*THE HON’BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.8453 of 2006 % 23.12.2009 Between: M/s. VLG Mallesham & Company .... PETITIONER AND M/s Indian Oil Corporation Limited and others. ...RESPONDENTS ! Counsel for Petitioner: Sri V.Sree Ranga Rao ^ Counsel for Respondents: Standing Counsel < Gist: > Head Note: ? CITATIONS: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.8453 of 2006 ORDER: The petitioner is a dealer of the 1st respondent- Corporation in petroleum products for the past 3½ decades. It has established a petroleum outlet at Peddapally, Karimnagar District. The dispensing unit was inspected on 22.10.2005 by the officials of the 1st respondent and samples of motor spirit were drawn. The analysis thereof at the laboratory disclosed that the samples did not accord with the standard specifications. The petitioner was issued a show cause notice dated 19.11.2005 directing him to explain as to why necessary penal action be not taken against him. The petitioner submitted a reply on 29.11.2005 with a request to send the sample left with it, for analysis. Complaining that the request was not acceded to, the petitioner filed W.P.No.27033 of 2005. The writ petition was disposed of with certain observations and in particular directing the petitioner to express its willingness to get the sample left with it analysed. Through their letter dated 04.01.2006, the respondents informed the petitioner that its request to send the samples left with it for analysis cannot be acceded to, on the ground that though the seals were found intact, one of the inner aluminum container showed few pin-holes and the other, some marks. Exchange of notices ensued and ultimately through the order, dated 03.02.2006, the respondents terminated the dealership of the petitioner. W.P.No.2553 of 2006 was filed against the same. However, it was dismissed, leaving it open to the petitioner to avail the alternative remedy of appeal. The petitioner preferred an appeal before the appellate authority and it was dismissed on 23.02.2006. Hence, this writ petition. The petitioner contends that the very purpose of leaving two samples with the dealer is to ensure transparency and there is absolutely no basis for the respondents in not acceding to the request to get the said samples analyzed. It is also stated that the reasons mentioned in the letter, dated 04.01.2006 are untenable, inasmuch as the seals were admittedly found to be intact. On behalf of the respondents, a counter affidavit is filed. It is stated that the samples drawn from the outlet of the petrol bunk failed to meet the specifications and that the petitioner has no plausible explanation therefor. According to them, though two samples were left with the petitioner in a sealed condition, one of the aluminum tins in the sealed box was found with pin-holes and that the product was leaking out of it and the other aluminum tin, though not leaking, is said to be having marks of piercing through pin. It is also urged that the action was taken against the petitioner only to ensure supply of pure product to the consumers. Learned Senior Counsel appearing for the petitioner submits that the very purpose of leaving samples with the dealer is to ensure that in the event of any discrepancy noticed, the said samples are also sent for analysis. He contends that the reluctance on the part of the respondents to send the sample discloses lack of transparency in the entire issue. Learned Standing Counsel for the respondents on the other hand submits that the occasion to send the samples left with the petitioner would have arisen, if only the seals and the container are found intact in all respects. He submits that the tampering of the containers in which the samples were drawn is evident from the fact that holes were found in one of it to the extent of leakage of product. The petitioner is a dealer of the 1st respondent for a fairly long time. It is almost routine and common for the respondents to cause inspection of the petroleum outlets of their dealers, draw samples and get them analysed. One such inspection was caused on 22.10.2005. As required under the relevant guidelines, the samples were drawn in six containers and all of them were perfectly sealed as per the stipulated procedure. Two of them were left with the petitioner. The respondents got the samples taken with them analysed at the laboratory at Korrukkupet, Chennai. The samples are said to have failed to meet the specifications in respect of "Research Octane Number". Naturally this gave raise to issuance of a show cause notice to the petitioner. The petitioner wanted the samples left with it be sent for analysis. At one stage, it approached this Court and the writ petition was disposed of with a direction to the petitioner to make appropriate representations. The representation was accordingly made. In their letter, dated 04.01.2006, the respondents expressed their inability to accede to the request of the petitioner by citing the following reasons: (i) There are two samples. The labels and seals are intact. (ii) Outer seals are opened and inner aluminum containers wee examined. (iii) One aluminum container showed few pin holes and out of which, the product was leaking through one hole. (iv) Second aluminum container showed few pin hole marks, but no leak was observed. The protest made by the petitioner about this did not yield any result and ultimately through order, dated 03.02.2006, the dealership of the petitioner was terminated. The appeal preferred by the petitioner was also dismissed. The testing of products at the distribution level by the manufacturers or suppliers is not uncommon. The object is to ensure that the customers are not supplied the adulterated or sub-standard product. If the finding as to the purity of product warrants analysis by laboratory, samples are drawn and kept in sealed containers. To ensure transparency in the entire process, a pair of samples is left with the dealer and two are taken by the supplier. One of the samples taken by the supplier is sent for analysis and if the result goes against the dealer, a show cause notice is issued. In case, the dealer raises an objection as to the result of analysis, the sample left with him together with the remaining sample with the supplier are sent for analysis once again. The result of these samples would have its own bearing. Instances are not lacking when different results ensued at various stages. The benefit of doubt has naturally to be given to the dealer. This practice is in vogue in various State and Central Departments also. The request made by the petitioner to send the samples left with it for analysis is not acceded to, by citing the reasons, which are extracted in the preceding paragraphs. Even according to them, the labels and seals are intact. However on the ground that the pin-holes are found on one of the aluminum containers, the request of the petitioner was not acceded to. To have a complete picture about the issue, this Court directed the learned Standing Counsel to place a typical sealed container as well as the one from which the aluminum container can be taken out. The sample is kept in a quadrangular aluminum tin with a perfect lid. The tin in turn is placed in a wooden box of a larger size. Before placing the aluminum tin, it is perfectly sealed. Thereafter, the wooden box is closed through its latch and seals are put on it. Apart from that, a paper with written content and signature is pasted on the box in such a way that no part of it can be moved or removed without damaging the seal. In case, the wooden box containing the sample left with the petitioner was found to have been tampered in any way, the respondents ought not to have opened it at all. On being satisfied that the seals on the wooden box are in tact, they opened them. According to them, a small pin-hole is noticed on one of the tin boxes and that the product was leaking out of it. The other tin box was not leaking but it is said to have contained marks of pin- holes. The petitioner cannot be held responsible for this state of affairs. Assuming that one of the aluminum tins was leaking, there was no basis for not testing the product in the said tin. On account of refusal on the part of the respondents to send the samples left with the petitioner for analysis, the very purpose and object of providing such a transparent procedure is lost. The factors mentioned by the respondents would at the most lead to some suspicion. The benefit of such suspicion must not lead to penal action against the petitioner. Therefore, the writ petition is allowed and the orders under challenge are set side. There shall be no order as to costs. _________ 23.12.2009 Note: L.R.Copy to be marked. (B/o) JSU THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Writ Petition No.8453 of 2006 Date: 23.12.2009 JSU