(Pl l t,/ v. Stelt of Jo./ali11rtJJhtra

A scrutiny of the various provmons of the Bihar & Orissa Excise Act, 1915, leads to the conclusion that the legal position of an Excise Officer io similar to that of the Customs Officer whom this Court has held to be not a "police officer" in the case of Stat• of Pu1tjab v' Barkat Ram, A. I. R. 1962 s. c. 276. The provioions of ss. 7, 89, 95 and 96 of the Bihar and Orissa EJ<cise Act, 1915, are sufficient to indicate that the action 0f Excise Officers under the Act and under any other law relating to excise revenue is treated alike. The Act is like Sea CustQms 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 that the Excise an investigating officer. The mere fact Officer vossesscs certain powers similar to those of po lice officers in regard to infraction of excise laws is not a sufficient ground for holding them to be police officers within the mean ing of s. 25 Evidence Act. relating 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 to arrests, searches the purpose of the provisions 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 It follows merely on account-Of their performing those duties. that Excise Officers when investigating offences under the Act are not to be deemed police officers for the purpose of the provisions about investigation in the Code of Criminal Pro cedure. The effect of s. 78(3) can only be that in view of the provisions of sub-ss. (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 tP investigate an offence. The history of the Code of Criminal Procedure as well as .the Excise law shows that Excise Officers have been considered - J963 &fa R""' /"""111 •• Sl4U ef Bl/lar 756 SUPREME COURT REPORTS [1964] VOL. di!l'erent from police officen and that clear provisions were created for certain officers of the Revenue and Police depart ments 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 officen 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 Ju1tISDICTION: 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,

8.C. Agarwala and D.P. Singh, for the appellant. D. Goburdhan, for the respondent.

#1963. April 4. The Judgment of Subba Rao and Mudholkar JJ. was delivered by Mudhol kar J. Dayal J. delivered a separate Judgment. MuDHOLKAU 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 con fession 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 1969 Raja Ram J.Uwal Y. S1a11 of Bihar Mudholk111 J. 2 s.e.R. SUPRENIE COURT REPORTS 757 the Excise Inspector, R.R.P. was stopped by Sinha (P.W.l) on the Bayley Road, near the New Secretariat, Patna, at 10.00 p.m. The car belongs to the . appellant's brother Radhey Sh yam; but he in the car. The car was was not at that moment 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 witnessess 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, accordiag to the prosecu tion, the appellant produced the keys with which 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 statement of the appellant. 1 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 travelling 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 Mohatla of Patna where he was arrested by Inspector . ~t 6.00 on the morning of August 4. His defem;e the Excise 1963 R1Jja Jf11111 Jais111'J •• 'i'ltr/1 of Bi11ar Afut/h~lKtsr J. 758 SUPREME COURT REPORTS [1964] VOL. 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 abuse.!, 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 o( 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. 4 7 runs thus : "Penalty for unlawful port, manufacture, possession, sale, etc.- import, export, trans If any person, in contravention of this Act, or of any rule, notification or order made, license, permit or pass issued or given, or granted, under this Act,- ( a) imports, exports, transports, manufactures, ; or possesses or sells intoxicant he shall be liable to imprisonment for a term which may extend to one year or to 2 S.C.R. SUPREME COURT REPORTS 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 esta blishes the following facts : 1969 Raja 11JJm Jaisw•I y, State flf BiluJr Mudholkar J. (1) that the appellant was s1ttmg 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) (4) that four bundles were recovered from the luggage boot of the car and one from the leg space in front of the front seat ; that a bunch of keys marked Ex. 2 series was recovered from the pocket of the appel lant and another bunch of keys marked Ex. 1 series was recovered from the possession of the driver J agdish Sah ; ( 5) that every key of Ex. 1 series could open the lock of the luggage boot and two keys of Ex. 2 series could also open the lock. In order to est<lblish this, the prosecution has relied on the seizure memo Ex. F and the evidence ofthe 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 fact and we are, therefore, entitled to take it into consi ~t, WO\lld appear that originally it was qenltion. 1963 Rai1J Ram Jaint:al v. Statt oj Bi_har :lfudho/kor J. 760 SUPREME COURT REPORTS [19M] VOL. in which included within is stated in col. 6 that shown in col. 5 and 6 taken tt>gether 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 inser ting 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 :~5 seers, 26 seers, 18 seers and 6 seers. The weight of the first bundle was excluded the bracket weights of the first three bundles were included. introducing another bracket, the first Then by bundle was bracket it the bundles luggage boot. The bundle in the in the bracket. weighing 6 seers is not included Against it, there was some other remark in col. 6 which has place it is stated "In the leg space in front of front the appellant's seat.'' Again, in col. 8 wherever 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 incriminat ing the appellant, For, even the direct evidence of witnesses was not regarded by the High Court as worthy of credence, unaided by the confession. clumsily erased and it. Against 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 per sons in the car at the time and that the lu_ggage 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, 2 s.c.R. SUPREME COURT REPORTS 761 though the driver has been acquitted, 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, there-. fore, that the appellant's conviction could be main· tained on! y if, we hold that the confessional state ment is admissible in evidence. 