iminal Appeal No 26 of 1964
Appeal from the judgment and order dated November 20 1963 of the Mysore High Court in Criminal Appeal No 49 of 1963
B R L Iyengar and A G Ratnaparkhi for the appellant
A K Sen D R Prem R H Dhebar and B R G K Achar for the respondent
Niren De Additional Solicitor General and B R G K Achar for the intervener
The Judgment of the Court was delivered by Wanchoo J
This is an appeal on a certificate granted by the Mysore High Court
The appellant was prosecuted under section 167 81 of the Sea Customs Act No 8 of 1878 read with section 9 of the Land Customs Act No 19 of 1924
The appellant lives in a village which is close to Goa
The incident out of which the present appeal has arisen took place on November 27 1960 when Goa was not a part of India but was Portuguese territory
The Deputy Superintendent of Customs Goa Frontier Division Belgaum received information that contraband goods would be found in the house of the appellant
Consequently he raided the house in the company of three panchas
The appellant was not present in the house when the raid took place but his mother and sisterin law were there
After necessary formalities the house was searched and a big steel trunk a cane box and another steel trunk were taken down from the loft in the kitchen
On opening a belt with four pouches stitched to it was found in the big steel trunk
Inside the pouches four gold bars with foreign marks and labels of Goa Customs authorities were found
Besides these a large sum of money and three small cut pieces of gold were also found in the box
In the other two boxes also various sums of money in currency notes were found
The weight of the gold bars was 343 tolas
On November 30 1960 the appellant was arrested and inter rogated by the Deputy Superintendent of Customs and Excise
The answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him
During this interrogation the appellant admitted that the four gold bars had been given to him on November 27 1960 in the moming by one Vittal Morajkar of Goa so that he might deliver them back to Morajkar on the motor stand at Belgaum or near there and be had kept them in his house
As the gold was foreign gold 700 and as under the notification under section 81 of the Foreign Exchange Regulation Act 1947 import of gold into India had been forbidden except with the general or special permission of the Reserve Bank of India the appellant was prosecuted on a complaint filed by the Assistant Collector of Central Excise and Land Customs Goa Frontier Division Belgaum
The Magistrate convicted the appellant and sentenced him to imprisonment and fine and also ordered confiscation of the four gold bars
On appeal to the Sessions Judge the appellant was acquitted relying on the decision of the Calcutta High Court in Sitaram Agarwala vs State1
Then followed an appeal by the State to the High Court
The High Court disagreed with the view takeu by the Calcutta High Court in Sitaram Agarwal s case1 and held that even a person like the appellant who might have no direct concern with the import of gold in any way was liable under section 16781 of the Sea Customs Act
The High Court then considered the evidence and relying on the statement made by the appellant to the Deputy Superintendent of Customs and Excise and also on the other evidence produced in the case held that the appellant was guilty
In consequence the acquittal of the appellant was set aside and the order of conviction and sentence passed by the Magistrate was restored
The appellant then applied to the High Court for a certificate to appeal to this Court and as two questions of law of general importance arose in this case the High Court granted the certificate
The two questions were  1 whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwal s case1 with respect to the interpretation of section 16781 was correct and ii whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence in view of section 25 of the Indian Evidence Act No 1 of 1872
These are the two questions which have been argued before us on behalf of the appellant in the present appeal
So far as the first question is concerned namely the interpretation of section 16781 of the Sea Customs Act the matter is now settled by the decision of this Court in Sachidananda Bannerjee Assistant Collector of Customs vs Sitaram Agarwal and another2
This Court has held therein that the interpretation put by the Calcutta High Court in the case of Sitaram Agarwala1 is not correct and that section 16781 of the Sea Customs Act can also take in persons who may not be concerned the actual import of prohibited goods
The view taken by the Mysore High Court is in accordance with the view taken by this Court in that appeal and in view of that learned counsel for the appellant has admitted 1 2 701 that the appellant would be guilty within the meaning of section 167 81 of the Sea Customs Act
This leaves only the second question and it has been urged on behalf of the appellant that a Central Excise Officer under the Central Excises and Salt Act No I of 1944 hereinafter referred to as the Act is a police officer within the meaning of those words in section 25 of the Evidence Act
Therefore even though the Deputy Superintendent of Customs and Central Excises may have acted under the powers conferred on him by the Sea Customs Act he was still a police officer and the statement made to him by the appellant on November 30 1960 which is in the nature of a confession would be inadmissible under section 25 of the Evidence Act
It may be added that the High Court had in this connection relied on the judgment of this Court in the State of Punjab vs Barkat Ram  where it had been held by majority that a Customs
Officer under the Sea Customs Act was not a police officer within the meaning of section 25 of the Evidence Act
The appellant however relies on a later decision of this Court in Raja Ram Jaiswal vs State of Bihar2 where by majority it was held that an excise officer under the Bihar and Orissa Excise Act No 2 of 1915 was a police officer within the meaning of section 25 of the Evidence Act
There has been difference of opinion among the High Courts in India as to the meaning of the words police officer used in section 25 of the Evidence Act
