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PETITIONER: RAJA RAM JAISWAL

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT: 04/04/1963

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K. DAYAL, RAGHUBAR

CITATION:  1964 AIR  828            1964 SCR  (2) 752  CITATOR INFO :  D          1966 SC1746  (8,9,11)  D          1970 SC 940  (7,8)  E&D        1970 SC1065  (4,12,13)  D          1974 SC2136  (22)  R          1981 SC 379  (17,42,45,46,48,52,57)  F          1991 SC  45  (10,13,14)

ACT:   Excise  Officer-Confession made to an Excise Inspector  in the course of investigation-If a confession made to a police officer-"Police Officer", Meaning of-Excise Inspector, if  a police  officer--Code of Criminal Procedure 1898 (Act  V  of 1908) ss. 156, 162-Indian Evidence Act, 1872 (Act 1 of 1872) s.   25-Bihar  and Orissa Excise Act, 1915 (Act 2 of  1915), ss.  2  (8), 7, 47 (a), 68, 69, 70, 71, 72, 73, 77, 78,  80, 82,  95, 96.

HEADNOTE:     The appellant along with five other. people, one of whom was  driving  the car, were traveling in a car belonging  to the  appellant’s brother.  The car was stopped by the Excise Inspector  who conducted a search of the car  and  recovered five  bundles of Ganja, four from the luggage boot  and  one from  the  leg space in front of the seat of the  car.   The boot could be opened with the keys in the possession of  the appellant  as well as one of the keys in the  possession  of the  driver.  The appellant made a confession to the  Excise Inspector  admitting  his  guilt.   At  the  trial  of   the appellant  alongwith the other persons he pleaded  an  alibi and pleaded innocence.  The  753 trial  court acquitted all the other accused  but  convicted the appellant under s. 47 (a) of the Bihar and Orissa Excise Act.   1915,   and  sentenced  him   to   undergo   rigorous imprisonment  for one year and to pay a fine of  Rs.  2,000. On  appeal  the  High Court  affirmed  this  conviction  and sentence.   The appellant thereupon appealed to  this  Court with special leave. In  the appeal before this Court it was contended  that  the confessional statement Ex. 3 upon which reliance was  placed by the High Court as supporting the evidence of P. W. 2,  P.

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W. 3 and P. W. 4 was inadmissible and if this statement  was put  aside the evidence of these prosecution  witnesses  was insufficient  in  law  to  sustain  the  conviction  of  the appellant.   In  objecting  to  the  admissibility  of   the statement  reliance  was  placed  on s.  25  of  the  Indian Evidence  Act,  1872  and s. 162 of  the  Code  of  Criminal Procedure in as much as it was recorded by the Inspector  of Excise  while  he was investigating into an  excise  offence under Ch.  XIV of the Code of Criminal Procedure. Held  (per Subba Rao and; Mudholkar JJ.) the words,  "Police Officer"  in  s.  25  of the Evidence  Act  are  not  to  be construed in a narrow way but have to be construed in a wide and  popular  sense.   Those words are  however  not  to  be construed  in so wide a sense as to include persons on  whom only  some  of  the  powers  exercised  by  the  police  are conferred. State of Punjab v. Barkat Ram [1962] 3 S. C. R. 338 referred to. By  virtue of s. 77 (2) read with s. 78 (3) of the  Bihar  & Orissa  Excise  Act,  1915,  an  Excise  Inspector  or  Sub- Inspector in the State of Bihar shall be deemed to be an  of charge  of a police station and is entitled  to  investigate any  offence under the Excise Act.  He can exercise all  the powers  which an officer in charge of a police  station  can exercise  under Ch.  XIV of the Code of Criminal  Procedure. Therefore   a   confession  recorded  by   him   during   an investigation  into an excise offence cannot  reasonably  be regarded  as  anything  ’different from a  confession  to  a police officer. The  test  for  determining whether a person  is  a  "police officer" for the purpose of s. 25 of the Evidence Act  would be  whether  the  powers  of  a  police  officer  which  are conferred on him or which arc exercisable by him because  he is  deemed  to be an officer in charge of a  police  station establish a direct or 754 substantial relationship with the prohibition enacted by  s. 25  of  the  Evidence  Act  that  is  the  recording  of   a confession.  in  other words the test would be  whether  the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect delinquent. It is the power of investigation which establishes a  direct relationship  with  the  prohibitions under  s.  25  of  the Evidence Act.  Therefore where such power is conferred  upon an  officer,  the  mere fact that he  possesses  some  other powers  under another law would not make him any the less  a police officer for the purpose of s. 25. The  object  of enacting s. 25 of the Evidence  Act  was  to eliminate  from consideration confession made to an  officer who  by  virtue  of his position, could  extract  by  force, torture  or  inducement  a confession.   An  Excise  Officer acting  under  s. 78 (3) of the Bihar & Orissa  Excise  Act, 1915, would be in the same position as an officer in  charge of  a police station making an investigation under Ch.   XIV of  the Code of Criminal Procedure.  He would likewise  have the  same  opportunity  of  extracting  confession  from   a suspect.   It  is  therefore difficult to  draw  a  rational distinction  between  a  ,confession recorded  by  a  Police Officer strictly so called and recorded by an Excise Officer who is deemed to be a police officer. Case law reviewed. Harbhanian  Sao  v. Emperor, (1927) 1. L. R. 54,  Cal.  601, Matilal  Kalwar  v. Emperor, A. I. R. 1932 Cal.  122,  Ameen Sharief  v.  Emperor,  (1934) 1. L. R. 61  Cal.  607,  Nanoo Sheikh Ahmed v. Emperor, (1926) I. L. R. 31 Bom. 78,  Public

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Prosecutor  v.  O.  Paramasivam, A. I.  R.  1953  Mad.  917, Ibrahim v.   Emperor, A. 1. R. 1944 Lah. 57, Radha Kishun Maruwari V.   King  Emperor,  1932 I. L. R. 12 Pat. 46 and  Queen  v. Hurribole  Chunder  Ghose,  (1876)  1. L.  R.  1  Cal.  207. referred to. There is one more reason also why the confession made to  an Excise  Sub-Inspector  must be excluded, that is,  it  is  a statement  made  during  the course of  investigation  to  a person who exercises the power of an officer in charge of  a police station.  Such a statement is excluded from  evidence by  s. 162 of the Code of Criminal Procedure except for  the purposes  of contradiction.  Therefore both by s. 25 of  the Evidence  Act  as well as s. 162 of the  Criminal  Procedure Code  the  confession of the appellant  is  inadmissible  in evidence.  755 Per Raghubar Dayal, J. The appeal should be allowed but  for different reasons. A  scrutiny of the various provisions of the Bihar &  Orissa Excise  Act,  1915, leads to the conclusion that  the  legal position  of  an Excise Officer is similar to  that  of  the Customs Officer whom this Court has held to be not a "Police officer" in the case of State of Punjab v. Barkat Ram, A. 1. R. 1962 S. C. 276. The  provisions  of ss. 7, 89, 95 and 96 of  the  Bihar  and Orissa Excise Act, 1915, are sufficient to indicate that the action of Excise Officers under the Act and under any  other law relating to excise revenue is treated alike.  The Act is like Sea Customs Act primarily concerned with the collection of the Excise revenue. An Excise Officer cannot be a police officer for the purpose of  s. 25 of the Evidence Act at all times.  He cannot be  a police officer only when he is discharging the duties of  an investigating  officer.   The  mere  fact  that  the  Excise Officer possesses certain powers similar to those of  police officers  in  regard to infraction of excise laws is  not  a sufficient  ground  for holding them to be  police  officers within the meaning of s. 25 Evidence Act. Under  s. 85(3) of the Bihar & Orissa Excise Act,  1915  all officers other than collectors who make arrests, searches or seizures under the Act are deemed to be police officers  for the purpose of the provisions relating to arrests,  searches and  seizures  in  the  Criminal  Procedure  Code.   It   is therefore  clear  that the Legislature did  not  contemplate that  Excise Officers performing other duties  corresponding to the duties of the regular police officers be deemed to be police officers merely on account of their performing  those duties.  It follows that Excise Officers when  investigating offenses under the Act are not to be deemed police  officers for the purpose of the provisions about investigation in the Code of Criminal Procedure. The  effect  of  s. 78(3) can only be that in  view  of  the provisions  of sub-3s. (2) and (3) of s. 156 of the Code  of Criminal  Procedure no proceedings by the Excise Officer  so empowered  shall be called into question on the ground  that he was not empowered to investigate an offence. The history of the Code of Criminal Procedure as well as the Excise law shows that Excise Officers have been considered 756 different  from  police officers and that  clear  provisions were created for certain officers of the Revenue and  Police departments to be deemed Excise Officers. The  Excise  Inspector and Sub-Inspector  empowered  by  the State  Government under s. 77(2) of the Act are  not  police

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officers within the meaning of s. 25 of the Evidence Act and that  the aforesaid officers cannot be treated to be  police officers  for the purpose of s. 162 of the Code of  Criminal Procedure.

JUDGMENT:    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  125 of 1961. Appeal  by special leave from the judgment and  order  dated January  20,  1961  of  the Patna  High  Court  in  Criminal Revision No. 1274 of 1960. A.S.R. Chari, M.K. Ramamurthi, R.K. Garg, S.C. Agarwala  and D.P. Singh, for the appellant. D.Goburdhan, for the respondent. 1963.   April 4. The judgment of Subba Rao and Mudholkar  J. was delivercd by Mudholkar J. Dayal J. delivered a  separate judgment. MUDHOLEAR  J.-In  this  appeal by  special  leave  from  the judgment of the ]Patna High -Court affirming the  conviction of  the appellant under s. 47 (a) of the Excise Act and  the sentences of rigorous imprisonment for one year and of  fine amounting  to Rs. 2,000 awarded by the  Judicial  Magistrate First Class, Patna, the substantial question which falls for decision  is whether a confession made by the appellant  and recorded  by the Excise Inspector who was investigating  the case is inadmissible by reason of the provisions of s. 25 of the Indian Evidence Act, 1872. It is not disputed before us by Mr. Chari that on August  3, 1957, a motor car bearing No. WBC 562  757 was stopped by the Excise Inspector, R.R.P. Sinha (P.W.1) on the  Bayley Road, near the New Secretariat, Patna, at  10.00 p.m.  The  car  belongs to the  appellant’s  brother  Radhey Shyam;  but he was not at that moment in the car.   The  car was  then being driven by Jagdish Sah and the appellant  was sitting  by his -side.  Four other persons were  sitting  on the back seat.  The Excise Inspector searched the car in the presence of three witnesses Debendra Prasad Singh (P.W.  2), Paresh Nath Prasad Singh (P.W. 3) and Rabindra Prasad  Singh (P.W. 4) and recovered from the car five bundles of non-duty paid  Nepali  Ganja.  According to the prosecution  four  of them were recovered from the luggage boot of the. car  while one  was recovered from the leg space in front of the  front seat  of the car.  According to the appellant,  however,  no ganja was carried in the car and therefore, none was  seized from  the  car; Further, according to the  prosecution,  the appellant produced the keys with which the luggage boot  was opened.  The Excise Inspector made a seizure memo Ex. 2  and recorded  the statements of all the persons who were in  the car, including the appellant.  Exhibit 3 is the statement of the appellant. After  the investigation was completed all the  persons  who were  in  the car at that time including the  appellant  and Radhey Shyam, the brother of the appellant, were put  up-for trial  before the Judicial Magistrate.  He convicted all  of them but in appeal the Sessions judge, Patna, acquitted  all except  the appellant.  It is, therefore, not  necessary  to refer  to the defence taken by the acquitted  persons.   The appellant’s defence was that he was not traveling in the car at  the relevant moment and that he was at that time in  the house  of  Kanhai  Singh  (D.  W. 1)  which  is  situate  in Subjibagh  Mohalla  of Patna where he was  arrested  by  the

