# J~GJ Payart Lol v. Slak of Pu.job Sarl:D~ J

- **Citation:** [1962] 3 S.C.R. 338
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** J. L. lure, K. SUDBA. RAO anu RAOUUDAlt D.U.AL
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-gj-payart-lol-v-slak-of-pu-job-sarl-d-j-2450
- **Pages:** 30

## Headnote

CtUtom.t Officn-lf a puliu officer-Land CIJ;1lorMVJ/tT~«I tmtlu
IAe Stu CJUionl$ Acl-Oo11/e••io111 ~
to
Ov.atom• Offi~r~- C07lt;c.lion on the ba~ti& of nu:A cOIIju&ioMValidity-L«nd C••:OIM Act, /!J2l (19 of l !JU), &.9(1)-Foreig•
Ezcloa111Je Rtgululic-16 Act, 19-17 (7 of l!Jli) , •· 23(1~ta
Cutllm14 ~ct, ·I87S(S vf 1378), ''· G, JG7(S)-I'ulice Acl, 1S61
(5 of lliOI), 1. 1-bldian Evide11ce Ac.t, llil2 (I of I.Y72) 1. 25.
On receipt or information that some golu would be
t.muggled from Paki.stan to India by the engine crew of the
train coming from Lahore, the Land Cu3toms staff searched
the engine on the arrival of the train at Amritsar and
recovered a quantity of gold kept hidden underneath the toal
In the tender of the engine. The driver of the~ngine, the
relpondcnt, who was arr~ted and taken to the Customs O!l'icc
for luterr01,-ation, m.atle statement~ before the CU3toms offkials
admittin~ bia · guilt. On the complaint of the Assistant
Collector of Land CLC!tonu, the respondent was tried !.:Jt
offencea under s. 23( I) CJf the Foreign Exchange Regulation
Act, 19-17, and a. 161(8) of the Sea Cuatums Act, 1878, and
convlc~ed by th~ Maglstrale, _but on re\·blon the High Co~t
of PunJab set '-Side the conv1c~on on the grounds iltltt ~l~
that Cu.swm, Omccrs were f ohce otrlcc:rs within the xnc:arung
of tlat capreulon in a. 25 o the Ind i~W Evidence Act, 1872,
. .,_ . ~ --.. -
· ~ ··~ .. ~ - . ~-
\
l
'
-
-
... -
3 S.C.R. SUPREME OOURT REPORT~
339
tt-.at confessional statements made to them were consequently
inadmissible in evidence and that· if they be excluded from
consideration there was no other evidence to sustain the
coviction.
Held (Subba Rao, J,, di.s.sentiny), that Customs Officers
are not police officers for the purpose of s. 2j of the Indian
Evidence Act, 1872, and that the conviction of the respondent
on the Lasis of his statements to the Customs officers was
maintainable.
Per Kapur and Raghubar Dayal, Jj.--The duties of
Customs officers are very·· inuch different from those of the
police officers and their possessing certain powers, which
may have similarity with those of police officers, for the
purpose of detecting the smuggling of goods and the persons
responsibe for it, would not make them police officers.
Per Subba Rao, J .--C~stoms officers under the Sea
Customs Act, 1878, have the powers, and they also discharge
the functions of police officers and, therefore, they are police
officers fur the purpose of the Indian Evidence Act, 1872, in
so far as they exercise or discharge such powers and functiom.
A customs officer is a police officer qua his police functions,
and a confession made to him cannot be provided against a
person accused of an ·offence,
·.
Ca~e-law Reviewed. ·
CRil\UNAL APPELLA'l'E JumSDICTION :Criminal
Appeal No. 45 of 1959.
Appeal hy special leave from the jll(lgment
and order dated Octoper 9, 1958, of the Punjab
High Court in Criminal Revision No. 599 of 1958.
H. R. Khcmn(~ and JJ. Oupt(h for. the appellant.
Gopal Singh, for tbe respondent.
1061. August 30. The judgment of J. L. Kapur
and Raghubar Dayal, JJ.,
was
delivered by
Raghubar Dayal, J. K. Subba l~ao, .J., delivered a
separate judgment.
196"1
The Stat~ ef Pun}11b
v.
Barkae Rtirn
RAGHUBAR DAYAL, J.-'rhis appeal, by special
RaghubarDt~yr~lJ.
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.
}g6J
t'M Stal1 oj PunjtJb
v.
Barf«4.R""!
&qll®ar Dayal J.
,,.,
....... ... .... - ..
