State vs Sanjay

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
nd
Date of decision: 02 November, 2026
# CNR No. DLHC010099072004
+ CRL.A. 653/2004
STATE .....Appellant
Through: Mr. Ashneet Singh, APP with
SI Braham Prakash, PS-Sultan
Puri.
versus
SANJAY .....Respondent
Through: Mr. Nishant Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT(ORAL)
RAVINDER DUDEJA, J.
1. The present appeal has been filed under Section 378 of the
Code of Criminal Procedure, 1973 [“Cr.P.C.”] against the impugned
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judgment dated 23 May, 2003 passed by the learned ACMM, Delhi
[“Trial Court”], in case arising out of FIR No. 768/1996 registered at
Police Station Sultan Puri, whereby the respondent was acquitted of
the charge under Section 61 of the Punjab Excise Act, 1914
(hereinafter, 'the Act').
2. The prosecution case, as per the charge sheet, is that on
18.07.1996, at about 8:15AM, the respondent was found in possession
of 100 pouches, each containing 100 ml of illicit liquor, at his house
bearing No. B-2/286, Sultan Puri, Delhi, without any licence or
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PRUTHI
Signing Date:03.11.2026
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permit. Upon completion of investigation, charge sheet under Section
173 Cr.P.C. was submitted before the learned Trial Court.
3. The learned Trial Court framed charge for the offence
punishable under Section 61 of the Act against the respondent to
which he pleaded not guilty. The prosecution examined four witnesses
in support of its case.
4. The respondent in his statement recorded under Section 313
Cr.P.C., denied all the incriminating evidence appearing on record
against him and claimed innocence. He did not lead any evidence in
his defence.
5. Upon conclusion of trial, the learned Trial Court vide the
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impugned judgment dated 23 May, 2003, acquitted the respondent.
The operative para of the judgment reads as under:-
“ 5. Arguments were heard. As per section 75
of Punjab Excise Act, complaint or report by
an Excise Officer is must before cognizance of
offence Punish able U/s 61 Punjab Excise Act
can be taken. A report U/s 173 Crpc filed by
the SHO of the Police Station after the
investigation of the case can not take the place
of complaint or report by the Excise Officer.
The case filed by the prosecution is legally not
tenable and accused can not be held
accountable for the offence Punishable U/s 61
Punjab Excise Act and he is accordingly
aquitted of charge U/s 61 Punjab Excise Act.
Bail Bonds canceled, surety discharged.
”
6. Feeling aggrieved, the State preferred the present appeal,
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impugning the judgment dated 23 May, 2003.
7. Learned Additional Public Prosecutor [APP] appearing for the
State submitted that the learned Trial Court erred in holding that the
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report submitted by the SHO could not form the basis for taking
cognizance of the offence under Section 61 of the Act.
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8. It is submitted that the Notification dated 07 September, 1966,
issued by the Lieutenant Governor, Delhi confers the powers of Excise
Officers upon police officials. Consequently, the police officials so
empowered would fall within the definition of an Excise Officer under
Section 3(8) of the Act. It is, therefore, contended that the report
submitted by the SHO under Section 173 Cr.P.C. could not have been
rejected merely on the ground that it was not submitted by an officer
of the Excise Department. Reliance is placed on State Vs. Jaswant
Singh , 2013 SCC OnLine Del 4049, wherein this Court, following its
judgment in Chattar Singh Vs. State , 1985 SCC OnLine Del 61, held
that a report submitted by a duly empowered police officer under
Section 173 Cr.P.C. satisfies the requirement of Section 75 of the Act.
9. Learned APP submits that the learned Trial Court failed to
examine the aforesaid notification and the statutory empowerment of
police officers before arriving at its conclusion. It is, accordingly,
prayed that the impugned judgment be set aside and the matter be
remanded to the learned Trial Court for consideration in accordance
with law.
10. Per contra , learned counsel appearing for the respondent
supports the impugned judgment and submits that Section 75 of the
Act prescribes a specific requirement regarding the source of a
complaint or report on the basis of which cognizance of an offence
under Section 61 can be taken. It is contended that a report submitted
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by a police officer cannot automatically be treated as a report of an
Excise Officer unless such officer is shown to have been duly
empowered under the Act. In the absence of such material, the learned
Trial Court was justified in holding that the statutory requirement
under Section 75 had not been satisfied. The respondent, accordingly,
seeks dismissal of the appeal.
11. The Court has considered the rival submissions and perused the
material placed on record.
12. The limited question before this Court is regarding the
competence of the police officer/SHO who submitted the report under
Section 173 Cr.P.C., having regard to the provisions of the Punjab
Excise Act, 1914, and the notifications/rules applicable to Delhi.
