IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WP(C).No. 22301 of 2004(E) ------------------------------------- PETITIONER : ------------------ NEHRU NAGAR ENTERPRISES, BHARAT PETROLEUM DEALER, KURIACHIRA, THRICHUR-680 006., REPRESENTED BY ITS PARTNER, JOSE ANDREWS. BY ADV. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENTS : ---------------------- 1. BHARAT PETROLEUM CORPORATION LTD., REPRESENTED BY ITS TERRITORY MANAGER, IRUMPANAM INSTALLATION, IRUMPANAM,COCHIN-682 309. 2. THE DEPUTY MANAGER (SALES), BHARAT PETROLEUM CORPORATION LTD., C/O. OFFICE OF THE TERRITORY MANAGER, IRUMPANAM INSTALLATION, IRUMPANAM, COCHIN-682 309. BY ADV. SRI.N.N.SUGUNAPALAN, SC, BPC - R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 22301 of 2004(E) APPENDIX PETITIONER'S EXHIBITS:- EXT.P1:- TRUE COPY OF PFS AUDIT FORMAT ISSUED TO THE PETITIONER BY THE RESPONDENT NO.2, DT.19.06.2004 EXT.P2:- TRUE COPY OF RECEIPT ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT DT.19.05.2004 EXT.P3:- TRUE COPY OF TEST REPORT DATED 21.05.2004 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT EXT.P4:- TRUE COPY OF LETTER NO.TM.E.RO. DATED 04.06.2004 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER. EXT.P5:- TRUE COPY OF OBJECTION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 11.06.2004 EXT.P6:- TRUE COPY OF THE RELEVANT PORTION OF THE MARKETING DISCIPLINE GUIDELINES ISSUED BY THE BHARAT PETROLEUM CORPORATION LTD. EXT.P7:- TRUE COPY OF TEST REPORT DATED 09.07.2004 ISSUED BY THE 1ST RESPONDENT TO THE PETITIONER EXT.P8:- TRUE COPY OF LETTER SENT BY THE 1ST RESPONDENT TO THE PETITIONER VIDE NO.TM.E.RO.DATED 17.07.2004 EXT.P9:- TRUE COPY OF TEST REPORT ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT DATED 29.06.2004. -TRUE COPY- P.A. TO JUDGE pac S.SIRI JAGAN, J ============== W.P.(C).No. 22301 OF 2004 ==================== Dated this the 7th day of July, 2008. J U D G M E N T The licence granted to the petitioner's outlet of the 1st respondent for sale of petroleum products was suspended on the ground that the sample taken from his outlet did not meet the prescribed specifications on testing. The petitioner's contention is that the sampling itself was faulty which resulted in the failure of the test at the laboratory of the 1st respondent. According to him, as is clear from Exts.P3 and P7, at the outlet itself the inspecting officer tested the density of the petrol as 718.7 and density last recorded was 718.2, the difference of which is perfectly within the permissible limits. When initially the first sample was tested in the laboratory as per Ext.P3 report, the density read was 731.9 whereas again when the 2nd sample was tested, it tested 734.0. According to him, this itself would show that the samples taken by the respondents themselves simultaneously from the same stock gave two appreciably different readings on testing, which is clearly on account of W.P.(C).No. 22301 OF 2004 2 defective sampling. The petitioner therefore contends that the action taken by the respondents in suspending the sale of petroleum products by the petitioner is clearly on the basis of a wrong lab report, and therefore unsustainable . 2. The respondents would seriously contest the same. According to them, initially, the sample was tested at the laboratory and the result was intimated to the petitioner on 4.6.2004. On 11.6.2004, the petitioner requested for testing the sample retained with the sales representative. The retention sample also failed to meet the required specifications and therefore there is no merit in the contention of the petitioner. He would therefore argue for dismissing the writ petition. 3. I have considered the rival contentions in detail. 4. The petitioner's contention is that the reading recorded by the inspecting officer is 718.7 and the last recorded density was 718.2 which gives only a difference within the permissible limits, which is not disputed by the respondents. Their contention is that the reading of density by the field representative was using thermometer and hydrometer which W.P.(C).No. 22301 OF 2004 3 was available at the petitioner's outlet which is not dependable. Those equipments must have been duly calibrated which might have resulted in the wrong observation of the density. The counsel would therefore submit that the density observed in the laboratory test is the only acceptable result which alone can be relied upon for the purpose of deciding the issue. 5. I am of opinion that if the contention of the respondents is to be accepted, the tests conducted with the two samples taken by them and tested at the laboratory should return same test results only with minor variations. In this case, in Ext.P3, the first sample taken by the respondents tested 731.9. At the request of the petitioner. the 2nd sample was tested and as per Ext.P7, it tested 734.0. These two results have no comparison whatsoever, going by the standards prescribed. Therefore obviously the difference must be because of the defect in sampling, in which case the only way out is to rely on the test results observed by the inspecting officer notwithstanding the fact that the same was with the thermometer and hydrometer available at the outlet. This is further clear form Ext.P9 report in W.P.(C).No. 22301 OF 2004 4 respect of the next month's sample wherein there was not much difference between the reading of the sales inspector at the outlet and the laboratory result. In any event, in the light of the interim order, the petitioner has been continuing to run the outlet without any further complaint for the last four years. In the above circumstances, the benefit of doubt should go to the petitioner, since I cannot with any amount certainty decide either way on the basis of test results available. Accordingly, the writ petition is allowed and Ext.P8 order is set aside. However, I make it clear that the petitioner would not be entitled to any compensation for the seven day's suspension which he has already suffered before the stay was granted. S.SIRI JAGAN, JUDGE bkn/-