TMI Blog1961 (8) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... de of Criminal Procedure, have been conferred, are police officers or not for the purpose of s. 25 of the Evidence Act, as the learned counsel for the appellant did not question the correctness of this view for the purpose of this appeal. Appeal allowed. - CRL.A. 45 OF 1959 - - - Dated:- 30-8-1961 - J.L. KAPUR, K. SUBBARAO AND RAGHUBAR DAYAL, JJ. JUDGMENT This appeal, by special Raghubar leave, raises the question whether a Customs Officer, either under the Land Customs Act, 1924 (Act XIX of 1924) or under the Sea, Customs Act, 1878 (Act VIII of 1878), is a:. police officer within the meaning of that expression in' s. 25 of the Indian Evidence Act. Barkat Ram, respondent in this appeal, was the engine driver of 78 Down Train which reached Amritsar at about 4-15 P.m., on June 8, 1957. The train came from Pakistan. In consequence of information received with respect to the smuggling of gold by the engine crew, the Land Customs staff boarded the engine at Atari and other staff of the Department surrounded the engine on its arrival at Amritsar. The engine was searched and a quantity of gold was recovered, having been found lying concealed underneath the coal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b has filed this appeal against the acquittal order. The only contention raised for the appellant in the appeal is that the Customs Officers to whom the confessional statements were made were not police officers within the meaning of that expression in s. 25 of the Evidence Act. It was contended that the mere fact that powers to arrest certain persons, to make searches and to record evidence having a bearing on the alleged contravention of the legal provisions, are conferred on certain officers of the Customs Department, is not sufficient to make them 'police officers' contemplated by s. 25 of the Evidence Act, even if it be assumed correct. as held by certain High Courts, that, officers on' whom the powers of the- Officer-in-charge of a Police Station under Chapter XIV of the Code of Criminal Procedure have been conferred, were police officers for the purpose of s. 25 of the Evidence Act. The contention for the respondent is that officers on whom such powers are conferred are really police officers, though they are not so called and that the difference in nomenclature is of no effect in considering them police officers for the purposes of s. 25. We are of opinion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s is provided for a police officer under the Police Act and any Act for regulating criminal procedure. The authority given to police officers must naturally be' to enable them to discharge their duties efficiently. of the various duties mentioned in s. 23, the more important duties are to collect and communicate intelligence affecting the public peace, to prevent the commission of offences and public nuisances and to detect and bring offenders to justice and to apprehend all persons whom the police officer is legally authorised to apprehend. It is clear, therefore, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the police Act, that the' powers which the police officers enjoy are powers' for the effective prevention and detection of crime in order to maintain law and order. The powers of customs officers are really not for such purpose. Their powers are for the purpose of checking. the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country by way of confiscation of goods on which no duty had been pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the conduct for trial before a Magistrate. They have nothing to investigate about it. Similarly the offence at item 72 relates to a person's making a false declaration. Offences at items Nos. 74, 75 and 76 are with respect to the conduct of the Customs Officers themselves. Items Nos. 76-A, 76-B and 78 deal with the obstruction by smugglers to the performance of duty by the Customs Officer. The offence at item No. 77 relates to an offence where a police officer neglects to do his duty. Item 81 creates an offence with respect to a person doing certain things to defraud the Government. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. He is more concerned with the goods and customs duty, than with the offender. Similar view was expressed by this Court in Maqbool Hussain's Case([1953] S.C.R. 730.). It was said at p. 741 : It is clear on a perusal of the above pro- visions that the powers of search, arrest and detention are given to the Customs Authorities for the levy of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons are police officers and are covered by that expression in s. 25. That expression is not restricted to the police officers of the police forces enrolled under the Police, Act of 1861. The word 'police' is defined in s. I and is said to include all persons who shall be enrolled under the Act. No doubt this definition is not restrictive as it uses the expression 'includes', indicating thereby that persons other than those enrolled under that Act can also be covered by the, word 'Police'. Sections 17 and 18 of the Police Act provide for the appointment of special police officers who are not enrolled under the Act but are appointed for special occasions and have the same Powers, privileges and protection and are liable to perform the same duties as the ordinary officer of the police. Section 21 also speaks of officers who, are not enrolled as police officers and in such categories mentions hereditary or other village police officers. The words 'police officer' are therefore not to be construed in a narrow way, but have to be construed in a wide and popular sense, as was remarked in, R. v. Hurribole ((1876) I.L. R. I Cal. 207.) where a Deput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and similar offences with the object of safeguarding the levying and recovery of Customs duties. If the Legislature had intended to use the