# Collector of Cu.rtomr v. Sitararn

- **Citation:** [1966] 3 S.C.R. 698
- **Court:** Supreme Court of India
- **Decided:** 1963-11-20
- **Case number:** Criminal Appeal No. 26 of 1964
- **Bench:** P. B. Gaje1'Dragadkar, C. J .• K. N. Wanchoo, M. l-IIDAYATULLAll, J.C. Shah, S. M. Sjkri
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/collector-of-cu-rtomr-v-sitararn-3731
- **Pages:** 8

## Headnote

Sta Customs Act (8 of 1878), s. 167(81)-0ffence under-Offender
whether must be directly concerned in the ilnport of smuggled gofd.
Central Excise and Salt Act (I of 1944), s. 21-Deputy Superintendent of Customs and Excise given certain powers of an 'officer-In-char~
of a police station'-Such officer 1vhe1her a police officer lvithiti the nieaning of Indian Evidence Act (I of 1872), s. 25.
The appellant who lived in a village near Goa was found in possession
of contraband gold.
He was prosecu1ed under s. 167 ( 81 ) of the Sea
Customs Act read with s. 9 of the Land Customs Act (9 of 1924). The
trial Magistrate convic1ed him but lhe Sessions Judge relying on the decision of the Calcutta High Court in Sitaram Agarwala's cue acquitted
him. The High Court of Mysore, in appeal against the acquittal, considered the evidence and relying, inter a/ia, on the statement made by the
apP.ellant to the Deputy Superintendent of Customs and Excise held him
guilty.
With certificate the appellant came to this Court.
The questions
that fell for consideration were : ( i) whether the view taken by
the
High Court differing from the view taken by the Calcutta High Court in
Sitaram Agl1.rwa/a's case with respect to the interpretation of s. 167(81)
was correct, and (ii) whether the statement made by the appellant to the
Deputy Superintendent of Customs & E.cise was admissible in view of
s. 25 of the Indian Evidence Act.
HELD : (i) The High Court was right in not following the view of
the Calcutta High Court in Sltaram Agarwala's case, the correct view a..
to the interpretation of s. 167(81) 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 Cu.rtomr v.
Sitararn
Agarwal, (1966] 2 S.C.R, I, followed.
Sltaram Agarwal v. State. (1962] Cr. L.J. 43, disapproved.
(ii) The Central Excise and Salt Act, 1944 does not confer all tho
powers of a police officer on Central Excise Officers. The powers conferred on them bys. 21(2) of the Act are only for the purpose of inquiry
under s. 21 (1); they would not entitle the said officers to file a chargesbeet under s. 173 of the Code of Criminal Procedure. Therefore even
though a Central Excise Officer may have when making enquiries for
purp06e8 of the Act, powers which an officer-in-<:hargo of a police station
bas when investigating a cognizable offence. he does not thereby become
a police officer within the meaning of s. 25 of the Indian Evidence Act,
and the statement of an accused person recorded by him is not hit by that
sec:lion.
(704 B-C, F-GJ
Raja Ram Jaiswal v. State of Bihar, (1964] 2 S.C.R. 752 and NQ/loo
Sheikh Ahmed v. Emperor, (1921) I.L.R. 51 Born. 78, distinguished.
State of Punjab v. Barkat Ram., (1962) 3 S.C.R. 338, relied on.
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B. J. SAVANT v. MYSORE (Wanchoo, J.)
699
Radha Klshun Marwari v. King-Emperor, ( 1933) I.L.R. 12 Patna 46,
referred to.
CRIMINAL APPELLATE
JURISDICTION: Criminal 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.

