Table of Contents
Introduction
Cricketer turned Politician; Gautam Gambhir started his cricket career in Bangalore in the year 2000. In his cricket career, he won many memorable trophies including the 2007 and 2011 world cup. Gautam Gambhir declared his retirement from all types of cricket in December 2018. On March 22, 2019, he started a new journey in his career by joining the ruling Bharatiya Janata Party (BJP) in India. In 2019, he won his first election against Atishi Marlena by 695,109 votes.
Gautam Gambhir took a philanthropic initiative in the year 2014 by setting up the Gautam Gambhir Foundation (GGF) in Delhi. The Foundation’s flagship project is to reach out to more and more children of paramilitary martyrs and strengthen them by supporting their whole educational needs. In 2017, he set up a community kitchen through the foundation in Patel Nagar, Delhi to ensure that no one in the city goes to bed hungry. In addition, GGF strives to make Delhi green by planting trees in the city to create awareness about nutrition, health and hygiene and fight air pollution in the city. Gambhir launched Delhi’s first “Jan Rasoi” Ek ASHA, a fully-fledged private community kitchen, provides food to needy people at just Re 1 on 24th December 2020.
Recently, Gautam Gambhir Foundation was found violating the provisions of the Drugs and Cosmetics Act,1940 regarding unauthorized stock of COVID 19 medicines. It was observed that the Gautam Gambhir Foundation procured over 2000 strips by a licensed dealer, though they did not have a valid license to do so.
Action Taken against Gautam Gambhir Foundation
Delhi High Court was informed by the Drug Controller Ms. Nandita Rao that The Gautam Gambhir Foundation was unauthorisedly stocking, distributing, and procuring Fabiflu(drug) to the covid 19 patients which is not permitted by law. Fabiflu Tablet is an antiviral medicine that is used to treat mild to moderate coronavirus disease in adults.[1]The Drug Controller Department established that the Foundation is procuring Fabiflu medicines in large quantities with a licensed dealer even though they do not have any legal license to do so.
Drugs and Cosmetics Act, 1940
In India, the Drugs and Cosmetics Act, 1940 regulates the process of drugs from manufacture to sale to ensure that drugs and medicines reach individuals fairly and equitably. As per Government Guidelines for Good Distribution Practices for Pharmaceutical Products (issued under the same Act), each party involved in the distribution chain must follow several legal requirements relating to purchase, storage and distribution to maintain the original quality of the pharmaceutical products.
The Guidelines state that only authorized individuals or entities having the suitable license shall be entitled to import or export medicinal products, and the products will be supplied only to individuals or entities who themselves collect such products or are authorized to act as a distributor or immediately sell or supply the product to any affected person or his agent. The government guidelines further talk about the management and organization of those institutions and they must be free from political pressure or dispute of interest. The guidelines also state various other provisions relating to maintaining the product’s quality by ensuring some kind of storage facility, godown, etc.
Therefore, “Gautam Gambhir Foundation has breached the provisions of the Drugs and Cosmetics Act, 1940 & Rules thereunder and hence he has committed an offence which is punishable under Section 27 (b) (iii) and 27 (d) of the same Act,” said drug controller in an investigation report presented before the court. Meanwhile, the department also reported to the court about AAP MLA Praveen Kumar involving in the illegal purchase and stocking of medical oxygen in violation of the law. Delhi government’s drug controller said that action should be taken against the foundation and others involved without any delay.
Is Gautam Gambhir Foundation guilty under the Drugs and Cosmetic Act, 1940?
The Gautam Gambhir Foundation case, DEEPAK SINGH v. UNION OF INDIA is discussed below:
On 27/05/2021, the Drug Controller told the Delhi High Court that GGF has violated the Drugs and Cosmetics Act by accumulating an illegal collection of COVID-19 drugs. The Advocate Nandita Rao, speaking on behalf of the Drug Controller informed the panel of Judges, Vipin Sangi and Jasmeet Singh, that the Gautam Gambhir Foundation purchased more than 2000 strips from authorized dealers, despite the fact that they do not have a genuine license to buy them. She added that GGF was found to have an illegal collection of Fabiflu which is a violation of the Drugs and Cosmetics Act. The High Court sought from Drug Controller whether the status report is only related to Gautam Gambhir or to some other person also, to which she responded, “Status report deals with Praveen Kumar MLA also. We have found him guilty.”
After listening to the investigation report, the court found that certain offences have been committed towards the certified dealers, retailers, by the Gautam Gambhir Foundation and MLA Praveen Kumar. The bench additionally asked the drug controller to take action against persons violating the regulations mentioned under the Act and to create a new report within six weeks and listed the matter for July 29 for further hearing.
The court also observed that the licensee has been served show-cause notices under the same Act and a response is awaited. Assistant Drug Controller guaranteed the court that action will be made against individuals supposedly associated with these offences.
The court said that Gautam Gambhir, the Lok Sabha MP from East Delhi, has spent a lot of money for charity and has made purchases in public sentiment, but has also created scarcity and inconvenience. “This was not the way to do charity. When you do charity, you have to do that only with charity as an angle and no other angle. We want the Drug Controller to curb this practice in the future” the court said.[2]
The court said that the Drug Controller department may look not only in this matter but also in all those matters in which there has been a violation under the same Act. Meanwhile, AAP MLA Praveen Kumar tweeted: ‘I have two options: either watch web series at home or help people at a crucial time to save lives with oxygen. I choose 2nd. I stand with my people and is ready to help in all proceedings.’[3]
The high court also took strict objection to the drug controller’s report, which concluded that the traders had plentiful stock to supply to other people, and said that everyone knows that there is a shortage of medicine and Gambhir purchased thousands of strips of it because of which others who required medicine couldn’t get it on that day.