expression (police officer' for such a wide purpose, it would have used a more comprehensive expression. It could have expressed its intention more clearly by making any confession made to any officer whose duty is to detect and prevent the commission of offences inadmissible in evidence. The police officer referred to in s. 25 of the Evidence Act, need not be the officer investigating into that particular offence of which a person is subsequently accused. A confession made- to him need not have been made when he was actually discharging any police duty. Confession made to any member of the police. of whatever rank and at whatever time, is inadmissible in evidence in view of s. 25. Customs Officers can, even if the respondent's contention be accepted, be considered to be police officers only when they are exercising the limited powers which are similar to the powers of the police officers. This is clear from the observations in the cases relied upon on behalf of the respondent. In Ameen Sharif v. Emperor ((1934) I. L. R. 61 Cal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y goods. It is well-settled that the Customs Officer. when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially: Leo Roy Frey v. The Superintendent, District Jail, Amritsar([1958] S.C. R. 822, 826.); Shewpujanrai Indrasanrai Ltd. v. The Collector of Customs([1959] S. C. R. 821, 830). Any enquiry under s.171-A is deemed to be a judicial proceeding within the meaning of as. 193 and 228, Indian Penal Code, in view of its sub s.(4). It is under the authority given by this section that the Customs Officers can take evidence and record statements. If the statement which is recorded by a Customs Officer in the exercise of his powers under this Section be an admission of guilt, it will be too much to say that that statement is a confession to a police officer, as a police officer never acts judicially and no proceeding before a police officer is deemed, under any provision so far as we are aware, to be a judicial proceeding for the purpose of ss.193 and 228, Indian Penal Code or for any purpose. It is still less possible to imagine that the Legislature would contemplate such a person, whose proceedings are judicial f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hidden underneath the coal in the tender of the engine. After recovering the said gold, Barkat Ram, the respondent, who was the driver of the engine, was arrested and taken to the Customs office for interrogation. On interrogation, it was disclosed that the gold was for delivery to one Ghulam Mohd. Two days later Ghulam Mohd. was also arrested at Amritsar. During the enquiry., Barkat Ram and Ghulam Mohd. made statements before the Customs officials on different occasions admitting their guilt. In due course, the Assistant Collector, Land Customs, Amritsar filed a complaint against the said two persons before the Additional District Magistrate Amritsar, and the said Magistrate convicted and sentenced them under s. 23 of the Foreign Exchange Regulation Act 1947 (Act No. 7 of 1947) and also under s. 167 (81) of the Sea Customs Act, 1878 (Act No. 8 of 1878). On appeal, the Additional Sessions Judge, Amritsar, confirmed the said order of conviction and sentence. Against the said order, the accused filed revisions to the High Court of Punjab. Apart from the confessions alleged to have been made by the accused, there was no other evidence to prove that they were guilty of the offence wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to its natural import, but also enlarges the meaning of the said word so as to take in other things Section 5.(2) of the Code of Criminal Procedure also contemplates investigation of, or inquiry into, offences under other enactments regulating the manner or place of investigation, that is, if an act creates an offence and regulates the manner and place of investigation or inquiry in regard to the said offence, the procedure proscribed by the Code of Criminal Procedure will give place to that provided in that Act. If the said Act entrusts investigation to an officer other than one designated as police officer, he will have to make the investigation and not the police officer. In this situation, the mere use of the words police officer in s. 25 of the Evidence Act does not solve the problem, having regard to permissible' rules of interpretation of the term ,police officer in that section. It may mean any one of the following categories of officers (i) a police officer who is a member of the police force constituted under the Police Act; (ii) though not a member of the police force constituted under the Police Act, an officer who by statutory fiction is deemed to be a police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to crimes and is for that purpose in a position to extract confessions from the accused. In the Oxford Dictionary, the word police is defined thus : The department of government which is concerned with the maintenance of public order and safety, and the enforcement of the law; the, extent of its functions varying greatly in different countries and at different periods. The civil force to which is entrusted the duty of maintaining public order, enforcing regulations 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. Shortly, stated, the main duties of the police are the prevention and detection of crimes. A police officer appointed under the Police Act of 1861 has such powers and duties under the Code of Criminal Procedure, but they are not confined only to such police officers. As the State's power and duties increased manifold, acts which were at one time considered to be innocuous and even praiseworthy have become offences, and the police power of the State gradually began to operate, on different subjects. Various Acts dealing with Customs, Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Nanoo v. Emperor((1927) 1. L. R. S. Bom. 78) held that an Abkari Officer under the Bombay Abkari Act, who, in the