Raja Ram Jaiswal Vs. State of Bihar
[1963] INSC 86 (4 April 1963)
04/04/1963 MUDHOLKAR, J.R.
MUDHOLKAR, J.R.
SUBBARAO, K.
DAYAL, RAGHUBAR
CITATION: 1964 AIR 828 1964 SCR (2) 752
CITATOR INFO:
D 1966 SC1746 (8,9,11) D 1970 SC 940 (7,8)
E&D 1970 SC1065 (4,12,13) D 1974 SC2136 (22) R 1981 SC 379
(17,42,45,46,48,52,57) F 1991 SC 45 (10,13,14)
ACT:
Excise Officer-Confession made to an Excise
Inspector in the course of investigation-If a confession made to a police
officer-"Police Officer", Meaning of-Excise Inspector, if a police
officer--Code of Criminal Procedure 1898 (Act V of 1908) ss. 156, 162-Indian
Evidence Act, 1872 (Act 1 of 1872) s. 25-Bihar and Orissa Excise Act, 1915 (Act
2 of 1915), ss. 2 (8), 7, 47 (a), 68, 69, 70, 71, 72, 73, 77, 78, 80, 82, 95,
96.
HEADNOTE:
The appellant along with five other. people,
one of whom was driving the car, were traveling in a car belonging to the
appellant's brother. The car was stopped by the Excise Inspector who conducted
a search of the car and recovered five bundles of Ganja, four from the luggage
boot and one from the leg space in front of the seat of the car. The boot could
be opened with the keys in the possession of the appellant as well as one of
the keys in the possession of the driver. The appellant made a confession to
the Excise Inspector admitting his guilt. At the trial of the appellant
alongwith the other persons he pleaded an alibi and pleaded innocence. The 753
trial court acquitted all the other accused but convicted the appellant under
s. 47 (a) of the Bihar and Orissa Excise Act. 1915, and sentenced him to
undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000.
On appeal the High Court affirmed this
conviction and sentence. The appellant thereupon appealed to this Court with
special leave.
In the appeal before this Court it was
contended that the confessional statement Ex. 3 upon which reliance was placed
by the High Court as supporting the evidence of P. W. 2, P.
W. 3 and P. W. 4 was inadmissible and if this
statement was put aside the evidence of these prosecution witnesses was
insufficient in law to sustain the conviction of the appellant. In objecting to
the admissibility of the statement reliance was placed on s. 25 of the Indian Evidence
Act, 1872 and s. 162 of the Code of Criminal Procedure in as much as it was
recorded by the Inspector of Excise while he was investigating into an excise
offence under Ch. XIV of the Code of Criminal Procedure.
Held (per Subba Rao and; Mudholkar JJ.) the
words, "Police Officer" in s. 25 of the Evidence Act are not to be
construed in a narrow way but have to be construed in a wide and popular sense.
Those words are however not to be construed in so wide a sense as to include
persons on whom only some of the powers exercised by the police are conferred.
State of Punjab v. Barkat Ram [1962] 3 S. C.
R. 338 referred to.
By virtue of s. 77 (2) read with s. 78 (3) of
the Bihar & Orissa Excise Act, 1915, an Excise Inspector or SubInspector in
the State of Bihar shall be deemed to be an of charge of a police station and
is entitled to investigate any offence under the Excise Act. He can exercise
all the powers which an officer in charge of a police station can exercise
under Ch. XIV of the Code of Criminal Procedure.
Therefore a confession recorded by him during
an investigation into an excise offence cannot reasonably be regarded as
anything 'different from a confession to a police officer.
The test for determining whether a person is
a "police officer" for the purpose of s. 25 of the Evidence Act would
be whether the powers of a police officer which are conferred on him or which
arc exercisable by him because he is deemed to be an officer in charge of a
police station establish a direct or 754 substantial relationship with the
prohibition enacted by s. 25 of the Evidence Act that is the recording of a
confession. in other words the test would be whether the powers are such as
would tend to facilitate the obtaining by him of a confession from a suspect
delinquent.
It is the power of investigation which
establishes a direct relationship with the prohibitions under s. 25 of the
Evidence Act. Therefore where such power is conferred upon an officer, the mere
fact that he possesses some other powers under another law would not make him
any the less a police officer for the purpose of s. 25.
The object of enacting s. 25 of the Evidence
Act was to eliminate from consideration confession made to an officer who by
virtue of his position, could extract by force, torture or inducement a
confession. An Excise Officer acting under s. 78 (3) of the Bihar & Orissa
Excise Act, 1915, would be in the same position as an officer in charge of a
police station making an investigation under Ch. XIV of the Code of Criminal
Procedure. He would likewise have the same opportunity of extracting confession
from a suspect. It is therefore difficult to draw a rational distinction between
a ,confession recorded by a Police Officer strictly so called and recorded by
an Excise Officer who is deemed to be a police officer.
Case law reviewed.
Harbhanian Sao v. Emperor, (1927) 1. L. R.
54, Cal. 601, Matilal Kalwar v. Emperor, A. I. R. 1932 Cal. 122, Ameen Sharief
v. Emperor, (1934) 1. L. R. 61 Cal. 607, Nanoo Sheikh Ahmed v. Emperor, (1926)
I. L. R. 31 Bom. 78, Public Prosecutor v. O. Paramasivam, A. I. R. 1953 Mad.
917, Ibrahim v. Emperor, A. 1. R. 1944 Lah. 57, Radha Kishun Maruwari V. King
Emperor, 1932 I. L. R. 12 Pat. 46 and Queen v. Hurribole Chunder Ghose, (1876)
1. L. R. 1 Cal. 207.
referred to.
There is one more reason also why the
confession made to an Excise Sub-Inspector must be excluded, that is, it is a
statement made during the course of investigation to a person who exercises the
power of an officer in charge of a police station. Such a statement is excluded
from evidence by s. 162 of the Code of Criminal Procedure except for the
purposes of contradiction. Therefore both by s. 25 of the Evidence Act as well
as s. 162 of the Criminal Procedure Code the confession of the appellant is
inadmissible in evidence.
755 Per Raghubar Dayal, J. The appeal should
be allowed but for different reasons.
A scrutiny of the various provisions of the
Bihar & Orissa Excise Act, 1915, leads to the conclusion that the legal
position of an Excise Officer is similar to that of the Customs Officer whom
this Court has held to be not a "Police officer" in the case of State
of Punjab v. Barkat Ram, A. 1.
R. 1962 S. C. 276.
The provisions of ss. 7, 89, 95 and 96 of the
Bihar and Orissa Excise Act, 1915, are sufficient to indicate that the action
of Excise Officers under the Act and under any other law relating to excise
revenue is treated alike. The Act is like Sea Customs Act primarily concerned
with the collection of the Excise revenue.
An Excise Officer cannot be a police officer
for the purpose of s. 25 of the Evidence Act at all times. He cannot be a
police officer only when he is discharging the duties of an investigating
officer. The mere fact that the Excise Officer possesses certain powers similar
to those of police officers in regard to infraction of excise laws is not a
sufficient ground for holding them to be police officers within the meaning of
s. 25 Evidence Act.
Under s. 85(3) of the Bihar & Orissa
Excise Act, 1915 all officers other than collectors who make arrests, searches
or seizures under the Act are deemed to be police officers for the purpose of
the provisions relating to arrests, searches and seizures in the Criminal
Procedure Code. It is therefore clear that the Legislature did not contemplate
that Excise Officers performing other duties corresponding to the duties of the
regular police officers be deemed to be police officers merely on account of
their performing those duties. It follows that Excise Officers when
investigating offenses under the Act are not to be deemed police officers for
the purpose of the provisions about investigation in the Code of Criminal
Procedure.
The effect of s. 78(3) can only be that in
view of the provisions of sub-3s. (2) and (3) of s. 156 of the Code of Criminal
Procedure no proceedings by the Excise Officer so empowered shall be called
into question on the ground that he was not empowered to investigate an
offence.
The history of the Code of Criminal Procedure
as well as the Excise law shows that Excise Officers have been considered 756
different from police officers and that clear provisions were created for
certain officers of the Revenue and Police departments to be deemed Excise
Officers.
The Excise Inspector and Sub-Inspector
empowered by the State Government under s. 77(2) of the Act are not police
officers within the meaning of s. 25 of the Evidence Act and that the aforesaid
officers cannot be treated to be police officers for the purpose of s. 162 of
the Code of Criminal Procedure.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 125 of 1961.
Appeal by special leave from the judgment and
order dated January 20, 1961 of the Patna High Court in Criminal Revision No.
1274 of 1960.
A.S.R. Chari, M.K. Ramamurthi, R.K. Garg,
S.C. Agarwala and D.P. Singh, for the appellant.
D.Goburdhan, for the respondent.
1963. April 4. The judgment of Subba Rao and
Mudholkar J.
was delivercd by Mudholkar J. Dayal J.
delivered a separate judgment.
MUDHOLEAR J.-In this appeal by special leave
from the judgment of the ]Patna High -Court affirming the conviction of the
appellant under s. 47 (a) of the Excise Act and the sentences of rigorous
imprisonment for one year and of fine amounting to Rs. 2,000 awarded by the
Judicial Magistrate First Class, Patna, the substantial question which falls
for decision is whether a confession made by the appellant and recorded by the
Excise Inspector who was investigating the case is inadmissible by reason of
the provisions of s. 25 of the Indian Evidence Act, 1872.
It is not disputed before us by Mr. Chari
that on August 3, 1957, a motor car bearing No. WBC 562 757 was stopped by the
Excise Inspector, R.R.P. Sinha (P.W.1) on the Bayley Road, near the New
Secretariat, Patna, at 10.00 p.m. The car belongs to the appellant's brother
Radhey Shyam; but he was not at that moment in the car. The car was then being
driven by Jagdish Sah and the appellant was sitting by his -side. Four other
persons were sitting on the back seat. The Excise Inspector searched the car in
the presence of three witnesses Debendra Prasad Singh (P.W. 2), Paresh Nath
Prasad Singh (P.W. 3) and Rabindra Prasad Singh (P.W. 4) and recovered from the
car five bundles of non-duty paid Nepali Ganja. According to the prosecution
four of them were recovered from the luggage boot of the. car while one was
recovered from the leg space in front of the front seat of the car. According
to the appellant, however, no ganja was carried in the car and therefore, none
was seized from the car; Further, according to the prosecution, the appellant
produced the keys with which the luggage boot was opened. The Excise Inspector
made a seizure memo Ex. 2 and recorded the statements of all the persons who
were in the car, including the appellant. Exhibit 3 is the statement of the
appellant.
