G. P. Mathur, J.
1. The petitioner is a petty diesel dealer and holds a licence under U. P. High Speed Diesel Oil and Light Diesel Oil (Maintenance of Supplies and Distribution) Order. 1981 (hereinafter referred to as 1981 Control Order) for retail sale of diesel. He is a 'dealer' as defined in clause 2 (d) of the Control Order. A sample of diesel was taken from his business premises by an inspection team which consisted of a Sub-Divisional Magistrate, a Supply inspector and some other employees of the supply department on 22.12.1998. A notice dated 12.8.1999 was served upon him stating that the sample taken from his business premises on 12.8.1998 was analysed by Forensic Science Laboratory. Agra, which had submitted a report that the sample did not conform to the standards fixed by the indian Standards institution and was found to be adulterated with kerosene. He was required to show cause why his licence may not be cancelled on the aforesaid ground. The petitioner claims that he gave an application to the Collector. Etah, praying that third portion of the sample, which had been given to him in a sealed container, may be analysed as he doubted the correctness of the report of the Forensic Science Laboratory, Agra. The Collector, Etah, by his order dated 13.10.1999 cancelled the licence of the petitioner and forfeited the security amount in favour of theState. The present writ petition has been filed praying that a writ of mandamus be issued commanding the respondents to get the third portion of the sample which had been taken from his business premises on 22.12.1998 be re-analysed from the Forensic Science Laboratory. Agra. A further prayer has been made that the respondents be restrained from interfering with the petitioner's business till the report of analysis of the third portion is received from the laboratory.
2. Mrs. Poonam Srivastava, learned counsel for the petitioner has urged that though the sample was taken on 12.8.1998 but the report of the Forensic Science Laboratory, Agra, was sent by its Joint Director on 22.7.1999 which showed that the sample had been analysed after almost 7 months and during this period it may have undergone a change. She has further urged that it is likely that sample sent for analysis may have got mixed up with other samples which resulted in a wrong report and, therefore, the prayer made by the petitioner for a fresh analysis of the third portion of the sample, being retained by him, ought to have been granted by the authorities. Learned standing counsel has urged that the mere fact that the report of the analysis was received along with a covering letter of the Joint Director of the Laboratory dated 22.7.1999 did not itself mean that the analysis had been done after 7 months. He has also urged that diesel being a petroleum product cannot undergo a change merely by lapse of time and it could not show presence of kerosene even if the analysis is done after a long period. He has further contended that there is no provision for a fresh analysis of the third portion of the sample under the Control Order dealing with the subject and, therefore, the prayer made by the petitioner cannot be granted.
3. In order to appreciate the contentions raised. It is necessary tomention the reasons which impelled the State Government to introduce the system of appointment of 'petty diesel dealers'. The State Government issued an order laying down guidelines for appointment of petty diesel dealers for sale of high speed diesel in retail on 16.9.1987. The order recites that the retail outlets of Government oil companies for sale of diesel are normally situated in all the cities, but there are no retail outlets in rural areas due to which the consumers, specially the farmers, face considerable hardship in carrying diesel from the cities to their homes or fields and this was having an adverse impact on agricultural operations. The State Government had accordingly taken a decision that the requirement of diesel of the farmers, who are residing at some distance from the cities and regular retail outlets, should be met by making an appropriate arrangement and in this connection petty diesel dealers be appointed under the provisions of the 1981 Control Order. The order further recites that as diesel was an inflammable petroleum product, whose storage was governed by the provisions of the Petroleum Rules. 1976, and further in order to eliminate the chance of adulteration and blackmarketing in the commodity. It was necessary to impose some regulatory measures regarding appointment of petty diesel dealers. Thereafter the Government Order gives in detail the conditions which had to be observed in the matter of appointment and also in carrying on business of petty diesel dealers. Condition No. 1 mentions that no petty diesel dealer will be appointed within a radius of five kilometres of a regular diesel establishment by an oil company on any national or State highway. Condition No. 2 provides that petty diesel dealers will not be allowed to store more than 4 kilolitres (4000 litres) of diesel at any point of time. Condition No. 6 provides that renewal of licence of petty diesel dealers shall be done only for a period of one year and if in future the retail outlet of an oil company is established within 5 kilometres of his place of business.his licence shall not be renewed any further. Condition No. 8 provides that appointing authority of a petty diesel dealer will be Collector who is the licensing authority under the 1981 Control Order. Condition No. 9 provides that a petty diesel dealer shall be attached to a retail outlet of an oil company and it will be incumbent on him to take supply of diesel from the said retail outlet in barrels and drums. It further provides that regular checking may be done to ensure that he is getting supply from the same authorised diesel retail outlet and sample of diesel being sold by him may be occasionally taken for testing of its quality. Condition No. 11 provides that in order to avoid chances of adulteration, a petty diesel dealer will not be allowed to sell kerosene and diesel simultaneously from the same place. Another Government Order laying down the guidelines for appointment of the petty diesel dealer was issued by the State Government on 25.4.1997 which contains almost the same conditions as in the order issued on 16.9.1987.
