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PETITIONER: BADKU JOTI SAVANT

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT: 01/03/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. (CJ) HIDAYATULLAH, M. SHAH, J.C. SIKRI, S.M.

CITATION:  1966 AIR 1746            1966 SCR  (3) 698  CITATOR INFO :  R          1970 SC 940  (8,25)  R          1970 SC1065  (4,12,13,14)  R          1974 SC2136  (21,22)  R          1981 SC 379  (16,47,50,53,54,55,57,58)  R          1991 SC  45  (15,16,18,21)

ACT: Sea  Customs  Act  (8 of 1878),  s.  167(81)-Offence  under- Offender whether must be directly concerned in the import of smuggled gold. Central  Excise  and  Salt Act (1  of  1944),  s.  21-Deputy Superintendent of Customs and Excise given certain powers of an  ’officer-in-charge  of a  police  station’-Such  officer whether  a  police  officer within  the  meaning  of  Indian Evidence Act (1 of 1872), s. 25.

HEADNOTE: The  appellant who lived in a village near Goa was found  in possession  of contraband gold.  He was prosecuted under  s. 167(81)  of the Sea Customs Act read with s. 9 of  the  Land Customs Act (9 of 1924).  The trial Magistrate convicted him but  the  Sessions  Judge relying on  the  decision  of  the Calcutta  High  Court in Sitaram Agarwala’s  case  acquitted him.   The  High  Court of Mysore,  in  appeal  against  the acquittal, considered the evidence and relying, inter  alia, on  the  statement  made  by the  appellant  to  the  Deputy Superintendent of Customs and Excise held him guilty.   With certificate the appellant came to this Court.  The questions that  felt  for consideration were : (i)  whether  the  view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwala’s case with  respect to  the interpretation of s. 167(81) was correct,  and  (ii) whether  the statement made by the appellant to  the  Deputy Superintendent of Customs & Excise was admissible in view of s.   25 of the Indian Evidence Act. HELD  :  (i) The High Court was right in not  following  the view of the Calcutta High Court in Sitaram Agarwala’s  case, the  correct view as to the interpretation of s. 167(81)  of the  Sea Customs being that the section takes in even  those

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persons  who may not be concerned with the actual import  of the prohibited goods. [700 G-H] Sachidananda  Banerjee,  Assistant Collector of  Customs  v. Sitaram Agarwal, [1966] 2 S.C.R. 1, followed. Sitaram Agarwal v. State, [1962] Cr.  L.J. 43, disapproved. (ii)The  Central Excise and Salt Act, 1944 does not  confer all  the  powers  of the police officer  on  Central  Excise Officers.   The powers confered on them by s. 21(2)  of  the Act are only for the purpose of inquiry under s. 21(1); they would  not  entitle  the said officers  to  file  a  charge- sheetunder  s.  173  of  the  code  of  Criminal  Procedure. Therefore even though a central excise officer may have when making enquiries for purposes of the Act, powers an officer- in-charge  of  a  police station has  when  investigating  a cognizable  offence,  he does not thereby  become  a  police officer  within the meaning of s. 25 of the Indian  Evidence Act, and the statement of an accused person recorded by  him is not hit by that section . [704 B-C, F-G] Raja Ram Jaiswal v. State of Bihar, [1964] 2 S.C.R. 752  and Nanoo  Sheikh  Ahmed v. Emperor, (1927) I.L.R. 51  Bom.  78, distinguished. State of Punjab v. Barkat Ram,, [1962] 3 S.C.R. 338,  relied on. 699 Radha Kishun Marwari v. King-Emperor, (1933) I.L.R. 12 Patna 46, referred to.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 26  of 1964. Appeal  from the judgment and order dated November 20,  1963 of the Mysore High Court in Criminal Appeal No. 49 of 1963. B.   R. L. Iyengar and A. G. Ratnaparkhi for the appellant. A.   K. Sen, D. R. Prem, R. H. Dhebar and B. R. G. K. Achar, for the respondent. Niren  De,  Additional  Solicitor-General and B.  R.  G.  K. Achar, for the intervener. The Judgment of the Court was delivered by Wanchoo,  J. This is an appeal on a certificate  granted  by the  Mysore High Court.  The appellant was prosecuted  under s.   167  (81) of the Sea Customs Act (No. 8 of  1878)  read with s. 9 of   the  Land Customs Act (No. 19 of 1924).   The appellant lives in  a  village which is close to  Goa.   The incident  out  of which the present appeal has  arisen  took place on November 27, 1960 when Goa was not a part of  India but was Portuguese territory.  The Deputy Superintendent  of Customs, Goa Frontier Division, Belgaum received information that  contraband  goods would be found in the house  of  the appellant.  Consequently he raided the house in the  company of  three  panchas.  The appellant was not  present  in  the house when the raid took place, but his mother and sisterin- law  were there.  After necessary formalities the house  was searched and a big steel trunk, a cane-box and another steel trunk  were  taken down from the loft in  the  kitchen.   On opening, a belt, with four pouches stitched to it, was found in the big steel trunk.  Inside the pouches, four gold  bars with  foreign  marks and labels of Goa  Customs  authorities were  found.  Besides these, a large sum of money and  three small cut pieces of gold were also found in the box.  In the other two boxes also various sums of money in currency notes were found.  The weight of the gold bars was 343 tolas. On November 30, 1960, the appellant was arrested and  inter- rogated by the Deputy Superintendent of Customs and  Excise.