13. Section 75(1)(a) of the Act, as applicable to Delhi at the
relevant time, provides that no Magistrate shall take cognizance of an
offence punishable under Section 61 or Section 66 of the Act except
upon his own knowledge or suspicion or upon a complaint or report of
an Excise Officer. The expression 'Excise Officer' is defined under
Section 3(8) of the Act to mean any officer or person appointed or
invested with powers under the Act. Thus, the definition is not
confined to officers belonging to the Excise Department. A police
officer, if duly invested with the requisite powers under the Act,
would also fall within the ambit of the expression 'Excise Officer'.
14. In this regard, it would be apposite to refer to the decision of
this Court in Chattar Singh (supra). The relevant paras of the
judgment read as under:-
“ 5. Mrs. Anand, learned counsel for the State
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has brought to my notice statutory rules issued
by the Lieutenant Governor of Delhi under
section 10 of the Act, designating three classes
of excise officers. Rule 3 of the said Rules
(appearing in Volume II of Delhi
Administration's Excise Department Manual),
read as under :-
"3.The persons mentioned in group A &
B below are under section 11 of the
Punjab Excise Act. as applied to the
Union Territory of Delhi, invested with
the powers of an excise officer of the 1st
Class and IIIrd Class, respectively :
GROUP'A'
(to exercise the powers of an excise
officer of the IIIrd class).
All Superintendents, Assistant
Superintendents and Deputy
Superintendents of Police,
All Inspectors & Sub-Inspectors of
Police,
All Sergeants of Police,
All Assistant sub-inspectors of Police,
All Head Constables.
GROUP'B'
(to exercise the powers of an excise
officer of the IIIrd class).
All Field Kunungos.
All Police Constables."
(6) According to the above-said Rule all the
Inspectors, Sub inspectors as also all the Head
Constables of Police in Delhi have been
designated as excise officers and invested with
the powers exercised by these officers. Police
Officers having been invested with the powers
of an excise officer under section 11 of the Act,
come within the purview of the definition of an
excise officer, quoted above. In this view of the
matter, there is no merit in this petition. It Is
dismissed. The petitioner, who is on bail, shall
surrender his bail bond.
”
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PRUTHI
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15. In the aforesaid case, the Court observed that Rule 3, which
provided for the investment of powers of Excise Officers upon
specified police officials, including Superintendents, Assistant
Superintendents and Deputy Superintendents of Police, Inspectors,
Sub-Inspectors, Assistant Sub-Inspectors and Head Constables. On an
examination of the said rules, this Court held that police officers who
had been invested with powers under Section 11 of the Act would fall
within the definition of an Excise Officer under Section 3(8) of the
Act. Consequently, a report submitted by such an empowered police
officer could form the basis for taking cognizance of an offence under
Section 61 of the Act.
16. The aforesaid decision makes it clear that the mere fact that a
report has been submitted by a police officer, as opposed to an officer
belonging to the Excise Department, would not, by itself, render the
prosecution incompetent. The determinative consideration is whether
the police officer concerned had been duly invested with the powers of
an Excise Officer under the Act.
17. In the present case, the State has specifically relied upon
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Notification dated 07 September, 1966, issued by the Lieutenant
Governor, Delhi, in support of its contention that the police officials
had been invested with the requisite powers. However, the learned
Trial Court, while acquitting the respondent, proceeded on the premise
that the report submitted by the SHO could not satisfy the requirement
of Section 75 of the Act, without examining the effect and
applicability of the aforesaid notification or determining whether the
SHO concerned was an officer duly empowered under the Act.
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18. As per the aforesaid Notification and Rule 3 of Volume II of the
Delhi Administration’s Excise Department Manual, 1976, the SHO
was competent to file the final report under Section 173 Cr.P.C., the
report filed by the prosecution could not be regarded as legally not
tenable, and the appellant could not have been acquitted of the charge
under Section 61 of the Act. That being so, the impugned judgment
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dated 23 May, 2003 is set aside.
19. Since, the appellant was acquitted on technical ground, and
without considering the merits of the case, it would be appropriate to
remand the case to the learned Trial Court to decide the matter afresh
after hearing arguments on merits from both sides.
20. Copy of this judgement be sent to the learned Trial Court with
direction to the appellant to appear before the learned Chief Judicial
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Magistrate, North-West District, Rohini on 20 November 2026, who
shall either try the case himself or assign it to the competent Judicial
Magistrate having jurisdiction.
21. The appeal is accordingly allowed.
22. It is clarified that no opinion is expressed on the merits of the
prosecution case, which shall be considered by the Trial Court in
accordance with law.
RAVINDER DUDEJA, J
NOVEMBER 2, 2026/ AK
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Signed By:VAISHALI
PRUTHI
Signing Date:03.11.2026
14:49