IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT HON'BLE Mr. JUSTICE R.SUBHASH REDDY WRIT PETITION No.23479 of 2002 Between: P.T. Gopalachari & Sons, Bharat Petroleum Corporation Ltd., Dealers, Rep. by the Managing Partner P.T. Jagannathan, Mini By-pass Road, Srinivasa Agraharam, Nellore - 524 002. ... PETITIONER AND Bharat Petroleum Corporation Limited, Tada Retail Territory, Nellore, rep. by the Territory Manager (Retail), 24/1628, Dargamitta, Nellore - 524 003. ...RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a Writ, in the nature of a Writ of Mandamus or any other appropriate Writ, direction or order declaring the order passed by Sri E.D.M. Raj Kumar, Senior Sales Officer, for the Territory Manager (Retail), Bharat Petroleum Corporation Limited, Tada Retail Territory, Nellore, in letter Ref:Tada/Trt/PTG, Nir, dated:21.11.2002, as illegal and void. Counsel for the Petitioner: Mr. P. Kamlakar Counsel for the Respondent: Mr. O. Manohar Reddy The Court made the following Order: The petitioner, a dealer in Motor Spirit of Bharat Petroleum Corporation Ltd., has filed this writ petition questioning the validity of the order dated 21-11-2002 issued by the respondent in letter Ref: Tada/Trt/PTG,Nlr. 2. By the aforesaid order, as a measure of punishment, the respondent has ordered suspension of sales and supplies of all petroleum products to the retail outlet of the petitioner for a period of 30 days with effect from 22-11-2002 to 21-12-2002 and also imposed a fine of Rs.20,000/-. 3. The retail outlet of the petitioner was inspected by the authorities of the Anti Adulteration Cell, constituted under the Ministry of Petroleum and Natural Gas, Government of India, on 25-09-2002. During the inspection, the inspecting authorities have drawn samples of Motor Spirit from underground tank Nos.1 and 2. Subsequently, on the ground samples drawn were not meeting the required specifications with reference to Research Octane Number (RON), the petitioner was issued notice dated 08-11-2002 and called upon to explain the reasons for failure of Motor Spirit samples in meeting the requisite specifications of RON. In reply to the said notice, the petitioner filed explanation dated 16-11-2002 stating that the test reports are in accordance with the specifications notified by Bharat Petroleum Corporation Ltd., and also as per the specifications notified in the Schedule to Motor Spirit and High Speed Diesel (Regulation of Supply and Distribution and Prevention of Malpractices) Order, 1998, framed under Section 3 of the Essential Commodities Act, 1955. In spite of such explanation, the impugned order is passed suspending the sales and imposing fine of Rs.20,000/- on the ground that the minimum prescribed specification with regard to RON is 88 and the test samples drawn did not meet the required specification and the same will amount to adulteration. 4. The case of the petitioner is that after promulgation of the Control order, i.e. Motor Spirit and High Speed Diesel Order, 1998 in exercise of powers under the provisions of the Essential Commodities Act, 1955, specifications with regard to Motor Spirit are notified in Schedule I under clause 2(a) of the Control Order. It is stated that the required specifications with regard to RON is 87, but not 88. It is the further case of the petitioner that as much as test samples drawn from the underground tanks of the petitioner are meeting the specifications notified in Schedule I, as such, there is no basis for the allegation of adulteration. 5. At the stage of admission, this court, by order dated 22-11-2002 passed in W.P.M.P.No.29448 of 2002 suspended the impugned order by recording a finding that RON prescribed is 87, but not 88. The said order of this court has been in operation during the pendency of the writ petition and though the writ petition is of the year 2002, no counter affidavit is filed on behalf of the respondent controverting the allegation of the petitioner. 6. I have heard learned Senior Counsel Sri E. Manohar appearing for the petitioner and Sri O. Manohar Reddy, learned Standing Counsel for the respondent. 