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Excise  Inspector  at 6.00 on the morning of August  4.  His defence 758 further is that after his arrest R. R. P. Sinha, P. W. I and other officers of the Excise Department took him in a  jeep, subjected  him  to  threats and abuses,  assaulted  him  and eventually  took his signature on a blank paper.   Thus  his defence  is  that he was falsely implicated  by  the  Excise Inspector.   In  view,  however, of the fact  that  all  the courts  have  accepted  the  evidence  of  the   prosecution witnesses which establishes the fact that the appellant  was actually  in  the  car when it was  stopped  by  the  Excise Inspector,  Mr.  Chari  has  rightly  not  challenged   that finding.   He  has also not contended that  the  appellant’s signature was taken on a blank paper by the Excise Officers. The  argument  he  advanced, however, is that  there  is  no legally  admissible  evidence  on the  basis  of  which  the appellant’s  conviction can be sustained.  The  confessional statement ]Ex. 3 upon which reliance has been placed by  the High  Court as supporting the evidence of P. W.  2  Debendra Prasad  Singh, P. W. 3 Paresh Nath Prasad Singh and P. W.  4 Rabindra  Prasad Singh is attacked as being inadmissible  in evidence and it is said that if this statement is put  aside the  evidence  of the three prosecution  witnesses  on  whom reliance  has been placed by the High Court is  insufficient in  law to sustain the conviction of the appellant under  s. 47 (a) of the Excise Act.               The relevant portion of s. 47 runs thus :               "Penalty  for unlawful import, export,  trans-               port, manufacture, possession, sale, etc.-               If  any person, in contravention of this  Act,               or  of any rule, notification or  order  made,               issued  ’or given, or license, permit or  pass               granted, under this Act.,-               (a)   imports,      exports,       transports,               manufactures,    possesses   or   sells    any               intoxicant                                   ;               or...        ...        ...     ...he shall be               liable  to imprisonment for a term  which  may               extend to one year or to  759               fine which may extend to two thousand  rupees,               or to both." The  evidence  of  P. Ws. 2, 3 and 4 taken  along  with  the evidence  of the Excise Inspector establishes the  following facts :               (1)   that  the appellant was sitting  by  the               side of the driver when the car was stopped by               the Excise Inspector ;               (2)   that  five  bundles  of  non-duty   paid               Nepali Ganja were recovered from the car               (3)   that  four bundles were recovered  from.               the  luggage boot of the car and one from  the               leg space in front of the front seat ;               (4)   that a bunch of keys marked Ex. 2 series               was recovered from the pocket of the appellant               and  another  bunch  of keys  marked  -Ex.   I               series  was recovered from the  possession  of               ’the driver Jagdish Sah               (5)   that  every key of Ex.  I  series  could               open the lock of the luggage boot and two keys               of Ex. 2 series could also open the lock. In  order to establish this, the prosecution has  relied  on the  seizure  memo  Ex.  F and the evidence  of  the  Excise Inspector and P. W. 2 Debendra Prasad Singh.  P. W. 3 Paresh

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Nath  Prasad  Singh and P. W. 4 Rabindra  Prasad  Singh.   A perusal  of  Ex.   F  would,  however,  show  that  material Alterations  and erasures appear to have been made  in  that document  by reason of which no reliance can be placed  upon it. The High Court has wholly ignored this Pact and we  are, therefore, entitled to take it into consideration.  It would appear that originally it was 760 shown  in  col.  5  and  6  taken  together  that  a  bundle containing  35 seers of ganja was found in the leg space  in front  of the rear seat but what was written  originally  in col.  6 has been over-written by inserting words  describing meaningless facts on top of the words originally written and in continuation of them.  In Col. 5 the weight of the bundle is  given  as 35 seers and below it weights  of  four  other bundles  are  mentioned.  They are 35 seers,  26  seers,  18 seers  and  6  seers.  The weight of the  first  bundle  was excluded from the bracket in which the weights of the  first three  bundles were included.  Then by  introducing  another bracket,  the first bundle was included within  it.  Against the  bracket  it is stated in col. 6 that the  bundles  were found  in the luggage boot.  The bundle weighing 6 seers  is not included in the bracket. Against it,there was  some other remark in col. 6 which has   been clumsily erased  and in its place it isstated  "In  the leg space in  front  of front seat." Again, in col. 8 wherever the appellant’s  name appears there appears to have been something else originally which was erased and his name written there subsequently.  A bare look at the document shows that it has been  materially altered  and is, therefore, not a kind of material on  which reliance  can  be placed.  It is only with the  aid  of  the confession  that  it can be accepted  as  incriminating  the appellant.   For, even the direct evidence of witnesses  was not  regarded  by  the High Court  as  worthy  of  credence, unaided by the confession. It  is indeed the prosecution case that one bundle of  ganja was  found  in  the leg space in front of  the  front  seat. Bearing in mind the fact that there were six persons in  the car  at  the  time and that the luggage boot  in  which  the bundles  were kept could be opened not merely with the  keys which  were recovered from the appellant but also  with  the keys which were recovered from the driver it is not possible to say,  761 though the driver has been acquitted, that the appellant was in exclusive possession of the ganja which was found in  the car  except with the aid of the confessional statement,  Ex. 3.  It follows, therefore, that the  appellant’s  conviction could  be maintained only if, we hold that the  confessional statement is admissible in evidence. Mr.  Chari  besides objecting to the  admissibility  of  the confessional statement relying on s. 25 of the Evidence  Act also contends that statement is rendered inadmissible by the provisions of s. 162, Code of Criminal Procedure inasmuch as it  was  recorded  by R. R. P. Sinha,  Inspector  of  Excise while  .he was investigating into an excise  offence.  under Ch. XIV of the Code of Criminal Procedure.               Section 25 of the Evidence Act reads thus: "No               confession  made to a police officer shall  be               proved  as  against a person  accused  of  any               offence." Undoubtedly  the  Inspector  R. R. P.  Sinha  is  an  Excise Officer  and not a police officer in the sense that he  does not belong to the police force or the police  establishment. It  has,  however,  been held in a large  number  of  cases,

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including the one decided by this court, The State of Punjab v.  Barkat Ram (1), that the words "Police’ Officer"  to  be found  in s. 25 of the Evidence Act are not to be  construed in  a  narrow  way but have to be construed in  a  wide  and popular  sense.  Those words, according to this  Court,  are however not to be construed in so wide a sense as to include persons  on  whom only some of the powers exercised  by  the police  are conferred.  This Court was there concerned  with the question whether a Customs Officer can be regarded as  a Police Officer and consequently whether a confession made to such  an  officer is hit by the provisions of s. 25  of  the Evidence Act.  In the (1)  [1962] 3 S. C. R. 338. 762 majority judgment Raghubar Dayal J., has observed :               "The   Customs  Officer,  therefore,  is   not               primarily  concerned  with the  detection  and               punishment of crime committed by a person, but               is  mainly  interested in  the  detection  and               prevention  of  smuggling of goods  and  safe-               guarding  the recovery of customs duties.   He               is  more concerned with the goods and  customs               duty, than with the offender." (p. 279). After  pointing  out that Customs Officers,  when  they  act under the Sea Customs Act for the prevention of smuggling of goods, also act judicially inasmuch as they are entitled  to confiscate the goods and levy penalties on the person  found smuggling, he said that the mere fact that similar powers in regard to detection of infractions of Customs laws have been conferred  on  Officers  of the Customs  Department  as  are conferred  on Officers of the Police is not  sufficient  for holding them to be police officers within the meaning of  s. 25  of the Evidence Act because the powers of  search  etc., conferred on the former are of a limited character and  have a limited object of safeguarding the revenues of the  State. The  majority, however expressed no opinion on the  question whether  officers  of departments other than the  police  on whom  the powers of an officer-incharge of a police  station under ch. 14 of the Code of Criminal Procedure are conferred are  police officers or not for the purpose of s. 25 of  the Evidence  Act.  The question whether an Excise Officer is  a Police Officer was thus left open by them. It is precisely this question which falls for  consideration in the present appeal.  For, under s.78(3) of the Bihar  and Orissa  Excise  Act,  1915 (2 of  1915)  an  Excise  Officer empowered under s, 77, sub-s. (2) of that Act shall, for the purpose of  763 s.156 of the Code of Criminal Procedure be deemed to   be an officer  in charge of a police station with respect  to  the area to which his appointment as an Excise Officer  extends. Sub-section (1) of s. 77 empowers the Collector of Excise to investigate  without the order of a Magistrate  any  offence punishable under the Excise Act committed within the  limits of  his  jurisdiction.   Sub-section  (2)  of  that  section provides  that any other Excise Officer specially  empowered in  this behalf by the State Government I in respect of  all or  any  specified class of offenses  punishable  under  the Excise   Act  may,  without  the  order  of  a   Magistrate, investigate   any   such  offence  which  a   court   having jurisdiction within the local area to which such officer  is appointed would have power to inquire into or try under  the aforesaid  provisions.   By virtue of these  provisions  the Lieutenant Governor of Bihar and Orissa by Notification  No. 470-F  dated January 15, 1919 has specially  empowered  Ins-

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pectors   of   Excise  and  Sub-Inspectors  of   Excise   to investigate any offence punishable under the Act.  It is not disputed before us that this notification is still in force. By  virtue  of the provisions of s. 92 of the Act  it  shall have effect as if enacted in the Act.  It would thus  follow that  an  Excise Inspector or SubInspector in the  State  of Bihar shall be deemed to be an officer in charge of a police station  with respect to the area to which he  is  appointed and is in that capacity entitled to investigate any  offence under the Excise Act within that area without the order of a Magistrate.   Thus he can exercise all the powers  which  an officer in charge of a police station can exercise under Ch. XIV  ’of the Code of Criminal Procedure, He can  investigate into  offenses, record statements of the persons  questioned by him, make searches, seize any articles connected with  an offence  under  the Excise Act, arrest  an  accused  person, grant  him bail, send him up for trial before a  Magistrate, file a charge sheet and so on.  Thus his position in so  far as offenses under the Excise Act 764 committed  within the area to which his appointment  extends are  concerned  is no different from that of an  officer  in charge  of a police station.  As regards these offenses  not only  is  he  charged  with the  duty  of  preventing  their commission  but also with their detection and is  for  these purposes  empowered to act in all respects as an officer  in charge  of a police station.  No doubt unlike an officer  in charge  of a police station he is not charged with the  duty of the maintenance of law and order nor can he exercise  the powers  of such officer with respect to offenses  under  the general  law or under any other special laws.  But  all  the same,  in  so  far  as offenses under  the  Excise  Act  are concerned, there is no distinction whatsoever in the  nature of the powers he exercises and those which a police  officer exercises  in relation to offenses which it is his  duty  to prevent and bring to light.  It would be logical, therefore, to  hold  that  a  confession  recorded  by  him  during  an investigation  into an excise offence cannot  reasonably  be regarded as anything different from a confession to a police officer.  For, in conducting the investigation he  exercises the powers of a police officer and the act itself deems  him to  be a police officer, even though he does not  belong  to the  police force constituted under the Police Act.  It  has been  held  by  this  court  that  the  expression  "’Police Officer"  in  s. 25 of the Evidence Act is not  confined  to persons who are members of the regularly constituted  police force.  The position of an Excise Officer empowered under s. 77(2) of the Bihar and Orissa Excise Act is not analogous to that of a Customs Officer for two reasons.  One is that  the Excise Officer does not exercise any judicial powers just as the  Customs Officer does under the Sea Customs  Act,  1878. Secondly, the Customs Officer is not deemed to be an officer in charge of a police station and therefore can exercise  no powers  under the Code of Criminal Procedure  and  certainly not  those of an officer in charge of a police station.   No doubt, he too has the  765 power to make a search, to seize articles suspected to  have been  smuggled  and  arrest  persons  suspected  of   having committed an offence under the Sea Customs Act.  But that is all.   Though  he can make an enquiry, he has  no  power  to investigate  into  an offence under s. 156 of  the  Code  of Criminal  Procedure.   Whatever  powers  he  exercises   are expressly  set out in the Sea Customs Act.  Though  some  of those  set out in ch.  XVII may be analogous to those  of  a

