# ILLIAS v. COLLECTOR OF CUSTOMS, MADRAS

- **Citation:** [1969] 2 S.C.R. 613
- **Court:** Supreme Court of India
- **Decided:** 1968-10-31
- **Case number:** Criminal Appeal No. 45 of 1967
- **Bench:** J. C. Shah, V. Ramaswam!, G. K. Mitter, K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/illias-v-collector-of-customs-madras-4573
- **Pages:** 10

## Headnote

.
Evidence Act (I of 1872), s. 25-Police officer-If customs officials
und£r Customs Act 52 of 1962 are police officers-Test for determining.
The appellant along with others was charged with various offences
relating to traosport of gold.
Their confessional statements recorded by
customs authorities under ss. 107 aod 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 s. 25 of the Evidence Act,
HELD : Under Customs Act, 1962, 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under the repealed Act namely, the Sea Customs Act, 1878. For example,
under s. 104(3) 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 s.
107 a customs
officer empowered by the Collector of Customs can require any perscn
to produce any document, which power is similar to those exercisable
by a police officer under ss. 160 and 161, Cr. P.C. Under s. 105, if the
Assistant ·collector of Customs has reason to believe that any goods liable
to confiscation are secreted in any place be may authorise any customs
officers or may himself search for the goods.
But, customs officers have
not been invested with ·an the powers which an officer in charge of a
police station can exercise under Chapter XV, Cr. P.C. The ptawers conferred do not include the power of
submittiilg a charge sheet
under
s. 173, Cr. P.C., either expressly or by necessary implication. Therefore,
in order to enable a magistrate to take cognizance of an offence under
the Customs Act, (the offences under the Act are non-cognizable),
the
customs officer will have. to file a complaint before the ma~istrate under·
s. 190(a), Cr. P.C .. and cannot, like a police officer, submit a report
under s. 190(b). Hence, even though the customs officers have been invested with 1nany of the oowers which an officer in charge of a police
station e~ercises when invec.:tigatine a cognizable
offence. he does
not
thereby become a police officer within the meaning of s. 25 of the Evidence Act and so the confessiorial statements made bv accused person~
to customs officials would be admi">">ible in e,vidence again">t them.
[617 C-D; 618 B-C, F-G; 621 G-D; 622 G-D]
Ramesh Chandra Mehta v. Stote of West Benoa/. [1969] 2 S.C.R. 461
and Dad,v Adarii Fatckia v. K. K. G·rrnoulv, A.i::stt Cnllertor of Customs &
Anr., Cr. A. No. 46 of 1968 dated October 18, 1968, followed.
State of Punjab v. Barkat Ram.
[19621 3 S.C.R. 338, Raja Ram
faiswa/ v. State of Bihar, [19641 2 S.C.R. 752. Badku Joti Savant v. State
of Mysore, [1966] 3 S.C.R. 698 and P, Shankar
Lal & Ors. v. Asstt.
Co/Z.ctor of Customs,
Madras, Cr. As.
Nos. 52 &
104/65
dated
12-12-1967, referred to.
614
SUPREME COURT REPORTS
[ 1969] 2 S.C.R.

## Text

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ILLIAS
v.
COLLECTOR OF CUSTOMS, MADRAS
October 31, 1968
613
[J. C. SHAH, V. RAMASWAM!, G. K. MITTER, K. S. HEGDE
AND A. N. GROVER, JJ.]
.
Evidence Act (I of 1872), s. 25-Police officer-If customs officials
und£r Customs Act 52 of 1962 are police officers-Test for determining.
The appellant along with others was charged with various offences
relating to traosport of gold.
Their confessional statements recorded by
customs authorities under ss. 107 aod 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 s. 25 of the Evidence Act,
HELD : Under Customs Act, 1962, 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 Sea Customs Act, 1878. For example,
under s. 104(3) 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 s.
107 a customs
officer empowered by the Collector of Customs can require any perscn
to produce any document, which power is similar to those exercisable
by a police officer under ss. 160 and 161, Cr. P.C. Under s. 105, if the
Assistant ·collector of Customs has reason to believe that any goods liable
to confiscation are secreted in any place be may authorise any customs
officers or may himself search for the goods.
