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”.
 IN THE HIGH COURT OF DELHI AT NEW DELHI Delivered on : 27th May 2021 32 W.P.(CRL) 975 2021 MATRIX CELLULARSERVICES LIMITED ..... Petitioner Through : Mr.Mohit Mathur Mr.Trideep Pais Senior Advocates with Mr.Samudra Sarangi Ms.Shruti Khare Raina Ms.Srishti Ms.Abhilasha Khanna Ms.Nishtha Aggarwal Ms.Moha Paranjpe Mr.Sumit Misra and Ms.Sanya Kumar Advocates. STATE..... Respondent Through : Mr.S.V.Raju ASG with Mr.Sanjay Crl) Lao Standing Counsel Ms.Kamna Vohra ASC with Ms.Sairica Raju Mr.A Venkatesh Kumar Ms.Zeal Shah Mr.Shaurya R Rai and Mr.Anshuman Singh Advocates for the State. HON BLE MR. JUSTICE YOGESH KHANNA YOGESH KHANNA J. This writ petition is 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. Further it is also prayed to restrain the respondent from seizing any further products of the petitioner pursuant to W.P.(Crl) No.975 2021 the FIR besides other reliefs or even otherwise. This prayerhas since been withdrawn. The gamut of the arguments raised by the learned senior counsel for the petitioner is a raid conducted on 05.05.2021 by the SHO of police station Lodhi Colony while patrolling in the area on the restaurant in the name and style of Nege Ju in the Central Market Lodhi Colony New Delhi. On search of aforesaid premises 32 boxes of Oxygen Concentrators of 09 and 05 liters capacity one box of thermal scanner and KN 95 Masks were recovered. In this regard the FIR No.116 2021 dated 05.05.2021 under Section 3 7 of the Essential Commodities Act under Section 3 of the Epidemic Diseases Act and Section 420 188 120B 34 IPC was registered at police station Lodhi Colony. Four accused persons were also arrested therein. During the course of investigation at the instance of accused persons 387 oxygen concentrators 112 boxes containing KN 95 marks 95 Oximeter were recovered from Matrix Cellular International Services Private Limited 7 Khullar Farm House Mandi Road Fatehpur Beri New Delhi. During the investigation the accused persons allegedly disclosed regarding black marketing of oxygen concentrators and other Covid 19 treatment related equipment from various sources and supply sold to the highest payer and needy person. On 06.05.2021 one day police custody remand was taken of two accused persons and at their instances further recovery from Town Hall Restaurant Khan Market New Delhi was effected. On 07.05.2021 96 oxygen concentrators were also from Khan Chacha W.P.(Crl) No.975 2021 Restaurant Khan Market New Delhi and further invoices in the name of Dayal Opticals for selling of 250 oxygen concentrators were recovered at the instance of accused Hitesh. The allegations are in the year 2020 due to global pandemic the work of the petitioner company was affected and they started dealing in Covid 19 related items and imported oximeter KN 95 mask and also procured rest of the articles locally and sold them to the dealers and corporates. The allegations are they are selling the oxygen concentrators to the needy person with profit margin of Rs.40 000 to Rs.42 000 per piece. The arguments of the learned senior counsel for the petitioner is 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. It is argued the petitioner is dealing in oxygen concentrators and not oxygen cylinders and the equipments which are seized from the petitioner are sold over the counters and is not a regulated controlled item. These items are being sold by Amazon and other online portals and the acts of petitioner have been carved out separately is a mischief of the concerned Investigating Officer. W.P.(Crl) No.975 2021 Reference is made to various invoices filed on record stating interalia they have got these equipments imported for sale and the market prices are controlled by demand and supply and as there is no order of the Government controlling its prices hence no case is made out against the petitioner. It is alleged even the Division Bench of this Court has not given any direction qua concentrator. Reference is made to an order dated 06.05.2021 passed by the Division Bench of this Court in W.P.(C) No.3031 2020 which interalia notes: “5.Mr.Sanjay Dhir Professor IIT Delhi has also joined the proceedings and submits that though the portal for stock of medicine is operational qua Remdesivir the NIC is awaiting instructions from the DGHS regarding the names of the other drugs to be added to the portal thereafter the portal can be operated by the complete supply chain including the hospitals by adding in data from time to time. The DGHS should take steps to include other essential drugs in short supply for treatment of COVID 19.” 10. The learned senior counsel for the petitioner refers to Section 102 451 and 457 Cr P C to say as none of the seized properties articles were ever produced before learned Magistrate having the jurisdiction over the area hence no application under Section 457 CrP C could be made. It is argued Section 2 2A and 3 of the Epidemic Diseases Act and Section 3 & 7 of the Essential Commodities Act are though relevant but since there are no regulations and orders under the Act(s) hence the seized articles being not the controlled items its seizure is illegal. W.P.