IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION SUO MOTU WRIT PETITION (C) NO. 3 of 2021 IN THE MATTER OF: IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICESDURING PANDEMIC AFFIDAVIT ON BEHALF OF THE STATE OF WEST BENGAL PAPER BOOK (FOR INDEX, PLEASE SEE INSIDE) ADVOCATE FOR THE RESPONDENT / STATE OF WEST BENGAL: PLR CHAMBERS & CO. INDEX Sl. PARTICULARS Page Nos. of part to Remarks No. which it belongs Part 1 Part 2 (Contents (Contents of of Paper file alone) Book) 1. Affidavit on behalf of the 1 – 21 State of West Bengal. 2. ANNEXURE – A: 22-24 A copy of memo dated 21.04.2021 bearing memo no. HFW-41014(99)/88/2020- WBMSCL SEC-Dept. of H&FW/1423. 3. ANNEXURE – B: A copy of the State 25-28 Government’s memo bearing ref. no. 65/SECY/H&W/2021 dated 28.04.2021 sent to the Government of India. 4. ANNEXURE – C: 29-30 A copy of the notification dated 24.04.2021 bearing ref. no.76-Secy (SB)/ 21. 5. ANNEXURE – D: – 31 A copy of the Order of the Government of West Bengal dated 22.04.2021 bearing ref. no. 72-Secy (SB) / 21. 6. ANNEXURE –E A copy of the State 32 Government’s communication to the Government of India dated 22.04.2021 bearing ref. no. 482-CS/2021. 7. ANNEXURE –F A copy of the Interim 33-38 Guidance dated 04.04.2020 on Oxygen sources and distribution for COVID-19 treatment centres prepared by the WHO. 8. ANNEXURE –G 39-205 A copy of the break-up of testing laboratories in the State on the basis of test category as on 27.04.2021. 9. ANNEXURE –H 206-208 A copy of the press release dated 19.04.2021. 10. ANNEXURE –I A copy of the Journal Article 209-217 titled as “Minimum costs to manufacture new treatments for COVID-19”, published in the Journal of Virus Eradication, 2020. 11. IA NO. ___________/2021: 218-220 Application for exemption from filing notarised affidavit. 1 IN THE SUPREME COURT OF INDIA ORIGINAL CIVIL JURISDICTION SUO MOTU WRIT PETITION (C) NO. 3 of 2021 IN THE MATTER OF: IN RE: DISTRIBUTION OF ESSENTIAL SUPPLIES AND SERVICES DURING PANDEMIC AFFIDAVIT ON BEHALF OF THE STATE OF WEST BENGAL PURSUANT TO ORDER DATED 27.04.2021 MOST RESPECTFULLY SHOWETH:- I, Alapan Bandyopadhyay, I.A.S, Chief Secretary, State of West Bengal, working at Nabanna, 13th Floor, 325, Sarat Chatterjee Road, Mandirtala Shibpur, Howrah-711102, do hereby solemnly swear, affirm and state as hereunder: 1. That I am authorized to file the present Affidavit on behalf of the State of West Bengal. I have read and understood the contents of the instant affidavit along with the accompanying annexures, which are based on my personal knowledge as derived from the official records, maintained by the State Government and also based on publically available information. 2. The present affidavit is being filed pursuant to the directions of this Hon’ble Court vide its Order dated 27.04.2021. The said Order directed the States to clarify the infrastructure 2 facilities available in the respective State with respect to the following issues identified by this Hon’ble Court: i. Supply of oxygen/oxygen preparedness in the State; ii. State of medical infrastructure in the State; iii. Availability of essential drugs including ‘Remdesivir’ and ‘Favipiravir’; 3. Notably, the Order dated 27.04.2021 also directed the Government of India to explain the basis and rationale behind the pricing of COVID-19 vaccines. On this aspect, the State of West Bengal by way of the instant affidavit seeks to place on record its concerns over the existing differential pricing policy for COVID-19 vaccines. The State is of the view that the pricing policy is ex-facie detrimental to the interest of the State Governments and will result in an inequitable distribution of vaccines across the country. LIQUID MEDICAL OXYGEN AVAILABILITY AND PREPAREDNESS IN THE STATE OF WEST BENGAL: 4. The following data in relation to the current Liquid Medical Oxygen (‘LMO’) capacity and demand (actual and projected) for LMO in the State may be noted by this Hon’ble Court: S.No. Particulars Quantity (in Metric Tonnes) 1. Total Current Production Capacity 490 MT for LMO 2. Present Production of LMO 362.85 MT 2. Current Demand for LMO in the 250 MT 3 State of West Bengal 3. Total LMO Commitment to the 308 MT State of West Bengal by the Government of India 4. Projected Requirement in the State 300 MT of West Bengal by 10.05.2021 5. Projected Requirement in the State 600 MT of West Bengal by 30.06.2021 6. Number of Pressure Swing 5 Adsorption (“PSA”) Plants under installation in the State 7. Number of PSA Plants in the 93 pipeline 5. Currently, the State Government is encountering the following challenges in relation to the supply of LMO for COVID-19 treatment: