' On 19-8-1998 at 11-50 p.m. Truck No,PRE-8797 being driven by Bashir Ahmad Driver was stopped by Amir Ahmad, S.I. Police Station Rail Bazar, Faisalabad who had received the secret information that the adulterated mobile oil was loaded therein. The mobile oil was contained in 32 drums owned by Sh. Mahboob Ahmad petitioner. The S.I. Obtained two samples and sealed the same. He entered the aforesaid fact at Report No,29, dated 19-8-1998 in the daily diary of Police Station Rail Bazar, Faisalabad wherein he expressed that the samples shall be sent through the Ilaqa Magistrate to Laboratory.
2. Feeling aggrieved Sh. Mahboob Ahmad petitioner has filed this writ petition wherein he asserted that the police headed by the S.H.O., Police Station Rail Bazar, Faisalabad had no lawful authority to take the said drums into custody or to obtain the samples out of the same as the same was the jurisdiction of the Director, Oil Operation Natural Resources Division, Ministry of Industries and Natural Resources, Islamabad under rule 2(b) of the Pakistan Petroleum (Refining, Blending and Marketing) Rules, 1971 (hereinafter mentioned as Rules, 1971 for brevity sake) as well as the concurrent jurisdiction of the Deputy Commissioner under Rule 43-A of the said Rules, 1971. He contended that the samples have not been taken by any competent Authority. His proposed relief is that act of the police regarding taking into its custody the said drums and of obtaining the samples out of the same for submission to the Laboratory for analysis are illegal, unlawful, unwarranted and without authority. He prayed for the release/restitution of his drums. The comments and report were called from the Deputy Commissioner, Faisalabad and the Senior Superintendent of Police. Faisalabad which form part of this file. The Senior Superintendent of Police, Faisalabad expressed that 32 drums were taken into possession under section 550 of the Code of Criminal Procedure. Allegedly containing the adulterated mobile oil and that the samples were taken in the presence of the Ilaqa Magistrate. The Deputy Commissioner expressed that the petitioner was at liberty to appear before him to get his grievance redressed. Mr. Mohsin Rashid, City Magistrate expressed about the taking of samples by him.
3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner referred to Rules 2(b), 34 to 37 and 43-A and argued that Amir Ahmad, S.I. Was not authorized and had no jurisdiction to stop the truck and take possession of the drums. He maintained that the police wanted to grab some illegal gratification and that without any jurisdiction and authority the drums were removed from the truck. During the arguments learned Assistant Advocate-General as well as Mr. Mohsin Rashid, Executive Magistrate 1st Class conceded that neither the police was competent to take into possession the mobile oil drums on the allegation of the mobile oil being adulterated nor the samples of the same could be obtained by the said Executive Magistrate. I would express that under Rules 34, 35 and 36 of the Petroleum (Refining) Rules, 1971 the authority or a person authorised by the Authority only has the power to make such examination or inquiry as he considers necessary for ensuring that the provisions of these rules or of any order made thereunder were being fully observed by a refinery, a blending plant or a marketing company and such an officer was the only authorised person who could take samples of petroleum product.
According to Rule 36 of the Petroleum (Refining) Rules, 1971 such samples are to be attested according to the standard procedure which has been given in Rule 37. The fact of the matter is that the drums were not taken into possession under section 550 of the Code of Criminal Procedure and rather the same could not be taken into possession under the said provision of law for the reason that the drums were not suspected to be stolen. The very act of Amir Ahmad, S.I. Of taking into possession of the drums of mobile oil and getting the samples as expressed in the report of the daily diary is without lawful authority.
The authority competent to check the mobile oil is defined in Rule 2(b) which means any officer appointed by the Central Government to exercise the powers and perform the functions of the Authority under the said rule who is the Director, Oil Operations, Natural Resources Division, Ministry of Industries and Natural Resources, Islamabad or according to Rule 43-A the Deputy Commissioner of the District. Even the samples could be obtained by them. Initially the samples were obtained by Amir Ahmad, S.I. And afterwards by Mr. Mohsin Rashid, Executive Magistrate Ist Class. They have not been authorised and made competent in the aforesaid Rules, 1971 to take into possession the alleged adulterated mobile oil and the samples therefrom. The Deputy Commissioner, Faisalabad has expressed in the comments that the petitioner was at liberty to appear before him to get redressed his grievance. This is taking the autocratic view of the matter. It can safely be expressed that he is not aware of the substantive and procedural provisions of the relevant Rules, 1971. The Executive Magistrate working under his control and Amir Ahmad, S.I. Have not proceeded in accordance with law who are not competent thereof and the petitioner has rightly invoked the Constitutional jurisdiction of this Court whose personal and individual right stands infringed thereof.
4. For what has been said above, I accept this writ petition and hold that the act of the police about the taking into possession 32 drums and obtaining of the samples by the police and the Executive Magistrate 1st Class are illegal, unlawful, unwarranted and without lawful authority. Consequently I pass the order for the delivery of 32 drums lying with the police to Sh. Mahboob Ahmad petitioner.