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Public Prosecutor Vs. C. Paramasivam and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. No. 862 of 1952 and Criminal Revn. Petn. No. 735 of 1952
Judge
Reported inAIR1953Mad917; (1953)2MLJ189
ActsEvidence Act, 1872 - Sections 25; Code of Criminal Procedure (CrPC) , 1898 - Sections 162; Opium Act, 1878 - Sections 20A; Madras Opium (Amendment) Act, 1951
AppellantPublic Prosecutor
RespondentC. Paramasivam and ors.
Appellant AdvocateParty in person
Respondent AdvocateS. Govind Swaminathan and ;S. Rajaraman, Advs.
DispositionRevision dismissed
Cases ReferredKeats Lewis Merthyr v. Consolidated Colliers
Excerpt:
indian evidence act (i of 1872), section 25--criminal procedure code (act v of 1898), section 162--opium act (i of 1878), as amended by madras act (xxxii of 1951) section 20-a-- excise officer in effect police officer--confession made to him not admissible;an excise officer invested with the powers of an officer in charge of a police station for investigation of offences under section 20-a of the opium act, which section was introduced by madras act xxxii of 1951 as an amendment to section 20 of the opium act (central act i of 1878), is a 'police officer' coming within the purview of section 25 of the evidence act and section 162 of the code of criminal procedure, and any confession made to him in the course of investigation is inadmissible under section 25 of the evidence act and the.....1. on 1-1-1952 a consignment of illicit opium was despatched by train from new delhi to madras and from madras on to chidambaram. acting on some information that he had received, mr. khadir hussain, an assistant inspector of excise who was also a deputy prohibition officer, shadowed the article to chidambaram. on 5-1-1952 one paramasivam went to the railway parcel office at chidambaram, tendered the way bill to the general parcel clerk and after signing in the delivery book took delivery of the parcel. at that stage mr. khadir hussain detained him and questioned him. he also seized the parcel which, on examination, was found to contain 33 seers of opium.2. on these allegations paramasivam and three others were prosecuted before the sub-magistrate, chidambaram. at the trial mr. khadir.....
Judgment:
1. On 1-1-1952 a consignment of illicit opium was despatched by train from New Delhi to Madras and from Madras on to Chidambaram. Acting on some information that he had received, Mr. Khadir Hussain, an Assistant Inspector of Excise who was also a Deputy Prohibition Officer, shadowed the article to Chidambaram. On 5-1-1952 one Paramasivam went to the railway parcel office at Chidambaram, tendered the way bill to the General Parcel Clerk and after signing in the delivery book took delivery of the parcel. At that stage Mr. Khadir Hussain detained him and questioned him. He also seized the parcel which, on examination, was found to contain 33 seers of opium.

2. On these allegations Paramasivam and three others were prosecuted before the Sub-Magistrate, Chidambaram. At the trial Mr. Khadir Hussain gave evidence for the prosecution. When he was in the box the Assistant Public. Prosecutor asked him what Paramasivam had told him when questioned by the witness after his arrest. To that question the defence counsel took exception on the ground that Section 162, Cr. P. C. prohibited such statements from being given in evidence for the prosecution. ' The learned Magistrate upheld the objection. On that, the prosecution came upon in revision to this Court. Somasundaram J. who first heard the matter considered that an authoritative decision was necessary on the point that had been raised and so referred the following question to a Bench :

"The question that is raised in this petition is whether in view of Madras Act 32 of 1951 which was introduced as an amendment to Section 20 of the Opium Act (Central Act 1 of 1878), a confession made to a Prohibition Officer is admissible or not."