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Police Officer under the Code of Criminal Procedure they are not  identical  with those of a police officer and  are  not derived  from  or by reference to the Code.   In  regard  to certain  matters, he does not possess powers even  analogous to  those of a Police Officer.  Thus he is not  entitled  to submit a report to a Magistrate under s. 190 of the Code  of Criminal  Procedure  with  a view  that  cognizance  of  the offence  be taken by the Magistrate.  Section 187(A) of  the Sea  Customs  Act specially provides that cognizance  of  an offence  under the Sea Customs Act can be taken only upon  a complaint  in writing made by the Customs Officer  or  other officer  of the customs not below the rank of an  -Assistant Collector of Customs authorized in this behalf by the  Chief Customs Officer. It  may  well be that a statute confers powers  and  imposed duties  on a public servant, some of which are analogous  to those  of a police officer.  But by reason of the nature  of other  duties  which  he is required to perform  be  may  be exercising  various  other  powers also.  It  is  argued  on behalf  of  the State that where such is the case  the  mere conferral of some only of the powers of a police officer  on such  a  person  would not make him a  police  officer  and, therefore,  what must be borne in mind is the sum  total  of the  powers which he enjoys by virtue of his office as  also the  dominant  purpose  for  which  he  is  appointed.   The contention  thus  is that when an officer has to  perform  a wide range of duties and 766 exercise  correspondingly a wide range of powers,  the  mere fact that some of the powers which the statute confers  upon him  are  analogous  to or even identical with  those  of  a police  officer  would not make him a  police  officer  and, therefore, if such an officer records a confession it  would not  be  hit by s. 25 of the Evidence Act, In  our  judgment what  is  pertinent  to  bear in mind  for  the  purpose  of determining as to who can be regarded a "police officer" for the  purpose  of this provision is not the totality  of  the powers which an officer enjoys but the kind of powers  which the  law enables him to exercise.  The test for  determining whether such a person is a "police officer" for the  purpose of  s.  25 of the Evidence Act would, in  our  judgment,  be whether  the powers of a police officer which are  conferred on him or which are exercisable by him because he is  deemed to  be an officer in charge of a police station establish  a direct  or  substantial relationship  with  the  prohibition enacted  by s. 25, that is, the recording of  a  confession. In our words, the test would be whether the powers are  such as would tend to facilitate the obtaining by him of a confe- ssion  from a suspect or a delinquent.  If they do, then  it is unnecessary to consider the dominant purpose for which he is  appointed  or the question as to what  other  powers  he enjoys.   These  questions  may  perhaps  be  relevant   for consideration where the powers of a police officer conferred upon  him  are of a very limited character and  are  not  by themselves sufficient to facilitate the obtaining by him  of a confession. As  an instance of a law which confers on an officer  powers of  a  limited  character  which  are  analogous  to   those conferred  upon  police officers, we may refer  to  the  Sea Customs  Act  itself.   This Act confers a  wide  -range  of powers  on Customs Officers.  But powers analogous to  those of a police officer are to be found only in ch.  XVII  which deals  767 with  "’procedure relating to offenses, appeals etc."  Under

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s.  169  a  Customs  officer  is,  empowered  to  search  on reasonable suspicion any vessel in any port in India or  any person who has landed from any vessel.  This power, however, is  subject to the right given by s. 170 to that  person  to require the Customs officer to take him before his search to a  Magistrate  or  Customs  Collector.   Where  such  person exercises  that right the question. as to whether he  should be  searched or not would depend upon the Magistrate or  the Customs  Collector  being satisfied about the  existence  of reasonable  grounds for the search.  No such restriction  is imposed upon a police officer making a search under s.  102, sub-s. (3) of the Code.  Again, whereas an officer in charge of a police station can search any place in connection  with a cognizable offence under investigation after recording  in writing  his reasons.. a Customs Officer cannot  search  any place  on  land  .where a dutiable or  prohibited  goods  or documents relating to such goods are secreted without  first obtaining a search warrant from a Magistrate.  Under s.  173 of  the  Act  a Customs Officer has the power  to  arrest  a person against whom reasonable suspicion exists that he  has been guilty of an offence under the Act.  But he is required to   produce  that  person  forthwith  before  the   nearest Magistrate  and  it  will be for the  Magistrate  either  to commit that person to jail custody or release him on bail at his  discretion.  An officer in charge of a  police  station has,  however, the power, to release an arrested  person  on his  furnishing bail and is not required for the purpose  to obtain  an order of a Magistrate.  It is only where he  does not  release him on bail that he must produce him  before  a Magistrate  within 24 hours of arrest.  We may add that  the existence of the power to grant bail in an officer in charge of a police station itself enables him to exercise authority over the arrested person and influence his conduct if he  so wishes.  Finally, a 768 Customs  Officer  has  power to  seize  anything  liable  to confiscation  under  the  Act.   But  where  he  has  seized anything he is liable, on demand of the person in charge  of the  thing so seized, to give him a statement in writing  of the  reasons  for  such seizure.  Similarly  where  he,  has arrested  a person, he is bound to give to that  person,  if that  person so demands, a statement’ in writing  disclosing the  reasons  for the arrest.  No such duty is cast  upon  a police  officer  seizing an article or arresting  a  person. Chapter XVII deals with no other powers which could be  said to be analogous to those of a police officer.  The whole  of that  chapter shows that the other powers conferred  upon  a Customs  Officer are such, as are necessary ’for  preventing the  commission  of offenses under the Sea Customs  Act  and matters  incidental thereto.  It is worthy of note that  the powers of investigation into offenses which a police officer enjoys are not conferred upon a Customs Officer.  It is  the possession of these powers which enables police officers and those  who  are deemed to be police officers to  exercise  a kind   of  authority  over  the  per-sons   arrested   which facilitate  the obtaining from them statements which may  be incriminating  to the persons making them.  The  law  allows the police officer to obtain such statements with a view  to facilitate  the  investigation  of  the  offenses.   But  it renders them inadmissible in evidence for the obvious reason that a suspicion about voluntariness would attach to them  . It is the power of investigation which establishes a  direct relationship   with  the  prohibition  enacted  in  s.   25. Therefore, where such a power is conferred upon an  officer, the  mere  fact that he possesses some  other  powers  under

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another law would not make him any the less A police officer for the purposes of s. 25. In this connection it would be pertinent to bear in mind the object  with which the provisions of s. 25 of  the  Evidence Act were enacted.  For this  769 purpose  we  can  do not better  than  quote  the  following passage from the judgment of Mahmood J. in Queen Empress  v. Babulal (1).               malpractices  of police officers in  extorting               confessions  from accused persons in order  to               gain credit by securing convictions, and  that               those  malpractices  went  to  the  length  of               positive  torture;  nor do I  doubt  that  the               Legislature,  in  laying down  such  stringent               rules,   regarded  the  evidence   of   police               officers  as untrustworthy, and the object  of               the  rules was to put a stop to the  extortion               of confession, by taking away from the  police               officers   the  advantage  of   proving   such               extorted  confessions  during  the  trial   of               accused persons." This   provision   was  thus  enacted  to   eliminate   from consideration confessions made to an officer who, by  virtue of   his  position,  could  extort  by  force,  torture   or inducement a confession.  An Excise Officer acting under  s. 78 (3) would be in the same position as Officer in charge of a  police station making an investigation under Ch.  XIV  of the Code of Criminal Procedure.  He would likewise have  the same  opportunity of extorting a confession from a  suspect. It  is, therefore, difficult to draw a rational  distinction between  a confession recorded by a Police Officer  strictly so  called  and  one recorded by an Excise  Officer  who  is deemed to be a Police Officer. A large number of decisions were cited at the bar bearing on the  question as to whether the expression "Police  Officer" used  in  s.  25 of the Evidence Act is  restricted  to  the members  of  the  force  or has  a  wider  meaning.   It  is unnecessary  to refer to those decisions because  in  Barkat Ram’s case (2), it has clearly been held that the expression (1) (1884) I.L.R. 6 All. 509, 523. (2) [1962] 3 S. C. R. 338. 770 is not to be construed in a narrow way. We may,   however, refer to certain decisions’ in which the question whether an Excise  Officer  is a Police officer within the  meaning  of that    section    has   been    specifically    considered. There is, however, no unanimity in those decisions.  Thus in Ah  Foong  v. Emperor’ (1), Harbhanjan Sao v.  Emperor  (2), Matilall  Kalwar v. Emperor (3), it was held that an  Excise Officer  is  not  a Police Officer.  A  contrary  view  was, however,  taken in .Ibrahim Ahmed v. King Emperor (4).   The view  taken  in that case was affirmed by a  Full  Bench  in Ameen  Sharif  v. Emperor (5).  The view taken in  the  Full Bench  case as well as in Ibrahim Ahmed’s case (4),  follows that  of  the  Bombay High Court in Nanoo  Sheikh  Ahmed  v. Emperor  (6).   A  similar view was  also  taken  in  Public Prosecutor  v. C. Paramasivam (7), Ibrahim v.  Emperor  (8). In  Radha  Kishun  Marwari  v. King  Emperor  (9),  it  was, however,  held that an Excise Officer functioning under  the Bihar  Excise  Act  is  not a  Police  Officer  and  that  a statement  made to him is not within S. 25 of  the  Evidence Act.   We  need not, however, consider  the  last  mentioned decision because there the learned judges have construed the expression "Police Officer" in S. 25 of the Evidence Act  to

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mean only an officer of the police force.  That, however, is not in accord with what this Court has held in Barkat  Ram’s case We will briefly examine the other decisions. In  Ah  Foong’s  case  (1), all  that  Sanderson  C.J.,  who delivered the leading judgment has said was that he did  not think  that  Excise Officers in the case  before  the  court could be said to be Police Officers and that the  statements made by the accused to them were not admissible by reason of the  fact that they were made to Police Officers.  There  is thus no discussion of the question at all.  Apart from  that the offence concerned in that case was  one under the  Opium Actand an Excise Officer      (1) (1918)  I.L.R  46 Cal. 41 1.(2) (1927) I.L.R. 54 Cal. 601.      (3)   A.I.R.  1932 Cal 122.(4) (1931) I.L  R.  58  Cal. 1260.      (5) (1934) I.L.R. 61 Cal  607.(6) (1926) A.L.R. 51 Bom. 78      (7) A.I.R. 1953. Mad 917.(8) A.T.R. 1944 Lah 57.      (9) (1932) I. L. R. 12 Pat 46 F.B.(10)  [1962] 3  S.C. R. 338.  771 acting  under that Act was not conferred with the powers  of an  officer in charge of a police station under Ch.  XIV  of the Code of Criminal Procedure. Harbhanjan Sao’s case (1), merely followed this case as also did  Matilal’s  case (2).  Ibrahim Ahmed’s case (3),  was  a case which arose after the amendment of the Opium Act and it followed  the view taken in Nanoo Sheikh Ahmed’s  case  (4). In Nanoo Sheikh Ahmed’s Case (4), a Full Bench of the Bombay High  Court examined a large number of decisions  commencing from The Queen v. Hurribole Chunder Ghose (5).  Marten C. J. quoted  with approval the following two passages  from  that case :               "Its  humane object is to prevent  confessions               obtained  from  accused  persons  through  any               undue  influence, being received  as  evidence               against  them   ..  I consider that  the  term               "police  officer’  should be read not  in  any               strict  technical sense, but according to  its               more  comprehensive and popular meaning."  (p.               215).               "   and  I  think it better  in  construing  a               section such as the 25th which was intended as               a  wholesome  protection  to  the  accused  to               construe  it  in its widest and  most  popular               signification." (p. 216). The  Full  Bench pointed out that in Ah  Foong’s  case  (6), there was hardly any discussion of the question and  further pointed out that Excise Officers had limited power in Bengal under the Opium Act of 1878 whereas in Bombay they exercised the  powers of investigation and so on.  The  learned  Chief Justice then observed :               ’  in my judgment, we should hold that as  the               Bombay Legislature has deliberately (1)  (1927) I.L.R. 55 Cal 601. is)  (1931) I.L.R 51 Cal 1260. (5)  (1876) I.L R. 1 Cal. 207. (2)  A T.R. 1932 Cal. 122. (4)  (1926) I.L. R. 51 Bom. 78. (6)  (1918) I.L R. 46 Cal. 41 1. 772               conferred upon these Abkari officers  substan-               tially  all  the powers of a  Police  Officer,               they  have thereby in effect made them  Police