i. Ensuring the supply of oxygen as per projected demand: It may be noted that a total of 78 health facilities were identified for the installation of PSA plants for the treatment of COVID-19 patients and the details of such facilities were shared with the Government of India for appropriate action vide Memo dated 21.04.2021 bearing 41014(99)/88/2020-WBMSCL SEC-Dept. of H&FW/1423 which is annexed herewith as Annexure –A [Page No. 22____ to 24____]. Thereafter, on 28.04.2021, the State Government had requested the Government of India to provide PSA oxygen generators for the generation of oxygen at 92 hospitals in the State. A copy of the State 4 Government’s memo bearing ref. no. 65/SECY/H&W/2021 dated 28.04.2021 sent to the Government of India is annexed herewith as Annexure –B[Page No. 25____ to 28____]. ii. Ensuring availability of adequate tankers and cylinders and reducing the turn-around time of tankers and cylinders in supplying LMO to hospitals: To ensure the swift movement of oxygen tankers, the Kolkata Police’s traffic department has directed that all concerned, including hospitals and oxygen suppliers, to inform the traffic department of any movement of oxygen tankers/cylinders, etc in the city of Kolkata so that the department can provide an exclusive corridor for their swift movement. iii. 7,000 B type and D type cylinders were procured in November-December, 2020 to augment the LMO stock. However, a total of 1,600 cylinders orders is yet to be executed by vendors; iv. Requisitioning of 3000 B type and 6000 D type cylinders from MoHFW, Government of India; v. Efficient use of medical oxygen in health facilities; vi. Immediate conversion of industrial oxygen cylinders to medical cylinders; 5 vii. Surveillance against hoarding and black- marketing of Medical Oxygen IP cylinders: The State Government on 24.04.2021 had issued a notification to ensure adequate supply of medical oxygen for the treatment of COVID-19 patients. The notification warned of legal action against people found hoarding, selling, and transporting oxygen cylinders without valid permits and doctors’ prescriptions. The notification prescribes that the retailers would have to sell oxygen cylinders at MRP to COVID-19 patients in home isolation, provided they have a prescription from a registered doctor. The notification further states that anyone found hoarding oxygen cylinders will be punished under Drugs and Cosmetic Rules, 1945, IPC and Epidemic Act 1897 & Amendments 2020. A copy of the notification dated 24.04.2021 bearing ref. no.76-Secy (SB)/ 21 is annexed herewith as Annexure –C [Page No. 29____ to 30____]. 6. The State Government would require the cooperation of the Government of India to addresses the aforesaid challenges in relation to oxygen availability and supply. 7. In order to ensure a smooth supply of medical oxygen to all the hospitals (both government and private) in the State, the State Government vide Order dated 22.04.2021 had set up a 24x7 centralized control room. A copy of the Order of the 6 Government of West Bengal dated 22.04.2021 bearing ref. no. 72-Secy (SB) / 21 is annexed herewith as Annexure –D[Page No. 31____ to -____].The control room is entrusted with the following responsibilities: i. To update the report on the production of medical oxygen in the State by different producers; ii. To prepare the inventory of production, demand gap, and requirement of medical oxygen from the Government of India; iii. To provide the necessary information against the queries raised by the hospitals regarding medical oxygen; iv. To check the availability of all the medical oxygen in all government and private hospitals and to ensure smooth supply of medical oxygen; v. As per the directive of the Government of India, projection of requirement of medical oxygen in all the COVID-19 hospitals (both government and private); vi. Updation of National Health Portal regularly in respect of medical oxygen requirement and related infrastructure; 7 vii. Preparation of inventory of medical oxygen for all hospitals; viii. Preparation of weekly report and submission to the nodal officers of the Health and Family Welfare Department, Government of India; 8. In the context of the inter-state distribution of LMO, it is stated that currently (as per the National Allocation Plan of the Government of India) 200 MT of LMO is being diverted from different plants located in the State of West Bengal for transmission outside the State. However, in view of the current patient load and rising trend of infections in the State, it is expected that the consumption level for LMO will drastically increase in the State in the upcoming weeks.