But, customs officers have
not been invested with ·an the powers which an officer in charge of a
police station can exercise under Chapter XV, Cr. P.C. The ptawers conferred do not include the power of
submittiilg a charge sheet
under
s. 173, Cr. P.C., either expressly or by necessary implication. Therefore,
in order to enable a magistrate to take cognizance of an offence under
the Customs Act, (the offences under the Act are non-cognizable),
the
customs officer will have. to file a complaint before the ma~istrate under·
s. 190(a), Cr. P.C .. and cannot, like a police officer, submit a report
under s. 190(b). Hence, even though the customs officers have been invested with 1nany of the oowers which an officer in charge of a police
station e~ercises when invec.:tigatine a cognizable
offence. he does
not
thereby become a police officer within the meaning of s. 25 of the Evidence Act and so the confessiorial statements made bv accused person~
to customs officials would be admi">">ible in e,vidence again">t them.
[617 C-D; 618 B-C, F-G; 621 G-D; 622 G-D]
Ramesh Chandra Mehta v. Stote of West Benoa/. [1969] 2 S.C.R. 461
and Dad,v Adarii Fatckia v. K. K. G·rrnoulv, A.i::stt Cnllertor of Customs &
Anr., Cr. A. No. 46 of 1968 dated October 18, 1968, followed.
State of Punjab v. Barkat Ram.
[19621 3 S.C.R. 338, Raja Ram
faiswa/ v. State of Bihar, [19641 2 S.C.R. 752. Badku Joti Savant v. State
of Mysore, [1966] 3 S.C.R. 698 and P, Shankar
Lal & Ors. v. Asstt.
Co/Z.ctor of Customs,
Madras, Cr. As.
Nos. 52 &
104/65
dated
12-12-1967, referred to.
614
SUPREME COURT REPORTS
[ 1969] 2 S.C.R.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
45 of 1967.
Appeal by special leave from the judgment ai;id. order .d_a~ed
September 9, 1966 of the Madras High Court m Cnmmal Rev1S1on
Petition 13 50 of 1965.
A
N. H. Hingorani, R. Jethamalani and K. Hingorani, for the
n.
appellant.
Niren De, Solicitor-General, N. S. Bindra, R. H. Dhebar and
S. P. Nayar, for the respondent.
K. R. Chaudhuri and K. Rajendra Chaudhuri, for the intervener.
The Judgment of the Conrt 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
Customs Act 1962 (Act 52 of 1962), hereinafter called the "New
Act'', were admissible in evidence at their trial for the alleged
offences under s. 120B of the Indian Penal Code read with s. 135
of the new Act and ss. 23(1A) and 23B of the Foreign Exchange
Regulation Act 1947 and under Rule 131-B of the Defence of India·
Rules.
The facts need not be stated in great detail.
A complaint was
laid by the Collector of Customs, Madras, against 10 persons for
having committed the above offences.
The complaint related to
an occurrence which involved transport of 750 bars of gold each
weighing 10 tolas 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 s. 25 of the Indian
Evidence Act.
The second objection was that the investigation
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ILLIAS v. COLLECTOR (Grover, J.)
6 J 5.
conducted by the customs officer must be deemed to be under
Chapter XIV read withs .. 5(2) of the Criminal Procedure Code
and the statements thus became inadmissible under s. 161 read
with s. 162 of the Code.
The third objection was based on Art.
20 ( 3) 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 import;ince :
"Are statement recorded by enquiring officers of the
Customs Department urnfor Section 107 ( 108) of the
Customs Act, 1962, 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) Art. 20(3) 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 Art.
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 m_ake 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 th~ new Act that statements recorded by the customs
authorities of a confessional nature would be hit by the provisions
of s. 25 of the Evidence Act.
In State of Punjab v. Barkat
Ram,(') it was held by the majority that customs officers were ;10t
police officers for the purpose of s. 25 of the Evidence Act and the
statements to customs officers were admissible in evidence at the
trial of persons accused of offences, inter 11/ia. under the Sea Customs Act, 1878, hereinafter called the "old Act". It has been submitted that a later decision on this Court in Raja Ram Jaiswal v ..
State of Bihar( 2 )
which related to the question whether
an Excise
Inspector
exercising
powers
under
Jie Bihar
(1) [19621 3 S.C.R. 338.
