9911796707
TMI Blog2019 (11) TMI 1828X X X X Extracts X X X X X X X X Extracts X X X X ..... kes any person who contravenes any order made Under Section 3 liable for criminal prosecution. Therefore, we find that the effect of issuance of the Control Order is that in the event of violation of such Control Order, any person who contravenes any order made Under Section 3 of the Act i.e. the Control Order, he is liable to be punished by a Court. Therefore, the violation of the Control Order has penal consequences leading to conviction. The provisions of search and seizure contained in Clause 7 read with Section 100 of the Code will come into play only in the event a person is sought to be prosecuted for violation of the provisions of the Control Order. Admittedly, in the present case, the dealer is not sought to be prosecuted for the violation of the Guidelines, therefore, the procedure for drawing of samples which is a necessary pre-condition under the Control Order for prosecuting an offender does not arise for consideration. Since the Guidelines use the time line as a preferred time line, it cannot be said that the time line mentioned has to be strictly adhered to and is mandatory. The language, the purport and the effect of testing do not warrant to read the word 'pref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2018 maintaining an order of the Single Bench of the High Court whereby termination of dealership of Respondent No. 1 [for short, 'dealer'] for violation of Marketing Discipline Guidelines, 2012 [for short, 'Guidelines'] was set aside. 2. The dealer was granted retail dealership for sale of motor spirit (petrol), High Speed Diesel, motor oil and grease as a physical disabled person on a depot located at Ghograpar, National Highway -31 in the District of Nalbari, Assam. The sale and supply from the retail outlet of the dealer was suspended by the Appellants on 6th May, 2013 when it was found, on the joint inspection, variation of stock of High Speed Diesel beyond permissible limit; density of Tank No. 2 was not available and that tanker truck retention of the corresponding tank was not available at the time of inspection. The Appellant had drawn three samples from Tank No. 2. One sample was sent for testing, another sample was retained by the Field Survey Officer and the third sample was handed over to the dealer. A show cause notice was issued to the dealer on 6th May, 2013, alleging violation of Clauses 5.1.9 and 5.1.11 of the Guidelines. The dealer submitted his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t date Status Details of sample 1. NERL/MDG/HS-62/2013 29.05.2013 Does not meet specification Nozzle sample collected on 06.05.2013 and sent to Betkuchi for testing 2. NERL/MDG/HS-77/2013 19.08.2013 Does not meet specification Nozzle sample collected on 06.05.2013 and retained with Field Officer till subsequent test on 19.08.2013. 3. NERL/MDG/HS-77/2013 19.08.2013 Test not conducted Nozzle sample collected on 06.05.2013 and retained with you till 19.08.2013 could not be tested due to presence of sludge. 7. In view of the above, the following violations were detected and the penal action was taken: In view of the above the cumulative MDG violations detected and established in the Retail Outlet are as follows: a. Stock variation beyond permissible limit (Violation of MDG-2012 Clause No. 5.1.11) b. Nozzle Sample failure of HSD. (Violation of MDG 2012 Clause No. 5.1.1) c. Non availability of reference density (Violation of MDG-2012 Clause No. 5.1.9) d. Non availability of TT retention sample (Violation of MDG-2012 Chapter 5 notes-i) The penal action for the irregularity mentioned in point no (a) (b) is termination in the first instance as per Clause No. 8.2 of MDG-2012. The penal actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y within the meaning of Clause 8.2 of the Guidelines and cannot entail termination of dealership. 10. The Division Bench of the High Court, in appeal, agreed with the finding recorded by the learned Single Bench. The Court relied upon judgments of this Court in Hindustan Petroleum Corporation Limited and Ors. v. Super Highway Services and Anr. (2010) 3 SCC 321 and Bharat Petroleum Corporation Limited v. Jagannath And Company and Ors. (2013) 12 SCC 278. It was held by the Division Bench of the High Court that the finding recorded by the learned Single Judge is a plausible finding, therefore, does not warrant interference in an intra-court appeal. 11. Learned Counsel for the Appellants argued that the findings recorded by the High Court that the Guidelines require strict adherence is a total misreading of the Guidelines. For such an argument, reference is made to Note 2 of Clause 2.4.4; Sub-Clauses A and I of Clause 2.5; Clause 8.2 classifying critical irregularities; Clause 8.3 classifying major irregularities as well as Clause 5.1.1 of what is meant by the adulteration and Clause 5.1.11 providing for consequences of stock variation to contend that in the event of failure of sample ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Competent Authority from time to time. xx xx xx 5.1.11 Stock variation of MS/HSD (Beyond permissible limits) Fuel Stock reconciliation should be carried out and variation, if any, established after taking into account the normal operational variation of 4% of tank stock and after considering the following factors: xx xx xx In case of positive stock variation beyond permissible limits, samples will be drawn and sent to laboratory for testing. Sales and supplies of all products to be suspended immediately. Study to be carried out to identify the reasons for stock variation. If the sample passes but some other irregularity like unauthorized purchase etc. is established action to be taken accordingly. However, if the sample fails, action in line with that of adulteration will be initiated. xx xx xx 8. Action to be taken by OMC under the Marketing Discipline Guidelines 8.1 All irregularities (mentioned in chapter-5) are classified into three categories, i.e. Critical, Major and Minor. 8.2 Critical Irregularities: The following irregularities are classified as critical irregularities: i. Adulteration of MS/HSD (5.1.1) xx xx xx Action: Termination at the First instance will be im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the findings recorded by the High Court, that the time limit in the Guidelines is mandatory, owing to the larger public interest to serve and the Appellants cannot take benefit of its delay, in sending samples for testing to lead a penal consequence of termination of the dealership is the correct enunciation of law. It is contended that termination of dealership is a serious consequence affecting right of a dealership Under Articles 21 and 14 of the Constitution of India. Learned Counsel for the dealer relied upon the judgments referred to by the Division Bench of the High Court. 13. The first issue required to be examined is whether the Appellants were required to follow the procedure under the Control Order read with Section 100 of the Code. The Control Order has been issued Under Section 3 of the Act. Such Act has been enacted for control of the production, supply and distribution and trade and commerce, of certain commodities. In respect of High Speed Diesel and Motor Spirit, the Control Order is issued for Regulation of supply and distribution and prevention of the malpractices. Section 6A of the Act provides for confiscation of the essential commodity whereas, Section 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line as a preferred time line, it cannot be said that the time line mentioned has to be strictly adhered to and is mandatory. The language, the purport and the effect of testing do not warrant to read the word 'preferably' as mandatory time line. It is not the case of the dealer that the sample sent after five days will lose its efficacy as the umpire sample would be sent only after the first report is confronted to the dealer. Still further, the dealer has not raised any objections regarding delay in sending the sample in the two replies submitted by him on 17th July, 2013 and 2nd January, 2014. The argument that the umpire sample in the hands of the dealer could not be tested because of sludge and to doubt the other two samples is totally untenable. Such argument is based upon conjectures as the other two samples collected and sealed cannot be permitted to be disputed only because one sample was found with sludge. There is no material to doubt the correctness of the samples taken. 16. The first test report dated 29th May, 2013 was found deficient in the density as also in K.V. @40 degree celsius, sulphur and distillation recovery. Even the report dated 19th August, 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