4. In the present case, the sample of diesel was taken from the business premises of the petitioner on 12.12.1998 and, therefore. It will be governed by the Motor Spirit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 (hereinafter referred to as the 1990 Control Order). Clause 2 (a) of 1990 Control Order defines 'adulteration' which means introduction of any foreign substance into motor spirit or high speed diesel oil illegally/unauthorisedly, with the result that the product does not conform to the requirement indicated in Schedule I, and clause 2 (e) defines 'malpractice'. Clause 4 of this Control Order enjoins a duty upon the dealer/consumer to ensure that the quality of the products are as per delivery documents issued by the oil companies and the quality of the product conforms to the requirements indicated in Schedule I. The 1990 Control Order does not make any provision which may enable a dealer to apply for re-testing or analysis of the third portion of the sample whichis given to him for safe custody till the testing/investigation are complete. The contention similar to one raised here was examined in great detail by a Division Bench of which one of us (G. P. Mathur, J.) was a member in Crl, Misc. Writ Petition No. 2398 of 1996, Krishna Kumar and another v. Sr. Superintendent of Police and others, decided on September 29. 1997, 1998 (1) Excise and Food Reports 51. In the said case, the experts of indian Oil Corporation Ltd. Allahabad Laboratory and Forensic Science Laboratory. Lucknow, (enumerated at serial numbers 13 and 72 of Schedule III as the laboratories to whom samples may be sent for analysis in view of Clause 8 (5) of the 1990 Control Order) were required to submit detailed reports regarding the procedure of tests which are carried out in their laboratories for analysis of samples of motor spirit and high speed diesel oil. The reports given by the experts show that several tests for testing density, distillation, flash point (Abel), kinematic viscosity and also furfural test, etc., are performed in order to determine the various parameters laid down by the indian Standards institution and on the basis of the aforesaid tests it is ascertained whether the product has been adulterated with a foreign substance like kerosene. With regard to this contention, the Division Bench ruled in paragraphs 25 and 26 of the reports as follows :
'25. Sri R. Asthana has lastly urged that the Control Order does not contain any provision which may enable a dealer to get the sample tested again and as he is deprived of an opportunity to show that the sample was not adulterated, the provisions of Article 21 of the Constitution are violated. Learned counsel has supported his argument by making reference to Prevention of Food Adulteration Act, insecticides Act and some other enactments where accused is given a right to have the sample tested again. Reliance has also been placed upon a decision of a learned single Judge of Punjaband Haryana High Court inTarsem Singh v. Union of india, 1997 (1) BFR 127, wherein provisions of clause 19 (i) of Fertilizer Control Order were struck down on this ground. In our opinion the scheme of the Control Order and its provisions are of such a nature that giving of second opportunity to an accused to have the sample analysed again may not arise at all. In view of clause 2 (a) the product has to conform to the requirement of Schedule-I which requires that the density at 15 degree Celsius of Motor Spirit or High Speed Diesel in the dealer's tank. RO Pumps/retail point receptacle or any other point in RO premises from where sample is taken and tested shall be within +/- 0.0030 of the recorded morning density of the product in the storage tank or the density recorded after the last receipt whichever is after. The dealer shall maintain a record of densities as mentioned herein before on a daily basis in a separate register which shall be made available, as and when required, to the Authorised inspecting Personnel. Every dealer of petrol and diesel pump is provided with an instrument to measure the density, a thermometer and calibration chart by which the density at 15 degree Celsius can be found out. The delivery documents of petrol or diesel despatched from the Depot of Oil Company mention its density. The dealer is required to measure the density of the petrol or diesel which has been received by him before transferring it to his storage tank. If the variation in density is more than +/- 0.0030 from the density mentioned in the delivery document, he can easily refuse to take its delivery. There is no compulsion on the dealer to accept delivery of petrol or diesel if the variation in its density is more than 0.0030 from the density mentioned in the delivery document. Once the dealer accepts a consignment which he would do only if variation in itsdensity is within the prescribed limit and transfers it to his storage tank, there is no way in which its density may vary beyond the permissible limit unless a foreign substance is mixed with it. Under para 2 of Schedule-I the dealer is required to maintain a record of density every day in the morning before commencement of business. The density on any subsequent day also cannot vary beyond permissible limit if no foreign item is mixed. A dealer is not required to give any fixed standard of the product but is only required to maintain the consignment of petrol and diesel in the same shape in which he has received it so that its density does not vary beyond the permissible limit.
