IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 14037 of 2008 M/S Gauri Shankar Badri Narayan, a partnership firm situated at & P O - Sakri, District - Darbhanga, at present in District - Madhubani through its Partner Sri Prabhas Kumar Ladia, son of late Bhagwati Prasad Ladia, Resident of at & P O - Sakri, District - Madhubani - Petitioner Versus 1 M/S Bharat Petroleum Corporation Limited, a Government of India Enterprises, having its registered office at Bharat Bhawan, 4 & 6 Currimbhoy Road, Ballard Estate, Mumbai through its Chief General Manager 2 The General Manager, (Retail) M/s Bharat Petroleum Corporation Ltd, Budgebudge, Kolkata - 700 137 3 The Territory Manager (Retail), M/s Bharat Petroleum Corporation Ltd, Barauni Territory, Barauni, District - Begusarai 4 The Deputy Manager Sales (Retail), M/s Bharat Petroleum Corporation Ltd, Muzaffarpur 5 The Sales Officer, M/s Bharat Petroleum Corporation Ltd, Muzaffarpur 6 The Depot Manager, M/s Bharat Petroleum Corporation Ltd Depot at Muzaffarpur - Respondents ----------- 6 23.03.2009 The petitioner is a retail dealer of petroleum products of Bharat petroleum Corporation Limited and its predecessor for a long standing of about 40 years without any complaint. The petitioner’s retail outlet was inspected on 10.07.2008. M S Sample from the retail outlet, nozzle were taken and sent for testing. Petitioner had maintained corresponding tank lorry sample as well. Though samples were not taken on the ground that the tank lorry samples were without outer plastic seal. On test report being obtained, there was variation in boiling point and RON. The latter was very minor. On basis of this, petitioner was issued a show cause notice and holding that the product found in his tank was adulterated, his dealership agreement itself stands cancelled. This has what brought the petitioner to this Court. Challenging the validity of the same, Shri N K Agarwal, learned Senior Counsel for the petitioner submits that petitioner had an unblemished record for over 40 2 years. This allegation of adulteration has not only come for the first time but is unsupported by test of contemporaneous sample of the tank lorry which vitiates the whole process. Under the Marketing Discipline Guidelines, 2005 issued by the Ministry of Petroleum and applicable to all Government Oil Companies, whenever a supply is received by a retailer, there is a 3 tier system of verification of standard. Sample is retained with regard to the delivery point, depot point/depot sample from where deliveries are affected to the tank lorry. Samples are to be retained in respect of product from the tank lorry itself and a third sample is of the underground storage tank after decanting. This is done so as to point out the source and the stage at which adulteration is done if subsequent nozzle samples are to be tested. If depot sample itself is found not as per specification then every person down the stream that is the tank lorry and the retailer is not held liable for disciplinary action. If on the nozzle sample being found adulterated and the tank lorry sample is found adulterated, it is prima facie case the tank lorry that is responsible for adulteration, and again the dealer gets the benefit of doubt. But if both the depot and the tank lorry sample are found to be correct then the onus is squarely on the dealer to establish his innocence failing which the result is cancellation of dealership. Here, Shri Agarwal, for the petitioner submits that failure to get the tank lorry sample tested takes away a valuable right of the petitioner and if that is not done for any reason which is not valid then the procedure cannot be said to be in accordance with law and would vitiate the result. On the other hand, Mr 3 Sanjay Singh, learned counsel appearing for the Corporation submits that undisputedly, the tank lorry sample did not contain the plastic seal. That being the position, it was not properly sealed and, accordingly, could not be accepted for sampling. Mr Agarwal, for the petitioner has brought the sample, as retained in respect of tank lorry, to the Court. He admits that there is no plastic seal on the outer cover but explained the reason thereof. The driver of the tank lorry has himself endorsed the paper seal. As plastic seal not being available, the driver was endorsing the paper seal for the very same purpose. Mr Agarwal submits that as the driver has himself acknowledged that the sample was paper sealed, for the reason as aforesaid, the Corporation should have no objection in testing the sample. He submits that at best, the person who could object, is the tank lorry owner because if the sample does not meet the requirement then he would be called upon to explain. Be that as it may, it cannot be said that the decision of the Corporation not to test the tank lorry sample was wrong or vitiated. But, at the same time, the sample, having a paper seal duly certified by the tank lorry driver, the Corporation would be well advised to test the same. The Corporation would take the views and get the sample tested accordingly and consequences would, accordingly, flow as against the petitioner or the tank lorry as the case may be. As supplies to the petitioner have been suspended, it is expected that the Bharat Petroleum Corporation would try to complete the exercise within a period of 45 days from the time it receives the certified copy to be produced by the dealer. They would also be well 4 advised to get the dealer’s nozzle sample retested as well. With these observations and directions, the writ application stands disposed of. M.E.H./ (Navaniti Prasad Singh)