Bom HC | MoH communication reducing oxygen supply to Maharashtra is “bolt from the blue”: Court directs PRAX AIR to keep supplying 110 MT oxygen per day

Bombay High Court: The Division Bench of Sunil B. Shukre and S.M. Modak, JJ., heard the present matter at the late hour of the night.

Reason for later night hearing?

To provide immediate succour to the COVID patients who have been suffering no end in the present situation of scarcity and non-availability of almost every essential service, insofar as their medical management was concerned.

Two Fundamental Issues in the hearing

Issue of an adequate supply of:

  • what is considered to be a life-saving drug, Remdesivir
  • what is considered to be a lifeline of the COVID patients, oxygen supply.

Bench stated that on 19-04-2021, Court had directed the authorities at the helm of affairs to release and provide to Nagpur not less than 10000 vials of Remdesivir within a few hours of passing of the order, however, it was not complied with fully. Though Court noted that some vials had been released and allocated for being used for the treatment of serious COVID patients.

Information came before the Bench was that 6752 vials of Remdesivir were to be received in Nagpur latest by 22-04-2021 and as they would be received it would be fairly and equitably distributed amongst the government and private hospitals by the nodal agency.

Another significant point that was noted was that seven pharmaceutical companies had been actively involved in supply of the said drug and all the companies except for Jubilant based in Ghaziabad assured supply of specific quantity of the vials latest by 22-04-2021.

In view of the above, High Court directed the nodal authority to distribute all the vials equitably amongst all private and government hospitals latest by evening of 22-04-2021.

Coming to the supply to be made by Jubilant Company, it was informed that the agents had no information was available with them regarding the quantity of the drug that would be sent.

Bench directed the Joint Commissioner, Food and Drugs Administration, Nagpur to ensure that specific information was to be supplied by Jubilant Company to this Court on the next date of hearing.

Further, the Bench requested the A.S.G.I to obtain instructions from respondent 3 regarding the steps taken by him exercising his powers under the Drugs Control Act and other relevant laws in ensuring the fair and equal supply of the said drugs by the 7 companies not only to Maharashtra or Vidarbha Region of Maharashtra but to the entire nation.

ASGI to ensure the proper and continuous supply of the said drug to all the areas across the nation and also to prevent hoarding, undue stocking and black-marketing of the drug.

Bench remarked that:

“…something for the present is required to be done, if we have to perform our duty of preservation of precious human life arising from Article 21 of the Constitution of India.”

Court has also received information that some stockists in Nagpur and also some depots in Nagpur have been holding over substantial quantities of Remdesivir vials which is in violation of law.

In view of the above, Bench directed Mr Kose Joint Director of F.D.A to initiate effective action and ensure that G.M.C Nagpur receives at least 100 vials so that the lives of serious COVID patients would be saved.

Supply of Oxygen 

Bench while calling the present scenario to be disappointing, noted that the Court has been informed PRAX AIR, HYPHEN LINDE had been, till recently, supplying 110 metric tons of liquid oxygen every day. But, now this supply has been reduced to 60 metric tons as per the communication dated 18.4.2020 issued by the Ministry of Health and Family Affairs, New Delhi.

In Court’s opinion, the above-stated communication dated 18th April, 2020 has hit the State of Maharashtra as a bolt from the blue. Although no order for fixing the quota of liquid oxygen supply was made from PRAX AIR – Bhilai for the State of Maharashtra.

In this situation of emergency poignantly enveloping a region which accounts for almost 40% Covid patients of the entire nation, the communication from the Ministry of Health and Family Affairs should have been to the effect of increasing the supply of liquid oxygen to the State of Maharashtra from the present practice of 110 metric tons per day to somewhere between 200 to 300 metric tons per day.

High Court remarked that unfortunately things have been turned in a reverse manner and it has been affected very severely  COVID patients in the State of Maharashtra and in particular the Vidarbha Region.

Further, the Bench considered the dire need of these patients and also total share of Covid patients of this State in the entire cases the country, High Court deemed it necessary that the earlier practice of supply of 110 metric tons of oxygen per day by PRAX AIR – Bhilai is restored and accordingly, we direct that notwithstanding the communication dated 18.4.2021 issued by the Ministry of Health and Family Welfare, PRAX AIR – Bhilai shall continue to supply 110 metric tons of liquid oxygen to the State of Maharashtra until further orders.

Adding to the above, Joint Commissioner, F.D.A Nagpur has been directed to see that there is no breakdown in the supply of oxygen to all the hospitals in Nagpur and in case any COVID Hospital run in a short supply of oxygen, they should bring this fact immediately to the notice of the Joint Commissioner, F.D.A, Nagpur and also the Collector, Nagpur.

Before parting with this order, Court would like to remind the Joint Commissioner, F.D.A, Nagpur and A.S.G.I that they need to comply with the directions given by this Court in the order dated 30-04-2021.

“…it has been brought to our notice that a proposal for bringing Remdesivir drug under the sweep of the Drugs (Price Control Order), 2013 has been moved and a meeting in this regard was also held at Mumbai on 19th March, 2021.”

Next sitting of this Court would be on 23-04-2021. [Court on its own motion v. Union of India, 2021 SCC OnLine Bom 660, decided on 21-04-2021]


Advocates before the Court:

Mr S.P. Bhandarkar, amicus curiae for petitioner.

Mr U.M. Aurangabadkar, ASGI for respondent no.1. Mr M.G. Bhangde, Sr. Cl. Assisted by Mr D.P. Thakare, Addl. G.P. along with Mrs Ketki Joshi, G.P for respondent nos. 2, 5, 6, 8 & 9.

Mr S.M.Puranik, Advocate for respondent no.4. Mr B.G. Kulkarni, Advocate for respondent no.10. Mr C.S.Samundre, Advocate MADC.

Mr M. Anilkumar, Advocate for Intervenor/applicant (C.A. No.5775 of 2021 & 692 of 2020 in P.I.L. No.4 of 2020). Mr T.D.Mandlekar wit Mr Tushar Malviya, Advocates for Intervenor/applicant (C.A. St.No.5806 of 2021 in P.I.L. No.10 of 2020).

Dr P.K.Arora, in-person in CAO No.723 of 2021.

Mr Ram Heda, Advocate for Applicants in Civil Applications C.AO. St. Nos. 4987 of 2021 and 4988 of 2021.

Mr Nitin Lambat, Advocate for Railways.

(Ms Sushma Advocate for Respondent No.1 & Mr J.B.Kasat, Advocate for Respondent No.4 in P.I.L. No.25 of 2020).

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