The State of Punjab Vs. Barkat Ram
 INSC 257 (30 August 1961)
DAYAL, RAGHUBAR KAPUR, J.L.
CITATION: 1962 AIR 276 1962 SCR (3) 338
CITATOR INFO :
R 1964 SC 828 (9,15,26,53) F 1965 SC 481 (9)
F 1966 SC1746 (5,11) R 1970 SC 940 (6) R 1970 SC1065 (4,9,11,12,13) R 1974
SC2136 (20) E 1981 SC 379 (16,40,45,47,50,53,62) F 1991 SC 45 (10,12)
customs officer--If a police officer--Land
Customs--Offences under the Sea Customs Act--Confessions made to Customs Officers--Conviction
on the basis of such confessions--Validity--Land Customs Act, 1924 (19 of
1924), s.9(1)--Foreign Exchange Regulation Act, 1947 (7 of 1947), s. 23(1)--Sea
Customs Act, 1878(8 of 1878), ss. 6, 167(8)--Police Act, 1861 (5 of 1861), s.
1--Indian Evidence Act, 1872 (1 of 1872) s. 25.
On receipt of information that some gold
would be smuggled from Pakistan to India by the engine crew of the train coming
from Lahore, the Land Customs staff searched the engine on the arrival of the
train at Amritsar and recovered a quantity of gold kept hidden underneath the
coal in the tender of the engine. The driver of the engine, the respondent, who
was arrested and taken to the Customs Office for interrogation, made statements
before the Customs officials admitting his , guilt. On the complaint of the
Assistant Collectorof Land Customs, the respondent was tried for offences under
s. 23(1) of the Foreign Exchange Regulation Act, 1947, and s. 167(8) of the Sea,
Customs Act, 1878, and convicted by the Magistrate, but on revision the High'
Court of Punjab set aside the conviction on the.
grounds inter alia that Customs Officers were
police officers within the meaning of that expression in s. 25 of the Indian
Evidence Act, 1872, 339 that confessional statements made to them were
consequently inadmissible in evidence and that if they be excluded from
consideration there was no other evidence to sustain the coviction.
Held (Subba Rao, J., dissenting), that
Customs Officers are not police officers for the purpose of s. 25 of the Indian
Evidence Act, 1872, and that the conviction of the respondent on the basis of
his statements to the Customs officers was maintainable.
Per Kapur and Raghubar Dayal JJ.---The duties
of Customs officers are very much different from those of the police officers
and their possessing certain powers, which may have similarity with those of
police officers, for the purpose of detecting the smuggling of goods and the
persons responsible for it, would I not make them police officers.
per Subba Rao, J.--Customs officers under the
Sea Customs Act, 1878, have the powers, and they also discharge the functions
of police officers and, therefore, they are police officers for the purpose of
the Indian Evidence Act, 1872, in so far as they exercise or discharge such
powers and functions. A customs officer is a police 'officer qua his police
functions, and a confession made to him cannot be provided against a person
accused of an offence. Case-law Reviewed.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 45 of 1959.
Appeal by special leave from the judgment and
order dated October 9, 1958, of the Punjab High Court in Criminal Revision No.
599 of 1958.
H. R. Khanna and D. Gupta, for the appellant.
Gopal Singh,, for the respondent.
1961. August 30. The judgment of J. L. Kapur
and Raghubar Dayal, JJ. was delivered by Raghubar Dayal, T. K. Subba Rao, J.,
delivered a separate judgment.
RAGHUBAR DAYAL, J. -This appeal, by special
Raghubar leave, raises the question whether a Customs Officer, either under the
Land Customs Act, 1924 (Act XIX of 1924) or under the Sea, Customs Act, 1878
(Act VIII of 1878), is a:. police officer within the meaning of that expression
in' s. 25 of the Indian Evidence Act.
340 Barkat Ram, respondent in this appeal,
was the engine driver of 78 Down Train which reached Amritsar at about 4-15
P.m., on June 8, 1957. The train came from Pakistan. In consequence of
information received with respect to the smuggling of gold by the engine crew,
the Land Customs staff boarded the engine at Atari and other staff of the
Department surrounded the engine on its arrival at Amritsar.
The engine was searched and a quantity of
gold was recovered, having been found lying concealed underneath the coal in
the front part of the coal tender in the engine.
The respondent was further interrogated at
the Customs Station and, as a result of further search, another quantity of
gold was recovered from the rear part of the coal tender.
A document, Ex. P.E., dated June 5, 1957, was
also recovered. This document was shown to the respondent on June 9.. 1957, and
the respondent inscribed on this document the note Ex. P. D1 to the effect
"... the letter is the same which Tawaqual Shah had given to me yesterday.
The same to be delivered to Ghulam Mohd. who has come from Pakistan and has
stayed at Grand Hotel." On June 9, 1957, Barkat Ram, the respondent, made
certain other statements, Ex. P. K., to Manohar Singh Bedi, Inspector of
Customs, stating therein :
"As usual on the 8th June, 1957, I took
two bundles of Indian Currency from Ghulam Mohd.
at Amritsar to Pakistan and when I brought 65
bars of gold from Tawakal Shah, from Pakistan, the Customs Officers recovered
these 65 bars o f gold from the engine at the Railway Station, Amritsar. I had
kept concealed these 65 bars of gold in the engine in the presence , of Shri
Ram Murti and Shri Jagan Nath, my two Firemen, at the Loco Shed. Lahore. I was
to deliver this gold to Ghulam Mohd. at Amritsar." 341 A second statement
was; made to the same Customs Inspector on June 17, 1957, Ex. P. G. On this
occasion too, he made a similar statement, adding that he was to get Rs. 200
against the delivery of gold.
