Orissa High Court
Sukanta Chandra Dash & Another vs The Collector on 4 May, 2018
Author: Biswanath Rath
Bench: Biswanath Rath
ORISSA HIGH COURT, CUTTACK.
O.J.C. No.8884 of 2001
An application under Articles 226 & 227 of
the Constitution of India.
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Sukanta Chandra Dash & another ... Petitioners
Versus
The Collector, Cuttack & others ... Opposite Parties
For Petitioner : M/s. R.K. Rath,
Senior Advocate
N.R. Rout
For Opp. Parties : Mr. K.K. Mishra,
Additional Government Advocate.
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PRESENT :
THE HONOURABLE MR. JUSTICE BISWANATH RATH
--------------------------------------------------------------------------------------------------- Date of hearing :26.04.2018 Date of Judgment : 04.05.2018
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Biswanath Rath, J. This writ petition involves a challenge to the impugned order At Annexure-5 passed by the Collector, Cuttack involving Misc. Case No.13 of 1998 i.e. a proceeding under Section 6(A) of the Essential Commodities Act, 1955 read with The Motor Sprit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990.
2. Short background involved in the case is that the opposite party no.2 filed a prosecution report dated 31.03.1998 under Section 6(A) of the Act, 1955. Report involved indicated that 2 on 28.03.1998, the opposite party no.2 along with other enforcement staffs visited the Petrol Pump premises of M/s. Ashok Service centre and noticing a tank lorry bearing registration No.OR-06-B-0424 in the campus of the said petrol pump, on inspection, they found 4 kilo liters of white kerosene in the said tank lorry. During investigation, the enforcement staff also noticed an excess of stock of 174 liters of High Speed Diesel and shortage of 118 liters of motor spirit (petrol). On official inspection, the inspecting staff suspected the samples of petrol and diesel in contravention of the clause (5) of The Motor Sprit and High Speed Diesel (Prevention of Malpractices in Supply and Distribution) Order, 1990 and condition nos.4, 5 & 9 of the Orissa High Speed Diesel (Dealers licence) Order 1979. On service of a copy and the prosecution report and the show cause, petitioners submitted their reply denying each and every allegation and particularly responding that there has been absolutely no contravention of any provision as alleged.
3. Considering the objection of the petitioner, after providing opportunity of contest to the respective parties and further taking into consideration the report etc. obtained in the meantime, the Collector, Cuttack in disposal of the Misc. Case No.13/1998 initiated at the instance of the competent authority appearing to be a proceeding under Section 6(A) (1 & 2) of the Essential Commodities Act, took into consideration the complaint of the competent authority, vide Annexure-5 and while accepting the complaint, on ascertainment of violations of the provisions directed for confiscation of the commodities nos.2 & 3 therein to the State. The Commodity no.1 since was detected not involving adulteration, was directed to be released in favour of the petitioner. Direction was also given for confiscation of the container no.1 as well as the carrier no.1. to the State. The Collector had also 3 directed for sale of the confiscation articles and the receipt thereof, was also directed to be deposited in the Government Treasury. Besides above, the authority also directed for initiating a proceeding under Section 7 of the Essential Commodities Act in appropriate Judicial Court for appropriate punishment and further directing the licensing authority to issue show cause for cancellation of the licence granted in favour of the petitioners herein.
4. Assailing the aforesaid order, defending the petitioners Shri Rath, learned Senior Advocate being assisted by Shri Sumit Lal, learned counsel for the petitioners on reiteration of the stand taken in show cause submitted by the petitioners in response to the complaint made and disposed of vide Annexure-5, taking this Court to the statutory provision involving the Order 8(2), Order 8(5) of the Order 1990 and the schedule appended therein, submitted that for the failure of following the statutory requirements in the aforesaid provisions in the investigation involving such seizure, the impugned order suffers. Further, taking this Court to the provisions at Order 8(2), Shri Rath, learned Senior Advocate contended that for the requirements under the provisions requiring seal of 3 samples of 750 mili liters to 1 liter each of the product, one given to the dealer or the concerned person under the acknowledgement with the instruction to preserve the sample in his safe custody till testing and investigation are completed, the second to be retained by the concerned oil company and that 3rd sample to be used for laboratories and taking this Court to the examination report referred to in the impugned order at page 46 of the brief contended that for there being sealing of 670 mili liters of High Speed Diesel find place at item no.2 therein contended that for no sealing of proper quantity of the sample items, examination of such items, if any, remains improper.
