State vs Jaswant Singh
2013 Latest Caselaw 4625 Del

f*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            CRL.A. 71/2009

                                                     Decided on 07.10.2013
IN THE MATTER OF :
STATE                                                        ..... Appellant
                                Through: Ms. Isha Khanna, APP for State


                          versus

JASWANT SINGH                                               ..... Respondent
                                Through: Mr. V.K. Malik, Advocate with
                                Mr. Rahul Raj Malik and Mr. Rajeev
                                Chauhan, Advocates alongwith respondent
                                in person.
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

1. The present appeal has been filed by the State against the

judgment of acquittal dated 12.09.2003 passed by the learned ACMM in a

case arising out of FIR No.264/1996, Police Station: Shalimar Bagh under

Sections 61 of the Punjab Excise Act, 1914 (hereinafter referred to as „the

Act‟).

2. The facts of the case lie in a narrow conspectus. As per the case of

the prosecution, on 05.05.1996, a report under Section 173 Cr.PC was

received that the respondent was illegally carrying twenty two cartons of

liquor while plying his Maruti car at about 1:30 AM on the Outer Ring

Road, Q-4 Block in front of Pitampura, Delhi. The respondent was charged

for commission of an offence under Section 61 of the Act, to which he had

pleaded not guilty and claimed trial. The prosecution had examined five

witnesses, including PW-2 Inspector Rajinder Singh, PW-3 SI Devinder

Singh and PW-4 Ct. Suresh, who happened to be the members of the

raiding party and had apprehended the respondent as well as effected the

recovery. The respondent was examined and his statement was recorded

under Section 313 Cr.PC, wherein he had denied the allegations levelled

against him and claimed that he had been falsely implicated in the case

after he had entered into an altercation with the staff of a petrol pump in

the area. However, the respondent did not adduce any evidence in his

defence.

3. By the impugned judgment, the trial court has acquitted the

respondent on the ground that Section 75 of the Act contemplates that no

Judicial Magistrate shall take cognizance of an offence under Section 61 or

Section 66 except on his own knowledge or suspicion or on the complaint

or report of an Excise Officer and though a notification had been issued by

the Delhi Administration conferring the status of an Excise Officer upon

the police officers above the rank of Head Constable, but in the present

case, as a report had been submitted by an Inspector Incharge of the

police station under Section 173 Cr.PC, the same did not fulfill the

requirement of the aforesaid provision. The learned ACMM had concluded

that there was no "complaint" or a "report of an Excise Officer" for the

purpose of a trial on the basis of a report that is required to be submitted

under Section 173 Cr.PC and as a result, the respondent was acquitted.

4. Ms. Isha Khanna, learned APP for the State submits that the

aforesaid conclusion arrived at by the trial court is contrary to the terms

of the Notification dated 07.09.1966 issued by the Lieutenant Governor,

Delhi, whereunder, powers of an Excise Officer have been duly conferred

on the police officers and as Section 75 of the Act permits the Magistrate

to take cognizance of a report of an Excise Officer, and in the present

case, filing of such a report by the ASI under Section 173 Cr.PC is

perfectly legal and valid. In support of her submission, learned counsel

refers to the decision of a Single Judge of this Court in the case of Chattar

Singh vs. State reported as ILR (1986) I Delhi 655.

5. Per contra, learned counsel for the respondent supports the

impugned judgment of acquittal and relies on the decisions of the High

Court of Punjab and Haryana in the cases of Basti Ram vs. State of

Haryana reported as 1984(2) Recent Criminal Reports 514 and Shish

Pal vs. State of Haryana reported as 2002 Lawsuit (P&H) 908 to

contend that a Magistrate can take cognizance either on his own

knowledge or suspicion or on a complaint or report filed by an Excise

Officer and in the present case, a report submitted by the police under

Section 173 Cr.PC could not have formed the basis of trial for an offence

under Section 61 of the Act.

6. This Court has considered the rival submissions of the counsels for

the parties. The legal issue raised in the present case is fairly limited and

hinges on whether the report of an ASI under Section 173 Cr.PC could

have been treated as a "report of an Excise Officer" as contemplated

under Section 75 of the Act. The provision of Section 75 is reproduced

hereinbelow for ready reference:-

"75. Cognizance of offences- (1) No Judicial Magistrate shall take cognizance of an offence punishable,

(a) under Section 61 or Section 66 except on his own knowledge or suspicion or on the complaint or report of an excise officer; or

(b) under Section 62, Section 63, Section 63-A, Section 64, Section 65, Section 68, or Section 70, except on the complaint or report of the Collector or an excise officer authorized by him in that behalf."

(2) Except with the special sanction of the [State] Government no [Judicial Magistrate] shall take cognizance of any offence punishable under this Act, unless the prosecution is instituted within a year after the date on which the offence is alleged to have been committed."

7. The term "Excise Officer" has been defined under Section 3(8) of

the Definition clause, which reads as below:-

"(8) Excise Officer - „excise officer‟ means any officer or person appointed or invested with powers under this Act."

8. Chapter VII of the Act deals with the powers and duties of officers

and Section 46 that falls under the aforesaid chapter stipulates as below:-

"46. Power of Excise Officers to investigate offences punishable under this Act.-

(1) The State Government may by notification invest any excise officer, not below the rank of Inspector with power to investigate any offence punishable under this Act, committed within the limits of the area in which the officer exercises jurisdiction.

(2) Every officer so empowered may within those limits exercise the same powers in respect of such investigation as an officer incharge of a police station may exercise in a cognizable case under the provisions of Chapter XII of the Code of Criminal Procedure 1973."

