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PETITIONER: THE STATE OF PUNJAB

       Vs.

RESPONDENT: BARKAT RAM

DATE OF JUDGMENT: 30/08/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR KAPUR, J.L. SUBBARAO, K.

CITATION:  1962 AIR  276            1962 SCR  (3) 338  CITATOR INFO :  R          1964 SC 828  (9,15,26,53)  F          1965 SC 481  (9)  F          1966 SC1746  (5,11)  R          1970 SC 940  (6)  R          1970 SC1065  (4,9,11,12,13)  R          1974 SC2136  (20)  E          1981 SC 379  (16,40,45,47,50,53,62)  F          1991 SC  45  (10,12)

ACT: customs officer--If a police officer--Land Customs--Offences under  the  Sea  Customs Act--Confessions  made  to  Customs Officers--Conviction     on     the    basis     of     such confessions--Validity--Land Customs Act, 1924 (19 of  1924), s.9(1)--Foreign  Exchange Regulation Act, 1947 (7 of  1947), s.   23(1)--Sea  Customs  Act,  1878(8  of  1878),  ss.   6, 167(8)--Police Act, 1861 (5 of 1861), s. 1--Indian  Evidence Act, 1872 (1 of 1872) s. 25.

HEADNOTE: On  receipt of information that some gold would be  smuggled from  Pakistan  to  India by the engine crew  of  the  train coming  from  Lahore, the Land Customs  staff  searched  the engine on the arrival of the train at Amritsar and recovered a  quantity of gold kept hidden underneath the coal  in  the tender  of  the  engine.   The driver  of  the  engine,  the respondent, who was arrested and taken to the Customs Office for  interrogation,  made  statements  before  the   Customs officials  admitting his , guilt.  On the complaint  of  the Assistant  Collector-  of Land Customs, the  respondent  was tried  for offences under s. 23(1) of the  Foreign  Exchange Regulation Act, 1947, and s. 167(8) of the Sea, Customs Act, 1878,  and convicted by the Magistrate, but on revision  the High’  Court  of  Punjab set aside the  conviction  on  the. grounds  inter  alia  that  Customs  Officers  were   police officers  within the meaning of that expression in s. 25  of the Indian Evidence Act, 1872,                             339 that confessional statements made to them were  consequently inadmissible  in evidence and that if they be excluded  from consideration  there  was no other evidence to  sustain  the

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coviction. Held (Subba Rao, J., dissenting), that Customs Officers  are not  police officers for the purpose of s. 25 of the  Indian Evidence   Act,  1872,  and  that  the  conviction  of   the respondent  on  the basis of his statements to  the  Customs officers was maintainable. Per  Kapur  and Raghubar Dayal JJ.---The duties  of  Customs officers  are very much different from those of  the  police officers and their possessing certain powers, which may have similarity with those of police officers, for the purpose of detecting the smuggling of goods and the persons responsible for it, would I not make them police officers. per  Subba Rao, J.--Customs officers under the  Sea  Customs Act,  1878,  have the powers, and they  also  discharge  the functions of police officers and, therefore, they are police officers  for the purpose of the Indian Evidence Act,  1872, in  so  far as they exercise or discharge  such  powers  and functions.   A customs officer is a police ’officer qua  his police  functions,  and a confession made to him  cannot  be provided  against a person accused of an  offence.  Case-law Reviewed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 45  of 1959.  Appeal  by special leave from the judgment and order  dated October  9,  1958,  of the Punjab  High  Court  in  Criminal Revision No. 599 of 1958. H. R. Khanna and D. Gupta, for the appellant. Gopal Singh,, for the respondent. 1961.  August 30.  The judgment of J. L. Kapur and  Raghubar Dayal,  JJ.  was delivered by Raghubar Dayal, T.   K.  Subba Rao, J., delivered a separate judgment. RAGHUBAR DAYAL, J. -This appeal, by special Raghubar  leave, raises the question whether a Customs Officer, either  under the  Land Customs Act, 1924 (Act XIX of 1924) or  under  the Sea,  Customs  Act, 1878 (Act VIII of 1878), is  a:.  police officer  within the meaning of that expression in’ s. 25  of the Indian Evidence Act. 340 Barkat Ram, respondent in this appeal, was the engine driver of 78 Down Train which reached Amritsar at about 4-15  P.m., on  June  8,  1957.   The  train  came  from  Pakistan.   In consequence  of   information received with respect  to  the smuggling of gold by the engine crew, the Land Customs staff boarded  the  engine  at  Atari  and  other  staff  of   the Department surrounded the engine on its arrival at Amritsar. The  engine  was  searched  and  a  quantity  of  gold   was recovered, having been found lying concealed underneath  the coal  in  the front part of the coal tender in  the  engine. The  respondent  was  further interrogated  at  the  Customs Station and, as a result of further search, another quantity of gold was recovered from the rear part of the coal tender. A  document,  Ex.   P.E.,  dated  June  5,  1957,  was  also recovered.   This  document was shown to the  respondent  on June 9.. 1957, and the respondent inscribed on this document the note Ex.  P. D1 to the effect               "...  the  letter is the same  which  Tawaqual               Shah  had given to me yesterday.  The same  to               be delivered to Ghulam Mohd. who has come from               Pakistan and has stayed at Grand Hotel."               On  June 9, 1957, Barkat Ram, the  respondent,               made  certain other statements, Ex. P. K.,  to

