ORDER
L. Narasimha Reddy, J.
1. The petitioner is a partnership concern and runs a petroleum retail outlet of Bharat Petroleum Corporation, at Chodavaram, Guntur District. The Superintendent of Police, Vigilance and Enforcement Department, Guntur District, the 2nd respondent, inspected the outlet on the intervening night of 23/24-8-2002. On the allegation that the petitioner was indulging in adulteration of diesel in the outlet, proceedings were initiated and the outlet was seized. The samples drawn by the 2nd respondent were analysed by the Forensic Science Laboratory, Hyderabad, the 1st respondent, through Gas Chromatography Technique. A report dated 21-9-2002 discloses that the product was adulterated.
2. License issued to the petitioner under A.P. Petroleum products (L&R) Order 1980 (for short ‘the Control Order’) was suspended by the joint Collector on 7-10-2002. The petitioner preferred an appeal to the Commissioner of Civil Supplies. The appeal was allowed on the ground that the licensing authority did not comply with Clause 28(1) of the Control Order,
3. The petitioner filed W.P. No. 21752/ 2002 challenging the proceedings initiated by the 2nd respondent as regards drawl of fresh samples. The writ petition was disposed of on 15-11-2002 directing that fresh samples be drawn. The 2nd respondent refused to draw fresh samples on the ground that the seals on the tank and the outlet were found to have been removed. Thereupon the petitioner filed a Contempt Case No. 1415/ 2002.
4. In view of the dispute as to the very existence of seals, this Court called for a finding from the District Judge, Guntur. The matter was entrusted to the Court of the Principal Senior Civil Judge, Guntur. A report was submitted by the said Court on 7-2-2003 to the effect that no seals as such were put on the tank and the outlet. C.C. No. 1415/2002 was closed on 17-2-2003, directing inter alia, drawal of fresh samples.
5. Fresh samples of the product were drawn on 6-3-2003 under a Panchanama and were sent for analysis to the 1st respondent. The 1st respondent submitted a report dated 21 -3-2003 stating that it has examined the samples by using Gas Chromatography technique and that the product was found to have been mixed with kerosene. In this writ petition, the report dated 21-3-2003 submitted by the 1st respondent is challenged.
6. During the pendency of the writ petition, the 4th respondent i.e., the joint Collector, Guntur, passed an order dated 12-6-2003 cancelling the licence of the petitioner on the basis of the report submitted by the 1st respondent. The petitioner filed an application seeking permission to amend the prayer in the writ petition to include the challenge to the order dated 12-6-2003. The same was ordered by this Court on 30-7-2003.
7. The petitioner contends that the 2nd respondent had conducted the alleged raid with a mala fide intention and had fabricated false reports. It is their case that the 2nd respondent initiated proceedings against M/s. Dhanumjaya Oil Enterprises, alleging that they have diverted kerosene to the outlet of the petitioner for the purpose of mixing it with the diesels and that the 4th respondent; through its order dated 20-12-2003, recorded a finding that the allegation against M/s. Dhanumjaya Oil Enterprises is not true.
8. The further contention of the petitioner is that the Ministry of Petroleum and Natural Gases had issued “The Motor Spirit and High Speed Diesel (Prevention of Malpractice in Supply and Distribution) Order 1998 (for short ‘the Motor Spirit Order’) in exercise of its power under Section 3 of the Essential Commodities Act and that a specific and detailed procedure is prescribed for the purpose of drawl and testing of the samples. According to the petitioner, such tests are indicated in Clause 4(2) of the Motor Spirit Order read with Table No. 1 and it is only through those prescribed tests that finding can be recorded as to whether the product of the outlet is adulterated or is not up to standard. The petitioner contends that the 1st respondent did not conduct such a test and that the report is based on a test, which is not prescribed under the Motor Spirit Order. It is further contended that such a report cannot constitute any basis and the consequential order passed by the 4th respondent is liable to be set aside.
9. In the counter-affidavit filed by the 1st respondent, extensive reference is made to the various proceedings that have ensued against the petitioner from time to time. It is stated that samples drawn from the tank and outlet of the petitioner were tested through Gas Chromatographic technique. Such an exercise is sought to be justified on the ground that the technique is specifically applied for volatile compounds like petroleum products. It is also stated that the Manual published by the Bureau of Police Research and Development, Ministry of Home Affairs, Government of India, has prescribed the same as one of the methods to analyse the samples of petroleum products. The authenticity of such a test is also sought to be supported on the basis of certain research papers published in various magazines and approval of the same by the then Indian Standard Institute. Ultimately, it is stated that the Gas Chromatographic test has revealed that the samples drawn from the outlet in question were found to have been mixed up with kerosene.
