1. It appears that the Excise authorities had reason to suspect that illicit distillation was going on in a certain area and posted a number of Sub-Inspectors and peons in various parts of a forest at the early hours of the morning in the hope of detecting illicit distillation. At about 6 A.M. P.Ws. 1 and 2 detected the accused preparing wash for the purpose of distilling arrack. They then took the accused to the Excise Circle Inspector who charged them with having been in possession of 19 gallons of fermented wash fit for illicit distillation and asked them what they had to say. Each admitted the offence saying that they prepared the wash for distilling arrack for their private use at Deepavali. The Magistrate who tried these accused acquitted them on the ground that the evidence of P.Ws. 1 and 2 was not supported by that of such disinterested witnesses who could have been procured and also because he thought that although the accused had made a confession, yet it was not safe to rely on it, as it was retracted in Court.
2. The Crown appeals on the ground that there are no sufficient reasons for acquitting the accused; and the learned Public Prosecutor contends that, on the evidence, the accused in these appeals should have been convicted.
3. It is contended by the learned Advocate for the accused that the evidence of confessions is inadmissible and in support of this view he has referred me in particular to Ameen Sharif v. Emperor I.L.R. (1934) Cal. 607 in which a Full Bench of five judges, with one dissenting, held that an Excise Officer is a Police Officer within the meaning of Section 25 of the Evidence Act. They were of opinion that as a general principle of equity, it was difficult to distinguish between the position of an Excise Officer and a Police Officer and that an accused person was just as likely to be induced to make a confession on account of the official position of an Excise Officer as he would by that of a police officer. They further thought that the special provisions of the Bengal Excise Act make Excise Officers for the purposes of excise offences, Police Officers; and they pointed out that these officers had the same powers as Police Officers had with regard to cognisance and investigation of offences. The Full Bench of the Calcutta High Court followed a Full Bench of the Bombay High Court, whose decision naturally turned on the interpretation of the Bombay Excise Act, which, in this respect, is similar to the Calcutta Act. The Madras Act, however, does not give Excise Officers quite the same powers as the Bombay and Calcutta Excise Acts, and for that reason this Court has on three occasions held that for the purpose of Section 25 of the Evidence Act, an Excise Officer is not a Police Officer. It appears to me that as Section 25 refers only to a Police Officer, a Court should not extend it to other classes of officers merely on grounds of similarity of function especially in view of the fact that the Evidence Act was introduced at a time when the methods of the police were much more open to attack than they are now. I therefore respectfully agree with the learned Judges of this Court who have held that the restrictive provisions of Section 25 should not be applied to Excise Officers.
4. That a confession was made by the accused to the Excise Inspector appears not to have been denied by them in the first instance; and the confessions were recorded in writing and bear the thumb impressions of the accused. Apart from these confessions, we have the evidence of P.Ws. 1 and 2; and I can see no reason why they should implead innocent persons who were not found with the implements said to have been with the accused. The Excise Officers were lying in wait from the early hours of the morning looking for persons who were illicitly manufacturing wash for distillation; and it can hardly be expected that disinterested persons would be willing to leave their beds and sit before dawn with the Excise Officers in the forest on the chance of their being able to render some assistance to them. I do not think that public opinion has yet reached the stage where villagers are prepared to undergo a great deal of inconvenience and discomfort for the detection of minor crimes.
5. There seems to be no reason at all why the learned Magistrate should have rejected the evidence of P.Ws. 1 and 2 especially when it was reinforced by the confession of the accused to the Excise Officer. The appeals are therefore allowed. The accused are convicted under Section 55(g) of the Madras Abkari Act of being in possession of three pots of wash for the illicit distillation of arrack. They are sentenced to one month's rigorous imprisonment and a fine of Rs. 100 each or a further one month's rigorous imprisonment in default.