iminal Appeal No45 of 1967
Appeal by special leave from the judgment and order dated September 9 1966 of the Madras High Court in Criminal Revision Petition 1350 of 1965
NH Hingorani R Jethamalani and K Hingorani for the appellant
Niren De Solicitor General NS Bindra RH Dhebar and SP Nayar for the respondent
KR Chaudhuri and K Rajendra Chaudhuri for the intervener
The Judgment of the Court was delivered by Grover J
The main point in this appeal by special leave is whether the statements of the appellant and other accused persons recorded by the customs authorities under the provisions of the Act 52 of 1962 hereinafter called the New Act were admissible in evidence at their trial for the alleged offences under section 120B of the Indian Penal Code read with section 135 of the new Act and ss 23 IA and 23B of the Foreign Exchange Regulation Act 1947 and under Rule 131 B of the Derrace of India Rules
The facts need not be stated in great detail
A complaint was laid by the Collector of Customs Madras against to persons for having committed the above offences
The complaint related to an occurrence which involved transport of 750 bars of gold each weighing 10 tolls valued at more than 7 lacs from Bombay to Madras
The statements of the accused persons were recorded by the Inspector of Customs and other customs authorities before the complaint was filed
After a preliminary enquiry the Second Presidency Magistrate George town Madras committed 9 of the accused persons to stand their trial at the City Sessions Court the charges being confined to the transaction connected with 700 bars of gold only
Seventeen charges were framed on October 29 1965 by the learned Sessions Judge against the appellant and eight other accused persons for the various offences mentioned above
When the hearing before the Sessions Court commenced the prosecution sought to file the statements of the accused persons recorded by the customs authorities
Certain preliminary objections were raised on behalf of the accused to the admissibility of those statements
The first was that the officers of the customs department who had recorded the statements must be deemed to be police officers and the statements being of a confessional nature were not admissible in evidence by virtue of the provisions of section 25 of the Indian Evidence Act
The second objection was that the investigation 615 conducted by the customs officer must be deemed to be under Chapter XIV read with section 52 of the Criminal Procedure Code and the statements thus became inadmissible under section 161 read with section 162 of the Code
The third objection was based on article 203 of the Constitution involving testimonial compulsion
This objection was not mentioned in the order of the learned Sessions Judge but it was alleged to have been raised before the High Court
The matter went up to the High Court on the Revisional side because the learned Sessions Judge took the view that the statements given by the accused persons to the customs officers could not be received in evidence
The learned Single Judge who heard the Revision petition referred the following questions to a full bench owing to their importance Are statement recorded by inquiring officers of the Customs Department under Section 107108of the  inadmissible in evidence in a criminal trial by reason of the bar under 1  Section 25 of the Indian Evidence Act 2 Section 162 of the Criminal Procedure Code and 3 article 203 of the Constitution
 The full bench answered all the three questions against the accused persons
Only one out of them Illias has appealed to this Court Learned counsel for the appellant has not pressed the second point
As regards the third point it was conceded before the full bench of the High Court that when the statements were recorded the investigation had not reached the stage when the particular persons had been accused of an offence within the meaning of article 20 3  of the Constitution
In view of this concession learned counsel for the appellant has submitted that the matter be left undecided so that it may be open to the appellant to make whatever submissions he wishes to make before the trial court when any such statement is formally tendered for admission into evidence
Adverting to the first point the main endeavour of the counsel for the appellant has been to demonstrate by reference to various provisions of the new Act that statements recorded by the customs authorities of a confessional nature would be hit by the provisions of section 25 of the Evidence Act
In State of Punjab vs Barkat Ram1 it was held by the majority that customs officers were not police officers for the purpose of section 25 of the Evidence Act and the statements to customs officers were admissible in evidence at the trial of persons accused of offences inter alia under the  hereinafter called the old Act
It has been submitted that a later decision on this Court in Raja Ram Jaiswal vs State of Bihar2 which related to the question whether an Excise Inspector exercising powers under the Bihar 1  2  616  Orissa Excise Act was a police officer for the purposes of section 25 of the Evidence Act goes a great deal in favour of the appellant particularly when the provisions of the new Act wherein substantial departure has been made from those of the old Act are kept in view