Before attempting to answer this question it is as well to examine Some of the provisions of the Opium Act (Central Act 1 of 1878). Section 4 prohibits the possession, transport, import, export or sale of opium except under certain circumstances referred to in that Act. Section 9 provides penalties for the contravention of Section 4 and some other sections. Section 14, as it stood before it was amended in Madras, conferred on certain categories of officers belonging to the departments of Excise, Police, Customs, Salt, Opium and Revenue, power of entry, search, seizure and arrest when they had reason to believe that opium liable to confiscation under the Act was kept or concealed in any building, vessel or enclosed space. These powers, however, could be exercised only between sunrise and sunset. Section 15 empowers every officer of the departments referred to in Section 14 to seize opium in transit or in any open place. It also confers powers of detention, search and arrest. Section 20 requires that every person arrested and every thing seized under Section 14 or Section 15 shall be forwarded without delay to the officer in charge of the nearest Police Station. Section 21 requires an officer making an arrest or seizure under the Act to send a report of the matter to his immediate official superior within 48 hours thereafter,

3. It will be noticed that under the Act, as it stood before it was amended, though the officers of the Excise, Customs and other departments were given powers to enter, search, seize and arrest, they had no power to investigate. In 1951 the Madras Legislature amended the Central Opium _Act in certain respects. Officers of the Prohibition Department were included in the categories of others referred to in Section 14 who could enter, search, seize and arrest on reasonable suspicion of a contravention of the provisions of the Act. A new section, Section 20A was added which runs as follows :

"The State Government may, by notification in the Official Gazette, invest any officer of the Prohibition Department, or every officer belonging to any special class in that department, with the powers of an officer in charge of a police station for the investigation of offences under this Act."

4. The result of the amendment is to confer on officers of the Prohibition department in relation to offences under the Opium Act, practically all the powers of a Station House Officer. But, at the same time it will be noticed that the Amending Act does not call these officers Police Officers.

5. There is no exhaustive definition of the expression "Police Officer" in any of our statutes. Act 5 of 1861 (Indian Police Act) merely says,

"the word 'Police' shall include all persons who shall be enrolled under this Act."

'Ex facie', this definition is not exhaustive, and it is of no help in answering the question that is now before us. In the absence of a statutory definition, and, apart from all authority, one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such, or, on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If- he is not so called then the next step is to ask: what does the law require him to do? What are the duties imposed on him? and what are the powers conferred on him? If these are substantially those of a police officer there need be no qualms in regarding him as one. If his powers and duties are con-fined to a particular extent of territory or to a particular subject-matter he will be a police officer only in respect of that territory or that subject-matter. The material thing to consider would be not the name given to him, nor the colour of the uniform he is required to wear, tout his functions, powers and duties. A police officer does not cease to be such merely because he is put into a white khadder uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container.

6. Support for the view that regard must be had not to the name but to the powers, duties and functions of the officer, is to be found in the decision reported in -- 'Someshwar H. Shelat, in re', AIR 1946 Mad 430 (A). In that case the question for decision was whether a Special Officer of the Commercial Tax Department, who had been empowered by 'the Provincial Government of Madras in exercise of the powers conferred on them by Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance was a police officer within the meaning and for the purpose of Section 162, Cr. P. C. and Section 25 of the Evid'ence Act. The sub-section of the ordinance ran as follows :

"The Controller General and such Inspectors or other officers as may be empowered by the Central or 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 Cr. P. C., 1898, when investigating a cognizable offence within the limits of his station."

7. A Bench of this Court had no hesitation in holding that an officer empowered under this section was a police officer.

8. Mn V.T. Rangaswami Aiyangar, the learned Public Prosecutor, drew our attention to six decisions of this Court which have a hearing on the Question before us. In -- 'Mahalakshmayya v. Emperor', 1932 Mad WN Cr 69 (B), Sundaram Chetty J. ruled that a statement by an accused person to an Excise Inspector in answer to questions put by him is not a confession made to a police officer within the meaning of Section 25 of the Evidence Act. In -- 'Doraiswami Nadar v. Emperor'.1934 Mad WN Cr 67 (C), Bardswell J. followed this case and ruled to the same effect.

9. In -- 'Public Prosecutor v. Marimuthu Goundan', AIR 1938 Mad 460 (D), Horwill J. followed the two earlier decisions just now referred to. Before that learned Judge the decisions in -- 'Nanoo v. Emperor', AIR 1927 Bom 4 (FB) (E) and -- 'Ameen Sharif v. Emperor', AIR 1934 Cal 580 (FB) (F) were cited. But lie distinguished them saying,

"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."

