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Badku Joti Savant Vs. State of Mysore - Court Judgment

LegalCrystal Citation
SubjectCustoms;Criminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1966SC1746; 1966CriLJ1353; 1978(2)ELT323(SC); [1966]3SCR698
ActsSea Customs Act, 1878 - Sections 167 (81); Land Customs Act, 1924 - Sections 9; Foreign Exchange Regulation Act, 1947 - Sections 8(1); Central Excises Act, 1944 - Sections 9, 13, 14, 18, 19, 21, 21(2) and 37(2) ; Indian Evidence Act - Sections 24 and 25; Code of Criminal Procedure (CrPC), 1898 - Sections 173 and 190; Bihar and Orissa Excise Act, 1915 - Sections 77(2) and 78(3)
AppellantBadku Joti Savant
RespondentState of Mysore
Cases ReferredRadha Kishun Marwari v. King
Excerpt:
.....offence. it was ruled that the central excise and salt act, 1944 does not confer all the power of police officer on central excise officers and section 21 of the act entitles the officer to do only inquiry of the matter and are not entitled to file a chargesheet - the said officer does not become a police officer within the meaning of section 25 of the indian evidence act, 1872 - [a.k. sarkar,; j.r. mudholkar and; r.s.bachawat, jj.] the respondents were the owners of certain premises in new delhi. the lessee--a company--of these premises assigned the lease to the appellant. alleging that the transfer was done without their consent, the respondents filed an application against the lessee and the appellant under s. 14(1) proviso (b) of the delhi rent control act, 1958, for recovery of..........excise may have actedunder the powers conferred on him by the sea customs act, he was still a policeofficer, and the statement made to him by the appellant on november 30, 1960which is in the nature of a confession would be inadmissible under s. 25 of theevidence act. it may be added that the high court had in this connection reliedon the judgment of this court in the state of punjab v. barkat ram : [1962]3scr338 where it had been held by majority that a customs officer under the seacustoms act was not a police officer within the meaning of s. 25 of theevidence act. the appellant however relies on a later decision of this court inraja ram jaiswal v. state of bihar 0065/1963 : 1964crilj705 where by majority itwas held that an excise officer under the bihar and orissa excise act (no......
Judgment:

Wanchoo, J.

1. This is an appeal on a certificate granted by the Mysore High Court. Theappellant was prosecuted under section 167 (81) of the Sea Customs Act (No. 8of 1878) read with Section 9 of the Land Customs Act (No. 19 of 1924). Theappellant lives in a village which is close to Goa. The incident out of whichthe present appeal has arisen took place on November 27, 1960 when Goa was nota part of India but was Portuguese territory. The Deputy Superintendent ofCustoms, Goa, Frontier Division, Belgaum received information that contrabandgoods would be found in the house of the appellant. Consequently he raided thehouse in the company of three panchas. The appellant was not present in thehouse when the raid took place, but his mother and sister-in-law were there.After necessary formalities the house was searched and a big steel trunk, acane-box and another steel trunk were taken down from the loft in the kitchen.On opening, a belt, with four pouches stitched to it, was found in the bigsteel trunk. Inside the pouches, four gold bars with foreign marks and labelsof Goa Customs authorities were found. Besides these, a large sum of money andthree small cut pieces of gold were also found in the box. In the other twoboxes also various sums of money in currency notes were found. The weight ofthe gold bars was 343 tolas.

2. On November 30, 1960, the appellant was arrested and interrogated by theDeputy Superintendent of Customs and Excise. The answers given by him werereduced in writing and his signature was taken on the writing after it had beenread over to him. During this interrogation, the appellant admitted that thefour gold bars had been given to him on November 27, 1960 in the morning by oneVittal Morajkar of Goa so that he might deliver them back to Morajkar on themotor-stand at Belgaum or near there, and he had kept them in his house. As thegold was foreign gold and as under the notification under Section 8(1) of theForeign Exchange Regulation Act, 1947, import of gold into India had beenforbidden except with the general or special permission of the Reserve Bank ofIndia, the appellant was prosecuted on a complaint filed by the AssistantCollector of Central Excise and Land Customs, Goa Frontier Division, Belgaum.