As will be presently seen there is yet a third decision of the constitution bench of this Court in Badku Joti Savant vs Stale of Mysore1 which related to the provisions of the Central Excises  Salt Act which goes against the contention pressed by the counsel for the appellant
At any rate it does not appear that the majority view expressed in Barkat Ram s case2 has been shaken in any manner so far as statements recorded by a customs officer under the old Act are concerned
Indeed in a recent decision of this Court P Shankar Lal and Ors
Asstt
Collector of Customs Madras3 it has been reaffirmed that there is no conflict between the cases of Raja Ram Jaiswal4 and Barkat Ram2 the former being distinguishable from the latter
Before the previous pronouncements of this Court are discussed it is necessary to compare the relevant provisions of the new Act and the old Act
Under the old Act section 173 provided that persons reasonably suspected of offences under that Act might be arrested by any officer of customs or other persons duty employed for the prevention of smuggling
Under the new Act according to section 104 if an officer of customs empowered in this behalf by general or special order of the Collector of Customs has reason to believe that any person has been guilty of an offence punishable under section 135 he may arrest such person
As regards the power to search Chapter XVII of the old Act contained the relevnt provisions
Section 169 conferred the power on a customs officer to search on a reasonable suspicion
Under section 170 when any officer of customs was about to search any person under the provisions of section 169 such person could require that officer to take him previous to search before the nearest magistrate or customs collector
Section 172 conferred power on a magistrate to issue search warrants on an application by the customs collector
In the new Act section 100 confers the power to search suspected persons entering or leaving India
Section 102 contains Provisions analogous to section 170 of the lid Act with some minor differences
Under the old Act every person arrested on the around that he had been guilty of an offence under that Act had to be forthwith taken to the nearest magistrate or customs collector section 174
Under the new Act section 104C2 provides that every person arrested shall without unnecessary delay be taken to a magistrate
Lastly section 171A of the old Act conferred power on customs officers to summon persons to give evidence and 1 2  3 Cr
52  10465 decided on 12 12 1967
4 617 produce documents
Under the new Act section 107 gives the power to customs officers empowered by general or special order of collector of customs to examine persons acquainted with the facts and circumstances of the case or to require any person to produce or deliver any document
Section 108 confers power on a gazetted officer of customs to summon persons for giving evidence or producing documents
The substantial difference however between the two enactments as has been pointed out by the High Court relates to 1  the procedure after arrest 2 the procedure for enquiry or investigation and 3 the procedure for search
As regards the procedure after arrest a significant change which has been made in the new Act is contained in sub section
3 of section 104
It is provided thereby that where an officer of customs has arrested any person under sub section
1  he shall for the purpose of releasing such person on bail or otherwise have the same power and be subject to the same provisions as the officer in charge of a police station has and is subject to under the Code of Criminal Procedure
Sub section 4 however makes an offence under the new Act non cognizable notwithstanding anything contained in the Code of  Criminal Procedure the offences under the old Act were also non cognizable
In the old Act there was no provision conferring the power of releasing a person on bail or otherwise on a customs officer and only a magistrate could grant bail
A great deal of emphasis has been laid by the counsel for the appellant on the power of granting bail which has now been given to a customs officer under the new Act
It is pointed out that such a power goes a long way and assists a great deal in extortion of confessions against which section 25 of the Evidence Act contains the main safeguards
It has also been contended that all the powers of an officer in charge of the police station under the Code of Criminal Procedure have been conferred on an officer of customs in the matter of releasing an arrested person on bail or otherwise
It has even been suggested by the appellant s counsel that the word otherwise invests the customs officer with all the powers which an officer in charge of a police station can exercise under Chapter XIV of the Code
It may be observed at once that the word otherwise clearly relates to releasing a person who has been arrested and cannot possibly be construed in the manner suggested by the learned counsel