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The  answers  given by him were reduced in writing  and  his signature  was taken on the writing after it had  been  read over  to  him.   During this  interrogation,  the  appellant admitted  that the four gold bars had been given to  him  on November  27, 1960 in the moming by one Vittal  Morajkar  of Goa  so that he might deliver them back to Morajkar  on  the motor-stand  at Belgaum or near there, and be had kept  them in his house.  As the gold was foreign gold 700 and  as under the notification under s. 8(1) of the  Foreign Exchange Regulation Act, 1947, import of gold into India had been   for,bidden  except  with  the  general   or   special permission  of the Reserve Bank of India, the appellant  was prosecuted  on a complaint filed by the Assistant  Collector of  Central Excise and Land Customs, Goa Frontier  Division, Belgaum. The Magistrate convicted the appellant and sentenced him  to imprisonment  and fine and also ordered confiscation of  the four  gold  bars.   On appeal to  the  Sessions  Judge,  the appellant  was  acquitted  relying on the  decision  of  the Calcutta  High Court in Sitaram Agarwala v. State(1).   Then followed an appeal by the State to the High Court.  The High Court  disagreed  with the view takeu by the  Calcutta  High Court  in  Sitaram Agarwal’s case(1) and held  that  even  a person  like the appellant who might have no direct  concern with  the  import  of gold in any way was  liable  under  s. 167(81)  of  the  Sea  Customs Act.   The  High  Court  then ,considered  the evidence and relying on the statement  made by the appellant to the Deputy Superintendent of Customs and Excise  and also on the other evidence produced in the  case held  that  the appellant was guilty.  In  consequence,  the acquittal  of the appellant was set aside and the  order  of conviction  and  sentence  passed  by  the  Magistrate   was restored.  The appellant then applied to -the High Court for a certificate to appeal to this Court, and as two  questions of  law of general importance arose in this case,  the  High Court granted the certificate.  The two questions were : (1) whether the view taken by the High Court differing from  the view  taken by the Calcutta High Court in Sitaram  Agarwal’s case(1) with respect to the interpretation of s. 167(81) was correct,  and  (ii)  whether  the  statement  made  by   the appellant to the Deputy Superintendent of Customs and Excise was  admissible in evidence in view of s. 25 of  the  Indian Evidence  Act (No. 1 of 1872).  These are the two  questions which have been argued before us on behalf ,of the appellant in the present appeal. So  far  as  the first question is  concerned,  namely,  the interpretation  of  s. 167(81) of the Sea Customs  Act,  the matter  is  now  settled by the decision of  this  Court  in Sachidananda  ’Bannerjee, Assistant Collector of Customs  v. Sitaram Agarwal and another(2).  This Court has held therein that  the interpretation put by the Calcutta High  Court  in the  case of Sitaram Agarwala(1) is not correct and that  s. 167(81) of the Sea Customs Act can also take in persons  who may not be concerned the actual import of prohibited  goods. The  view  taken by the Mysore High Court is  in  accordance with the view taken by this Court in that appeal and in view of that,, learned counsel for the appellant has admitted (1) [1962] Cr.  L.J. 43. (2) [1966] 2 S.C.R. 1. 701 that the appellant would be guilty within the meaning of  s. 167 (81) of the Sea Customs Act. This leaves only the second question, and it has been  urged on  behalf  of the appellant that a Central  Excise  Officer