On the complaint of the Assistant Collector
of Land Customs, Amritsar, Barkat Ram tried for offences punishable under s. 23
(1) of the Foreign Exchange Regulation Act, 1947, and under s. 167(81) of the
Sea Customs Act, 1978, as amended in 1955. He was convicted by the Magistrate.
The conviction was confirmed by the appellate Court, but was set aside on
revision by the High Court which held that Customs Officers were police
officers within the meaning of that expression in s. 25 of the Evidence Act,
that confessional statements made to them were consequently inadmissible in
evidence and that if they be excluded from consideration, there was no other
evidence to sustain the conviction. It further held that s. 27 of the Evidence
Act did not apply to the facts of the case, as the recovery of gold was the
result of search made by the Customs Officers and not the result of' interrogating
the respondent. The State of Punjab has filed this appeal against the acquittal
The only contention raised for the appellant
in the appeal is that the Customs Officers to whom the confessional statements
were made were not police officers within the meaning of that expression in s.
25 of the Evidence Act. It was contended that the mere fact that powers to arrest
certain persons, to make searches and to record evidence having a bearing on
the alleged contravention of the legal provisions, are conferred on certain
officers of the Customs Department, is not sufficient to make them 'police
officers' contemplated by s. 25 of the Evidence Act, even if it be assumed
correct. as held by certain High Courts, that, officers on' whom the powers of
theOfficer-in-charge of a Police Station under Chapter XIV of the Code of
Criminal 342 Procedure have been conferred, were police officers for the
purpose of s. 25 of the Evidence Act. The contention for the respondent is that
officers on whom such powers are conferred are really police officers, though
they are not so called and that the difference in nomenclature is of no effect
in considering them police officers for the purposes of s. 25. We are of
opinion that the contention for the appellant is sound and that the Customs
Officers are not police officers within the meaning of that term in s. 25 of
the Evidence Act.
We may mention, at this stage, that the
Officers to whom the respondent made confessional statements, were Land Customs
Officers appointed under the Land Customs Act. Section 9(1) of this Act reads:
"The Provisions of the Sea Customs Act,
1878 (VIIT of 1878), which are specified in the Schedule, together with all
notifications, orders, rules or forms issued,, made or prescribed, there under,
shall, so far as they are applicable, apply for the. purpose of the levy of
duties of land customs under this Act in like manner as they apply for the
purpose of the levy of duties of customs on goods imported or exported by
sea." Among the sections of the Sea Customs Act, made applicable by
sub-s. (1) of s. 9 of the, Land Customs Act, are included all the sections in
Chapters XVI and XVIT of the Sea 'Customs Act viz., ss. 167 to 193. In view of
these provisions, we have really to consider whether the Customs Officers under
the Sea Customs Act., in view of the various powers conferred on them under
the. Sea Customs Act, are police officers contemplated by s. 25 of the Evidence
If they are Police officers, the Land Customs
Officers appointed under the Land Customs Act will also be police officers in
view of similar power being conferredon.
them.' 343 Before we come to the
interpretation of the expression 'police officer', we would like to express
what we consider to be the duties and powers of a police officer and of customs
The Police Act, 1861 (Act V of 1861),is
described as an Act for the regulation of police, and is thus an Act for tile
regulation of that group of officers who come within the word. 'Police'
whatever meaning be given to that word the preamble of the Act further says:
'whereas it is expedient to reorganise the police and to make it a more
efficient instrument for the prevention and detection of crime, it is enacted
as follows'. This indicates that the police is the instrument for the
prevention and detection of crime which can be said to be the main object and
purpose of having the police. Sections 23 and 25 lay down the duties of the
police officers and s. 20 deals with the authority they can exercise. They can
exercise such authority as is provided for a police officer under the Police
Act and any Act for regulating criminal procedure. The authority given to
police officers must naturally be' to enable them to discharge their duties
efficiently. of the various duties mentioned in s. 23, the more important
duties are to collect and communicate intelligence affecting the public peace,
to prevent the commission of offences and public nuisances and to detect and
bring offenders to justice and to apprehend all persons whom the police officer
is legally authorised to apprehend. It is clear, therefore, in view of the
nature of the duties imposed on the police officers, the nature of the
authority conferred and the purpose of the police Act, that the' powers which
the police officers enjoy are powers' for the effective prevention and
detection of crime in order to maintain law and order.
The powers of customs officers are really not
for such purpose. Their powers are for the purpose of checking. the smuggling
of goods and the due realisation of customs duties and to determine the 344
action to be taken in the interests of the revenues of the country by way of
confiscation of goods on which no duty had been paid and by imposing penalties
Reference to s. 9 (1) of the Land-Customs Act
may be usefully made at this stage. It is according to the provisions of this
sub-section that the provisions of the Sea Customs Act and the orders, rules
etc., prescribed there under, apply for the purpose of levy of duties of and
customs under the Land Customs Act in like manner as the apply for the purpose
of, levy of duties of customs on goods imported or exported by sea. This makes
it clear that the provisions conferring various powers on the Sea Customs
Officers are for the purpose of levying and realization of duties of customs on
goods and that those powers are conferred on the Lands customs officers also
for the same purpose. Apart from such an expression in s. 9 (1) of the, Land
Customs Act, there are good reasons in support of the view that the powers
conferred on the Customs Officers are different in character from those, of the
police officers for the detection and prevention of crime and that the powers
conferred on them are merely for the purpose of ensuring that dutiable goods do
not enter, the country without payment of duty and that articles whose entry is
prohibited are not brought in. It is with respect to the detecting and
preventing of the smuggling of goods and preventing loss to the Central
Revenues that Customs Officers have been given, the power to search the
property and person and to detain them and to summon persons to give evidence
in an enquiry with respect to the smuggling of goods.