1963 Raja Ram Jaiswa I v. Stale o/ ./Jj/rar Mudholkar J, ~ Mr. Chari besides objecting to the admissibility of the confessional statemi:nt relying on s. 25 of the Evidence Act also contends that that statement is rendered inadmissible by the provisions of s. 162, Code of Criminal Procedure inasmuch as it was re corded 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." th6 Inspector R.. R. P. Sinha is an Undoubtedly Excise Officer and not a police officer in the sense that he does not belong to the police force or the It has, however, been held police establishment. in a large number of cases, including the one decided , by this court, The State of Punjab v. Barkat Ram ('), that the words "Police Officer" to be found s. 25 of the Evidence Act are not to be construed in a narrow way but have to be construed in a wide and po_pular 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 con ferred. This Court was 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 (1) p962] 8 I, C, R. SSS, 1903 R6}• Ra"' Ja1wal •• SW 1 •f Bihor Mut0t6/k4r J. 762 SUPREME COURT REPORTS [1964] VOL. majority judgment Raghubar Dayal J., has ob. served : therefore, "The Customs Officer, 1s 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 safe· guarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender." (p. 279). the Police 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 is not are conferred on Officers of 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 revenues of the State. The of safeguarding the majority, however expressed no opinion on question whether officers of departments other than the police on whom the powers of an officer·in charge of a police station under ch. I 4 of the Code of Criminal Procedure arc conferred arc police offic"rs 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 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 1963 Raja Ram /aiswel v. Slate of Biht1r Mudholkar J. 2 S.C.R. SUPRENfE COURT REPORTS 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 ( l) of s. 77 em• powers 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 em powered in this behalf by the State Goverument in respect of all or any specified class of offences puni shable 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 Ins January 15, 1919 has pectors of Excise and Sub-Inspectors of Excise 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 res pect 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 offences, 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 offences 1.1nc!er the Excise Act specially empowered 196J R•jo R•m Joiswal v. St.u ef BiM• Mlllilwlkar J. 764 SUPREME COURT REPORTS [1964] VOL. 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 offences not only is he charged with the duty of preventing their commission but also with their detec· tion 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 main tenance of I aw and order nor can he exercise the powers of such officer with respect to offences under the general law or under any other special laws. But all the same, in so far a~ offenc~s 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 offences which it is his duty to prevent and bring to light. It would be logical, therefore, to hold that a con fession 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 docs 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 uot 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 that of a Customs Officer for two analogous reasons. One is that the Excise Officer does not exercise any j udici<d powers jusl as the Customs Officer docs 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 t!ie 1969 Rf.i• Rtm l•i.rai•l v. Stal• •f Bihor Mud/Jolk., J. 2 s.c.R. StJPRENIE COURT REPORTS. 765 power to make a search, to seize articles suspected to hal'e been smuggled and arrest persons suspected of h:J.ving 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 Proce dure. 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 Pro cedure they are not identical with those of a police officer and are not derived from or by reference to In regard to certain· matters, he does not the Code. 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 authorised in this behalf by the Chief Customs Officer. It may well be that a statute confers powers 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 whic;h he is required to perform he may be exercising various It is argued on behalf of the other powers also, 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 • 196J .. Rdj0 Ram }diJwal Stalt of Bihor Mutihel. Aar J. 766 SUPREME COURT ltEPORTS [1964] VOL. correspondingly a wide range of powers, exercise 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 it would not be an officer records a confession In qur Judgment hit bys. 25 of the Evidence Act. 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 per son is a "policer officer" for the purpose of s. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which arc 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 In our words, the test recording of a confession. the powers are such as would would be whether tend to facilitate the obtaining by him of a confe ssion from a suspect or a delinquent. If they do, the dominant then it is unnecessary to consider 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 arc 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 powers of a limited character which are officer analogous 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 • IR63 R'l}• &m l.U•,. v. Si.11 of Bi"4r Mudholkat J, . !! S.C.R. SUPRBNID COURT REPORTS 767 with "procedure relating to offences, 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 grounda for the search. No such restriction is imposed upon search under s. 102, a police officer making a 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 inves in writing his reasons, a tigation after recording Customs Officer cannot search any place on land where a dutiable or prohibited goods or documents relating to such goods are secreted without first from a Magistrate. obtaining a search warrant Under s. 173 of the Act a Customs Officer has the power to arrest a person against whom reason able suspicion exists that he has been guilty of the Act. But he is required to an , offence under 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 1963 Rdja Rmn J(Jiswal Y. Sl&Je of Bihar MuilwJkar J. 768 SUPREME COURT REPORTS [1964] VOL·. Customs Officer has power to seize anything lialile to confiscation under the Act. But wh~re 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 110 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 arc necessary for preventing the commission of offences under the Sea Customs Act and matters It is worthy of note that the incidental thereto. powers of investigation into offences 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 persons 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 offences. But it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness It is the power of investi would attach to them. gation which establishes a direct relationship with the prohibition enacted in s. 25. Therefore, where such a power is conferred upon·an officer, the me~e fact that he possesses some other powers under another law would not make hiin 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 provisio~s of s. 25 of the Evidence Act were enacted. For th1S 19~1 ' lt.