IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HUDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF JUNE TWO THOUSAND AND EIGHT PRESENT THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO.10350 OF 2008 Between: M/S Sudershan & Sons Service Station, rep. by its Proprietor A.Jayaprakash s/o Sudershan, aged 45 years, Occ: Business, R/o Balanagar village & Mandal, Mahabubnagar District … PETITIONER And : 1. The Collector (CS) Mahabubnagar District 2. The Tahsildar, Balangar Village and Mandal, Mahabubnagar District … RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein the High Court will be pleased to issue a writ, order or Direction more in the nature of Writ of Mandamus declaring the action of the 2nd respondent seizing the petrol bunk of the petitioner by conducting mediator’s report dated 26.2.2008 is illegal, improper and without power or authority under law and pass such other order or orders as the Hon’ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: Mr. Thimmadi Sudhakar Reddy Counsel for the Respondent: GP for Civil Supplies The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM WRIT PETITION NO. 10350 OF 2008 ORAL ORDER: The petitioner is a licensed retail dealer in petroleum products and has obtained a license under the A.P. Petroleum Products (Licensing and Regulation) Order 1980, in 1997. On 26.02.2008 the 2nd respondent on credible information received from the Police that the petitioner is adulterating the products with kerosene, visited the petitioner’s business premises and recorded a Panchanama (Mediator’s report) (mediator’s report) wherein it is noted that a kerosene tanker bearing No. AP 12U 9703 was parked in the petitioner’s business premises with plastic pipes connected to the underground tank of the petrol bunk. The 2nd respondent is stated to have collected information from the petitioner and after recording the other statistical information the mediator’s report recorded that kerosene tanker with white kerosene of the specified quantity in each of the three tankers has been seized, as also in the underground tanker of the petitioner’s Bunk. Four sample bottles were drawn one of Petrol, two of high speed diesel (HSD) and the fourth of Kerosene. The bottles were also seized as per the mediator’s report and the sealed samples sent to the Joint Collector, Mahabubnagar for analysis eventually. The petitioner assails the very seizure as recorded under the Mediator’s report on principally four grounds: (A) That, the 2nd is not the competent authority to enter, conduct a search and effect seizure of the stocks in the petitioner’s business premises; (B) That, the samples were not drawn of the alleged adulterated HSD in terms of Cl.8 of the Motor Spirit, High Speed Diesel (Regulation of Supply and Distribution and prevention of Malpractices) Order 1998 [for short ‘the 1998 Control Order’]; (C) That, in contravention of the provisions of Cl.8(1) of the 1998 Control Order there was no density test conducted on the spot to determine prima facie the adulteration of the HSD in the petitioner’s business premises; (D) That, there is also contravention of the provisions of Cl.7(2) of the 1998 Control Order as a copy of the mediator’s report was not furnished to the petitioner. The learned counsel for the petitioner however states that the petitioner later applied for and has obtained a certified copy of the mediator’s report dated 26.02.2008. On a true and fair construction of the contents of the mediator’s report dated 26.02.2008 it is apparent that the petitioner is alleged to have violated the provisions of the 1998 Control Order. This allegation is made on the ground that a kerosene tanker loaded with white kerosene was seen parked in the petitioner’s business premises with plastic pipes from it connected to the underground tanks of the petitioner’s Petrol Bunk. The mediator’s report assumes that such umbilical nexus between the kerosene tanker and the underground tank of the premises legitimizes a suspicion of adulteration. The respondents have therefore seized the stocks in the petitioner’s business premises. Proceedings u/Sec. 6A of the Essential Commodities Act 1955 (‘the Act’) would be initiated against the petitioner affording a due and adequate opportunity to canvass all contentions on merits. The framework of this writ petition permits but a narrow scrutiny, of the validity of the seizure by the respondents and on the four grounds urged by the petitioner to impeach the seizure. In so far as the authority of the 2nd respondent to have conducted search and effected seizure, the counter affidavit filed by the 1st respondent clearly and unambiguously states at para-5 that the Tahsildar, Balanagar Mandal (E2) is a Gazetted Officer in the cadre of a Deputy Collector (RDO) and is authorized to act as such. Cl.7 of the 1998 Control Order empowers any Gazetted Officer inter alia of the State Government to enter, search, take samples and seize any stocks on suspicion of contravention of the provisions of the said Control Order. Since the 2nd respondent is a Gazetted Officer of State Government as per the averments in the counter affidavit (which have not been controverted by the petitioner), the competence of the 2nd respondent cannot be gainfully impeached. This contention fails. Clause 7(2) of the 1998 Control Order enjoins that while exercising the power of seizure provided under sub-clauses (c) and (d) of sub-clause (1) the Officer authorized shall record in writing the reasons for doing so and a copy of the recording should be provided to the affected dealer, transporter, consumer or any other concerned person. The petitioner now has admittedly a certified copy of the Mediator’s report. The learned counsel for the petitioner would make a hyper technical submission that the copy of the mediator’s report should have been involuntarily furnished by the respondents instead of on petitioner’s applying. Such hyper technical interpretations are subversive of the public interest trajectory of the Control Order. The purpose of Cl. 7(2) of the 1998 Control Order (enjoining furnishing of a copy of the mediator’s report containing the reasons for effectuating seizure) is to provide information to the affected