340
SUPREME COURT REPORTS
[1962]
. Ba.rka.t. Ram, respondent in thi.<i appeal, was
the engine diiver of 78 Down Train which reached
.A.mritsar 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 Atta.ri an

## Text

_Characters 0–39,627 of 60,030. This is a partial read: ask again with offset=39627 for what follows._

t I
j
t
J~GJ
Payart Lol
v.
Slak of Pu.job
Sarl:D~ J .
.
338
SUPREME COURT lth'POI~TS
[19G2J
bas power to rc1mmmon and examine a. witnc!!V
furthnr. We eonnot Bpecu\atu what tho ·special
J uu"e who tries tho case afresh will think fit to do
if s.
0
3GO of the Code is now applicable to the vr.oceedings before him. For all these consiucmtions, we
think it fit to scn<.l the case back for retrial.
We therefore, c.~.llow ·tho appeal and set. asid~
tho conviction of the appellant and the t!entenco
passed on him. 'fh~ case \Vill nQw go Lack for retrial
a. ~cording to Jaw.
Appeal allowt:d
THE STATE 01" PUNJAB
v.
DARI~A 'f RA~l
(J. L. lure&, K. SUDBA. RAO anu
RAOUUDAlt D.U.AL JJ.)
CtUtom.t Officn-lf a puliu officer-Land CIJ;1lorMVJ/tT~«I tmtlu
IAe Stu CJUionl$ Acl-Oo11/e••io111 ~
to
Ov.atom• Offi~r~- C07lt;c.lion on the ba~ti& of nu:A cOIIju&ioMValidity-L«nd C••:OIM Act, /!J2l (19 of l !JU), &.9(1)-Foreig•
Ezcloa111Je Rtgululic-16 Act, 19-17 (7 of l!Jli) , •· 23(1~ta
Cutllm14 ~ct, ·I87S(S vf 1378), ''· G, JG7(S)-I'ulice Acl, 1S61
(5 of lliOI), 1. 1-bldian Evide11ce Ac.t, llil2 (I of I.Y72) 1. 25.
On receipt or information that some golu would be
t.muggled from Paki.stan to India by the engine crew of the
train coming from Lahore, the Land Cu3toms staff searched
the engine on the arrival of the train at Amritsar and
recovered a quantity of gold kept hidden underneath the toal
In the tender of the engine. The driver of the~ngine, the
relpondcnt, who was arr~ted and taken to the Customs O!l'icc
for luterr01,-ation, m.atle statement~ before the CU3toms offkials
admittin~ bia · guilt. On the complaint of the Assistant
Collector of Land CLC!tonu, the respondent was tried !.:Jt
offencea under s. 23( I) CJf the Foreign Exchange Regulation
Act, 19-17, and a. 161(8) of the Sea Cuatums Act, 1878, and
convlc~ed by th~ Maglstrale, _but on re\·blon the High Co~t
of PunJab set '-Side the conv1c~on on the grounds iltltt ~l~
that Cu.swm, Omccrs were f ohce otrlcc:rs within the xnc:arung
of tlat capreulon in a. 25 o the Ind i~W Evidence Act, 1872,
. .,_ . ~ --.. -
· ~ ··~ .. ~ - . ~-
\
l
'
-
-
... -
3 S.C.R. SUPREME OOURT REPORT~
339
tt-.at confessional statements made to them were consequently
inadmissible in evidence and that· if they be excluded from
consideration there was no other evidence to sustain the
coviction.
Held (Subba Rao, J,, di.s.sentiny), that Customs Officers
are not police officers for the purpose of s. 2j of the Indian
Evidence Act, 1872, and that the conviction of the respondent
on the Lasis of his statements to the Customs officers was
maintainable.
Per Kapur and Raghubar Dayal, Jj.--The duties of
Customs officers are very·· inuch different from those of the
police officers and their possessing certain powers, which
may have similarity with those of police officers, for the
purpose of detecting the smuggling of goods and the persons
responsibe for it, would not make them police officers.
Per Subba Rao, J .--C~stoms officers under the Sea
Customs Act, 1878, have the powers, and they also discharge
the functions of police officers and, therefore, they are police
officers fur the purpose of the Indian Evidence Act, 1872, in
so far as they exercise or discharge such powers and functiom.
A customs officer is a police officer qua his police functions,
and a confession made to him cannot be provided against a
person accused of an ·offence,
·.
Ca~e-law Reviewed. ·
CRil\UNAL APPELLA'l'E JumSDICTION :Criminal
Appeal No. 45 of 1959.
Appeal hy special leave from the jll(lgment
and order dated Octoper 9, 1958, of the Punjab
High Court in Criminal Revision No. 599 of 1958.
H. R. Khcmn(~ and JJ. Oupt(h for. the appellant.
Gopal Singh, for tbe respondent.