9. Further, Section 71 of the Act is pertinent and states as below:

"71: Report by investigation officer for institution of proceedings.- If on an investigation by an excise officer, empowered under section 46, sub-section (1), it appears that there is sufficient evidence to justify the prosecution of the accused, the investigation officer, unless he submits the case for the orders of the Collector under section 80, shall submit a report[(which shall be deemed to be a police report under the Code of Criminal Procedure, 1973)] to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on police reports.]"

10. On a conjoint reading of the aforesaid provisions, it is apparent that

the State Government is entitled to issue a notification to invest any

excise officer not below the rank of an Inspector with the powers to

investigate any offence punishable under the Act and committed within

the limits of the area in which said officer exercises jurisdiction and upon

investigation by an excise officer empowered under Section 46(1), if it

appears that there is sufficient evidence to justify the prosecution of the

accused, the IO shall submit a report to a Magistrate to take cognizance

of the offence. The aforesaid provisions read in conjunction with Rule 3 of

the Delhi Excise Powers and Appeal Orders provides for investing two

classes of Officers under Section 11 of the Punjab Excise Act with the

powers of an excise officer, viz, Ist class and IIIrd class respectively and it

groups them in two categories, i.e., Group A & B respectively. Group „A‟

includes all Superintendents, Assistant Superintendents, Deputy

Superintendents of Police, all Inspectors & Sub-Inspectors of Police, all

Sergeants of Police, all Assistant Sub-Inspectors of Police and all Head

Constables and they are entitled to exercise powers of an Excise Officer of

the Ist class. Group „B‟ includes all Field Kanungos and all police

constables, who are entitled to exercise powers of an Excise Officer of the

III class.

11. In view of the aforesaid provisions, this Court is inclined to accept

the submission made by the learned APP for the State that the trial court

had erred in acquitting the respondent on the technical ground of the

maintainability of the FIR.

12. A similar view was taken by a Single Bench of this court in the case

of Chattar Singh (supra) and by a Division Bench of the Punjab & Haryana

High Court in the case of Darshan Singh Vs. State of Punjab reported as

(1971) 73 PLR 942. In the case of Darshan Singh (supra), while dealing

with a revision petition that was referred by a Single Bench to a Larger

Bench, the Division Bench of the Punjab and Haryana High Court had

formulated the following legal issues for consideration :

"(1) That entire proceedings are void ab initio inasmuch as before

the Magistrate there was no complaint or report made by an Excise

Officer within the meaning of Section 75 of the Punjab Excise Act,

1914, and as such, the Magistrate was not competent to take

cognizance of the offence.

(2) That Section 20 of the Police Act, 1961, clearly prohibits the

conferment or investitual of the powers of an Excise Officer under

the Punjab Excise Act, 1914, or otherwise on a police officer and as

such the notification No.990-E&T-56/724,dated 19th March, 1956,

Revenue Department, Punjab Government so far as the said

notification purports to confer or vest the powers of an Excise

Officer on a Police Officer is ultra vires the powers of the Punjab

Government.

(3) That the said notification is further bad in law inasmuch as

under Section 46 of the Punjab Excise Act, the powers to investigate

an excise offence can be invested, on an Excise Offer, not below the

rank of Sub-Inspector. As such the powers under Section 46 of the

Punjab Act, 1914, can be invested on a Police Officer only after

appointing a Police Officer as an Excise Officer of the rank not below

that of an Excise Sub-Inspector. But no such appointment has been

made."

13. After examining the relevant provisions of the United Provinces

Excise Act, 1910 and of the Punjab Excise Act, 1914 that have parallel

provisions, the Division Bench had held that every police officer of the

rank of Head Constable or above had been conferred the status of a First

Class Excise Officer and was thus empowered with the powers of

investigation under Section 46 of the Excise Act. Further, while referring

to the provisions of Section 46(1) and Section 71 of the Excise Act, it was

observed that a police officer invested with the power of a First Class

Excise Office, who inter alia is empowered with the powers of

investigation under Section 46 of the Excise Act, is competent to put in a

complaint relating to the commission of an excise offence before a

Magistrate authorized to take cognizance of such an offence under Section

75 of the Excise Act, without such a police officer being expressly

empowered in so many words in that behalf and, therefore, a report

submitted to the Magistrate in that regard would be a valid complaint

under Section 75 of the Excise Act regarding an excise offence.

14. Even in the present case, ASI Devinder Singh, being a group „A‟

officer, was invested with the powers of a First Class Excise Officer,

including the powers to investigate under Section 46 of the Excise Act,

and he was duty bound to submit a report to a Magistrate having

jurisdiction to inquire into and try a case regarding an excise offence

wherein, it appeared to him that there was sufficient evidence to justify

the prosecution of the respondent accused.

15. In view of the provisions of Section 71 read with Section 75 of the

Act, the aforesaid officer will have to be treated as an Excise Officer for an

excise offence and as a result, a report submitted by him to the

Magistrate under Section 173 of the Cr.P.C. is a valid complaint based

whereon, the latter would be competent to take cognizance of the offence

in question and take the case to trial.

16. As a result of the aforesaid discussion, the present appeal is allowed

and the impugned judgment of acquittal is set aside. The case is

remanded back to the trial court for the parties to address arguments on

the merits of the case.

17. As the matter relates to the year 1996, the learned CMM, Rohini

Courts is requested to hear arguments and dispose of the present case as

expeditiously as possible and preferably within a period of two months

from the date the parties appear before the said Court. The parties are

directed to appear before the learned CMM, Rohini Courts on 28.10.2013

for further proceedings.

18. The trial court record be released forthwith.

19. A copy of this order be forwarded to the trial court for perusal and

compliance.

                                                          (HIMA KOHLI)
OCTOBER       07, 2013                                       JUDGE
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