7. It is contended by the learned Senior Counsel Sri E. Manohar that the minimum required RON for Motor Spirit is 87, but not 88 and the test reports with regard to M.S. Tank Nos.1 and 2 disclosed RON to be 87.3 and 86.9 respectively. The learned counsel also relied on the methods of test for petroleum and its products notified by the Indian Standards Institution. It is submitted that the when the figure ends with 0.50 it is to be rounded off to the nearest even number; as such test report with regard to M.S. Tank No.2 which disclosed R.O.N. as 86.9 is to be rounded off to 87, which is the requirement as per the Control Order. 8. On the other hand, it is contended by Sri O. Manohar Reddy, the learned Standing Counsel, that the amended notification issued in IS 2796 with regard to RON is 88, but not 87. Though no affidavit is filed to that effect, a copy of statement is placed before this court during the course of arguments. 9. The word ‘adulteration’ as defined in the Control Order under clause 2(a) reads as under: “ ‘adulteration’ means the introduction of any foreign substance into motor spirit/high speed diesel illegally or unauthorisedly with the result that the product does not conform to the requirements and specification of the product indicated in Schedule I.” 10. In Schedule I of the Control Order, specifications with regard to characteristics, requirements and methods of test are notified. So far as Octane requirements are concerned, in Schedule I (v), minimum of 87 is notified for Motor Spirit. A reading of the impugned order shows that the respondent has proceeded on the premise that minimum RON notified is 88, but not 87. Though minimum required RON is notified as 87, it is not known on what basis an allegation is made in the impugned order that minimum required RON is 88, but not 87. The allegation of the petitioner in the affidavit filed in support of the writ petition that the minimum required RON is 87, but not 88 is not controverted by the respondent by filing a counter affidavit. Though it is contended by the learned counsel for the respondent that the Indian Standards notified subsequently prescribe RON at 88, but unless the said specification is amended by way of bringing about an amendment to the Control Order, what is notified in the Control Order itself governs the field, but not as notified by the respondent. When samples which were drawn meet the requirement in Schedule I, no allegation can be made against the petitioner that it has indulged in adulteration, by taking into account RON as 88, though it is specified as 87 in the Schedule. Specifications as notified by Bharat Petroleum Corporation Ltd., also reveal that required specification for RON is 87, but not 88. In the instant case, test reports reveal that RON specifications were found at 87.3 and 86.9 respectively for M.S. Tanks Nos.1 and 2. By considering the procedure notified by Bureau of Indian Standards, 86.9 is to be rounded off to 87 so far as M.S. Tank No.2 is concerned. So far as test report of M.S. Tank No.1 is concerned, RON is 87.3. In such an event both the samples meet the specifications as notified in the Schedule. The learned senior counsel for the petitioner has relied upon a judgment of a learned single Judge of this Court in the case of Premodaya, Bharat Petroleum Dealers v. Bharat Petroleum Corporation Ltd., Lobbipet, Vijayawada[1], wherein it is held that petroleum product can be said to be adulterated only when there is introduction of foreign material/substance into petroleum product. In the instant case, as the specifications with regard to RON are meeting the specifications notified in Schedule I of the Control Order notified under Section 3 of the Essential Commodities Act, 1955, there is no basis for the allegation of the petitioner that samples drawn are not meeting the specifications. In view of the test reports, there is also no basis for the allegation that adulteration, as defined under clause 2(a) of the Control Order, has taken place. Moreover, though the petitioner has filed explanation dated 16-11-2002 in reply to the notice issued to it, without considering the same, the impugned order has been issued. Hence, I am of the opinion that the impugned order dated 21-11-2002 is not sustainable. Therefore, the impugned order dated 21-11-2002 is set aside. 11. The writ petition is accordingly allowed. No order as to costs. _______________________ R. SUBHASH REDDY, J. June 23, 2009 MRR ... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP {TML} [1] 2008 (6) ALD 670