After the investigation was completed all the
persons who were in the car at that time including the appellant and Radhey
Shyam, the brother of the appellant, were put up-for trial before the Judicial
Magistrate. He convicted all of them but in appeal the Sessions judge, Patna,
acquitted all except the appellant. It is, therefore, not necessary to refer to
the defence taken by the acquitted persons. The appellant's defence was that he
was not traveling in the car at the relevant moment and that he was at that
time in the house of Kanhai Singh (D. W. 1) which is situate in Subjibagh
Mohalla of Patna where he was arrested by the Excise Inspector at 6.00 on the
morning of August 4. His defence 758 further is that after his arrest R. R. P.
Sinha, P. W. I and other officers of the Excise Department took him in a jeep,
subjected him to threats and abuses, assaulted him and eventually took his
signature on a blank paper. Thus his defence is that he was falsely implicated
by the Excise Inspector. In view, however, of the fact that all the courts have
accepted the evidence of the prosecution witnesses which establishes the fact
that the appellant was actually in the car when it was stopped by the Excise
Inspector, Mr. Chari has rightly not challenged that finding. He has also not
contended that the appellant's signature was taken on a blank paper by the
Excise Officers.
The argument he advanced, however, is that
there is no legally admissible evidence on the basis of which the appellant's
conviction can be sustained. The confessional statement ]Ex. 3 upon which
reliance has been placed by the High Court as supporting the evidence of P. W.
2 Debendra Prasad Singh, P. W. 3 Paresh Nath Prasad Singh and P. W. 4 Rabindra
Prasad Singh is attacked as being inadmissible in evidence and it is said that
if this statement is put aside the evidence of the three prosecution witnesses
on whom reliance has been placed by the High Court is insufficient in law to
sustain the conviction of the appellant under s. 47 (a) of the Excise Act.
The relevant portion of s. 47 runs thus :
"Penalty for unlawful import, export,
transport, manufacture, possession, sale, etc.If any person, in contravention
of this Act, or of any rule, notification or order made, issued 'or given, or
license, permit or pass granted, under this Act.,(a) imports, exports,
transports, manufactures, possesses or sells any intoxicant ;
or... ... ... ...he shall be liable to
imprisonment for a term which may extend to one year or to 759 fine which may
extend to two thousand rupees, or to both." The evidence of P. Ws. 2, 3
and 4 taken along with the evidence of the Excise Inspector establishes the
following facts :
(1) that the appellant was sitting by the
side of the driver when the car was stopped by the Excise Inspector ;
(2) that five bundles of non-duty paid Nepali
Ganja were recovered from the car (3) that four bundles were recovered from.
the luggage boot of the car and one from the
leg space in front of the front seat ;
(4) that a bunch of keys marked Ex. 2 series
was recovered from the pocket of the appellant and another bunch of keys marked
-Ex. I series was recovered from the possession of 'the driver Jagdish Sah (5)
that every key of Ex. I series could open the lock of the luggage boot and two
keys of Ex. 2 series could also open the lock.
In order to establish this, the prosecution
has relied on the seizure memo Ex. F and the evidence of the Excise Inspector
and P. W. 2 Debendra Prasad Singh. P. W. 3 Paresh Nath Prasad Singh and P. W. 4
Rabindra Prasad Singh. A perusal of Ex. F would, however, show that material
Alterations and erasures appear to have been made in that document by reason of
which no reliance can be placed upon it. The High Court has wholly ignored this
Pact and we are, therefore, entitled to take it into consideration. It would
appear that originally it was 760 shown in col. 5 and 6 taken together that a
bundle containing 35 seers of ganja was found in the leg space in front of the
rear seat but what was written originally in col. 6 has been over-written by
inserting words describing meaningless facts on top of the words originally
written and in continuation of them. In Col. 5 the weight of the bundle is
given as 35 seers and below it weights of four other bundles are mentioned.
They are 35 seers, 26 seers, 18 seers and 6 seers. The weight of the first
bundle was excluded from the bracket in which the weights of the first three
bundles were included. Then by introducing another bracket, the first bundle
was included within it. Against the bracket it is stated in col. 6 that the
bundles were found in the luggage boot. The bundle weighing 6 seers is not
included in the bracket. Against it,there was some other remark in col. 6 which
has been clumsily erased and in its place it isstated "In the leg space in
front of front seat." Again, in col. 8 wherever the appellant's name
appears there appears to have been something else originally which was erased
and his name written there subsequently. A bare look at the document shows that
it has been materially altered and is, therefore, not a kind of material on
which reliance can be placed. It is only with the aid of the confession that it
can be accepted as incriminating the appellant. For, even the direct evidence
of witnesses was not regarded by the High Court as worthy of credence, unaided
by the confession.
It is indeed the prosecution case that one
bundle of ganja was found in the leg space in front of the front seat.
Bearing in mind the fact that there were six
persons in the car at the time and that the luggage boot in which the bundles
were kept could be opened not merely with the keys which were recovered from
the appellant but also with the keys which were recovered from the driver it is
not possible to say, 761 though the driver has been acquitted, that the
appellant was in exclusive possession of the ganja which was found in the car
except with the aid of the confessional statement, Ex.
3. It follows, therefore, that the
appellant's conviction could be maintained only if, we hold that the
confessional statement is admissible in evidence.
Mr. Chari besides objecting to the
admissibility of the confessional statement relying on s. 25 of the Evidence
Act also contends that statement is rendered inadmissible by the provisions of
s. 162, Code of Criminal Procedure inasmuch as it was recorded by R. R. P.
Sinha, Inspector of Excise while .he was investigating into an excise offence.
under Ch. XIV of the Code of Criminal Procedure.
Section 25 of the Evidence Act reads thus:
"No confession made to a police officer shall be proved as against a
person accused of any offence." Undoubtedly the Inspector R. R. P. Sinha
is an Excise Officer and not a police officer in the sense that he does not
belong to the police force or the police establishment.
It has, however, been held in a large number
of cases, including the one decided by this court, The State of Punjab v.
Barkat Ram (1), that the words "Police' Officer" to be found in s. 25
of the Evidence Act are not to be construed in a narrow way but have to be
construed in a wide and popular sense. Those words, according to this Court,
are however not to be construed in so wide a sense as to include persons on
whom only some of the powers exercised by the police are conferred. This Court
was there concerned with the question whether a Customs Officer can be regarded
as a Police Officer and consequently whether a confession made to such an
officer is hit by the provisions of s. 25 of the Evidence Act. In the (1)
[1962] 3 S. C. R. 338.
762 majority judgment Raghubar Dayal J., has
observed :
"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 offender." (p. 279).
After pointing out that Customs Officers,
when they act under the Sea Customs Act for the prevention of smuggling of
goods, also act judicially inasmuch as they are entitled to confiscate the
goods and levy penalties on the person found smuggling, he said that the mere
fact that 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 sufficient for holding them to be police officers
within the meaning of s. 25 of the Evidence Act because the powers of search
etc., conferred on the former are of a limited character and have a limited
object of safeguarding the revenues of the State.
The majority, however expressed no 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. 14 of the Code of
Criminal Procedure are conferred are police officers or not for the purpose of
s. 25 of the Evidence Act. The question whether an Excise Officer is a Police
Officer was thus left open by them.
It is precisely this question which falls for
consideration in the present appeal. For, under s.78(3) of the Bihar and Orissa
Excise Act, 1915 (2 of 1915) an Excise Officer empowered under s, 77, sub-s.
(2) of that Act shall, for the purpose of 763 s.156 of the Code of Criminal
Procedure be deemed to be an officer in charge of a police station with respect
to the area to which his appointment as an Excise Officer extends.
Sub-section (1) of s. 77 empowers the
Collector of Excise to investigate without the order of a Magistrate any
offence punishable under the Excise Act committed within the limits of his
jurisdiction. Sub-section (2) of that section provides that any other Excise
Officer specially empowered in this behalf by the State Government I in respect
of all or any specified class of offenses punishable under the Excise Act may,
without the order of a Magistrate, investigate any such offence which a court
having jurisdiction within the local area to which such officer is appointed
would have power to inquire into or try under the aforesaid provisions. By
virtue of these provisions the Lieutenant Governor of Bihar and Orissa by
Notification No.
470-F dated January 15, 1919 has specially
empowered Inspectors of Excise and Sub-Inspectors of Excise to investigate any
offence punishable under the Act. It is not disputed before us that this
notification is still in force.
By virtue of the provisions of s. 92 of the
Act it shall have effect as if enacted in the Act. It would thus follow that an
Excise Inspector or Sub Inspector in the State of Bihar shall be deemed to be
an officer in charge of a police station with respect to the area to which he
is appointed and is in that capacity entitled to investigate any offence under
the Excise Act within that area without the order of a Magistrate. Thus he can
exercise all the powers which an officer in charge of a police station can exercise
under Ch. XIV 'of the Code of Criminal Procedure, He can investigate into
offenses, record statements of the persons questioned by him, make searches,
seize any articles connected with an offence under the Excise Act, arrest an
accused person, grant him bail, send him up for trial before a Magistrate, file
a charge sheet and so on. Thus his position in so far as offenses under the
Excise Act 764 committed within the area to which his appointment extends are
concerned is no different from that of an officer in charge of a police
station. As regards these offenses not only is he charged with the duty of
preventing their commission but also with their detection and is for these
purposes empowered to act in all respects as an officer in charge of a police
station. No doubt unlike an officer in charge of a police station he is not
charged with the duty of the maintenance of law and order nor can he exercise
the powers of such officer with respect to offenses under the general law or
under any other special laws. But all the same, in so far as offenses under the
Excise Act are concerned, there is no distinction whatsoever in the nature of
the powers he exercises and those which a police officer exercises in relation
to offenses which it is his duty to prevent and bring to light. It would be
logical, therefore, to hold that a confession recorded by him during an
investigation into an excise offence cannot reasonably be regarded as anything
different from a confession to a police officer. For, in conducting the
investigation he exercises the powers of a police officer and the act itself
deems him to be a police officer, even though he does not belong to the police
force constituted under the Police Act. It has been held by this court that the
expression "'Police Officer" in s. 25 of the Evidence Act is not
confined to persons who are members of the regularly constituted police force.
The position of an Excise Officer empowered under s. 77(2) of the Bihar and
Orissa Excise Act is not analogous to that of a Customs Officer for two
reasons. One is that the Excise Officer does not exercise any judicial powers
just as the Customs Officer does under the Sea Customs Act, 1878.
