1. It is conceded on behalf of the Government of Bombay that apart from certain incriminating statements made by the accused to an excise peon, which statements were excluded by the Magistrate from evidence, the evidence on the record would not be sufficient to convict accused No. 3 or accused No. 4. The only point, therefore, which we have to consider in this appeal and its companion revision application is whether those statements were rightly excluded by the Magistrate from being admitted in evidence.
2. In the recent Full Bench decision of Nanoo v. Emperor I.L.R (1926) Bom. 78,: 28 Bom. L.R. 1196. the authorities on the point were exhaustively gone into and considered. The Government Pleader distinguishes that case from the present on the ground that what the Full Bench had to decide related to statements made to excise officers on whom powers of investigating the offence had been conferred. He contends that an excise peon is not an officer on whom any such powers are conferred, and, therefore, the ruling in the Full Bench case would not apply. Under Section 15 of the Opium Act, the excise peon would have the power to detain, search, seize and arrest any person whom he had reason to believe to be guilty of any offence against the Opium Act or any other such law. It would also appear from Section 3 of Bombay Act II of 1923 that officers of the department of salt and excise not below the rank of an inspector, who in the right of their office are authorised by the Local Government in that behalf, shall within the area for which they are appointed, exercise, with regard to offences under the Bombay Act, powers similar to those exercised by an officer in charge of a police station under the Code of Criminal Procedure. By referring to Section 157 of the Code of Criminal Procedure it would appear that an officer in charge of a police station is empowered to depute his subordinate officers not being below such rank as the, Local Government may by general or special order prescribe in that behalf to investigate the facts and circumstances of the case, and if necessary to take measures for the discovery and arrest of the offender. There is no doubt that a police constable is one of such subordinate officers to whom an officer in charge of a police station may depute such powers. The Government Pleader contends that in the absence of a special provision putting the excise peon on the same footing as a police constable, the excise peon cannot be described as a subordinate officer to whom the excise superior officer contemplated by Section 3 of Bombay Act II of 1923 could depute the power of investigation. It is not necessary, in my opinion, to decide this point in the present case. In my judgment, the excise peon having the power to detain, search, seize and arrest any person whom he believes to be guilty of any offence, has powers which are very similar to those exercised by a police officer. I would be prepared, therefore, to extend the principle of the Full Bench ruling in Nanoo v. Emperor to the case of an excise peon, and hold that any confession made to him is inadmissible under the provisions of Section 25 of the Indian Evidence Act. That being the only point for disposal in the case, the appeal should be dismissed, and the rule granted against accused No. 4 discharged.
3. I agree, It has now been definitely laid down by this Court in the Full Bench case of Nanoo v. Emperor I.L.R (1926) Bom 78: 28 Bom. L.R. 1196. that an Abkari officer, who in the conduct of an investigation of an offence punishable under the Bombay Abkari Act, exercises the powers conferred by the Code of Criminal Procedure upon an officer in charge of a police station for the investigation of a cognizable offence, is a police officer within the meaning of Section 25 of the Indian Evidence Act, and 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. In the present case the alleged incriminating statements were made not to the Abkari Inspector, but to his peon. The powers of excise peons are defined in Section 37 of the Bombay Abkari Act, and Section 15 of the Indian Opium Act (Act I of 1878). The powers are practically the same except that in one case they refer to excisable articles, and in the other, specifically to opium, and those powers are to seize in any open place or in transit anything which is liable to confiscation under either of the Acts and to detain and search any person whom he has reason to believe to be guilty of any offence against this or any other such law, and if such person has any such article in his possession, to arrest him. The powers, therefore, exercised by the excise peon are those of search, seizure, arrest and detention. In relation to the Abkari inspector the position of the excise peon is very much that of a police constable towards an officer in charge of a police station. It would, I think, be very difficult to draw a distinction and to say that because an officer has the powers of an officer in charge of a police station, therefore a confession made to him would be inadmissible under Section 25 of the Indian Evidence Act, while because an officer has only powers of seizure, search, arrest and detention, a confession made to him would not be so inadmissible. It may be that the powers of an ordinary police constable are wider than those of an excise peon, because the duties of a police constable extend to the prevention and detection of offences of all descriptions, whereas the powers of an excise peon are only exercisable in the case of offences falling under the Abkari Act. But when we are dealing with a prosecution under either of those Acts, it is obvious that the position of the excise peon towards the accused is practically the same as that of an ordinary police constable towards an accused charged with some offence under the criminal law, and I see no reason why a confession made to such an excise peon should be held to be admissible on the ground that he does not exrcise all the powers conferred upon an officer in charge of a police station. For all practical purposes, in a case of this character, the position is exactly that of a police constable in a case falling under the ordinary law, and in view of the remarks made by this Court in the Full Bench decision in Nanoo v. Emperor, I see no reason why the prohibition of Section 25 of the Indian Evidence Act should not be extended to incriminating statements made by persons accused of an offence under the Abkari or Opium Act, to excise peons who are actually engaged at the time in the investigation of the offence under the orders of the Abkari inspector, and who have the power both to seize any prohibited articles found in the possession of the accused, and also to arrest the accused and keep him in detention. It has been argued that some distinction should be made between confessions and statements made by accused persons which are not in the nature of admissions. As the statements which were made by the accused in this case to the Abkari peon were not allowed to be put in, it cannot be said exactly what they were, but the questions themselves are on the record, and from those questions I have no hesitation in holding that if those questions had been truly answered, they would have amounted to incriminating admissions against the accused, to whom those questions were put. One of the questions is, where did you get the opium from and the other is, what was the rate fixed for the opium Obviously any answer made to a quastion of that description must necessarily amount to an admission that the person to whom these questions were put was dealing in opium. In these circumstances I agree that the learned Magistrate was correct in disallowing these questions on the ground that they were prohibited by Section 25 of the Indian Evidence Act. It is not contended by the prosecution that in the absence of these confessional statements there is sufficient evidence on the record to warrant the conviction of accused Nos. 3 and 4. The result, therefore, must be that the appeal against the acquittal of accused No. 3, Dinsha Cursetji Driver, must be dismissed, and so also the rule issued in the case of accused No. 4, who is discharged, must be discharged also.