The preamble of the Sea Customs Act says
"Whereas it is expedient to consolidate and amend the law relating to the
levy of Sea Customs-duties". Practically all the provisions, of the Act
are enacted to achieve this object.
Section. 167 gives a long list of offences,
but it is to be noticed that with the 345 exception of certain offences, all
the others are to be dealt with by the Customs Officers in view of s. 182. The
Customs Officers are given the power to confiscate, to fix the duty and to
impose penalties which can, in certain cases, be of enormous amounts. The
offences mentioned in s. 167, which are to be dealt with by a Magistrate, are
mostly of the type in which the Customs Officers have nothing to investigate.
Offences at items Nos. 23 to 28 are with respect to certain acts committed by a
pilot or a master of a vessel. The Customs staff has merely to report the
conduct for trial before a Magistrate. They have nothing to investigate about
it. Similarly the offence at item 72 relates to a person's making a false
declaration. Offences at items Nos. 74, 75 and 76 are with respect to the
conduct of the Customs Officers themselves. Items Nos. 76-A, 76-B and 78 deal
with the obstruction by smugglers to the performance of duty by the Customs
Officer. The offence at item No. 77 relates to an offence where a police
officer neglects to do his duty. Item 81 creates an offence with respect to a
person doing certain things to defraud the Government. The Customs Officer,
therefore, is not primarily concerned with the detection and punishment of
crime committed by a person, but is mainly interested in the detection and
prevention of smuggling of goods and safeguarding the recovery of customs
duties. He is more concerned with the goods and customs duty, than with the
Similar view was expressed by this Court in
Maqbool Hussain's Case(1). It was said at p. 741 :
"It is clear on a perusal of the above
provisions that the powers of search, arrest and detention are given to the
Customs Authorities for the levy of sea customs duties an,.
provision is made at the same time for a
reference to the Magistrate in all cases where (1)  S.C.R. 730.
346 search warrants are needed and detention
of arrested person is required".
In Thomas Dana v. The estate of Punjab (1)it
was "There are as many as 81 entriesin the Schedule to s. 167, besides
those added later, but each one of those 81 or more entries, though an Offence,
being an act infringing certain provisions of the sections and rules under the
Act, is not a criminal offence They (i.e., Customs Officers) have been only
given limited powers of search. Similarly, they have been given limited powers
to summon persons to give evidence or to produce documents." Further it was
observed at p. 291 "It is true that the petitioners were dealt with by the
Collector of Central Excise an d Land Customs, for the offence' of smuggling ;
were, found "guilty', and a deterrent
'punishment was imposed upon them, but as he had' not been vested with the
powers of a Magistrate or a criminal court, his proceedings against the
petitioners were in the nature of Revenue proceedings, with a view to detecting
the infringement of the provisions of the Sea Customs Act, and imposing
penalties when it was found that they had been guilty of those infringements.
Those penalties, the Collector had been empowered to impose in order not only
to prevent a recurrence of such infringements, but also to recoup the loss of
such revenue resulting from such infringements." We are therefore of
opinion that the duties of the Customs Officers are very much different from
those of the police officers and that their Possessing certain powers, which
may have similarity with those of police officers, for the purpose of detecting
(1)  Supp. 1 S.C.R. 274,289.
347 the smuggling of goods and the persons
responsible for it would not make them police officers.
There seems to be no dispute that a person
who is a member of the police force is a police officer. A person is a member
of the police force when he holds his office under any of the Acts dealing with
the police. A person may be a member of the police in any other country.
Officers of the police in the erstwhile Indian States and an officer of the
police of a foreign country have been held in certain decided cases to be
police officers within the meaning of s. 25 of the Evidence Act. There is no
denying that these persons are police officers and are covered by that
expression in s. 25. That expression is not restricted to the police officers
of the police forces enrolled under the Police, Act of 1861. The word 'police'
is defined in s. I and is said to include all persons who shall be enrolled
under the Act. No doubt this definition is not restrictive as it uses the
expression 'includes', indicating thereby that persons other than those
enrolled under that Act can also be covered by the, word 'Police'.
Sections 17 and 18 of the Police Act provide
for the appointment of special police officers who are not enrolled under the
Act but are appointed for special occasions and have the same Powers,
privileges and protection and are liable to perform the same duties as the
ordinary officer of the police.
Section 21 also speaks of officers who, are
not enrolled as police officers and in such categories mentions hereditary or
other village police officers.
The words 'police officer' are therefore not
to be construed in a narrow way, but have to be construed in a wide and popular
sense, as was remarked in, R. v. Hurribole (1) where a Deputy Commissioner of
police who wits actually a (1) (1876) I.L. R. I Cal. 207.
348 police officer and was merely invested
with certain Magisterial powers was rightly held to be a police officer within
the meaning of that expression in s. 25 of the Evidence Act.
There has, however, arisen a divergence of
opinion about officers on whom some powers analogous to those of police
officers have been conferred being police officers for the purpose of s. 25 of
the Evidence Act. The view which favours their being held police officers, is
based on their possessing powers which are usually possessed by the police and
on the supposed intention of the legislature at the time of the enactment of s.
25 of the Evidence Act to be that the expression 'police officer' should
include everyone who is engaged in the work of detecting and preventing crime.
The other view is based on the plain meaning of the expression and on the
consideration that the mere fact that an officer who, by no stretch of
imagination is a police officer, does not become one merely because certain
powers similar to the powers of a police officer are conferred on him.