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             Manohar  Singh  Bedi,  Inspector  of  Customs,               stating therein :               "As  usual on the 8th June, 1957, I  took  two               bundles  of Indian Currency from Ghulam  Mohd.               at Amritsar to Pakistan and when I brought  65               bars of gold from Tawakal Shah, from Pakistan,                             the Customs Officers recovered these 65 bars o f               gold  from the engine at the Railway  Station,               Amritsar.  I had kept concealed these 65  bars               of  gold  in the engine in the presence  ,  of               Shri  Ram  Murti and Shri Jagan Nath,  my  two               Firemen, at the Loco Shed.  Lahore.  I was  to               deliver   this   gold  to  Ghulam   Mohd.   at               Amritsar."  341 A  second statement was; made to the same Customs  Inspector on June 17, 1957, Ex.  P. G. On this occasion too, he made a similar statement, adding that he was to get Rs. 200 against the delivery of gold. On the complaint of the Assistant Collector of Land Customs, Amritsar, Barkat Ram tried for offences punishable under  s. 23  (1)  of the Foreign Exchange Regulation Act,  1947,  and under s. 167(81) of the Sea Customs Act, 1978, as amended in 1955.   He was convicted by the Magistrate.  The  conviction was  confirmed by the appellate Court, but was set aside  on revision by the High Court which held that Customs  Officers were  police officers within the meaning of that  expression in  s. 25 of the Evidence Act, that confessional  statements made to them were consequently inadmissible in evidence  and that  if they be excluded from consideration, there  was  no other  evidence to sustain the conviction.  It further  held that s. 27 of the Evidence Act did not apply to the facts of the  case, as the recovery of gold was the result of  search made  by the Customs Officers and not the result of’  inter- rogating the respondent.  The State of Punjab has filed this appeal against the acquittal order. The  only contention raised for the appellant in the  appeal is  that  the  Customs Officers  to  whom  the  confessional statements  were  made were not police officers  within  the meaning of that expression in s. 25 of the Evidence Act.  It was  contended  that  the mere fact that  powers  to  arrest certain  persons,  to make searches and to  record  evidence having  a bearing on the alleged contravention of the  legal provisions, are conferred on certain officers of the Customs Department, is not sufficient to make them ’police officers’ contemplated  by  s. 25 of the Evidence Act, even if  it  be assumed  correct.  as  held by certain  High  Courts,  that, officers on’ whom the powers of the- Officer-in-charge of  a Police Station under Chapter XIV of the Code of Criminal 342 Procedure have been conferred, were police officers for  the purpose  of s. 25 of the Evidence Act.  The  contention  for the  respondent  is that officers on whom  such  powers  are conferred are really police officers, though they are not so called  and  that the difference in nomenclature  is  of  no effect in considering them police officers for the  purposes of  s.  25.  We are of opinion that the contention  for  the appellant  is  sound and that the Customs Officers  are  not police officers within the meaning of that term in s. 25  of the Evidence Act. We may mention, at this stage, that the Officers to whom the respondent  made confessional statements, were Land  Customs Officers appointed under the Land Customs Act.  Section 9(1) of this Act reads:

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             "The  Provisions of the Sea Customs Act,  1878               (VIIT  of  1878), which are specified  in  the               Schedule,  together  with  all  notifications,               orders,  rules  or  forms  issued,,  made   or               prescribed, thereunder, shall, so far as  they               are applicable, apply for the. purpose of  the               levy of duties of land customs under this  Act               in  like manner as they apply for the  purpose               of  the  levy of duties of  customs  on  goods               imported or exported by sea." Among  the sections of the Sea Customs Act, made  applicable by sub-s. (1) of s. 9 of the, Land Customs Act, are included all  the  sections  in  Chapters XVI and  XVIT  of  the  Sea ’Customs  Act  viz.,  ss.  167 to 193.   In  view  of  these provisions,  we have really to consider whether the  Customs Officers under the Sea Customs Act., in view of the  various powers  conferred on them under the.  Sea Customs  Act,  are police  officers contemplated by s. 25 of the Evidence  Act. If  they  are  Police officers, the  Land  Customs  Officers appointed  under  the Land Customs Act will also  be  police officers  in  view  of similar power  being  conferred-  on. them.’                             343 Before  we  come  to the interpretation  of  the  expression ’police officer’, we would like to express what we  consider to  be  the  duties and powers of a police  officer  and  of customs officers. The Police Act, 1861 (Act V of 1861),is described as an  Act for  the regulation of police, and is thus an Act  for  tile regulation  of  that group of officers who come  within  the word.   ’Police’ whatever meaning be given to that word  the preamble of  the Act further says: ’whereas it is  expedient to  reorganise  the police and to make it a  more  efficient instrument for the prevention and detection of crime, it  is enacted as follows’.  This indicates that the police is  the instrument  for the prevention and detection of crime  which can be said to be the main object and purpose of having  the police.   Sections  23  and 25 lay down the  duties  of  the police officers and s. 20 deals with the authority they  can exercise.   They can exercise such authority as is  provided for  a police officer under the Police Act and any  Act  for regulating  criminal  procedure.   The  authority  given  to police  officers  must  naturally  be’  to  enable  them  to discharge  their duties efficiently.  of the various  duties mentioned in s. 23, the more important duties are to collect and communicate intelligence affecting the public peace,  to prevent the commission of offences and public nuisances  and to  detect and bring offenders to justice and  to  apprehend all persons whom the police officer is legally authorised to apprehend.  It is clear, therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the police Act,  that the’ powers which the police officers enjoy are powers’  for the effective prevention and detection of crime in order  to maintain law and order. The  powers  of  customs officers are really  not  for  such purpose.  Their powers are for the purpose of checking.  the smuggling of goods and the due realisation of customs duties and to determine the 344 action  to be taken in the interests of the revenues of  the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines. Reference  to  s.  9  (1) of the  Land-Customs  Act  may  be usefully  made  at  this  stage.  It  is  according  to  the

