1. The only question which arises in this revision petition is whether a confessional statement recorded by a Prohibition Sub-Inspector is not admissible in evidence because it is a confession made to a police officer. The decision turns upon whether a Prohibition Sub-Inspector can be deemed to be a ' Police officer ' within the meaning of Section 25 of the Indian Evidence Act. The Stationary Sub-Magistrate, Pulivendla, has held that he is not and therefore the statement of the accused recorded by him is admissible.
2. Mr. Jagannadha Das for the petitioner took me through all the relevant provisions of the Madras Prohibition Act. In particular he stressed upon the following provisions. Section 15 declares that all offences under the Act shall be cognizable and the provisions of the Code of Criminal Procedure, 1898, with respect to cognizable offences shall apply to them. Section 38 provides how a person arrested under the provisions of Sections 28, 29, 32, or 33 has to be dealt with. Sub-section (3) of that section says that on the arrested person being brought in custody before a Prohibition or Police (Officer, such officer shall hold such enquiry as he may think necessary. He relied particularly on these two provisions and G. O. No. 475 Mis, 2056 Revenue dated 21st September, 1946, which declared every prohibition. station house to be a police station. This G.O. is apparently issued in accordance with the definition in Section 3, Sub-section (13) which says that 'police station ' includes any place which the Provincial Government may, by notification, declare to be a police station for the purposes of this Act.
3. Learned advocate for the petitioner contended that the term ' Police officer ' which has not been defined in the Evidence Act should not be understood in a restricted sense to comprise only officers regularly employed in the police department but it should include officers invested with powers to detect offences and to investigate into them. He relied upon the Full Bench decisions in Ameen Shariff v. King-Emperor I.L.R. Cal. 607 and Nanoo v. Emperor I.L.R.(1926) 51 Bom. 78. He however admitted that the decision in Radha Kishun Marwari v. Emperor I.L.R.(1932) Pat. 46 (F.B.) takes a different view. This decision was itself discussed in the Calcutta Full Bench decision, Ameen Shariff v. King-Emperor I.L.R. Cal. 607 .
4. The Madras High Court has, in a series of cases, taken the view that an Excise officer under the Madras Abkari Act is not a Police officer within the meaning of Section 25 of the Evidence Act. Sundaram Chetty, J., in Mahalakshmayya v. Emperor (1932) M.W.N. (Crl.) 69 Bardswell, J., in Duraiswami Nadar v. Emperor (1934) M.W.N. (Crl.) 67 Horwill, J., in Public Prosecutor v. Marimuthu Goundan : AIR1938Mad460 , and very recently Yahya Ali, J., in Mayilvahanan, In re : AIR1947Mad308 , have taken this view in spite of the fact that Excise officers are invested with several powers similar to and of the nature of police powers. I find it difficult to distinguish these cases from the present case and I find nothing in the Prohibition Act which warrants my so doing.
5. The Calcutta and the Bombay cases must be read with the respective provisions of the Acts with which they dealt. In Ameen Shariff v. King-Emperor I.L.R. Cal. 607 the relevant provision was Section 74, Sub-section 3 of the Bengal Excise Act, which declared the area to which an Excise officer empowered under Section 73(2) is appointed shall be deemed to be a police station and such officer shall be deemed to be the officer in charge of such station. The Bombay Full Bench decision I.L.R.(1926) 51 Bom. 78 must be read along with Section 41 of the Bombay Abkari Act which provides inter alia that every officer in the conduct of investigation of all offences punishable under the Act shall exercise powers conferred by the Code or Criminal Procedure on an officer in charge of the police station for the investigation of a cognizable offence. That an identical conclusion would be reached if there is a similar provision in any other enactment is evident from the decision of a Division Bench of this Court in Someshwar H. Shelat, In re : AIR1946Mad430 . It was there pointed out that a special officer of the Commercial Tax Department invested by the Provincial Government with the powers under Section 12(3) of the Hoarding and Profiteering Prevention Ordinance is a ' Police officer ' within the meaning of Section 162 of the Code of Criminal Procedure and Section 25 of the Indian Evidence Act because Sub-section 3 of Section 12 of that Ordinance enacted that in conducting the investigation the officer shall have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Code of Criminal Procedure, 1898, when investigating a cognizable offence within the limits of his station.
6. It is true that the G.O. referred to by Mr. Jagannadha Das declares a prohibition station house to be a police station within the meaning of the Prohibition Act, but it does not make the prohibition officer or an officer in charge of a prohibition station a 'police officer'. To my mind a very important fact which must be taken into account in coming to a decision on this question is that throughout the Act in more than one section 'police officer' is mentioned in contradistinction to a 'prohibition officer' (Vide Sections 32, 41, 42, 45, 46, 47, 48 and 49).
7. It is not permissible to decide the question on an anxiety to escape what is pointed out as an anomaly. It is impossible to avoid it and as an instance one can refer to the fact that a confession made before a Village Munsiff is admissible in evidence but a confession made before the District Superintendent of Police is not.
8. I therefore agree with the Magistrate that the statement of the accused made to the Police Sub-Inspector is not inadmissible in evidence under Section 25 of the Indian Evidence Act. The petition is therefore dismissed.