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             Officers within the meaning of section 25, and               that, accordingly, any confession made to such               an officer in the course of his  investigation               under the Abkari Act or the Criminal Procedure               Code is inadmissible in evidence." (p. 94) According  to  Shah  J. s. 25 of  the  Indian  Evidence  Act embodies  an important rule, which is to be given effect  to as  a matter of substance and not as a mere matter  of  form and  that it is a perfectly fair interpretation of s. 25  to say  that  ’the Police Officer within the  meaning  of  that section  is an officer, who exercises the powers  of  police conferred  upon  him by law, whether he is called  a  Police Officer  or  he is called by any other  name  and  exercises other  functions also under other provisions of law, if  for the  investigation of offenses under a particular Act he  is empowered to exercise the powers of an officer in charge  of a  police  station  for the investigation  of  a  cognizable offence.  Fawcett J. pointed out that since the  Legislature did not amend the Act even after the decision in Hurribole’s case  (1), where the expression police officer" was given  a wide  meaning the courts would be justified in  adhering  to it.  Kemp J. was of the opinion that though the term "police Officer" should not be construed strictly it was not safe to lay down generally that the term should not be construed  in its  popular and most comprehensive sense.  All the same  he held  that an Excise Officer acting under the Abkari Act  of Bombay must be deemed to be a Police Officer inasmuch as  he had  the power of investigating into excise offenses,  Mirza J. concurred with this view but did not state any reasons. In  Ameen  Sharif’s  case (2)  the  following  question  was referred to a Full Bench : "Is an excise (1) (1876) I.L.R. 1 Cal. 207. (2) (1934) I.L.R. 61 Cal 607.  773 officer  who, in the conduct of investigation of an  offence against  the excise, exercises the powers conferred  by  the Code  of Criminal Procedure upon an officer in charge  of  a police-station  for  the  investigation  of  a   cogenizable offence,  a police officer within the meaning of section  25 of  the  Indian Evidence Act ?" That case  arose  under  the Bengal  Excise Act and Mukerji J. who delivered the  leading judgment,  after pointing out that the powers .of an  Excise Officer acting under the Opium Act (I of 1878) prior to  its amendment by Opium (Bengal Amendment) Act, (Bengel Act V  of 1933)  are not quite the same as those of an Excise  Officer acting  under the Bengal Excise Act (Bengal Act V  of  1909) observed  that during arguments a much broader question  had been submitted for the decision of the Full Bench as arising upon  the order of reference taken along with the  facts  of the  cases  in which the reference was  made.   The  learned judge  then said that to answer this question one has  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 construing a statute enacted long ago to  the construction which was put upon it by those who lived  about the  time  or soon after it was made,  because  the  meaning which a particular word or expression bore in those days may have  got mixed up or blurred during the interval  that  has elapsed.   From that point of view he regarded the  decision in the case of Queen v. Hurribole Chunder Ghose (1), one  of very  great  importance.  We have already referred  to  that decision but we have not proceeded upon the view that  while construing  the  relevant  provision  we  should  apply  the

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principle  followed in construing an ancient  statute.   The Evidence  Act  is of the year 1872 and  in  Senior  Electric Inspector  v.  Laxminarayan  Chopra (2),  this  court  while considering the question (1) (1876) I.L.R. Cal. 207. (2) [1962] 3 S. C. R. 146, 774 as  to the meaning to be given to the expression  "Telegraph line"  occurring in s. 3, sub-s. (4) of the  Telegraph  Act, 1885, pointed out that the maxim contemporanea expositio  as laid down by Coke was applied in construing ancient statutes but not in interpreting Acts which are comparatively modern. Indeed,  the rule of construction which ought to be  applied to  a statute either ancient or modern is the same and  that is  to  ascertain the intention -of  the  Legislature.   We, however, agree that it would be inappropriate to attach wide meaning  to the words used by the legislature in a law  made in remote ages when society was static and that the position would be different with respect to words used in a law  made in  a modern progressive society in which the  frontiers  of knowledge are fast expanding.  The Evidence Act was ’enacted at  a time when already a revolution in men’s ideas had  set in  and  considerable scientific advances had  already  been made.  The maxim laid down by Coke cannot therefore properly be   applied  for  construing  the  language  used  by   the Legislature in s. 25 of the Evidence Act.  The learned judge did not, however, rest his judgment solely upon this ground. Upon  a consideration of a large number of decisions of  the Indian High Courts, he came to the conclusion that an Excise Officer  exercising the powers of an officer in charge of  a police station within the area to which he is apointed would fall within the expression "police officer" occurring in  s. 25  of the Evidence Act.  The learned judge, there  referred to s. 6 of the Police Act and some other provisions  thereof and pointed out:               "The  police, therefore, were instruments  for               the  prevention and detection of  crimes  with               the  concomitant  powers of  apprehension  and               detention of offenders in order to their being               brought to justice, such powers varying accor-               ding   to  the  position  or  status  of   the               particular  775               member  of the body.  In other words,  "police               officers"  were  officers whose  duty  was  to               prevent  and  detect crimes.  Apart  from  any               technical  meaning  which  the  term   "police               officer," occurring under any particular  Act,               might bear, the more comprehensive and popular               meaning  of  the term was what has  just  been               stated.  In the Oxford Dictionary, two of  the               senses in which the word "police" is used  are               said to be the following               ’The   department  of  government   which   is               concerned with the maintenance of public order               and  safety, and the enforcement of  the  law;               the extent of its functions varying greatly in               different countries and at different periods.               The civil force to which is entrusted the duty               of  maintains public order, enforcing  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

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different phases of and means for carrying out the two  more comprehensive  duties, namely, of prevention of  crimes  and detection  of crimes.  It is true that it has  nowhere  been defined   what   minimum  aggregation  of   functions   will constitute  a person a police officer within the meaning  of section  25  of  the Act, but  the  more  comprehensive  and popular signification of the term -’police officer", such as it was in 1861, is not difficult to appreciate from what was said  by  the  legislature in the Police Act  (V  of  1861). Powers and duties of police officers under Act V of 1861  or under  Act  XXV of 1861 or under any other statute,  or  the different  powers which different grades of police  officers leave  under any particular enactment, are mere  matters  of details worked out in order to enable the entire 776 body, taken as a  whole,  to  carry out  the  two  essential duties  entrusted  to  them, namely,  the  prevention    and detection of crimes.  These, two features of the      duties which  the police have to discharge and especially  that  of detection  of offenders, which involves the duty of  holding investigations have always been regarded as marking them out for special treatment in so far as confessions made to  them are concerned." (pp. 623-4). We agree with the learned judge that by and large it is  the duty  of detection of offenses and of bringing offenders  to justice,  which requires an investigation to be  made,  that differentiates  police officers from private individuals  or from other agencies of State.  Being concerned with the  in- vestigation,  there is naturally a desire on the part  of  a police  officer  to  collect as much  evidence  as  possible against  a suspected offender apprehended by him and in  his zeal  to do so he is apt to take recourse to an easy  means, that is, of obtaining a confession by using his position and his  power over the person apprehended by him.   We,  there- fore, agree with the observations of the learned judge at p. 629 which are to the following effect               "I  can find no reason why in 1872 in  respect               of  an offence under the then Opium Act  (XIII               of 1857) the legislature could have thought of               excluding a confession made to a member of the               regular police force but not a confession made               to  an  abkari  or  excise  officer,  if  such               officer was, in fact, holding an investigation               into an offence and was exercising such powers               as a police officer is competent to  exercise.               The  fact  is that, in those days, he  had  no               such  powers and so could not  exercise  them.               When, in course of time, he came to have those               powers  and  was  able  to  exercise  them  in               respect of offenses which 777               were not known to law in those day,% and  only               subsequently came to be regarded as such, such               an officer, when so acting, is an officer  for               whom the term "police officer" used in section               25 of the Evidence Act was meant." The  learned  judge then considered two  points  which  were raised before the Full Bench as militating against the  view expressed  by  him-one  being that there  is  a  distinction between  "’police officers" and "revenue officers"  and  the other  that  in s. 25 of the Evidence Act in respect  of  an officer of the police there is a personal disability implied irrespective  of  the  question whether  he  is  holding  an investigation  or not, while no such disability can be  said to have been intended in the case of an Excise Officer.

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So  far  as  the first of these  points  was  concerned  the learned  judge agreed with the answer given by Marten C.  J. in  the  case  of Nanoo Sheikh Ahmed (1), at p.  95  of  the report  to,  meet a similar point.  As  regards  the  second point  he said that, whereas police officers, by  reason  of section 22 of Act V of 1961, are to be always considered: on duty  for the purposes of the Act, all revenue officers,  on the other hand, are not police officers and it is only  such of  them as may be exercising the powers of police  officers and  only  when  exercising such powers  that  they  may  be regarded as police officers. We are in complete agreement with this view Mallik and Ghose JJ  agreed  with  Mukherji J. But Jack  J.  did  not  accept Hurribole’s case as an authority for holding that an  Excise Officer  is a Police Officer merely because he  has  certain powers  of a police officer.  His conclusion,  however,  was that  the application of s. 25 of the Evidence Act,  in  the case of an excise officer should be limited to a  confession made to him in the course of an investigation of an  offence by virtue of section 74(3) (1)  (1926) I.L.R. 51 Bom. 78. (2)(1876) I.L.R. 1 Cal, 207, 778 of  the Excise Act, which gives him the status of  a  police officer  for  the purposes of the investigation.   In  other words, what he means is that though an Excise Officer cannot be  regarded as a Police officer, still, when  he  exercises certain  functions under s. 74(3) of the Excise Act he  will be  acting as a Police Officer and, therefore, a  confession made  to  him  would be hit by s. 25 of  the  Evidence  Act. Costello J. however, differed from the other learned  judges and based himself largely upon the decision in Radha  Kishan Marwari’s case (1) and in conclusion he observed :               "In    my   opinion,   endless    difficulties               inevitably  arise  when  judges  endeavor   to               extend  the plain provisions of any  statutory               enactment.  Where the language of an enactment               is   unambiguous  it  should  be   interpreted               strictly  and, in a case such as the  present,               it  is,  to  my mind, in  the  highest  degree               unsound,  and indeed dangerous for the  court,               by  subtlety  of argument or by  resorting  to               other  statutes to extend provisions  such  as               that  contained in section 25.  I  am  clearly               and  definitely  of  opinion  that  when   the               legislature   used  the   expression   ’police               officer’  they meant a police officer  in  the               sense  in which that expression  is  generally               understood by the populace at large and in  no               other sense at all." (p. 648). The learned judge apparently overlooked the fact that in the popular  sense Excise Officers are also regarded  as  Police Officers, being referred to as "the Excise Police." Thus a consideration of the decisions of the High Courts  in India shows that the preponderance of judicial opinion is in consonance with the view which we have already expressed. There is one more reason also why the confession made to  an Excise Sub-Inspector must be (1)  (1932) I.L.R. 12 Pat, 46.  F.B.  779 excluded, that is, it is a statement made during the  course of investigation to a person who exercises the powers of  an officer  in charge of a police station.  Such  statement  is excluded  from  evidence by s. 162 of the Code  of  Criminal Procedure   except   for  the  purpose   of   contradiction. Therefore,  both by s. 25 of the Evidence Act as well as  by

