BADKU JOTI SAVANT I'. STATE OF MYSORE March I v. Sitararn Agarwal & Anr.

This leaves only the second question, and it has been ur1o1ed on behalf of the appellant that a Central Excise Offi~er under the Central Excises and Salt Act, No. l of 1944 (heremafter refer red to as the Act) is a police officer within the meaning of those words in s. 25 of the Evidence Act. Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Custm, ns Act, he was still a police officer, and the statement made to him by the appellant on November 30, 1960 which is in the nat'!lre of a confession would be inadmissible under s. 25 of the Evidence Act. It may be added that the High Court had in this connec tion relied on the judgment of this Court in the State of Punjab v. Barkat Ram() where it had been held by majority that a Customs Officer under the Sea Customs Act was not a police officer within the meaning of s. 25 of the Evidence Act. The appellant however relies on a later decision of this Court in Raja Ram Jaiswa/ v. State of Bihar(Z) where by majority it was held that an excise officer under the Bihar and Orissa Excise Act (No. 2of1915) wa~ a police· officer within the meaning qf s. 25 of the Evidence Act. There has been difference of opinion among the High C01arts. in India as to the meaning of the words "police officer" used in s. 25 of the Evidence Act. One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so-called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned. The leading case in support of this view is Nano<> Sheikh Ahmed v. Emperor('). The other view which may be called the narrow view is that the words "police officer" in s. 25 of the Evidence Act mean a police officer properly so-called and do not include officers of other departments of government who may. be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences and so on. The leading case in support of this view is Radh~ Kishun Marwari v. King-Emperor(•). The other High Courts have followed one view or the other, the majority being in favour of the view taken by the Bombay High Court. B c D E F G It is submitted on behalf of the appellant that the view taken by the. Bombay High Court in Nanoo Sheikh Ahmed(') is the cor rect view and that the view of the Patna High Court in Radha Kishun Marwari(4 ) is not correct. On the other hand it has been H urged on behalf of the State that the view taken by the Patna High (I) [1962] 3 S.C.R. 338, (3) [1927] I.L.R. SI Born. 78. MllSup.C.I./66-13 (2) [1964) 2 S.C.R, 752. (4) [1933] I.L.R, IZPatoa 46. 702 SUPREME COURT REPOlt'l'S [1966] 3 S.C.R. Court in Radha Kislzu11 Manmri(') is the correct one. Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court. But as we have come to the con clusion that even 0n th~ broad view, a Central Excise Officer under the Act is not :. police officer, it is unnecessary to express a final opinion on the two views on the meaning of the words "police officer" in s. 25 of the Evidence Act. We shall proceed on the assumption that the broad view may be accepted and that requires an examination of the various provisions of the Act to which we turn now. The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder In order that they may carry out their for this main purpose. duties in this behalf, powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book. Section 9 of the Act provides for punish ment which may extend to imprisonment upto 6 months or to fipd upto Rs. 2,000 or both where a person (a) contravenes any of the provisions of a notification issued under s. 6 or of s. 8 or of a rule made under cl. (iii) of sub-section (2) of s. 37; (b) evades the payment of any duty payable under the Act; (c) fails to supply any information which he is required by rules made under the Act to supply or supplies false information; and (d) attempts to commit or abets the commission of any of the offences mentioned in els. (a) and (b) above. Under s. 13 of the Act, any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to believe to be liable to punishment under the Act. Section 18 lays down that all searches made under the Act or any rules made there under and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure, 1898 relating respectively to searches and arrests made under that Code. Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magis trate or if there is no such Central Excise Officer within a rea the nearest police iOnable 'distance, to the officcr-in-<.:harge of station. These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support -0f their main function of levy and collection of duty on excisable goods. Strong reliance has however been placed on behalf of the appellant on s. 21 of the Act, the material part of which runs thus: "21. ( 1) When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so (l) (1933] 1.L.lt. 12 htna 46. A B c D E F G H • i • - ""' • • B. J. SAVANT v. MYSORE (Wanchoo, J.) 703 arrested to a Magistrate, the Central Excise Officer shall proceed to inquire into the charge against him. . (2) For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure, 1898, when investigating a cognizable case; Provided that. ................................. " It is urged that under sub-section (2) of s. 21 a Central Excise Officer under the Act has all the powers of an officer-in-charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in s. 25 of the Evidence Act. It is true that sub-section (2) confers on the Central Excise Officer under the Act the same powers as an officer-in-charge of a police station has when investigating a cognizable case; but this power is conferred for the purpose of sub-s. (I) which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him. Thus under s. 