We now refer to certain aspects which lead us
to consider that the expression "police officer' has not such a wide
meaning as to include persons on whom certain police powers are conferred. The
object of enacting s. 25 of the Evidence Act, whose provisions formerly formed
part of the Code of Criminal Procedure, was to exclude from evidence
confessions made to the regular police which had a very bad reputation for the
methods it employed in investigation, especially in forcibly extracting
confessions with the object of securing a conviction. The past conduct of the
members of the police organization justified the provision. It is too much to
suppose that the Legislature did intend that all persons, who may have to
investigate or arrest persons or seize articles in pursuance of any particular
law of which at the time it had no conception, should be considered to be so
349 unreliable that any confession made to them must be excluded just as a
confession made to a regular police officer. If it could not contemplate the
later creation of offences or of agencies to take action in respect to them
under future legislation, it could not have intended the expression
"police officer' to include officers entrusted in future with the duty of
detecting and preventing smuggling and similar offences with the object of
safeguarding the levying and recovery of Customs duties. If the Legislature had
intended to use the expression (police officer' for such a wide purpose, it
would have used a more comprehensive expression. It could have expressed its
intention more clearly by making any confession made to any officer whose duty
is to detect and prevent the commission of offences inadmissible in evidence.
The police officer referred to in s. 25 of
the Evidence Act, need not be the officer investigating into that particular
offence of which a person is subsequently accused. A confession made to him
need not have been made when he was actually discharging any police duty.
Confession made to any member of the police. of whatever rank and at whatever
time, is inadmissible in evidence in view of s. 25.
Customs Officers can, even if the
respondent's contention be accepted, be considered to be police officers only
when they are exercising the limited powers which are similar to the powers of
the police officers. This is clear from the observations in the cases relied
upon on behalf of the respondent.
In Ameen Sharif v. Emperor (1) Mukerji, J.,
made the following observations in this connection, at p. 630 "As
militating against the view which I am inclined to take as stated above, two
points have been raised........... And the other (1) (1934) I. L. R. 61 Cal.
350 is that in section 25 of the Act, in respect
of an officer of the police, there is a personal disability implied
irrespective of the question whether be-is holding an investigation or not,
while no such disability can be said to have been intended in the case of an
excise officer. ......... And as regards the second point, I need only observe
that, whereas police officers, by reason of section 22 of Act V of 1861, are
always to be considered on duty for the purposes of the Act, all revenue
officers, on the other hand, are not police officers and it is only such of
them as may be exercising the powers of police officers and only when
exercising such powers that they may be regarded as police officers."
Similar views were expressed in Ibrahim v. Emperor(1) and Public, Prosecutor v.
Paramasivam (2). But, in our opinion, merely because similar powers in regard
to detection of infractions of Customs laws have been conferred on Officers of
the Customs Department as are conferred on Officers of the Police is not a
sufficient ground for holding them to be police officers within the meaning of
s. 25 of the Evidence Act. The powers of search etc. conferred on the former
are as was observed in Thomas Dana's case (3) of a limited character and have a
limited object of safeguarding the revenues of the State.
It is also to be noticed that the Sea Customs
Act itself refers to police officer in contradistinction to the Customs
Officer. Section 180 empowers a police officer to seize articles liable to
confiscation under the Act, on suspicion that they had been stolen. Section 184
provides that the officer adjudging confiscation shall take and hold possession
of the thing confiscated and every officer of police, on request of such
officer, shall assist him in taking and holding such possession. This leaves
(1) A. I. R. 1944 Lah. 57.
(2) A. I. R. 1953 Mad. 91 (3)  Supp. 1
S.C.R. 274, 289.
351 no room for doubt that a Customs Officer
is not an officer of the Police.
Section 171-A of the Act empowers the Customs
Officer to summon any person to give evidence or to produce a document or any
other thing in any enquiry which he be making in connection with the smuggling
of any goods.
It is well-settled that the Customs Officer.
when they act under the Sea Customs Act to prevent the smuggling of goods by
imposing confiscation and penalties, act judicially: Leo Roy Frey v. The
Superintendent, District Jail, Amritsar(1);
Shewpujanrai Indrasanrai Ltd. v. The
Collector of Customs(2). Any enquiry under s.171-A is deemed to be a judicial
proceeding within the meaning of as. 193 and 228, Indian Penal Code, in view of
its sub s.(4). It is under the authority given by this section that the Customs
Officers can take evidence and record statements. If the statement which is
recorded by a Customs Officer in the exercise of his powers under this Section
be an admission of guilt, it will be too much to say that that statement is a
confession to a police officer, as a police officer never acts judicially and
no proceeding before a police officer is deemed, under any provision so far as
we are aware, to be a judicial proceeding for the purpose of ss.193 and 228,
Indian Penal Code or for any purpose. It is still less possible to imagine that
the Legislature would contemplate such a person, whose proceedings are judicial
for a certain purpose, to be a person whose record of statements made to him
could be suspect if such statement be of a confessional nature.
It would be highly incongruous that most of
the offences under s.167 be disposed of by the Customs Officers themselves and
that such confessional statements recorded by Customs Officers be good material
for them to take action and to (1)  S.C. R. 822, 826.
(2)  S. C. R. 821, 830, 352 penalize
the offender to any amount of fine and yet the and statements be held to be not
admissible in evidence if they have to be used at a trial for a criminal
offence in a regular Court of law.
We therefore hold that the Customs Officers
are not police officers for the purpose of s. 25 of the Evidence Act.
We further hold that the conviction of the
respondent for the offences under s. 23(1) of the Foreign Exchange Regulation
Act, 1947, 'and under s.167(81) of the Sea Customs Act, 1878, on the basis of
his statements to the Customs Officers, was legal and was wrongly set aside by
the High Court. We therefore allow the appeal, set aside the order of acquittal
of the respondent for the aforesaid offences and restore the order of
conviction passed by the Magistrate and confirmed by the Sessions Judge.