## Text

BADKU JOTI SAVANT
I'.
STATE OF MYSORE
March I, 1966
[P. B. GAJE1'DRAGADKAR, C. J .• K. N. WANCHOO,
M. l-IIDAYATULLAll, J.C. SHAH AND
S. M. SJKRI, JJ.)
Sta Customs Act (8 of 1878), s. 167(81)-0ffence under-Offender
whether must be directly concerned in the ilnport of smuggled gofd.
Central Excise and Salt Act (I of 1944), s. 21-Deputy Superintendent of Customs and Excise given certain powers of an 'officer-In-char~
of a police station'-Such officer 1vhe1her a police officer lvithiti the nieaning of Indian Evidence Act (I of 1872), s. 25.
The appellant who lived in a village near Goa was found in possession
of contraband gold.
He was prosecu1ed under s. 167 ( 81 ) of the Sea
Customs Act read with s. 9 of the Land Customs Act (9 of 1924). The
trial Magistrate convic1ed him but lhe Sessions Judge relying on the decision of the Calcutta High Court in Sitaram Agarwala's cue acquitted
him. The High Court of Mysore, in appeal against the acquittal, considered the evidence and relying, inter a/ia, on the statement made by the
apP.ellant to the Deputy Superintendent of Customs and Excise held him
guilty.
With certificate the appellant came to this Court.
The questions
that fell for consideration were : ( i) whether the view taken by
the
High Court differing from the view taken by the Calcutta High Court in
Sitaram Agl1.rwa/a's case with respect to the interpretation of s. 167(81)
was correct, and (ii) whether the statement made by the appellant to the
Deputy Superintendent of Customs & E.cise was admissible in view of
s. 25 of the Indian Evidence Act.
HELD : (i) The High Court was right in not following the view of
the Calcutta High Court in Sltaram Agarwala's case, the correct view a..
to the interpretation of s. 167(81) 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 Cu.rtomr v.
Sitararn
Agarwal, (1966] 2 S.C.R, I, followed.
Sltaram Agarwal v. State. (1962] Cr. L.J. 43, disapproved.
(ii) The Central Excise and Salt Act, 1944 does not confer all tho
powers of a police officer on Central Excise Officers. The powers conferred on them bys. 21(2) of the Act are only for the purpose of inquiry
under s. 21 (1); they would not entitle the said officers to file a chargesbeet under s. 173 of the Code of Criminal Procedure. Therefore even
though a Central Excise Officer may have when making enquiries for
purp06e8 of the Act, powers which an officer-in-<:hargo of a police station
bas when investigating a cognizable offence. he does not thereby become
a police officer within the meaning of s. 25 of the Indian Evidence Act,
and the statement of an accused person recorded by him is not hit by that
sec:lion.
(704 B-C, F-GJ
Raja Ram Jaiswal v. State of Bihar, (1964] 2 S.C.R. 752 and NQ/loo
Sheikh Ahmed v. Emperor, (1921) I.L.R. 51 Born. 78, distinguished.
State of Punjab v. Barkat Ram., (1962) 3 S.C.R. 338, relied on.
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B. J. SAVANT v. MYSORE (Wanchoo, J.)
699
Radha Klshun Marwari v. King-Emperor, ( 1933) I.L.R. 12 Patna 46,
referred to.
CRIMINAL APPELLATE
JURISDICTION: Criminal 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
s. 167 (81) of the Sea Customs Act (No. 8 of 1878) read with s. 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 oflndia 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 .fonnd. The weight of the
gold bars was. 343 tolas.
On November 30, 1960, the appellant was arrested and interrogated 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 morning 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 he had kept them in his house. As the gold was foreign gold