Secondly, the Customs Officer is not deemed
to be an officer in charge of a police station and therefore can exercise no
powers under the Code of Criminal Procedure and certainly not those of an
officer in charge of a police station. No doubt, he too has the 765 power to
make a search, to seize articles suspected to have been smuggled and arrest
persons suspected of having committed an offence under the Sea Customs Act. But
that is all. Though he can make an enquiry, he has no power to investigate into
an offence under s. 156 of the Code of Criminal Procedure. Whatever powers he
exercises are expressly set out in the Sea Customs Act. Though some of those
set out in ch. XVII may be analogous to those of a Police Officer under the
Code of Criminal Procedure they are not identical with those of a police
officer and are not derived from or by reference to the Code. In regard to
certain matters, he does not possess powers even analogous to those of a Police
Officer. Thus he is not entitled to submit a report to a Magistrate under s.
190 of the Code of Criminal Procedure with a view that cognizance of the
offence be taken by the Magistrate. Section 187(A) of the Sea Customs Act
specially provides that cognizance of an offence under the Sea Customs Act can
be taken only upon a complaint in writing made by the Customs Officer or other
officer of the customs not below the rank of an -Assistant Collector of Customs
authorized in this behalf by the Chief Customs Officer.
It may well be that a statute confers powers
and imposed duties on a public servant, some of which are analogous to those of
a police officer. But by reason of the nature of other duties which he is
required to perform be may be exercising various other powers also. It is
argued on behalf of the State that where such is the case the mere conferral of
some only of the powers of a police officer on such a person would not make him
a police officer and, therefore, what must be borne in mind is the sum total of
the powers which he enjoys by virtue of his office as also the dominant purpose
for which he is appointed. The contention thus is that when an officer has to
perform a wide range of duties and 766 exercise correspondingly a wide range of
powers, the mere fact that some of the powers which the statute confers upon
him are analogous to or even identical with those of a police officer would not
make him a police officer and, therefore, if such an officer records a
confession it would not be hit by s. 25 of the Evidence Act, In our judgment
what is pertinent to bear in mind for the purpose of determining as to who can
be regarded a "police officer" for the purpose of this provision is
not the totality of the powers which an officer enjoys but the kind of powers
which the law enables him to exercise. The test for determining whether such a
person is a "police officer" for the purpose of s. 25 of the Evidence
Act would, in our judgment, be whether the powers of a police officer which are
conferred on him or which are exercisable by him because he is deemed to be an
officer in charge of a police station establish a direct or substantial
relationship with the prohibition enacted by s. 25, that is, the recording of a
confession.
In our words, the test would be whether the
powers are such as would tend to facilitate the obtaining by him of a confession
from a suspect or a delinquent. If they do, then it is unnecessary to consider
the dominant purpose for which he is appointed or the question as to what other
powers he enjoys. These questions may perhaps be relevant for consideration
where the powers of a police officer conferred upon him are of a very limited
character and are not by themselves sufficient to facilitate the obtaining by
him of a confession.
As an instance of a law which confers on an
officer powers of a limited character which are analogous to those conferred
upon police officers, we may refer to the Sea Customs Act itself. This Act
confers a wide -range of powers on Customs Officers. But powers analogous to
those of a police officer are to be found only in ch. XVII which deals 767 with
"'procedure relating to offenses, appeals etc." Under s. 169 a Customs
officer is, empowered to search on reasonable suspicion any vessel in any port
in India or any person who has landed from any vessel. This power, however, is
subject to the right given by s. 170 to that person to require the Customs
officer to take him before his search to a Magistrate or Customs Collector.
Where such person exercises that right the question. as to whether he should be
searched or not would depend upon the Magistrate or the Customs Collector being
satisfied about the existence of reasonable grounds for the search. No such
restriction is imposed upon a police officer making a search under s. 102,
sub-s. (3) of the Code. Again, whereas an officer in charge of a police station
can search any place in connection with a cognizable offence under investigation
after recording in writing his reasons.. a Customs Officer cannot search any
place on land .where a dutiable or prohibited goods or documents relating to
such goods are secreted without first obtaining a search warrant from a
Magistrate. Under s. 173 of the Act a Customs Officer has the power to arrest a
person against whom reasonable suspicion exists that he has been guilty of an
offence under the Act. But he is required to produce that person forthwith
before the nearest Magistrate and it will be for the Magistrate either to
commit that person to jail custody or release him on bail at his discretion. An
officer in charge of a police station has, however, the power, to release an
arrested person on his furnishing bail and is not required for the purpose to
obtain an order of a Magistrate. It is only where he does not release him on
bail that he must produce him before a Magistrate within 24 hours of arrest. We
may add that the existence of the power to grant bail in an officer in charge
of a police station itself enables him to exercise authority over the arrested
person and influence his conduct if he so wishes. Finally, a 768 Customs
Officer has power to seize anything liable to confiscation under the Act. But
where he has seized anything he is liable, on demand of the person in charge of
the thing so seized, to give him a statement in writing of the reasons for such
seizure. Similarly where he, has arrested a person, he is bound to give to that
person, if that person so demands, a statement' in writing disclosing the
reasons for the arrest. No such duty is cast upon a police officer seizing an
article or arresting a person.
Chapter XVII deals with no other powers which
could be said to be analogous to those of a police officer. The whole of that
chapter shows that the other powers conferred upon a Customs Officer are such,
as are necessary 'for preventing the commission of offenses under the Sea
Customs Act and matters incidental thereto. It is worthy of note that the
powers of investigation into offenses which a police officer enjoys are not
conferred upon a Customs Officer. It is the possession of these powers which
enables police officers and those who are deemed to be police officers to
exercise a kind of authority over the per-sons arrested which facilitate the
obtaining from them statements which may be incriminating to the persons making
them. The law allows the police officer to obtain such statements with a view
to facilitate the investigation of the offenses. But it renders them
inadmissible in evidence for the obvious reason that a suspicion about
voluntariness would attach to them .
It is the power of investigation which
establishes a direct relationship with the prohibition enacted in s. 25.
Therefore, where such a power is conferred
upon an officer, the mere fact that he possesses some other powers under
another law would not make him any the less A police officer for the purposes
of s. 25.
In this connection it would be pertinent to
bear in mind the object with which the provisions of s. 25 of the Evidence Act
were enacted. For this 769 purpose we can do not better than quote the
following passage from the judgment of Mahmood J. in Queen Empress v. Babulal
(1).
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 away from
the police officers the advantage of proving such extorted confessions during
the trial of accused persons." This provision was thus enacted to
eliminate from consideration confessions made to an officer who, by virtue of
his position, could extort by force, torture or inducement a confession. An
Excise Officer acting under s. 78 (3) would be in the same position as Officer
in charge of a police station making an investigation under Ch. XIV of the Code
of Criminal Procedure. He would likewise have the same opportunity of extorting
a confession from a suspect.
It is, therefore, difficult to draw a
rational distinction between a confession recorded by a Police Officer strictly
so called and one recorded by an Excise Officer who is deemed to be a Police
Officer.
A large number of decisions were cited at the
bar bearing on the question as to whether the expression "Police
Officer" used in s. 25 of the Evidence Act is restricted to the members of
the force or has a wider meaning. It is unnecessary to refer to those decisions
because in Barkat Ram's case (2), it has clearly been held that the expression
(1) (1884) I.L.R. 6 All. 509, 523.
(2) [1962] 3 S. C. R. 338.
770 is not to be construed in a narrow way.
We may, however, refer to certain decisions' in which the question whether an
Excise Officer is a Police officer within the meaning of that section has been
specifically considered.
There is, however, no unanimity in those
decisions. Thus in Ah Foong v. Emperor' (1), Harbhanjan Sao v. Emperor (2),
Matilall Kalwar v. Emperor (3), it was held that an Excise Officer is not a
Police Officer. A contrary view was, however, taken in .Ibrahim Ahmed v. King
Emperor (4). The view taken in that case was affirmed by a Full Bench in Ameen
Sharif v. Emperor (5). The view taken in the Full Bench case as well as in
Ibrahim Ahmed's case (4), follows that of the Bombay High Court in Nanoo Sheikh
Ahmed v. Emperor (6). A similar view was also taken in Public Prosecutor v. C.
Paramasivam (7), Ibrahim v. Emperor (8).
In Radha Kishun Marwari v. King Emperor (9),
it was, however, held that an Excise Officer functioning under the Bihar Excise
Act is not a Police Officer and that a statement made to him is not within S.
25 of the Evidence Act. We need not, however, consider the last mentioned
decision because there the learned judges have construed the expression
"Police Officer" in S. 25 of the Evidence Act to mean only an officer
of the police force. That, however, is not in accord with what this Court has
held in Barkat Ram's case We will briefly examine the other decisions.
In Ah Foong's case (1), all that Sanderson
C.J., who delivered the leading judgment has said was that he did not think
that Excise Officers in the case before the court could be said to be Police
Officers and that the statements made by the accused to them were not
admissible by reason of the fact that they were made to Police Officers. There
is thus no discussion of the question at all. Apart from that the offence
concerned in that case was one under the Opium Actand an Excise Officer (1)
(1918) I.L.R 46 Cal. 41 1.(2) (1927) I.L.R. 54 Cal. 601.
(3) A.I.R. 1932 Cal 122.(4) (1931) I.L R. 58
Cal. 1260.
(5) (1934) I.L.R. 61 Cal 607.(6) (1926)
A.L.R. 51 Bom. 78 (7) A.I.R. 1953. Mad 917.(8) A.T.R. 1944 Lah 57.
(9) (1932) I. L. R. 12 Pat 46 F.B.(10) [1962]
3 S.C. R. 338.
771 acting under that Act was not conferred
with the powers of an officer in charge of a police station under Ch. XIV of
the Code of Criminal Procedure.
Harbhanjan Sao's case (1), merely followed
this case as also did Matilal's case (2). Ibrahim Ahmed's case (3), was a case
which arose after the amendment of the Opium Act and it followed the view taken
in Nanoo Sheikh Ahmed's case (4).
In Nanoo Sheikh Ahmed's Case (4), a Full
Bench of the Bombay High Court examined a large number of decisions commencing
from The Queen v. Hurribole Chunder Ghose (5). Marten C. J.
quoted with approval the following two
passages from that case :
"Its humane object is to prevent
confessions obtained from accused persons through any undue influence, being
received as evidence against them .. I consider that the term "police
officer' should be read not in any strict technical sense, but according to its
more comprehensive and popular meaning." (p. 215).
" and I think it better in construing a
section such as the 25th which was intended as a wholesome protection to the
accused to construe it in its widest and most popular signification." (p.
