Menju Devi vs Commissioner,Kanpur & Anr.

G.P.Mathur, J.—The petition has been filed for quashing of the orders, dated 1101963 passed by the D.S.O., Etawah canceling the licence issued in favour of the petitioner under the U. P. High Speed Diesel and Light Diesel Oil (Maintenance of Supply and Distribution) Order, 1981 (hereinafter referred to as the Order) and also the Appellate Order, dated 481994 by the Commissioner. The original report) of the proceedings were summoned and the petition is being disposed of finally after hearing counsel for the parties.

The petitioner''s shop was inspected on 431993 and a sample of Diesel Oil was taken which was sent to Forensic Science Laboratory, U.P., Lucknow on 1131993. After analysis, the Scientific Officer of the Laboratory gave a report, dated 681993 that the sample of the Diesel Oil was found adulterated by a liquid having high boiling fraction and the boiling point was also found to be higher than the standard fixed for high speed Diesel Oil. The report, therefore, indicated that the sample of High speed Diesel Oil which was taken from the premises of the petitioner was adulterated. The D. S. O. passed an order on 2881993 issuing notice to the petitioner to show cause why the licence granted in her favour be not cancelled. The service of the notice could not be affected upon the petitioner in spite of best efforts of the Supply Inspector and ultimately the same was pasted on the petitioner''s shop on 1991993 in presence of two witnesses. The petitioner did not file any reply to the show cause notice. The D. S O., Etawah after considering the material on record and the report of the Forensic Science Laboratory cancelled the licence of the petitioner. The appeal preferred by the petitioner was also dismissed by the Commissioner, Kanpur Region, on 481994 on the ground that the sample of Diesel Oil taken from the premises of the petitioner was adulterated.

The learned counsel for the petitioner has submitted that the Central Government has issued an order known as Motor Spirit and High Speed Diesel (Prevention of Malpractice in the Supply and Distribution) Order, 1990 (hereinafter referred to as 1990 Order) in exercise of power conferred under Section 3 of Essential Commodities Act and the said order by virtue of Clause 1 (3) has come into force on 1101990 in respect of High Speed Diesel and on 111991 in respect of Motor Spirit. Clause 2 (a) of 1990 order defines "adulteration" and it means the introduction of any foreign substance into Motor Spirit and High Speed Diesel Oil illegally/unauthorisedly with the result, that the product does not conform to the requirements indicated in ScheduleI. Clause 8 deals with samplying of product and subclause (5) thereof provides that the authorised Officer shall sand third sample of the product taken under subclause (2) within ten days to any of the laboratories mentioned in ScheduleIII appended to the order for analysis with a view to checking whether density of the product conform to the requirements indicated in ScheduleI. ScheduleI deals with the product quality and the same is given with reference to density of Motor Spirit or High Speed Diesel Oil at 15 degree celsiums. ScheduleIII mentions the Laboratories for testing of Patroleum products. Clause 10 lays down that the provisions of 1990 Order shall have effect not with standing 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. In view of the provisions of Clause 10 of 1990 Order the procedure prescribed thereunder for sampling and testing of the sample of high speed Diesel Oil or Motor Spirit has to be adopted after the enforcement of the aforesaid order. In the present case, the sample was taken on 431993, and therefore, the procedure for analysis of the sample as given in Schedule I of this Order had to be adopted. From the report of Forensic Science Laboratory, Lucknow it is not clear as to where the sample was analysed in accordance with the procedure given in 1990 Control Order or by some other procedure. The 1990 Order refers to density of the product at 15 degree Celsius, whereas the report of the Laboratory makes reference to the "high boiling fraction". It does not make reference to the density of the sample.

The question as to whether the sample had been tested and analysed in accordance with prescribed procedure which was applicable at the relevant time has not been considered either by the D.S.O. or by Commissioner. I am, therefore, of the opinion that the authorities of the department should reconsider the question as to whether the sample taken from the premises of the petitioner had been analysed in accordance with the prescribed procedure which was applicable at the relevant time and if the sample has not been analysed in accordance with the prescribed procedure, what order in the cancellation proceeding is required to be passed.

The writ petition is accordingly allowed and the impugned orders, dated 1101993 and 481994 passed by respondents No. 2 and 1 respectively are quashed. The D:S.O., Etawah is directed to reconsider the matter after giving opportunity of hearing to the parties concerned and in accordance with law. The office is directed to send back the original record of the proceedings immediately. No order as to costs.