•i• RM1l lailw•l y, SM!e of· ~i/1• M.JJiolku 1. ' 2 s.c.R. SUPREME COURT REPORTS 769 purpose we can do not better than quote the follow ing passage from the judgment of Mahmood J. in Queen Empress v. Babulal (1 ). " .................. the Lagislature had· in view the malpractices of police officers in extorting confessions from accmed persons in order · to gain credit by securing convictions, and that length· or those malpractices went to positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officera as untrustworthy, and the object of the rule• was to put a stop to the extortion of confession, by taking away fronl the police officer1 the advantage of proving such extorted confession• 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 recorded by a distinction between a confession 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 b~aring on the question as to whether expression "Police Officer" used in s. 25 of the the members of the Evidence Act is restricted to It is unnecessary to force or has a wider meaning. refer to those decisions because in Barkat Ram' a case ('), it has clearly been held that the expression \2) [ !962J 3 S. c. R. 338, (l) (1884) 1.L.R, 6 All. 509, 523. ' '*' Raja Ram laiiwal v. Sl4t1 of Biluu Mudholkar J. '70 SUPREME COURT REPORTS[l964] VOL. ), (1 I here to certain. decisions is not to be construed in a narrow way. \Ve may, however, in which the question whether an Excise Officer is a Police Officer within the meaning of that section has been is, however, no specifically considered. unanimity in those decisions. Thm in Ah Fo011g v. Ilarbhanjan Sao v. Emperor ('), Emperor Matilall Kalwar v. Emperor ('), it was held that an Excise Officrr is not a Police Officer, A contrary in Ibrahim Ahmed v. view was, however, taken King Emperor('). The view taken in that case was affirmed by a Full Bench in Ameen Sharif v. Emperor ('). The view taken in the Full Bench case as well as in Ibrahim Ahmed's case ('), follows that of the Bombay High Court in Nanoo Sheikh Ahn1ed v. Emperor ('). A similar view was also taken in Public Prosec1ttor v. C. Paramasivam (1), In Radha K ishun MaruYJri Ibrahim v. Emperor ('). , v. King Emperor ('), it wa~, 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 learned Judges have con decision because there the strued 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 (10 ). We will briefly examine the other decisions. In Ah Foong's case('), all that Sanderson CJ., who delivered the leading judgment has said was that he dirl 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 rea~on of the fact that they were made to Police Officers. There is the question at all. Apart thus no discussion of from that the offence concerned in that case was one under the Op:um Act and an Excise Officer (1) (10IR' T.t .. R. 4• r.al. 411. (3) A.l.R. 1032 r.1 1n. (5J 1193~) 1.1 .. R. fil C.I 007. 171 A.l.R. 1913. Mad 917. (9) (1.9321 IL R. 12 Pat 46 EB. 12\ (19271 l.L.R: 54 rat 601. 1') (1931) 1.L R. SB Cal. 1160. (RI (192611.L.R. Sl Bom. 78 18) A.!.R. 19441.ah 57. ( 10 [1962] 3 S.Cll. 338. 1"6S Raja Ram l•itlllll •• Swt1 of Bihar Mud/Joi/tar. i 2 s.c.R. SUPREME COURT REPORTS 771 ·acting under that Act was not conferred with the powers of an dficer in charge of a police station under lh. XIV of the Code' of Criminal Procedure. Harbhanjan Sao's case ('), merely followed this Ibrahim Ahmed's case as also did Matilr!l's ca.qe ('). case ('), was a case which arose after the amend· ment of the Opium Act and it followed the view In Nanoo Sh•ikh Ahmed's case('), a Full Bench of the Bombay High Court examined a large number of decisions commencing from The Queen v. Hurribole Chunder Ghose ('). quoted with approval the following two passages from that case : in Nanoo Sheikh Ahmed's case ('). Ma~ten C. J. "Its humane object is to prevent confessions obtained from accused persons through any undue influence, being received as evidence against them ..... ; ......................... ! consider that the term 'police officer' should be reac. not in any strict technical sense, but accord ing 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) . .. that in Ah Foong'a The Full Bench pointed out case ('), 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 l 878 whereas in Bombay they exercised the powers of investigation and so on. The learned Chief ]'1stice then observed : " ........ in my judgment, we should hold that as the Bombay Legislature has deliberately (1) (1927) IL R. 5\ Cal 601. <9) ll93l) l.L.R. 51 Cal 12GO. (5) (1876) I.LR. I Cal. 207. (2) A I.R. 1992 Cal. 122. ,4, (1926) I.L.R, 51 Boin. 78, (6) (1918) l.L R. 46 Cal. fll. 11!6J RajO Ram Jaiswol •• S14t,.J Bi/uzr Mudli.U.11r I. 772 SUPREME COURT.REPORTS[l964] VOL. these Abkari officers substan· conferred upon tially all the powers of a Police Officer, they have thereby them Police in effect made Officers within the meaning of section 25, and that, accordingly" any confession made to such an officer in the course of his investi gation under the Abkari Act or the Criminal Procedure Code is inadmissible in evidence." (p. 94) is called by any other name 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 is a perfectly fair inter matter of form and that it pretation 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 is called a Police Officer or by law, whether he and exerci ses other functions also . under other provisions of law, if. for the investigation of offences under a particular Act he is empowered to exercise the powt>rs 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 llurribole'a case ('), ·where the exprcs5ion "police officer" was given a wide meaning the courts would be justified in adhering to it. Kemp J. was of the opinion that term · ;Police Officer" should not be though 'the construed strictly it was not safe to lay down gene rally th0at the term should not be construed in i•s 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 offences, Mirza J. concur red with this view but did not state any reasons. In Ameen Sharif's case ('), the following question was relerred to a Full Bench : "Is an excise .<IJ (1876) l;L.R. I Cal.107. (2) (1934) I L.R. 61 ra1.r>01. 1963 Raja. Ram Jaiswal •• ~tata of Bihar Mudlwlka• J, 2 S.C.R. SUPREME COURT REPORTS 773 officer who, in the conduct of investigation of an offence against the excise, exercises the powers conferred by the Code of Criminal l'rocedure upon an officer in charge of a police-station for the investi· gation of a cognizable offence, a police officer the meaning of section 25 of the Indian within Evidence Act ?" That case .arose under the Bengal Excise Act and Mukerji J. who delivered leadingjudgmer,t, 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 nece ssarily 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 constru .ing · 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 Ckunder Gkose ('), one of very great .im· portance. We have already referred to that decision ·but we have· llOt proceeded upon the view .that while ·construing the relevant provision we should apply ·the principle followed in construing an ancient atatute. The Evidence Act is.of the year 1872 and in . Senior Electric Inspector v. Laxminarayan Chopra (.'), this court while considering the quesiton (I) (1176) I.L.R. I Cal, 207. (2) [1962] 3 S, C, R. 1•6, ' 196J Raja Ram J.UUJ<I •• SUI/• of Bi/ta Mu/i.,a,, J. 774 SUPREME COURT REPORTS [1964) VOL. as to the meaning to be given to the expression "Telegraph line" occurring ins. 3, sub·s. (4) of the Telegraph Act, 1885, pointed out that the maxim oontemporanea exposilio as laid down by Coke was in construing ancient st ltutes but not in applied i:lterpreting Acts which arc comparatively modem. 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 Jaw made in a modem 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 consider able 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 judg ment 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 :>f 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 proviliions thereof and pointed out: "The police, therefore, were instruments for the prevention and detection of crimes with the concomitant powers 0£ apprehension and detention of offenders in order to their being brought to justice, such powers varying accor· ding to the position or status of the particular 1963 Rajo Ram Jai!wol . v. State of Bihar Mudf.otkar /. 