“Please don’t tell us there is no shortage. We know there was a shortage. You don’t have to swallow the report. You have to question your officers. You (drug controller) are wrong to say it was not in short supply. You want us to shut our eyes. You think you would get away with this. “You better do your job. If you can’t do your job, tell us, we will have you suspended and let someone else do your job,” a bench of Justices Vipin Sanghi and Jasmeet Singh said.[4]
The bench also reprimanded Gambhir for saying that he would continue to do such a thing.
We have already said it is malpractice. This tendency of people trying to take advantage and then trying to appear as a saviour when they themselves created the problem, has to be denounced. If it continues, we know how to deal with it, the bench said.[5]
“Thousands of strips he’s getting. When people need it, they couldn’t get it. Time was of the essence. He procures more than required. How is it that the trader has traded it to an organization,” it asked, explaining that 285 strips are not used. The court also took note of the status report of the investigation conducted against AAP MLAs Preeti Tomar and Praveen Kumar on allegations of hoarding and purchasing medical oxygen.
The court rejected status reports filed on Gambhir and Kumar and called them “trash”, giving three days to the Delhi government’s drug controller to file better reports and gave the next hearing date as June 3 but the court accepted the report filed against Tomar.
“Our confidence in you (drug controller) has shaken completely. Let’s be very clear about this. Now it is up to you to build that confidence again or not,” it said.[6]
The High Court was listening to a PIL looking for registration of an FIR on accusations that politicians were able to purchase and distribute COVID-19 medicines in massive amounts, while sufferers were wandering from door to door to get them. The report was also filed in the awaited petition accusing Tomar and Kumar.
Advocate Nandita Rao, appearing for the drug controller submitted that Gambhir had started a health camp from April 22 to May 7 through GGF with the help of Sanjay Garg Hospital and only the request letter of the hospital was sent to GGF.
She stated that the letter is for confirmation of free health camp and based on the letter dated April 19, Gambhir made the purchase order from the accredited dealer and the drugs were procured not from the stores but from the dealers.
Here is a man who is hoarding thousands of strips of medicine. He is interrupting the flow of medicines… place before us the relevant rules that govern the dealer and sale. This is the inquiry we wanted you to conduct and not say that so many lives have been saved, the court said.[7]
The court asked how such a huge stock of the medicine, i.e., 2,628 strips of Fabiflu, could be provided to a foundation that is not a medical expert and also has no license and said, “We dare to say that it is not allowed”.
Senior advocate Rajasekhara Rao said the court that if the procurement of the drug is mainly based on the letter mentioning its requirement, then on what basis it was assessed. It was the time of the second wave of COVID-19 and its supply was done at that time interval from many places.
Petitioner Deepak Singh’s advocate Virag Gupta argued that there was the hoarding of drugs and the government have booked thousands of common individuals for not wearing a mask, however, in the case of VIPs, they name it a technical violation.
The Drug Controller said that action will be taken against drug dealers and foundations without any delay and also action will be taken in such other cases which will be brought to its notice.
Another application, filed by Vedansh Anand through advocate Amit Tiwari had sought an inquiry against AAP MLA Praveen Kumar in the case of distribution of oxygen cylinders.
Therefore, according to Drug Controller GGF is guilty of illegally procuring, storing, and distributing Fabiflu medicine to COVID patients under the Drugs and Cosmetics Act, 1940 as the Act provides punishment for the same under sec 3(b), to which Gautam Gambhir said that he is ready to face the decision of the court in this matter.
Conclusion
Delhi High Court said that they will take action without any delay against the foundation as it is guilty under the Drugs and Cosmetics Act, 1940 for illegally stocking essential medicines. The bench further observed that Mr Gambhir did it for a good cause and at the same time he spent a lot of money in the public interest to buy Fabiflu but these purchases affected patients suffering from covid as there was an acute shortage of medicines. In short, he did a lot of charity but he caused a lot of shortages of medicine and inconvenience to the patients. Hence, the court said that the unauthorized purchase of essential drugs should be stopped and lawful action should be taken against them.
GGF did a great job in public spirit but they did it in the wrong manner because, under the Drugs and Cosmetics Act, 1940 the purchase, storage, and distribution of any drug is not allowed without any valid license. That’s why he is guilty of the same. “DOING THE RIGHT THING IN A WRONG WAY DOES NOT BECOME RIGHT”.
- Fabiflu: Anti Covid Drug https://www.1mg.com/drugs/fabiflu-tablet-601486
- Gautam Gambhir Foundation Guilty: https://legal.industriesnews.net/news/269745106/gautam-gambhir-foundation-guilty
- Praveen Kumar Twitted
- https://www.devdiscourse.com/article/law-order/1594268-hc-pulls-up-drug-controller-for-not-examining-properly-how-gambhir-got-huge-quantities-of-fabiflu
- ‘This Is Trash’: Delhi HC Slams Drug Controller’s Clean Chit to Gautam Gambhir in Fabiflu Case: https://thewire.in/health/delhi-hc-drug-controller-blamed-for-ghambhirs-huge-quantities-of-fabiflu
- Delhi HC rejects drug controller’s status report as ‘trash’: https://zeenews.india.com/india/delhi-hc-rejects-drug-controllers-status-report-as-trash-on-how-bjp-mp-gautam-gambhir-got-huge-quantities-of-fabiflu-2365912.html
- https://www.devdiscourse.com/article/law-order/1594268-hc-pulls-up-drug-controller-for-not-examining-properly-how-gambhir-got-huge-quantities-of-fabiflu
This article is authored by Alisha Maheshwari Student at Uttaranchal University, Law College Dehradun.