(Crl) No.975 2021 It was also argued the relevant notification was issued by the State only on 07.05.2021 i.e. after the seizure and hence the seized articles needs to be returned to the petitioner. 13. Qua the maintainability of this petition the learned senior counsel for the petitioner referred to Wazir Chand vs State of Himachal Pradesh and the District Magistrate Chamba AIR 1954 SC 415 which held: 14. Further in Karam Chand Ganga Parsad And Another vs Union of India 1970(3) SCC 694 the Supreme Court held: “10. Lastly it was argued that the petitioner made an application under Section 523 CrPC to the Magistrate and that application was dismissed and that a petition for revision against that order was still pending and that when another remedy had been taken Article 226 could not be availed of. This contention cannot be sustained firstly in view of the fact that Section 523 has no application to the facts and circumstances of this case and the Magistrate had no jurisdiction to return these goods to the petitioner. Secondly the revision application has been dismissed on the ground that there was no jurisdiction in this case to grant relief to the petitioner under Section 523.” “3.The principal questions that arose for decision before the High Court were Was the ban on export lifted by the State Government If it did lift the ban was it competent to do so If the ban is held to have been validly lifted it follows as a necessary corollary that the refusal on the part of the railways to deliver the maize exported is illegal and the authorities were not competent to seize or forfeit the Maize exported. Further the prosecutions launched would become unsustainable. 4. A Division Bench of the Delhi High Court after elaborately hearing the arguments advanced in the case on the various issues arising for decision in the case rejected the writ petitions on the sole ground that in view of the pendency of the criminal proceedings before some Courts in the State of West Bengal it is inappropriate for the High Court to pronounce on the questions arising for decision in the writ petitions. In our opinion the High Court seriously W.P.(Crl) No.975 2021 erred in coming to this conclusion. If the appellants are able to establish their case that the ban on export of maize from the State of Haryana had been validly lifted all the proceedings taken against those who exported the Maize automatically fall to the ground. Their maintainability depends on the assumption that the exports were made without the authority of law. It is a well established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true. The High Court after entertaining the writ petitions and hearing arguments on the merits of the case should not have dismissed the petitions merely because certain consequential proceedings had been taken on the basis that the exports in question were illegal. For the decision of the controversy between the parties to the writ petitions neither the presence of the State of West Bengal nor the authorities who took penal action was necessary. The validity of the steps taken by them as mentioned earlier would depend upon the validity or otherwise of the export in question.” Thus it was argued only if the State had regulated the import and capped the price of concentrators only then these could have been seized hence without any order under Essential Commodities Act or without any regulation under The Epidemic Diseases Act the act of the State is wholly illegal and hence the articles need be returned. 16. Heard. 17. Before proceeding further let me examine whether the act of respondent in seizing the articles is legal In this context the relevant provision of the different Act(s) need to be noted. 18. The drug defined under Section 3 (iv) of the Drugs and Cosmetics Act is as under: “3. Definitions. —In this Act unless there is anything repugnant in the subject or context: aa) xxx W.P.(Crl) No.975 2021 aaa) xxx b) durg includes i) toxxxx iv) such devices intended for internal or external use in the diagnosis treatment mitigation or prevention of disease or disorder in human beings or animals as may be specified from time to time by the Central Government by notification in the Official Gazette after consultation with the Board Epidemic Diseases Act 2. Power take special measures and prescribe regulations as to dangerous epidemic disease When at any time the State Government is satisfied that the State] or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease the State Government if it thinks that the ordinary provisions of the law for the time being in force are insufficient for the purpose may take or require or empower any person to take such measures and by public notice prescribe such temporary regulations to be observed by the public or by any person or class of persons as it shall deem necessary to prevent the outbreak of such disease or the spread thereof and may determine in what manner and by whom any expenses including compensation if any) shall be defrayed. 