Sale of Goods during Lockdown- Whether Permissible?

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Sale of Goods during Lockdown- Whether Permissible?

 

 

There is a lockdown imposed at various locations throughout the country. The lock down is imposed either by the state Government or by the Central Government in view of the power given u/s 2 & 2A of The Epidemic Act.

The question arises, whether there will be penalty or fine if the person effects any sale during the period of the lock down?

The lockdown is imposed under the Epidemic Disease Act-1897. This Act empowers the Government with Power to take special measures and prescribe regulations as to dangerous epidemic diseases. Absolutely, this includes the power to impose the lockdown.

It may be noted that the Epidemic Diseases Act, 1897 is a very old Act and consists of only 11 sections. The word “Lockdown” is absolutely not defined in the Epidemic Diseases Act, 1897.

The Epidemic Diseases Act, 1897 reads as under:

Epidemic Diseases Act, 1897

(Act No. 3 of 1897)

 [4th February, 1897.]

An Act to provide for the better prevention of the spread of Dangerous Epidemic Diseases.

Wheareas it is expedient to provided for the better prevention of the spread of dangerous epidemic disease; It is hereby enacted as follows : –

 

  1. Short title and extent. – (1) This Act may be called the Epidemic Diseases Act, 1897.

[(2) It extends to the whole of India except [***].] [* * *]

[(3) * * * * * * *]

[1A. Definitions. – In this Act, unless the context otherwise requires, –

(a) “act of violence” includes any of the following acts committed by any person against a healthcare service personnel serving during an epidemic, which causes or may cause –

(i) harassment impacting the living or working conditions of such healthcare service personnel and preventing him from discharging his duties;

(ii) harm, injury, hurt, intimidation or danger to the life of such healthcare service personnel, either within the premises of a clinical establishment or otherwise;

(iii) obstruction or hindrance to such healthcare service personnel in the discharge of his duties, either within the premises of a clinical establishment or otherwise; or

(iv) loss or damage to any property or documents in the custody of, or in relation to, such healthcare service personnel;

(b) “healthcare service personnel” means a person who while carrying out his duties in relation to epidemic related responsibilities, may come in direct contact with affected patients and thereby is at the risk of being impacted by such disease, and includes –

(i) any public and clinical healthcare provider such as doctor, nurse, paramedical worker and community health worker;

(ii) any other person empowered under the Act to take measures to prevent the outbreak of the disease or spread thereof; and

(iii) any person declared as such by the State Government, by notification in the Official Gazette;

(c) “property” includes –

(i) a clinical establishment as defined in the Clinical Establishments (Registration and Regulation) Act, 2010 (23 of 2010);

(ii) any facility identified for quarantine and isolation of patients during an epidemic;

(iii) a mobile medical unit; and

(iv) any other property in which a healthcare service personnel has direct interest in relation to the epidemic;

(d) the words and expressions used herein and not defined, but defined in the Indian Ports Act, 1908 (15 of 1908), the Aircraft Act, 1934 (22 of 1934) or the Land Ports Authority of India Act, 2010 (31 of 2010), as the case may be, shall have the same meaning as assigned to them in that Act.]

 

  1. Power to take special measures and prescribe regulations as to dangerous epidemic diseases. – (1) 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 in sufficient 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 incurred (including compensation if any) shall be defrayed.

(2) In particular and without prejudice to the generality of the foregoing provisions, the [State Government] may take measures and prescribe regulations for –

[* * * * * * * *]

(b) the inspection of persons travelling by railway or otherwise, and the segregation, in hospital, temporary accommodation or otherwise, of persons suspected by the inspecting officer of being infected with any such disease.

(3) [* * * * * *]

 

[2A. Power of Central Government. – When the Central Government is satisfied that Indian or any part thereof is visited by, or threatened with, an outbreak of any dangerous epidemic disease and that 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 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.]]

[2B. Prohibition of violence against healthcare service personnel and damage to property. – No person shall indulge in any act of violence against a healthcare service personnel or cause any damage or loss to any property during an epidemic.]

 

  1. Penalty. – [(1)] 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.

[(2) Whoever, –

(i) commits or abets the commission of an act of violence against a healthcare service personnel; or

(ii) abets or causes damage or loss to any property,

shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.

(3) Whoever, while committing an act of violence against a healthcare service personnel, causes grievous hurt as defined in section 320 of the Indian Penal Code to such person, shall be punished with imprisonment for a term which shall not be less than six months, but which may extend to seven years and with fine, which shall not be less than one lakh rupees, but which may extend to five lakh rupees.]