conduct of investigation of an offence punishable under the Bombay Abkari Act exercised the powers conferred by the Code of Criminal Procedure', 1898, upon an officer in charge of a police station for the investigation of a cognizable offence, was a police officer within the meaning of s. 25 of the Indian Evidence Act. Marten C. J., after considering the ,relevant provisions and the case law on the subject came to the following conclusion, at p. 94 : After giving then my best attention to the arguments, which have been addressed to us, in my judgment, we should hold that as the Bombay Legislature has deliberately conferred upon these Abkari officers substantially all the powers of a Police officer, they have- thereby in effect made them Police officers within the meaning of s. 25............. Shah, J., stated much to the same effect at p. 97 : It seems to me a perfectly fair interpretation of section 25 to say that the Police officer within the meaning of that section is an officer, who exercises the powers of police conferred upon him by law, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to whom section 25 of the Evidence Act was intended to be applied This passage neatly summarises the law on the subject, and I entirely agree with it. Ghose, J., in a separate judgment came to the same conclusion and he stated at p. 654 thus Since 1872, not only have new offences been created by later Acts, but new bodies of officers have been created who are vested with powers of police with regard to these offenses. Then the learned Judge posed the question, ,Would that make any difference to the application of the section to these officers ? and answered it thus at 656 : The words police officer may be plain, but they are not defined in the Evidence Act. The contention that the term applies only to members of the police force is not borne out by authority. On the other band, it is quite consistent with the scheme of the Act that t person, who exercises the powers of a police officer, should be hit by the prohibitive provision of section 25. Turning to Madras decisions, it would be enough if only one decision of the Madras High Court is noticed, for the other decisions were made by single Judges and were also considered in the said decision. A divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and cannot be ignored for the purpose of Construing section 25 of the Evidence Act. on the basis of the said principle, it came to the Condition that an Excise Officer was not a Police Officer within the meaning of s. 25 of the Evidence Act. With at respect to the learned Judges, who decided that case, I think that they looked too narrowly at the appearance of things and declined to look at the substance behind the appearance . If that interpretation be correct, an officer, who is simply designated as a police officer, will come under the mischief of s. 25 of the Evidence Act, whereas an officer, who is not described as a police officer but who is entrusted with all the police powers and duties would not be hit by it. This adherence to the letter in derogation of the spirit of t statute would defeat the object of the statute itself. I, therefore, cannot accept this judgment as correct. It is not necessary to multiply decisions discussing the general principles. But I would notice a few decisions relating to Customs Officer. Yahya Ali, J., in In re Mayalavahanam (I.L.R. [1947] Mad. 788) expressed the view that an Assistant Inspector of Customs was not a police officer within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act came to be inserted therein. If a literal meaning is given to the term police officer indicating thereby an officer designated as police officer, it will lead to anomalous results. An officer designated as a police officer, even though he does not discharge the well understood police functions, will be hit by s. 25 of the Evidence Act, whereas an officer not so designated but who has all the powers of a police officer would not be hit by that section; with the result, the object of the section would be defeated. The intermediate position, namely, that an officer can be a police officer only if powers and duties pertaining to an officer in charge of a police station within the meaning of the Code of Criminal Procedure are entrusted to him, would also lead to an equally anomalous position, for, it would exclude from its operation a case of an officer on whom specific powers and functions are conferred under specific statutes without reference to the Code of Criminal Procedure. The Code of Criminal Procedure does not define a Police officer and is 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... searching it an order to ascertain whether any breach of the Act or any other law relating to customs has been or is being or is likely to be committed. Section 171A, which was inserted by Act 21 of 1955 gives power to the said officer to summon persons to give evidence and produce documents, presumably to facilitate investigation of the offence. Under s. 173 367 an officer of Customs may arrest a person against whom a reasonable suspicion exists that he has been guilty of ,in offence under the Sea Customs Act. Under s. 178, anything liable to confiscation under the Act may be seized in any place by a Customs officer. The said sections, therefore, create offences, and, for the purpose of prevention and detection of such offences, confer specific powers on the Customs officers to search persons or places, to arrest persons suspected of such offences and to make necessary investigation in respect thereof. The Customs officers under the Act have the powers, and they also discharge the functions, of police officers and, therefore, they are police officers for the purpose of the Evidence Act in so far as they exercise or discharge such powers and functions. I, therefore, hold that a Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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