2 s.c.R. SUPREME COURT REPORTS 775 In other words, "police inember of the body. officers" were officers whose duty was to prevent aud detect crimes. Apart from any technical meaning which the term "police officer," occurring under any particular Act, might bear, the more comprehensive popular meaning of the term was what has jmt 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 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. is entrusted the duty The civil force to which of maintaing public order, enforcing regula tions for the prevention and punishment of breaches of the law, and detecting crime; con strued 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 leghlature 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 di:lf P.rent powers which different grades of police officers have under any particular enactment, are mere matters · of details worked out in order to enable the entire . /969 Rlljd Rttm Jai1UJal v. Stal• of Bihtu Mudholkar J. 7i6 SUPRE.ME COURT REPORTS (1964]VOL .. to carry out the to them, namely, body, taken as a whole, essential duties entrusted prevention and detection of crimes. These, two features of the duties which the police have to discharge and especially that of detection of offen the duty of holding investiga· ders, which involves tions, 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 ot offences and of bringing off~nders to justice, which ·requires an investigation to be made, that differentiates police from other officers from private individuals or agencies of State. Being concerned with the in. vestigation, there is naturally a desire on the part to collect as much evidence as of a police officer 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, there fore, agree with the observations of the· learned Judge at p. 621! which are to the following effect : legislature could "I can find no reason why in 1872 in respect of an offence under the then Opium Act (XIII of 1857) the ·have thought of excluding a confession made 1to 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 in· vestigation 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 •in respect of offencea which exercise · them 2 S.C.R. SUPREME COURT REPORTS 777 were not known to law in those days 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." 1963 R•i• ,Ram Jcisw•l v. S/?'' •f Bil!U Mudholkar J, 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 9isability 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 con cerned the learned Judge agreed with the answer given by Marten· C. J. in the case of Nanoo Sheikh Ahmed ('), 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 1861, 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. ButJack J.did not accept Hurribole's case ('),a1 · an authority for holding that an Excise Officer is a Police Officer merely because .he .. has certain power1 of. a police officer. His conclusion, however, w;is that the application of s. 25 of the -Evidence Act, in ilie case of an excise officer should be limited to :a. confession made to him .in· the course of an jnvestigation of an:offence by. virtue of section 74(3) (2) (1876) I.L,R, I Cal, 207, (I) (19261 I.L.R. 51 Bom. 78, JH3 Raja Ram , '•iswal v. S1o11 •f BiMr Mu</roll., /. i78 SUPREME COURT REPORTS [1964] VOL. of the Excise Act, which gives him the status of a In police officer for the purposes of the investigation. Qther 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 bys. 25 of the Evidence Act. Costello J. however, differed from the other learned Judges and based himself largely upon the decision in Ra1ha K ishun lll arwari' s case (') and in conclusion he observed : "In my opinion, endless difficulties inevitably arise \vhen Judges endeavour to extend . the plain provisions of any statutory enactment. Where the language of an enactment is unam· biguous 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 pro· visions such as that contained in section 25. I am clearly and definitely of opinion that when the legislature med 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." Thu5 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 confes· sion made to an Excise Sub-Inspector must be . (I) (1932) I,L.R. 12 Pat. 46. F.B, 2 S.C.R. SUPREME GOUR T REPORTS 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 bys. 162 of the Co:le of Criminal Procedure except for the purpose of contradiction. Therefore, both by s. 25 of the Eviderrce Act as well as bys. 162, Cr.P.C . . the confession of the appellant is inadmissible in evidence. If the confession goes, then obviously the convictiog of the appellant cannot be sustained. Accordingly we allow the appeal 'and set aside the conviction and sentences passed oii the appellant. • ... 1963 --· 'Rt1,ja R11m Jaiswal v • .Stalt of Bih«r Mudholk&r J . RAGHUBAR DAYAL J.-'l agree that the appeal RathubharD•yal J. 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 inad · 'missible in evidence as being made. to a police officer. The admissibility of the alleged confession of the appellant depends on the question whether 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 con- siderations : · (1) The powers which a police officer enjoys . are powers 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. m [1962J s s.c.R. ssa. · 196J R•j• RaM Jtrisrr.ol v. ~t.U cf Bihar a.,-. Da;o/ J. 780 SUPREME COURr REPORTS [1964) VOL (2) 1he 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 ~round for holding them to be police officers withm 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 ('). The expression 'police officer' is not of such wide meaning, as to include persons on whom certain police powers.are incidentally conferred. (") 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 discbarging 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 in contra-distinction itself refers .to 'customs . 'police officer' 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 proceed· ings for the purpose of ss. 193 and 228 I. P. C. . A..,crutiny of the various provisions of the Bihar . and Orissa Excise Act, 1915 (Act II ofl915), herein .. after called .the Act, leads to a similar conclusion with respect to Excise Officers on whom powers of.in· . vestigating. offences under the Act have been conferr· . ed. ,.It wiil be useful to quote the relevant pro ' yjsions of the Act and Government Orders which lead to such a conclusion. (I) (1876) liL.R. I Cal. 207. 2 s.c.R. SUPREME COURT REPORTS 781 The preamble of the Act reads : "Whereas it is expedient to amend and re enact the law in the Province of Bihar (and Orissa) relating to the import, export, trans· port, manufacture, possession, and sale of certain kinds of liquor ·and intoxicating drugs; ,, 1969 Raja RtJll'I. Jaiswal •• Stole of BU..r R11hui"' JJ"!:f"l /. 