IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.890 of 2008 ***** 1. M/s Hindustan Petroleum Corporation Limited through its Senior Regional Manager (Retail), New Dak Bunglow Road, Patna - 800001. 2. The General Manager (North Central Zone), H.P.C.L., Plot No.01, Nehru Enclave, Gomti Nagar, Lucknow. 3. The Area Sales Manager (Begusarai), H.P.C.L., Begusarai. 4. The SGS India Pvt. Ltd. Kapoor Niwas, Tel Ex. Road, Dhanbad. 5. The M/s Hindustan Petroleum Corporation Limited through its Chairman and M.D., registered office at 17, Jamshedji Tata Road, Mumbai. …. …. Respondents - Appellants Versus M/S Super Highway Services, N.H.31, Begusarai through its Proprietor Shri Narayan Prasad Sultania, resident of Marwari Mohalla, P.S., Town, District-Begusarai. …. …. Petitioner – Respondent ----------- For the Appellants : Mr. Raj Nandan Prasad, Advocate For the Respondents : Mr. Shailendra Kumar Singh, Advocate ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 2nd December, 2008. We heard the counsel for the appellants. 2. The procedure for marker test at retail outlets, inter alia, reads thus: - “6. The concerned oil company area sales officer will fix a date, venue and time for carrying out the marker test of the failed sample product of the RO. Such testing will be carried out after giving prior notice to the dealer and the concerned transporter so that they can be present at the test venue, if they so desire for witnessing - 2 - the marker testing. The field officer or the representative of the Divisional office/Regional office/Territory office will also be present and conduct/witness the Marker test. (a) First, on the scheduled day, the sealed RO sample of the failed product as mentioned above will be tested for Marker only. The official(s) conducting the test will prepare and submit the report in this regard. (b) In case the failed RO sample referred above passes the marker test, no action to be taken against the dealer. (c) However, if the Marker test of the RO sample fails, the corresponding TT retention sample and supply location sample will be tested for Marker only and further action to be initiated against the dealer/transporter based on the test results in line with the existing guidelines of MDG.” 3. Even assuming that marker sample taken at the retail outlet on 26th May, 2008 failed, it appears that as contemplated under clause (6) of the procedure for marker test at retail outlet, reasonable opportunity was not given to the dealer to remain present for the marker test at the laboratory. That the marker test in the laboratory was undertaken on 29th May, 2008 is not in dispute. The letter that has been placed on record as Annexure-A along with the appeal records that representative of the dealer refused to acknowledge receipt. The dealer has contested that its representative refused to accept the letter dated 28th May, 2008. In any case, we find merit in the reasoning of the Single Judge that since there was no urgency in the matter as petrol pump had already been sealed, the notice could have been sent to the dealer by registered post. - 3 - 4. It is pertinent to notice and that is accepted by the counsel for the appellants that the dealer has been running the outlet for last 30 years and at no time prior to the inspection in question, the petrol and diesel sold at the outlet failed in test. 5. We are, thus, satisfied that the order passed by the Single Judge does not call for interference. 6. Letters Patent Appeal is dismissed in limine. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-