26. It will not be inappropriate to compare the provisions of Control Order with that of Prevention of Food Adulteration Act. Food items are manufactured and sold by millions and their number is also very large. A restaurant owner or sweetmeat seller keeps on manufacturing food items almost continuously. Petrol or diesel is not manufactured or produced by dealers nor it is supplied by private manufacturers. There are only four oil companies which are all Government Corporations which supply the product to the dealers. The Government Corporations are not expected and will not supply substandard or adulterated material and it can be presumed that the product supplied by them would be pure and would conform to the standards laid down by indian Standards institution. The dealer is only required to maintain the product in the same condition in which he had received it. There is no compulsion on any one to get a dealership of petrol or diesel. Any one who wants to be appointed as a dealer of an oilcompany does so by his own choice and after becoming a dealer he cannot be heard to complain that the Control Order by which he is governed does not give him a second opportunity to get the sample analysed again. We think that in view of the nature of the commodity involved, its source of supply being oil companies as defined in clause 2 (g) and the requirement being confined to variation of density within permissible limits as required by Schedule I, a dealer cannot complain violation of Article 21 of the Constitution merely on the ground that a second opportunity to get the sample analysed is not provided to him.'
5. Mrs. Poonam Srivastava has also urged that the State Government has issued several Government Orders and the oil companies have issued marketing and discipline guidelines for testing of the diesel and in the present case, the material available on record did not show that the said Government Orders or the guidelines of the oil companies have been followed. Clause 10 of the 1990 Control Order reads as follows :
'10. Provisions of the Order to prevail over previous orders of State Governments, etc.--The provisions of this Order shall have effect notwithstanding anything to the contrary contained in any Order made by a State Government or by an officer of such State Government before the commencement of this Order except as respects anything done or omitted to be done thereunder before such commencement.'
6. In the case of Krishna Kumar (supra). It was held that the executive orders issued by the Government of U. P. or its officers or any circular issued by the oil companies are nonest and have to be completely Ignored in view of clause (10) of the Control Order and it is the provisions of the Control Order which will governthe manner of inspection or taking of sample and the analysis thereof. Therefore, the contention of the learned counsel that the procedure laid down in some of the circulars or executive orders of the State Government have not been followed. cannot be accepted.
7. Learned counsel lastly urged that a right to get the sample tested again is conferred by Section 20 of the Petroleum Act and consequently the prayer made by the petitioner deserves to be allowed. Section 20 finds place in part II of Petroleum Act, which deals with the subject of testing of petroleum. A perusal of the relevant provisions in this chapter would show that it basically deals with the testing of petroleum which is being imported, transported, stored, produced, refined or blended. It does not at all deals with the dealers who are selling diesel either through a retail outlet or as a petty diesel dealer. Sub-section (1) of Section 20 of the Petroleum Act. 1934, lays down that owner of any petroleum, or his agent, who is dissatisfied with the result of the test of the petroleum may, within seven days from the date on which he received intimation of the result of the test, apply to the officer empowered under Section 14 to have fresh samples of the petroleum taken and tested. This provision gives a right to the owner of petroleum to apply to the officer empowered under Section 14 of the Act to have fresh samples of the petroleum taken and tested. This clearly envisages taking of a fresh sample and, thereafter, to test it again. It does not at all contemplate a situation where a part of the sample taken from the possession of a dealer which is being retained by him may be sent for reanalysis or fresh analysis. If Section 20 is read along with other provisions of Chapter II of the Act, it can have no application to the prayer made by a petty diesel dealer for analysis of the third part of the sample being retained by him.
8. For the reasons mentioned above, we are of the opinion that there is no merit in this writ petition which is hereby dismissed.