3. The Magistrate convicted the appellant and sentenced him to imprisonmentand fine and also ordered confiscation of the four gold bars. On appeal to theSessions Judge, the appellant was acquitted relying on the decision of theCalcutta High Court in Sitaram Agarwala v. State . Thenfollowed an appeal by the State to the High Court. The High Court disagreedwith the view taken by the Calcutta High Court in Sitaram Agarwal's case : 1966CriLJ712 and held that even a person like the appellant who mighthave no direct concern with the import of gold in any way was liable underSection 167(81) of the Sea Customs Act. The High Court then considered theevidence and relying on the statement made by the appellant to the DeputySuperintendent of Customs and Excise and also on the other evidence produced inthe case held that the appellant was guilty. In consequence, the acquittal ofthe appellant was set aside and the order of conviction and sentence passed bythe Magistrate was restored. The appellant then applied to the High Court for acertificate to appeal to this Court, and as two questions of law of generalimportance arose in this case, the High Court granted the certificate. The twoquestions were : (1) whether the view by the High Court differing from the viewtaken by the Calcutta High Court in Sitaram Agarwal's case with respect to the interpretation of Section 167(81) was correct, and (ii)whether the statement made by the appellant to the Deputy Superintendent ofCustoms and Excise was admissible in evidence in view of Section 25 of theIndian Evidence Act (No. 1 of 1872). These are the two questions which havebeen argued before us on behalf of the appellant in the present appeal.

4. So far as the first question is concerned, namely, the interpretation ofSection 167(81) of the Sea Customs Act, the matter is now settled by thedecision of this Court in Sachidananda Bannerjee, Assistant Collector of Customs v. Sitaram Agarwal and another : 1966CriLJ712 . This Court has held therein that the interpretation put by the Calcutta High Court in the case ofSitaram Agarwala is not correct and that section 167(81)of the Sea Customs Act can also take in persons who may not be concerned withactual import of prohibited goods. The view taken by the Mysore High Court isin accordance with the view taken by this Court in that appeal and in view ofthat, learned counsel for the appellant has admitted that the appellant wouldbe guilty within the meaning of s. 167(81) of the Sea Customs Act.

5. This leaves only the second question, and it has been urged on behalf ofthe appellant that a Central Excise Officer under the Central Excises and SaltAct, No. 1 of 1944 (hereinafter referred to as the Act) is a police officerwithin the meaning of those words in s. 25 of the Evidence Act. Therefore eventhough the Deputy Superintendent of Customs and Central Excise may have actedunder the powers conferred on him by the Sea Customs Act, he was still a policeofficer, and the statement made to him by the appellant on November 30, 1960which is in the nature of a confession would be inadmissible under s. 25 of theEvidence Act. It may be added that the High Court had in this connection reliedon the judgment of this Court in the State of Punjab v. Barkat Ram : [1962]3SCR338 where it had been held by majority that a Customs Officer under the SeaCustoms Act was not a police officer within the meaning of s. 25 of theEvidence Act. The appellant however relies on a later decision of this Court inRaja Ram Jaiswal v. State of Bihar 0065/1963 : 1964CriLJ705 where by majority itwas held that an excise officer under the Bihar and Orissa Excise Act (No. 2 of1915) was a police officer within the meaning of s. 25 of the Evidence Act.

6. There has been difference of opinion among the High Courts in India as tothe meaning of the words 'police officer' used in s. 25 of theEvidence Act. One view has been that those words must be construed in a broadway and all officers whether they are police officers properly so-called or notwould be police officers within the meaning of those words if they have all thepowers of a police officer with respect to investigation of offences with whichthey are concerned. The leading case in support of this view is Nanoo SheikhAhmed v. Emperor I.L.R. (1927) Bom. 78. The other view which may be calledthe narrow view is that the words 'police officer' in s. 25 of theEvidence Act mean a police officer properly so-called and do not includeofficers of other departments of government who may be charged with the duty toinvestigate under special Acts special crimes thereunder like excise offencesor customs offences, and so on. The leading case in support of this view isRadha Kishun Marwari v. King-Emperor I.L.R. (1933) Pat 46. The other HighCourts have followed one view or the other, the majority being in favour of theview taken by the Bombay High Court.