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person. further under proviso (a) to sub-s. (2)of s. 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person, he shall either admit him to bail to appear before a Magistrate having jurisdic tion in the case, or forward him in custody to such Magistrate. It does not however appear that a Central Excise Officer under the Act has power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure. Under s. 190 of the Code of Criminal Procedure, a Magistrate can take cognizance of any offence either (a) upon receiving a complaint of facts which constitute such offence, of (b) upon a report in writing of such facts made by any police officer, or (c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, . that such offence has been committed. A police officer for pur poses of cl. (b) above can in our opinion only be a police officer properly so-called as the scheme of the Code of Criminal Proce dure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl. (a) above if he wants the , Magistrate to take cognizance of an offence, for example, under s. 9 of the Act. Thus though under sub-section (2) of s. 21 of the Central Excise Officer under the Act has the powers of an officer-in charge of a police station when investigating a cognizable case, that is for the purpose of his inquiry under sub-s. (1) of s. 21. Sec tion 21 is in terms different from s. 78(3) of the Bihar a_nd Orissa · Excise Act, 1915 which came to be considered in Raja Ram Jaiswcil' s B c D E F G H 704 SUPREME COURT REPORTS (1966] 3 S.C.R. case(') and which provided in terms that "for the purposes of section 156 of the Code of Criminal Procedure 1898 the area to which an excise officer empowered under section 77: sub-sec tion (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 It cannot therefore be said that the provision in s. 21 station". is on par with the provision in s. 78(3) of the Bihar and Orissa Excise Act. All that s. 21 provides is that for the purpose of his enquiry, a Central Excise Officer shall have the powers of an officer in-charge of a police station when investigating a cognizable case. But even so it appears that these powers do not include the power to submit a charge-sheet under s. 173 of the Code of Criminal Procedure, for unlike the Bihar and Orissa Excise Act, the Central Excise Officer is not deemed to be an officer-in-charge of a police station. A B c It has been urged before us that if we considers. 21 in the set• ting of s. 14 of the Act, it would become clear that the enquiry contemplated under s. 21(1) is in substance different from investi gation pure and simple into an offence under the Code of Criminal D It is not necessary to decide whether the enquiry Procedure. under s. 14 must also include enquiry mentioned ins. 21 of the Act. Apart from this argument we are of the opinion that mere confer ment of powers of investigation into criminal offences under s. 9 • of the Act does not make the Central Excise Officer a police officer even in the broader view mentioned above. Otherwise any E person entrusted with investigation under s. 202 of the Code of Criminal Procedure would become a police officer. • ,,.. , J.... ... , .... ' 1 ... In any case unlike the provisions of s. 78(3) of the Bihar and Orissa Excise Act, 1915, s. 21 (2) of the Act does not say that the Central Excise Officer shall be deemed to be an officer-in-charge of a police station and the area under his charge shall be deemed lo be a police. station. All that s. 21 does is to give him certain In these circumstances we are powers to aid him in his enquiry. of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer-in-charge of a police station has when investigating a cog nizable offence, he docs not thereby become a police officer even if we give the broader meaning to those words in s. 25 of the Evi '1ence Act. The scheme of the Act therefore being different from the Bihar and Orissa Excise Act, 1915, the appellant cannot take advantage of the decision of this Court in Raja RamJaiswals' case( I) taking even the broader view of the words "police officer" in s. 25 of the Evidence Act. We are of opinion that the present case is more in accord with the case of Barkat Ram(2). In this view F G ~ (I) [1964) 2 S.C.R. 7S2. (2) [1962] 3 S.C.R. 338. "'· • • • ~.r • B· J, SAVANT v. MYSORE (Wanchoo, !.) 705 A IS c of the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by s. 25 of the Evidence Act and would be admissible in evidence un less the appellant can take advantage of s. 24 of the Evidence Act. As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats. This was not accepted by the High Court and therefore s. 24 of the It is not Evidence Act has no application in the present case. disputed that if this statement is admissible, the conviction of the appellant is correct. As we have held that a Central Excise Officer is not a police officer within the meaning of those words in s. 25 of the Evidence Act the appellant's statement is admis sible. It is not ruled out by anything in s. 24 of the Evidence Act and so the appellant's conviction is correct and the appeal must be dismissed. We hereby dismiss the appeal. Appeal dismissed. --.. • J " ;"' ' -~ --•