216).
The Full Bench pointed out that in Ah Foong's
case (6), there was hardly any discussion of the question and further pointed
out that Excise Officers had limited power in Bengal under the Opium Act of
1878 whereas in Bombay they exercised the powers of investigation and so on.
The learned Chief Justice then observed :
' in my judgment, we should hold that as the
Bombay Legislature has deliberately (1) (1927) I.L.R. 55 Cal 601.
is) (1931) I.L.R 51 Cal 1260.
(5) (1876) I.L R. 1 Cal. 207.
(2) A T.R. 1932 Cal. 122.
(4) (1926) I.L. R. 51 Bom. 78.
(6) (1918) I.L R. 46 Cal. 41 1.
772 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 section 25, and that,
accordingly, any confession made to such an officer in the course of his
investigation under the Abkari Act or the Criminal Procedure Code is
inadmissible in evidence." (p. 94) According to Shah J. s. 25 of the Indian
Evidence Act embodies an important rule, which is to be given effect to as a
matter of substance and not as a mere matter of form and that it is a perfectly
fair interpretation of s. 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, if
for the investigation of offenses under a particular Act he is empowered to
exercise the powers of an officer in charge of a police station for the
investigation of a cognizable offence. Fawcett J. pointed out that since the
Legislature did not amend the Act even after the decision in Hurribole's case
(1), where the expression police officer" was given a wide meaning the
courts would be justified in adhering to it. Kemp J. was of the opinion that
though the term "police Officer" should not be construed strictly it
was not safe to lay down generally that the term should not be construed in its
popular and most comprehensive sense. All the same he held that an Excise Officer
acting under the Abkari Act of Bombay must be deemed to be a Police Officer
inasmuch as he had the power of investigating into excise offenses, Mirza J.
concurred with this view but did not state any reasons.
In Ameen Sharif's case (2) the following question
was referred to a Full Bench : "Is an excise (1) (1876) I.L.R. 1 Cal. 207.
(2) (1934) I.L.R. 61 Cal 607.
773 officer who, in the conduct of
investigation of an offence against the excise, exercises the powers conferred
by the Code of Criminal Procedure upon an officer in charge of a police-station
for the investigation of a cogenizable offence, a police officer within the
meaning of section 25 of the Indian Evidence Act ?" That case arose under
the Bengal Excise Act and Mukerji J. who delivered the leading judgment, after
pointing out that the powers .of an Excise Officer acting under the Opium Act
(I of 1878) prior to its amendment by Opium (Bengal Amendment) Act, (Bengel Act
V of 1933) are not quite the same as those of an Excise Officer acting under
the Bengal Excise Act (Bengal Act V of 1909) observed that during arguments a
much broader question had been submitted for the decision of the Full Bench as
arising upon the order of reference taken along with the facts of the cases in
which the reference was made. The learned judge then said that to answer this
question one has necessarily to consider the meaning of the term "Police
Officer" as used in s. 25 of the Evidence Act which, though it may not
rank with 'ancient statutes' in the sense in which that expression is used in
forensic language, great regard ought to be paid, in construing a statute
enacted long ago to the construction which was put upon it by those who lived about
the time or soon after it was made, because the meaning which a particular word
or expression bore in those days may have got mixed up or blurred during the
interval that has elapsed. From that point of view he regarded the decision in
the case of Queen v. Hurribole Chunder Ghose (1), one of very great importance.
We have already referred to that decision but we have not proceeded upon the
view that while construing the relevant provision we should apply the principle
followed in construing an ancient statute. The Evidence Act is of the year 1872
and in Senior Electric Inspector v. Laxminarayan Chopra (2), this court while
considering the question (1) (1876) I.L.R. Cal. 207.
(2) [1962] 3 S. C. R. 146, 774 as to the
meaning to be given to the expression "Telegraph line" occurring in
s. 3, sub-s. (4) of the Telegraph Act, 1885, pointed out that the maxim
contemporanea exposition as laid down by Coke was applied in construing ancient
statutes but not in interpreting Acts which are comparatively modern.
Indeed, the rule of construction which ought
to be applied to a statute either ancient or modern is the same and that is to
ascertain the intention -of the Legislature. We, however, agree that it would
be inappropriate to attach wide meaning to the words used by the legislature in
a law made in remote ages when society was static and that the position would
be different with respect to words used in a law made in a modern progressive
society in which the frontiers of knowledge are fast expanding. The Evidence Act
was 'enacted at a time when already a revolution in men's ideas had set in and
considerable scientific advances had already been made. The maxim laid down by
Coke cannot therefore properly be applied for construing the language used by
the Legislature in s. 25 of the Evidence Act. The learned judge did not,
however, rest his judgment solely upon this ground.
Upon a consideration of a large number of
decisions of the Indian High Courts, he came to the conclusion that an Excise
Officer exercising the powers of an officer in charge of a police station
within the area to which he is appointed would fall within the expression
"police officer" occurring in s. 25 of the Evidence Act. The learned
judge, there referred to s. 6 of the Police Act and some other provisions
thereof and pointed out:
"The police, therefore, were instruments
for the prevention and detection of crimes with the concomitant powers of
apprehension and detention of offenders in order to their being brought to
justice, such powers varying according to the position or status of the
particular 775 member of the body. In other words, "police officers"
were officers whose duty was to prevent and detect crimes. Apart from any
technical meaning which the term "police officer," occurring under
any particular Act, might bear, the more comprehensive and popular meaning of
the term was what has just been stated. In the Oxford Dictionary, two of the
senses in which the word "police" is used are said to be the
following '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 maintains 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.' All these
duties which police officers discharge are but different phases of and means
for carrying out the two more comprehensive duties, namely, of prevention of
crimes and detection of crimes. It is true that it has nowhere been defined
what minimum aggregation of functions will constitute a person a police officer
within the meaning of section 25 of the Act, but the more comprehensive and
popular signification of the term -'police officer", such as it was in
1861, is not difficult to appreciate from what was said by the legislature in
the Police Act (V of 1861).
Powers and duties of police officers under
Act V of 1861 or under Act XXV of 1861 or under any other statute, or the
different powers which different grades of police officers leave under any
particular enactment, are mere matters of details worked out in order to enable
the entire 776 body, taken as a whole, to carry out the two essential duties
entrusted to them, namely, the prevention and detection of crimes. These, two
features of the duties which the police have to discharge and especially that of
detection of offenders, which involves the duty of holding investigations have
always been regarded as marking them out for special treatment in so far as
confessions made to them are concerned." (pp. 623-4).
We agree with the learned judge that by and large
it is the duty of detection of offenses and of bringing offenders to justice,
which requires an investigation to be made, that differentiates police officers
from private individuals or from other agencies of State. Being concerned with
the investigation, there is naturally a desire on the part of a police officer
to collect as much evidence as possible against a suspected offender
apprehended by him and in his zeal to do so he is apt to take recourse to an
easy means, that is, of obtaining a confession by using his position and his
power over the person apprehended by him. We, therefore, agree with the
observations of the learned judge at p.
629 which are to the following effect "I
can find no reason why in 1872 in respect of an offence under the then Opium
Act (XIII of 1857) the legislature could have thought of excluding a confession
made to a member of the regular police force but not a confession made to an
abkari or excise officer, if such officer was, in fact, holding an
investigation into an offence and was exercising such powers as a police
officer is competent to exercise.
The fact is that, in those days, he had no
such powers and so could not exercise them.
When, in course of time, he came to have
those powers and was able to exercise them in respect of offenses which 777
were not known to law in those day,% and only subsequently came to be regarded
as such, such an officer, when so acting, is an officer for whom the term
"police officer" used in section 25 of the Evidence Act was
meant." The learned judge then considered two points which were raised
before the Full Bench as militating against the view expressed by him-one being
that there is a distinction between "'police officers" and
"revenue officers" and the other that in s. 25 of the Evidence Act in
respect of an officer of the police there is a personal disability implied
irrespective of the question whether he is holding an investigation or not,
while no such disability can be said to have been intended in the case of an
Excise Officer.
So far as the first of these points was
concerned the learned judge agreed with the answer given by Marten C. J.
in the case of Nanoo Sheikh Ahmed (1), at p.
95 of the report to, meet a similar point. As regards the second point he said
that, whereas police officers, by reason of section 22 of Act V of 1961, are to
be always 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.
We are in complete agreement with this view
Mallik and Ghose JJ agreed with Mukherji J. But Jack J. did not accept
Hurribole's case as an authority for holding that an Excise Officer is a Police
Officer merely because he has certain powers of a police officer. His
conclusion, however, was that the application of s. 25 of the Evidence Act, in
the case of an excise officer should be limited to a confession made to him in
the course of an investigation of an offence by virtue of section 74(3) (1)
(1926) I.L.R. 51 Bom. 78. (2)(1876) I.L.R. 1 Cal, 207, 778 of the Excise Act,
which gives him the status of a police officer for the purposes of the
investigation. In other words, what he means is that though an Excise Officer
cannot be regarded as a Police officer, still, when he exercises certain
functions under s. 74(3) of the Excise Act he will be acting as a Police
Officer and, therefore, a confession made to him would be hit by s. 25 of the
Evidence Act.
Costello J. however, differed from the other
learned judges and based himself largely upon the decision in Radha Kishan
Marwari's case (1) and in conclusion he observed :
"In my opinion, endless difficulties
inevitably arise when judges endeavor to extend the plain provisions of any
statutory enactment. Where the language of an enactment is unambiguous it
should be interpreted strictly and, in a case such as the present, it is, to my
mind, in the highest degree unsound, and indeed dangerous for the court, by
subtlety of argument or by resorting to other statutes to extend provisions
such as that contained in section 25. I am clearly and definitely of opinion
that when the legislature used the expression 'police officer' they meant a
police officer in the sense in which that expression is generally understood by
the populace at large and in no other sense at all." (p. 648).
The learned judge apparently overlooked the
fact that in the popular sense Excise Officers are also regarded as Police
Officers, being referred to as "the Excise Police." Thus a
consideration of the decisions of the High Courts in India shows that the
preponderance of judicial opinion is in consonance with the view which we have
already expressed.
There is one more reason also why the
confession made to an Excise Sub-Inspector must be (1) (1932) I.L.R. 12 Pat,
46. F.B. 779 excluded, that is, it is a statement made during the course of
investigation to a person who exercises the powers of an officer in charge of a
police station. Such statement is excluded from evidence by s. 162 of the Code
of Criminal Procedure except for the purpose of contradiction.