No doubt he went on to add,

"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."

10. In -- 'Mayilvahanam, In re', AIR 1947 Mad 308 (G), Yahya AH J. had to consider the position of an Assistant Inspector of Customs and he took the same view that had been taken in the earlier decisions of this Court. See also -- 'Venkata Reddi, In re', AIR 1948 Mad 116 (H) and -- 'Vadivel Gounder, In re', (I).

11. It seems to me that none of these decisions are in point because they belong to a time before the Central Opium Act was amended by the Madras Legislature in 1951.

12. In -- 'AIR 1927 Bom 4 (FB)' (E), the following question was formulated for the decision of the Court:

"Is an Abkari Officer, who, in the conduct of investigation of an offence punishable under the Bombay Abkari Act, exercises the powers conferred by the Criminal Procedure Code, 1898, upon an officer in charge of a police station for the investigation of a cognizable offence, a police officer within the meaning of Section 25 of the Evidence Act?"

All the learned Judges, there were five of them, were unanimously of the opinion that the question should be answered in the affirmative. A different view was taken by a Full Bench of three Judges of the Patna High Court in --'Radhakishun v. Emperor', AIR 1932 Pat 293 (SB) (J). Mr. V. T. Rangaswami Aiyangar, the learned Public Prosecutor, placed special emphasis on this decision because the question that was decided in that case was whether a confession made before an Excise Inspector who, under the Dangerous Drugs Act (Central Act 2 of 1930) not only had the power to arrest and search but had also been invested by the local Government with the powers of an officer in charge of a police station for the investigation of an offence under that Act, is admissible evidence. Section 30 of the Central Act 2 of 1930 runs as follows:

"The Provincial Government may invest any officer of the Excise Department or any class of such officers, with the powers of an officer in charge of a police station for the investigation of offences under this Act,"

Mr. Rajaram pointed out that Section 4 of the Madras Act 32 of 1951 which introduced Section 20-A into Central Act 1 of 1878 is practically a reproduction of Section 30 of the Dangerous Drugs Act. This circumstance no doubt makes the Patna case more apposite but it does not invert the reasoning in that case with any greater force." The Patna case was exhaustively considered by a Full Bench of five Judges in Calcutta. See -- 'AIR 1934 Cal 580 (FB)' (F) in which by a majority of 4 to 1 the learned Judges preferred the view of the Bombay High Court to that of the Patna High Court. The report of that decision occupies 56 pages of the book and every conceivable aspect of the matter has been exhaustively discussed. It is held to discover much which can be profitably added to that discussion.

13. On the view taken by the learned Judges In the Patna case and by Costello J. in the Calcutta case, I would make these observations. It appears to me that they looked too narrowly to the appearance of things and declined to look at the substance behind the appearance. They focussed attention on the label and would not look farther. I also consider that the learned Judges were being much too strict when they refused to consider why these rules of exclusion were embodied in Section 162, Cr. E, C. and Section 25 of the Evidence Act. It is true that the grounds of exclusion are not indicated either in the Evidence Act or the Criminal Procedure Code. But that does not seem a sufficient reason for refusing to consider that aspect of the matter. It has some times been said that he does not know the law who does not know the reason for the law. Surely, if you refuse to look at the reason for a particular rule of law how can any valid conclusion be reached?

14. I prefer the view taken by the Full Bench in Bombay; and in Calcutta, and would say that in relation to an offence under the Opium Act a Prohibition Officer on whom the State Government has conferred the powers of an officer in charge of a police station, is a police officer for purposes of Section 162, Cr. P. C. and Section 25 of the Evidence Act.

15. It follows that the confession in this case is inadmissible in evidence. In the result the revision petition is dismissed.

16. CHANDRA REDDI J.: This matter has now come before us having been referred by our learned brother Somasundaram J. to resolve the judicial conflict on the interpretation of Section 20 of the Opium Act. The question to be answered by us is:

"Is the Excise Officer who exercises the powers conferred by the Criminal Procedure Code in charge of police station in the conduct of an investigation of an offence against excise laws a police officer within the meaning of Section 25 of the Evidence Act and Section 162, Cr. P. C."

