1. The petitioner in this case Tura Sardar has been convicted under Section 46, Excise Act, and sentenced to six months' rigorous imprisonment. He was also charged under Section 61, Excise Act read with Section 109, I.P.C., but no sentence was passed under that charge. This rule was granted on two grounds. The first is that any statement made by the co-accused Faizuddin, who was also convicted, to the Excise Inspector and Sub-Inspector is inadmissible under Section 25, Evidence Act. The second ground is that the District Magistrate has not in his judgment found all the facts necessary to sustain the conviction, With regard to the second ground, it may be dismissed in a few words. The learned District Magistrate in a careful judgment has dealt with all the points taken in the grounds of appeal before him. In discussing the points he has entered1 sufficient findings of his own with regard to the points that require to be proved in support of the conviction. He says that Faizuddin said that on the approach of the Excise Officer the accused ran away and he was caught shortly after in circumstances that showed that he had come hurriedly through mud. The learned Judge believed the witness Santosh and his evidence is enough to convict the accused of the offence charged.
2. As regards the first ground, Mr. Pal argues that an excise officer is a police officer within the meaning of Section 25, Evidence Act. The point may be arguable, but so far as this Court is concerned it is now res integra. It has been held in several cases that he is not, in Harbhanjan Sao v. Emperor : AIR1927Cal527 , Rokumali v. Emperor (1917) 19 Cr.L.J. 529 and Ah Foong Chinaman v. Emperor (1918) 46 Cal. 411. Reference has been made to a Full Bench decision of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor : AIR1927Bom4 . The learned Chief Justice giving the judgment of the Full Bench at p. 93 of the report distinguished the Calcutta case on the ground that Abkari law in Calcutta was different from that in Bombay and that the latter was more stringent than the former. This point is settled by authorities of this Court and as the law now stands an excise officer is not a police officer within the meaning of Section 25, Evidence Act. As a branch of this ground Mr. Pal has also argued that under Section 74, Bengal Excise Act of 1909, an excise officer is a police officer within the meaning of Section 162, Criminal P.C. and any statement made to him cannot be proved against the accused.
3. Under Section 74, Excise Act whenever an excise officer suspects the commission of an offence he is empowered to investigate it and in carrying on such investigation the powers of a police officer under Sections 160 to 170, Criminal P.C. have been conferred upon him. It may be reasonable to argue that when the power of investigation under this section has been conferred upon an excise officer it must be taken to have been conferred with all the limitations which the law imposes. But in the present case the question does not arise. The statement objected to by Mr. Pal is the statement of Faizuddin the co-accused who said that as soon as the Excise Inspector came he said that a man had been with him who had run away. That is not a statement which was made in the course of the investigation held under Sections 160 to 170, Criminal P.C. Nor was that statement reduced in writing as to be made inadmissible under Section 162. What happened was that Faizuddin was arrested on the spotand as soon as the Excise Inspector came there Faizuddin told him that there was a man with him who ran away. This is not a statement made to a police officer under the provisions of any section of the Criminal Procedure Code. Besides, if the statement is taken as a confession under Section 25 which apparently it is not, Section 162, Criminal P.C. does not apply in cases of accused persons : see the case of Azimaddi v. Emperor : AIR1927Cal17 . Both the grounds therefore fail and the rule is discharged.
4. The petitioner must surrender to his bail and serve out the remainder of the sentence.