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provisions  of this sub-section that the provisions  of  the Sea  Customs  Act  and the orders,  rules  etc.,  prescribed thereunder,  apply for the purpose of levy of duties of  and customs  under  the Land Customs Act in like manner  as  the apply for the purpose of, levy of duties of customs on goods imported  or exported by sea.  This makes it clear that  the provisions  conferring  various powers on the  Sea   Customs Officers  are for the purpose of levying and realization  of duties  of  customs  on  goods and  that  those  powers  are conferred on the  Lands customs officers also for- the  same purpose.  Apart from such an expression     in s. 9  (1)  of the, Land Customs Act, there are good reasons in support  of the  view that the powers conferred on the Customs  Officers are  different  in  character  from  those,  of  the  police officers for the detection and prevention of crime and  that the  powers conferred on them are merely for the purpose  of ensuring  that  dutiable  goods do not  enter,  the  country without  payment  of duty and that articles whose  entry  is prohibited  are not brought in.  It is with respect  to  the detecting  and  preventing  of the smuggling  of  goods  and preventing  loss  to  the  Central  Revenues  that   Customs Officers  have been given, the power to search the  property and person and to detain them and to summon persons to  give evidence  in  an enquiry with respect to  the  smuggling  of goods. The  preamble  of the Sea Customs Act says  "Whereas  it  is expedient  to consolidate and amend the law relating to  the levy   of   Sea  Customs-duties".    Practically   all   the provisions,  of the Act are enacted to achieve this  object. Section. 167 gives a long list of offences, but it is to  be noticed that with- the                             345 exception  of  certain offences, all the others  are  to  be dealt  with by the Customs Officers in view of s. 182.   The Customs  Officers are given the power to confiscate, to  fix the  duty  and  to impose penalties which  can,  in  certain cases, be of enormous amounts. The offences mentioned in  s. 167, which are to be dealt with by a Magistrate, are  mostly of  the type in which the Customs Officers have  nothing  to investigate.   Offences  at  items Nos. 23 to  28  are  with respect to certain acts committed by a pilot or a master  of a  vessel.   The  Customs staff has  merely  to  report  the conduct for trial before a Magistrate.  They have nothing to investigate  about  it.  Similarly the offence  at  item  72 relates to a person’s making a false declaration.   Offences at items Nos. 74, 75 and 76 are with respect to the  conduct of  the Customs Officers themselves.  Items Nos. 76-A,  76-B and  78  deal  with  the obstruction  by  smugglers  to  the performance of duty by the Customs Officer.  The offence  at item  No.  77 relates to an offence where a  police  officer neglects  to do his duty.  Item 81 creates an  offence  with respect  to  a person doing certain things  to  defraud  the Government.    The  Customs  Officer,  therefore,   is   not primarily  concerned  with the detection and  punishment  of crime committed by a person, but is mainly interested in the detection   and  prevention  of  smuggling  of   goods   and safeguarding  the  recovery of customs duties.  He  is  more concerned  with  the goods and customs duty, than  with  the offender. Similar  view  was  expressed  by  this  Court  in   Maqbool Hussain’s Case(1).  It was said at p. 741 :               "It  is clear on a perusal of the  above  pro-               visions that the powers of search, arrest  and               detention are given to the Customs Authorities               for  the  levy  of  sea  customs  duties  an,.

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             provision  is  made  at the same  time  for  a               reference to the Magistrate in all cases where               (1) [1953] S.C.R. 730.               346               search  warrants are needed and  detention  of               arrested person is required".                           In  Thomas Dana v. The  estate               of Punjab (1)it was                "There are as many as 81 entriesin     the               Schedule to s. 167, besides those added  later,               but  each  one of those 81  or  more  entries,               though  an  Offence, being an  act  infringing               certain  provisions of the sections and  rules               under the Act, is not a criminal offence  They               (i.e., Customs Officers) have been only  given               limited  powers  of search.   Similarly,  they               have  been  given  limited  powers  to  summon               persons   to  give  evidence  or  to   produce               documents."               Further it was observed at p. 291               "It  is true that the petitioners  were  dealt                             with  by  the Collector of Central  Excise  an d                             Land  Customs, for the offence’  of  smuggling ;               were, found "guilty’, and a deterrent ’punish-               ment was imposed upon them, but as he had’ not               been vested with the powers of a Magistrate or               a criminal court, his proceedings against  the               petitioners  were  in the  nature  of  Revenue               proceedings,  with  a view  to  detecting  the               infringement  of  the provisions  of  the  Sea               Customs  Act, and imposing penalties  when  it               was  found that they had been guilty of  those               infringements.  Those penalties, the Collector               had been empowered to impose in order not only               to prevent a recurrence of such infringements,               but  also to recoup the loss of  such  revenue               resulting from such infringements." We  are therefore of opinion that the duties of the  Customs Officers  are very much different from those of  the  police officers and that their Possessing certain powers, which may have  similarity  with  those of  police.officers,  for  the purpose of detecting (1)  [1959] Supp. 1 S.C.R. 274,289. 347 the  smuggling of goods and the persons responsible  for  it would not make them police officers. There  seems to be no dispute that a person who is a  member of  the  police force is a police officer.  A  person  is  a member  of the police force when he holds his  office  under any of the Acts dealing with the police.  A person may be  a member of the police in any other country.  Officers of  the police in the erstwhile Indian States and an officer of  the police  of  a  foreign country have  been  held  in  certain decided cases to be police officers within the meaning of s. 25  of  the Evidence Act.  There is no  denying  that  these persons  are  police  officers  and  are  covered  by   that expression  in s. 25.  That expression is not restricted  to the police officers of the police forces enrolled under  the Police,  Act of 1861.  The word ’police’ is defined in s.  I and  is  said to include all persons who shall  be  enrolled under the Act.  No doubt this definition is not  restrictive as  it  uses the expression ’includes’,  indicating  thereby that  persons other than those enrolled under that  Act  can