We make it clear, however, that we do not
express any opinion on the question whether officers of departments other than
the police, on whom the powers of an Officer-in charge of a Police Station
under ch. XIV of the Code of Criminal Procedure, have been conferred, are police
officers or not for the purpose of s. 25 of the Evidence Act, as the learned
counsel for the appellant did not question the correctness of this view for the
purpose of this appeal.
SUBBA RAO J.-I regret my inability to agree.
I cannot bring myself to hold that, while a confession made by an accused to a
police officer is not admissible in evidence in a Court of law, the same if
made, under exactly similar circumstances, to a customs officer can be relied
and acted upon. The reasons for excluding the one from evidence would equally
apply to the other.
Briefly stated, the case of the prosecution
is as follows :
On June 8, 1957, the Superintendent, Land
Customs, Amritsar, received information that some gold would be smuggled from
Pakistan 353 to India by the engine crew of the train coming to Amritsar from
Lahore that evening. On enquiry by the Customs officials, the engine crew
stated that 100 tol as of gold was kept hidden underneath the coal in the
tender of the engine.
After recovering the said gold, Barkat Ram,
the respondent, who was the driver of the engine, was arrested and taken to the
Customs office for interrogation. On interrogation, it was disclosed that the
gold was for delivery to one Ghulam Mohd. Two days later Ghulam Mohd. was also
arrested at Amritsar. During the enquiry., Barkat Ram and Ghulam Mohd.
made statements before the Customs officials
on different occasions admitting their guilt. In due course, the Assistant
Collector, Land Customs, Amritsar filed a complaint against the said two
persons before the Additional District Magistrate Amritsar, and the said
Magistrate convicted and sentenced them under s. 23 of the Foreign Exchange
Regulation Act 1947 (Act No. 7 of 1947) and also under s. 167 (81) of the Sea
Customs Act, 1878 (Act No. 8 of 1878). On appeal, the Additional Sessions
Judge, Amritsar, confirmed the said order of conviction and sentence.
Against the said order, the accused filed
revisions to the High Court of Punjab. Apart from the confessions alleged to
have been made by the accused, there was no other evidence to prove that they
were guilty of the offence with which they were charged. It was contended
before the High Court that the said confessional statements were hit by s. 25
of the Evidence Act and, therefore, they were inadmissible in evidence. The
High Court, accepting the contention, held that, if the statements were
excluded, there was no other evidence to sustain the conviction. On that
finding, the High Court set aside the conviction of the accused. The State has preferred
the present appeal against the acquittal of Barkat Ram.
Learned counsel for the State contended 354
that Customs officials are not police officers within the meaning of s. 25 of
the Evidence Act, and, therefore, the statements made by the respondents
confessing their guilt were admissible in evidence and the convictions based
thereon were sustainable.
Before considering the decisions cited at the
Bar, let us look at the material provisions of the relevant Acts.
The Indian Evidence Act, 1872 Section 25 No.
confession made to a police officer shall be proved as against a person accused
of any offence.
Code of Criminal Procedure, 1898.
Section 5. (1) All offences under the Indian
Penal Code (45 of 1860) shall be investigated, inquired into, tried and
otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be
investigated, inquired into, tried and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being in force
regulating the manner of place of investigating, inquiring into, trying or
otherwise dealing with such offences.
Police Art', 1861.
Section 1............ the word "police"
shall include all persons who shall be. enrolled under this Act. Sea Customs
Section 6. The Central Government may appoint
such persons as it thinks fit to be officers of Customs, and to exercise the
powers conferred, and perform the duties imposed, by this Act on such officers.
355 The question is whether a customs officer
is a police officer within the meaning of s. 25 of the Evidence Act.
The Evidence Act does not define the term
The Sea Customs Act does not designate any
officers appointed there under as police officers. The police Act of 1861 gives
an inclusive definition of the word "Police" and therefore, it is not
exhaustive; and "it comprehends not only such things as it' signifies
according to its natural import, but also enlarges the meaning of the said word
so as to take in other things Section 5.(2) of the Code of Criminal Procedure
also contemplates investigation of, or inquiry into, offences under other
enactments regulating the manner or place of investigation, that is, if an act
creates an offence and regulates the manner and place of investigation or
inquiry in regard to the said offence, the procedure proscribed by the Code of
Criminal Procedure will give place to that provided in that Act. If the said
Act entrusts investigation to an officer other than one designated as police
officer, he will have to make the investigation and not the police officer. In
this situation, the mere use of the words police officer" in s. 25 of the
Evidence Act does not solve the problem, having regard to permissible' rules of
interpretation of the term ",police officer" in that section. It may
mean any one of the following categories of officers (i) a police officer who
is a member of the police force constituted under the Police Act; (ii) though
not a member of the police force constituted under the Police Act, an officer
who by statutory fiction is deemed to be a police officer in charge of a police
station under the Code of Criminal Procedure;
and (iii) an officer oh whom a statute
confers powers and imposes duties of a police officer under the Code of
Criminal Procedure, without describing him as a police officer or equating him
by fiction to such an officer. Now, which 356 meaning is to be attributed to
the term "police Officer" in s. 25 of the Evidence Act ? In the
absence of a definition in the Evidence Act it is permissible to travel beyond
the four corners of the statute to ascertain the legislative intention. What
was the meaning which the legislature intended to give to the term "police
officer" at the time the said section was enacted ? That section was taken
out of the Criminal Procedure Code, 1861 (Act 25 of 1861) and inserted in the
Evidence Act of 1872 as s. 25. Stephen in his Introduction to the Evidence Act
states at p. 171 thus :
"I may observe, upon the provisions
relating to them, that sections 25, 26 and 27 were transferred to the Evidence
Act verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ
widely from the law of England, and were inserted in the Act of 1861 in order
to prevent the practice of torture by the police for the purpose of extracting
confessions from persons in their custody." So too, Mahmood, J., in Queen
Empress v. Babulal (1) gave the following reasons for the enactment of s. 25 of
the Evidence Act at p. 523.
