R.N. Misra, J.
1. These are five applications made under Section 482 of the Cr. P.C. of 1973 (by mistake described as Section 492) by the State of Orissa for expunging certain observations made by the Chief Judicial Magistrate of Ganjam in his common order in five miscellaneous proceedings bearing numbers M. Ps. 1 to 5 of 1976. The petitioners before the Chief Judicial Magistrate were different persons but each of them had been affected by seizure of khandasari molasses from him by the excise staff of the district of Ganjam.
2. On 16-9-1975, twenty barrels of khandasari molasses (Gur) were seized from one Raghunath Jena; on 23-1-76, 12 barrels of khandasari molasses were seized from one Rajendra Prasad Jena; on 25-1-1976, 53 barrels of the same khandasari molasses were seized from one G. Appa Rao; on 24-1-1976, 14 barrels of khandasari molasses were seized from one Raghunath Hota and on 3-1-1976, 3 barrels of the same stuff were seized from one Ramchandra Sahu. These seizures were from different places and by different officers of the Excise Department.
Applications were moved before the court on the allegation that there was no law prohibiting possession of khandasari molasses and as such the seizure was illegal. The Superintendent of Excise, Ganjam, was served with a notice to appear before the court and to support the seizure. He along with the Public Prosecutor appeared before the court and coin-tended that the seizure was in accordance with law. They relied upon the Molasses Control Order of 1961 and the Molasses Control (Amendment) Order of 1972 and maintained that possession of khandasari molasses without maintenance of accounts and permission of the Molasses Controller was illegal and the Excise Department was thus competent to seize the same.
The Chief Judicial Magistrate after examining the legal position concluded that the Order upon which reliance had been placed by the prosecution was not applicable and there was thus no law which had been contravened by the various persons who were petitioners before him in the matter of possession of the molasses, He accordingly directed release of the seized articles. While doing so, in para 11 of his order, the learned Chief Judicial Magistrate observed:
Though the applicants pointing out such illegality long since have moved this Court and the Excise Department has full knowledge that there is no such notification to restrict the possession and sale of the Khandasari variety of molasses, but unfortunately the Excise Department headed by the Superintendent of Excise in the district of Ganjam wanted to contest the matter and made submission to the court that there Is such notification, False information to the court is always deprecated. As a responsible Gazetted Officer, he should not have taken such steps only to cover up the illegality committed by his staff in making seizure of the Khandasari molasses in question for which there is no restriction at all, Such illegal seizure has definitely caused loss to those applicants. Admittedly those seized articles namely the molasses are perishable goods. Those have been seized long since. Utility of the same must have been adversely affected and the applicants may sustain monetary loss for the fault of the Excise Department in making illegal seizure. Such action of the Excise Department In the district of Ganjam which appears to be supported by the Superintendent of Excise, Ganjam is unnecessarily depriving the applicants in pursuit of their profession in the articles for which there is no restriction indicates that the Excise Department in this district without any rhyme or reason, in absence of any existing law, to their own sweet will are not hesitating to seize the properties as they like. It is hoped that the higher authorities of the Department should consider this matter seriously.
However, in view of my above discussions, I am of the conclusion that the Excise staff of Ganjam district have illegally seized the Khandasari variety of molasses from the applicants in question and they have unnecessarily kept detained those articles. Those should be immediately released in favour of those applicants...
3. In these applications, the direction of the learned Chief Judicial Magistrate to release the goods by lifting the seizure has not been challenged. The only prayer Is that the remarks made in para 11 of the Judgment may be expunged. Though five applications have been filed, in none of them is there a clear indication as to which portions in para 11 of the order of the learned Magistrate are objectionable and, therefore, should be expunged. In an application for expunction of remarks made in a judgment or a judicial order, it is usual to indicate the objectionable portions, so that parties as also the Court would be in a position to concentrate their attention. In these applications, however, that procedure has not been followed and as it appears all the remarks made in para 11 have to be looked into.
4. At the hearing of the applications, learned Additional Government Advocate, however, indicated that objection was being taken to the observation of the learned Chief Judicial Magistrate that the Excise Department had full knowledge of the illegal seizure. There was imputation that the Excise Department had laid false information before the court. The learned Magistrate seemed to have observed that the Excise Superintendent who was a responsible Gazetted Officer was taking steps to cover up the illegality committed by his own staff and that the Excise Department was not hesitating to seize the property without any rhyme or reason and in the absence of any law supporting such seizure.
From the fact that there is no challenge to the direction for release of the goods, It would be appropriate to assume that the conclusion which the learned Chief Judicial Magistrate reached, namely that the seizure was without authority of law, must be taken to have been accepted. Learned Additional Government Advocate suggested that under the Orissa Khandasari and Gur Dealers' Licensing Order, 1974, holding of such stocks would be unauthorised in the absence of licence. This certainly is a new contention and if under the Order referred to above, the possession by each of the five persons was illegal, it was open to the Excise Superintendent to take that stand before the learned Magistrate and it was open to the State to challenge the direction for release of goods. I am not inclined to agree with the learned Additional Government Advocate that in the absence of challenge to the order of release, I should look into the Orissa Khandasari and Gur Dealers' Licensing Order to vary the decision regarding release.
5. Once it is held that the seizure was unauthorised, I am not inclined to agree with learned Additional Government Advocate that the indignation mildly expressed in the order of the learned Chief Judicial Magistrate could be out of place. It is too well settled that the adjudicatory machinery created by law is entitled to review the conduct of the administrative authorities relatable to the matter under adjudication. It is equally well settled that seizure of goods and thereby dispossession of the owner is a serious action which would not be lightly taken. Administrative authorities entrusted with the power to enforce the law are expected to know the legal position and modulate their action and conduct in accordance with law. If possession of molasses was not objectionable, it is certainly very high-handed on the part of the Excise Officers to seize the same and Justify such seizure before a court of law when seizure is assailed. I am inclined to agree with learned Chief Judicial Magistrate that the action was irresponsible enough to invite the mild comment indicated by the court. I do not think, any objection can be taken to what has been stated by the learned Chief Judicial Magistrate.
6. Incidentally during hearing of the applications, arose the question as to maintainability of those applications at the instance of the State of Orissa. The comment, if any, it was contended by Mr. Mohapatra appearing for some of the opposite parties, was against the Superintendent of Excise of the district of Ganjam and in case he felt aggrieved by the observations of the learned Chief Judicial Magistrate, it was both open to and competent for him to file the application. Reliance is placed on certain observations of the learned Judges in the case of Dr. Raghubir Saran v. State of Bihar : 1964CriLJ1 to contend that the remedy of moving the superior court for expunction of remarks is available to the aggrieved party and since the Excise Superintendent was the aggrieved party, the State cannot maintain the petition. On the other hand, learned Additional Government Advocate relies upon certain observations made in the case of State of Uttar Pradesh v. Mohammad Nairn : 2SCR363 in support of his stand that in the setting of the present case, it was open to the State of Orissa to maintain the application. Mr. Mohapatra for the opposite parties distinguish the latter Supreme Court decision by saying that the facts were of unique type as the opening line in the judgment would indicate and the observations of Mulla, J., asked to be expunged were of a type which really gave cause of action to the State move to the matter, I am inclined to agree with the view indicated by Mr. Mohapatra for the opposite parties. But it is unnecessary to finally decide that aspect of the matter here, inasmuch as on merits, I am not inclined to interfere to the matter.
7. Each of these applications is accordingly rejected.