In the old Act the provisions containing the procedure for enquiry were to be found in section 171A As stated before any officer of customs duly employed in the prevention of smuggling had the power to summon any person whose attendance he considered necessary either to tender evidence or to produce a document in any enquiry which such officer was making in connection with smuggling of goods Any person so summoned was bound to attend either in person or by an authorised agent and he was also bound 618 to state the truth upon any subject respecting which he was examined or make a statement and to produce such documents and other things as might be required
Every such enquiry was by a deeming provision to be a judicial proceeding within the meaning of sections 193 and 228 of the Indian Penal Code
Under the new Act the enquiry can be of two kinds
Under section 107 any officer of customs empowered by the collector of customs can require any person to produce or deliver any document etc
or he can examine any person acquainted with the facts and circumstances of the case
Section 108 contains the second set of powers which are analogous to section 171A of the old Act the two sections being almost similar in language
The contention on behalf of the appellant is that section 107 the new Act gives power of investigation to officers of customs similar to those exercisable by a police officer under Chapter XIV of the Criminal Procedure Code
Now a police officer under section 160 of the Code can by an order in writing require the attendance of any person within the limits of his own or any adjoining station and he can under section 161 examine orally any person supposed to be acquainted with the facts and circumstances of the case
The submission of the appellant s counsel therefore is that section 107 is similar to sections 160 and 161 and the customs officer conducting an enquiry or investigation relating to offences under the new Act enjoys the same power as a police officer making an investigation under Chapter XIV of the Code of Criminal Procedure
It is pointed out that under the old Act no such powers were conferred on the customs officer and it was with reference to section 171 A of the old Act that this Court in Barkat Ram s1 case laid emphasis on the judicial nature of the proceedings held under that section
The distinction it is said no longer obtains owing to the provisions of section 107 of the new Act
As regards the procedure for search the important change which has been made in the new Act is that under section 105 if the Assistant Collector of customs has reason to believe that any goods liable to confiscation or any documents or things are secreted in any place he may authorise any officer of customs to search or may himself search for such goods documents or things
Under the old Act it was necessary to obtain a warrant from a magistrate in accordance with section 172 and the warrant could be executed in the same way and had the same effect as a search warrant issued under the law relating to criminal procedure
An examination of the previous decisions of this Court may now be made in order to test the validity of the argument raised on behalf of the appellant that owing to the substantial changes made in the new Act statements of a confessional nature recorded by the customs officers should be excluded under section 25 of the Evidence Act on the ground that these officers are police 1  619 officers within the meaning of that section
In the majority judgment in Barkat Ram s1 case a comparison was made between the duties and powers of police officers and customs officers which may be summarised as follows  1  The police is the instrument for the prevention and detection of crime which can be said to be the main object of having the police
The powers of customs officers are really not for such purpose and are meant for checking the smuggling of goods and due realization of customs duties and for determining the action to be taken in the interest of the revenue of the country by way of confiscation of goods on which no duty had been paid and by imposing penalties and fines
2 The customs staff has merely to make a report in relation to offences which are to be dealt with by a magistrate
The customs officer therefore is not primarily concerned with the detection and punishment of crime but he is merely interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties
3 The powers of search etc
conferred on the customs officers are of a limited character and have a limited object of safeguarding the revenues of the State and the statute itself refers to police officers in contradistinction to customs officers
4 If a customs officer takes evidence under section 171A and there is an admission of guilt it will be too much to say that statement is a confession to a police officer as a police officer never acts judicially and no proceeding before him is deemed to be a judicial proceeding for the purpose of sections 193 and 228 of the Indian Penal Code or for any other purpose