17. The facts relevant for the purpose of this enquiry are the following: It is alleged for the prosecution that on 1-1-1952 a parcel was booked from New Delhi to Madras by train from where the same was sent on the morning of 5-1-1952 to Chidambaram. At this place, the first accused took delivery of the parcel at the instance of accused 2 to 4. When the first accused was taking it out of the parcel office, P. W. 1, an Assistant Inspector of Excise caught hold of him and on an examination it was found to contain 33 seers of opium. After investigation, a charge sheet was laid against the first accused for possession of opium punishable under Section 9 (a) of the Opium Act and against accused 2 to 4 under Section 9 (b) of the said Act for transporting opium. In the course of examination of P. W. 1 he wanted to prove a statement made by the first accused to him which was reduced to writing. An objection was taken on behalf of the accused to the admissibility of the statement on the ground that the officer to whom the statement was made was a police officer within the meaning of Section 162, Cr. P. C. and Section 25 of the Evidence Act The objection was upheld by the Stationary Sub-Magistrate of Chidambaram, and the statement recorded by P. W, 1 from the first accused was ruled out as being inadmissible. It Is against this that the present revision petition has been filed by the State Government.

18. In support of this petition, it is urged by the learned Public Prosecutor that an excise officer is not a police officer within the meaning of Section 25 of the Evidence Act and the prohibition enacted therein cannot be extended to excise-officers.

19. The question whether an excise officer was a police officer and the confession made to him in the course of investigation was to-be excluded by virtue of the provisions of Section 25 of the Evidence Act came up for consideration in a number of cases in this Court. In -- '1932 Mad WN Cr 69' (B) Sundaram Chetty J. held that an admission made by an accused person to an excise inspector could not be ruled out as-it could not be regarded as a confession made to a police officer coming under Section 25 of the Evidence Act. To the same effect is the ruling, of Bardswell J. in -- '1934 Mad WN Cr 67' (C). In -- 'AIR 1938 Mad 460' (D) Horwill J. took the same view although there was no reference to the two earlier case's. Referring to a Calcutta-case which will be alluded to presently and which expressed the opinion that an excise officer was a police officer within the ambit of Section 25 of the Evidence Act, the learned Judge distinguished that case on the ground that it was based on Special provisions of the Bengal Excise Act which made excise officers for purposes of excise offences police officers.

20. The scope of a statement made to an assistant inspector of customs by an accused person in the course of an investigation fell to-be considered by Yahya Ali 3 in -- 'AIR 194T Mad 308' (G). The learned Judge on a review of the earlier decisions of this Court held that the statement did not come within the prohibition of Section 25 of the Evidence Act. In a more recent case Rajamannar J. (as he then was) in -- 'AIR 1948 Mad 116' (H) referred to the earlier decisions of this Court and expressed his concurrence with them.

21. It must be noted that all these decisions were given on the interpretation of the Opium Act as it stood then. Section 20 of the Opium Act provided:

"Every person arrested and thing seized, under Section 14 or Section 15, shall be forwarded" without delay to the officer in charge of the nearest police station; and every person arrested and thing seized under Section 19 shall be-forwarded without delay to the officer by whom the warrant was issued....."

Section 14 of the Act as amended in 1947, runs thus:

"Any officer of any of the departments of Excise, Prohibition, Police, Customs, Salt,. Opium or Revenue superior in rank to a peon, guard, or constable, who may in right of his office be authorised by the State Government in this behalf, and who has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that opium liable to confiscation under this Act is.........,..kept or conceiled in any building, vessel or enclosed places may, between sunrise and sunset:

(a) enter into any such building, vessel or place;

(b) in case of resistance, break open any door and remove any other obstacle to such entry;

(c) seize Such opium........... and any other thing which he has reason to believe to be liable to confiscation under Section 11 or any other law for the time being in force relating to opium, and

(d) detain and search, and, it he thinks proper, arrest any person whom he has reason to believe to be guilty of any offence relating to such opium under this or any other law for the time being in force."

22. Section 15 confers on an officer of the said departments powers to seize in any open place or in transit any opium and detain, search and arrest any person who is believed to be guilty of an offence against this or any other such law.

