1. The appellant Jogendra Kumar Gorai has been convicted under Section 46(a), Bengal Excise Act, and sentenced to rigorous imprisonment for one month. The facts of the case are that he was found at 10 o'clock at night by Babu Mon Mohan Banerji, an Excise Sub-Inspector in a room at No. 3 Ratan Babu Bara Bagan Busti along with Panchanan who has already been convicted of an offence of distilling illicit liquor. Distillation was actually taking place in the room and when the Sub-Inspector appeared, both of them tried to escape but they were seized. In the room were found a full set of apparatus for manufacturing liquor from methylated spirit, 3 gallons of illicit liquor and other articles. The accused's defence is that he was there by mere accident. Panchanan was related to him. He had gone to visit a neighbour of Panchanan and then to see Panchanan when the Sub-Inspector came in. The Courts below have found him guilty on the circumstantial evidence. Panchanan admitted his guilt and he was convicted. The Courts held that the circumstances showed that the accused must also have been concerned in the manufacture of illicit liquor. These circumstances are, first of all, that he tried to escape; secondly, that he made no protest when he was caught and the defence, which he has now raised, was only made when the Sub-Inspector recorded the statement 5 days after his arrest; and thirdly, that he attempted to deny all connexion with Panchanan in a statement made at the time to the Sub-Inspector. This statement was wrongly admitted in evidence if the Excise Sub-Inspector is to be regarded as a Sub-Inspector of Police under the provisions of Section 162, Criminal P.C. That is a matter which I will deal with subsequently.
2. It appears to me, taking all the circumstances into account, that they are in themselves a matter of grave suspicion against the accused. The room, in which this distillation I had taken place was the room of Panchanan which he had hired and there is no evidence that the accused in this case was in possession of these articles for distillation. All that has been really proved is that he was aware that distillation had taken place and that he was with Panchanan at, the time. It was not proved that he was assisting in distillation or that he was in possession of any of the articles. So the evidence against him appears to amount to no more than grave suspicion. The trial appears also to be invalidated, owing to the fact that inadmissible evidence has been admitted inasmuch as the statement made to the Sub-Inspector of Police under Section 162 is inadmissible. The statements which were made by Jogendra to the Sub-Inspector of Excise at the time of his investigation were wrongly admitted. Under the provisions of Section 74, Excise Act, any of the powers conferred upon a police officer making an investigation, or upon an officer in charge of a police station, by Sections 160 to 171, Criminal P.C. can be exercised by an Excise Officer investigating an offence which he is empowered to investigate under Section 73, Excise Act.
3. In this case, the Excise Officer was investigating an offence and therefore ha had the powers of a Police Officer under Sections 160 to 171 and apparently therefore the statement made to him by any person in the course of an investigation would not be admissible. The objection to this view is raised on the ground that Section 162 only applies to statements made to a Police Officer in the course of an investigation under Ch. 14, Criminal P.C., but there can be no question that Section 74 refers specifically to this section and there can be little doubt that it was intended that this section should also apply to an Excise Officer investigating an excise case. Clouse 3, Section 74 states that for the purposes of Section 156, Criminal P.C. 1898, the area to which an Excise Officer empowered under Section 73, Sub-section (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. And Section 156 refers to the investigation of cognizable offences within the area of the police station, and although Section 162 refers only to statements made in the course of investigation under Ch. 14, Criminal P.C., it seems clear that it was intended that in making an investigation under the Excise Act, the Excise Sub-Inspector should have the status of a police officer and therefore a statement made to him in the course of an investigation would also be inadmissible under the provisions of Section 162. As these portions of Ch. 14 are included in Section 74, they are made applicable to the statements recorded in the course of an investigation by an Excise Officer. But apart from this technical ground, in my opinion, the evidence taken as a whole amounts merely to a grave suspicion. Another objection to the trial is that the learned Magistrate in his judgment refers to the statement made by Panchanan in the course of the trial of the case against him. He made a statement against Jogendra and that has been, referred to in the judgments of the Courts below. This was entirely improper, and there can be little doubt that the trying Magistrate must have had some bias (owing to Panchanan's statement) against Jogendra from the start.
4. In the circumstances, it would have been better if the trial had been conducted by some other Magistrate, even if the case does not come under the provisions of Section 190(c), Criminal P. C, inasmuch as this was a trial of the co-accused. On these grounds I think that the conviction and sentence should be set aside and the accused be released from bail.
5. I agree. Apart from the merits, the trial was vitiated by the admission of the statement made by the accused to the Excise Officer during the course of the investigation. In my opinion, Section 162, Criminal P. C, applies to an accused person. Section 73(2), Bengal Excise Act, provides that an Excise Officer specially empowered by the Local Government in respect of all or any specified class of offences punishable under this Act, may, without the order of a Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such officer is appointed would have power to inquire into or try under the aforesaid provisions. Section 74(1) provides that such an Excise Officer may exercise any of the powers conferred upon a police officer making an investigation, or upon an officer in charge of a police station, by Sections 160 to 171, Criminal P.C. 1898. And Sub-section (3) provides that for the purposes of Section 456, Criminal P.C. 1898, the area to which an Excise Officer empowered under Section 73, Sub-section (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. Heading these sections together, it seems to me clear that Section 162 applies to such an investigation by an Excise Officer, and that a statement made to him by the accused person in the course of such investigation comes within the provisions of Section 162, Criminal P.C. Moreover the ratio decidendi in Amin Shariff v. Emperor, 1934 Cal 580, which applied to confessions under Section 25, Evidence Act, in my opinion apply equally to a statement made under Section 162, Criminal P.C.