Adverting to Raja Ram Jaiswal s2 case it is significant that by virtue of section 772 read with section 783 of the Bihar  Orissa Excise Act 1915 an Inspector or Sub inspector was deemed to be an officer in charge of a police station and was entitled to investigate any offence under the Excise Act
He could exercise all the powers which an officer in charge of a police station could exercise under Chapter XIV of the Code
It was therefore held by the majority that a confession recorded by an Excise Officer during an investigation into an excise offence could not reasonably be regarded as anything different from a confession to a police officer Barkat Ram s1 case was distinguished on a number of grounds
One was that the excise officer did not exercise any judicial power just as the customs officer did under the  secondly the customs officer was not deemed to be an officer in charge of a police station and therefore he could not exercise powers of such an officer under the Code of Criminal Procedure
Further the customs officer could make an enquiry 1  2  620 but he had no power to investigate into an offence under section 156 of the Code
Even though some or the powers set out m Chapter XVII of the were analogous to those of the police officer under the Code they were not identical with those of a police officer and were not derived from or by reference to the Code
it was pertinently observed that the customs officer was not entitled to submit a report to a magistrate under section 190 of the Code with a view that cognizance of the offence be taken by a magistrate
It was then said at p 766 The test for determining whether such a person is a police officer  for the purpose of section 25 of the Evidence Act would in our judgment be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by section 25 that is the recording of a confession
In other words the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect
or a delinquent
If they do then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys
 Emphasis was laid on the police officers having such powers which enable them to exercise a kind of authority over the persons arrested which facilitate the obtaining from them statements which may be of incriminating nature
The case of Raja Ram jaiswal1 came up for discussion in the third of series of these cases namely Badku Joti Savant vs State of Mysore2
The appellant there had been found in possession of contraband gold
He was prosecuted under section 16781 of the read with section 9 of the Land 
A question arose whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence
The contention raised was that the Central Excise Officer under the Central Excises  Salt Act Act 1 of 1944 hereinafter called the Central Excise Act was 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 Excise had acted under the power conferred on him by the  he was still a police officer and the statement made to him which was in the nature of a confession was inadmissible in evidence
This Court referred to the difference of opinion among the High Courts as to the meaning of the words police officer used in section 25 of the Evidence Act
One view was that those words must be construed in a broad way and all officers would be police 1  2 1966 3 s CR 698
621 officers within the meaning of those words if they had powers of the police officer with respect to investigating of offences with which they were concerned even if they were police officers properly so called or not
The narrow view was that these words in section 25 meant a police officer properly so called and did not include officers of other departments of Government who might be charged with the duty to investigate under special Acts special crimes like the excise or customs offences etc
The Court proceeded on the assumption that the broad view was correct
After examining the various provisions of the Central Excise Act and in particular section 21 it was observed that a police officer for the purpose of cl
b of section 190 of the Code of Criminal Procedure could only be one properly so called
A Central Excise Officer had to make a  complaint under cl
a of section 190 of the Code to a magistrate to enable him to take cognizance of an offence committed under the special statute The argument that a Central Excise Officer under section 212 of the Central Excise Act had all the powers of an officer in charge of a police station under Chapter XIV of the Code and therefore he must be considered to be a police officer within the meaning of those words in section 25 of the Evidence Act was repelled for the reason that though such officer had the power of an officer in charge of a police station he did not have the power to submit a charge sheet under section 173 of the Code
Raja Ram Jaiswal s1 case was distinguished on the ground that section 21 of the Central Excise Act was in terms different from section 783 of the Bihar  Orissa Excise Act 1915 which provided that for the purpose of section 156 of the Code of Criminal Procedure the Excise Officer empowered under section 772 of that Act shall be deemed to be the officer in charge of a police station
