IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3093 of 2008 M/S RAI & SONS Versus M/S HINDUSTAN PETROLEUM CORPN.LTD.& ORS. ----------- For the Petitioner : Mr. Y.V.Giri, Sr.Advocate Mr. Jyoti Saran and Mr. Ashiosh Kumar For HPCL : Mr. Raj Nandan Prasad For M/s SGS : Mr. Surendra Kumar ---- 5 22.7.2008 In view of rampant adulteration of petroleum product, the Ministry of Natural Gas and Petroleum came out, in consultation with the nationalized Oil Companies, with guidelines commonly known as Marketing Discipline Guidelines. The said guideline ,in addition to others, provided in detail various steps for ensuring supply of pure petroleum product to consumers. One of them relates to quality testing. Petroleum products i.e. High Speed Diesel and Motor Spirit (Petrol) are to be tested for adulteration by testing contemporaneous sample at three points, first, the depot sample i.e. the depot from where supply is made to the retailer , second ,the tank lorry sample referred to as TT sample and third the dispensing nozzle sample. How the samples have to be maintained and for how long are also provided. It appears that the Petroleum Company have 2 appointed an agent to carry out sample test at their retail outlet .A chemical test has now been evolved by which if the petroleum product is adulterated with kerosene or such adulterant on adding a Marker , the marker would turn pink. If this is the result of testing of the nozzel sample then to test the innocence of retailer, the contemporaneous tank lorry sample required to be maintained by the dealer is tested. If in test this does not turn pink, the presumption is that unadulterated supplies were made and adulteration took place at the retail dealer premises but if this turns pink then the retail dealer is immediately absolved as the tank lorry supply would be treated as tainted. Then it is the tank lorry person the transporter who is then charged. Then the sample of depot is tested. If it does not turn pink then the tank lorry person is the person who has adulterated but if the depot’s sample turned pink then it is an oil company that is held responsible absolving the rest. In the present case, respondent no.6 who has appeared and is an agent of Hindustan Petroleum Company Limited for the purposes of testing came to the petitioner premises on 28.1.2008. They found that from one 3 underground tank of HSD ,the sample was adulerated having failed marker test. Even though requested by the dealer the contemporaneous TT sample was not taken for testing on the ground that TT sample is not properly sealed and not paper sealed.The report is to be found as part of Annexure 5 at page 35.Petitioner immediately protested and asked the Oil Company that the sample was untainted. It pointed out that first TT samples are taken and stored in Aluminum bottles .These Aluminum bottles are then sealed and put in the supplied wooden box and plastic seals supplied by the oil company are put sealing the boxes. There is no allegation that either of these two seals were defective in any manner. What is alleged to be defective was that there is a paper stuck on the box giving details of the sample with signature of the driver of the tank lorry. Those paper label have been fully described in the marketing guideline in clause 2.8 with reference to Annexure- S2 thereof. Annexure –S2 is annexed as Annexure 13 to the rejoinder. When this is compared with the so called paper seal on the wooden box which contained the sealed TT sample as produced in Court in presence of the lawyer of the Petroleum Company and their agent, the Court 4 finds that this is no paper seal. It is a simple paper label .It is a label to be affixed to the wooden box giving details of the sample contained therein. This is not a seal. It is apparent that the paper sample label has stuck to the wooden box contained all the particulars as required under Annexure S2 prescribed. Petitioner has clearly explained that when the inspecting authority wrote that TT sample has not properly sealed and not paper sealed what they had objected was that this paper label was not in the printed format supplied by the company . Be that as it may, it is not a seal and not required to be a seal.It is merely sample lable.. The other plastic seal which is on the outside or the seal inside is not alleged by any person to be defective, improper or tampered in any manner. They are the relevant seal. What this Court finds surprising is that when we came to the counter affidavit of respondent no.6, the sampling agent himself , apparently noticing the defective stand they have taken , now take a complete turn and set up a new case. They in para 9 of their counter affidavit stated that TT sample as produced by the petitioner’s firm was in tampered state without any proper seal and as such they 5 refused to receive the aforesaid tampered unsealed sample for test. This case was never put up anywhere much less in the original report. No where it was written that the sample was not sealed or the seals were tampered , a new case being sought to be developed in the counter affidavit. Para 9 of the counter affidavit of respondent no.6 must be read with Annexure A/4. If we read Annexure A/4 of the counter affidavit of respondent no.6 it falsified their stand in paras 9 and 10 of the counter affidavit straight away. Annexure A/4, all that it says that TT sample was not in proper condition hence we could not collect the same. There is not a whisper much less allegation that it was either unsealed or the seal was tampered in any manner, a case Respondent no.6 was trying to make out . This do not support the stand of respondent no.6. It must be kept in mind that positive sampling for adulteration by a dealer has very serious consequence of cancellation of dealership itself. It is well established that the graver the consequences the stricter compliance of procedural safeguard is sought for. Here it is evident that TT sample was not tested and the reasons given 6 for not testing is not valid. Reports do not show that the sample was not bearing the plastic seal. All that was said was that the paper seal was not proper whereas no paper seal is required to be there .It is a paper label that has to be put. In that view of the matter, I have no option but to hold that the procedure of testing of sample in this case has failed. If the scheme of testing has failed, then the benefit must necessarily go to the petitioner.Thanks to the vacillating /shifting stand of respondent no.6. A reference was made by Mr. Y.V.Giri, learned Senior counsel for the petitioner to an earlier judgment under similar circumstances where this Court had found that in absence of proper sampling of TT sample, no action could be taken. The said judgment of this Court is to be found in CWJC No. 10960 of 2007, disposed of on 22.1.2008 (Rajib Kumar Singh-v- The Union of India & ors.). In view of the aforesaid facts I have been left with no option but to hold that failure to test the TT sample, which was available has rendered the entire three tier testing as done in the premises of the petitioner ,as unreliable for punitive action against the petitioner, notwithstanding the re- 7 testing of nozzel sample failing marker test a second time. The result is that the order suspending the petitioner’s operation on the allegation of adulteration cannot be sustained and no further action can be taken there upon against the petitioner. The writ application thus stands allowed. Singh (Navaniti Prasad Singh)