Therefore, both by s. 25 of the Evidence Act
as well as by s. 162, Cr.p.c. the confession of the appellant is inadmissible
in evidence. If the confession goes, then obviously the conviction of the
appellant cannot be sustained. Accordingly we allow the appeal' and set aside
the conviction and sentences passed on the appellant.
RAGHUBAR DAYAL J.-I agree that the appeal be
allowed and the conviction and the sentences passed on the appellant be set
aside, but for different reasons which I proceed to state :
I do not consider the confession to be
inadmissible in evidence as being made to a police officer. The admissibility
of the alleged confession of the appellant depends on the question whether the
Excise Inspector comes within the expression 'police officer' in s. 25 of the Indian
Evidence Act. I am of opinion that he does not.
In State of Punjab v. Barkat Ram (1), this
Court held that a customs officer is not a police officer within the meaning of
s. 25 of the Evidence Act. The view was based on the following considerations :
(1) The powers which a police officer enjoys
are Rowers for the effective prevention and detection of crime in order to
maintain law and order while a customs officer 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.
(1) [1962] 3 S.C.R. 338.
780 (2) The mere fact that customs officers
possess certain powers similar to those of police officers in regard to
detection of infractions of customs laws, is not a sufficient ground for
holding them to be police officers within the meaning of s. 25 of the Evidence
Act, even though the words "police officer' are not to be construed in a
narrow way but have to be construed in a wide and popular sense, as remarked in
Queen v. Hurribole (1). The expression 'police officer' is not of such wide
meaning as to include persons en whom certain police powers arc incidentally
conferred.
(3) A confession made to any police officer,
whatever be his rank and whatever be the occasion for making it, is
inadmissible in evidence, but a confession made to a customs officer when. he
be not discharging any such duty which corresponds to the duty of a police
officer, will be inadmissible even if the other view be correct that he was a
police officer when exercising such powers.
(4) The Sea Customs Act itself refers to
(police officer' in contra-distinction to 'customs officer'.
(5) Customs Officers act judicially when they
act under the Sea Customs Act to prevent smuggling of goods and imposing
confiscation and penalties, and proceedings before them are
judicial-proccedings for the purpose of ss. 193 and 228 I.
P. C.
A scrutiny of the various provisions of the
Bihar and Orissa Excise Act,, 1915 (Act II of 1915), hereinafter called the
Act, leads to a similar conclusion with respect, to Excise Officers on whom
powers of investigating offenses under the Act have been conferred. It will be
useful to quote the relevant provisions of the Act and Government Orders which
lead to such a conclusion.
(1) (1876) I.L.R. 1 Cal. 207, 781 .lm15 The
preamble of the Act reads "Whereas it is expedient to amend and reenact
the law in the Province of Bihar (and Orissa) relating to the import, export,
transport, manufacture, possession, and sale of certain kinds of liquor and
intoxicating drugs;
According to cl. (8) of s. 2, 'Excise
Officer' means the Collector or any officer or other person appointed or
invested with powers under s. 7. The relevant portion of s. 7 reads :
"(1) The administration of the Excise
Department and the collection of the excise revenue within a district shall
ordinarily be under the charge of the Collector.
(2) The State Government may by notification
a pplicable to the whole of the State or to any specified local area,(a)
appoint an officer who shall, subject to such control as the State Government
may direct, have the control of the administration of the Excise Department and
the collection of the excise revenue;
x x x x X" Excise Commissioners arc
appointed under s. 7(2)(a). Among the other officers appointed under the other
clauses of subs (2) of s. 7 of the Act arc Superintendents of Excise,
Inspectors of Excise and Sub-Inspectors of Excise. The Superintendent of Excise
exercises certain specified powers of the Collector to whom be is subordinate.
782 Chapter VIII deals with offenses and
penalties. Section 63 provides for penalty for contempt of Court and reads :
"'Every proceeding under this Act before
a Collector, or before any officer, of such rank as the, State Government may,
by notification prescribe, who is exercising powers of a Collector, shall be
deemed to be a 'judicial proceeding' within the meaning of s: 228 of the Indian
Penal Code (45 of 1860)." Officers who may exercise the powers of a
Collector are Superintendents of Excise, Sub-Divisional Officers and Deputy Collectors.
Section 68 provides that the Collector or any
Excise Officer specially empowered by the State Government in that behalf, not
below the rank of Deputy Collector or Superintendent of Excise, may compound
offenses and release property liable to confiscation in certain circumstances
on payment to the Collector or such Excise Officer of a sum of money not
exceeding Rs. 500/Section 69 empowers the Excise Commissioner, Collector or any
Excise Officer not below such rank as the State Government may, by
notification, prescribe and subject to any restrictions prescribed by the state
Government by rule made under s. 89, to enter and inspect any place of
manufacture or storage or sale of any toxicant by a licensed manufacturer and
to test and seize measures and to examine accounts and registers or a place
where an intoxicant is kept for sale by such licensed person and to seize them
if he had reasons to believe them to be false. Excise Officers not below the
rank of a Sub-Inspector have been empowered under s-69, under Notification No.
470-F dated January 15, 1919, of the Financial Department of the 783 Government
of Bihar and Orissa, and we understand that this Notification is still in
force.
Section 70 authorizes any officer of the
Excise, Police, Salt, Customs or Land Revenue Department or any person
empowered by the State Government in that behalf by notification, to arrest
without warrant any person found committing offenses punishable under ss.47,
49, 55 or 56 of the Act and to seize and detain any article which he has reason
to believe to be liable for confiscation under the Act or any other law for the
time being in force relating to the excise-revenue and to detain and search any
person upon whom, and any vessel, raft, vehicle etc., upon which, he may have
reasonable cause to suspect any such article to be.
Sections 71 and 72 provide for the Collector
or any Magistrate empowered to try offenses punishable under the Act to issue
warrant for the arrest of any person whom he has reason to believe to have
committed or abetted any offence punishable under ss.47, 49, 55 or 56 and to
issue a warrant for the search of any intoxicant, material, still, utensil etc.
in respect of which the alleged offence has been or is likely-to be committed.
Section 73 empowers the Collector or any Sub Divisional
Magistrate or Magistrate of the first class to arrest or direct the arrest in
his presence or to search or direct a search to be made in his presence when he
be competent to issue a warrant of arrest or a search warrant. Section 74
empowers an Excise Officer not below such rank as the State Government may, by
notification, prescribe, to arrest certain offenders when such Officer has
reason to believe that an offence had been committed or was being committed and
when the obtaining of a search warrant might afford the offender an opportunity
to escape or conceal evidence of the offence. The State Government has
prescribed that Excise Officers not below the rank of a Sub-Inspector can
exercise the power under this section.
784 Section 77 is important for our purpose
and is set out in full below:
"'(1) A Collector may, without the order
of a Magistrate, investigate any offence punishable under this Act which a
Court having jurisdiction over the local area within th e limits of the
Collector's jurisdiction would have power to enquire into or try under the
provisions of Chapter XV of the Code of Criminal Procedure, 1898, relating to
the place of inquiry or trial.
(2) Any other Excise Officer specially empowered
in this behalf by the State Government in respect of all or any specified class
of offenses punishable under this Act may, without the order of a Magistrate,
investigate any such offence which a Court having jurisdiction over the local
area to which such officer is appointed would have power to inquire into or try
under the aforesaid provisions." Under sub-s. (2) of s. 77, the State
Government has specially empowered Inspectors of Excise and Sub Inspectors of
Excise to investigate any offence punishable under the Act.
Section 78 reads :
"(1) Any Collector, or any Excise
Officer empowered under section 77, sub-section (2), may after recording in
writing his reason for suspecting the commission of an offence which he is
empowered to investigate, exercise(a) any of the powers conferred upon a Police
Officer making an investigation, or upon an officer in charge of a police-station,
785 by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898),
and' (b) as regards offenses punishable under section 47, section 49, section
55, or section 56 of this Act-any of the powers conferred upon Police Officers
in respect of cognizable offenses by clause first of sub-section (1) of section
54 and by section 56 of the said Code; and the said portions of the said Code
shall apply accordingly, subject to any restrictions or modifications
prescribed by the State Government by rule made under section 89, clause (o).
(2) Subject to any restrictions prescribed by
the State Government a Collector or an Excise Officer empowered under section
77, sub-section (2), may, without reference to a Magistrate, and for reasons to
be recorded by him in writing, stop further proceedings against any person
concerned, or supposed to be concerned, in any offence which he or any Excise
Officer subordinate to him has investigated.
(3) For the purposes of section 156 of the
Code of Criminal Procedure, 1898 (5 of 1898) the area to which an Excise
Officer empowered under section 77, sub-section (2), is appointed shall be
deemed to be a police station, and such officer shall be deemed to be the
officer in charge of such station.
(4) As soon as an investigation by a
Collector or by an Excise Officer empowered under section 77, sub-section (2),
has been completed, if it appears that there is sufficient evidence to justify
the forwarding of the accused to a Magistrate, the investigating officer,
unless he 786 proceeds under sub-section (2) of this section or under section
68 of this Act, shall submit a report [which shall, for the purposes of section
190 of the Code of Criminal Procedure, 1898 (5 of 1898) be deemed to be a
Police report] to a Magistrate having jurisdiction to inquire into or try the
case and empowered to take cognizance of offenses on Police reports."
Section 79 deals with security and bail and empowers any Excise Officer not
below such rank as the State Government may, by notification, prescribe, to
release persons on bail or on their own bond. The State Government has
prescribed that any Excise Officer not below the rank of Sub Inspector can
exercise this power.
Section. 80 provides that articles seized and
persons arrested under the warrant of the Collector shall be produced before
the Collector and that articles seized and persons arrested under the Act by
persons or officers not having authority to release arrested persons on bail on
their own bond, shall be produced before or forwarded to the Collector or an
Excise Officer empowered under s. 77 (2) to investigate the offence, or to the
nearest Excise Officer who has authority to release arrested persons on bail or
on their own bond, or the officer in charge of the nearest police station,
whoever be nearer.
Section 82 reads :
"When any Excise Officer below the rank
of Collector, or any officer in charge of a police station, makes, or receives
information of, any arrest, seizure, or search under this Act, he shall, within
twenty-four hours thereafter, make a full report of all the particulars of the
arrest, seizure, or search, or of the information received to the Collector,
and to the Excise Officer (if any) empowered under section 77, 787 sub-section
(2), within the local limits of whose jurisdiction the arrest, seizure, or
search was made." Section 84 directs that any person arrested for an
offence under the Act shall be informed as soon as may be of the grounds for
such arrest and shall be produced before the nearest Magistrate within a period
of 24 hours of such arrest, excluding the time necessary for the journeys from
the place of arrest to the Court of the Magistrate and no such person shall be
detained in custody beyond such period without the authority of the Magistrate.