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 : " (I) The the Excise administration of Departmen~ 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 notifica tion applicable to the whole ofthe 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" Excise Commissioners are appointed under s. 7(t)(a). Among the other officers appointed under the other clauses of sub-s (2) of s. 7 of the Act are Suprr· intendents of Excise, Inspectors ·of Excise and Sub Inspectors of Excise. The Superintendent of Excise exercises certain specified powers of the Collector to whom he is subordinate. 782 SUPREME COURT REPORTS [1964) VOL. 1963 Ro}•Ram J•iswal •• !'toll of Bil.ar Chapter VIII deals with offences 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 is exercising powers of a prescribe, who 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 empowerea by the State Government in that behalf, not below the rank of Depury Collector or Superintendent of Excise, may liable to compound offences and release property 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 ihe 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 intoxicant by a licensed manu· facturer and to test and seize measures and to examine accounts and regi~ters or a place where an intoxicant is kepi 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 datl'd January 15, 1919, the Financial Derartment of - 196! Rqja Ram Jtliswal •• Stat1 of l/ihar &ahub111 D11>al J. · 2 S.C.R. SUPREME COURT REPORTS 783 Government of Bihar and Orissa, and we understand thai 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 offences puni shable under ss.4 7, 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 pers011 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 offences punishable under warrant for the arrest of any person whom he has reason to believe to have committed or abetted any ·offence punishable under ss.4 7, 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 olfer_ice has been or is likely to be committed. the Act Sectio"n 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 n'Jt 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 commit ted 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 ran.k of a Sub- Inspector can exercise the power under this section. ' 196' .. Raj•. Ram Joiswal . Stolt of SiAar Ratfi•la Do;•/ J. 784 SUPREME COURT REPORTS-(1964] VOL. Section 77 is important for our purpose and is set out in full below: "(I) A Collector may, without the order of a Magistrate, investigate any offence punishable under this Act which a Court having juris· diction over the local area within the limits of the Collector's jurisdiction would have power to enquire into or try under the provi· sions of Chapter XV of the Code of Criminal Procedure, 18!!8, relating to the place of in· quiry.or trial. . I (2) Any other Excise Officer specially empo· wered in this behalf by the State Government in respect of all or any specified class of offences punishable under this· Act may, without the order of a Magistrate, investi· gate any such offence which a Court having jurisdiction over the local area to which such is appointed would have power to officer the aforesaid inquire provisions." try under Under sub-s. (2) of s. i7, the State Government has specially empowered Inspectors of Excise and Sub· Inspectors of Excise investigate any offence punishable under the Act. Section 78 reads : "(l) Any Collector, or any Excise Offic~r empowered under section 77, sub-section (2), mav, after· recording in writing his reason for· suspcctinl!' the commission of an offence which he is empowered to investigate, exer· cise- (a) any of the powers conferred ·upon a Police Officer inaking an investi~ation,. or upon an officer' in charge of a pohce·st~tlon, 1969 - Raj• Ram Jaiswal v. Stat~ of Bihar Raghubar Dayal_ J. ! S.C . .k. SUPREME COURT REPORTS 785 by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5of1898), and (b) as regards offences 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 offences by clause first of sub-section (l) 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 him has subordinate 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 complet ed, if it appears that there is sufficient evidence to justify the forwarding of the accused to a Magistrate, the investigating officer, unh:ss he ;f;it ~· • 1963 .. ~ Ram Jaisw.J St4J,.f Bi/ta R.,Mikr Dayal J, 786 SUPREME COURT REPORTS [1964] VOL. 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 Po'ice-report] to a Magistrate having jurisdiction to inquire into or try the case and empowered to take cognizance of offences on Police-reports." security and bail and Section 79 deals with empowers any Excise Officer not below such rank as the State Government may, by notification, pre· scribe, to release persom on bail or on their c.wn bond. The State Government has prescribed that any £xcise 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 C'.ollector and that articles seized and persons arrested under the Act by release persons or officers not having authority to 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 investi gate 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, whoc,·er be nearer. ' Section 82 reads 1 "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 thereafter, make a full report of all the particulars of the arrest, seizure, or search, or of the in(ormation received to the Collector, and to the Excise Officer (if any) empowered under section i7, twenty-four ' 2 S.C.R. SUPREME COURT REPORTS 787 sub·section (2), within the 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 tl; ie 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 : JY63 Raj" Ram Jaiswal v. State of Bilw 1Uighu6-r DaJol "(2) A Magistrate to whom an accused person is forwarded under section 167 of the Code of Criminal Procedure, l 8ll8 (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 : the provisions of "(l) Save as in this _Act otherwise expressly the Code of provided, Criminal Procedure, 1898 (5 of 1898), relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warwnts 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 - 1965 •j• Ram JaiJwaJ •• Stalt of Bih•r •thuhar Dayal ~· 788 SUPREME COURT REPORTS (1964) VOL. Collectors) making arrests, searches or seizures under this Act, shall, for the purposes of 1he said provisions of the said Code, be deemed to be Police Officers." Section 89 empowers the State Government the objects of the Act or make rules to carry out any other law for the time being in force relating to the excise·revenue. Section 95 provides that no suit shall lie in the Government or any any Civil Court against 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 limitations of suits and prosecutions and reads : 1'No Civil Court shall try any su.it 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 ~Iagistrate 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 <late of the act complained of." ' The provisions of ss. 7, S!l, 95 and 9fi are sufficient to in<licate 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 - 1963 Raja Rom /ai.s •• . Stdt1 of Bih111 · Raghubar Vayat 2 S.C.R. SUPREME COURT REPORTS 789 imported, exported, 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 pro vide for conditions on w.hich liquor and intoxicating drugs can be transported, manufactured and possessed and sold. Offences creat ed 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 offences under the Act is incidental to the general power to see that the pr0visions of the Act are ob· served. The first consideration for holding Customs Officers not to be police officers would equally apply to the case of Excise Officers empowued to investi· gate offences. 