23. It is thus seen that any of the officers mentioned in Section 14 of the Opium Act has only power to seize the articles involved in a crime whether they are in an enclosed place or an open place and detain, search or arrest any person Suspected of having committed any offence against the statute. He has no power to investigate into these crimes and he can only forward the person and the things seized without any delay to the officer in charge of the nearest police station.

24. In 1951 the Legislature of the State of Madras amended Section 20 of the Opium Act by inserting Section 20-A by Madras Act 32 of 1951 by which the officers mentioned in the sections already referred to were invested with certain powers of a police officer for investigation. Section 20-A runs thus:

"20-A--The State Government may, by notification in the Official Gazette, invest any officer of the Prohibition department, or every officer belonging to any specified class in that Department, with the powers of an officer in charge of a police station for the investigation of offences under this Act."

25. Now the question for consideration is whether this amendment has, in any way, . altered the position in regard to the state of authority bearing on the subject. That it does bring about a change in respect of powers to be exercised by those officers in the detection of crimes is beyond question. Subsequent to this amendment, the necessity to forward the articles seized and the person apprehended to the nearest police station is dispensed with and the officer concerned himself is authorised to investigate into the matter. But the controversy is whether this has the effect of bringing such an officer within the purview of Section 25 of the Evidence Act and Section 162, Cr. P. C. Section 25 of the Evidence Act says:

"No confession made to a police officer shall be proved as against a person accused of any offence."

While Section 162 (1), Cr. P. C. enacts:

"162 (I): No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part o such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;"

26. The word 'police officer' is not defined anywhere in the Evidence Act while we have only the definition of the "officer in charge of the police station" in the Criminal Procedure Code. From it we do not get any help. Nor is the definition of a "police officer" in the Identification of Prisoners Act, that is, Act 33 of 1920 of any assistance to us in the determination of, the question before us.

27. A similar question arose on the provisions of the Bombay Abkari Act before a Full Bench of the Bombay High Court in -- 'AIR 1927 Bom 4 (FB)' (E). The section of the Act which the learned Judges of the Full Bench had to consider was Section 41 which provided that

"every Abkari officer not below such rank as Government may prescribe shall within the area for which he is appointed have power to investigate all offences punishable under this Act."

Sub-section (2) provided that

"such officer shall in the conduct of such investigaton exercise the powers conferred by the Criminal Procedure Code, 1898, upon an officer in charge of a police station for the investigation of a cognizable offence."

28. It is seen that this is analogous to the provisions of Section 20-A of the Opium Act as, amended by Madras Act 32 of 1951. In that case, the learned Judges decided that an Abkari Officer invested with powers of an officer in charge of the police station under Section 41 of the Abkari Act was a police officer coming under the rule embodied in Section 25 of the Evidence Act-The ground for the decision was that as the Legislature had deliberately conferred upon an Abkari Officer substantially all the powers of a police officer, he had in effect become a police officer coming within the purview of Section 25 of the Evidence Act. For this reason it was held there that any confession made to such an officer under the Abkari Act or the Criminal Procedure Code was inadmissible in evidence. The observations of Marten C. J. at page 8 are apposite in this context:

"In this connection, I should like to point out that it was open to the Legislature or to Government to do one of two or three things. It could detatch ordinary police officers to investigate excise offences. Or on the other hand, it could appoint other officers of Government or new officers to perform the duties of investigation and arrest and so on, which had previously been performed by ordinary police officers. Whichever course was adopted, any alleged offence would, in effect, be investigated by persons in the position of policemen, In this very case it would appear that the effect of the above sections of the Abkari Act is that certain duties, which previously fell upon ordinary Police Officers, are in fact now being carried out by the Abkari officers, who have been given these particular police-powers."

29. In support of his conclusion the learned Chief Justice relied on the dictum of Sir Richard Garth in -- 'Queen v. Hurribole Chander Ghose', 1 Cal 207 (K) that the word "police officer" was not used in Section 25 o the Evidence Act, in a technical sense but was used in a comprehensive and popular sense. Referring to earlier rulings of that Court and of the Calcutta High Court the- learned Chief Justice distinguished them on the ground that they were based on the language of Section 20 of the Opium Act and the provisions of the Bengal Abkari Act which were widely different from those of Section 41 of the Bombay Abkari Act.