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also be covered by the, word ’Police’. Sections  17  and  18  of the Police  Act  provide  for  the appointment of special police officers who are not  enrolled under  the Act but are appointed for special  occasions  and have  the  same Powers, privileges and  protection  and  are liable to perform the same duties as the ordinary officer of the police. Section 21 also speaks of officers who, are not enrolled  as police  officers and in such categories mentions  hereditary or other village police officers. The words ’police officer’ are therefore not to be construed in  a  narrow way, but have to be construed in  a  wide  and popular sense, as was remarked in, R. v. Hurribole (1) where a Deputy Commissioner of police who wits actually a (1)  (1876) I.L. R. I Cal. 207. 348 police   officer  and  was  merely  invested  with   certain Magisterial  powers was rightly held to be a police  officer within the meaning of that expression in s.  25    of    the Evidence Act. There  has,  however, arisen a divergence of  opinion  about officers  on whom some powers analogous to those  of  police officers  have been conferred being police officers for  the purpose  of  s.  25 of the Evidence  Act.   The  view  which favours their being held police officers, is based on  their possessing powers which are usually possessed by the  police and on the supposed intention of the legislature at the time of the enactment of s. 25 of the Evidence Act to be that the expression ’police officer’ should include every one who  is engaged in the work of detecting and preventing crime.   The other  view is based on the plain meaning of the  expression and on the consideration that the mere fact that an  officer who, by no stretch of imagination is a police officer,  does not become one merely because certain powers similar to  the powers of a police officer are conferred on him. We  now refer to certain aspects which lead us  to  consider that  the  expression "police officer’ has not such  a  wide meaning as to include persons on whom certain police  powers are conferred.  The object of enacting s. 25 of the Evidence Act,  whose provisions formerly formed part of the  Code  of Criminal Procedure, was to exclude from evidence confessions made  to the regular police which had a very bad  reputation for the methods it employed in investigation, especially  in forcibly extracting confessions with the object of  securing a conviction.  The past conduct of the members of the police organization  justified  the provision.  It is too  much  to suppose  that the Legislature did intend that  all  persons, who  may  have  to investigate or arrest  persons  or  seize articles in pursuance of any particular law of which at  the time it had no conception, should be considered to be so 349 unreliable that any confession made to them must be excluded just  as a confession made to a regular police officer.   If it  could not contemplate the later creation of offences  or of  agencies to take action in respect to them under  future legislation,  it  could  not have  intended  the  expression "police  officer’  to include officers entrusted  in  future with  the  duty of detecting and  preventing  smuggling  and similar offences with the object of safeguarding the levying and  recovery  of Customs duties.  If  the  Legislature  had intended  to use the expression (police officer’ for such  a wide  purpose,  it  would have  used  a  more  comprehensive expression.   It  could have expressed  its  intention  more clearly  by making any confession made to any officer  whose duty  is  to detect and prevent the commission  of  offences

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inadmissible in evidence. The police officer referred to in s. 25 of the Evidence Act, need  not be the officer investigating into that  particular offence  of  which  a person  is  subsequently  accused.   A confession made- to him need not have been made when he  was actually  discharging any police duty.  Confession  made  to any  member of the police. of whatever rank and at  whatever time, is inadmissible in evidence in view of s. 25. Customs Officers can, even if the respondent’s contention be accepted, be considered to be police officers only when they are  exercising the limited powers which are similar to  the powers  of  the  police officers.  This is  clear  from  the observations  in  the  cases relied upon on  behalf  of  the respondent. In  Ameen  Sharif  v.  Emperor (1)  Mukerji,  J.,  made  the following observations in this connection, at p. 630               "As  militating  against the view which  I  am               inclined  to take as stated above, two  points               have been raised........... And the other               (1)   (1934) I. L. R. 61 Cal. 607.               350               is  that in section 25 of the Act, in  respect               of  an  officer  of the  police,  there  is  a               personal  disability implied  irrespective  of               the   question   whether  be-is   holding   an               investigation or not, while no such disability               can be said to have been intended in the  case               of  an  excise  officer.   .........  And   as               regards the second point, I need only  observe               that,  whereas police officers, by  reason  of               section 22 of Act V of 1861, are always to  be               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." Similar  views were expressed in Ibrahim v.  Emperor(1)  and Public, Prosecutor v. Paramasivam (2).  But, in our opinion, merely  because  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 a sufficient ground for holding them to be police officers within the meaning of s. 25 of the  Evidence Act.  The powers of search etc. conferred on the former  are as  was  observed  in Thomas Dana’s case (3)  of  a  limited character  and   have a limited object of  safeguarding  the revenues of the State. It  is  also to be noticed that the Sea Customs  Act  itself refers to police officer in contradistinction to the Customs Officer.   Section  180 empowers a police officer  to  seize articles liable to confiscation under the Act, on  suspicion that  they had been stolen.  Section 184 provides  that  the officer  adjudging confiscation shall take and hold  posses- sion  of the thing confiscated and every officer of  police, on  request of such officer, shall assist him in taking  and holding such possession.  This leaves (1) A. I. R. 1944 Lah. 57. (2) A. I. R. 1953 Mad. 91 (3) [1959] Supp.  1 S.C.R. 274, 289. 351 no  room for doubt that a Customs Officer is not an  officer of the Police. Section  171-A  of the Act empowers the Customs  Officer  to

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summon any person to give evidence or to produce a  document or  any  other thing in any enquiry which he  be  making  in connection with the smuggling of any goods. It  is well-settled that the Customs Officer. when they  act under the Sea Customs Act to prevent the smuggling of  goods by imposing confiscation and penalties, act judicially:  Leo Roy Frey v. The Superintendent, District Jail,  Amritsar(1); Shewpujanrai   Indrasanrai   Ltd.  v.   The   Collector   of Customs(2).   Any  enquiry under s.171-A is deemed to  be  a judicial  proceeding within the meaning of as. 193 and  228, Indian Penal Code, in view of its sub s.(4). It is under the authority  given by this section that the  Customs  Officers can  take evidence and record statements.  If the  statement which  is recorded by a Customs Officer in the  exercise  of his  powers under this Section be an admission of guilt,  it will be too much to say that that statement is a  confession to  a  police  officer,  as  a  police  officer  never  acts judicially  and  no proceeding before a  police  officer  is deemed, under any provision so far as we are aware, to be  a judicial  proceeding  for  the purpose of  ss.193  and  228, Indian  Penal  Code or for any purpose.  It  is  still  less possible  to imagine that the Legislature would  contemplate such a person, whose proceedings are judicial for a  certain purpose,  to be a person whose record of statements made  to him could be suspect if such statement be of a  confessional nature. It  would  be highly incongruous that moat of  the  offences under   s.167  be  disposed  of  by  the  Customs   Officers themselves and that such confessional statements recorded by Customs  Officers be good material for them to  take  action and to (1) [1958] S.C. R. 822, 826. (2) [1959] S. C.  R. 821, 830, 352 penalize the offender to any amount of fine and yet the  and statements be held to be not admissible in evidence if  they have  to  be  used at a trial for a criminal  offence  in  a regular Court of law. We  therefore hold that the Customs Officers are not  police officers for the purpose of s. 25 of the Evidence Act. We  further hold that the conviction of the  respondent  for the  offences  under  s.  23(1)  of  the  Foreign   Exchange Regulation  Act,  1947,  ’and under  s.167(81)  of  the  Sea Customs  Act,  1878, on the basis of his statements  to  the Customs Officers, was legal and was wrongly set aside by the High  Court.  We therefore allow the appeal, set  aside  the order  of  acquittal  of the respondent  for  the  aforesaid offences  and restore the order of conviction passed by  the Magistrate and confirmed by the Sessions Judge. We  make  it  clear, however, that we  do  not  express  any opinion  on  the question whether  officers  of  departments other than the police, on whom the powers of an  Officer-in- charge  of  a Police Station under ch.  XIV of the  Code  of Criminal Procedure, have been conferred, are police officers or not for the purpose of s. 25 of the Evidence Act, as  the learned  counsel  for  the appellant did  not  question  the correctness of this view for the purpose of this appeal. SUBBA RAO J.-I regret my inability to agree.  I cannot bring myself  to hold that, while a confession made by an  accused to a police officer is not admissible in evidence in a Court of   law,   the  same  if  made,   under   exactly   similar circumstances, to a customs officer can be relied and  acted upon.  The reasons for excluding the one from evidence would equally apply to the other. Briefly stated, the case of the prosecution is as follows  :