2A. Powers of Central Government. When the Central Government is satisfied that India or any part thereof is visited by or threatened with an outbreak of any dangerous epidemic disease and the ordinary provisions of the law for the time being in force are insufficient to prevent the outbreak of such disease or the spread thereof the Central Government may take such measures as it deems fit and prescribe regulations for the inspection of any bus or train or goods vehicle or ship or vessel or aircraft leaving or arriving at any land port or aerodrome as the case may be in the territories to which this Act extends and for such detention thereof or of any person intending to travel therein or arriving thereby as may be necessary. 3. Penalty : Any person disobeying any regulation or order made under this Act shall be deemed to have committed an offence punishable under section 188 of the Indian Penal Code W.P.(Crl) No.975 2021 2) Whoever i) commits or abets the commission of an act of violence against a healthcare service personnel or Essential Commodities Act 3. Powers to control production supply distribution etc. of essential commodities. 1) If the Central Government is of opinion that it is necessary or expedient so to do for maintaining or increasing supplies of any essential commodity or for securing their equitable distribution and availability at fair prices 1[or for securing any essential commodity for the defence of India or the efficient conduct of military operations] it may by order provide for regulating or prohibiting the production supply and distribution thereof and trade and commerce therein. 7. Penalties:If any person contravenes any order made under Section 3 a) he shall be punishable xxxx” 19. The State also relies upon order(s) notification(s) issued by the appropriate government from time to time to fight this pandemic. The following notifications have been issued and are cited below. 20. An office memorandum dated 11.02.2020 issued by Government of India is as under: “MINISTRY OF HEALTH AND FAMILY WELFARE Department of Health and Family Welfare) New Delhi the 11th February 2020 S.O. 648(E).— In pursuance of sub clauseof clauseof section 3 of the Drugs and Cosmetics Act 1940the Central Government after consultation with the Drugs Technical Advisory Board hereby specifies the following devices intended for use in human beings or animals as drugs with effect from the 1st day of April 2020 namely:― W.P.(Crl) No.975 2021 All devices including an instrument apparatus appliance implant material or other article whether used alone or in combination including a software or an accessory intended by its manufacturer to be used specially for human beings or animals which does not achieve the primary intended action in or on human body or animals by any pharmacological or immunological or metabolic means but which may assist in its intended function by such means for one or more of the specific purposes of ― i) diagnosis prevention monitoring treatment or alleviation of any disease or disorder ii) diagnosis monitoring treatment alleviation or assistance for any injury or disability iii) investigation replacement or modification or support of the anatomy or of a physiological process iv) supporting or sustaining life v) disinfection of medical devices and vi) control of conception. F.No. X.11035 281 2018 DRS] Dr. MANDEEP K. BHANDARI Jt. Secy.” An order No.PN 206 74 2020 F F No.8(74) 2020DP NPPA Div. II dated 31st March 2020 is as under: “S.O. 1232(E) In pursuance of Notification No. S.O. 648(E) dated 11th February 2020 issued by Ministry of Health & Family Welfare Government of India whereby Medical Devices intended for use in human beings or animals have been notified as Drugs with effect from 1st April 2020 all Medical Devices shall accordingly be governed under provisions of the DrugOrder. 2013." Also vide Notification No. 4 2015 2020 New Delhi Dated 30 April 2021 it has been notified that effect of the Notification: Para 2.25 of Foreign Trade Policy 2015 20 is revised to include import of Oxygen Concentrator for personal use through post courier or e commerce portals list of exempted categories where Customs clearance is sought as gifts" till 31 July 2021." 22. An office memorandum dated 29.06.2020 issued by the Ministry of Chemicals and Fertilizers National Pharmaceuticals Pricing W.P.(Crl) No.975 2021 under: Authority Department of Pharmaceuticals Government of India is as “File No.20(8) 09 2019 Div.III NPPA Government of India Ministry of Chemicals and Fertilizers Department of Pharmaceuticals National Pharmaceutical Pricing Authority 3rd and 5th Floor YMCA Cultural Centre Building 1 Jai Singh Road New Delhi Dated 29th June 2020 O F F I C E M E M O R A N D U M Subj : Monitoring of maximum Retail Prices ofdated 31st March 2020 issued by this Office for regulation of Medical Devices under DrugsOrder. 2013 read with Essential Commodities Act 1955 w.e.f. 1st April 2020. Accordingly Maximum Retail Price of Medical Devices cannot be increased more than ten percentin a year. 2. In order to monitor the price movements of critical Medical Equipments required in clinical management of COVID 19 It has been decided to call for MRP details for the following Medical Devices viz. Pulse Oximeter and i) Oxygen Concentrator in the prescribed format. 