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s.   162,  Cr.p.c.  the  confession  of  the  appellant   is inadmissible  in  evidence.  If the  confession  goes,  then obviously   the  conviction  of  the  appellant  cannot   be sustained.   Accordingly we allow the appeal’ and set  aside the conviction and sentences passed on the appellant. RAGHUBAR DAYAL J.-I agree that the appeal be allowed and the conviction and the sentences passed on the appellant be  set aside, but for different reasons which I proceed to state : I  do  not  consider the confession to  be  inadmissible  in evidence   as   being  made  to  a  police   officer.    The admissibility  of  the alleged confession of  the  appellant depends  on the question whether the Excise Inspector  comes within  the  expression  ’police officer’ in s.  25  of  the Indian Evidence Act.  I am of opinion that he does not. In State of Punjab v. Barkat Ram (1), this Court held that a customs  officer is not a police officer within the  meaning of  s.  25 of the Evidence Act.  The view was based  on  the following considerations : (1)  The powers which a police officer enjoys are Rowers for the effective prevention and detection of crime in order  to maintain  law  and  order while a  customs  officer  is  not primarily  concerned  with the detection and  punishment  of crime committed by a person but is mainly interested in  the detection   and  prevention  of  smuggling  of   goods   and safeguarding the recovery of customs duties. (1)  [1962] 3 S.C.R. 338. 780 (2)  The mere fact that customs officers possess     certain powers  similar  to those of police officers  in  regard  to detection   of  infractions  of  customs  laws,  is  not   a sufficient  ground  for holding them to be  police  officers within the meaning of s. 25 of the Evidence Act, even though the  words  "police officer’ are not to be  construed  in  a narrow  way but have to be construed in a wide  and  popular sense,   as  remarked  in  Queen  v.  Hurribole  (1).    The expression  ’police officer’ is not of such wide meaning  as to  include  persons  en  whom  certain  police  powers  arc incidentally conferred. (3)  A  confession made to any police officer,  whatever  be his  rank  and whatever be the occasion for  making  it,  is inadmissible in evidence, but a confession made to a customs officer  when.  he be not discharging any  such  duty  which corresponds  to  the  duty  of a  police  officer,  will  be inadmissible even if the other view be correct that he was a police officer when exercising such powers. (4)  The  Sea Customs Act itself refers to (police  officer’ in contra-distinction to ’customs officer’. (5)  Customs Officers act judicially when they act under the Sea  Customs Act to prevent smuggling of goods and  imposing confiscation and penalties, and proceedings before them  are judicial-proccedings  for the purpose of ss. 193 and 228  I. P. C. A scrutiny of the various provisions of the Bihar and Orissa Excise  Act,, 1915 (Act II of 1915), hereinafter called  the Act,  leads to a similar conclusion with respect, to  Excise Officers on whom powers of investigating offenses under  the Act  have  been conferred. It will be useful  to  quote  the relevant  provisions of the Act and Government Orders  which lead to such a conclusion. (1)  (1876) I.L.R. 1 Cal. 207, 781 .lm15 The preamble of the Act reads "Whereas it is expedient to amend and reenact the law in the Province  of  Bihar  (and Orissa) relating  to  the  import,

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export,  transport,  manufacture, possession,  and  sale  of certain kinds of liquor and intoxicating drugs; According  to  cl. (8) of s. 2, ’Excise Officer’  means  the Collector  or  any  officer or  other  person  appointed  or invested with powers under s. 7. The relevant portion of  s. 7 reads :               "(1)   The   administration  of   the   Excise               Department  and the collection of  the  excise               revenue within a district shall ordinarily  be               under the charge of the Collector.               (2)   The State Government may by notification     a pplicable               to the whole of the State or to any specified               local area,-               (a)   appoint an officer who shall, subject to               such  control  as  the  State  Government  may               direct, have the control of the administration               of the Excise Department and the collection of               the excise revenue; x          x          x         x          X" Excise Commissioners arc appointed under s. 7(2)(a).   Among the other officers appointed under the other clauses of sub- s  (2)  of s. 7 of the Act arc  Superintendents  of  Excise, Inspectors  of  Excise  and SubInspectors  of  Excise.   The Superintendent of Excise exercises certain specified  powers of the Collector to whom be is subordinate. 782 Chapter VIII deals with offenses and penalties.  Section 63 provides for penalty for contempt of Court and reads :               "’Every  proceeding  under this Act  before  a               Collector, or before any officer, of such rank               as the, State Government may, by  notification               prescribe,  who  is  exercising  powers  of  a               Collector,  shall be deemed to be a  ’judicial               proceeding’  within the meaning of s:  228  of               the Indian Penal Code (45 of 1860)." Officers  who  may exercise the powers of  a  Collector  are Superintendents  of  Excise,  Sub-Divisional  Officers   and Deputy Collectors. Section 68 provides that the Collector or any Excise Officer specially empowered by the State Government in that behalf, not below the rank of Depury Collector or Superintendent of Excise, may compound offenses and release property liable to confiscation in certain circumstances on payment to the Col- lector or such Excise Officer of asum of money not exceeding Rs. 500/- Section       69    empowers the Excise Commissioner, Collector  or any Excise Officer not below such rank as the State Government may, by notification, prescribe and subje- ct to any restrictions prescribed by the state   Government by rule made under s. 89, to enter and inspect    any   pl- ace  of manufacture or storage or sale of any toxicant by a licensed manufacturer and to test and seize measures and to examine accounts and registers or a place where an intoxic- ant is kept for sale by such licensed person and  to seize  them if he had reasons  to believe them to be false.  Exc- ise Officers not below the rank of a Sub-Inspector have be- en empowered under s-69, under Notification No. 470-F dated January 15, 1919, of the Financial Department of the  783 Government of Bihar and Orissa, and we understand that  this Notification is still in force. Section  70  authorizes any officer of the  Excise,  Police, Salt,  Customs  or  Land Revenue Department  or  any  person empowered  by  the  State  Government  in  that  behalf   by

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notification,  to  arrest without warrant any  person  found committing offenses punishable under ss.47, 49, 55 or 56  of the  Act  and to seize and detain any article which  he  has reason  to believe to be liable for confiscation  under  the Act or any other law for the time being in force relating to the excise-revenue and to detain and search any person  upon whom, and any vessel, raft, vehicle etc., upon which, he may have  reasonable  cause to suspect any such article  to  be. Sections  71  and  72  provide  for  the  Collector  or  any Magistrate  empowered to try offenses punishable  under  the Act  to issue warrant for the arrest of any person  whom  he has  reason  to  believe to have committed  or  abetted  any offence punishable under ss.47, 49, 55 or 56 and to issue  a warrant  for the search of any intoxicant, material,  still, utensil  etc.  in respect of which the alleged  offence  has been or is likely-to be committed. Section  73  empowers  the Collector  or  any  SubDivisional Magistrate  or  Magistrate of the first class to  arrest  or direct  the arrest in his presence or to search or direct  a search  to be made in his presence when he be  competent  to issue  a warrant of arrest or a search warrant.  Section  74 empowers an Excise Officer not below such rank as the  State Government  may,  by  notification,  prescribe,  to   arrest certain  offenders when such Officer has reason  to  believe that  an offence had been committed or was  being  committed and when the obtaining of a search warrant might afford  the offender an opportunity to escape or conceal evidence of the offence.   The State Government has prescribed  that  Excise Officers not below the rank of a Sub-Inspector can  exercise the power under this section. 784 Section  77 is important for our purpose and is set  out  in full below:               "’(1) A Collector may, without the order of  a               Magistrate, investigate any offence punishable               under  this  Act which a Court  having  juris-                             diction  over the local area within th e  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, 1898, relating to the place of  in-               quiry or trial.               (2)   Any other Excise Officer specially empo-               wered  in this behalf by the State  Government               in  respect of all or any specified  class  of               offenses   punishable  under  this  Act   may,               without the order of a Magistrate, investigate               any   such  offence  which  a   Court   having               jurisdiction over the local area to which such               officer  is  appointed  would  have  power  to               inquire  into or try under the aforesaid  pro-               visions." Under  sub-s.  (2)  of  s.  77,  the  State  Government  has specially  empowered Inspectors of Excise and  SubInspectors of  Excise to investigate any offence punishable  under  the Act. Section 78 reads :               "(1)  Any  Collector, or  any  Excise  Officer               empowered  under section 77, sub-section  (2),               may after recording in writing his reason  for               suspecting the commission of an offence  which               he is empowered to investigate, exer-               cise-               (a)   any  of  the  powers  conferred  upon  a

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             Police  Officer  making an  investigation,  or               upon an officer in charge of a policc-station,  785               by sections 160 to 171 of the Code of Criminal               Procedure, 1898 (5 of 1898), and’               (b)   as  regards  offenses  punishable  under               section 47, section 49, section 55, or section               56  of  this Act-any of the  powers  conferred               upon Police Officers in respect of  cognizable               offenses by clause first of sub-section (1) of               section 54 and by section 56 of the said Code;               and  the said portions of the said Code  shall               apply accordingly, subject to any restrictions               or  modifications  prescribed  by  the   State               Government  by  rule made  under  section  89,               clause (o).               (2)   Subject  to any restrictions  prescribed               by  the  State Government a  Collector  or  an               Excise  Officer  empowered under  section  77,               sub-section  (2), may, without reference to  a               Magistrate, and for reasons to be recorded  by               him  in  writing,  stop  further   proceedings               against  any person concerned, or supposed  to               be  concerned, in any offence which he or  any               Excise   Officer   subordinate  to   him   has               investigated.               (3)   For  the purposes of section 156 of  the               Code  of Criminal Procedure, 1898 (5 of  1898)                             the  area to which an Excise Officer empowered               under   section   77,  sub-section   (2),   is               appointed  shall  be deemed to  be  a  police-               station,  and such officer shall be deemed  to               be the officer in charge of such station.               (4)   As   soon  as  an  investigation  by   a               Collector  or by an Excise  Officer  empowered               under  section 77, sub-section (2),  has  been               completed,   if  it  appears  that  there   is               sufficient evidence to justify the  forwarding               of   the   accused  to   a   Magistrate,   the               investigating officer, unless he 786               proceeds under sub-section (2) of this section    or               under  section 68 of this Act, shall submit  a               report  [which  shall,  for  the  purposes  of               section 190 of the Code of Criminal Procedure,               1898  (5  of 1898) be deemed to be  a  Police-               report] to a Magistrate having jurisdiction to               inquire into or try the case and empowered  to               take   cognizance  of  offenses   on   Police-               reports." Section  79  deals with security and bail and  empowers  any Excise  Officer not below such rank as the State  Government may, by notification, prescribe, to release persons on  bail or  on their own bond.  The State Government has  prescribed that  any Excise Officer not below the rank of  SubInspector can exercise this power. Section.  80  provides  that  articles  seized  and  persons arrested  under  the  warrant  of  the  Collector  shall  be produced  before the Collector and that articles seized  and persons  arrested under the Act by persons or  officers  not having  authority  to release arrested persons  on  bail  on their own bond, shall be produced before or forwarded to the Collector or an Excise Officer empowered under s. 77 (2)  to investigate  the offence, or to the nearest  Excise  Officer