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 investigating In view of consideration No. 2, subject to officer. what is said iil s .. 85 (2), the expression 'police officer' in s. 25 of the Evidence Act cannot embrace Excise Officers on whom certain powers correspond ing to the powers of the police officers are conferred. the duties of an 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 th; ase. Excise Officers npt below ~he rank qf Superin tendent of Excise and Deputy Collector can 1963 Raja Ram Jt.isu·ol •• S1at1 of Biliar Rnthubar Da.1al J, - 790 SUPREME COURT REPORTS (1964) VOL. instance. compound offences and relrnse propcrt y liable to the exercise of, powers conferred confiscation in 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 to an Excise Inspector or Sub-Inspector desire It appears to me to be in the first incongruous that a confession to such an Excise Officer be considered to Ile inadmissible on trial of these Excise a suspect in Court by considering 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 l'io1ification. Further all proceedings before the Collector or Superintendent of Excise, S. D. 0. and Deputy Collector exercising the powers of the Collector arc judicial proceedings within the meaning of s. 228 I. P. C. the Criminal Procedure Code. 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 It is therefor.: clear that the Legislature had in mind the police officers who perform the duti•s 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 It follows that of their performing those duties. Excise Officers when investigating offences under the Aet are not to be deemed police officers for the 1963 R•j4 Ram JaistHI •• State •f BihaT &ghuhr Dayal J. 2 S.C.R. SUPREME COURT REPORTS 791 purposts 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 the Act. The Act itself therefore seizures under 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 conforred upon a police officer making an investiga tion 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, 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." 1963 Raja Ram Jaiswal v. State of IJ;n., R•gh•b°' Do)'oJ J. ... 792 SUPREME COURT REPORTS (1964) VOL. It is argued that these provisions definitely provide that the area to which the Excise Officer empowered under s. 77 (2) is appoin1cd is to be deemed a police station and he be deemed to be an officer in charge of the said police s'.ation, and that therefore such an Exci~e Officer is a police officer within the mean ing of that expression ins. 25 of the Evidence Act. I do not agree. The area is deemed to be a and he himself is deemed to be a police station police officer in chari;e of 1ha1 police station for a very limited purpose. He is to be so comidered for the purposes of s. Hi6 of the Code or Criminal Procedure and not for any other purpose. Now, s. 156 of the Code of Criminal Procedure reads : "(l) Any officer in charge of a police-station may, without the order of a Magistrate investi gate, 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 ques tion on the ground that the case was one which such officer was not · empowered under this section to investigate. (3) Any Magistrate i::mpowered under section 190 may order such an investigation as above mentioned." What sub-s. (I) 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 1962 R'Jja Ram Jaiswal •• Sta.te of Bihar &ghub.,. Dayal J. 2 S.C.R. SUPREME COURT REPORTS 793 to which such officer is appointed would have the power to enquire into or try under the aforesaid provisions. Sub-s. (l) of s. 156 of the Code does nothing more· than authorize an officer in chaq,e of a police sta tion, 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 in to 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 ofsub-ss. (:l) & (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 ques tion 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 In this view, the provisiom of s. 78 (3) the Act. 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 Iiives~igating Officer exercises under s. 78 ( l) are 1963 Raja Ram JaiJu,.J v. Stare •f Bili"' Roghuhar D1yal J, 794 SUPREME COURT REPORTS [1964) VOL. also limited in scope. Under s. 160 Cr. P. C. he ~an 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 un<ler sub-s. (I) 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 Cr. 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 It only provides that any statement made officer. by a person to a police officer in the course of an investigation under Chapter XIV of the Code could the purpose be used provided in that sub-section, at any enquiry respect of that offence under investigation at the time when that statement was made. An investi- , gation by the Excise Officer is not an investigation under Chapter XIV of the Code of Criminal Procedure. He may take similar steps during investi gation which a police officer has to take, but that does nol make his investigation an investigation under Chapter XIV of the Code. for no purpose except 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 Evi dence 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 Magis trates during the investigation under that Chapter, and can at best be said to empower by implication these Excise Officers can send a confessing accused for the recordinj?; of confession to a Magis In exercise of the powers under &. 165, trate. 1963 Raja Ram Jaiswal •• State of BihtJr Raghuhar Dayal I. 2 S.C.R. SUPREME COURT REPORTS 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. trying 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 the accused if he has not Magistrate 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 that when an officer, who view has been expressed 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 investi· gation he be making. The considerations which led 'that to that view were mainly 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 Acf 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' two. One was 1963 R4ja RaM JWwal v • . ~lalt ef Bihat Rqliul>a• Dayol J. 796 SUPREME COURT REPORTS [1964] VOL. being not precise in defining the class of officers covered by it was to be interpreted according to intention and object of the what the original Legislature must have been in their enacting s. 25 of the Evidence Act. The second was that the 'police officer' in s. 25 of the Evidence expression 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 ), was not only expressed in Hurribole's Case accepted but was interpreted to mean that anyone whom the people at large looked upon as a police I would officer would be included in that definition. first consider Hurribo/e's Case ('), to which reference had been made in Barkat Ram's Case('). (1 In Hurribole's Case('), Mr. Lambert who was a member of the regular police force and was so regard ed 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 a!!irmed the truth of his former statement to Mr. Lambert, who, in his capacity of a l\fagistrate, 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 sense, but read not in any strict technical (I) (1876) I.L.R. l Cal. 207. (2) [1962] 3 8.C.R. 338. - 2 S.C.R. SUPREME COURT REPORTS 797 · popular meaning. according generality of people, its more comprehensive and In common parlance and amongst 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 bettrr 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." 