10. A counter-affidavit is filed on behalf of 4th respondent justifying the various steps taken against the petitioner.
11. Sri C.V. Mohan Reddy, learned Counsel appearing on behalf Sri P.V.A. Padmanabham, Counsel for the petitioner, submits that the drawal of samples of petroleum products and analysis of the same are specifically provided under the Motor Spirit Order and that any steps as regards the same shall be strictly in accordance with the relevant provisions. He contends that the 1st respondent did not conduct any such test and on the other hand had tested the sample only through Gas Chromatography technique, which does not find place in the Motor Spirit Order. He contends that the result of such a report cannot constitute any basis for any action against the petitioner. It is also his contention that the order of cancellation passed by the 4th respondent is on the basis of such an invalid report and as such it cannot be sustained.
12. Learned Government Pleader for Home on behalf of the 1st respondent and learned Government Pleader for Civil Supplies on behalf of the other respondents, on the other hand, submit that the writ petition is not maintainable to challenge the report and the order of cancellation. According to them, the report of the 1st respondent constitutes an expert opinion and it cannot be the subject-matter of the adjudication. They also point out that no exception can be taken to the 1st respondent in conducting the test through Gas Chromatography technique, which has got its own authenticity. It is their case that the petitioner has an alternative remedy of appeal against the order of cancellation and that the writ petition is not maintainable.
13. The petitioner had challenged the report of the 1st respondent dated 21-3-2003 and the consequential order passed by the 4th respondent dated 12-5-2003. It is not necessary to refer the various circumstances that led to the drawal of the 2nd sample. Suffice it to say that having regard the orders passed in C.C. No. 1415/ 2002, the sample that was drawn under Panchanama dated 6-3-2003 and sent for analysis to the 1st respondent shall be treated as authenticated. The sample drawn earlier to that does not hold any authenticity.
14. The petitioner is a dealer in motor spirit and diesel, holding licence under the relevant Control Orders. It is required to maintain standards that are stipulated therefor. In exercise of its power under Section 3 of the Essential Commodities Act, the Central Government issued the Motor Spirit Order, specifically dealing with the aspects of adulteration of the product, malpractices, providing for the mechanism for drawl of samples, examination thereof and for consequences thereof. Clause 4 of the Motor Spirit Order empowers any Gazetted Officer of the State or the Central Government or any Police Officers not below the rank of DSP to conduct search and effect seizure for the purpose of satisfying that the product conforms to the prescribed standards. Certain ancillary powers are also conferred. Clause 5 thereof prescribes the procedure of sampling the product. Clause 2(a) defines ‘adulteration’ 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.”
Schedule I contains two separate tables, one dealing with motor gasoline and the other with diesel fuels. The table consisting diesel fuels prescribes characteristics, requirements as well as the method of test. For example, the characteristics of carbon residue (Ramsbottom) on 10% residue, per cent by mass, at its maximum is required to be at 0.35. The method of test to find out this characteristic is P:8. Density at 15C kg/m2 is required to be between 820 and 800. The test stipulated therefor is P: 32. Like this, as many as 16 tests are prescribed to examine as many characteristics.
15. It is only when a sample drawn in accordance with the Motor Spirit Order and when analysed with the test prescribed under table I of Schedule I is found to be not possessing the characteristics that the product can be said to be adulterated. Since findings in this regard are going to result in serious and severe consequences, strict compliance with thereof is to be ensured.
16. Reverting to the facts of the case, there is not much controversy as to the procedure adopted in drawal of the samples. The dispute is as to the method adopted for examining and analysing the samples. One of the contentions raised on behalf of the respondents is that the result of the analysis cannot be the subject-matter of the adjudication in the writ petition. If the subject-matter of the writ petition is as to whether the result of a particular test was accurate or whether the Analyst had conducted the test properly, the contention of the respondents would be readily acceptable. On the other hand, if the dispute is as to whether the tests prescribed under a statutory provision was adopted at all and whether it was competent for the Analyst to have recourse to a different test, the jurisdiction of the Court to satisfy itself as to the compliance of the statutory provision cannot be restricted in any way. In such a case the adjudication is focused not upon the expertise of the Analyst, but upon his adopting a basis, other than the one prescribed under the relevant provisions.
17. It is well settled principle of law that where law requires a thing to be done in a particular manner, it shall be done in that manner only, or not at all. Howsoever meritorious or ingenuous the alternative method may be, it cannot substitute or supplant the one prescribed under law (See Gujarat Electricity Board v. Giradharlal, and Nazir Ahmed v. King Emperor AIR 1936 PC 253.)
