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10.He further submitted that as per Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Amendment Order 2007, samples should be taken by the officers stated in clause 7 of the said order and in this case, admittedly the samples were taken by the 4th respondent, who is not the authorised persons stated in clause 7 in the said order and therefore, taking of sample by the unauthorised persons is illegal and no action can be initiated on the basis of the samples taken by the unauthorised persons.

32.The above finding in para '18' of that judgment would further make it clear that the Honourable Division Bench has given the said finding only on the basis of the materials available in the Writ Appeal No.391 of 2008. As stated supra, in so far as the petitioner is concerned, it is admitted by the respondents, in their counter in para '3' that test was conducted by the SGS, who is representative of Hindustan Petroleum Corporation Limited and in their letter, dated 30.06.2008 also, it is admitted by the 2nd respondent that SGS has conducted the test. Therefore, though the Division Bench dismissed the writ petition, it cannot be stated that the Honourable Division Bench has held that SGS is competent to take the sample and the test conducted by the SGS, the 4th respondent herein, is valid in law. Therefore, in my opinion, the judgment of the Honourable Division Bench of this Court did not lay down that the 4th respondent is competent to conduct the test and is competent to take the sample. On the contrary, having regard to the facts available in the Writ Appeal No.391 of 2008, the Honourable Division Bench has held that SGS did not take the sample and the sample was taken by officials of the Petroleum Corporation and test was conducted by them. Therefore, it cannot be stated that the petitioner is estopped by the finding of the Honourable Division Bench and it will not operate as res-judicata. In my opinion, the Division Bench has not dealt with the point whether SGS is competent to take sample and conduct test as per clause 8 of the Motor Spirit and High Speed Diesel (Regulation of Supply, Distribution and Prevention of Malpractices) Order 2005 as amended Act 2007. In this case, it is admitted that the sample was taken by the 4th respondent viz., SGS and test was conducted by the 4th respondent. As stated supra, as per clause 7 and 8, the 4th respondent is not an authorised person to conduct search and seizure and therefore, the 4th respondent is not competent to take sample and conduct the test. If the 4th respondent is not competent person to take sample and conduct the test, the question that arises for consideration is whether the test conducted by the 4th respondent or the sample taken by the 4th respondent is valid and whether any action can be taken on the basis of the test conducted by the 4th respondent, who is not authorised to take samples. According to me, when the 4th respondent is not an authorised person to take sample, even though he has been authorised by the Petroleum Corporation in the absence of any such delegation of such power by the provision of the Act and Rule, such authorisation or delegation is not legal and not permissible in law.