1963 Raja Ram J aiswal v. State of Bifar Raghut•r Dayal / 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 l\fagisterial 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 par1 icular 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, Calcutt;i, 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 ot 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' ins. 25 of the Evidence Act, Courts should resort to their notbns 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 1969 Raja Ram Jaiswal v. S t•l1 of Biltar Ra1hub~ Day1l J. 798 SUPREME COURT REPORTS [ 1964] VOL. would be no real basic standard foundation for such an interpretation. to form presence of a Magistrate, 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 · that immediate Mr. Lambert was a Magistrate and that therefore the confession made to him was admissible evidence. This contention was repelled on the ground thats. 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 It was taken to be made to a police Magistrate. officer as Mr. Lambert was a police officer on It account of the service to which he belonged. 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 conftrment 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 o,1Jy effect of the observations of the lrarne<l Chit f J usticc 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 'p.:>lice officer' 19<3 ... Raja Ram Joisw.J. Slate If Bih•r Ra:lwbar Dayal J, 2 S.C.R. SUPREME COURT REPORTS 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 ~o 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 ex· ptession '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, I 861 (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." 'police Which Officers were contemplated to be t.he Code of Criminal Procedure of officers' by 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 enact It must have fixed upon a particular class ments. of officers on w horn 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 determina tion by Courts in accordance with the popular im pression. · The only definite class of people would be then members of the pol ice 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 SUPREME COURT REPORTS (!964] VOL. , J96J R..ja R4m Jaiswal v. Stale of Bihar Raghubar DaJal J. that case, it would be the police officers as, in 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 cer1ain class. Historically, I do not find the expression In 'police officer' or 'police' to be a vague one. 1703, a number of Regulations were made by the Governor General in Council. They dealt with many a subject connected with the adminhtration of the territory under the control of the East India Company. The preamble of Regulation XXII of 179:! indicates that the object of that Regulation was to establish .an ~mcient police throughout the country whereby off en :lers 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 or land bv which they were bound to keep the peace, and in the event of any robbery being committed in their respec1ive estates or farms, to produce both the robbers and the property plundered, was found nug 1tory. Section II of this Regulation reads : "The police of the country is, in future, to be comidcred under the exclusive charge of the officrrs "ho may be appointed to the super intenrlcncc 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 tbe peace are accordingly required to discharge them, and all landholders · and farmers of land arc prohibited from entertaining such establishments in future." Section II I specifically provided that in future land· farmers would not be considered holders and • ' 1963 Raja Ram J12iswal v. State oJ B1ht1.t' Raghubar Dayal /, • 2 s.c.R. SUPREM:E COURT REPORTS 801 responsible for robberies committed in their respective estates or farms unless certain facts mentioned there in existed,. This seems to be the first Regu Jar 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, It is to be noticed that according to the theft, etc. preamble and the provisions of s. II of this Regula the exclusive tion, the entire police was to be in 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 reorganise the Police and to make it a more efficient instru the prevention and detection of ment for ,, 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 establish ment under a State Government shall, 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 them selves. Section 3, however, provides that the super intendence of the police throughout a general police district shall vest in and shall be exercised by the State Government to which such district is subordi nate. This does· not speak• of the superintendence • •• Riii<i;R- '"'"""' S1ai.of Bi.la< J!.,m.ffr D<gol J, 802 SUPREME COURT REPORTS [1964] VOL. 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 ,1 district 1s vested in the District Superintendent. These officers exercise no administrative control over the Excise Officers. f lawful • for Section 47 makes it 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·dis trict, by the District Superintendent of Police. This is a clear indication that f he Act purported to bring the entire police whether controlled under the Act or not, ·.vithin its purview in the area where the Act be in force. 'police' thereby 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 in the Act mean•· to include all persons who would be enrolled under that Act, indi cating 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 coniidered different from police officers and that clear provisions were enacted for certain officers of the Revenue and Police Departments to be deemed' Excise Officers. 2 s.C:.R. SUPREME COURT REPORTS 803 Regulation XX.XIV of 1793 re-enacted with rules passed on April 16, l 790, modifications the and subsequent dates, tax upon intoxicating liquors and drugs and for. preventing illicit manufacture and vend of them. This was repealed by Regulation X of 1813. for levying a 1963 Roja Rttm J ~iswal v • . "tall of Bif, ar Raghu.tar Daysi J 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· Regu· lations 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 altera tions and amendments, the following rules have been passed". and thus emphasized that the Regulatian related to revenue. Section XVIII the branch of public 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 insti tute 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 suspect ed of offences under the Regulation to be apprehend ed so that a regular enquiry might be made into the merits of the case. Officers in charge of the abkarry 80( SUPREME COUR t REPOR ts [1 !l64] vot. 1963 Raja Rtrm Joi1wol v. ~tat• ttf Bihdr mohaul were given power under s. XXIII to issue search warrants. Section XXXI made the collectors of land revenue entitled lo a commission on the net amount of the abkarry revenue realised by them.