"I the legislature had in view the
malpractices of police officers in extorting confessions from accused persons
in order to gain credit by securing convictions, and that those malpractices
went to the length of positive torture; nor do I doubt that the Legislature, in
laying down such stringent rules, regarded the evidence of police officers as
untrustworthy, and the object of the rules was to put a stop to the extortion
of confession, by taking .%way from the police officers as the advantage of
proving such exported confessions during the trial of accused persons."
(1) (1884) I. L. R. 6 All. 509.
357 It is, therefore, clear that s.25 of the
Evidence Act was enacted to sub serve a high purpose and that is to prevent the
police from obtaining confessions by force, torture or inducement. The salutary
principle underlying the section would apply equally to other officers, by
whatever designation they may be known, who have the power and duty to detect.
and investigate into crimes and is for that purpose in a position to extract
confessions from the accused.
In the Oxford Dictionary, the word
"police" is defined thus :
"The department of government which is
concerned with the maintenance of public order and safety, and the enforcement
of the law;
the, extent of its functions varying greatly
in different countries and at different periods.
The civil force to which is entrusted the
duty of maintaining public order, enforcing regulations for the prevention and
punishment of breaches of the law, and detecting crime;
construed as plural, the members of a police,
force; the constabulary of a locality." Shortly, stated, the main duties
of the police are the prevention and detection of crimes. A police officer
appointed under the Police Act of 1861 has such powers and duties under the
Code of Criminal Procedure, but they are not confined only to such police
officers. As the State's power and duties increased manifold, acts which were
at one time considered to be innocuous and even praiseworthy have become
offences, and the police power of the State gradually began to operate, on
different subjects. Various Acts dealing with Customs, Excise Prohibition..
Forest, Taxes etc., came to be passed, and the prevention, detection and
investigation of offences created by those Acts came to be entrusted to
officers with nomenclatures appropriate 358 to the subject with reference to
which they functioned. It is not the garb under which they function that
matters, but the nature of the power they exercise or the character of the
function they perform is decisive. The question, therefore, in each case is,
does the officer under a particular Act exercise the powers and discharge the
duties of prevention and detection of crime ? If lie does, he will be a police
There is a conflict of judicial opinion on
the question raised. The earliest decision, which was followed by other later
decisions, is that of the Calcutta High Court in The Queen v. Hurribole Chunder
Ghose(1). The decision in that case was given in 1876. It indicates in a way
how the courts understood the term "Police officer" in. or about the
time when s. 25 was inserted in the Evidence Act: There the question was
whether a Deputy Commissioner of Police before whom a prisoner made a statement
was a police officer within the meaning of s. 25 of the Evidence Act. It was
argued that the term "police officer" comprised only that class of
persons who are called under the Bengal Police Act the members of the police
force. Answering that question, the learned Chief Justice observed at p. 215
"......... in construing the 52th
section of the, Evidence Act of 1872, I consider that the term "police
officer" should be read not in any technical sense but according to its
'more comprehensive and popular meaning. In common parlance and amongst the
generality of people, the Commissioner and Deputy Commissioner of Police are
understood to be officers", of Police, or in other words "police
officers", quite as much as the more ordinary members of the
force........." It is true that in that case I the court was concerned
with the question whether the Deputy Commissioner of Police was a police
officer. But that decision laid (1) (1876) 1.L.R. I Cal. 207.
359 down that to be police officer within the
meaning of s. 25 of the Evidence Act one need not be a, member of the police
force under the Act of 1861. This decision stood the test of time and indeed it
represented the contemporaneous judicial opinion of the time. In 1926 a full
bench of the Bombay High Court in Nanoo v. Emperor(1) held that an Abkari
Officer under the Bombay Abkari Act, who, in the conduct of investigation of an
offence punishable under the Bombay Abkari Act exercised the powers conferred
by the Code of Criminal Procedure', 1898, upon an officer in charge of a police
station for the investigation of a cognizable offence, was a police officer
within the meaning of s. 25 of the Indian Evidence Act. Marten C. J., after
considering the ,relevant provisions and the case law on the subject came to
the following conclusion, at p. 94 :
"After giving then my best attention to the
arguments, which have been addressed to us, in my judgment, we should hold that
as the Bombay Legislature has deliberately conferred upon these Abkari officers
substantially all the powers of a Police officer, they have thereby in effect
made them Police officers within the meaning of s. 25............." Shah,
J., stated much to the same effect at p. 97 :
"It seems to me a perfectly fair
interpretation of section 25 to say that the Police officer within the meaning
of that section is an officer, who exercises the powers of police conferred
upon him by law, whether he is called a Police officer or he is called by any
other name and exercises other functions also under other provisions of law.
He is a Police officer within the meaning of
section 25, if in the investigation of offences under particular Act he
exercises the powers of an, officer in charge of a police station for the
investigation of a cognizable offence conferred upon him by that Act." (1)
(1927) 1. L. R. S. Bom. 78.