Its sub s. (2) reads :
"(2) A Magistrate to whom an accused
person is forwarded under section 167 of the Code of Criminal Procedure, 1898
(5 of 1898), by a Collector or an Excise Officer empowered under section 77,
sub-section (2), may exercise the powers conferred upon a Magistrate by the
said section 167." Section 85 reads :
"(1) Save as in this Act otherwise
expressly provided, the provisions of the Code of Criminal Procedure, 1898 (5
of 1898), relating to arrests, detentions in custody, searches, summonses,
warrants of arrest, search warrants and the production of persons arrested
shall apply so far as may be, to arrests, detentions and searches made,
summonses and warrants issued, and the production of persons arrested under
this Act.
(2) For the purposes of the said provisions
of the said Code, a Collector shall be deemed to be a Court.
(3) Officers to whom a Collector's warrant is
directed or endorsed and officers (other than 788 Collectors) making arrests,
searches or seizures under this Act, shall, for the purposes of the said
provisions of the said Code, be deemed to be Police Officers." Section 89
empowers the State Government to make rules to carry out the objects of the Act
or any other law for the time being in force relating to the excise-revenue.
Section 95 provides that no suit shall lie in
any Civil Court against the Government or any Excise Officer for any act in
good faith done or ordered to be done in pursuance of this Act or of any other
law for the time being in force relating to the excise-revenue.
Section 96 provides for limitations of suits
and prosecutions and reads ",No Civil Court shall try any suit against the
Government in respect of anything done, or alleged to have been done, in
pursuance of this Act, and, except with the previous sanction of the State
Government, no Magistrate shall take cognizance of any charge made against any
Excise Officer under this Act or any other law relating to the excise-revenue
or made against any other person under this Act, unless the suit or prosecution
is instituted within six months after the date of the act complained of."
The provisions of ss. 7, 89, 95 and 96 are sufficient to indicate that the
action of Excise Officers under the Act and under any other law relating to
excise revenue is treated alike. The Act is, therefore, like 789 the Sea
Customs Act, primarily concerned with the collection of the excise-revenue. The
object of the Act according to the preamble, is not to provide for the
prevention and detection of crime but is to provide for conditions on which
liquor and intoxicating drugs can be imported, exported, transported,
manufactured and possessed and sold. Offenses created under the Act are for
contravening provisions in that regard and the power of Excise Officers to make
arrests, searches or seizure or to investigate offenses under the Act is incidental
to the general power to see that the provisions of the Act are observed. The
first consideration for holding Customs Officers not to be police officers
would equally apply to the case of Excise Officers empowered to investigate
offenses.
An Excise Officer too cannot be a police
officer for the purpose of s. 25 of the Evidence Act at all times. He can be a
police officer only when he is discharging the duties of an investigating
officer. In view of consideration No. 2, subject to what is said in s. 85 (2),
the expression 'Police officer' in s. 25 of the Evidence Act cannot embrace
Excise Officers on whom certain powers corresponding to the powers of the
police officers are conferred.
Section 82 draws a distinction between an
officer in charge of a police station and an Excise Officer who is empowered
under s. 77 (2) of the Act, as the former had to give information of any
arrest, seizure or search under the Act which he makes, or about which he
receives information to the Collector and to the Excise Officer empowered under
s. 77 (2) exercising jurisdiction in the area where any of these acts are done,
and so consideration No. 4 is equally applicable in this case.
Excise Officers not below the rank of
Superintendent of Excise and Deputy Collector can 790 compound offenses and
release property liable to confiscation in the exercise of powers conferred
under s.
68. Such a power implies that the culprit
accepts his guilt and is prepared to compound the offence. Ordinarily the
culprit will express such a desire to an Excise Inspector or SubInspector in
the first instance. It appears to me to be incongruous that a confession to
such an Excise Officer be considered to be inadmissible on trial of a suspect
in Court by considering these Excise Officers to be police officers, while the
Act itself allows the superior Excise Officer to compound the offence with the
culprit and discharge him in view of s. 68 and the Government Notification.
Further all proceedings before the Collector or Superintendent of Excise, S. D.
0. and Deputy Collector exercising the powers of the Collector are judicial
proceedings within the meaning of s. 228 1. P. C. Section 85 (3) provides about
the officers who and the circumstances in which they can be deemed to be police
officers for the purposes of the Criminal Procedure Code.
All Officers other than Collectors .who make
arrests., searches or seizures under the Act are to be deemed 'police officers'
for the purpose of the provisions relating to arrests, searches or seizures in the
Criminal Procedure Code. It is therefore clear that the Legislature had in mind
the police ,officers who perform the duties of making arrests, searches, and
seizures, under the Criminal Procedure Code and provided that Excise officers
or other persons authorized under the Act to perform these acts be deemed to be
police officers for these purposes. It is therefore clear that the Legislature
did not contemplate that Excise Officers performing other duties corresponding
to the duties of the regular police officers be deemed police officers merely
on account of their performing those duties. It follows that Excise Officers
when investigating offences under the Act are not to be deemed police officers
for the 791 purposes of the provisions about investigation in the Code of
Criminal Procedure. If the Legislature had intended that officers who
investigate offences under the Act be also deemed to be officers for the
purposes of provisions regarding investigation in the Code of Criminal
Procedure or s. 25 of the Evidence Act or for any other purpose under any other
law, it could have made an express provision in that regard.
It is not suggested for the appellant that a
Collector who is an Excise Officer and on whom the power of investigating
offences under the Act is conferred under s. 77 of the Act is a police officer
within s. 25 of the Evidence Act. Sub s. (3) of s. 85 does not even provide
that he be deemed to be a police officer when he makes arrests, searches or
seizures under the Act. The Act itself therefore contemplates that the
possession of a power to investigate offences under s. 77 and the right under
s. 78 of the Act to exercise any of the powers conferred upon a police officer
making an investigation or upon the officer in charge of a police station by
ss. 160 to 171 of the Code of Criminal Procedure do not make the officer so
empowered a 'police officer'.
Great reliance however is placed on the
provision of sub-s. (3) of s. 78 of the Act for the contention that Inspectors
and Sub-inspectors of Excise are police officers for the purposes of s. 25 of
the Evidence Act. Sub-s. (3) of s. 78 reads:
"'For the purposes of section 156 of the
Code of Criminal' Procedure, 1898 (5 of 1898) the area to which an Excise
Officer empowered under section 17, sub-section (2), is appointed shall be
deemed to be a police-station, and such officer shall be deemed to be the
officer in charge of such station." 792 It is argued that these provisions
definitely provide that the area to which the Excise Officer empowered under s.
77 (2) is appointed is to be deemed a police station and he be deemed to be an
officer in charge of the said police station, and that therefore such an Excise
Officer is a police officer within the meaning of that expression in s. 25 of
the Evidence Act. I do not agree. The area is deemed to be a police station and
he himself is deemed to be a police officer in charge of that police station
for a very limited purpose. He is to be so considered for the purposes of s.
156 of the Code of Criminal Procedure and not for any other purpose.
Now, s. 156 of the Code of Criminal Procedure
reads :
"(1) Any officer in charge of a
police-station may, without the order of -a Magistrate investigate, any
cognizable case which a Court having jurisdiction over the local area within
the limits of such station would have power to enquire into or try under the
provisions of Chapter XV relating to the place of enquiry or trial.
(2) No proceeding of a police-officer in any
such case shall at any stage be called in question on the ground that the case
was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section
190 may order such an investigation as abovementioned." What sub-s. (1) of
s. 156 of the Code provides is already provided under sub-s. (2) of s. 77 of
the Act which empowers such officers to investigate, without the order of a
Magistrate, any such offence which a Court having jurisdiction over the local
area 793 to which such officer is appointed would have the power to enquire
into or try under the aforesaid provisions. Sub-s. (1) of S. 156 of the Code
does nothing more than authorize an officer in charge of a police station,
without the order of a Magistrate, to investigate any cognizable offence which
the Court having jurisdiction over the local area or within the limits of the
police station would have the power to inquire into or try under the provisions
of Chapter XV relating to the place of enquiry or trial. The effect of sub-s.
(3) of S. 78 can only be that in view of the provisions of sub-SS. (2) &
(3) of S. 156 of the Code, no proceeding by the Excise Officer so empowered
under S. 77 (2) shall, at any stage, be called in question on the ground that
he was not empowered to investigate that offence and that any Magistrate
empowered under S. 190 Cr. P. C. can order such an ]Excise Officer to
investigate an offence under the Act. In this view, the provisions of S. 78 (3)
are of no help in concluding that the Excise Officer empowered under s. 77 (2)
is a police officer for all the purposes of the investigation under the Code of
Criminal Procedure, or for the purpose of S. 25 of the Evidence Act.
Further, the limited nature of the effect of
sub. s. (3) of s. 78 is also apparent when it is considered that sub-s. (1) of
S. 78 provides that an Excise Officer empowered under S. 77 (2) can exercise
any of the powers conferred upon a police officer making an investigation or by
an officer in charge of a police station by Ss. 160 to 171 of the Code of
Criminal Procedure. If the provisions of sub-s. (3) make an Excise Officer
empowered under S. 77 (2) a police officer in charge of a police station for
the purposes of the entire investigation, there was no necessity to provide in
sub-s. (1) that he could exercise the powers under certain sections specified
therein.
The powers which the Excise Officer as an
Investigating Officer exercises under s. 78 (1) are 794 also limited in scope,
Under s. 160 Cr. P. C. he can summon persons for the purpose of investigation.
He may examine such persons orally about the facts and circumstances of the
case, just as a police officer can do under sub-s. (1) of s. 161. But the
person so examined does not appear to be bound to answer all questions relating
to such case put to him by the Excise Officers though he is bound to answer the
questions put by the police officer in view of sub-s. (2) of s. 161 Or. P. C.,
and by the Customs Officer under s. 171-A of the Sea Customs Act. Section 162
of the Code does not confer any power on a police officer. It only provides
that any statement made by a person to a police officer in the course of an
investigation under Chapter XIV of the Code could be used for no purpose except
for the purpose provided in that sub-section, at any enquiry in respect of that
offence under investigation at the time when that statement was made. An
investigation by the Excise Officer is not an investigation under Chapter XIV
of the Code of Criminal Procedure. He may take similar steps during
investigation which a police officer has to take, but that does not make his
investigation an investigation under Chapter XIV of the Code.
