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In Re: Mayilvahanam and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1947Mad308; (1946)2MLJ480
AppellantIn Re: Mayilvahanam and ors.
Cases ReferredPublic Prosecutor v. Marimuthu Goundan
Excerpt:
- .....provisions of section 25 of the indian evidence act. under that section, no confession made to a police officer can be proved as against a person accused of any offence. it is the petitioners' contention that since the assistant inspector of customs is invested under the sea customs act with certain powers of search, arrest and seizure he should be deemed to be a police officer for the purpose of section 25. in support of this proposition he relies on two decisions of the calcutta and the bombay high courts and on a decision of a bench of this court in someshwar h. shelat in re : air1946mad430 . the calcutta decision was that of a full bench in ameen sharif v. emperor i.l.r. (1934) cal. 607 and the bombay case is manoo sheik ahmed v. emperor i.l.r. (1926) bom. 78. that is also a.....
Judgment:
ORDER

Yahya Ali, J.

1. The seven petitioners were convicted by the Additional First Class Magistrate of Negapatam under Rule 84(3) read with Rule 121 of the Defence of India Rules punishable under Rule 84(6) of the same rules. On appeal the Sessions Judge of East Tanjore at Negapatam confirmed the conviction but reduced the sentences. The case against the accused was that they transported rice by sea from British India to Ceylon which is prohibited under a notification issued under Rule 84(3) of the Defence of India Rules. The learned Sessions Judge has set out the facts with care in his exhaustive judgment. The conviction depends exclusively upon the statements made by each of the petitioners to the Assistant Inspector of Customs who proved them as P.W. 1. The main contention throughout on behalf of the accused has been that these statements are not admissible in evidence being repugnant to the provisions of Section 25 of the Indian Evidence Act. Under that section, no confession made to a police officer can be proved as against a person accused of any offence. It is the petitioners' contention that since the Assistant Inspector of Customs is invested under the Sea Customs Act with certain powers of search, arrest and seizure he should be deemed to be a police officer for the purpose of Section 25. In support of this proposition he relies on two decisions of the Calcutta and the Bombay High Courts and on a decision of a Bench of this Court in Someshwar H. Shelat In re : AIR1946Mad430 . The Calcutta decision was that of a Full Bench in Ameen Sharif v. Emperor I.L.R. (1934) Cal. 607 and the Bombay case is Manoo Sheik Ahmed v. Emperor I.L.R. (1926) Bom. 78. That is also a decision of a Full Bench. Both these cases related to excise officers and it was held therein that an excise officer is a police officer within the meaning of Section 25 of the Indian Evidence Act. In this Court, however, the contrary view has been uniformly taken upon the lar guage employed in the Madras Excise Act as contradistinguished from the language in the Bengal Excise Act and the Bombay Excise Act. The Bengal Excise Act makes the excise officers for the purpose of Section 25, police officers, and it is upon this provision contained in the Bengal Excise Act that the Calcutta Full Bench rested its conclusions. The Bombay Excise Act also is similar to the Bengal Excise Act. In the Madras Excise Act however there are no provisions which confer the same amount of powers on the excise officers in this Presidency as in the Bombay and Calcutta Excise Acts. It is for this reason that this Court has in a number of decisions held the view that upon the construction of the Madras Excise Act excise officers in this Province cannot be deemed to be police officers within the meaning of Section 25 of the Indian Evidence Act. The decisions are Mahalakshmayya v. Emperor (1932) M.W.N. Cri. 69 and Doraiswami Nadar v. Emperor (1934) M.W.N. Cri. 67 decided by Sundaram Chetti, J. and Bardswell, J., sitting separately. The last decision was by Horwill, J., in Public Prosecutor v. Marimuthu Goundan (1938) 1 M.L.T 238 . In that case the learned Judge on a scrutiny of the relevant provisions of the Madras Excise Act observed:

It appears to me that as Section 35 (Evidence Act) 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.

It will be noticed that all these cases are concerned with excise officers, but the decision of a Bench of this Court in In re. Someshwar H. Shelat : AIR1946Mad430 , on which Mr Raia-gopalachari relied oil behalf of the petitioners, was one in which the position of officers of the Commercial Tax Department fell to be considered vis-a-vis the provisions of Hoarding and Profiteering Prevention Ordinance. In that Ordinance Sub-section (3) of Section 12 is in these terms:

The Controller-General and such Inspectors and other officers as may be empowered by the Central or the Provincial Government in this behalf shall, within the respective areas for which they are appointed have power to investigate all offences punishable under this Ordinance and in conducting any such investigation shall, within the said areas, have all the powers, duties privileges and liabilities of an officer, in charge of a police station under the Code of Criminal Procedure, 1808 (Act V of 1898) when investigating a cognizable offence within the limits of his station.

Relying exclusively upon the phraseology employed in that sub-section the Bench held as under:

That he (the Commercial Tax Officer) is a police officer within the meaning of the section we have no doubt whatever. Section 12(3) of the Hoarding and Profiteering Prevention Ordinance expressly gives him all the powers, duties and privileges 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. Therefore he has the full status of a police officer and his Powers and duties must be limited to those of a police officer under the Code of Criminal Procedure which means that he has no right m an investigation under the Ordinance to require a person to sign a statement and where such a statement is reduced to writing it can only be used in accordance with the provisions of Section 162 of the Code of Criminal Procedure or Section 27 of the Evidence Act.

It is thus clear that the concerned officer was deemed to be a police officer for the purpose of Section 162 of the Code of Criminal Procedure, because in the Ordinance itself it was specifically mentioned that in conducting investigations the particular officers shall have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Code of Criminal Procedure. The question whether such statements are confessions made to a police officer within the meaning of Section 25 of the Evidence Act did not arise there for consideration The defence counsel draws attention to Sections 169, 171, 173 and 178 of the Sea Customs Act under which certain powers of search, stopping vessels and searching for goods arresting persons reasonably suspected, arresting persons escaping and seizing things liable to confiscation, have been conferred on the Customs officers but it will be seen that the language analogous to that employed in Section 12(3) of the Hoarding and Profiteering Prevention Ordinance is not found in the Sea Customs Act nor even language similar to the language employed in the Bengal Excise Act or in the Bombay Excise Act. In fact this Court has taken the view as would appear from Horwill J.'s decision cited above that the provisions of Section 25 should not be extended to other classes of officers merely on the ground of similarity of function I agree with the learned Sessions Judge that the statements given by the petitioners in Ex. C series before the Assistant Inspector of Customs, P. W 1 are not hit at by Section 25 of the Evidence Act.

2. It is conceded that if these statements are admissible in evidence the guilt of the petitioners is established beyond question. The conviction of all the petitioners must therefore be confirmed. The only question that remains is one of sentence. It is pointed out that all the petitioners were boatmen in the employ of a person in Ceylon. They have been in remand for thirty-four days and they had obviously been used by others as mere instruments. The sentences of rigorous imprisonment awarded to accused 1, 3, 4 and 6 are reduced to the periods already undergone. The sentences of fine against all of them will stand.


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