30. Shah J. one of the learned Judges of the Full Bench in. the course of his judgment stated that an officer contemplated by Section 41, Sub-section (1) was virtually in the same position as a police officer in the matter of investigation of the offences under that Act. All that was meant by the expression "police officer" in Section 25 of the Evidence Act was "an officer who exercises the powers of the police conferred on him by law" by whatever name he is called. The other three learned Judges also expressed their concurrence with the opinion mentioned above. The principle enunciated in that ruling is applicable to the case before us as the provisions of Section 20-A of the Opium Act bear a close resemblance to those of Section 41 of the Bombay Abkari Act, and I express my respectful accord with it.

31. The Patna High Court reached an opposite conclusion in -- 'AIR 1932 Pat 293 (SB)' (J). The point which the Full Bench of the Patna High Court considered was whether an Inspector of Excise acting in the course of; his duties was a police officer within the meaning of Section 25 of the Evidence Act and whether a confession made to him was admissible. The learned Judge's answered the point in the negative. In their view an Excise Officer could not be regarded as a police officer merely because he was exercising certain functions in the conduct of investigation of an excise offence. The learned Chief Justice (Courtney'-Terrell C. J.) observes that he found himself "in complete disagreement with the arguments which found favour" in the Bombay case. According to him, there was a fallacy in the judgment of the Bombay Full Bench which was attributable to two causes. One was the misconception of the ruling in -- '1 Cal 207' (K) and the other the adoption of an erroneous canon of construction of statutes, that is, the consideration of what is supposed to be the object of Section 25 of the Evidence Act, by the learned Judges of the Bombay High Court. In this view of the matter the learned Chief Justice thought that the opinion expressed in -- 'AIR 1927 Bom 4 (FB)' (E) was an erroneous one.

32. Fazl All J. who agreed with Courtney-Terreil C. J. observed that as laid down in --'1 Cal 207' (K), it was well settled that the term "police officer" should not be construed in a technical sense but in its more popular and comprehensive sense, while the other learned Judge, Agarwala J. was of the view that the word "police officer" connotes nothing more or less than a member of the police force and he did not think that the observation of Garth C. J. was intended to go beyond that. It is clear that this dictum of Agarwala J. is plainly opposed to that of Garth J. in -- '1 Cal 207' (K) in spite of the learned Judge's attempt to reconcile the two dicta. It does not appear to me that the Judges of the Bombay High Court in any way misunderstood the scope of the dictum in -- '1 Cal 207' (K). Reliance was placed by Marten C. J. in the Bombay case on -- '1 Cal 207' (K) only for the purpose of showing that the term "police officer", was not used in a restricted sense but has a wider import, Nor can I bring myself to agree with Courtney-Terrell C. J. that the Judges of the Bombay High Court adopted an erroneous canon of construction. No doubt a statute has to be construed with reference to the language employed therein and it is not permissible to speculate as to the object or the intention of the Legislature. But when the meaning of an expression is not plain and it is not possible to ascertain the meaning of a term or to gather its import from the statute itself, I think it is permissible to resort to extrinsic guides. In this context the remarks of Lord Atkin in -- 'Keats Lewis Merthyr v. Consolidated Colliers', (1911) AC 641 (L) are apposite:

"In the construction of a statement it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils which as appears from its provisions it was designed to remedy."

33. It may be recalled that the term "police officer" is not defined in the Evidence Act or in the Criminal Procedure Code. So in trying to understand the signification of that expression it is perfectly legitimate to have regard to the setting and the context in which Section 25 of the Evidence Act was enacted. With great respect to the Judges who decided -- 'AIR 1932 Pat 293' (J) I am unable to appreciate their criticism of -- 'AIR 1927 Bom 4 (FB)' (E). It looks to me that the legislature must have used that expression in a larger sense than that attributed to it by the Patna High Court.