 

[3A. Cognizance, investigation and trial of offences. – Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), –

(i) an offence punishable under sub-section (2) or sub-section (3) of section 3 shall be cognizable and non-bailable;

(ii) any case registered under sub-section (2) or sub-section (3) of section 3 shall be investigated by a police officer not below the rank of Inspector;

(iii) investigation of a case under sub-section (2) or sub-section (3) of section 3 shall be completed within a period of thirty days from the date of registration of the First Information Report;

(iv) in every inquiry or trial of a case under sub-section (2) or sub-section (3) of section 3, the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded, and an endeavour shall be made to ensure that the inquiry or trial is concluded within a period of one year:

Provided that where the trial is not concluded within the said period, the Judge shall record the reasons for not having done so:

Provided further that the said period may be extended by such further period, for reasons to be recorded in writing, but not exceeding six months at a time.

3B. Composition of certain offences. – Where a person is prosecuted for committing an offence punishable under sub-section (2) of section 3, such offence may, with the permission of the Court, be compounded by the person against whom such act of violence is committed.

3C. Presumption as to certain offences. – Where a person is prosecuted for committing an offence punishable under sub-section (3) of section 3, the Court shall presume that such person has committed such offence, unless the contrary is proved.

3D. Presumption of culpable mental state. – (1) In any prosecution for an offence under sub-section (3) of section 3 which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.

(2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.

Explanation. – In this section, “culpable mental state” includes intention, motive, knowledge of a fact and the belief in, or reason to believe, a fact.

3E. Compensation for acts of violence. – (1) In addition to the punishment provided for an offence under sub-section (2) or sub-section (3) of section 3, the person so convicted shall also be liable to pay, by way of compensation, such amount, as may be determined by the Court for causing hurt or grievous hurt to any healthcare service personnel.

(2) Notwithstanding the composition of an offence under section 3B, in case of damage to any property or loss caused, the compensation payable shall be twice the amount of fair market value of the damaged property or the loss caused, as may be determined by the Court.

(3) Upon failure to pay the compensation awarded under sub-sections (1) and (2), such amount shall be recovered as an arrear of land revenue under the Revenue Recovery Act, 1890 (1 of 1890).]

  1. Protection to persons acting under Act. – No suit or other legal proceeding shall lie against any person for anything done or in good faith intended to be done under this Act.

the punishment for disobeying the provisions of this Act resides in Section 188 of the Indian Penal Code. This Section is a broad provision that deals with disobedience of any order issued by a public servant in general. There is a lack of efficient enforcement provisions that are focused on and suit the need of the Act – instead, it relies on general disobedience statutes. Further, the Section mandates either six-month imprisonment or a thousand rupees fine. This minimum sentencing may hardly prove as an effective deterrence during a pandemic and is hardly a befitting punishment for disobedience that may take lives.

The question arises, if the Government has ordered the lockdown then whether still the businessmen can sale the goods? Whether the billing can still be done by the such businessmen? Whether it will attract any legal consequences?

It may be noted that there is no violation under the Income Tax Act or GST Act if the businessmen sale the goods to anyone during lockdown also. The only violation would be there under the Epidemic Act. It means there is no prohibition for the businessmen as far as penal consequences under the I.T. Act & GST Act is concerned. It means that even if the businessmen do billing during lock down period by selling the goods, no direct consequences would flow from fiscal laws.

As far as penal consequences under the Epidemic Act is concerned, it may be noted that the penalty is concerned, the penalty is prescribed u/s 3 of the Epidemic Act which reads as under:

  1. Penalty. – [(1)] 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.

[(2) Whoever, –

(i) commits or abets the commission of an act of violence against a healthcare service personnel; or

(ii) abets or causes damage or loss to any property,

shall be punished with imprisonment for a term which shall not be less than three months, but which may extend to five years, and with fine, which shall not be less than fifty thousand rupees, but which may extend to two lakh rupees.

The Epidemic Ac refers to section 188 OF the IPC for imposition of penalty which reads as under:

Section 188 in The Indian Penal Code

  1. Disobedience to order duly promulgated by public servant.—Whoever, knowing that, by an order promulgated by a public serv­ant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any person lawfully employed, be punished with simple impris­onment for a term which may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation.—It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration An order is promulgated by a public servant lawfully empowered to promulgate such order, directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order, and thereby causes danger of riot. A has committed the offence defined in this section

It may be noted that section 188 provides an exception to penal consequences by mentioning that penalty shall be there if such disobedience causes or trends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray…

Another question emerges whether Income Tax Officers / GST officers are duty bound to report this transactions?

In my opinion, the CBDT has signed pact with the CBIC, SEBI, etc and there is no pact as such with the home ministry under whom the IPC Act is regulated and as such the sharing of information is not necessary. This is my personal opinion on the basis of data and information collected by me from various sources.

Readers may please share their views/opinion on the same.

 


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