4Further, taking this Court to Sub-order 5 of Order 8 of Order 1990, Shri Rath, learned Senior Advocate for the petitioners further, contended that for the provisions contended therein, the Authorized Officer is required to send the 3rd sample of the product under Sub-clause (2) within eighteen days to any of the Laboratories mentioned in schedule 3 appended to this order for analysis with a view to checking whether the density of the product is confirmed to the requirements indicated in schedule no.1 or not. taking this Court to the discussions made in the impugned order as well as the examination report vide Annexure-3, Shri Rath, further, contended that for the delayed examination of the sample taking place in the Month of April, 1999 involving a seizure on 31.3.1998 and further, for the admitted position that there has been no density test of the item seized and sealed, there is no following of any of the legal provisions, further the examination in the State Forensic Science Laboratory, Bhubaneswar also for being not in terms of the provision in the Order 1990, the entire exercise becomes illegal. Further, taking this Court to the schedule appended to the Order 1990 particularly the schedule no.3, Shri Rath, learned Senior Counsel submitted that for the clear prescription for testing in the particular laboratories, examination of the seized item through State Forensic Science Laboratory outside the schedule Labrotary also becomes bad. Shri Rath, here taking this Court to the document at Annexure-6 appended to the writ petition contended that for the specific direction given therein vide communication dated 16.04.1998, the testing whatever, should not have been conducted in the State Forensic Science Laboratory, which was not even having adequate manpower and infrastructure at that relevant point of time. For non-compliance of the statutory provisions in the matter of investigation into the allegations involved herein, further, for not having the density test 5 before the sample are seized & sealed to the Lab and further for sending the seized items for Lab test to an unauthorized Lab and for not sealing the particular quantity of the seized items, Shri Rath, contended that there has been absolutely no consideration of all these aspects by the Collector involving the impugned order resulting the impugned order not sustainable in the eye of law.
5. Shri K.K. Mishra, learned Additional Government Advocate though did not dispute the allegation on noncompliance of legal provisions raised by Shri Rath, but however, taking this Court to the records involving the case involved herein particularly to a correspondence dated 28.3.1998 submitted that the seizure not only was made on 28.3.1998 but the samples were also send to the Director, State Forensic Science Laboratory vide letter No.2941 dated 28.3.1998 itself. Shri K.K. Mishra, learned Additional Government Advocate therefore, submitted that there is absolutely no delay in sending the seized articles for examination to the State Forensic Science Laboratory. Shri Mishra also taking this Court to the report dated 28.3.1998 appearing from the case record contended that for the contents therein, it appears, there has been substantial compliance of the provisions contained in the Order, 1990 and thus, contended that even assuming that there are minor discrepancies here and their particularly non-compliance of some provisions, whole investigation and the test cannot be found to be faulted with. Answering to the objection raised by the Shri Rath, Shri Mishra referring to the counter affidavit admitted the allegations of not having the density test involving the seizure item, referring to the documents available admitted that there is no density test while seizure was made rather the seizure was made by ascertainment through smell.
66. Shri K.K. Mishra taking this Court to the discussions made in the impugned order and for the materials available on record submitted that there is no infirmity either in the investigation or in the testing of the articles or in the impugned order, therefore, the impugned orders does not require any interference of this Court.