34. Subsequent to the ruling of the Patna High Court an identical point arose for consideration before a Full Bench of five Judges of the Calcutta High Court in -- 'AIR 1934 Pat 580 (FB)' (F). There the conviction of the accused persons under Section 9 of the Opium Act was mainly based on a confession said to have been made by them to an Excise Inspector. The admissibility of this confession was raised in appeals preferred by the accused against their convictions. In view of the conflict of judicial opinion, the matter was placed before a Full Bench of five Judges. The answer given by the Full Bench (by a majority) was that the Legislature in using the term "police officer" in Section 25 of the Evidence Act did not intend to exclude from its meaning Excise officers exercising powers of detection and investigation of crimes committed against excise laws. There is an exhaustive discussion of the topic and the opposing views expressed in -- 'AIR 1927 Bom 4 (FB) (E)' and -- 'AIR 1932 Pat 293 (J)' are also considered. Four of the learned Judges approved of the rule of law stated in -- 'AIR 1927 Bom 4 (FB)' (E). The reasoning in --'AIR 1932 Pat 293 (SB) (J)' was not acceptable to them.

35. The leading judgment of Mukerji J. is a very instructive one. The learned Judge reviewed the case law bearing on the subject and also considered the reason of the rule enacted in Section 25 of the Evidence Act. Discussing the connotation of the term "police officer" in the-light of the relevant provisions of Police Act 5 of 1861, he Stated that police officers were officers whose duty was to prevent and detect crimes. The learned Judge also referred to one of the meanings given to that expression in the Oxford Dictionary viz., "The civil force, to which is entrusted the duty of maintaining public order, enforcing regulation for the prevention and punishment of breaches of the law, and detecting crime; construed as plural, the members of a police force; the constabulary of a locality as throwing light on the import of that term."

36. The position was summed up by the learned Judge at page 586 thus:

"The powers and duties of excise officers investigating offences have been gradually brought more and more on a line with those of the officers of the police force, and they have been made police officers for the purposes of such investigation in all possible manner,"

37. Mallick, Jack and S.K. Ghose JJ. agreed with the opinion expressed by Mukherji J. while Costello J. struck a note of dissent.

38. Ghose J. in the course of his judgment remarked that in an excise case, an excise officer is the real police officer and the only police officer in the case. He also pointed out that in the earlier Calcutta cases in which the view was taken that an excise officer was not a police officer for purposes of Section 25 of the Evidence Act, the question of an excise officer exercising the powers of a police officer was not discussed and that except in one of them the attention of the learned Judges was not attracted to the material provisions of the Excise Act.

39. In my judgment, the view taken in --'AIR 1934 Cal 580 (FB)' (F) is a correct and a sound one and I am wholly in agreement with the reasoning adopted in that case.

40. I will now refer to a ruling of a Bench of our High Court in -- 'AIR 1946 Mad 430' (A). The statutory provision which formed the subject-matter of inquiry before the Bench consisting of Sir Lionel Leach C. J. and Lakshmana Rao J. was Sub-section 3 of Section 12 of the Hoarding and Profiteering Prevention Ordinance 53 of 1944. Sub-section (3) of Section 12 reads as follows:

"The Controller General and such inspectors or other officers as may be empowered by the Central or 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 Criminal Procedure Code, 1898, when investigating a cognizable offence within the limits of his station."

41. By virtue of this provision the Provincial Government gave certain officers of the Commercial Tax Department power to investigate offences within their respective jurisdictions. With reference to these provisions the following question was submitted by the Chief Presidency Magistrate under Section 432, Cr. P. C. for the opinion of the Court:

"Whether a Special _officer of the Commercial Tax Department who has been empowered in this behalf by the Provincial Government of Madras in exercise of the powers conferred on them by Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance introduced by the amending Ordinance No. 43 of 1944, is a police officer within the meaning and for the purpose of Section 162, Cr. P. C. and Section 25 of the Evidence Act."

