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22. It would be significant to note here that the Guidelines under Chapter-2 lays down the manner of sample collection and testing, described therein as 3-tier sampling system which begins with a preamble under Clause 2.1 that the basic objective of the 3-tier sampling procedure is to ensure that the petrol and diesel sold by the retail outlet is the same product which has been supplied to them in respect of oil companies. Such sampling procedure in fact has been laid down to help in establishing whether malpractice/ adulteration, if any, has taken place at the retail outlet during transportation or at supply locations. Clause 2.2. lays down the places where the samples would be drawn i.e. at supply location and at retail outlets. Clause 2.3 relates to drawal of samples by dealer/ his representative and clause 2.4 lays down drawal of samples by oil company‟s representative within 48 hours of supply or before next load is received by the retail outlet in case of suspected malpractice and adulteration. In this respect in the case at hand we are concerned with clause 2.4.2, inasmuch as it was the oil company‟s representative who had resorted to his power of drawal of samples. Clause 2.4.2 reads as follows:

37. That the very fact that the Divisional Manager, PDO, Patna avoided to take steps for drawing fresh sample in the light of the provision of 2.5K of MDG-05 itself demonstrated that he was not sure of the findings of the test report conducted by them as contained in Annexure 3. Had the Divisional Manager being sanguine of the said report as contained in Annexure 3 he would have immediately accepted the request of the Noticee and drawn fresh samples by following the procedure of paragraph 2.5K."

35. That apart the guidelines under clause 2.5 if read in tandem would reflect that it is by way of an instruction to the departmental authorities for observing the procedure of sampling and its being sent for test. That is how in clause 2.5A it has been provided that the sample should be suitably coded before sending to the laboratory for testing within 10 days of the drawal. Clause 2.5B provides that if the sample is found to be in order in the laboratory test the dealer should be intimated in writing and the information to the same effect should be given to all other places where the samples have been retained. Clause 2.5C and D are the provisions in which the test report of the sample test is found to be adverse and the provision has been made for calling explanation in writing giving details of failure and enclosing copy of the test report. Thus, clause 2.5C also is only an instruction with regard to a condition in which the laboratory test is adverse which only envisages the compliance of principles of natural justice by way of supply of the test report as also considering the explanation submitted by the dealer in respect of such adverse test report. It for the sake of clarity the same is being again reproduced which reads as follows:

" From the above, it would be seen that the Marketing Discipline which provides for and lays down the procedure for sampling and action to be taken thereafter clearly provides for taking 3 samples. This was done in the present case. One sample, as provided in the Guidelines, was sent for testing. One was given to the dealer and the other retained by the Oil Company. A reference to clause 2.5D would show the purpose why 3 samples are taken. It gives a right to the dealer to ask for retesting of the contemporaneous samples in his presence at the same place. This is so because the consequences are drastic. The dealer, if found guilty of adulteration, looses his bread and butter by termination of his dealership. That is the only safeguard that is available to a dealer. Here, in the present case, the dealer did request for retesting. The same was refused on the ground that the excess stock clearly indicated adding of adulterant and, thus, adulteration was confirmed and no useful purpose would be served. As pointed out above, the allegation of excess stock is not sustainable. It is then argued by the respondents that it was the discretion of the authority to permit retesting or not. In my view, this is not the correct position. Where a procedure has been prescribed, authorities are bound to follow the procedure as all other procedures are prohibited. Where a duty is cast to do an act then authorities must do such an act especially when the consequences of not doing so are grave."