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On June 8, 1957, the Superintendent, Land Customs, Amritsar, received  information that some gold would be smuggled  from Pakistan  353 to India by the engine crew of the train coming to  Amritsar from  Lahore  that  evening.   On  enquiry  by  the  Customs officials, the engine crew stated that 100 tolas of gold was kept hidden underneath the coal in the tender of the engine. After recovering the said gold, Barkat Ram, the  respondent, who was the driver of the engine, was arrested and taken  to the Customs office for interrogation.  On interrogation,  it was  disclosed that the gold was for delivery to one  Ghulam Mohd.   Two  days later Ghulam Mohd. was  also  arrested  at Amritsar.  During the enquiry., Barkat Ram and Ghulam  Mohd. made  statements before the Customs officials  on  different occasions  admitting  their  guilt.   In  due  course,   the Assistant   Collector,  Land  Customs,  Amritsar   filed   a complaint against the said two persons before the Additional District  Magistrate  Amritsar,  and  the  said   Magistrate convicted  and  sentenced them under s. 23  of  the  Foreign Exchange  Regulation Act 1947 (Act No. 7 of 1947)  and  also under s. 167 (81) of the Sea Customs Act, 1878 (Act No. 8 of 1878).  On appeal, the Additional Sessions Judge,  Amritsar, confirmed  the  said  order  of  conviction  and   sentence. Against  the said order, the accused filed revisions to  the High Court of Punjab.  Apart from the confessions alleged to have  been made by the accused, there was no other  evidence to  prove  that they were guilty of the offence  with  which they  were charged.  It was contended before the High  Court that  the said confessional statements were hit by s. 25  of the  Evidence Act and, therefore, they were inadmissible  in evidence.   The High Court, accepting the  contention,  held that,  if the statements were excluded, there was  no  other evidence  to sustain the conviction.  On that  finding,  the High  Court  set aside the conviction of the  accused.   The State has preferred the present appeal against the acquittal of Barkat Ram. Learned counsel for the State contended 354 that  Customs officials are not police officers  within  the meaning  of s. 25 of the Evidence Act, and,  therefore,  the statements  made by the respondents confessing  their  guilt were  admissible  in  evidence  and  the  convictions  based thereon were sustainable. Before  considering the decisions cited at the Bar,  let  us look at the material provisions of the relevant Acts. The Indian Evidence Act, 1872                Section  25 No. confession made to  a  police               officer  shall be proved as against  a  person               accused of any offence.                     Code of Criminal Procedure, 1898.               Section  5. (1) All offences under the  Indian               Penal Code (45 of 1860) shall be investigated,               inquired into, tried and otherwise dealt  with               according   to  the   provisions   hereinafter               contained.               (2) All offences under any other law shall  be               investigated,   inquired   into,   tried   and               otherwise  dealt  with according to  the  same               provisions,  but subject to any enactment  for               the time being in force regulating the  manner               of  place  of investigating,  inquiring  into,               trying   or   otherwise  dealing   with   such               offences.               Police Art’, 1861.

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             Section 1............ the word "police"  shall               include  all  persons who shall  be.  enrolled               under this Act.                           Sea Customs Act, 1878.               Section 6. The Central Government may  appoint               such  persons as it thinks fit to be  officers               of   Customs,  and  to  exercise  the   powers               conferred, and perform the duties imposed,  by               this Act on such officers.                             355 The  question  is  whether a customs  officer  is  a  police officer  within  the meaning of s. 25 of the  Evidence  Act. The Evidence Act does not define the term "police  officer". The  Sea  Customs  Act  does  not  designate  any   officers appointed thereunder as police officers.  The police Act  of 1861 gives an inclusive definition of the word "Police"  and therefore,  it  is not exhaustive; and "it  comprehends  not only  such things as it’ signifies according to its  natural import, but also enlarges the meaning of the said word so as to  take  in  other  things Section 5.(2)  of  the  Code  of Criminal  Procedure also contemplates investigation  of,  or inquiry into, offences under other enactments regulating the manner or place of investigation, that is, if an act creates an   offence   and  regulates  the  manner  and   place   of investigation or inquiry in regard to the said offence,  the procedure proscribed by the Code of Criminal Procedure  will give  place to that provided in that Act.  If the  said  Act entrusts   investigation  to  an  officer  other  than   one designated  as  police  officer, he will have  to  make  the investigation   and  not  the  police  officer.    In   this situation,  the mere use of the words police officer" in  s. 25  of the Evidence Act does not solve the  problem,  having regard  to permissible’ rules of interpretation of the  term ",police  officer" in that section.  It may mean any one  of the  following categories of officers (i) a  police  officer who  is a member of the police force constituted  under  the Police  Act;  (ii) though not a member of the  police  force constituted  under  the  Police  Act,  an  officer  who   by statutory fiction is deemed to be a police officer in charge of  a police station under the Code of  Criminal  Procedure; and  (iii) an officer oh whom a statute confers  powers  and imposes  duties  of  a  police officer  under  the  Code  of Criminal  Procedure,  without  describing him  as  a  police officer or equating him by fiction to such an officer.  Now, which 356 meaning is to be attributed to the term "police Officer"  in s.  25 of the Evidence Act ? In the absence of a  definition in  the Evidence Act it is permissible to travel beyond  the four  corners  of the statute to ascertain  the  legislative intention.   What  was  the meaning  which  the  legislature intended  to give to the term "police officer" at  the  time the said section was enacted ? That section was taken out of the  Criminal  Procedure  Code, 1861 (Act 25  of  1861)  and inserted  in the Evidence Act of 1872 as s. 25.  Stephen  in his Introduction to the Evidence Act states at p. 171 thus :                "I may observe, upon the provisions  relating               to  them,  that sections 25, 26  and  27  were               transferred to the Evidence Act verbatim  from               the  Code  of Criminal Procedure, Act  XXV  of               1861.   They  differ widely from  the  law  of               England, and were inserted in the Act of  1861               in order to prevent the practice of torture by               the  police  for  the  purpose  of  extracting               confessions from persons in their custody."