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B· J. SAVANT v. MYSORE (Wanchoo, /.)
701
that the appellant would be guilty within the meaning of s. 167 (81)
of the Sea Customs Act.
This leaves only the second question, and it has been ur1o1ed
on behalf of the appellant that a Central Excise Offi~er under the
Central Excises and Salt Act, No. l of 1944 (heremafter referred to as the Act) is a police officer within the meaning of those
words in s. 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 Custm,ns
Act, he was still a police officer, and the statement made to him
by the appellant on November 30, 1960 which is in the nat'!lre of
a confession would be inadmissible under s. 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 v.
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 s. 25 of the Evidence Act. The appellant however
relies on a later decision of this Court in Raja Ram Jaiswa/ v. State
of Bihar(Z) where by majority it was held that an excise officer
under the Bihar and Orissa Excise Act (No. 2of1915) wa~ a police·
officer within the meaning qf s. 25 of the Evidence Act.
There has been difference of opinion among the High C01arts.
in India as to the meaning of the words "police officer" used in
s. 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 Nano<>
Sheikh Ahmed v. Emperor('). The other view which may be
called the narrow view is that the words "police officer" in s. 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 Radh~
Kishun Marwari v. King-Emperor(•).
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 Ahmed(') is the correct view and that the view of the Patna High Court in Radha
Kishun Marwari(4) is not correct. On the other hand it has been
H
urged on behalf of the State that the view taken by the Patna High
(I) [1962] 3 S.C.R. 338,
(2) [1964) 2 S.C.R, 752.
(3) [1927] I.L.R. SI Born. 78.
(4) [1933] I.L.R, IZPatoa 46.
MllSup.C.I./66-13
702
SUPREME
COURT
REPOlt'l'S
[1966] 3 S.C.R.
Court in Radha Kislzu11 Manmri(') 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 0n th~ broad view, a Central Excise Officer
under the Act is not :. police officer, it is unnecessary to express
a final opinion on the two views on the meaning of the words
"police officer" in s. 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
fipd
upto Rs. 2,000 or both where a person (a) contravenes any
of the provisions of a notification issued under s. 6 or of s. 8 or
of a rule made under cl. (iii) of sub-section (2) of s. 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 els. (a) and (b) above. Under s. 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 reaiOnable 'distance, to the officcr-in-<.:harge 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
-0f their main function of levy and collection of duty on excisable
goods.
Strong reliance has however been placed on behalf of the
appellant on s. 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
(l) (1933] 1.L.lt. 12 htna 46.
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B. J. SAVANT v. MYSORE (Wanchoo, J.)
703
arrested to a Magistrate, the Central Excise Officer shall
proceed to inquire into the charge against him.
.
(2) For 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 s. 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 s. 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-s. (I) which gives power to
a Central Excise Officer to whom any arrested person is forwarded
to inquire into the charge against him. Thus under s. 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-s. (2)of s. 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 s. 173 of the Code
of Criminal Procedure. Under s. 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 example, under
s. 9 of the Act. Thus though under sub-section (2) of s. 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-s. (1) of s. 21. Section 21 is in terms different from s. 78(3) of the Bihar a_nd Orissa ·
Excise Act, 1915 which came to be considered in Raja Ram Jaiswcil' s
704
SUPREME
COURT
REPORTS
(1966] 3 S.C.R.
case(') 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 s. 21
is on par with the provision in s. 78(3) of the Bihar and Orissa
Excise Act. All that s. 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 s. 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 considers. 21 in the set•
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ting of s. 14 of the Act, it would become clear that the enquiry
contemplated under s. 21(1) is in substance different from investigation pure and simple into an offence under the Code of Criminal
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Procedure. It is not necessary to decide whether the enquiry
under s. 14 must also include enquiry mentioned ins. 21 of the Act.
Apart from this argument we are of the opinion that mere conferment of powers of investigation into criminal offences under s. 9 •
of the Act does not make the Central Excise Officer a police officer
even in the broader view mentioned above. Otherwise any
E
person entrusted with investigation under s. 202 of the Code of
Criminal Procedure would become a police officer.
In any case unlike the provisions of s.
78(3) of the Bihar
and Orissa Excise Act, 1915, s. 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
lo be a police. station. All that s. 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 docs not thereby become a police officer even
if we give the broader meaning to those words in s. 25 of the Evi-
'1ence 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 RamJaiswals' case( I)
taking even the broader view of the words "police officer" in
s. 25 of the Evidence Act. We are of opinion that the present case
is more in accord with the case of Barkat Ram(2). In this view
(I) [1964) 2 S.C.R. 7S2.
(2) [1962] 3 S.C.R. 338.
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B· J, SAVANT v. MYSORE (Wanchoo, !.)
705
of the matter the statement made by the appellant to the Deputy
Superintendent of Customs and Excise would not be hit by
s. 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of s. 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 s. 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 s. 25 of the Evidence Act the appellant's statement is admissible. It is not ruled out by anything in s. 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.