1061. August 30. The judgment of J. L. Kapur
and Raghubar Dayal, JJ.,
was
delivered by
Raghubar Dayal, J. K. Subba l~ao, .J., delivered a
separate judgment.
196"1
The Stat~ ef Pun}11b
v.
Barkae Rtirn
RAGHUBAR DAYAL, J.-'rhis appeal, by special
RaghubarDt~yr~lJ.
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.
}g6J
t'M Stal1 oj PunjtJb
v.
Barf«4.R""!
&qll®ar Dayal J.
,,.,
....... ... .... - ..
340
SUPREME COURT REPORTS
[1962]
. Ba.rka.t. Ram, respondent in thi.<i appeal, was
the engine diiver of 78 Down Train which reached
.A.mritsar 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 Atta.ri and ot.her staff of the
Department surrounded th~ engine on its .urival at
Amritsar. 'rhe engine was searched a.nd a quantity
of gold was recovered, having been found lying
concealed underneath the coal in the front JJ&rt of
the coal tender in the engine.. The respondent was
further interrogated at the·Cu.stoms· Station and, a.tl a
result of further search, another quantity of gold
wa.s recovered from the rear pa:r;t of the coal tender.
A document, Ex. P.E., dated June ·5, 1957, was also
recovered. This document was !!hown to the respondent on June 9, 1957, and the respondent inscribed
on this document the note. Ex. P. Dl to the effect:
· u ••• the -letter is the se.me which TawaquaJ
Shah had given to ma yesterday. The same
to be delivered to Ghulam Mob d. who has
come from Paki.et&n and has stayed at Gra.nd
Hotel."
On June 9, 1957, Bru-kat Ram, thu respondent,
ma.de certain
other statflments, Ex . P. K., to
.Mano~&r Singh He<li, Inspector of Customs, stating
therem:
''As UBUa.l on the 8th June, 1957 I took
two bundles o~ Indian Currency fro~- Ghula.m
Mohd. at Amz1taar to Pakistan and when I
Lrought 65 ban of gold from Tawakal Shah,
from Pakistan, the CU8toms Officers rooovered
these 65 bnrs of gold from the engine at the
Railway Station, Amritaar. I had kept concealed these 6.5 Lara of gold in the engine in
tho I,re11ence of Shri Ram Murti and Shri
Jagan Nath, my two Firemen, at the Loco
Shad, Lahore. I waa to deliver this gold to
Ghulam Mohd. at .Amritaar,"
..
.. . .
I
I
l
as.c.R.
SUPREME COUlt'l' REPORTS
341
A second_
st~~.t.emcnt was made to the . same
Customs Inspector on Juno 17# W57, Ex. P. G. On
thia. occasion. too, he made a. similar statement,
addmg that he was to got Rs. 200 against the delivery of gold.
On the complaint of the Assistant Collector of
Land Customs, Amritsar, &rkat Ram wns tried for
offences punishable under s. 23 ( l) of the Foreign
Exchange Reguht.tion Act, 19-'7, and under s. 167(81)
of the Sea Custom.s Act, 1R78,. aa -amended .in
l 95.5. .He was oonvictecl by tho l\IaO'istra.te. The
conviction was confirmed· by the app~llate Court,
but was set aside . on r.ovision by the High Court
which J1elcl that Customs Officers were police officers
within the meaning of that expressioh ·in a. !?5. of
the Evidence Act, that confes::;iona.l statements
made to them wore consequently inadmissible in
evidence anl that if they be excluded from consideration, there wa.~ no other evidence to sustain the
c.onvirtion. It further held that s. ~7 of the Evidence Act did not apply to the facta o( the case, as
the recovery of gold was the result of search made
by the Customs Officers and not the result of interrogatio" the respondent. The State of Punjab has
filed t~ appeal ~gainst the acquittal order.
The only contention raised for the appellant in
the a.p}>('a.l is that ~he Customs Officers, to ~·hom the
confe81!ional stAtements were
made were not
police officers within the meaning of t·hllt expression
Ill a. 25 of th<' Evidence Act. It was oontendt>d thn.t
the mere fact t.ha.t powers to arrest certain persons,
to make acarchos and to record evidence h~ving a.
bearing on the alleged contra\'ontion of the legal
provisiona, are conforrt'd on <X"rta.in officers of the
?zstom.s Department, is not sufficient to make the~
·police officers' contemplated by s. 26 · of the Evtdence Act. t)Ven if it oo usumed correct. as hE~ld by
certain HiJV1 CoDrts that offic~rs on whom the
powen~ of the Officer~ in-charge of a Police StAtion
llnder Chapter XIV of the Code
of CrimiDal
1181
Th! Sl<!tt of Pi.njn.
v,
Bark;Jt R•JM
Rr19hubur D.>yal J.