18. In the report dated 21-3-2003, the 1st respondent did not state that he has conducted any of the tests prescribed under the Motor Spirit Order. He does not dispute the applicability of the Motor Spirit Order to the product in question. The report is very brief and it is beneficial to extract the same in its entirety:
“Report
The sample in item 1 is analysed and found to be High Speed Diesel and its density, distillation range and flash point are as follows:
S. No.
Density in gm/cm3
Distillation range
in C
Flash Point in C
1HSD
Observed density at
33 C = 0.830
Corresponding density at 15C = 0.8420
Distilate recovery of
9 C – 333 C
46.1 C
The contents of the sample in item No. 1 i.e., Diesel is found to be adulterated with kerosene on the basis of instrumental analysis.”
19. In the counter-affidavit filed by the 1st respondent, he does not dispute that the result indicated in the report is based on the Gas Chromatography Technique. The basis for resorting to the said technique is stated as under:
“7. It is submitted that of late, motor spirit and high speed diesel are being adulterated with certain cheaper solvents by dealers which have identical physical parameters as that of parent fuel so as to hood wink law enforcement agencies and in the process to make easy money by duping the public. Such samples do not reveal adulteration by the existing conventional methods of analysis mentioned above. Therefore in the interest of justice and to bring out the truth, the latest instrumental technique like Gas Chromatography is made use of.”
The same is sought to be justified by referring to certain research papers as well as the Manual of Bureau of Police Research and Development, Ministry of Home, Government of India. If the results of the analysis of the samples as per the tests prescribed under the Motor Spirit Order disclosed that the product was adulterated, resort to Gas Chromatography test could have been justified, obviously, to buttress the findings.
20. Up to one stage, it was sought to be contended that the standard of the Gas Chromatography test is over and above the test prescribed under the Motor Spirit Order, The counter-affidavit did not support such a contention. This Court, therefore, directed the 1st respondent to be specific on this aspect. Thereupon, the 1st respondent filed a Memo to the following effect:
“1. I submit that I received a sample of High Speed Diesel for analysis on 7-3-2003 from the Superintendent of Police and -Regional Vigilance and Enforcement Officer, Guntur and was allotted the FSL File No. Che/376/2002(A), The examination of sample commenced on 7-3-2003. The analysis was conducted as per the Bureau of Indian standards Specifications (Motor Spirit and High Speed Diesel Control) Order, 1998 by the prescribed chief methods viz., (a) Density, (b) Distillation and (c) Flash point.
2. The findings of the above methods for the sample as per the Control Order did not reveal adulteration.
3. Further, the sample was also analyzed by the Instrumental Method viz., Gas Chromatography, which is a recommended method in the guidelines issued by the Bureau of Police Research and Development, Ministry of Home, Government of India, New Delhi, to detect adulteration in fuel samples. Gas Chromatography is the latest scientific technique generally used in analysis of fuel samples.”
From this, it is evident that the analysis through the test prescribed under the Motor Spirit Order did not reveal adulteration. That being the case, the product cannot be said to be adulterated. Howsoever authenticated any other test may be, as long as it does not find place in the Motor Spirit Order, it cannot constitute the basis to brand the product as adulterated. Therefore, the impugned report does not conform to the Motor Spirit Order and as such it cannot be sustained and deserves to be set aside.
21. On the basis of the impugned report, the 4th respondent passed an order dated 12-6-2003. If it were to be a case where the order of cancellation was on the basis of certain factors, other than the report of the 1st respondent, it would not have been possible for this Court to consider the same in the writ petition. However, from a perusal of the order, it is evident that after referring to the various factors that gave rise to drawal of the 2nd sample and analysis of the same, the 4th respondent held as under:
“In the instant case, two analysis report of the Forensic Science Laboratory, Hyderabad are the basis to arrive that the seized HSD oil is adulterated with kerosene. The analysis report of the FSL authorities in two occasions clearly shows that the seized HSD oil in the underground tank of M/s. V. Rosaiah, N.P. Reddy and Co., BPC Dealer, Petrol Bunk, Chowdavaram (V) is adulterated with kerosene.”
No other factor or reason was referred to. With the finding of this Court that the report of the 1st respondent is unsustainable, the very basis for the order of cancellation ceases to exist. That being the case, it would only be a futile exercise to require the petitioner to avail the remedy of appeal.
22. Hence, the writ petition is allowed and the report of the 1st respondent dated 21-3-2003 and the consequential order dated 12-6-2003 passed by the 4th respondent are set aside. No costs.
23. Before parting with the case, this Court feels that the inclusion of Gas Chromatography test for the purpose of identification of the purity of the petroleum products needs to be considered. It is not known as to whether the test missed the attention of the rule making authority. If the authority took the same into account and did not incorporate in the list of tests in Table 1, its discretion cannot be meddled with. However, if for any reason, the test missed the attention of the rule making authority, the matter needs to be considered. Hence, the office is directed to forward a copy of this judgment to the Ministry of Petroleum and Natural Gases, so as to enable them to take appropriate decision in this regard.