#1813. Act XXI of 1856 repealed Regulation X of Its title is 'An Act to consolidate and amend · the· law relating to the Abkarce 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 intoxica tmg drugs, and the collection of the revenue derived therefrom, should be consolidated and amended : It is enacted as follows." the Collectors tuhsecldar or· peshkar. Section II says that the Collectors of land revenue will be in charge of the collection of the revenue. arising from the manufaciure of spirits and the sale of spirits, liquors and intoxicating drugs. Section IV to appoint darogahs, empowered jemadars, peons, surveyors, gaugers and other officers for the collection of the abkaree revenue and for the prevention of smuggling. The office of abkaree daro gah could be combined with that of any tuhseeldar, In such cases s. IV .naib provided that those officers and officers Subordinate to them would be held and deemed to be Abkaree the meaning of the Act. The officers within Abkaree officers were empowered under s. L V to enter and inspect shops or premises of licensed Manu facturers or retail vendors. Section L VI 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 posses sion of them. ' Powers of arrest under certain circum stances were also conferred on them by s. LVII. Section LXV further provided that all police officers were required to aid the Abkaree Officers in Raja Ram Ja•swol •• State of Bihar Raghubar Dayal J. 2 S.C.R. SUPREME COURT REPORTS 805 the due execution of the Act upon notice given or request made by such officers. The expression 'police officers' and 'abkaree 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 empow ered 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 i.n circumstances specified in that section. Section LIX provided for the vesting of certain in the officers of the Police, Customs and powers Revenue Departments and authorised the Govern ment to invest those officers with powers with respect to the seizure of and search for spirituous and fer mented 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 the Legislature specifically it considered necessary, for ss. IV and LIX that provided, whenever 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 to a Police Officer that no confession made would be used accused. person. In view of the provisions of the first Regula tion XXII of 1793 dealing with the creation of the Police direct control of the the Abkaree Department Government and of in evidence against an 1993 R•j• R•m JairtP11l v. Stott oj 8ihar 806 SUPREME COURT REPORTS [19M] VOL. in clear the procedure govel"l'led by Regulation XXXl V of l i9;{ up 1856, it is not po!sible to say, in my opinion, that the Legislature when using the expression 'police officer' in s. 148 of the Code of Criminal Procedure intended that expression to include the of 1861, Abkaree Officers who had powers of investigation, though without any reference to be followed in carrying out the investigation neces!ary 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 terms that certain officers of the other departments would be deemed to be Abkaree Officers in certain circum stances. It follows therefore that if the Legislature had intended to use the expression 'police officers' in the Code of Criminal Procedure of 18Hl or i11 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 it could have very easily said were conferred, that a confession to a police officer or such other in evidence or officers would be inadmissible it could have explained the expression 'police that is, oflicer' for the purposes of that section, s. I 48 of the Criminal Procedure Code of 1861 or s. 25 of the Evidence Act of 1872. I ts omi ssion 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 in which it is construed Act in such a general sense in Nanoo v. Emperor (1 Sharif v. ), Ameen Emperor ('), Public Prosecutor v. Paramasfram (1l. I may refer Jlarwari the case cited as Radii.a v. King Emperor ('), where Kishtm it was held that an Excise Officer was not a the meaning of s. 25 of police officer within the Evidence Act. Of the three Judges, Courtney Terrel, C. J., expressed his disagreement with the (2) (1934) I.L.R. 61 Cal. 607, (4) (1932) l,L,R. 12 l'•~ '@, (I} (t926) l.L.R. 51 Dom, 78. (3) A.!,R, 19~3 Mad, 917. ,2 ·s.C.R. SUPRENIE COURT REPORTS 807 in Nanoo v. view, of the Bombay High Court Emperor (1 ), and, after stating that the decision in .· Hurribole'.s case('), had been much mis-understood, said .. 1963 Raja &m I al1""1 •• Stal1 of Biltisr Raghubar Doy«l /, "The fact is that the term 'police officer' is sufficiently well understood to allow of its use without any pr.i!cise definition. Thus it is well recognised that different countries and states respective police officers confer upon .. 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 cm, mtry where he is in fact a police officer is not admissible in an Indian trial." He ,also expiessed 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 ca~ry .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. Faz! 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 (I) (1926) l,L.l\. 51 Bom, 78. (2) (1871) I.L.R. I Cal. 21YT. -·-808 SUPREME COURT REPORTS [1964) WOL. < ~ ' ' l ~ \-. 1963 ... ~,. Raja Ram Jaiswal •• State of Bihar I Raghuba' Dayal J. I I· 'police officer' and· ·enlarge unduly theri si:;6pe of the-~ection .. T]lere was nothing t\) prevent-the framers of the· Evidence Act from saying •ex· pressly that confessions made to a- polieelofficer as well as those perspns who are for,.the time being and for certain limited purposes invested with the powers of a police o1ficer',are inadmi · - ssible in evidef\ce." -~garwala J., expressed the opinion that th~expression '.police officer' in s. 25 of the Evidence' Act referred to the, police officers -~nrolled in or a.Ppointed as members of the police force. . I agree with respect with the wider view taken by, the learned Chief J us.tice ,and Faz\, Ali, J. I therefore hold that the .Excise.,Ipspe<;tor fllld Sub-Inspector empowered by the State . Goveqn;~ent under s. 77(2) of the Act are not police officers within the meaning of s. 25 of l:he ·Evidence Act and that the aforesaid officers cannot be treated to ·9!! p.olice officers for the purposes of s. 162 of the Codci of Criminal Procedure. Section 162 does not. confer any power on a'police officer. lt; de\(ls.with' the use which can be made of the statementlj recordei!,by a police officer carrying ouf investiga \ion .wuler Chapter XIV of the Code. The investigation which the aforesaid .Excise Officer conduct~ ia not under. Chapter XIV of the Code, but is under .t!Je-provisions of the Act and therefore this is a further reason for non-applicablity ofs. 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 1Nepali Ganja is not such on which reliance could be placed for majntaining his conviction. Th<; ·High Court relied on it in view of the confession 'of the appellant. .~ • 1 I , ·2, S.C.R. "; I SUPRIEME COURT REPORTS 809 _ the .by .alleged confession ' The conduct of· the E?tcise Inspector in tampering with 'the seizure memo is such as' to affect his ,bona fides and therefore ther~ .is a lot of doubt about the appallant being voluntary. I am not .satisfied about the tonfession beihg voluntary and would therefore not use it in Sl\pport of the unsatisfactqry· statements of prosecution witnesses about !he recovery of the ganja from his possessiop and would not sustain 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 ' i::o:osider the tampering of. the seizure memo in ,all its aspects or its .effect on the alleged voluntarines~ ·of the confession and, consequently, on rile case. Appeal allowed. M/s. KESORAM COTTQN MILL~ LTD. v. GANGADHAR AND OTHERS (K. N. WANCHOO and K. C. DAS GU!'TA JJ.) Industrial Dispute-Go slow and strike-Agreement inquiry pending Susp•naion of Workmen held-R•ferenCB wqvea for period of, auspension-,/nquiry-Natural Juatioe-No examination-'in-chief of witnessea~Previou. statement i;:ead- Oopy of statement not given to workmen-Propriety of procedure. adjudication-If workmen inquiry-No entitled The appellant suspended 1600, workmen as they resorted illesal strikes. On December 23, 1957, all to go slow at\d 19_63 -- Ral?J Ram JaiJwal v. Stale of Bihar Roghu6ar DaJal J, 1963 April I -'