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who has authority to release arrested persons on bail or  on their  own  bond, or the officer in charge  of  the  nearest police station, whoever be nearer.               Section 82 reads :               "When  any  Excise Officer below the  rank  of               Collector,  or  any  officer in  charge  of  a               police station, makes, or receives information               of, any arrest, seizure, or search under  this               Act,   he  shall,  within  twenty-four   hours               thereafter,  make  a full report  of  all  the               particulars of the arrest, seizure, or search,               or   of  the  information  received   to   the               Collector, and to the Excise Officer (if  any)               empowered under section 77,                             787               sub-section  (2), within the local  limits  of               whose  jurisdiction  the arrest,  seizure,  or               search was made." Section  84 directs that any person arrested for an  offence under  the  Act shall be informed as soon as may be  of  the grounds  for  such arrest and shall be produced  before  the nearest  Magistrate  within  a period of 24  hours  of  such arrest,  excluding the time necessary for the journeys  from the  place of arrest to the Court of the Magistrate  and  no such person shall be detained in custody beyond such  period without  the  authority of the Magistrate.  Its sub  s.  (2) reads :               "(2) A Magistrate to whom an accused person is               forwarded  under  section 167 of the  Code  of               Criminal  Procedure,  1898 (5 of 1898),  by  a               Collector or an Excise Officer empowered under               section 77, sub-section (2), may exercise  the               powers conferred upon a Magistrate by the said               section 167."               Section 85 reads :               "(1)  Save as in this Act otherwise  expressly               provided,  the  provisions  of  the  Code   of               Criminal Procedure, 1898 (5 of 1898), relating               to  arrests, detentions in custody,  searches,               summonses, warrants of arrest, search warrants               and  the production of persons arrested  shall               apply so far as may be, to arrests, detentions               and  searches  made,  summonses  and  warrants               issued, and the production of persons arrested               under this Act.               (2)   For the purposes of the said  provisions               of the said Code, a Collector shall be  deemed               to be a Court.               (3)   Officers  to whom a Collector’s  warrant               is  directed or endorsed and  officers  (other               than 788               Collectors)   making  arrests,   searches   or               seizures  under  this  Act,  shall,  for   the               purposes  of the said provisions of  the  said               Code, be deemed to be Police Officers." Section  89 empowers the State Government to make  rules  to carry  out the objects of the Act or any other law  for  the time being in force relating to the excise-revenue. Section  95  provides that no suit shall lie  in  any  Civil Court  against the Government or any Excise Officer for  any act in good faith done or ordered to be done in pursuance of this  Act  or of any other law for the time being  in  force relating to the excise-revenue. Section   96   provides  for  limitations   of   suits   and

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prosecutions and reads               ",No  Civil Court shall try any  suit  against               the Government in respect of anything done, or               alleged  to  have been done, in  pursuance  of               this Act,               and, except with the previous sanction of  the               State  Government,  no Magistrate  shall  take                             cognizance  of  any  charge  made  aga inst  any               Excise Officer under this Act or any other law               relating to the excise-revenue or made against               any other person under this Act,               unless  the suit or prosecution is  instituted               within  six months after the date of  the  act               complained of." The  provisions  of ss. 7, 89, 95 and 96 are  sufficient  to indicate  that the action of Excise Officers under  the  Act and under any other law relating to exciserevenue is treated alike.  The Act is, therefore, like  789 the Sea Customs Act, primarily concerned with the collection of  the excise-revenue.  The object of the Act according  to the  preamble,  is  not to provide for  the  prevention  and detection of crime but is to provide for conditions on which liquor  and  intoxicating drugs can be  imported,  exported, transported, manufactured and possessed and sold.   Offenses created  under  the Act are for contravening  provisions  in that  regard  and  the  power of  Excise  Officers  to  make arrests,  searches  or seizure or  to  investigate  offenses under the Act is incidental to the general power to see that the   provisions  of  the  Act  are  observed.   The   first consideration for holding Customs Officers not to be  police officers would equally apply to the case of Excise  Officers empowered to investigate offenses. An  Excise  Officer too cannot be a police officer  for  the purpose  of s. 25 of the Evidence Act at all times.  He  can be  a police officer only when he is discharging the  duties of  an investigating officer.  In view of consideration  No. 2,  subject  to what is said in s. 85  (2),  the  expression ’Police officer’ in s. 25 of the Evidence Act cannot embrace Excise Officers on whom certain powers corresponding to  the powers of the police officers are conferred. Section 82 draws a distinction between an officer in  charge of  a police station and an Excise Officer who is  empowered under  s.  77  (2) of the Act, as the  former  had  to  give information  of any arrest, seizure or search under the  Act which  he makes, or about which he receives  information  to the  Collector and to the Excise Officer empowered under  s. 77  (2)  exercising jurisdiction in the area  where  any  of these  acts are done, and so consideration No. 4 is  equally applicable in this case. Excise  Officers  not below the rank  of  Superintendent  of Excise and Deputy Collector can 790 compound   offenses   and   release   property   liable   to confiscation  in the exercise of powers conferred  under  s. 68.  Such a power implies that the culprit accepts his guilt and  is  prepared to compound the offence.   Ordinarily  the culprit will express such a desire to an Excise Inspector or Sub-  Inspector in the first instance.  It appears to me  to be  incongruous that a confession to such an Excise  Officer be  considered to be inadmissible on trial of a  suspect  in Court  by  considering these Excise Officers  to  be  police officers,  while the Act itself allows the  superior  Excise Officer  to  compound  the  offence  with  the  culprit  and

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discharge   him  in  view  of  s.  68  and  the   Government Notification.  Further all proceedings before the  Collector or  Superintendent of Excise, S. D. 0. and Deputy  Collector exercising   the  powers  of  the  Collector  are   judicial proceedings within the meaning of s. 228 1. P. C. Section  85  (3)  provides about the officers  who  and  the circumstances  in  which  they can be deemed  to  be  police officers  for the purposes of the Criminal  Procedure  Code. All  Officers  other  than Collectors  .who  make  arrests., searches or seizures under the Act are to be deemed  ’police officers’  for  the purpose of the  provisions  relating  to arrests,  searches  or seizures in  the  Criminal  Procedure Code.   It  is therefore clear that the Legislature  had  in mind  the police ,officers who perform the duties of  making arrests,   searches,  and  seizures,  under   the   Criminal Procedure  Code and provided that Excise officers  or  other persons  authorized under the Act to perform these  acts  be deemed  to  be police officers for these  purposes.   It  is therefore  clear  that the Legislature did  not  contemplate that  Excise Officers performing other duties  corresponding to  the  duties  of the regular police  officers  be  deemed police officers merely on account of their performing  those duties.  It follows that Excise Officers when  investigating offences under the Act are not to be deemed police  officers for the  791 purposes  of the provisions about investigation in the  Code of Criminal Procedure.  If the Legislature had intended that officers  who  investigate offences under the  Act  be  also deemed  to  be  officers  for  the  purposes  of  provisions regarding investigation in the Code of Criminal Procedure or s. 25 of the Evidence Act or for any other purpose under any other  law, it could have made an express provision in  that regard. It  is not suggested for the appellant that a Collector  who is an Excise Officer and on whom the power of  investigating offences  under the Act is conferred under s. 77 of the  Act is  a police officer within s. 25 of the Evidence Act.   Sub s.  (3) of s. 85 does not even provide that he be deemed  to be  a  police  officer when he makes  arrests,  searches  or seizures   under   the  Act.   The  Act   itself   therefore contemplates  that the possession of a power to  investigate offences under s. 77 and the right under s. 78 of the Act to exercise  any of the powers conferred upon a police  officer making  an investigation or upon the officer in charge of  a police  station  by ss. 160 to 171 of the Code  of  Criminal Procedure  do  not make the officer so empowered  a  ’police officer’. Great reliance however is placed on the provision of  sub-s. (3)  of s. 78 of the Act for the contention that  Inspectors and  Sub-lnspectors  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 empowe red under               section  17,  sub-section  (2),  is  appointed               shall  be deemed to be a  police-station,  and               such officer shall be deemed to be the officer               in charge of such station." 792 It  is argued that these provisions definitely provide  that the  area to which the Excise Officer empowered under s.  77 (2) is appointed is to be deemed a police station and he  be

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deemed  to  be  an  officer in charge  of  the  said  police station,  and  that therefore such an Excise  Officer  is  a police  officer within the meaning of that expression in  s. 25 of the Evidence Act.  I do not agree.  The area is deemed to  be  a police station and he himself is deemed  to  be  a police  officer in charge of that police station for a  very limited purpose.  He is to be so considered for the purposes of s. 156 of the Code of Criminal Procedure and not for  any other purpose. Now, s. 156 of the Code of Criminal Procedure reads :               "(1) Any officer in charge of a police-station               may,  without  the  order  of  -a   Magistrate               investigate, any cognizable case which a Court               having jurisdiction over the local area within               the limits of such station would have power to               enquire  into or try under the  provisions  of               Chapter XV relating to the place of enquiry or               trial.               (2)   No proceeding of a police-officer in any               such  case  shall at any stage  be  called  in               question  on the ground that the case was  one               which  such  officer was not  empowered  under               this section to investigate.               (3)   Any  Magistrate empowered under  section               190 may order such an investigation as  above-               mentioned." What  sub-s. (1) of s. 156 of the Code provides  is  already provided under sub-s. (2) of s. 77 of the Act which empowers such  officers  to  investigate,  without  the  order  of  a Magistrate,   any   such  offence  which  a   Court   having jurisdiction over the local area  793 to  which such officer is appointed would have the power  to enquire into or try under the aforesaid provisions.   Sub-s. (1)  of S. 156 of the Code does nothing more than  authorize an officer in charge of a police station, without the  order of a Magistrate, to investigate any cognizable offence which the Court having jurisdiction over the local area or  within the  limits  of the police station would have the  power  to inquire  into  or  try under the provisions  of  Chapter  XV relating  to the place of enquiry or trial.  The  effect  of sub-s.  (3)  of  S.  78 can only be  that  in  view  of  the provisions  of sub-SS. (2) & (3) of S. 156 of the  Code,  no proceeding  by the Excise Officer so empowered under  S.  77 (2) shall, at any stage, be called in question on the ground that  he was not empowered to investigate that  offence  and that  any Magistrate empowered under S. 190 Cr.  P.  C.  can order  such  an ]Excise Officer to  investigate  an  offence under  the Act.  In this view, the provisions of S.  78  (3) are  of  no  help  in concluding  that  the  Excise  Officer empowered  under s. 77 (2) is a police officer for  all  the purposes  of  the investigation under the Code  of  Criminal Procedure, or for the purpose of S. 25 of the Evidence Act. Further, the limited nature of the effect of sub. s. (3)  of s. 78 is also apparent when it is considered that sub-s. (1) of S. 78 provides that an Excise Officer empowered under  S. 77  (2)  can  exercise any of the powers  conferred  upon  a police  officer making an investigation or by an officer  in charge of a police station by Ss. 160 to 171 of the Code  of Criminal Procedure.  If the provisions of sub-s. (3) make an Excise Officer empowered under S. 77 (2) a police officer in charge  of a police station for the purposes of  the  entire investigation,  there was no necessity to provide in  sub-s. (1) that he could exercise the powers under certain sections specified therein.