1961
TheSiale of Punjab
v.
B~!.Krt Ram
Ragltubar Dayal J.
..
342
SUPREME COURT REPORTS
[I962J
Proccd~Re have boon conferred, were polioe officers
for the purp6se of R. 2!l of the EvidcncP Act..
The
contention for the respondent is that officers on
whom such powcrR arc confcrrrd arc really police
officers, though they arc not so called and that the
difference in nomcnclatur<> iR of no effect in con~i
clering th~m police officerR for the purpost's of R. 2:1.
'Ve arc of opinion that the ·contention for the
appellant is sound and that the Customs Offi~crs
are not police officcrR within tho meaning of thn.t
term in s. 25 of tho EYidencc Act .
'Ve may mention, at t11if! stage, t.hat the
Officers to whom the respondent made confessional
statements, were Land Customs Officers appointed
under the Lnnd Cuf:ltoms Act. Scetion 9(1) of this
Act reads:
aThe provisions oftho Sea Cust-oms Act,
1878 (Vfli of 1878), which are specified in
the Rchcdule, together with all notifications,
orders, mJeR
or forms
iRsued, made or
pre1cribed,
thereunder,
shaJI,
RO
far as
they are applicable, apply for tho pnrpoac
of the
l~,·v of dutios of lanrl
customR
under this Act in like manner M> they apply
for the purpose of the levy of dutieA of
customs on goods imported or <>xportNl hr
Rea. ,.
Among thefs('ction~ of t.hc Sen Customs Act.
made applirn6lo h~· sub-A. ( 1) of A. 9 of the J..anrl
Customs Act, are includNl all the sectionH
in
ChaptcrR XVI and XVIT of tht' Sea
Cm~tomA Act.
•
?'~z., AR. 167 to 193. In view of these provisions,
WC have really to conRider whether the Cu~toms
Officers under the Sea Customs Act., in view of
the various powers eon f~rred on them under the
Sea Customs Act, are polic(' officers contemplated
by R. 25 of the Evidence Act. If they are police
officers, tho Land CuRtoms Officers appointed under
the Land Customs Act will also he police officers in
view of Bimilar power being conferred on them.
.l
-
.~
3 S.C.R.
SUPREME OOURT REPORTS
343
Before we come to the interpretat1on of the
expression •police officer', we would like to express
what we consider to he the duties and powers of a
police officer and Qf customs officers.
The Police Act, 1861 (Act V of 186J),is described as an Act for the regulation. of police, awl is
thus an Act for the regulation of that grou.p of offiicers who come within the word 'po1ice' whatever
meaning be given to that word. The prea:p1ble 'of
the Act further says: •whe.reas it' is ~xpedi(mt to ~e
organise the police and to make it a more efficient
instrument for th~ prevention arid detection ·of
crime, it is enacted as follows'. This indicat.es that
the police is t.he i~strilment f9r the preve~tio~ and
detection of crime which can be said to be the main
object and purpose of having the police. Sections
23 and 25 lay down the duties of the police officers
and 8, 20 deals with the authority they C{tll exer~
cise. They can exercise suc.h authority as is prcivi~
ded for .a police officer tinder the Police Act and
any Act for regulating . criminal procedure. The
authority given to police officers must naturally be
to enable them to di~ohar_ge their duties efficiently.
Of the various duties mentjoned in s. 23, the I!!Ore
important duties are to collect and communiqate
intelligence affecting .the pu'9lic peace, to prevent
the commission of offenqes and public nuisances and
to detect an~l bring .offenders to justice and to apprehend an persons wJ:l.om the pol~ce . officer is legally
authorised to apprehend. It is cl~ar, therefore, i~
view of the nature of the duties imposed on ·the
police officers, the 'nature of the authority conferred
and the purpose of the polio~ Act, that the · powers
which the police officers enjoy are powers for· th'e
effective prevention and . detection of
crime in
order to maintain law and order.
The powers .o( custOil1S officer~ . are really not
for such purpose. Their powers ~re fqr_ the p.urpose
of checking the. sm,uggling qf goods 'arid the due
realisation of customs duties and to :determin6 'the
196i
'I'ht State o/Pun}~~
Y.
.
Bark,rRam
l'taghubar ·Dayal J.
1941
n. Stale •! hnjab
"·
Barlrtt.lRom
SUPREME OOURT REPORTS
[1962]
actioil to· be taken in the interests of thli 'levenucs
of ·the coWl try by way .of confiscation (){goods on
which no duty had beren pail! a.nd by imposing
penalties and fines.