3. xxx xxx 4. xxx xxx Ratan K Khatwani) Joint Director E mail : rattan.khatwani@gov.in” 23. An Order dated 07.05.2021 issued by the Drug Controller Department GNCT of Delhi is as under: “GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI DRUGS CONTROL DEPARTMENT F I7 KARKARDOOMA DELHI 110032 E mail ID dirdcd@nic.in Phone No. 011 22393703 No.F.52 DCI HOO 2020 199 Dated 07.05.2021 W.P.(Crl) No.975 2021 Sub: Regarding control over the sale of essential Covid 19 management drugs and ancillary equipments under Drugs Price Control Order Sir Whereas there are several essential drugs used being used in the clinical management of Moderate and Severe cases of COYID J9. Therefore ensuring adequate and uninterrupted supplies of these drugs is absolute necessity to save human lives in Delhi. Whereas there have been some report regarding black marketing of COVID 19 management drugs by unscrupulous elements in the market and there is a need. for immediate enforcement and to keep strict vigil on the market to prevent black marketing. department is hereby instructed for keeping close watch over any such clandestine activity and take strict action if any such case is detected. The assistance of Delhi Police DM office may be taken so as to ensure coverage of all applicable legal provisions. 4. Further all the stakeholders viz. Retailer Wholeseller Distributors of these items are hereby directed not to sell these items over and above the notified price MRP and also to refrain from dealing in these items in a manner which is not permitted or unauthorized and should not get indulged in what so ever manner in their black marketing. Any deviation in this regard will be viewed seriously and stringent action as per law will be initiated against them. the Inspectorate staff of Accordingly all A. K. Nasa) Head of Office Controlling & Licensing Authority” 24. The oxygen concentrator being a device is covered within the definition of Drug per Section 3(iv) of the Drugs and Cosmetics Act. Even if we ignore the notification dated 07.05.2021at the present moment being subsequent to seizure as alleged yet there is a notification dated 11.02.2020 which says device includes an instrument apparatus used for treatment sustaining life etc and an Order dated 31.03.2020 supra) which says medical device intending for use in human being W.P.(Crl) No.975 2021 noted: shall be governed by the provisions of Drug Price Control order 2013. Further an Order dated 29.06.2020 which warns of increasing MRP of the concentrators more than 10% a year. 25. Now the Hon’ble Division Bench of this Court in Venkateshwar Hospital vs. Govt. 2021 SSC OnLine Del 1830 had “17. Mr. Arora submits that when there is huge shortage of the medicines the same should not be retained as case property and the same should be released for use by the patients after ensuring that the same is in usable condition and is genuine. Similarly for the cylinders he submits that the same should be put back in circulation for use by the needy patients. He submits that an application was moved before the concerned CMM for release of the said case property. However that application has been rejected on the ground that the District Commissioner is empowered to pass the order under the Essential Commodities Act. Mr. Satyakam points out that while CMM North has rejected the application for release of the said case property other CMMs have been passing orders for release. In any event since the power to pass release orders lie with the District Commissioners we direct the District Commissioner to pass orders for release of both the Oxygen Cylinders and the medicines at the earliest. The released medicines and Oxygen cylinders be made available for use by the Hospitals of the GNCTD as allocated by the Secretary 18. Whenever any seizure is made of the medicines Oxygen cylinders 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. 19. We also direct the Delhi Police to immediately release the seized Remdesivir or other Drug used for treating COVID 19 or any Oxygen cylinders which are seized from the IOs should W.P.(Crl) No.975 2021 the possession of the patients or their attendants since they would have procured the same only out of desperation and in need. However the Delhi Police would be bound to conduct the investigation in the case with the assistance and cooperation of all concerned which shall be rendered by the public at large. While releasing the case property it shall be ensured by the Delhi Police that photographs copies of the relevant documents are retained so that the case could proceed before the court concerned.” 26. Also in Bram Health Care Private Limited vs. Union of India & Anr W.P.