass detention orders. However, the only point of difference is that the maximum period for detention order in terms of Section-13 of the Black-marketing Act is 6 months as against 1 year under Section-13 of the NSA.
The conduct of the accused in the aforesaid crime number is unpardonable, to say the least. As a practicing Advocate, I cannot propagate not to contest for accused as they have the right to defend themselves by engaging Advocates of their choice which right of theirs is guaranteed by the Constitution of India. Therefore, this piece is an attempt to ensure that these accused may not take advantage of technicalities of law, as in my opinion there may be a legal impediment in the invocation of provisions of NSA for reasons pointed out hereinabove. Hence, this aspect of the matter may be reconsidered by District Administration and if the need arises, instead of invocation of provisions of National Security Act, 1980, provisions of Prevention of Black-marketing and Maintenance of Supplies of Essential Commodities Act, 1980 may be invoked
Vidhi Mitra 