One view has been that those words must be construed in a broad way and all officers whether they are police officers properly so called or not would be police officers within the meaning of those words if they have all the powers of a police officer with respect to investigation of offences with which they are concerned
The leading case in support of this view is Nanoo Sheikh Ahmed vs Emperor3
The other view which may be called the narrow view is that the words police officer in section 25 of the Evidence Act mean a police officer properly so called and do not include officers of other departments of government who may be charged with the duty to investigate under special Acts special crimes thereunder like excise offences or customs offences and so on
The leading case in support of this view is Radha Kishun Marwari vs King Emperor4
The other High Courts have followed one view or the other the majority being in favour of the view taken by the Bombay High Court
It is submitted on behalf of the appellant that the view taken by the Bombay High Court in Nanoo Sheikh Ahmed3 is the correct view and that the view of the Patna High Court in Radha Kishun Marwari4 is not correct
On the other hand it has been urged on behalf of the State that the view taken by the Patna High 1  2 19642 SCR 752
3 Bom
4 patna 46
C166 13 702 Court in Radha Kishun Marwari1 is the correct one
Prima facie there is in our opinion much to be said for the narrow view taken by the Patna High Court
But as we have come to the conclusion that even in the broad view a Central Excise Officer under the Act is not a police officer it is unnecessary to express a final opinion on the two views on the meaning of the words police officer in section 25 of the Evidence Act
We shall proceed on the assumption that the broad view  may be accepted and that requires an examination of the various provisions of the Act to which we turn now
The main purpose of the Act is to levy and collect excise duties and Central Excise Officers have been appointed thereunder for this main purpose
In order that they may carry out their duties in this behalf powers have been conferred on them to see that duty is not evaded and persons guilty of evasion of duty are brought to book
Section 9 of the Act provides for punishment which may extend to imprisonment upto 6 months or to find upto Rs 2000 or both where a person a contravenes any of the provisions of a notification issued under section 6 or of section 8 or of a rule made under cl
iii of sub section 2 of section 37 b evades the payment of any duty payable under the Act c fails to supply any information which he is required by rules made under the Act to supply or supplies false information and d attempts to commit or abets the commission of any of the offences mentioned in cls
a and b above
Under section 13 of the Act any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to
believe to be liable to punishment under the Act
Section 18 lays down that all searches made under the Act or any rules made thereunder and all arrests made under the Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure 1898 relating respectively to searches and arrests made under that Code
Section 19 lays down that every person arrested under the Act shall be forwarded without delay to the nearest Central Excise Officer empowered to send persons so arrested to a Magistrate or if there is no such Central Excise Officer within a reasonable distance to the officer in charge of the nearest police station
These sections clearly show that the powers of arrest and search conferred on Central Excise Officers are really in support of their main function of levy and collection of duty on excisable goods
Strong reliance has however been placed on behalf of the appellant on section 21 of the Act the material part of which runs thus 21
1 When any person is forwarded under section 19 to a Central Excise Officer empowered to send persons so 1 Patna 46
703 arrested to a Magistrate the Central Excise Officer shall proceed to inquire into the charge against him
2For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer in charge of a police station may exercise and is subject to under the Code of Criminal Procedure 1898 when investigating a cognizable case Provided that       It is urged that under sub section 2 of section 21 a Central Excise Officer under the Act has all the powers of an officer in charge of a police station under chapter XIV of the Code of Criminal Procedure and therefore he must be deemed to be a police officer within the meaning of those words in section 25 of the Evidence Act
It is true that sub section 2 confers on the Central Excise Officer under the Act the same powers as an officer in charge of a police station has when investigating a cognizable case but this power is conferred for the purpose of sub section
1 which gives power to a Central Excise Officer to whom any arrested person is forwarded to inquire into the charge against him
Thus under section 21 it is the duty of the Central Excise Officer to whom an arrested person is forwarded to inquire into the charge made against such person
Further under proviso a to sub section
2of section 21 if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such
Magistrate
It does not however appear that a Central Excise Officer under the Act has power to submit a charge sheet under section 173 of the Code of Criminal Procedure
Under section 190 of the Code of Criminal Procedure a Magistrate can take cognizance of any offence either a upon receiving a complaint of facts which constitute such offence of b upon a report in writing of such facts made by any police officer or c upon information received from any person other than a police officer or upon his own knowledge or suspicion that such offence has been committed
A police officer for purposes of cl
b above can in our opinion only be a police officer properly so called as the scheme of the Code of Criminal Procedure shows and it seems therefore that a Central Excise Officer will have to make a complaint under cl
a above if he wants the Magistrate to take cognizance of an offence for ample under section 9 of the Act