The following observations at page 704 are indeed important All that section 21 provides is that for the purpose of his enquiry a Central Excise Officer shah 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 und er section 173 of the Code of Criminal Procedure for unlike the Bihar  Orissa Excise Act the Central Excise Officer is not deemed to be an officer incharge of a police station
 It was reiterated that the appellant could not take advantage of the decision in Raja Ram Jaiswal s1 case and that Barkat Ram s case was more apposite
The ratio of the decision Badku Joti Savant3 is that even if an officer under the special Act has been invested with most of the powers which an officer 1  2  3  Sup CI69 7 622 in charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of section 25 of the Evidence Act unless he is empowered to file a charge sheet under section 173 of the Code of Criminal Procedure
Learned counsel for the appellant when faced with the above difficulty has gone to the extent of suggesting that by necessary implication the power to file a charge sheet flows from some of the powers which have already been discussed under the new Act and that a customs officer is entitled to exercise even this power
It is difficult and indeed it would be contrary to all rules of interpretation to spell out any such special power from any of the provisions contained in the new Act
In this view of the matter even though under the new Act a customs officer has been invested with many powers which were not to be found in the provisions of the old Act he cannot be regarded as a police officer within the meaning of section 25 of the Evidence Act
In two recent decisions of this Court in which the judgments were delivered only on October 18 1968 ie Romesh Chandra Mehta vs State of West Bengal1 and Dady Adarji Fatakia vs
KK Ganguly Asstt Collector of Customs  Ant 2 the view expressed in Barkat Ram s3 case with reference to the old Act has been reaffirmed on the question under consideration and it has been held that under the new Act also the position remains the same
This is what has been said in Dady Adarji Fatakia s2 case For reasons set out in the judgment in Cr
A 2767 Romesh Chand Mehta vs State of West Bengal and the judgment of this Court in Badku Joti Savant s4 case we are of the view that a Customs Officer is under the Act of 1962 not a police officer within the meaning of section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an inquiry is made are not covered by section 25 of the Indian Evidence Act
 This appeal fails and it is dismissed
VPS Appeal dismissed
1 2 Cr
Appeal No 46 of 1968 decided on 18 10 1968


Summary:
The appellant along with others was charged with various offences relating to transport of gold
Their confessional statements recorded by customs authorities under sections 107 and 108 were sought to be given in evidence at the trial
On the question whether the customs authorities should be deemed to be police officers and therefore the statements were inadmissible by reason of section 25 of the Evidence Act HELD Under  the customs authorities have been invested with many powers of a police officer in matters relating to arrest investigation and search which the customs officers did not have under the repealed Act namely the 
For example under section 1043 after arrest the customs officer has the power of releasing the arrested person on bail and for that purpose has the same powers as an officer in charge of a police station
Under section 107 a customs officer empowered by the Collector of Customs can require any person to produce any document which power is similar to those exercisable by a police officer under sections 160 and 161 Cr
Under section 105 if the Assistant Collector of Customs has reason to believe that any goods liable to confiscation are secreted in any place he may authorise any customs officers or may himself search for the goods
But customs officers have not been invested with all the powers which an officer in charge of a police station can exercise under Chapter XV Cr
The powers conferred do not include the power of submitting a charge sheet under section 173 Cr
PC either expressly or by necessary implication
Therefore in order to enable a magistrate to take cognizance of an offence under the  the offences under the Act are non cognizable the customs officer will have to file a complaint before the magistrate under section 190a Cr PC and cannot like a police officer submit a report under section 190b
Hence even though the customs officers have been invested with many of the powers which an officer in charge of a police station exercises when investigating a cognizable offence he does not thereby become a police officer within the meaning of section 25 of the Evidence Act and so the confessional statements made by accused persons to customs officials would be admissible in evidence against them
617 C D 618 B C F G 621 C D 622 C D Romesh Chandra Mehta vs State of West Bengal
and Dad
v Adarji Fatakia vs
KK Ganguly Astt
Collector of Customs  Anr
A No 46 of 1968 dated October 18 1968 followed
State of Punjab vs Barkat Ram   Raja Ram faiswal vs State of Bihar  Badku Joti Savant vs State of Mysore  and P Shankar Lal  Ors
vs Asstt
Collector of Customs Madras Cr
52  10465 dated 12 12 1967
referred to