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             So  too,  Mahmood,  J., in  Queen  Empress  v.               Babulal (1) gave the following reasons for the               enactment  of s. 25 of the Evidence Act at  p.               523.               "I   the   legislature   had   in   view   the               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 .%way from the police               officers  as  the advantage  of  proving  such               exported  confessions  during  the  trial   of               accused persons." (1) (1884) I. L. R. 6 All. 509.  357 It  is, therefore, clear that s.25 of the Evidence  Act  was enacted  to subserve a high purpose and that is  to  prevent the  police from obtaining confessions by force, torture  or inducement.   The salutary principle underlying the  section would   apply  equally  to  other  officers,   by   whatever designation  they may be known, who have the power and  duty to  detect.  and  investigate into crimes and  is  for  that purpose  in  a  position to  extract  confessions  from  the accused. In the Oxford Dictionary, the word "police" is defined  thus :               "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   maintaining   public   order,   enforcing               regulations for the prevention and  punishment               of  breaches of the law, and detecting  crime;               construed as plural, the members of a  police,               force; the constabulary of a locality." Shortly,  stated,  the  main duties of the  police  are  the prevention  and  detection  of  crimes.   A  police  officer appointed  under the Police Act of 1861 has such powers  and duties  under the Code of Criminal Procedure, but  they  are not  confined only to such police officers.  As the  State’s power and duties increased manifold, acts which were at  one time  considered to be innocuous and even praiseworthy  have become offences, and the police power of the State gradually began  to  operate,  on different  subjects.   Various  Acts dealing  with  Customs, Excise Prohibition..  Forest,  Taxes etc.,  came to be passed, and the prevention, detection  and investigation  of offences created by those Acts came to  be entrusted to officers with nomenclatures appropriate 358 to  the subject with reference to which they functioned.  It is not the garb under which they function that matters,  but the  nature of the power they exercise or the  character  of the  function  they  perform  is  decisive.   The  question, therefore,  in  each  case  is, does  the  officer  under  a particular Act exercise the powers and discharge the  duties of prevention and detection of crime ? If lie does, he  will be a police officer.

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There  is  a conflict of judicial opinion  on  the  question raised.  The earliest decision, which was followed by  other later  decisions, is that of the Calcutta High Court in  The Queen  v. Hurribole Chunder Ghose(1).  The decision in  that case  was  given  in 1876.  It indicates in a  way  how  the courts understood the term "Police officer" in. or about the time when s. 25 was inserted in the Evidence Act: There  the question was whether a Deputy Commissioner of Police  before whom a prisoner made a statement was a police officer within the  meaning  of s. 25 of the Evidence Act.  It  was  argued that the term "police officer" comprised only that class  of persons  who  are  called under the Bengal  Police  Act  the members  of the police force.  Answering that question,  the learned Chief Justice observed at p. 215 thus :               ".........  in construing the 52th section  of               the, Evidence Act of 1872, I consider that the               term  "police officer" should be read  not  in               any technical sense but 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........." It is true that in that case I the court was concerned  with the question whether the Deputy Commissioner of Police was a police officer.  But that decision laid (1)  (1876) 1.L.R. I Cal. 207.  359 down  that to be police officer within the meaning of s.  25 of the Evidence Act one need not be a, member of the  police force under the Act of 1861.  This- decision stood the  test of  time  and  indeed  it  represented  the  contemporaneous judicial  opinion of the time.  In 1926 a full bench of  the Bombay High Court in Nanoo v. Emperor(1) held that an Abkari Officer under the Bombay Abkari Act, who, in the conduct  of investigation  of  an offence punishable  under  the  Bombay Abkari  Act  exercised the powers conferred by the  Code  of Criminal  Procedure’, 1898, upon an officer in charge  of  a police  station  for  the  investigation  of  a   cognizable offence, was a police officer within the meaning of s. 25 of the  Indian Evidence Act.  Marten C. J.,  after  considering the  ,relevant  provisions and the case law on  the  subject came to the following conclusion, at p. 94 :               "After  giving then my best attention  to  the               arguments, which have been addressed to us, in               my judgment, we should hold that as the Bombay               Legislature  has deliberately  conferred  upon               these  Abkari officers substantially  all  the               powers of a Police officer, they have- thereby               in effect made them Police officers within the               meaning of s. 25............."               Shah, J., stated much to the same effect at p.               97 :               "It    seems   to   me   a   perfectly    fair               interpretation  of section 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.               He  is a Police officer within the meaning  of               section   25,  if  in  the  investigation   of

