1. The question referred to the Full Bench by a Division Bench of this Court is:
'Whether a confession made to an Excise Officer exercising the powers of a Police Officer is a confession made to a Police Officer and is not admissible under Section 25 of the Indian Evi. Act.'
The referring Bench noticed the conflict of decisions of the various High Courts on this question and thought that it should be definitely settled once for all, so far as this Court and the Courts subordinate to it are concerned. ' In is Full Bench decision of the Patna High Court reported in Radhakishun Marwari v. Emperor, AIR 1932 Pat 293 (SB) (A) it was held that an Excise Officer exercising powers under the Bihar and Orissa Excise Act read with the Dangerous Drugs Act, was not a ''Police Officer' and that a confession made to him by an accused person was therefore admissible in evidence not being hit by Section 25 of the Evidence Act. There was an earlier Full Bench decision of the Bombay High Court, reported in Nanoo Sheikh Ahmed v. Emperor, AIR 1927 Bom 4 (B) to the contrary, but the Patna High Court did not accept the correctness of that Bombay decision. Subsequently, however, a Full Bench of the Calcutta High Court, in Amin Sharif v. Emperor AIR 1934 Cal 580 (C) dissented from the Patna view and preferred to follow the Bombay view and held that an Excise Officer while conducting investigation of an offence against the Excise Act, exercised all the powers under the Cri. P. C. for the purpose of investigating a criminal offence, and should be held to be a Police Officer for the purpose of Section 25 of the Ind. Evi. Act also.
In a recent Division Bench decision of the Madras High Court reported in Public Prosecutor v. Paramsivan AIR 1953 Mad 917 (D) the Calcutta and Bombay views were preferred to the Patna view.
2. The Patna view has prevailed in the States of Bihar and Orissa for nearly twenty-four years, and when its correctness was challenged before a Division Bench of this Court in the case reported in Banchhanidhi Sahu v. The State ILR 1955 Cut 109 (E) that Bench held that there was no special reason for departing from the settled practice and that it was not necessary to refer the question to a larger Bench.
The Division Bench which referred the question to the Full Bench noticed the aforesaid decision of this Court but pointed out that in that decision the amendment made to the Opium Act by Orissa Act II of 1939 was not taken into consideration and that there were sufficient grounds for referring the question to a Full Bench in order to examine the correctness of the Patna view.
3. Before discussing the legal questions I may refer to the facts of the case which are unchallenged. On 15-10-1953 as Excise Sub-Inspector (P.W. 1) on receipt of previous intimation searched the house of one Paluni Dei in village Gondia, P. S. Gondia in the Sadar Subdivision of Dhenkanal District, and recovered two packets of opium weighing one tola and forty tolas respectively, from a locked up almirah and a trunk. The key of the almirah was produced by Paluni Dei.
Her husband Satyabadi was not in the house then, but the petitioner Jaladhar Sahu, who is her son-in-law, was present in the house during the search. The Excise Sub-Inspector arrested Paluni Dei, and just then petitioner Jaladhar admitted before him that he had brought the two parcels of opium and kept them there. He also gave a statement in writing Ext. 2 to that effect. The Excise Officer sent up for trial both Paluni Dei and the petitioner Jaladhar Sahu for unauthorised possession of opium which was punishable under Section 9(a) of the Opium Act, 1878.
The trying Magistrate convicted both of them and sentenced them to pay fines. On appeal the learned Sessions Judge maintained the conviction but reduced the sentence of fine passed on Paluni Dei. The revision petition before this High Court was filed only by Jaladhar Sahu and it was contended that the entire case against him depended on his confession before the Excise Officer which was inadmissible.
4. Section 14 of the Opium Act 1878 conferred power on any officer of the Excise Department to search any building where there was reason to believe that opium was concealed in an unauthorised manner. Section 20 of the Opium Act of 1878 was amended by the Opium (Orissa Amendment) Act 1939 (Orissa Act II of 1939) and in place of Section 20 several news, namely 20, 20A to 20-1 were substituted in the parent Act. These Sections were brought into force in Balasore District on the 1-4-1940 and in the districts of Cuttuck, Puri, Sambalpur, Ganjam on the 1-6-1942.