Again, s. 163 has no application so far as
the question of conferring power is concerned. It rather enjoins upon a police
officer not to offer or make or cause to be offered or made, any such
inducement, threat or promise as is mentioned in the Indian Evidence Act,
section 24, and not to prevent any person from making a voluntary statement in
the course of an investigation. Section 164, again, deals with the recording of
statements and confessions by Magistrates during the investigation under that
Chapter, and can at best be said to empower by implication that these Excise
Officers can send a confessing accused for the recording of confession to a
Magistrate. In exercise of the powers under s. 165, 795 Cr. P. C., the Excise
Officer can search in certain circumstances a place for a thing which may be
found useful for the investigation and, in view of s. 166 Cr. P. C.
he can require any other Excise Officer or
police officer to a cause search to be made.
Section 168 of the Code is of no use as it
requires any subordinate police officer making investigation to report the
result to the Station Officer as all Inspectors and Sub Inspectors of Excise
are required by s. 78 (4) of the Act to report to the Magistrate for trying the
accused if he has not stopped further proceedings in exercise of the powers
under s. 78 (2) and which he would do when there be not sufficient evidence to
send the accused to the Magistrate for Trial. For similar reason, s. 169 Cr.
P.C., is of no use to the Excise Officer empowered under s. 77 (2).
Section 170 empowers the officer in charge of
a police station to send up the accused to a Magistrate if there be sufficient
evidence. Under s. 171, he can send up a witness on complaint, in certain
circumstances, in custody to a Magistrate.
I may now consider certain cases in which a
view has been expressed that when an officer, who is not an officer of the
regular police force, is invested with powers of the Station Officer in charge
of a police station for the purposes of the investigation of offences he is
competent to investigate, that officer will be a police officer within the
meaning of s. 25 of the Evidence Act during the course of the investigation he
be making. The considerations which led to that view were mainly two. One was
that neither the Code of Criminal Procedure of 1861 which originally enacted a
provision identical with the one in s. 25 of the Evidence Act, nor the Evidence
Act of 1872 itself defined a police officer, that the definition of the word
'Police' in the Police .Act of 1861 was not a definite definition but only an
inclusive one and that the expression 'police officer' 796 being not precise in
defining the class of officers covered by it was to be interpreted according to
what the original intention and object of the Legislature must have been in
their enacting s. 25 of the Evidence Act. The second was that the expression
'police officer' in s. 25 of the Evidence Act should be construed according to
the meaning that expression carried at or about the time that enactment was
made and for that purpose, the view expressed in Hurribole's Case (1), was not
only accepted but was interpreted to mean that anyone whom the people at large
looked upon as a police officer would be included in that definition. I would
first consider Hurribole's Case (1), to which reference had been made in Barkat
Ram's Case (2).
In Hurribole's Case (1), Mr. Lambert who was
a member of the regular police force and was so regarded outside Calcutta to
which city the police Act of 1861 did not apply, was posted at Calcutta as
Deputy Commissioner of Police. He was also invested with the powers of a
Magistrate. The accused in that case made a confession originally to two
policemen. It was taken down in writing. He was then brought before Mr. Lambert,
the Deputy Commissioner of Police, at the police office. He affirmed the truth
of his former statement to Mr. Lambert, who, in his capacity of a Magistrate,
received and attested the statement. The question was whether this confession
was hit by s. 25 of the Evidence Act or not. The decision of this question
depended on the view whether Mr. Lambert was a police officer within the
meaning of s. 25 of the Evidence Act. Garth C. J., repelled the contention that
the expression 'police officer' comprised only that class of persons who were
called in the Bengal Police Act members of the police force and observed; at p.
215:
"...... that the term 'Police officer'
should be read not in any strict technical sense, but (1) (1876) I.L.R. I Cal,
207.
(2) [1962] 3 S.C.R. 338.
797 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; ... I think it better in construing a section such as the
25th which was intended as a wholesome protection to the accused, to construe
it in its widest and most popular signification." These observations
simply mean that Mr. Lambert who was a regular member of the police force did
not cease to be a police officer when posted as Deputy Commissioner of Police
at Calcutta with Magisterial powers, that he would still be considered to be a
police officer by the people in general and that therefore he should be held to
be a police officer.
The use of the comparative words 'narrow' and
'wider' with respect to the meaning to be given to the term 'police officer'
have a particular reference in the context to the effect that a person, even
though strictly not a police officer during the period of his tenure of office
as Deputy Commissioner of Police, Calcutta, but a police officer in view of his
regular service conditions, must be held to be a police officer as the people
at large cannot make any distinction between the temporary character of his
status when he was posted at Calcutta as Deputy Commissioner of Police, who
according to the definition, probably did not come within either the Bengal
Police Act or the Police Act of 1861, I cannot take it that Garth C. J., meant,
that in construing the term 'police officer' in s. 25 of the Evidence Act
Courts should resort to their notions as to whether the people at large
considered the particular officer to be a police officer or not. Any such basis
for construing this expression in s. 25 would be very slippery as there 798
would be no real basic standard to form the foundation for such an
interpretation.
Another question raised in that case was that
the confession was admissible in view of s. 26 of the Evidence Act which
provided that no confession made by a person in police custody would be
admissible in evidence unless it was made in the immediate presence of a
Magistrate, that Mr. Lambert was a Magistrate and that therefore the confession
made to him was admissible in evidence. This contention was repelled on the
ground that s. 25 of the Evidence Act was imperative and a confession made to a
police officer under any circumstances was not admissible in evidence against the
maker thereof. This means that Mr. Lambert's status as a Magistrate was
completely ignored. The confession was not deemed to be taken by a Magistrate.
It was taken to be made to a police officer as Mr. Lambert was a police officer
on account of the service to which he belonged. It was merely as a Deputy
Commissioner of Police that he enjoyed certain powers of a Magistrate. This
view, therefore, can also be used in support of the contention that the mere
conferment of certain powers of an officer of one class did not make that
officer an officer of the class whose powers had been conferred on him. If
conferment of powers of another officer could make the officer an officer of
the other type during the period he be exercising the functions of the other officer,
Mr. Lambert could have been treated a Magistrate when he purported to act as a
Magistrate in receiving the confession of the accused. In my opinion, the case
does not support the opposite view in any way. The only effect of the
observations of the learned Chief justice to the effect that s. 25 of the
Evidence Act be construed in its widest and most popular signification is that
the expression 'police officer' is not restricted to only those police officers
who come within the definition of police officer' 799 within a certain Act
dealing with police, but can include officers who belong to the police in
general. Its effect is not to widen the scope of 'police officer' in s. 25 to
such an extent as to make the Court embark on a general enquiry about popular
concept in a certain area, about one being a police officer in the mind of the
people at large.
It is true that the Criminal Procedure Code
of 1861 or of later years does not define the expression 'police officer' while
its various sections refer to police officers. For the purpose of this case, we
may refer to s. 148 of the Code of Criminal Procedure, 1861 (Act XXV of 1861).
Section 148 was :
"'No confession or admission of guilt
made to a Police Officer shall be used as evidence against a person accused of
any offence." Which Officers were contemplated to be 'police officers' by
the Code of Criminal Procedure of 1861 ? I am of opinion that the Code of
Criminal Procedure could not have but referred to the regular police officers
for the purpose of its various enactments. It must have fixed upon a particular
class of officers on whom the various powers of a police officer were being
conferred by the Code and on whom the Code imposed certain important duties.
Surely these powers were not conferred and duties were not imposed on a vague
class of persons whose powers or liability would be subject to determination by
Courts in accordance with the popular impression. The only definite class of
people would be then members of the police according to the various enactments
in force and not necessarily under the general Police Act of 1861 or any
special Police Act applicable to the Presidency towns, or those who, under
certain statutory provisions be deemed to be 800 police officers as, in that
case, it would be the Legislature which itself would lay down the class of
persons who would be treated to be police officers. I may say that it was not
foreign to the Legislature in 1861 to make provisions with respect to certain
persons being deemed to be officers of a certain class.
Historically, I do not find the expression
'Police officer' or 'Police' to be a vague one. In 1793, a number of
Regulations were made by the Governor General in Council.
They dealt with many a subject connected with
the administration of the territory under the control of the East India
Company. The preamble of Regulation XXII of 1793 indicates that the object of
that Regulation was to establish an efficient police throughout the country
whereby offenders may be deprived of all hope of eluding the pursuit of
officers of justice as the clause in the engagements of the landholders and
farmers of land by which they were bound to keep the peace, and in the event of
any robbery being committed in their respective estates or farms, to produce
both the robbers and the property plundered, was found nugatory. Section 11 of
this Regulation reads :
"'The police of the country is, in
future, to be considered under the exclusive charge of the officers who may be
appointed to the superintendence of it on the part of Government. The
landholders and farmers of land who were bound to keep up establishments of
tannahdars and police officers for the preservation of the peace are
accordingly required to discharge them, and all landholders and farmers of land
are prohibited from entertaining such establishments in future." Section
III specifically provided that in future landholders and farmers would not be
considered 801 responsible for robberies committed in their respective estates
or farms unless certain facts mentioned therein existed. This seems to be the
first Regular Code for the establishment of the efficient police in the country
under the control of the British. Formerly, it was the landholder and the
farmer of land who discharged the functions of the police for the maintenance
of peace and for preventing the commission and detection of crimes, especially
crimes against property, robbery, theft, etc. It is to be noticed that
according to the preamble and the provisions of s. II of this Regulation, the
entire police was to be in the exclusive charge of the officers appointed by
the Government. The Government had to appoint the police officers as such.
Subsequent Regulations and Acts developed the
law about the police on the foundations laid by this Regulation. The object of
the Police Act of 1861 is also to cover the entire police in the country. Its
title is : 'An Act for the Regulation of Police'; and its preamble reads :
"Whereas it is expedient to reorganize
the Police and to make it a more efficient instrument for the prevention and
detection of crime...........
The expression 'general police district'
according to s. 1, embraces any Presidency, State or place, in which the Act
shall be ordered to take effect. Section 2 provides that the entire police
establishment under a State Government shall, for the purposes of the Act, be
deemed to be one police force and shall be formally enrolled; persons of this
establishment, therefore, formed a class by themselves.
Section 3, however, provides that the superintendence
of the police throughout a general police district shall vest in and shall be
exercised by the State Government to which such district is subordinate. This
does not speak of the superintendence 802 of the police force or the police
establishment, but puts the entire police within the State under the control of
the Government. The administration of such entire police is vested in the
Inspector General of Police by s. 4 and within a district 'is vested in the
District Superintendent. These officers exercise no administrative control over
the Excise Officers.