·
Re!et:eilM to s~ 9 (l)le'P.the- Land CUstoms Act
may. be uaefully• made· u ·.this stage. It is aooorliing
to the provisions of this,sn.l:Peectibn th8t 'the proviaioort ~f the Sea Customs Act-and the orders, . rules
etc.., prescribed1therewlder,;A.pply•for the purpoe~ ·of
levy of duties of land ouatOms-under the Land • Customs Act. in like· manner· as they. apply for the
purpi::J86 of levy of: .duties of customs on ·goods
imported or: exported bJ sea. This makes it- cleAr
bha' the . provisions conferring ·varioUs-· powers on
the ~
Customs OfficerS are far ·the purpose of
le'Yying and· realisation of duties of customs on
goods and. that :tlmse powers are conferred on the
Land Cus~s · officers al!lo fbr the same purpose.
Apart- frolJ'. such An expreaaion in s. g· ( 1) of the
Land Customs Ac&~ there···are good
reaaonR .in
~Upport oC the :view< tha.t:the powera oon&rr6d on
bhe Cnatoms OffioeDS are.difrflle.nt ill' character from
.~ase of the police offieera for t~ .tle~<ition and
prev~io11: ·or .crime and thAt tM power.
'JG~lfun-ed
on .them ar~ mf8:ely for the purpoa& of eJl81U~ that
-dutiable good& do not erfl:Jer the ctountry without
payment 'of duty· add that artioles wh~~ .entry ill
prohibited • are noo brougb\ iQ. It ia with respect
to tll& deteotins &Od preTftnting of the smuggling
of goods a.lid!ft\reldq loes. to the CenttalRe:tenues
th.&tCoatom•Offioens·han been· ginct. the power to
search the property·llncl person a.Dd .to detain thoro
and to sttmmon persona to give evidenoe-in an en·
quiry with· respect ·to tho auuggling of goo&.
The preamble of tli~ S~& Customs Act. says :
''Whereas jt is expedient to consolidate and amend
the law r(:ll&ting to the l~vy of Sea Cn&toma-duties''.
PraotioaDy, all the provisions of the Act ar::e enacted
to &ehieTe this object.
Seo~on 167 gives /It long list
of ofl'en008,. but it.- ia to \le noti®d tha.t ll·ith the
....
c
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~-
---.
3S.C.R.
·suPREME COURT REPORTS
345
exception of certain offences, all the others are to
be dealt with by the Customs Officers in view of
s. 182. The Customs Officers are given the power to
confiscate, to fix the duty and to impose penalties
which can, in certain cases, be of enormous amounts.
The offences mentioned in s. 167, which a.re to be
dea1t ,,.ith by a Magistrate, are mostly of the type
in which the Customs Officers have nothing to
investigate. · Offences at items Nos. 23 to 28 are
with respect to certain acts committed by a pilot or
a master of a ves'ilcl.
The Customs staff has merely
to report the conduct for trial before a
~agistrate.
They have nothing to invt>stigate about it. Similarly
the offence at item 72 relates to a person's making
a falso declaration. Offences at items Nos. 74, 73
and 76 are with respect to the conduct of the Cus·
toms Officers themselves. Items Nos. 76-A, 76-B
a.nd 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 dttty. 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
~:toods and customs
duty, than with the offender.
-
Similar view was expressed by this Court in
Maqbool Hussain's Case(!).
It was said at p. 741 :
un is clear on a perusal ofthe above provisions that the powers of scorch, arrest and
detention are given to the Customs Authorities for the levy of sea customs duties an --
proyision is made at th~ same time for a
reference to the Magistrate in all cases where
(1) [!953] S.C.R. 730.
1961
The State of Punjab
v.
Barkat Ram
Raghubar Da}al J,
1961
Tht Stalt of PunJab
v.
Barkat Ram
Ra~hubar Da)'al ).
•
34~
SUPREME COURT REPORTS
[1062]
..
search warrants arc ne<'dcd and detention of
arrested person is required".
.4 ..
In Thonws /Jmw v. '/'he State of P-unjab C) it was
said:
('Thrre arc as manY~ 81 <'ntrics in the
Schedule to s. IG7, besi;I<'B thoso added latrr,
lmt eaeh one of thosf' ~I or more <>ntries,
though an offenee, being an act infi·inging
('ertain provisions of the sect.iom and rn lfB ~
undct· the A<:t, is not. a criminnl ofrenr.c ......
They {i.e., Cw;tomF Officen-1) have been only
given limitPd powers of f:;<·nr<'h.
Similarly,
thr)r have been giY<'ll }imitPd powNR to summon p~rsons to gi\·c <'\·idcnc:l' cr to produce
documents."