360 This decision, therefore, accepted the
principle that nomenclature given to a particular officer was not decisive of
the question whether he was a police Officer, but the powers conferred upon
him.afforded the criterion. It is true that s. 41 of the Bombay Abkari Act stated,
"Every such officer shall in the conduct of such investigation exercise
the powers conferred by the Code of Criminal Procedure, 1898, upon an officer
in charge of a police station for the investigation of a cognizable
offence." But conferment of power on an officer by reference to another
Act in only one of the legislative devices and such conferment also could be
made by specific provisions in an Act without reference to another Act. A full
Banch of the Calcutta High Court in Ameen Sharif v. Emperor(1) adopted the same
test for deciding whether an officer was a police officer or not. That decision
related to an excise officer, and the Bengal Excise Act conferred powers on the
excise officers similar to those conferred by s. 41 of the Bombay Abkari Act on
the Abkari Officers. Mukerji J., who delivered the leading judgment, after
scrutinizing the relevant provisions and the cases concluded his discussion
thus at p. 629 :
"It is the nature of the duties
performance of which was likely to give occasion for improper influences being
exercised or felt, and not any particular aversion for a particular department
of public service that must have moved the legislature in enacting the
provision. I am, therefore, of opinion that if matters which previously did not
fall within the category of crime subsequently came to be recognized as such
and on that' officers have been appointed to discharge or have been vested with
powers of discharging duties (1)(1934) 1. L. R. 61 Cal. 60 7.
361 which a police officer had to discharge
in 1872, then whatever may be the name of the department to which such officers
may have been attached, such officers must be, regarded as coming within the
term "police officer", with regard to whom section 25 of the Evidence
Act was intended to be applied" This passage neatly summarises the law on
the subject, and I entirely agree with it. Ghose, J., in a separate judgment
came to the same conclusion and he stated at p. 654 thus "Since 1872, not
only have new off noes been created by later Acts, but new bodies of officers
have been created who are vested with powers of police with regard to these
offenses." Then the learned Judge posed the question, ",Would that
make any difference to the application of the section to these officers ?"
and answered it thus at 656 :
"The words "police officer"
may be plain, but they are not defined in the Evidence Act. The contention that
the term applies only to members of the police force is not borne out by
authority. On the other band, it is quite consistent with the scheme of the Act
that t person, who exercises the powers of a police officer, should be hit by
the prohibitive provision of section 25." Turning to Madras decisions, it
would be enough if only one decision of the Madras High Court is noticed, for
the other decisions were made by single Judges and were also considered in the
said decision. A division bench of the Madras High Court in Public Prosecutor
v. Paramasivam (1) was considering the status of an excise officer under the
Opium Act. The learned Judges held that an excise officer invested with the
powers of an officer in charge of a police station for investigation of
offences under (1) A.I.R. 1953 Mad. 917.
362 s.20A of the Opium Act w as a
"police officer" coming within the purview of s. 25 of the Evidence
Act. Balakrishna Ayyar, J., made the following observations at p. 918
"There is no exhaustive definition of the expression 'Police Officer' in
any of our statutes........... In the absence of a statutory definition, and,
apart from all authority, one would be tempted to say that a police officer is
a person whom any statute or other provision of law calls such or, on whom it
confers all or substantially all the powers and imposes the duties of a police
If he is expressly called a police officer
there is no difficulty whatsoever. If he is not so called then the next step is
to ask :
what does the law require him to do ? What
are the ditties imposed on him ? and what are the powers conferred on him ? If
these are substantially those of a police officer there need be no qualms in
regarding him as one. If his powers and duties are confined to a particular
extent of territory or to a particular subject matter he will be a police
officer only in respect of that territory or that subject-matter. The material
thing to consider would be not the name given to him, nor the colour of the
uniform be is required to wear, but his functions, powers and duties.
A police officer does not cease to be such
merely because he is put into a white, khadder uniform instead of one in khaki
drill; a medicine will be just the same whether it is packaged in a glass jar
or a plastic container," This passage, in my view lays down with clarity
the real test for determining whether a particular officer is a police officer
or not within the meaning of a statute. I am in full accord with the said
363 A full bench of the Patna High Court in
Radha Kishun Marwari v. King Emperor, (1) struck a different note. That Court
swung to the other extreme and held that "the distinction between a person
who is nothing but a Police Officer and one who is primarily not a Police
Officer but merely invested with the powers of a Police Officer is material and
cannot be ignored for the purpose of Construing section 25 of the Evidence
Act." on the basis of the said principle, it came to the Condition that an
Excise Officer was not a "Police Officer" within the meaning of s. 25
of the Evidence Act.
With at respect to the learned Judges, who
decided that case, I think that "they looked too narrowly at the
appearance of things and declined to look at the substance behind the
appearance". If that interpretation be correct, an officer, who is simply
designated as a police officer, will come under the mischief of s. 25 of the
Evidence Act, whereas an officer, who is not described as a police officer but
who is entrusted with all the police powers and duties would not be hit by it.
This adherence to the letter in derogation of the spirit of t statute would
defeat the object of the statute itself. I, therefore, cannot accept this
judgment as correct.
It is not necessary to multiply decisions
discussing the general principles. But I would notice a few decisions relating
to Customs Officer. Yahya Ali, J., in In re Mayalavahanam (2) expressed the
view that an Assistant Inspector of Customs was not a police officer within the
meaning of s. 25 of the Evidence Act. In coming, to that conclusion, the
learned Judge distinguished a decision of a division bench of the Madras High
Court on the ground that the Ordinance on which that decision turned
specifically mentioned that in conducting the investigation particular officers
would have all the powers, duties, privileges and liabilities of an officer in
charge of a police station under the Criminal Procedure Code.
(1) (1932) I.L.R. 12 Pat. 46.
(2) I.L.R.  Mad. 788.
