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It is the case of the writ petitioners that the samples were drawn and without handing over one sample to the petitioners, the said agency prepared the report and left the said retail outlet of the petitioners. Thereafter on 20th December, 2007 an order was issued on behalf of the BPCL and the petitioners was informed that the said agency has carried out marker test at the said retail outlet of the petitioner. It was further informed on behalf of the BPCL that as per the marker test at the said retail outlet of the petitioner the alleged result was positive and, further the sales and supplies of all products of the BPCL from the said retail outlet of the petitioner was suspended.

"The Officials/Mobile labs of the Oil Companies and other agencies authorized/empowered to draw samples/inspect the retail outlets will have the power to carry out the Marker test at retail outlets. The Marker test can be carried out at any point of time and need not be only at the time of inspection."

The petitioner further states that Clause 4 of Chapter 12 of the said guidelines contravenes the Clause 7 of the Control Order, 2005.

It is further stated that 'Marker' means a chemical substance approved by the Central Government from time to time for blending in kerosene and other petroleum products with the objective of preventing their diversion or adulteration of motor spirit or high speed Diesel as per Section 2(f1) of the Motor spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order, 2005.

It is further stated that Authentix's technology was introduced for the purpose of marker test. Marker is a chemical substance which is a recognized molecule and used in the test kit into the sample product of petrol or diesel (taken at the retail outlet) and the said molecule reorganization of a chemical marker on finding the chemical marker will make the column 'pink' (Pink Band) i.e. the sample product is positive for marker. It is stated that before issuance of marker to prevent diversion or adulteration of Kerosene, malpractices carried out by few of the errant dealers. 'The Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 2005' was amended by an order dated 12th January 2007 and it was known as 'The Motor Spirit and High Speed Diesel (Regulation of Supply Distribution and Prevention of Malpractices) Order, 2007'. After such amendment dated 15th June 2007 Marketing Discipline Guidelines (hereinafter referred to as 'MDG'), 2005 introduced marker.

The writ petitioners along with the representative came to Budge Budge installation, a prohibited area under falls personification to witness the marker test at QC Laboratory Budge Budge installation. It is stated that the petitioner along with the representative left the QC Laboratory Budge Budge without signing the test report. The retail outlet sample test at the QC Laboratory, the supply location retention sample, the retail outlet sample of HSD failed with regard to marker test. All these facts were communicated to the writ petitioner.