CWP3940 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3940 of 2007 Date of decision 21 .1 .2008 Ram Swaroop .. petitioner Versus Bharat Petroleum Corporation Ltd. and others .. Respondents CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE T.P.S.MANN PRESENT: Mr.V.S.Rana, Advocate for the petitioner Mr. Raman Sharma, Advocate for the respondents M.M.Kumar, J. This petition filed under Article 226 of the Constitution prays for issuance of a writ in the nature of certiorari quashing the order dated 31.8.2006 ( Annexure P.5) passed by the respondents vide which the sales and supply of all the petroleum products of the petitioner's company were suspended. A further prayer has also been made for quashing report dated 5.5.2006 ( Annexure P.8) of the Forensic Science Laboratory and for quashing show cause notice dated 29.12.2006 ( Annexure P.10) concerning termination of his dealership etc. being wholly illegal, arbitrary and violative of Articles 14,19(1)(g) and 21 of the Constitution. The petitioner is owner of Oil Company and is running the same under the name and style of M/s Mehra Oil Company, Akheri, Madanpur, District Jhajjar. On receipt of secret information, a raid was conducted by the police on the retail sale out let of the petitioner company in the presence of Assistant Food Supply Inspector and Food Supply Inspector. In the FIR, it is alleged that owner of the petrol pump, driver of the tanker alongwith one Dinesh were found present near the tanker. After CWP3940 of 2007 2 putting a pipe in Chamber no.1 of the tanker keroesene oil was being passed in the diesel tank of the petrol pump. It was confiscated as the oil was stopped passing on in the diesel tank of the pump. From all the four chambers of the tanker two bottles each of kerosene oil were taken out as sample. Likewise, three bottles of petrol and three bottles of diesel were also taken as sample from the pump. After taking out the samples the bottles containing diesel, petrol and keroesene oil were sealed and affixed with a stamp. The reading of the stock had been taken down alongwith the variation in the entries of stock register regarding diesel and petrol actually stored. On the above basis, FIR No. 17 dated 4.3.2006 was registered. It is alleged in the petition that earlier also samples from the petrol pump of the petitioner were taken many a times but they were never found adulterated. The petitioner had written a letter on 7.3.2006 to the respondent-Corporation and explained the whole position but the respondent-corporation on 31.8.2006 (Annexure P.5) suspended the sales and supply of all the petroleum products by the petitioner. On receipt of the report dated 5.5.2006 of the Forensic Science Laboratory a show cause notice was issued to the petitioner as to why action should not be taken against him including termination of the dealership which was duly replied by the petitioner on 8.1.2007. At this the petitioner has approached this Court. Mr.V.S.Rana, learned counsel for the petitioner has submitted that the sample obtained by the Director Food and Civil Supplies Controller, Jhajjar should have been examined in accordance with the procedure laid down in Order 5 of the Motor Spirit and High Speed Diesel ( Regulation of Supply, Distribution and Prevention of Mal-practices) CWP3940 of 2007 3 Order, 2005 (for brevity 'the Order 2005). According to the learned counsel the afore-mentioned order requires that sample be sent by the authorised officer within ten days to any of the Laboratories mentioned in Schedule 3 appended to Order,2005 or such other laboratory as notified by the Government in the official gazette for that purpose for analysis with a view to check whether the density and or other parameters of the product conform to requirements mentioned in Schedule I. Elaborating his argument, learned counsel has submitted that in the present case, sample was taken on 4.3.2006 and the same was sent for Laboratory test after a period of one month. In that regard our attention has been drawn to the test report of Forensic Science Laboratory, Punjab, Chandigarh ( Annexure P.8) where the date of receipt of sample mentioned is 17.4.2006. Therefore, learned counsel has submitted that the order dated 31.8.2006 ( Annexure P./5), report of the Forensic Lab dated 5.5.2006 ( Annexure P/.8) and show cause notice dated 29.12.2006 ( Annexure P.10) are liable to be set aside. Mr.Raman Sharma, learned counsel for respondent has, however submitted that the raid on the petrol pump owned by the petitioner was conducted by the District Food and Civil Supply Controller, Jhajjar on the sale out let of the petitioner's petrol pump and the petitioner was caught red handed with tanker lorry while decanting kerosene oil in the storage tank of diesel . In such a situation, learned counsel has maintained that the Order of 2005 would not stricto senso apply to the facts of the present case. He has further pointed out that FIR on the basis of the illegal activities of the petitioner has been registered on 4.3.2006 under Section 7/10/55 of the Essential Commodities Act, 1955 read with Section 420 IPC ( Annexure P.2). He has also drawn our attention to the Forensic Science Lab. Report CWP3940 of 2007 4 ( Annexure P.8) dated 5.5.2006 to indicate that adulteration of kerosene oil has been identified in the contents of bottle no.2 and the contents of bottle nos. 3 and 5 each have been identified as kerosene oil and so is the position of contents of bottle nos. 4 and 6 . After hearing learned counsel for the parties at length and minutely perusing the record we have reached the conclusion that this petition is liable to be dismissed. The petitioner has earlier filed CWP No.18373 of 2006 challenging the communication dated 31.8.2006 sent by the B.P.L. respondent no.1 asking the petitioner about his explanation that the police official Shri Salahwas and DFSC Jhajjar raided outlet on 3.3.2006 and caught him red handed while unloading kerosene oil from the tank lorry into storage tank of diesel. The Division Bench dismissed the petition as withdrawn on 21.11.2006 by observing as under: “ After vehemently arguing the case for some time, learned counsel for the petitioner wishes to withdraw the present petition with a liberty to seek his other remedies in accordance with law. Dismissed as withdrawn with liberty as aforesaid.” The instant petition which has been filed against the show cause notice issued on 29.12.2006 ( Annexure P.10) as also letter dated 31.8.2006 ( Annexure P.6) and test report of FSL dated 5.5.2006 ( Annexure P.8) is wholly misuse of the process of the Court and can hardly be approved. This ground alone is sufficient to dismiss the petition. It has further been found that the petitioner has been caught red handed while mixing kerosene oil with diesel. Such a misconduct on the part of the petitioner is in direct violation of various clauses of the terms of CWP3940 of 2007 5 'Dispensing Pump and Selling Licence'. As per the agreement dated 19.10.2005 according to clause 10(g) of the agreement the petitioner is not to adulterate the petroleum products supplied by the company and at all times to take all reasonable precautions to ensure that the Motor Spirit or HSD is kept free from water, dirt and other impurities and served from the Outfit in such condition. There are other similar clauses like 11(c) and 13(v) (vii). Even otherwise we find at that this stage it cannot be determined as to whether there is any violation of the provisions of Order 2005 as the matter is still sub judice before the authorities. The licence of the petitioner has merely been suspended vide order dated 29.12.2006 (Annexure P.10). Therefore, we are of the view that this stage no interference of this Court is warranted. The writ petition is wholly misuse of the process of the Court and the same is dismissed with costs of Rs.10,000/-. (M.M.Kumar) Judge (T.P.S.Mann) 21.1.2008 Judge okg