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The  powers  which the Excise Officer  as  an  Investigating Officer exercises under s. 78 (1) are 794 also limited in scope, Under s. 160 Cr.  P. C. he can summon persons  for the purpose of investigation.  He  may  examine such persons orally about the facts and circumstances of the case, just as a police officer can do under sub-s. (1) of s. 161.  But the person so examined does not appear to be bound to answer all questions relating to such case put to him  by the  Excise  Officers  though  he is  bound  to  answer  the questions put by the police officer in view of sub-s. (2) of s. 161 Or.  P. C., and by the Customs Officer under s. 171-A of  the Sea Customs Act.  Section 162 of the Code  does  not confer any power on a police officer.  It only provides that any  statement made by a person to a police officer  in  the course  of  an investigation under Chapter XIV of  the  Code could be used for no purpose except for the purpose provided in  that  sub-section,  at any enquiry in  respect  of  that offence under investigation at the time when that  statement was made.  An investigation by the Excise Officer is not  an investigation  under  Chapter XIV of the  Code  of  Criminal Procedure.   He may take similar steps during  investigation which  a police officer has to take, but that does not  make his investigation an investigation under Chapter XIV of  the Code. Again,  s. 163 has no application so far as the question  of conferring  power  is concerned.  It rather enjoins  upon  a police  officer not to offer or make or cause to be  offered or  made,  any  such inducement, threat  or  promise  as  is mentioned in the Indian Evidence Act, section 24, and not to prevent any person from making a voluntary statement in  the course of an investigation.  Section 164, again, deals  with the  recording of statements and confessions by  Magistrates during the investigation under that Chapter, and can at best be said to empower by implication that these Excise Officers can   send  a  confessing  accused  for  the  recording   of confession to a Magistrate.  In exercise of the powers under s. 165,  795 Cr.  P.  C.,  the  Excise  Officer  can  search  in  certain circumstances a place for a thing which may be found  useful for the investigation and, in view of s.     166 Cr.  P.  C. he can require any other Excise Officer or   police  officer to a cause search to be made. Section  168  of the Code is of no use as  it  requires  any subordinate  police officer making investigation  to  report the result to the Station Officer as all Inspectors and Sub- Inspectors of Excise are required by s. 78 (4) of the Act to report  to the Magistrate for trying the accused if  he  has not  stopped further proceedings in exercise of  the  powers under  s.  78 (2) and which he would do when  there  be  not sufficient  evidence to send the accused to  the  Magistrate for  Trial.  For similar reason, s. 169 Cr. P.C., is  of  no use  to  the  Excise  Officer empowered  under  s.  77  (2). Section  170  empowers  the officer in charge  of  a  police station  to send up the accused to a Magistrate if there  be sufficient evidence.  Under s. 171, he can send up a witness on  complaint,  in certain circumstances, in  custody  to  a Magistrate. I  may now consider certain cases in which a view  has  been expressed that when an officer, who is not an officer of the regular police force, is invested with powers of the Station Officer  in charge of a police station for the  purposes  of the   investigation   of  offences  he   is   competent   to investigate,  that officer will be a police  officer  within

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the  meaning of s. 25 of the Evidence Act during the  course of the investigation he be making.  The considerations which led to that view were mainly two.  One was that neither  the Code of Criminal Procedure of 1861 which originally  enacted a provision identical with the one in s. 25 of the  Evidence Act,  nor the Evidence Act of 1872 itself defined  a  police officer,  that  the definition of the word ’Police’  in  the Police  .Act of 1861 was not a definite definition but  only an inclusive one and that the expression ’police officer’ 796 being not precise in defining the class of officers  covered by  it was to be interpreted according to what the  original intention  and object of the Legislature must have  been  in their  enacting s. 25 of the Evidence Act.  The  second  was that  the  expression  ’police  officer’ in  s.  25  of  the Evidence  Act should be construed according to  the  meaning that expression carried at or about the time that  enactment was  made  and  for  that purpose,  the  view  expressed  in Hurribole’s  Case  (1),  was  not  only  accepted  but   was interpreted  to  mean that anyone whom the people  at  large looked  upon as a police officer would be included  in  that definition.  I would first consider Hurribole’s Case (1), to which reference had been made in Barkat Ram’s Case (2). In Hurribole’s Case (1), Mr. Lambert who was a member of the regular police force and was so regarded outside Calcutta to which city the police Act of 1861 did not apply, was  posted at  Calcutta as Deputy Commissioner of Police.  He was  also invested  with the powers of a Magistrate.  The  accused  in that case made a confession originally to two policemen.  It was  taken down in writing.  He was then brought before  Mr. Lambert,  the Deputy Commissioner of Police, at  the  police office.   He affirmed the truth of his former  statement  to Mr. Lambert, who, in his capacity of a Magistrate,  received and  attested the statement.  The question was whether  this confession was hit by s. 25 of the Evidence Act or not.  The decision  of this question depended on the view whether  Mr. Lambert was a police officer within the meaning of s. 25  of the Evidence Act.  Garth C. J., repelled the contention that the expression ’police officer’ comprised only that class of persons who were called in the Bengal Police Act members  of the police force and observed; at p. 215:               "......     that  the  term  ’Police  officer’               should be               read not in any strict technical sense, but (1) (1876) I.L.R. I Cal, 207.                   (2) [1962] 3 S.C.R. 338. 797               according   to  its  more  comprehensive   and               popular  meaning.   In  common  parlance   and               amongst   the   generality  of   people,   the               Commissioner and Deputy Commissioner of Police               are understood to be officers of police, or in               other words ’police officers’ quite as much as the               more ordinary members of the force; ...  I               think  it better in construing a section  such               as    the   25th  which  was  intended  as   a               wholesome   protection  to  the  accused,   to               construe  it  in its widest and  most  popular               signification." These  observations simply mean that Mr. Lambert who  was  a regular  member  of the police force did not cease to  be  a police officer when posted as Deputy Commissioner of  Police at Calcutta with Magisterial powers, that he would still  be considered  to be a police officer by the people in  general and that therefore he should be held to be a police officer.

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The  use of the comparative words ’narrow’ and ’wider’  with respect  to  the  meaning to be given to  the  term  ’police officer’  have a particular reference in the context to  the effect  that  a person, even though strictly  not  a  police officer during the period of his tenure of office as  Deputy Commissioner  of Police, Calcutta, but a police  officer  in view of his regular service conditions, must be held to be a police  officer  as  the people at  large  cannot  make  any distinction  between the temporary character of  his  status when  he  was posted at Calcutta as Deputy  Commissioner  of Police,  who according to the definition, probably  did  not come  within either the Bengal Police Act or the Police  Act of  1861, I cannot take it that Garth C. J., meant, that  in construing  the  term  ’police  officer’ in  s.  25  of  the Evidence  Act  Courts should resort to their notions  as  to whether  the  people  at  large  considered  the  particular officer  to be a police officer or not.  Any such basis  for construing  this expression in s. 25 would be very  slippery as there 798 would  be no real basic standard to form the foundation  for such an interpretation. Another question raised in that case was that the confession was  admissible in view of s. 26 of the Evidence  Act  which provided  that  no  confession made by a  person  in  police custody  would be admissible in evidence unless it was  made in the immediate presence of a Magistrate, that Mr.  Lambert was  a Magistrate and that therefore the confession made  to him  was  admissible  in  evidence.   This  contention   was repelled  on the ground that s. 25 of the Evidence  Act  was imperative  and a confession made to a police officer  under any circumstances was not admissible in evidence against the maker  thereof.  This means that Mr. Lambert’s status  as  a Magistrate  was completely ignored.  The confession was  not deemed to be taken by a Magistrate.  It was taken to be made to  a police officer as Mr. Lambert was a police officer  on account of the service to which he belonged.  It was  merely as  a Deputy Commissioner of Police that he enjoyed  certain powers  of a Magistrate.  This view, therefore, can also  be used  in support of the contention that the mere  conferment of  certain powers of an officer of one class did  not  make that  officer an officer of the class whose powers had  been conferred  on  him.   If conferment  of  powers  of  another officer could make the officer an officer of the other  type during  the  period he be exercising the  functions  of  the other  officer,  Mr.  Lambert  could  have  been  treated  a Magistrate  when  he  purported to act as  a  Magistrate  in receiving the confession of the accused.  In my opinion, the case  does  not support the opposite view in any  way.   The only effect of the observations of the learned Chief justice to the effect that s. 25 of the Evidence Act be construed in its  widest  and  most popular  signification  is  that  the expression ’police officer’ is not restricted to only  those police  officers  who come within the definition  of  police officer’  799 within  a certain Act dealing with police, but  can  include officers who belong to the police in general.  Its effect is not to widen the scope of ’police officer’ in s. 25 to  such an  extent as to make the Court embark on a general  enquiry about  popular concept in a certain area, about one being  a police officer in the mind of the people at large. It  is true that the Criminal Procedure Code of 1861  or  of later years does not define the expression ’police  officer’ while  its various sections refer to police  officers.   For

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the purpose of this case, we may refer to s. 148 of the Code of Criminal Procedure, 1861 (Act XXV of 1861).               Section 148 was :               "’No confession or admission of guilt made  to               a  Police  Officer shall be used  as  evidence               against a person accused of any offence." Which Officers were contemplated to be ’police officers’  by the  Code  of Criminal Procedure of 1861 ? I am  of  opinion that  the  Code  of Criminal Procedure could  not  have  but referred  to the regular police officers for the purpose  of its   various  enactments.   It  must  have  fixed  upon   a particular class of officers on whom the various powers of a police officer were being conferred by the Code and on  whom the  Code  imposed certain important duties.   Surely  these powers  were not conferred and duties were not imposed on  a vague  class of persons whose powers or liability  would  be subject  to determination by Courts in accordance  with  the popular impression.  The only definite class of people would be  then  members  of the police according  to  the  various enactments  in force and not necessarily under  the  general Police  Act of 1861 or any special Police Act applicable  to the Presidency towns, or those who, under certain  statutory provisions be deemed to be 800 police   officers  as,  in  that  case,  it  would  be   the Legislature which itself would lay down the class of persons who would be treated to be police officers.  I may say  that it  was  not  foreign to the Legislature  in  1861  to  make provisions  with respect to certain persons being deemed  to be officers of a certain class. Historically, I do not find the expression ’Police  officer’ or  ’Police’  to  be  a vague one.  In  1793,  a  number  of Regulations  were made by the Governor General  in  Council. They   dealt  with  many  a  subject  connected   with   the administration  of  the territory under the control  of  the East India Company.  The preamble of Regulation XXII of 1793 indicates  that  the  object  of  that  Regulation  was   to establish an efficient police throughout the country whereby offenders may be deprived of all hope of eluding the pursuit of  officers of justice as the clause in the engagements  of the landholders and farmers of land by which they were bound to  keep  the peace, and in the event of any  robbery  being committed  in their respective estates or farms, to  produce both  the  robbers  and the property  plundered,  was  found nugatory.  Section 11 of this Regulation reads :               "’The police of the country is, in future,  to               be  considered under the exclusive  charge  of               the  officers  who  may be  appointed  to  the               superintendence   of   it  on  the   part   of               Government.   The landholders and  farmers  of               land who were bound to keep up  establishments               of  tannahdars  and police  officers  for  the               preservation  of  the  peace  are  accordingly               required   to   discharge   them,   and    all               landholders and farmers of land are prohibited               from   entertaining  such  establishments   in               future." Section III specifically provided that in future landholders and farmers would not be considered  801 responsible  for  robberies committed  in  their  respective estates  or  farms unless certain  facts  mentioned  therein existed.   This seems to be the first Regular Code  for  the establishment  of the efficient police in the country  under the control of the British.  Formerly, it was the landholder

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and  the farmer of land who discharged the functions of  the police  for the maintenance of peace and for preventing  the commission  and  detection  of  crimes,  especially   crimes against property, robbery, theft, etc.  It is to be  noticed that  according to the preamble and the provisions of s.  II of  this  Regulation,  the entire police was to  be  in  the exclusive   charge   of  the  officers  appointed   by   the Government.   The  Government  had  to  appoint  the  police officers as such. Subsequent Regulations and Acts developed the law about  the police  on  the foundations laid by  this  Regulation.   The object of the Police Act of 1861 is also to cover the entire police  in  the  country.  Its title is : ’An  Act  for  the Regulation of Police’; and its preamble reads :               "Whereas  it  is expedient to  reorganize  the               Police and to make it a more efficient instru-               ment  for  the  prevention  and  detection  of               crime........... The expression ’general police district’ according to s.  1, embraces  any Presidency, State or place, in which  the  Act shall  be ordered to take effect.  Section 2  provides  that the  entire  police establishment under a  State  Government shall,  for  the purposes of the Act, be deemed  to  be  one police force and shall be formally enrolled; persons of this establishment,  therefore,  formed a  class  by  themselves. Section 3, however, provides that the superintendence of the police  throughout a general police district shall  vest  in and shall be exercised by the State Government to which such district  is  subordinate.   This  does  not  speak  of  the superintendence 802 of  the police force or the police establishment,  but  puts the entire police within the State under the control of  the Government.   The  administration of such entire  police  is vested in the Inspector General of Police by s. 4 and within a district ’is vested in the District Superintendent.  These officers exercise no administrative control over the  Excise Officers. Section  47  makes  it lawful for the  State  Government  to declare.  that any authority which is being exercised  by  a Magistrate  of  the District over any  village  watchman  or other village police officer for the purpose of police shall be  exercised,  subject  to  the  general  control  of   the Magistrate  of the district, by the District  Superintendant of  Police.   This  is  a  clear  indication  that  the  Act purported  to  bring the entire  police  whether  controlled under  the Act or not, within its purview in the area  where the Act be in force. It was on account of the various persons under several  Acts or  otherwise discharging the functions of the  police  that the  Police Act of 1861 provided that the word  "Police’  in the  Act meant to include all persons who would be  enrolled under that Act, indicating thereby that the expression could cover  persons  other than those enrolled  under  that  Act. Section  21 of the Police Act refers to some of them,  viz., hereditary  or  other  police  officer  or  police  officers appointed under Act XX of 1856, the Bengal Chowkeydari  Act. The  inclusive definition of ’police’ does not appear to  me to  be so wide as to include any one to whom powers  similar to those of a police officer are conferred by any Act. The  history  of  the  Excise Law  also  shows  that  Excise Officers have been considered different from police officers and that clear provisions were enacted for certain. officers of  the Revenue and Police Departments to be  deemed  Excise Officers.