7. Considering the rival contentions of the parties, this Court finds, the seizure was made on 28.3.1998 and looking to the circular at Annexure-2 issued by the Government of India, Ministry of, Petroleum & Natural Gas, this Court finds, there is a clear direction to all concerned that the authorities concerned are to ensure in the interest of natural justice that the inspective official will test the product for quality and density test at the retail outlet itself in the presence of the dealer with necessary equipment indicated therein. From the instructions, this Court finds, the above instruction has been issued to all concerned in order to avoid the harassment to dealers by the Officials manpower to take certain actions. For the admitted position here, this Court finds, there has been no density test on the seizure of the articles on 28.3.1998. Further, looking to the test report and the lab particular in the said Science Lab, looking to the provision contained in Order 8 of the Clauses 2 & 5, this Court finds, the provisions therein reads as hereunder:
"8. Sampling of products - (1) The Officer authorized in Clause 7 shall draw the sample from the tank, nozzle, vehicle or receptacle, as the case may be to check whether density of the product conforms to requirements indicated in Schedule 1.
(2) The officer authorized in Clause 7 shall take, sign and seal three samples of 750 ml. to 1 litre each of the product one to be given to the dealer, transporter or concerned person under acknowledgment with instructions to preserve the sample in his safe custody till the testing/investigations are completed, the second sample to 7 be kept by the concerned Oil Company or department and the third to be used for laboratory analysis.
(5) The authorized officer shall send the third sample of the product taken under Sub-clause (2) within 18 days to any of the laboratories mentioned in Schedule III appended to this Order for analysis with a view to checking whether the density of the product conforms to requirements indicated in Schedule I."
8. Particularly looking to the Sub-clause (5) of the Order/clause 8 of the Order 1990 to the extent that the authorized officer looking to the sub-clause (2) of the Order 8 of the Order 1990, this Court finds, there is mandatory requirement of sign and seal of three samples of 750 mili liter to 1 liter and the particular product to be kept in safe custody, out of which, one sample will be kept in safe custody till investigation is over, second sample to be kept by the concerned oil company or the department and the 3rd to be used for lab analysis. From the factual background, there is no material forthcoming as to whether the seal and sign of three sample packets of 750 mili liter to 1 liter was there or not. Perusal of the records rather makes it clear that, the sample quantity send to the State Forensic Science Laboratory for test is 670 mili liter as clearly appearing from the test report at Annexure-3 at page 37 of the brief. Furthermore, looking to the sub-clause (5) of the Order 8, this Court further finds, the 3rd sample as indicated hereinabove, is required to be send to the lab mentioned in schedule 3 for appropriate testing. From the scrutiny of the records, though this Court finds, the sample was sent for lab test on 28.3.1998 on the date of seizure itself but the report at Annexure-3 appears to be based on test in the lab on 9.4.1999, this Court here finds, there is substantial delay in testing the particular seized item. This Court, therefore, observes, there is not only noncompliance of statutory provisions in sending the seized item for lab test maintaining the required quantities to be seized & sealed but there is also gross 8 delay in examining the materials also seized. Further, looking to the schedule 'III' of the Order 1990, this Court finds, the authority has already notified the Labs where the test of such Article should be undertaken. The list does not contain the State Forensic Science Laboratory, Bhubaneswar. Further, looking to the correspondence at Annexure-6, this Court finds, the testing etc. of the seized item since has been conducted by the State Forensic Science Laboratory, this Court finds, the test has been undertaken in a non-schedule establishment making the entire test report defective & ignorable. Correspondence filed rather makes it clear that the State Forensic Science Laboratory was not even having man power and necessary infrastructure at the relevant point of time making the Lab report wholly unreliable. This Court, thus, observes that there has been serious violation of every provisions required for the purpose, making the entire investigation defective.
9. Now coming to the discussions made in the impugned order at Annexure-5, this Court finds, even though all the above grounds have been raised by the delinquent, the Collector has failed in appreciating the disputes raised by the delinquent and seriously failed in answering on each of the above aspects. For the discussions made hereinabove and particularly keeping in view the serious legal flaws, further for non-compliance of the mandatory requirements under the Order 1990, this Court finds, the order under Annexure-5 is not sustainable in the eye of law. Accordingly, while allowing the writ petition, this Court sets aside the order at Annexure-5, but in the circumstances, there is no order as to cost.
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(Biswanath Rath, J.) Orissa High Court, Cuttack.
The 4th day of May, 2018/Ayas.