Further it waR CJosen.·ed at p. !!91 :
('It i:1 true tl1at the prtitionf'rs were d(·alt
with by the Collectc.r of Ccntml Exei~c a.nrl
Land Customs, fo1· the 'offeuce' of t::mugglinu;;
were found 'guilty', and u det<·rrent 'punishfll("Ht' "·n.s imposed upon them, but as ho had
. ~
not teen ,-t"'stcd with tlw power~:~ of a Magistrate or a. criminal court, his procccdiugs
ngair,Rt tlH• petitioners were in the nature of ""<.
Revenue prot~eeding~, with a. view to detecting
the infriugcment of the pro,·ision~ of the Sea
Cnstomw Act, und impo.sing pt·nalties when it
was found that they had lwen guilty of thoso
infringem<'nts.
Those penaltictl, the Coll<'ctor
had been em powered to im poRe in order not
only to pre\·cnt a. rccurrmH:<.' of ~u<.:h infringe- _?
ments, hut al~o to recoup the>
lm;~ of such
rr\'enue resulting from su<'h infringcm('nts.'·
\Yo arc therefore of opinion that the duties of the
Customs Officers are very much different. from thoso
of the poliee ofticers and that t.heir
pl)ssessing
certain powers, whieh may h:we similnrit.y with
those of police uflicers) for the purpose of detecting __ _
(I) [1959j Supp. 1 S.C.R. 274,289.
-
I~
-
3S.C.R.
SUPREME COURT REPORTS
347
the smuggling of goods and the persons responsible
for it, would not make them police officers.
There seems to he no dispute that a person
who is a member of the police foree is a police
0fficer. A person is a member of the police force
when he holds his office under any of the Acts
draling with the police. ':A person may he a mrmber
of the police in any otlwr country. Officers of the
police in the erstwhile Indian States and an officer
of the police of a foreign country have been helcl in
certain decided cases to be po1ice officrrs within the
meaning of s: 25 of the Evidence Act. There is no
denying that these persons are police officers and
are covered by that expression in s. 25. That
0xpression 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. 1 and ii
S!l.id to include all persons who shall be enrolled
under the Act. No doubt this definition i$ not
restrictive, as it uses the expression 'includes', indicating thereby that persons other than thoso
enrolled under that Act can also be covered hv the
word <police'.
·
Section!! 17 and 18 of the Police Act provi,Jc
for the appointm('nt 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 duti('s as the ordinary officera of the
police.
'
Section 21 also speaks of officers who are not
·3urolled as police officers and in such categories
mentions hereditary or orther 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. Iiurr·ibole (1) where a Deputy
Commissioner of police who was
actually a
(I) (187ti) I. L. R. I Cal. 207,
1961
The State of Punjab
v.
Barkat Ram
Raghubar Dayal J,
Jf61
7 ht S/alt of Punjab
v.
Barkat Ram
348
SUPREME COURT REPORTS
[1962]
police offic
1
cr antl was rnerely
1
invest
1
e
1
rl wbith ccrt
1
~in .4 •
Jfagisteria power:; was right y he ( to e a po tee
offi(·er within the meaning of thnt <>xprc>ssion in
8. 2!) of the E\·idrnce Art.
There has, howeycr, a.nsrn n di\·ergence of
opinion about officers on whom some powers
analogous to those of police ofTiccrs haYe been
conferred being police officers for the purpose of
s. 25 of the Eviuenf'c Ad. The view which favours
._.
their being held police officers, i:; hasetl on their
possessing powers whi('h are usually possessed hy
tho police and 011 the supposed intention of the
legi~lature at the time of the enadnwnt of s. 2:) of
the Eddence Ac:t to be that the exprrssion 'polie~
offic·er' should indudc every one who iii c-ngaged in
"'
the work of dct.eeting anrl preventing crime. 'l'hc oth('r •
view is ba.sccl on the plain meaning of tre expression and on the consirlemtion that the
ffi(~rc far.t
that an officer who, by no stretch of imagination
is a poliee oflicer, 1lues not become one merely
because r.ertain powers similar to qw pmri'r~ of a
police officer are conferred on l1im.
\Ve now refer to certain a~pcctR which lead ~
.
n~ to consider that the cxpressiou 'police oftieer'
haR not snrh u. wi<lr. meaning M to include prrsons
on whom certain police power!'l arc eonfe1Ted.