7. It is submitted on behalf of the appellant that the view taken by theBombay High Court in Nanoo Sheikh Ahmed I.L.R. (1927) 51 Bom. 78 is thecorrect view and that the view of the Patna High Court in Radha Kishan MarwariI.L.R. (1933) Pat 46 is not correct. On the other hand it has been urgedon behalf of the State that the view taken by the Patna High Court in RadhaKishun Marwari I.L.R. (1933) Pat 46 is the correct one. Prima faciethere is in our opinion much to be said for the narrow view taken by the PatnaHigh Court. But as we have come to the conclusion that even on the broad view,a Central Excise Officer under the Act is not a police officer, it isunnecessary to express a final opinion on the two views on the meaning of thewords 'police officer' in s. 25 of the Evidence Act. We shall proceedon the assumption that the broad view may be accepted and that requires anexamination of the various provisions of the Act to which we turn now.

8. The main purpose of the Act is to levy and collect excise duties andCentral Excise Officers have been appointed thereunder for this main purpose.In order that they may carry out their duties in this behalf, powers have beenconferred on them to see that duty is not evaded and persons guilty of evasionof duty are brought to book. Section 9 of the Act provides for punishment whichmay extend to imprisonment upto 6 months or to find upto Rs. 2,000 or bothwhere a person (a) contravenes any of the provisions of a notification issuedunder s. 6 or of s. 8 or of a rule made under clause(iii) of sub-section (2) ofs. 37; (b) evades the payment of any duty payable under the Act; (c) fails tosupply any information which he is required by rules made under the Act tosupply or supplies false information; and (d) attempts to commit or abets thecommission of any of the offences mentioned in cls. (a) and (b) above. Under s.13 of the Act, any Central Excise Officer duly empowered by the CentralGovernment in this behalf may arrest any person whom he has reason to believeto be liable to punishment under the Act. Section 18 lays down that allsearches made under the Act or any rules made thereunder and all arrests madeunder the Act shall be carried out in accordance with the provisions of theCode of Criminal Procedure, 1898 relating respectively to searches and arrestsmade under that Code. Sections 19 lays down that every person arrested underthe Act shall be forwarded without the delay to the nearest Central ExciseOfficer empowered to send persons so arrested to a Magistrate, or, if there isno such Central Excise Officer within a reasonable distance, to theofficer-in-charge of the nearest police station. These sections clearly showthat the powers of arrest and search conferred on Central Excise Officers arereally in support of their main function of levy and collection of duty onexcisable goods.

9. Strong reliance has however been placed on behalf of the appellant on s.21 of the Act, the material part of which runs thus :

'21. (1) When any person isforwarded under section 19 to a Central Excise Officer empowered to sendpersons so arrested to a Magistrate, the Central Excise Officer shall proceedto inquire into the charge against him.

(2) For this purpose the CentralExcise Officer may exercise the same powers and shall be subject to the sameprovisions as the officer-in-charge of a police station may exercise and issubject to under the Code of Criminal Procedure, 1898, when investigating acognizable case;

Providedthat.....................................'