dealer, transporter or consumer of the reasons or grounds that animated the decision to seize the essential/controlled commodity and thus to provide relevant factual information to enable pursuit of remedies in appropriate proceedings. Whether the mediator’s report is furnished voluntarily by the respondents or on the petitioner’s application, is not a substantive and material issue. This contention is inconsequential and is accordingly rejected. The third contention of the petitioner is as to the failure to conduct a spot density test of the seized HSD at the time of the seizure. Reliance for a statutory obligation to conduct the spot density test is placed on Cl.8(1) of the 1998 Control Order, which reads as under: “8. Sampling of Product (1) The authorized under clause 7 shall draw the sample from the tank, nozzle, vehicle or receptacle, as the case may be, in clean aluminum containers to check whether density and other parameters of the product conform to the requirements of Bureau of Indian Standard Specifications number IS 2796 and IS 1460 for motor spirit and high speed diesel respectively. Where samples are drawn from retail outlet, the relevant tank-truck sample retained by the dealer as per clause 3(b) would also be collected for laboratory analysis.” The learned counsel for the petitioner would also place reliance on Cl. (2)(a) of the 1998 Control Order which defines ‘Adulteration’ as the introduction of any foreign substance into motor spirit or high speed diesel illegally or unauthorizedly with the result that the product does not conform to the requirements of the Bureau of Indian Standards [enumerated in Cl.2(a)] for high speed diesel or any other requirements notified by the Central Government from time to time. On an interactive analysis of the provisions of clauses 8(1) and 2(a) this court is unable to conclude in conformity with the petitioner’s contention that a spot density test of the seized petroleum product is a condition precedent for a valid seizure. The requirement in the 1988 Control Order as to confirming to a particular density stipulation is a requirement that provides a scientific basis for a conclusion as to the factum of adulteration. It is not the case of the petitioner that the specific location of seizure has any nexus with or impacts in any manner the density of petroleum products. If the density of the HSD seized from the petitioner’s premises and drawn into sealed sample bottles is tested at a place other than the petitioner’s business premises or at a point of time after the seizure, it does not appear that would disable accurate analysis of the seized commodity/product for its density. It is open to the vigilance or inspecting authorities to conduct a spot density test where the search party does not have a reasonable ground for suspicion as to adulteration. A suspicion as to adulteration may be logically arrived at on a plurality of circumstances. In the facts of this case, as apparent from the Mediator’s report dated 26.02.2008, a white kerosene loaded tanker was found in the petitioner’s business premises with plastic pipes from it connected to the underground tanks of the petitioner’s Petrol Bunk. That fact would per se legitimize a suspicion of adulteration and justifies the seizure. The mere non-conduct of a spot density test by the respondents does not in the considered view of this court fatally impact the seizure nor invalidates it. Neither expressly nor by any compelling implication did the provisions of the 1998 Control Order enjoin the conduct of any such spot density test. On this analysis this contention of the petitioner must fail and is accordingly rejected. The last contention urged by the petitioner to impeach the seizure is that contrary to the provisions of Cl. 8(2) of the 1998 Control Order and as apparent from the contents of the Mediator’s report dated 26.02.2008, only two samples of high speed diesel were drawn. Clause 8(2), to the extent relevant and material for the purpose of this writ petition, enjoins that three samples of 1 liter each of HSD should be taken and one such sample should be given to the dealer or transporter or the concerned person under acknowledgement with instruction to preserve the sample in his safe custody till the testing or investigation is completed; one sample of the HSD should be retained by the relevant oil company or department; and the third should be used for laboratory analysis. On a query from this court the learned counsel for the petitioner states that the purpose of Cl. 8(2) is to ensure that in case one of the samples drawn and sent up for analysis is not productive of accurate result or any result or if the analysis fails, there would be another sample available for retesting and by way of abundant caution Cl.8(2) enjoins the drawal of three samples. The Mediator’s report dated 26.02.2008 records that two samples of HSD were drawn from the premises, seized and sent to the Joint Collector for eventual sending to the laboratory for analysis. Even if one of the samples which is sent first for analysis fails there is another sample available and therefore the substantive purposes of Cl. 8(2) are achieved. In any event whether substantive compliance with the provisions of Cl.8(2) is sufficient, is a mater to be considered in the proceedings u/Sec. 6A of the Act. The non- drawing of three samples or the non-furnishing of one of the samples to the petitioner does not have the effect of invalidating the seizure itself. The seizure is effected on the basis of a reasonable suspicion of adulteration of high speed diesel in the petitioner’s business premises on the basis of the fact that (as alleged) one white kerosene tanker was seen parked in the petitioner’s business premises with plastic pipes connected to the underground tanks of the petitioner’s Petrol Bunk. For this reason the alleged transgression of Clause (8)(2) of the 1998 Control Order is not, in the considered view of this court, fatal to the validity of the seizure. No other contentions are urged. On the above analysis, there are no merits in the writ petition, which is accordingly dismissed. No order as to costs. Dt: 25.06.2008 -------------------------- - Pvsn Justice G. Raghuram