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803 Regulation  XXXIV of 1793 re-enacted with modifications  the rules  passed on April 16, 1790, and subsequent  dates,  for levying  a tax upon intoxicating liquors and drugs  and  for preventing  illicit manufacture and vend of them.  This  was repealed by Regulation X of 1813. Section I of Regulation X of 1813 states with respect to the purpose of the Regulation :               "...... and whereas it will tend to the public               convenience  to reduce the whole of the  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 alterations and amendments, the following               rules have been passed". and  thus  emphasized  that the Regulatian  related  to  the branch  of public revenue.  Section XVIII provided that  for the  more convenient collection of the duties on  spirituous liquors etc., officers would be appointed by the  collectors to be denominated abkarry darogahs for the collection of the said  duties.  These darogahs were to apprehend and send  to the  Collector any individual having an unlicensed still  in his possession or engaged in the illicit sale of  spirituous liquors etc.  Section XXII provided that .all investigations which  it  may  be necessary  to  institute  respecting  the illicit  manufacture  or sale of  spirituous  liquors  etc., shall  be  conducted by the collectors of  land  revenue  or other  public  officers  entrusted with the  charge  of  the abkarry   mohaul.   Section  XXII  further   empowered   the Collector  or  other officers entrusted with the  charge  of akbarry mohaul to cause the persons charged with or suspect- ed  of  offences under the Regulation to be  apprehended  so that a regular enquiry might be made into the merits of  the case.  Officers in charge of the abkarry 804 mohaul  were  given  power under s. XXIII  to  issue  search warrants.  Section XXXI made the collectors of land  revenue entitled  to a commission on the net amount of  the  abkarry revenue realised by them. Act XXI of 1856 repealed Regulation X of 1813.  Its title is ’An  Act  to consolidate and amend the law relating  to  the Abkaree Revenue in the Presidency of Fort William in Bengal’ and the preamble states :               "Whereas   it  is  expedient  that  the   laws               relating to the manufacture of spirits and the               sale  of spirituous and fermented liquors  and               intoxicating drugs, and the collection of  the               revenue    derived   therefrom,   should    be               consolidated  and amended : It is  enacted  as               follows." Section II says that the Collectors of land revenue will  be in charge of the collection of the revenue arising from  the manufacture of spirits and the sale of spirits, liquors  and intoxicating drugs.  Section IV empowered the Collectors  to appoint  darogahs, jemadars, peons, surveyors,  gaugers  and other officers for the collection of the abkaree revenue and for  the  prevention of smuggling.  The  office  of  abkaree darogah could be combined with that of any tuhseeldar,  naib tuhseeldar  or peshkar.  In such cases s. IV  provided  that those  officers  and officers subordinate to them  would  be held and deemed to be Abkaree officers within the meaning of the Act.  The Abkaree officers were empowered under s. LV to enter  and  inspect  shops or  premises  of  licensed  Manu- facturers or retail vendors.  Section LVI empowered them  to

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stop  and  detain  any person carrying  articles  liable  to confiscation  under the Act and to seize such  articles  and also to arrest the person in possession of them.  Powers  of arrest  under certain circumstances were also  conferred  on them by s. LVII. Section  LXV further provided that all police officers  were required to aid the Abkaree officers in  805 the  due execution of the Act upon notice given  or  request made by such officers.  The expression ’police officers’ and ’abkarec  officers’ in these sections refer to  officers  of the  regular  police and officers of  Abkaree  respectively. The  Act makes a distinction between the two,  and  rightly. Section LVIII empowered an Abkaree officer above the rank of a jemadar of peons to enter and search certain places in the presence  of  the  darogah or other  officer  of  police  in circumstances specified in that section. Section  LIX provided for the vesting of certain  powers  in the officers of the Police, Customs and Revenue  Departments and authorised the Government to invest those officers  with powers  with  respect  to the seizure  of  and  search  for- spirituous and fermented liquors and intoxicating drugs  and the  arrest  of  persons found in possession  of  them.   It further  provided that all such officers when so  empowered, as  well as all police, Customs and Revenue  officers,  when acting  under the authority conferred by that  section,  for the suppression of illicit dealings in opium, would be  held and deemed to be Abkaree officers within the meaning of  the Act. It  is clear, therefore, from the provisions of ss.  IV  and LIX that the Legislature specifically provided, whenever  it considered  necessary, for certain officers to be deemed  to be  Abkaree  officers  when,  by  virtue  of  their  regular service, they were not Abkaree officers. It  was  in  1861, as already  stated,  that  the  ’Criminal Procedure Code, by s. 148, provided that no confession  made to  a  Police officer would be used in evidence  against  an accused  person.   In view of the provisions  of  the  first Regulation  XXII  of 1793 dealing with the creation  of  the Police under the direct control of the Government and of the Abkaree Department 806 governed  by Regulation XXXIV of 1793 up to 1856, it is  not possible  to  say in my opinion, that the  Legislature  when using the expression ’police officer’ in s. 148 of the  Code of  Criminal Procedure of 1861, intended that expression  to include   the   Abkaree   officers   who   had   powers   of investigation, though without any reference to the procedure to  be followed in carrying out the investigation  necessary for  the  purpose  of establishing the  offences  under  the Abkaree Act against the alleged culprits.  It is also  clear from   certain  provisions  referred  to  above   that   the Legislature  did state in clear terms that certain  officers of  the  other  departments would be deemed  to  be  Abkaree officers  in  certain circumstances.  It  follows  therefore that  if the Legislature had intended to use the  expression ’police officers’ in     the  Code of Criminal Procedure  of 1861 or in s.  25  of  the Evidence Act of 1872  in  such  a sense as  to include such officers of departments other than the  Police on whom powers of investigation were  conferred, it could have very easily said that a confession to a police officer  or  such other officers would  be  inadmissible  in evidence  or it could have explained the expression  (police officer’  for the purposes of that section, that is, s.  148 of  the  Criminal’ Procedure Code of 1861 or s.  25  of  the

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Evidence  Act of 1872.  Its omission to do so, to my  mind,, is  a clear indication of the fact that the Legislature  had no intention to use the expression ’police officer’ in s. 25 of  the Evidence Act in such a general sense in which it  is construed  in Nanoo v. Emperor (1), Ameen Sharif v.  Emperor (1), Public Prosecutor v. Paramasivam (3). I  may  refer to the case cited as Radha Kishun  Marwari  v. King  Emperor (4), where it was held that an Excise  officer was not a police officer within the meaning of s. 25 of  the evidence  Act. of the three judges, Courtney Terrel, C.  J., expressed his disagreement with the (1)  (1926) I.L.R. 51 Bom, 78. (2)  (1934) I.L.R. 61 Cal. 607, (3)  A.I,P,, 1953 Mad, 917, (4)  (1932) 1,L,R, 12 Pat. 46.  807 view of the Bombay High Court in Nanoo v. Emperor (1),  and, after stating that the decision in Hurribole’s case (2), had been much misunderstood, said               "The fact is that the term "police officer’ is               sufficiently  well understood to allow of  its               use  without any precise definition.  Thus  it               is  well recognised that  different  countries               and states confer upon their respective police               officers different powers.  Nevertheless it is               not difficult to decide whether any particular               individual is, or is not, a police officer  in               any  particular country and it has  been  held               that a confession made to a police officer  of               a foreign force in the country where he is  in               fact a police officer is not admissible in  an               Indian I trial."               He also expressed the opinion that the  Courts               of  justice were not primarily concerned  with               the objects with which the legislature enacted               any  particular law and that  the  legislature               might not have finally enacted a provision  to               carry  out  the entire object  with  which  it               tended  to enact it, and that in  cases  where               the legislature had not thought fit to express               its intention otherwise than by the use of the               words  of  the section; those words,  must  be               followed.  Fazl Ali, J. agreed with his  views               and stated at p. 56:                "It  appears  to  me  that  the   distinction               between  a person who is nothing but a  police               officer and one who is primarily not a  police               officer but merely invested with the powers of               a  police  officer is material and  cannot  be               ignored for the purpose of construing  section               25 of the Evidence Act.""               He pertinently remarked at p.57:               "To take this view would, in my opinion, be to               ignore the popular meaning of the term               (1) (1926) I.L.R. 51 Bom, 78.               (2) (1871) I.L.R. I Cal. 207.               808               ’police officer’ and enlarge unduly the  scope               of the section.  There was nothing to  prevent               the  framers of the Evidence Act  from  saying               expressly  that confessions made to  a  police               officer  as well as those persons who are  for               the   time  being  and  for  certain   limited               purposes invested with the powers of a  police               officer arc inadmissible in evidence."

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Agarwala  J.,  expressed  the opinion  that  the  expression ’police  officer’ in s. 25 of the Evidence Act  referred  to the  police officers enrolled in or appointed as members  of the police force. I  agree  with  respect with the wider  view  taken  by  the learned Chief Justice and Fazl Ali, J. I therefore hold that the Excise Inspector and Sub-Inspector empowered by the State Government under s. 77(2) of the  Act are  not police officers within the meaning of s. 25 of  the Evidence  Act  and  that the aforesaid  officers  cannot  be treated to be police officers for the purposes of s. 162  of the Code of Criminal Procedure.  Section 162 does not confer any power on a police officer.  It deals with the use  which can  be made of the statements recorded by a police  officer carrying  out investigation under Chapter XIV of  the  Code. The   investigation  which  the  aforesaid  Excise   officer conducts is not under Chapter XIV of the Code, but is  under the  provisions of the Act and therefore this is -a  further reason  for  non-applicablity of s. 162 Cr.  P.  C.  to  any statements made by a person to an Excise officer during  the course of his investigating an offence under the Act. In  this case, the evidence on record about the  appellant’s being  found  in possession of Nepali Ganja is not  such  on which   reliance  could  be  placed  for   maintaining   his conviction.   The  High Court relied on it in  view  of  the confession of the appellant,  809 The  conduct of the Excise Inspector in tampering  with  the seizure  memo  is  such  as to affect  his  bona  fides  and therefore  there  is  a  lot  of  doubt  about  the  alleged confession  by  the  appellant being voluntary.   I  am  not satisfied  about  the confession being voluntary  and  would therefore  not  use  it in  support  of  the  unsatisfactory statements  of the prosecution witnesses about the  recovery of  the ganja from his possession and would not sustain  the conviction even though the High Court has recorded a finding of  fact  that  Ganja was  recovered  from  the  appellant’s possession.   The High Court did not consider the  tampering of the seizure memo in all its aspects or its effect on  the alleged  voluntariness of the confession and,  consequently, on the case. Appeal allowed.