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             offences under particular Act he exercises the               powers  of an, officer in charge of  a  police               station for the investigation of a  cognizable               offence conferred upon him by that Act." (1)  (1927) 1. L. R. S. Bom. 78. 360 This  decision,  therefore,  accepted  the  principle   that nomenclature given to a particular officer was not  decisive of  the  question whether he was a police Officer,  but  the powers  conferred  upon him.afforded the criterion.   It  is true that s. 41 of the Bombay Abkari Act stated,               "Every  such officer shall in the  conduct  of               such   investigation   exercise   the   powers               conferred  by the Code of Criminal  Procedure,               1898,  upon an officer in charge of a  police-               station for the investigation of a  cognizable               offence." But  conferment  of  power on an  officer  by  reference  to another Act in only one of the legislative devices and  such conferment  also could be made by specific provisions in  an Act  without reference to another Act.  A full Banch of  the Calcutta  High Court in Ameen Sharif v.  Emperor(1)  adopted the  same test for deciding whether an officer was a  police officer or not.  That decision related to an excise officer, and  the  Bengal Excise Act conferred powers on  the  excise officers  similar to those conferred by s. 41 of the  Bombay Abkari  Act  on  the  Abkari  Officers.   Mukerji  J.,   who delivered  the  leading  judgment,  after  scrutinizing  the relevant  provisions and the cases concluded his  discussion thus at p. 629 :               "It is the nature of the duties performance of               which was likely to give occasion for improper               influences  being exercised or felt,  and  not               any  particular  aversion  for  a   particular               department  of public service that  must  have               moved   the   legislature  in   enacting   the               provision.   I am, therefore, of opinion  that               if  matterrs  which previously  did  not  fall               within the category of crime subsequently came               to be recognized as such and on that’ officers               have been appointed to discharge or have  been               vested with powers of discharging duties               (1)(1934) 1. L. R. 61 Cal. 60 7.                                    361               which  a  police officer had to  discharge  in               1872,  then  whatever may be the name  of  the               department  to  which such officers  may  have               been attached, such officers must be, regarded               as  coming within the term  "police  officer",               with regard to whom section 25 of the Evidence               Act was intended to be applied"               This passage neatly summarises the law on  the               subject, and I entirely agree with it.  Ghose,               J.,  in a separate judgment came to  the  same               conclusion and he stated at p. 654 thus               "Since 1872, not only have new off(-noes  been               created  by  later  Acts, but  new  bodies  of               officers have been created who are vested with               powers   of  police  with  regard   to   these               offenses."               Then  the  learned Judge posed  the  question,               ",Would  that  make  any  difference  to   the               application  of the section to these  officers               ?" and answered it thus at 656 :               "The words "police officer" may be plain,  but

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             they are not defined in the Evidence Act.  The               contention  that  the  term  applies  only  to               members  of the police force is not borne  out               by authority.  On the other band, it is  quite               consistent  with the scheme of the Act that  t               person,  who exercises the powers of a  police               officer,  should  be hit  by  the  prohibitive               provision of section 25." Turning to Madras decisions, it would be enough if only  one decision of the Madras High Court is noticed, for the  other decisions   were  made  by  single  Judges  and  were   also considered  in the said decision.  A division bench  of  the Madras  High Court in Public Prosecutor v.  Paramasivam  (1) was  considering the status of an excise officer  under  the Opium  Act.  The learned Judges held that an excise  officer invested with the powers of an officer in charge of a police station for investigation of offences under (1)  A.I.R. 1953 Mad. 917. 362 s.20A  of  the  Opium Act w as  a  "police  officer"  coming within the purview of s. 25 of the Evidence Act. Balakrishna Ayyar, J., made the following observations at p. 918               "There  is  no exhaustive  definition  of  the               expression  ’Police  Officer’ in  any  of  our               statutes...........   In  the  absence  of   a               statutory  definition,  and,  apart  from  all               authority, one would be tempted to say that  a               police officer is a person whom any statute or               other provision of law calls such or, on  whom               it confers all or substantially all the powers               and  imposes the duties of a  police  officer.               If  he  is expressly called a  police  officer               there  is no difficulty whatsoever.  If he  is               not  so called then the next step is to ask  :               what does the law require him to do ? What are               the ditties imposed on him ? and what are  the               powers  conferred  on  him  ?  If  these   are               substantially those of a police officer  there               need be no qualms in regarding him as one.  If               his  powers  and  duties  are  confined  to  a               particular   extent  of  territory  or  to   a               particular subject matter he will be a  police               officer  only in respect of that territory  or               that  subject-matter.  The material  thing  to               consider  would be not the name given to  him,               nor  the colour of the uniform be is  required               to wear, but his functions, powers and duties.               A  police  officer does not cease to  be  such               merely because he is put into a white, khadder               uniform  instead  of  one in  khaki  drill;  a               medicine  will be just the same whether it  is               packaged   in  a  glass  jar  or   a   plastic               container," This  passage,  in my view lays down with clarity  the  real test  for  determining  whether a particular  officer  is  a police officer or not within the meaning of a statute.  I am in full accord with the said statement.                             363 A full bench of the Patna High Court in Radha Kishun Marwari v.  King Emperor, (1) struck a different note.   That  Court swung  to the other extreme and held 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

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Evidence  Act." on the basis of the said principle, it  came to  the Condition that an Excise Officer was not  a  "Police Officer"  within the meaning of s. 25 of the  Evidence  Act. With  at  respect to the learned Judges,  who  decided  that case,  I  think  that  "they  looked  too  narrowly  at  the appearance  of things and declined to look at the  substance behind the appearance".  If that interpretation be  correct, an  officer, who is simply designated as a  police  officer, will  come under the mischief of s. 25 of the Evidence  Act, whereas an officer, who is not described as a police officer but  who is entrusted with all the police powers and  duties would  not  be hit by it.  This adherence to the  letter  in derogation  of  the  spirit of t statute  would  defeat  the object  of the statute itself.  I, therefore, cannot  accept this judgment as correct. It  is  not necessary to multiply decisions  discussing  the general  principles.   But I would notice  a  few  decisions relating  to  Customs  Officer.  Yahya Ali,  J.,  in  In  re Mayalavahanam  (2)  expressed  the view  that  an  Assistant Inspector  of  Customs was not a police officer  within  the meaning  of s. 25 of the Evidence Act.  In coming,  to  that conclusion, the learned Judge distinguished a decision of  a division  bench of the Madras High Court on the ground  that the  Ordinance  on which that decision  turned  specifically mentioned  that in conducting the  investigation  particular officers  would have all the powers, duties, privileges  and liabilities  of  an officer in charge of  a  police  station under the Criminal Procedure Code. (1)  (1932) I.L.R. 12 Pat. 46. (2) I.L.R. [1947] Mad. 788. 364 I do not see how that circumstance makes a difference in the application  of  s. 25 of the Evidence Act.  The  fact  that that  Ordinance,  by  reference  to  the  Code  of  Criminal Procedure, conferred powers on the Commercial Tax  Officers, but  the  Sea Customs Act conferred similar  powers  not  by reference  to any Code, but by express enactment, could  not make any difference in the application of the principle.   I shall  consider  at a later stage the scope  of  the  powers conferred by the Sea Customs Act on a Customs Officer in the matter of prevention, detection and investigation of crimes. The  Punjab High Court, on the other hand, in Gopal Dass  v. The  State  (1) held that a Customs Officer  under  the  Sea Customs  Act had powers analogous to police powers  relating to prevention or detection of crimes and, therefore, he  was a police officer within the meaning of s. 25 of the Evidence Act.   The Calcutta High Court in Fernandez. v. State  (2  ) held that a Customs Officer was a police officer within  the meaning  of  s. 25 of the Evidence Act, whereas  the  Mysore High  Court  in  Issa Yacub v. State of Mysore  (3)  took  a contrary view.  The conflicting views were mainly based upon the  alleged circumstance that under the Sea  Customs  Act,. though powers of prevention and detection were conferred  on a  Customs Officer, no powers of investigation was given  to him.  I shall consider this aspect at a later stage. The  foregoing  consideration  of  the  case  law  and   the statutory provisions yields the following results : The term "police officer" is not defined in the Evidence Act, or,  as a matter of fact, in any other contemporaneous or subsequent enactment.  The question, therefore, falls to be decided  on a  fair  construction  of the provisions of  s.  25  of  the Evidence   Act,  having  regard  to  the  hi-story  of   the legislation and the meaning attributed to that (1) A.I.R. 1959 Punjab 1 13.  (2) A.I.R. 1953 Cal. 219.                  (3) A.I.R, 1961 Mysore 7.