Thus though under sub section 2 of section 21 of the Central Excise Officer under the Act has the powers of an officer incharge of a police station when investigating a cognizable case that is for the purpose of his inquiry under sub section
1 of section 21
Section 21 is in terms different fro section 783 of the Bihar and Orissa Excise Act1915 which came to be considered in Raja Ram Jaiswal s 704 case1 and which provided in terms that for the purposes of section 156 of the Code of Criminal Procedure 1898 the area to which an excise officer empowered under section 77 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
It cannot therefore be said that the provision in section 21 is on par with the provision in section 783 of the Bihar and Orissa Excise Act
All that section 21 provides is that for the purpose of his enquiry a Central Excise Officer shall have the powers of an officerin charge of a police station when investigating a cognizable case
But even so it appears that these powers do not include the power to submit a charge sheet under section 173 of the Code of Criminal Procedure for unlike the Bihar and Orissa Excise Act the Central Excise Officer is not deemed to be an officer in charge of a police station
It has been urged before us that if we consider section 21 in the setting of section 14 of the Act it would become clear that the enquiry contemplated under section 211 is in substance different from investigation pure and simple into an offence under the Code of Criminal Procedure
It is not necessary to decide whether the enquiry under section 14 must also include enquiry mentioned in section 21 of the Act
Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under section 9 of the Act does not make the Central Excise Officer a police officer even in the broader view mentioned above
Otherwise any person entrusted with investigation under section 202 of the Code of Criminal Procedure would become a police officer
In any case unlike the provisions of section 783 of the Bihar and Orissa Excise Act 1915 section 21 2 of the Act does not say that the Central Excise Officer shall be deemed to be an officer in charge of a police station and the area under his charge shall be deemed to be a police station
All that section 21 does is to give him certain powers to aid him in his enquiry
In these circumstances we are of opinion that even though the Central Excise Officer may have when making enquiries for purposes of the Act powers which an officer in charge of a police station has when investigating a cognizable offence he does not thereby become a police officer even if we give the broader meaning to those words in section 25 of the Evidence Act
The scheme of the Act therefore being different from the Bihar and Orissa Excise Act 1915 the appellant cannot take advantage of the decision of this Court in Raja Ram Jaiswals  case1 taking even the broader view of the words police officer in section 25 of the Evidence Act
We are of opinion that the present case is more in accord with the case of Barkat Ram2
In this view 1   2  705 of the matter the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by section 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of section 24 of the Evidence Act
As to that it was urged on behalf of the appellant in the High Court that the confessional statement was obtained by threats
This was not accepted by the High Court and therefore section 24 of the Evidence Act has no application in the present case
It is not disputed that if this statement is admissible the conviction of the appellant is correct
As we have held that a Central Excise Officer is not a police officer within the meaning of those words in section 25 of the Evidence Act the appellant s statement is admissible
It is not ruled out by anything in section 24 of the Evidence Act and so the appellant s conviction is correct and the appeal must be dismissed
We hereby dismiss the appeal
Appeal dismissed


Summary:
The appellant who lived in a village near Goa was found in possession of contraband gold
He was prosecuted under section 16781 of the Sea Customs Act read with section 9 of the Land Customs Act 9 of 1924
The trial Magistrate convicted him but the Sessions Judge relying on the decision of the Calcutta High Court in Sitaram Agarwala s case acquitted him
The High Court of Mysore in appeal against the acquittal considered the evidence and relying inter alia on the statement made by the appellant to the Deputy Superintendent of Customs and Excise held him guilty
With certificate the appellant came to this Court
The questions that felt for consideration were  i whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwala s case with respect to the interpretation of section 16781 was correct and ii whether the statement made by the appellant to the Deputy Superintendent of Customs  Excise was admissible in view of section 25 of the Indian Evidence Act
HELD  i The High Court was right in not following the view of the Calcutta High Court in Sitaram Agarwala s case the correct view as to the interpretation of section 16781 of the Sea Customs being that the section takes in even those persons who may not be concerned with the actual import of the prohibited goods
700 G H Sachidananda Banerjee Assistant Collector of Customs vs Sitaram Agarwal  followed
Sitaram Agarwal vs State  disapproved
iiThe Central Excise and Salt Act 1944 does not confer all the powers of the police officer on Central Excise Officers
The powers confered on them by section 212 of the Act are only for the purpose of inquiry under section 211 they would not entitle the said officers to file a charge sheetunder section 173 of the code of Criminal Procedure
Therefore even though a central excise officer may have when making enquiries for purposes of the Act powers an officer in charge of a police station has when investigating a cognizable offence he does not thereby become a police officer within the meaning of section 25 of the Indian Evidence Act and the statement of an accused person recorded by him is not hit by that section 
704 B C F G Raja Ram Jaiswal vs State of Bihar  and Nanoo Sheikh Ahmed vs Emperor Bom
78 distinguished
State of Punjab vs Barkat Ram   relied on
699 Radha Kishun Marwari vs King Emperor Patna 46 referred to