Tho
ohjcet of enacting s. 2;1 of tho Evidence Act,
who:st' pwvisious formerly forme<l part of the Codo
of Cl'iminal ProcC'rlurc, wa~ to <·xdude> from eviclen('e confc~:.;ions made to the reg1tlnr poli<'e which -"'-
ha<l a very bud reputation for t}w methods it
employed in inn:stiga.tion,
c~twl'ially in for<'ihly
extracting eonfes:-.iow-; with tl1c' object of ~~~curing
a conddion. The past <·ondnd of the
lllf~mbers
of the polieo •>t·ganiZ$1.tion justified the provision.
It is too mt!eh to suppose that tlw Lt'gi:-.Jatun~ di<l
intend that all persons, who may hnve to inve~ti-
·.
gate or arrest pt~rsou~ or ::!eize articles in pursuance --
of any particular law of which at the time it had~
no <.:onccption,
should ue
consiclerccl to be so
-~
-~·
..
-
3 S.O.R.
SUPREME COURT REPORTS
349
unreliable that any confession made to them must
be excluded just as a confession made to a regular police officer. If it could not contemplate the
later creation of offences or of agencies to take
action in respect to them under future legislation,
it could not have intended the expression 'police
officer' to include officers entrusted in future with
the duty of detecting and preventing smuggling
and similar offences with the object of safeguarding
the levying and recovery of Customs duties. If
t.he 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 i::Jharif v. Emperor (1) Mukerji, J.,
made the following observations in this connection,
at p. 630:
"As militating against the view which I
am inclined to take as stated above, two
points have been raised .......... And the other
(1) (1934) I. L. R. 61 Cal. 607.
1961
The State of Punjai
v.
Barkat Ram
Raghubar Dayal J.
1961
'1/u SttJtt of l'1V1jab
v.
BtJtlral Ram
350
SUPHE)lE COURT HEPOH1'S
[J9{12J
is that in seetion 25 of thP Act, in r<~i)prct of
an offil'er of the poliec, then~ is a pc•rRoU:ll
disability implied irrespectin· of tbe questio11
whether b(~ is holding an inn:Htiga.tion or not,
whiln no .such
di~aiJilitv <"·~n be said to hoYc
been intended in the <·<tse of au exciS(\ ofl1cer .
. . . . . . . . . And as regards the st'roud poiut, I need
only obs<'ITe that, wh('reas poliee oflircrs, by
reason of :srction 22 of Ad\' of 1861, are
always to Lc cnusidered ou duty for the
pmpose:s of the Act, all rn·<·Jllte ofiicers, 011
the othrr hand, are not police ofticcrs a11<l it
is only sueh of thPm as may Lc cxcreising the
puwrn; of poliec oflieers and only when
exerciFo:in~ 1'5U<'h po\H'r:> that they may be
regar·dcd as police officers."
f-:lim ilar \' iem; were expreSS(·d in JIN·alt i 111 , ••
E111.pcror(l) and P.ublir. Prosr'cutor v. Pamm(tsinPJ'eJ.
But, ill our opinion, merely because si~il:tr p<J\ren;
in regard tiJ de.te(•tiOll Of infraetj()j}S r.f Cu~t(Jlll~
laws hM·c be('n eunft·rrecl on Uffi<·<'rl'\ of t]H: ~u:-;tomP
Dnpartmt·nt as at·t· eonf<•t-rerl OJl Oilic·c·rs of the
Polict~ is not n suffteiL'IIt grounrl for hulcling th<.>m
to Lc police offieNS withiil thl' mean ill~ of;-;, 2.1
of the Evidellr'<.' ....\e:t.
Thl' pO\\'<·rs of ~o;ear('h etc.
conferrt'd on thr. formN ;1rr•, a:; w;ts obt:ieryeu in
1'honws J)c~nJ."8 Cast e), of a limited dw.ructor and
have a limited objvd uf safcguardi11g the rovcnuos
of the St..a te.
£t i:s ahw to be uotieed that the St\1, Customs
Act itself refer's to police ollicc:r in cuntradistinc:tion
to the Customs OHke:r.
Section
1~11 t•mpowor~; a
pol ice officor to seize artie IPs 1 iahlc to con1iseation
under the- Act, on suspicion that they had been
!)to len.
Sect ion IS-!
provides that
the officer
adjudging confi~ea tion sha II talw a.nd hold posses·
sion of the thinn confisrated anrl enry officer of
})Olice, on rNJH<'~t .of such ofliccr,. sha.ll, ;t~Ri8t him
in taking and holdmg such poRE;eR!:non.
lhts leave~
(l) A. I. R. 1944 lah. 57.
(2l A I. R. 1!.153 Mad. '117.
(3) [19.59] Supp. ! S.C R. ~·-
·• l
.4
4 j._
\
_...,..
3 s.c.n.
SUPREME COtlR'l' REPORTS
351
no room for doubt that a Customs Officer is riot
an officer of the Police.
