SC Relief to Doctor detained by government on account of procuring Fake Remdesivir injections

Such a decision was taken by the bench headed by Justice D Y Chandrachud as it took note of the fact that the State government delayed decision on his representation and failed to communicate the outcome.

Setting aside the High Court order and quashing the detention order, the bench noted, "The delay by the State Government in disposing of the representation and by the Central and State Government in communicating such rejection, strikes at the heart of the procedural rights and guarantees granted to the detenu. It is necessary to understand that the law provides for such procedural safeguards to balance the wide powers granted to the executive under the NSA."

"The State Government cannot expect this Court to uphold its powers of subjective satisfaction to detain a person, while violating the procedural guarantees of the detenu that are fundamental to the laws of preventive detention enshrined in the Constitution," the bench also comprising Justices Vikram Nath and B V Nagarathna said.

The cases relate to sale of fake Remdesivir injections and black-marketing of the anti-viral drug in Jabalpur district of Madhya Pradesh. Under the NSA, one can be detained without a charge for up to 12 months if the authorities are satisfied that the person is a threat to national security or law and order.

Also Read: Remdesivir black marketing in MP: Man arrested with 400 vials of antiviral injections

During investigation, it was revealed that about 500 fake Remdesivir injections were procured from Indore and sent to Jabalpur by road. According to the police, these injections were made by an inter-state gang operating from Gujarat and they were allegedly administered to three patients in Indore following which they died.

The stringent National Security Act (NSA) was invoked against four persons, including a director of a private hospital in Jabalpur, in separate cases related to Remdesivir, in high demand during the pandemic.

The allegations against the doctor is that in connivance with certain others, he procured fake Remdesivir injections which were administered to patients during the COVID-19 pandemic in order to make illegal profits thereby endangering the life of the general public.

Following the recommendation of the SP, the District Magistrate passed an order on 11 May 2021 under Section 3(2) of the NSA, detaining the doctor for a period of three months.

Later, the doctor approached the Government and submitted a representation against the detention order In terms of the provisions of Section 10 of the NSA, the State Government submitted the grounds for detention and the Advisory Board of the State Government in its report opined that there was sufficient cause for the detention of the doctor.

Consequently, the doctor approached the Madhya Pradesh High Court which rejected his plea under Article 226 of the Constitution. Challenging the order of the High Court dated August 24, 2021, the doctor, who is the Director of the City Hospital, Jabalpur, moved to the Supreme Court.

When the matter came to be considered before the Supreme Court, the counsel for the doctor contended that the Central Government incorrectly averred before the High Court that the rejection of representation dated 24 June 2021 was communicated to the appellant by wireless message on 28 June 2021. It was further contended that the State Government didn't furnish a reply to the doctor's representation.

They also said that extension of the appellant"s detention under the NSA for alleged black-marketing of Remdesivir is illegal.

On the other hand, the counsel for the State argued that NSA being a complete code, provides several safeguards for the detenu that have been duly observed. Further it was contended that when an order of preventive detention is challenged, the detaining authority does not have to prove an offence or formulate a charge. The justification for an order of detention at best can be established on the basis of suspicion and reasonability, there being no criminal conviction on the basis of evidence, as held by the top court in State of Tamil Nadu v. Nabila.

After listening to the contentions of both the parties, the Apex Court noted that Article 22 of the Constitution provides specific protections to undertrials and detainees in India.

"The text of Article 22 enshrines certain procedural safeguards, many of which are otherwise available in the CrPC. In elevating these safeguards to a constitutional status, the framers imposed a specific "limitation upon the authority both of Parliament as well as [State] Legislature [to] not abrogate" 41 rights that are fundamental to India's constitution. Dr Bakshi Tek Chand, a conscientious dissenter to preventive detention in peaceful times, proposed a further safeguard in the provision of a right to make representation to the detenu, 42 which was eventually accepted by the Constituent Assembly as a reasonable compromise43Therefore, preventive detention in independent India is to be exercised with utmost regard to constitutional safeguards," noted the Court.

The top court invalidated the order of detention on two grounds -- the unexplained delay on part of the Madhya Pradesh government in deciding the representation of the appellant and the failure of the central and state governments to communicate the rejection of the representation to the appellant in a timely manner.

"This history of the framing of Article 22 is critical for the judiciary's evaluation of a detenu's writ petition alleging, inter alia, a denial of the timely consideration of his representation. While several arguments have been preferred by the appellant to argue for his release from preventive detention, we are confining our analysis to the most clinching aspect of this case - the failure of the Central Government and the State Government to consider his representation dated 18 May 2021 in a timely manner," noted the Court.

The apex court said there is absolutely no material coming forthwith to indicate that the rejection of the representation by the central government was communicated to the detenu. The bench said that in spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on June 15, 2021, the State Government took another one month in arriving at a decision on the appellant"s representation dated May 18, 2021.

"The communication of the grounds is in aid of facilitating the right of the detenu to submit a representation against the order of detention. In the absence of the grounds being communicated, the detenu would be left in the dark in regard to the reasons which have led to the order of detention," the bench said.

"Under Section 10, the appropriate government has to place the grounds on which the order of detention has been made within three days from the date of detention of the person together with a representation, if any, made by the person affected by the order. The Advisory Board, under the provisions of Section 11, has to submit its report to the appropriate government within seven weeks from the date of detention order after considering the relevant materials," clarified the Court.

The Court noted that the detention order was passed on 11 May 2021 and the appellant was detained on 12 May 2021. Following this, the doctor submitted a representation against the order of detention to the State Government on 18 May 2021.

Noting that even though the District Magistrate communicated the representation to the State and Central Government on May 20, the representation was rejected by the Advisory board on June 15, the top court noted, "The above extract from the affidavit, which was filed before the High Court, does not specify the date on which the representation was rejected by the State Government, but leaves no manner of doubt that until the representation was rejected by the Advisory Board on15 June 2021, no steps had been taken by the State Government to deal with the appellant's representation dated 18 May 2021."

"There is absolutely no reasonable basis for explaining the circumstances in which the representation dated 18 May 2021 was not considered by the State Government until after the Advisory Board had submitted its report on 15 June 2021," further read the order.

"As we have indicated on the basis of the precedents of this Court, the consideration of the representation by the State Government is qualitatively different from the reference to the Advisory Board. This Court, Ankit Ashok Jalan (supra) had held that in State Government is not bound to wait on the Advisory Board's report before deciding the representation and must do so, as expeditiously as possible. In spite of awaiting the receipt of the report of the Advisory Board which was eventually issued on 15 June 2021, the State Government took another one month in arriving at a decision on the appellant's representation dated 18 May 2021," observed the court.

Apart from this, the court also noted that the State could not furnish proof of the appellant's receipt of the Central Government's rejection of representation dated 24 June 2021.

Taking note of the fact that there was absolutely no material indicating the fact that the rejection of the representation by the Central Government was communicated to the detenu, the top court observed, "This lends credibility to the appellant's contention that he was never served with a copy of Central Government's rejection of his representation."

"Based on the precedents of this Court, we hold that the failure of the Central and the State Government to communicate the rejection of the appellant's representation in a time-bound manner is sufficient to vitiate the order of detention," noted the court as it set aside the High Court order and quashed the detention order against the doctor.

To read the court order, click on the link below.