(C) No.4984 2021 per order dated 02.05.2021 the Hon’ble Division Bench had inter alia noted: “During the course of hearing we have been informed that Oxygen gas cylinders Oxygen flow meters and medicines required for treatment of COVID 19 disease are being sold in the black market at a much higher price above the Maximum Retail Priceand of violation of the law orders had acted and seized the material. Now restricting the orders of the Hon’ble Division Bench in Venkateshwar Hospital and Bram Health Care Private Limited supra) only to cylinders and not concentrators would be giving a too narrow interpretation to such order(s). W.P.(Crl) No.975 2021 28. The facts reveal the seizure has been made under Section 102 Cr P C. It gives the power to any police officer to seize any property which may be alleged or suspected to have been stolen or which may be found under circumstances which create suspicion of the commission of any 29. The 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. If one peruse Section 157(1) Cr PC viz the procedure for investigation and Section 2(h) Cr P C which defines investigation the following inference can be drawn from its conjoint reading viz a police officer is empowered under Cr PC to investigate upon information received or otherwise if he suspects the commission of a crime that he is empowered to investigate under Section 156 of the Cr PC and since the investigation includes collection of evidence hence it authorizes the Investigating Officer to seize any property for the purpose of the collection of evidence. Unlike Section 156 Cr P C under Section 102 Cr P C the police is empowered to investigate cognizable cases and the police can seize any property without an FIR. 31. Arguments have been raised qua the alleged irregularities in seizure. Even if it is assumed there were some irregularities in its procedure to seize it shall not vitiate the seizure. The only requirement is the Court needs to be careful in scrutinizing the seizure memo as the law W.P.(Crl) No.975 2021 is crystalized over the years viz Pooran Mal v. Director of Inspection Investigation)1 SCC 345 and State of Maharashtra v. Natwarlal Damodardas Soni4 SCC 669. A bare perusal of above decisions would show 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. In Commandant 68 Bn. BSF Gakulnagar v. Arjun Das12 SCC 129 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. 33. Prima facie the act of the petitioner is in violation of an Office Memorandum Ministry of Chemicals and Fertilizers Government of India of dated 29.06.2020which had directed the petitioners and others like him selling oxygen concentrators to not increase prices of oxygen concentrators by more than 10% of the maximum retail price in a year of the Drugs Pricing Control Order 2013. Now all manufacturers importers were directed to ensure compliance of the provisions of Para 20 of the DPCO failing which action may be initiated for violation of provisions of DPCO read with the EC Act. The DPCO being an order passed under Section 3 of the EC Act any violation thereof is punishable W.P.(Crl) No.975 2021 under Section 7 of the EC Act. It was only in compliance with Section 6Aof the EC Act and the Order dated 29.4.2021as also the directions in Venkateshwar Hospitala report was rather made to concerned District Magistrate who is now in possession of a majority of the seized oxygen concentrators. Admittedly the District Magistrate has not been made a party in this writ petition. 34. Thus a conjoint reading of the FIR invoices and receipts produced by the petitioner along with the fact that the seized oxygen concentrators were allegedly sold at a huge profit margins in contravention of laws rules and executive orders pointed out above. The facts show the petitioner was engaged in selling untested oxygen concentrators to people desparate for these devices and at an exorbitant prices through false representations especially when the State and the whole country saw a unprecedented surge of covid 19 infections and sever lack of oxygen cylinders and or concentrators. 35. Lastly relief sought qua release of seized oxygen concentrators is in conflict with the orders passed by the Hon’ble Division Bench dated 29.04.2021 in Venkateshwar Hospital and also Bram Health Care Private Limited wherein it is directed whenever any drugs etc. used in treatment of Covid 19 are seized by the authorities or Delhi Police they shall without any delay inform the District Magistrate who shall take the necessary steps to ascertain genuineness of the drugs etc. and pass orders for release of the same before the items seized are rendered unusable the oxygen concentrators being a lifesaving machine is covered within the definition of Drug per W.P.(Crl) No.975 2021 Section 3(b)(iv) of the Drugs and Cosmetics Act and per notification dated 11.02.2021 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 ready to part with their life savings for its purchase. 36. Hence the investigation being at initial stage the reliefs sought for in this petition cannot be granted by this Court except the concentrators so seized be put an identification mark(s) and its coloured photographs be kept for future reference by the respondent. In view of above the petition is dismissed. Pending application if any also stands disposed of. YOGESH KHANNA J. MAY 27 2021 W.P.(Crl) No.975 2021 