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365 term  in  and about the time when s. 25 of the Evidence  Act came to be inserted therein.  If a literal meaning is  given to  the term "police officer" indicating thereby an  officer designated  as  police officer, it will  lead  to  anomalous results.   An officer designated as a police  officer,  even though  he  does not discharge the  well  understood  police functions, will be hit by s. 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police  officer would not be hit by that section;  with  the result,  the object of the section would be  defeated.   The intermediate  position,  namely, that an officer  can  be  a police  officer only if powers and duties pertaining  to  an officer in charge of a police station within the meaning  of the  Code of Criminal Procedure are entrusted to him,  would also  lead to an equally anomalous position, for,  it  would exclude  from  its operation a case of an  officer  on  whom specific  powers and functions are conferred under  specific statutes   without  reference  to  the  Code   of   Criminal Procedure.  The Code of Criminal Procedure does not define a "Police  officer"  and is 5(2) thereof makes  the  procedure prescribed by the Code subject to the procedure that may  be prescribed  by  any specific Act.  This  construction  would make  the provisions of s. 25 of the Evidence Act otiose  in respect  of officers on whom specific  and  incontrovertible police  powers are conferred.  But the third position  would not  only  carry out the intention of the  Legislature,  but would  also-make  the section purposive and  useful  without doing any violence to the language of the section.  A police officer within the meaning of s. 25 of the Evidence Act  may be defined thus : An officer, by whatever designation he  is called,  on whom a statute substantially confers the  powers and  imposes  the duties of the police is a  police  officer within the meaning of s. 25 of the Evidence Act. With  this background let us scrutinize the  provisions.  of the Sea Customs 366 Act to ascertain whether such powers have been conferred and duties imposed on a Customs officer.  Section 167 of the Sea Customs  Act  opens  out  with  the  following  words:  "The offences  mentioned  in the first column  of  the  following schedule shall be punishable to the extent mentioned in  the third  column of the same with reference ’to  such  offences respectively:"  Chapter XVI of the Act deals  with  offences and penalties.  Section. 167 provides penalties for offences in  a tabular form.  The first column gives the  particulars of  offences, the second column gives the section  to  which the  offence  has reference and the third column  gives  the penalties in respect of each offence.  Apart from the  facts that the statute itself, in clear terms, describes the  acts detailed  in the first column of s. 167 as offences  against particular  laws,  the acts described theorem  clearly  fall within  the definition of "offences" in the General  Clauses Act and the Indian Penal Code, Therefore, any  contravention of  any of the provisions of the Act mentioned in s. 167  of the Sea Customs Act is an offence.  Chapter XVII  prescribes the  procedure relating to Offences, appeals, etc.   Section 169  confers on an officer of Customs, duly employed in  the prevention  of smuggling, the power to search on  reasonable suspicion  any person on board of any vessel in any port  in India or within the Indian customs waters or any person  who has  landed from any vessel.  Section 170A enables the  said Customs  officer, for detecting secreted goods to  have  the body  of  a  person suspected  of  smuggling  X-rayed  after obtaining  the order of a Magistrate.  Section 171  empowers

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such officer to board a vessel for searching it an order  to ascertain  whether  any breach of the Act or any  other  law relating to customs has been or is being or is likely to  be committed.   Section 171A, which was inserted by Act  21  of 1955  gives  power to the said officer to summon persons  to give   evidence   and  produce  documents,   presumably   to facilitate investigation of the offence.  Under s. 173 367 an  officer  of Customs may arrest a person against  whom  a reasonable  suspicion exists that he has been guilty of  ,in offence  under the Sea Customs Act.  Under s. 178,  anything liable  to confiscation under the Act may be seized  in  any place  by a Customs officer.  The said sections,  therefore, create  offences,  and, for the purpose  of  prevention  and detection  of such offences, confer specific powers  on  the Customs  officers  to search persons or  places,  to  arrest persons  suspected  of such offences and to  make  necessary investigation  in  respect thereof.   The  Customs  officers under  the Act have the powers, and they also discharge  the functions,  of  police  officers and,  therefore,  they  are police  officers for the purpose of the Evidence Act  in  so far as they exercise or discharge such powers and functions. I,  therefore,  hold  that a Customs  officer  is  a  police officer qua his police functions.  If so, it follows that  a confession  made  to him cannot be proved against  a  person accused of an offence. In  the  present  case,  it is  not  disputed  that  if  the confession  made by the respondent to the  Customs  officers was excluded, there would be no other evidence on which  the conviction could be sustained.  Therefore,, the order of the High Court is correct. In the result, the appeal fails and is dismissed. By COURTIn accordance with the opinion of the majority,the appeal is allowed. Appeal allowed. 368