On an interpretation of the relevant provisions the learned Judges gave the answer in the affirmative. In the course of the order it was remarked thus:

"If an investigating officer is a police officer within and for the purpose of Section 162, Cr. P. C. this practice is obviously illegal. That he 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 Criminal Procedure Code, 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 Criminal Procedure Code, which means that he has no right in 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, Cr. P. C. or Section 27 of the Evidence Act."

42. The ruling in this case is applicable to the present case with equal force, as Section 20-A of the Opium Act are in 'pari materia' with the provisions of Sub-section (3) of Section 12 of the Hoarding and Profiteering Prevention Ordinance. I respectfully adopt the reasoning in this case. This decision was distinguished by Yahya Ali J. in -- AIR 1947 Mad 308' (G) already referred to on the ground that it was based exclusively on the phraseology employed in Sub-section (3) of Section 12 of the said Ordinance which specifically mentioned that the officers concerned should have all the powers, duties, privileges and liabilities of an officer-in-charge of a police station.

43. It is clear from these observations that Yahya Ali J. rested his conclusion in the case last mentioned on the absence of provision investing the excise officers in the detection of excise offences with the powers of a police officer in charge of the police station. As already pointed out that was a case prior to Madras Act 32 of 1951 which amended Section 20 of the Opium Act.

44. Rajamannar J. (as he then was) in --'AIR 1948 Mad 116' (H) to which reference had been already made, in distinguishing Calcutta and Bombay Full Bench decisions in -- 'AIR 1934 Cal 580 (FB)' (F) and -- 'AIR 1927 Bom 4 (FB)' (E) stated that an identical conclusion could be reached if there was a similar provision in any other enactment. This statement makes it abundantly clear that the learned Judge would have reached the conclusion that an excise officer was a police officer for purposes of Section 25 of the Evidence Act and Section 162, Cr. P. C. if provisions similar to Section 20-A of the Opium Act were in force then.

45. In the light of the above rulings and on a careful consideration of the relevant statutory provisions, I have reached the conclusion that the term "police officer" is used in Section 25 of the Evidence Act with reference to the functions exercised by the officer and not as an officer of the police department. It only means an officer exercising certain powers and is not confined to an officer belonging to the police department. In my opinion, it is the exercise of functions like the detection of crimes which involves the holding of investigation that marked out these officers for special treatment in regard to the confessions made to them in the course of investigation.

46. I may add, In recent times, the need to pass laws intended to regulate social and economic life of the people and to add to the revenues of the country as well, has indeed become very great This had led to the Legislatures investing the officers appointed for the purpose of giving effect to the provisions of these enactments, to check the evasion thereof and to prevent and detect crimes created under various enactments and to bring the offenders to justice, with powers of investigation. The insertion of Section 20-A of the Opium Act is one of such instances. If these officers are invested with the same powers and are in the same position as the officers of the police department in relation to the detection of crimes by holding investigations, there does not seem to be any rational basis, for distinction and for not extending the rule in Section 25 of the Evidence Act and Section 162, Cr. P. C. to them, especially when the functions exercised by both categories are essentially the same. In my opinion, it was not so much against an officer of a particular department that the prohibition under Section 25 of the Evidence Act is enacted and the restrictions contained in Section 162, Cr. P. C. are placed as the desire to prevent the use of the statements made to officers engaged in the investigation of crimes to the prejudice of the accused persons.

47. It is also to be noted that it is Ch. XIV, Cr. P. C. that deals with the investigations, and when the power of an officer in charge of the police station for the purpose of investigation is conferred upon an officer under Section 20-A of the Opium Act, all the sections of that Chapter should be held applicable to such a case. Section 162, Cr. P. C. being one of the sections of that Chapter is equally applicable to a statement made to a prohibition or excise officer in the conduct of investigation.

48. In these circumstances, the conclusion I have reached is that an excise officer invested with the powers of an officer in charge of a police station for investigation of offences under Section 20-A of the Opium Act is a "police officer" coming within the purview of Section 25 of the Evidence Act and Section 162, Cr. P. C. and any confession made to him in the course of investigation is inadmissible under Section 25 of the Evidence Act and the statements made to such an officer under Section 162, Cr. P. C. can be used only in the manner enacted therein.

49. In the result the revision petition is dismissed.


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