The Opium Act, 1878, with its Orissa amendment, was applied to all the former Orissa States including the present district of Dhenkaqal by the Merged States (Laws) Act, 1949 '(see Sch to that Act.). It is not challenged that every officer of the Excise Department of the rank of a Sub-Inspector and above has the power to investigate an offence under the Opium Act.
The search of Paluni Dei's house was made by P. W. 1 in the exercise of that power. Section 20A provides for the arrest of a person for an offence under that Act and also for the disposal of the incriminating opium seized during the search. 'This section-closely corresponds to Sections 165 and 167 of the Cr. P. C. Section 20-B of the Opium Act conferred power on the Investigating Officer to summon witnesses and examine them. This section corresponds to Sections 160, 161 and 162 of the Code and it will be useful to quote this section:
'20-B. (1) An officer empowered under Section 20 may summon any person to appear before himself to give evidence or to produce any document necessary for the purpose of investigation.
(2) Such summons shall state whether the person summoned is required to give evidence or to produce a document or both, and shall specify a time and place for appearance.
(3) It shall be lawful for such officer, instead of issuing a summons, to proceed to the residence of any person whom by reason of sickness or other infirmityor by reason of rank or sex it may not seem proper to summon, and then require him to answer such questions as may he necessary for the purposes of investigation. It shall also be lawful for such officer to examine any person who may appear before him to give evidence or to produce any document necessary for the purposes of the investigation, although the said person appears voluntarily and no summons has been issued to him.
(4) Any person examined in accordance with the provisions of Sub-section (1) or Sub-section (3) shall be bound to answer all questions relating to the investigation put to him by such officer other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(5) The provisions of Section 162 of the Code of Criminal Procedure 1898 shall apply to the statements made by any person under this Section. No oaths shall be administered to any such person.'
Special mention should be made of Sub-section (5) of Section 20B which expressly says that the provisions of Section 162 of the Cr. P. C. shall apply to statements made by any person under this section. The remaining sections namely. 20-C to 20-I are almost identical with the corresponding provisions of the Cr. P. C. dealing with investigation of offences by the Police after examining witnesses. It is unnecessary to refer to those provisions in detail for the purpose of the present case.
5-6. Mr. Misra on behalf of the petitioner urged that the question for reference to the Full Bench, as posed by the Division Bench is academic inasmuch as by virtue of Section 20-B (5) of the Opium Act the statement made by the petittoner to the Excise Officer would be hit by Section 162 of the Cr. P. C. and would in any case be inadmissible whether it amounts to a confession or not.
7. In my opinion, this argument is well founded. Prior to the decision in Pakala Narayanaswami v. Emperor AIR 1939 PC 47 (F) it was held by a majority of the High Courts that Section 162 of the Cr. P. C. was restricted only to statements made by witnesses and did not apply to statements made by an accused person. The Privy Council, however, did not accept this view and held that Section 162 would apply to statements made before Police officers by persons accused of offences.
This decision would apply with full force in construing Section 20-B(5) of the Opium Act and it must be held that the bar of Section 162 of the Cr. P. C. would apply to statements, whether confessional or otherwise, made by a person accused of an offence under that Act. It is true that the marginal heading of Section 20-B and some words in Sub-sections (1) and (3) of that section may lend some weight to the argument that the entire section deals with statements of witnesses only and not of accused persons.
But in Sections 160, 161 and 162 of the Cr. P. C. also there were similar provisions, and notwithstanding the existence of those provisions the Privy Council held that the expression 'any person' occurring in Section 162 should be given its ordinary meaning and that the expression would apply to statements of accused persons also.