364 I do not see how that circumstance makes
a difference in the application of s. 25 of the Evidence Act. The fact that
that Ordinance, by reference to the Code of Criminal Procedure, conferred
powers on the Commercial Tax Officers, but the Sea Customs Act conferred
similar powers not by reference to any Code, but by express enactment, could
not make any difference in the application of the principle. I shall consider
at a later stage the scope of the powers conferred by the Sea Customs Act on a
Customs Officer in the matter of prevention, detection and investigation of
The Punjab High Court, on the other hand, in
Gopal Dass v. The State (1) held that a Customs Officer under the Sea Customs
Act had powers analogous to police powers relating to prevention or detection
of crimes and, therefore, he was a police officer within the meaning of s. 25
of the Evidence Act. The Calcutta High Court in Fernandez. v. State (2 ) held
that a Customs Officer was a police officer within the meaning of s. 25 of the
Evidence Act, whereas the Mysore High Court in Issa Yacub v. State of Mysore
(3) took a contrary view. The conflicting views were mainly based upon the alleged
circumstance that under the Sea Customs Act,.
though powers of prevention and detection
were conferred on a Customs Officer, no powers of investigation was given to
him. I shall consider this aspect at a later stage.
The foregoing consideration of the case law
and the statutory provisions yields the following results : The term
"police officer" is not defined in the Evidence Act, or, as a matter
of fact, in any other contemporaneous or subsequent enactment. The question,
therefore, falls to be decided on a fair construction of the provisions of s.
25 of the Evidence Act, having regard to the hi-story of the legislation and
the meaning attributed to that (1) A.I.R. 1959 Punjab 1 13. (2) A.I.R. 1953
(3) A.I.R, 1961 Mysore 7.
365 term in and about the time when s. 25 of
the Evidence Act came to be inserted therein. If a literal meaning is given to
the term "police officer" indicating thereby an officer designated as
police officer, it will lead to anomalous results. An officer designated as a
police officer, even though he does not discharge the well understood police
functions, will be hit by s. 25 of the Evidence Act, whereas an officer not so
designated but who has all the powers of a police officer would not be hit by
that section; with the result, the object of the section would be defeated. The
intermediate position, namely, that an officer can be a police officer only if
powers and duties pertaining to an officer in charge of a police station within
the meaning of the Code of Criminal Procedure are entrusted to him, would also
lead to an equally anomalous position, for, it would exclude from its operation
a case of an officer on whom specific powers and functions are conferred under
specific statutes without reference to the Code of Criminal Procedure. The Code
of Criminal Procedure does not define a "Police officer" and is 5(2)
thereof makes the procedure prescribed by the Code subject to the procedure
that may be prescribed by any specific Act. This construction would make the
provisions of s. 25 of the Evidence Act otiose in respect of officers on whom
specific and incontrovertible police powers are conferred. But the third
position would not only carry out the intention of the Legislature, but would
also-make the section purposive and useful without doing any violence to the
language of the section. A police officer within the meaning of s. 25 of the
Evidence Act may be defined thus : An officer, by whatever designation he is
called, on whom a statute substantially confers the powers and imposes the
duties of the police is a police officer within the meaning of s. 25 of the
With this background let us scrutinize the
provisions. of the Sea Customs 366 Act to ascertain whether such powers have
been conferred and duties imposed on a Customs officer. Section 167 of the Sea Customs
Act opens out with the following words: "The offences mentioned in the
first column of the following schedule shall be punishable to the extent
mentioned in the third column of the same with reference 'to such offences
respectively:" Chapter XVI of the Act deals with offences and penalties.
Section. 167 provides penalties for offences in a tabular form. The first
column gives the particulars of offences, the second column gives the section
to which the offence has reference and the third column gives the penalties in
respect of each offence. Apart from the facts that the statute itself, in clear
terms, describes the acts detailed in the first column of s. 167 as offences
against particular laws, the acts described theorem clearly fall within the
definition of "offences" in the General Clauses Act and the Indian
Penal Code, Therefore, any contravention of any of the provisions of the Act
mentioned in s. 167 of the Sea Customs Act is an offence. Chapter XVII
prescribes the procedure relating to Offences, appeals, etc. Section 169
confers on an officer of Customs, duly employed in the prevention of smuggling,
the power to search on reasonable suspicion any person on board of any vessel in
any port in India or within the Indian customs waters or any person who has
landed from any vessel. Section 170A enables the said Customs officer, for
detecting secreted goods to have the body of a person suspected of smuggling
X-rayed after obtaining the order of a Magistrate. Section 171 empowers such
officer to board a vessel for searching it an order to ascertain whether any
breach of the Act or any other law relating to customs has been or is being or
is likely to be committed. Section 171A, which was inserted by Act 21 of 1955
gives power to the said officer to summon persons to give evidence and produce
documents, presumably to facilitate investigation of the offence. Under s. 173
367 an officer of Customs may arrest a person against whom a reasonable
suspicion exists that he has been guilty of ,in offence under the Sea Customs
Act. Under s. 178, anything liable to confiscation under the Act may be seized
in any place by a Customs officer. The said sections, therefore, create
offences, and, for the purpose of prevention and detection of such offences,
confer specific powers on the Customs officers to search persons or places, to
arrest persons suspected of such offences and to make necessary investigation
in respect thereof. The Customs officers under the Act have the powers, and
they also discharge the functions, of police officers and, therefore, they are
police officers for the purpose of the Evidence Act in so far as they exercise
or discharge such powers and functions.
I, therefore, hold that a Customs officer is
a police officer qua his police functions. If so, it follows that a confession
made to him cannot be proved against a person accused of an offence.
In the present case, it is not disputed that
if the confession made by the respondent to the Customs officers was excluded,
there would be no other evidence on which the conviction could be sustained.
Therefore,, the order of the High Court is correct.
In the result, the appeal fails and is
By COURT In accordance with the opinion of
the majority the appeal is allowed.