STATE OF ORISSA Vs. RAGHUNATH JENA

JUDGEMENT

(1.) THESE are five applications made under Section 482 of the Criminal Procedure Code 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 contended 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 : -

(3.) 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.