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under  the  Central  Excises and Salt Act,  No.  I  of  1944 (hereinafter  referred  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 Customs Act, he  was  still  a police  officer,  and  the  statement made  to  him  by  the appellant  on November 30, 1960 which is in the nature of  a confession would be inadmissible under s. 25 of the Evidence Act.   It  may  be added that the High  Court  had  in  this connection 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 Jaiswal  v.  State  of Bihar(2)  where  by  majority it was  held  that  an  excise officer  under  the Bihar and Orissa Excise Act  (No.  2  of 1915)  was a police officer within the meaning of s.  25  of the Evidence Act. There  has been difference of opinion among the High  Courts 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 Nanoo, Sheikh Ahmed v. Emperor(3).  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 Radha Kishun Marwari v. King-Emperor(4).  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. It  is submitted on behalf ’of the appellant that  the  view taken  by the Bombay High Court in Nanoo Sheikh Ahmed(3)  is the  correct 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 urged on behalf of the State that the  view taken by the Patna High (1)  [1962] 3 S.C.R. 338. (2) [1964]2 S.C.R. 752. (3)  [1927] I.L.R. 51 Bom. 78. (4)  [1933] I.L.R. 12 patna 46. Sup.C.1./66-13 702 Court  in Radha Kishun Marwari(1) 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 conclusion that even in the broad view, a Central Excise Officer  under  the  Act  is not a  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  for this main purpose.  In order that  they  may

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carry  out  their 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  punishment  which  may  extend   to imprisonment upto 6 months or to find 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 cls. (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 thereunder 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 Magistrate,  or, if there is no such Central Excise  Officer within  a reasonable distance, to the  officer-in-charge  of the  nearest  police station.  These sections  clearly  show that  the powers of arrest and search conferred  on  Central Excise Officers are really in support of 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 (1) [1933] I.L.R. 12 Patna 46. 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. (1) 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 jurisdiction in the case, or forward  him

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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 purposes of cl. (b)  above can  in  our opinion only be a police officer  properly  so- called as the scheme of the Code of Criminal Procedure 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  "ample, 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-incharge of a  police  station  when investigating a cognizable case, that is for the purpose  of his  inquiry  under sub-s. (1) of s. 21.  Section 21  is  in terms different fro s. 78(3) of the Bihar and Orissa  Excise Act,1915 which came to be considered in Raja Ram Jaiswal’s 704 case(1)  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-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".  It cannot therefore  be said  that  the  provision  in s. 21  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 officerin-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. It has been urged before us that if we consider s. 21 in the setting of s. 14 of the Act, it would become clear that  the enquiry   contemplated  under  s.  21(1)  is  in   substance different from investigation pure and simple into an offence under  the Code of Criminal Procedure.  It is not  necessary to decide whether the enquiry under s. 14 must also  include enquiry  mentioned  in s. 21 of the Act.   Apart  from  this argument  we  are  of the opinion that  mere  conferment  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 person entrusted with investigation under s. 202 of  the Code of Criminal Procedure would become a police officer. 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 to be a police station.  All that  s. 21  does  is to give him certain powers to aid  him  in  his enquiry.  In these circumstances we are 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  cognizable offence, he does not thereby become  a  police officer  even if we give the broader meaning to those  words

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in  s.  25  of  the Evidence 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 Ram Jaiswals’ case(1)  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, (1) [1964] 2 S.C.R. 752, (2) [1962] 3 S.C.R. 338. 705 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 unless 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  Evidence  Act  has  no application in the present case.  It is not 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 admissible.  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. 706