- (1.) THIS writ petition is directed against the order dated 18.07.2007 (Annexure no.-13) passed by Regional Manager, Hindustan Petroleum, Corporation (opposite party no.3) as also the order dated 29.11.2007 (Annexure no.16) passed by the appellate authority up holding the order passed by the Regional Manager in appeal. The petitioner is dealer of Hindustan Petroleum Corporation and is running the business under the terms of agreement entered into between him and Hindustan Petroleum as well as relevant Rules and Orders is issued therefor.
(2.) ON 15.05.2007 one Mr. Indrajeet Yadav, an authorized representative of S.G.S. India Private Ltd. (opposite party no.4) purchased 1/2 liter of H.S.D. (Diesel) through nozzle connected with the tank no.1 through dispensing unit and performed marker test which gave pink color that means it failed in marker test. He prepared a report and took the petitioner's signature over there. After 45 minutes he again came at the retail outlet and purchased 1 liter of H.S.D. From tank no.2 through nozzle connected with the dispensing unit and again performed the same test, prepared the report and took petitioner's signature. The learned counsel for the petitioner submits that the marker test was not performed as per the guidelines particularly Clause 2.4 and 2.4.2. It is stated that the power of sampling of the oil product and search and seizure is governed under the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005. Clause-7 of the aforesaid order empowers authorizes some officers who are the gazetted officers of the Central Government or a State Government or any police officer not below the rank of Deputy Superintended of Police or any officer of the oil company, not below the rank of Sales Officer to enter and search any place or premises of a dealer, transporter, consumer or any other person who is an employee or agent of such dealer or transporter or consumer and take sample of the product. In light of the aforesaid provision it is stated that by the learned counsel for the petitioner that the S.G.S. Officer's who claimed himself as agent of the oil company has no authority to enter and search the premises of the dealer, therefore, the action of the search and seizure of opposite party n.4 is without jurisdiction. He also raised question on the procedure adopted by the officer for sampling the oil product and submitted that Clause-8 of the Order, 2005 provides a procedure of sampling which speaks that the authorized officer shall take and seal 06 samples of 01 liter each of the motor spirit or 03 samples of the H.S.D. Two samples of the motor spirit or one of the high speed diesel would be given to the dealer to preserve it in his safe custody till the testing or investigations are completed. Two samples of motor spirit or one of high speed diesel shall be kept by the concerned oil company or department and the remaining two samples of motor spirit or one high speed diesel would be used for laboratory analysis.
(3.) THE learned counsel for the petitioner submits that in the present case only 1.5 liter product was taken out of which 1/2 liter was utilized for testing on the spot and only 02 samples of 1/2 of each were taken and no sample was left for the dealer to retain. It is further stated that the samples so taken was neither properly sealed nor was numbered as required by the guidelines. Thus, it is submitted by the learned counsel for the petitioner that the actions of the respondents suffers from jurisdiction and procedural error in sampling that being so the orders impugned are liable to be quashed. Through the counter affidavit the respondents admitted the sampling of oil product from the petitioner's outlet by the authorized representative, it is stated that the said T.T. retention sample was not in a sealed condition and only sample was pasted on the wood box which was duly signed by the petitioner's representative and T.T. Driver. It is also admitted that no seal number was mentioned on the sample label therefore it was not tested.;