10. It is urged that sub-section (2) of s. 21 a Central Excise Officer underthe Act has all the powers of an officer-in-charge of a police station underchapter XIV of the Code of Criminal Procedure and therefore he must be deemedto be a police officer within the meaning of those words in s. 25 of theEvidence Act. It is true that sub-section (2) confers on the Central ExciseOfficer under the Act the same powers as an officer-in-charge of a policestation has when investigating a cognizable case; but this power is conferredfor the purpose of sub-s. (1) which gives power to a Central Excise Officer towhom any arrested person is forwarded to inquire into the charge against him.Thus under s. 21 it is the duty of the Central Excise Officer to whom anarrested person is forwarded to inquire into the charge made against suchperson. Further under proviso (a) to sub-s. (2) of s. 21 if the Central ExciseOfficer is of opinion that there is sufficient evidence or reasonable ground ofsuspicion against the accused person, he shall either admit him to bail toappear before a Magistrate having jurisdiction in the case, or forward him incustody to such magistrate. It does not however appear that a Central ExciseOfficer under the Act has power to submit a charge-sheet under s. 173 of theCode of Criminal Procedure. Under s. 190 of the Code of Criminal Procedure, amagistrate can take cognizance of any offence either (a) upon receiving acomplaint of facts which constitute such offence, of (b) upon a report inwriting of such facts made by any police officer, or (c) upon informationreceived from any person other than a police officer, or upon his own knowledgeor suspicion, that such offence has been committed. A police officer forpurposes of clause(b) above can in our opinion only be a police officerproperly so-called as the scheme of the Code of Criminal Procedure shows and itseems therefore that a Central Excise Officer will have to make a complaintunder clause(a) above if he wants the Magistrate to take cognizance of anoffence, for example, under s. 9 of the Act. Thus though under sub-section (2)of s. 21 of the Central Excise Officer under the Act has the powers of anofficer-in-charge of a police station when investigating a cognizable case,that is for the purpose of his inquiry under sub-s. (1) of s. 21. Section 21 isin terms different from s. 78(3) of the Bihar and Orissa Excise Act, 1915 whichcame to be considered in Raja Ram Jaiswal's case 0065/1963 : 1964CriLJ705 andwhich provided in terms that 'for the purposes of section 156 of the Codeof Criminal Procedure, 1898, the area to which an excise officer empowered undersection 77, sub-section (2), is appointed shall be deemed to be a policestation, and such officer shall be deemed to be the officer-in-charge of suchstation'. It cannot therefore be said that the provision in s. 21 is onpar with the provision in s. 78(3) of the Bihar and Orissa Excise Act. All thats. 21 provides is that for the purpose of his enquiry, a Central Excise Officershall have the powers of an officer-in-charge of a police station wheninvestigating a cognizable case. But even so it appears that these powers donot include the power to submit a charge-sheet under s. 173 of the Code ofCriminal Procedure, for unlike the Bihar and Orissa Excise Act, the CentralExcise Officer is not deemed to be an officer-in-charge of a police station.

11. It has been urged before us that if we consider s. 21 in the setting ofs. 14 of the Act, it would become clear that the enquiry contemplated under s.21(1) is in substance different from investigation pure and simple into anoffence under the Code of Criminal Procedure. It is not necessary to decidewhether the enquiry under s. 14 must also include enquiry mentioned in s. 21 ofthe Act. Apart from this argument we are of the opinion that mere conferment ofpowers of investigation into criminal offences under s. 9 of the Act does notmake the Central Excise Officer a police officer even in the broader viewmentioned above. Otherwise any person entrusted with investigation under s. 202of the Code of Criminal Procedure would become a police officer.

12. In any case unlike the provisions of s. 78(3) of theBihar and Orissa Excise Act, 1915, s. 21(2) of the Act does not say that theCentral Excise Officer shall be deemed to be an officer-in-charge of a policestation and the area under his charge shall be deemed to be a police station.All that s. 21 does is to give him certain powers to aid him in his enquiry. Inthese circumstances we are of opinion that even though the Central ExciseOfficer may have when making enquiries for purposes of the Act powers which anofficer-in-charge of a police station has when investigating a cognizableoffence, he does not thereby become a police officer even if we give thebroader meaning to those words in s. 25 of the Evidence Act. The scheme of theAct therefore being different from the Bihar and Orissa Excise Act, 1915, theappellant cannot take advantage of the decision of this Court in Raja RamJaiswals' case 0065/1963 : 1964CriLJ705 taking even the broader view of the words'police officer' in s. 25 of the Evidence Act. We are of opinion thatthe present case is more in accord with the case of Barkat Ram : [1962]3SCR338 . In this view of the matter the statement made by the appellant to theDeputy Superintendent of Customs and excise would not be hit by s. 25 of theEvidence Act and would be admissible in evidence unless the appellant can takeadvantage of s. 24 of the Evidence Act. As to that it was urged on behalf ofthe appellant in the High Court that the confessional statement was obtained bythreats. This was not accepted by the High Court and therefore s. 24 of theEvidence Act has no application in the present case. It is not disputed that ifthis statement is admissible, the conviction of the appellant is correct. As wehave held that a Central Excise Officer is not a police officer within themeaning of those words in s. 25 of the Evidence Act the appellant's statementis admissible. It is not ruled out by anything in s. 24 of the Evidence Act andso the appellant's conviction is correct and the appeal must be dismissed. Wehereby dismiss the appeal.

13. Appeal dismissed.


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