8. The same reasoning should apply in construing Section 20-B. I may specially refer to the second sentence in Sub-section (3) of Section 20-B which says that 'it shall also be lawful for such officer to examine any person who may appear before him to give evidence or to produce any document necessary for the purpose of investigation although the said person appears voluntarily and no summons has been issued to him.''
The statement of the petitioner before the Excise Officer which is now being 'used as evidence against him' would well come within the scope of this sentence, and it is immaterial whether ho was subsequently made an accused in the case.
It should therefore, be held that the petitioner's oral statement before the Excise Officer which was subsequently reduced into writing (Ext. 2) is in any case inadmissible in view of the bar imposed by Section 162, Cr. P. C. and it is unnecessary to decide whether it will also be inadmissible as a 'confession before a Police Officer' within the meaning of Section 25 of the Indian Evidence Act
9. The correctness or otherwise of AIR -1932 Pat 293 (A) does not therefore really arise for consideration here, but, I may point out that till the decision of the Privy Council in AIR 1939 PC 47 (F) the Patna and Calcutta High Courts had been following the majority view that Section 162 did not apply to statements of accused persons.
Hence neither in the Patna decision, nor in the later Full Bench decision of the Calcutta High Court AIR 1934 Cal 580 (C) was there any discussion as to whether the statement made by an accused person before an Excise Officer in respect of an excisable offence would also be hit by the provisions of Section 162 Cr. P. C.
No decision subsequent to 1939, either of the Patna High Court or of the Calcutta High Court dealing with this question in the light of the Privy Council decision in AIR 1939 PC 47 (F) has been brought to our notice. I find that in Section 78 of the Bihar & Orissa Excise Act 1915 (Act II of 1915) it has been specially provided that an Excise Officer investigating an offence under that Act may exercise all the powers under Sections 160 to 171 of the Cr. P. C. conferred on a Police Officer making an investigation and that the said portions of the said Code shall apply.
It would thus appear that any statement made by an accused person before an Excise Officer during the investigation of an offence under the Bihar & Orissa Excise Act would also be hit by the provisions of Section 162 of the Cr. P. C. as applied to such investigation, by virtue of Section 78 of the Bihar & Orissa Excise Act, and it will be academic to consider whether such a statement would also amount to a confession before a Police Officer so as to be inadmissible under Section 25 of the Indian Evidence Act.
In the Madras decision reported in AIR 1953 Mad 917 (D), Section 162 of the Cr. P. C. was also considered and it was held that an Excise Officer investigating an excisable offence was a Police Officer not only for the purpose of Section 25 of the Indian Evidence Act but also for the purpose of Section 162 of the Code.
In that case also the offence was under the Opium Act of 1873, which was amended by Madras Act II of 1951 by which a new section namely Section 20-A, was inserted conferring on Excise officers powers of an officer in charge of Police Station for the purpose of investigation of an offence under the Opium Act. The Madras amendment was not so elaborate as the Orissa amendment of 1939; and the detailed provisions such as Sections 20-B to 20-I describing in full all the powers conferred on an Excise Officer investigating an offence under the Excise Act, are not found.
In fact there is no provision corresponding to Section 20-B (5) expressly applying Section 162 to the statements made by any person before Excise Officers. But the Madras High Court seems to have inferred the applicability of Section 162 from the general words of Section 20-A of the Madras amendment. In the present case, however, we have no difficulty in view of the express language of Section 20-B (5) of the Opium Act.
10. I would therefore hold that the statement of the petitioner, Jaladhar Sahu, made before P. W. 1 is inadmissible under Section 162 of the Cr. P. G. and as that is the only piece of evidence against him he is entitled to acquittal.
I would however leave open the question whether a confession made by an accused person before an Excise Officer at a time when that Officer was not investigating an offence under the Opium Act, or the Excise Act or any other similar enactment would be inadmissible under Section 25 of the Indian Evidence Act.
11. The reference is answered accordingly. The conviction and sentence passed on the petitioner are set aside and he is acquitted.
12. I agree.
13. I agree.