(21 [196412 S.C.R. 752
·616
SUPREME COURT REPORTS
[1969] 2 RCR.
.& Orissa Excise Act was a police officer for the pur'.
poses of s. 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 v. State of Mysore(') 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
case ( 2 ) 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.
v. Asstt. Collector of Customs, Madras,( 3 ) it has bee,n' reaffirmed that there is no conflict between the
cases
of Raja Ram
.Jaiswa/(4 ) and Barkat Ram('), the former being distinguishable
from the latter.
Before the previous pronouncements of this Court are discuss-
·ed it is necessary to compare the relevant provisions of the new
Act and the old Act.
Under the old Act s. 173 provided that persons reasonably
·suspected of offences under that Act might be arrested by any
officer of customs or other persons duly employed for the preven-
·tion of smuggling. Under the new Act according to s. 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 s. 135, he
may arrest such person.
As regards the power to search, Chapter
XVII of the old Act contained the relevant provisions.
Section
169 conferred the power on a customs officer to search, on a
reasonable suspicion.
Under s. 170 when any officer of customs
was about to search any person under the provisions of s. 169 such
person could require that officer to take him, previom 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 s. 100
confers the power to search suspected persons entering or leaving
India. Section 102 contains provisions analogous to s. 170 of the
old Act with some minor differences.
Under the old Act every
person arrested on the ground that he had been guilty of an offence
under that Act had to be forthwith taken to the nearest magistrate
or customs-collector, (s. 174). Under the new
Act s. 10412)
provides that every person arrested shall, without unnecessary delay,
be taken to a magistrate. Lastly s. 171A of the old Act conferred
·power on customs officers to summon persons to give evidence and
(1) [\966] 3 S.C.R. 608.
(2) [!962] 3 S.C.R. 338.
•0) Cr. As. 52 & 104/65 decided on 12·12·1967.
(4) [1954] 2 S.C.R. 752.
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ILLIAS v. COLLECTOR (Grover, J.)
617
produce documents.
Under the new Acts. 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 po;inted 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-s. ( 3) of s. 104.
It is provided thereby that where an officer of customs has arrested
any perwn under sub-s. ( 1) he shall, for the purpose of releasing
such person, on bail or otherwise, have the same power and
~
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-s. ( 4), however, makes an offence under the new Act noncognizable notwithstanding anything contained in the Code of
Criminal Procedure (the offences under the old Act were also noncognizable).
In the old Act there was no provision conferring
the power of re!easing 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>
s. 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 b_e observed at once that the word "otherwise" clearly relates to·
releasmg 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 ins. l 71A.
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
.s 18
SUPREME COURT REPORTS
[1969] 2 S.C.R.
to state the truth upon ~n'y subject respecting which he was examined -0r 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 ss.
193 and 228 of the Indian Penal Code.
Under the new Act the
enquiry can be of two kinds.
Under s. 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
s. 17 lA of the old Act, the two sections being almost similar in
language.
The contention on behalf of the appellant is that s. 107
.o[ 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
s. 160 of the Code can, by an order in writing, require the attendan~e
·Of any person within the limits'of his own or any adjoining station
and he can under s. 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 thats. 107 is similar
toss. 160 and 161 and the customs officer conducting an enquiry
·Or investigation relating to offences under the new Act enjoys the
s.ame power as a police officer making an investigation under
Chap\er 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 s. 171A of the old Act
that this Court in Barkat Ram's(') 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
s. 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 s. 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 obta\ri a warrant from a magistrate in accordance
. with s. 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 tlie customs officers should be excluded under s. 25
.of the Evidence Act on the ground that these officers are police
.
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ILLIAS v. COLLECTOR (Grover, J.)
619
officers within the meaning of that section.
In the majority
judgment in Barkat Ram's(') 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 fine£.
( 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 s. l 71A and
there is 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 him is deemed to
be a judicial proceeding for the purpose of ss. 193 and 228 of the
Indian Penal Code or for any other purpose.
Adverting to Raja Ram Jaiswal's( 2 ) case it is significant that
by virtue of s. 77 ( 2) read with s. 78 ( 3) 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's(') 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 Sea Customs
Act 1878; 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) [1962] 3 S.C.R. 338.