Section 47 makes it lawful for the State
Government to declare. that any authority which is being exercised by a
Magistrate of the District over any village watchman or other village police officer
for the purpose of police shall be exercised, subject to the general control of
the Magistrate of the district, by the District Superintendant of Police. This
is a clear indication that the Act purported to bring the entire police whether
controlled under the Act or not, within its purview in the area where the Act
be in force.
It was on account of the various persons
under several Acts or otherwise discharging the functions of the police that
the Police Act of 1861 provided that the word "Police' in the Act meant to
include all persons who would be enrolled under that Act, indicating thereby
that the expression could cover persons other than those enrolled under that
Act.
Section 21 of the Police Act refers to some
of them, viz., hereditary or other police officer or police officers appointed
under Act XX of 1856, the Bengal Chowkeydari Act.
The inclusive definition of 'police' does not
appear to me to be so wide as to include any one to whom powers similar to
those of a police officer are conferred by any Act.
The history of the Excise Law also shows that
Excise Officers have been considered different from police officers and that
clear provisions were enacted for certain. officers of the Revenue and Police
Departments to be deemed Excise Officers.
803 Regulation XXXIV of 1793 re-enacted with
modifications the rules passed on April 16, 1790, and subsequent dates, for
levying a tax upon intoxicating liquors and drugs and for preventing illicit
manufacture and vend of them. This was repealed by Regulation X of 1813.
Section I of Regulation X of 1813 states with
respect to the purpose of the Regulation :
"...... and whereas it will tend to the
public convenience to reduce the whole of the Regulations at present in force
with respect to that branch of the public revenue, and respecting likewise the
duties on intoxicating drugs, taury, and putchwye, to one Regulation, with
alterations and amendments, the following rules have been passed".
and thus emphasized that the Regulatian
related to the branch of public revenue. Section XVIII provided that for the
more convenient collection of the duties on spirituous liquors etc., officers
would be appointed by the collectors to be denominated abkarry darogahs for the
collection of the said duties. These darogahs were to apprehend and send to the
Collector any individual having an unlicensed still in his possession or
engaged in the illicit sale of spirituous liquors etc. Section XXII provided
that .all investigations which it may be necessary to institute respecting the
illicit manufacture or sale of spirituous liquors etc., shall be conducted by
the collectors of land revenue or other public officers entrusted with the
charge of the abkarry mohaul. Section XXII further empowered the Collector or
other officers entrusted with the charge of akbarry mohaul to cause the persons
charged with or suspected of offences under the Regulation to be apprehended so
that a regular enquiry might be made into the merits of the case. Officers in
charge of the abkarry 804 mohaul were given power under s. XXIII to issue
search warrants. Section XXXI made the collectors of land revenue entitled to a
commission on the net amount of the abkarry revenue realised by them.
Act XXI of 1856 repealed Regulation X of
1813. Its title is 'An Act to consolidate and amend the law relating to the
Abkaree Revenue in the Presidency of Fort William in Bengal' and the preamble
states :
"Whereas it is expedient that the laws
relating to the manufacture of spirits and the sale of spirituous and fermented
liquors and intoxicating drugs, and the collection of the revenue derived
therefrom, should be consolidated and amended : It is enacted as follows."
Section II says that the Collectors of land revenue will be in charge of the
collection of the revenue arising from the manufacture of spirits and the sale
of spirits, liquors and intoxicating drugs. Section IV empowered the Collectors
to appoint darogahs, jemadars, peons, surveyors, gaugers and other officers for
the collection of the abkaree revenue and for the prevention of smuggling. The
office of abkaree darogah could be combined with that of any tuhseeldar, naib
tuhseeldar or peshkar. In such cases s. IV provided that those officers and
officers subordinate to them would be held and deemed to be Abkaree officers
within the meaning of the Act. The Abkaree officers were empowered under s. LV
to enter and inspect shops or premises of licensed Manufacturers or retail
vendors. Section LVI empowered them to stop and detain any person carrying
articles liable to confiscation under the Act and to seize such articles and
also to arrest the person in possession of them. Powers of arrest under certain
circumstances were also conferred on them by s. LVII.
Section LXV further provided that all police
officers were required to aid the Abkaree officers in 805 the due execution of
the Act upon notice given or request made by such officers. The expression
'police officers' and 'abkarec officers' in these sections refer to officers of
the regular police and officers of Abkaree respectively.
The Act makes a distinction between the two,
and rightly.
Section LVIII empowered an Abkaree officer
above the rank of a jemadar of peons to enter and search certain places in the
presence of the darogah or other officer of police in circumstances specified
in that section.
Section LIX provided for the vesting of
certain powers in the officers of the Police, Customs and Revenue Departments
and authorised the Government to invest those officers with powers with respect
to the seizure of and search forspirituous and fermented liquors and
intoxicating drugs and the arrest of persons found in possession of them. It
further provided that all such officers when so empowered, as well as all
police, Customs and Revenue officers, when acting under the authority conferred
by that section, for the suppression of illicit dealings in opium, would be
held and deemed to be Abkaree officers within the meaning of the Act.
It is clear, therefore, from the provisions
of ss. IV and LIX that the Legislature specifically provided, whenever it
considered necessary, for certain officers to be deemed to be Abkaree officers
when, by virtue of their regular service, they were not Abkaree officers.
It was in 1861, as already stated, that the
'Criminal Procedure Code, by s. 148, provided that no confession made to a
Police officer would be used in evidence against an accused person. In view of
the provisions of the first Regulation XXII of 1793 dealing with the creation
of the Police under the direct control of the Government and of the Abkaree
Department 806 governed by Regulation XXXIV of 1793 up to 1856, it is not
possible to say in my opinion, that the Legislature when using the expression
'police officer' in s. 148 of the Code of Criminal Procedure of 1861, intended
that expression to include the Abkaree officers who had powers of
investigation, though without any reference to the procedure to be followed in
carrying out the investigation necessary for the purpose of establishing the
offences under the Abkaree Act against the alleged culprits. It is also clear
from certain provisions referred to above that the Legislature did state in
clear terms that certain officers of the other departments would be deemed to
be Abkaree officers in certain circumstances. It follows therefore that if the
Legislature had intended to use the expression 'police officers' in the Code of
Criminal Procedure of 1861 or in s. 25 of the Evidence Act of 1872 in such a
sense as to include such officers of departments other than the Police on whom
powers of investigation were conferred, it could have very easily said that a
confession to a police officer or such other officers would be inadmissible in
evidence or it could have explained the expression (police officer' for the
purposes of that section, that is, s. 148 of the Criminal' Procedure Code of
1861 or s. 25 of the Evidence Act of 1872. Its omission to do so, to my mind,,
is a clear indication of the fact that the Legislature had no intention to use
the expression 'police officer' in s. 25 of the Evidence Act in such a general
sense in which it is construed in Nanoo v. Emperor (1), Ameen Sharif v. Emperor
(1), Public Prosecutor v. Paramasivam (3).
I may refer to the case cited as Radha Kishun
Marwari v. King Emperor (4), where it was held that an Excise officer was not a
police officer within the meaning of s. 25 of the evidence Act. of the three
judges, Courtney Terrel, C. J., expressed his disagreement with the (1) (1926)
I.L.R. 51 Bom, 78.
(2) (1934) I.L.R. 61 Cal. 607, (3) A.I,P,,
1953 Mad, 917, (4) (1932) 1,L,R, 12 Pat. 46.
807 view of the Bombay High Court in Nanoo v.
Emperor (1), and, after stating that the decision in Hurribole's case (2), had
been much misunderstood, said "The fact is that the term "police
officer' is sufficiently well understood to allow of its use without any
precise definition. Thus it is well recognised that different countries and
states confer upon their respective police officers different powers.
Nevertheless it is not difficult to decide whether any particular individual
is, or is not, a police officer in any particular country and it has been held
that a confession made to a police officer of a foreign force in the country
where he is in fact a police officer is not admissible in an Indian I trial."
He also expressed the opinion that the Courts of justice were not primarily
concerned with the objects with which the legislature enacted any particular
law and that the legislature might not have finally enacted a provision to
carry out the entire object with which it tended to enact it, and that in cases
where the legislature had not thought fit to express its intention otherwise
than by the use of the words of the section; those words, must be followed.
Fazl Ali, J. agreed with his views and stated at p. 56:
"It appears to me 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."" He pertinently remarked at p.57:
"To take this view would, in my opinion,
be to ignore the popular meaning of the term (1) (1926) I.L.R. 51 Bom, 78.
(2) (1871) I.L.R. I Cal. 207.
808 'police officer' and enlarge unduly the
scope of the section. There was nothing to prevent the framers of the Evidence
Act from saying expressly that confessions made to a police officer as well as
those persons who are for the time being and for certain limited purposes
invested with the powers of a police officer arc inadmissible in
evidence." Agarwala J., expressed the opinion that the expression 'police
officer' in s. 25 of the Evidence Act referred to the police officers enrolled
in or appointed as members of the police force.
I agree with respect with the wider view
taken by the learned Chief Justice and Fazl Ali, J.
I therefore hold that the Excise Inspector
and Sub-Inspector empowered by the State Government under s. 77(2) of the Act
are not police officers within the meaning of s. 25 of the Evidence Act and
that the aforesaid officers cannot be treated to be police officers for the
purposes of s. 162 of the Code of Criminal Procedure. Section 162 does not
confer any power on a police officer. It deals with the use which can be made
of the statements recorded by a police officer carrying out investigation under
Chapter XIV of the Code.
The investigation which the aforesaid Excise
officer conducts is not under Chapter XIV of the Code, but is under the
provisions of the Act and therefore this is -a further reason for
non-applicablity of s. 162 Cr. P. C. to any statements made by a person to an
Excise officer during the course of his investigating an offence under the Act.
In this case, the evidence on record about
the appellant's being found in possession of Nepali Ganja is not such on which
reliance could be placed for maintaining his conviction. The High Court relied
on it in view of the confession of the appellant, 809 The conduct of the Excise
Inspector in tampering with the seizure memo is such as to affect his bona
fides and therefore there is a lot of doubt about the alleged confession by the
appellant being voluntary. I am not satisfied about the confession being
voluntary and would therefore not use it in support of the unsatisfactory
statements of the prosecution witnesses about the recovery of the ganja from
his possession and would not sustain the conviction even though the High Court
has recorded a finding of fact that Ganja was recovered from the appellant's
possession. The High Court did not consider the tampering of the seizure memo
in all its aspects or its effect on the alleged voluntariness of the confession
and, consequently, on the case.
Appeal allowed.
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