(2) [1964] 2 S.C.R. 752.
620
SUPREME COURT REPORTS
. [1969] 2 S.C.R.
but he had no power to investigate into an offence und.er s. 156 of
. the Code. Even though some of the powers set out m Chapter
·xvu of the Sea Customs Act were analogous to those of the ponce
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 s. 190 of the
Code with a view that cognizance of the offence be taken by a
magistrate. It was then said at p. 7 66 :
"The test for determining whether such a person is
a 'police officer' for the purpose of s. 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 s. 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
Jaiswal(') came up for discussion in the third of series of these
cases, namely, Badku Joti Savant v. State of Mysore( 2 ).
The
appellant there had been found in possession of contraband gold.
He was prosecuted under s. 167 ( 81) of the Sea Customs Act
read with s. 9 of the Land Customs Act.
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 s. 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 Sea Customs
Act, 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 s. 25 of the Evidence Act. One view was that those words
.must be construed in a broad way and all officers would be police
(!) [19641 2 S.C.R. 752.
(2) [1966] 3 S C.R. 698.
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ILLIAS v: COLLECTOR (Grover, J.)
62 l
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 m s. 25 meaint 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 s. 21 it
was observed that a police officer for the purpose of cl. (b) of s.
190 of the Code of Criminal Procedure could only be one properly so ca)Jed. A Central Excise Officer had to make a complaint under cl. (aJ of s. 190 of the Code to a magistrate to
enable hin! to take cognizance of an offence committed under the
special statute.
The argument that a Central Excise Officer under
s. 21 ( 2) 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 thos<:> words in s. 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 s. 173 of the Code. Raia Ram
Jaiswal's(1) case was distinguished on the ground thats. 21 of the
Central Excise Act was in terms different from s. 78 (3) of the
Bihar & Orissa Excise Act, 1915 which provided that for the purpose of s. 156 of the Code of Criminal Procedure the Excise
Officer empowered under s. 77 ( 2) 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 s. 21 provides is that for the purpose of
his enquiry, a Central Excise Officer shall have the
powers of an officer-in-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 Criniinal Procedure, for unlike the Bihar & Orissa Excise Act the
Central Excise Officer is not deemed to be an offic~r-in
charge of a police station."
It was .r~ite~ated t_hat the appellant could not take advanta e
of th; ~ec!Slon m Raia Ram Ja_iswal's(') case and that Bark~t
Ram s ( ) ca~e was rn,?r~ apposite.
The ratio of the decision
m Badku Jotr ~avant( ) ~s that even if an officer under the special
Act has been mvested with most of the powers which an officer-
(!) [l964j 2 S.C.R. 752.
(2) [1962] 3 S.C.R. 338_
(3) [1966] 3 S.C.R. 698.
L4 SupC!/69-7
622
SUPREME COURT REPORTS
[1969) 2 S.C.R.
in-charge of a police station exercises when investigating a cogniz·
able ottence he does not thereby become a police officer within
the meaning of s. 25 of the Evidence Act unless he is empowered
to file a charge sheet under s. 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 s. 25 of tl1e Evidence Act.
In two recent
decisions of this Court in which the judgments were delivered only
on October 18, 1968 i.e. Ramesh Chandra Mehta v. State of
West Bengal(') and Dady Adarji Fatakia v. K. K. Ganguly, Asstt.
Collector of Customs & Anr.,( 2 ) the view expressed in Barkat
Ram's(') 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 san1e.
This is what has
been said in Dady Adarji Fatakia's( 2 ) case :
"For reasons set out in the judgment in
Cr.
A.
27/67 (Ramesh Chand Mehta
v.
State of West
Bengal) and the judgment of this Court in Badku Joti
Savant's( 4 ) case, we are of the view that a Customs
Officer is under the Act of 1962 not a police officer
within the meaning of s. 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
s. 25 of the Indian Evidence Act." .
This appeal fails and it is dismissed.
V.P.S.
Appeal dismissed.
(!) [196q] 2 S.C.R. 461.
(2) Cr. Appeal No. 46of1968 decided on 18-10-1968.
(3) [1962] 3 S.C.R. 338.
(4) [1966J 1 S.C.R. 6QR
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