Section 171-A of the Act
empowers the
Customs Officer to summon any person to give
evidence or to produce a document or any other
thing in any enquiry which he be making in connection with the flmuggling of any goods.
It is well-settled that the Customs Officer,
when they act under the Sea Customs Act to provent the smuggling of ~ouds by imposing confiscation and penalties, act judicially: Leo Roy Prey v.
The
S·uperintendent,
Distfict
Jc~il,
Amritsar(l);
Shewpujamai Jndrasanrai Ltd. v. 1'he Collector of
Oustorns(2).
Any enquiry under s.l71-A is deemod
to be a judicial proceeding within the meaning of
ss.l93 and 228, [ndian 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 tho
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.l93 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 for
a certain purpose, to be a person whoso record of
statements made to him could be suspect if such
statement be of a confessional nature.
It would be highly incongruous that most of
the offences under s.l67 be disposed of by the
Customs Officers themselves and that such confessional statements recorded by Customs Officers b3
good material for them to take action and to
(l) [1958] S.C. R. 822, 826.
(2) [1959] S. C. R. 821, 830.
'1961
T!u St«te of Punjd
v.
Barkat Ram
Raghr1bar Dayal J.
]fJ()J
Tilt Stolt of Pwljab
v.
lJttrkal Ram
,Q
352
SUPRE~IE COURT REPOirl;S
(I UG2]
}lclltl.liZe the offender to nuy <LlllUl!Ut of fine and
yet the same fltatenwnt~ he 'helcl to be not ;ulmi~
~iblc in eviden~e if thP\' have to be used at a trial
for a. <..:riminal offence i~1 a rogular Court of law.
'Ve therefore hold that t.hc Cu:-;toms OfticerR
are not police officers f(lr the purpm;e of~-:!~; of the
Evidem·e Art.
\V(l further huhl that the com·il't.iou of the
re~ponrlcnt for th'\ offcnt'('S undor
!';. 2:3( J) of the
Foreign
E~cha.11gc Hegulation Act,
1~,47,
RlHl
under H.l67(81) uf the Sea Cul5tom~ Ad,
187~, ou
the bahis of his statements tu the Cu:-;tums Olliccn;,
was legal and wa!:i wrongly of't :1.-l:'idc hy the High
Court.
"~(~ therdure allow tlw appPal, :-;d a8idc
the order of ac·quittal of the respondent for the
~
nfurc~aid uff(!IJ(·es and re:-;torC! the C.JJ'd<'r of <·ou\·i<'·
tioll pasioil'd by the ~Iagi~tr:!te and cuufirmt•d hy
the ::)cs:;ion~ J udw·.
\\'r makl' it. dear, hO\renT, that 'n~ do nut
cX}H'<~f>:< any opiniiJil em the question "·hethcr oftict.•rs
of departmentti oth<'r than the polie(•, 011 whom
tho powers of an
Oflict·r-in-dtargc of a Police
~ta.tiun nuder <·h. XlV ofthe Code ufCriminal
Procr~dnn·, han• lwcn conferred, are police otli<.:en;
or not for the }JIIl'])Oi'< ~ of s. 2[) of the Bviden<..:o
Act, a~ the leamecl ccnmscl for tho appellant did
not question t.he corrt'dnens of this ,·iew for the
purpose of this appeal.
SunnA JL\0 ,J.-[ regret my inability to agree.
I cannot bring m.nwlf to hold that, "·bile a confession mad(~ by an <H·cusecl to n. polic·o ofli(·cr iR not
admissible in cviuence in a Court of law, the same
if made, under exactly similar circumstances, to a
eustoms officer can be relied and acted upou. 'fhc
reasons for excluding the one from evidence would
equally apply to the othPr.
Briefly stated, tl1c <..:at>e of the prosecution
is as follows : On June 8, 1 U57, the Superintendent,
Land Cu::~tonu;, Amritsar,
received
information
that some gold woulu be smm'_Ldrcl from
Pnli:i~t r'n
3 S.C.R.
SU:i?R:ffiM:ffi COURT REPORTS
:~53
to India by tho engine crow of the train coming
to Amritsar from Lahore that evening. On onquit·y
by the Customs officials, the engine crew stated
that I 00 to las of gold was kept hidden underneath
tho coc:tl in the tender of the engine. After recovering tho 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.
':l_lwo days
later Ghulam 1\lohd. was also arrested at Amritsar.
During the enquiry, Barkat Ram and
Ghulam.
Mohd. made statements before the Customs offi ·
cials 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
con·dc·
ted and sentenced them under s. 23
of the
15-,oreign 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 confes·
sions alleged to have been made by the accused,
there was no other evidence to prove that they
were guilty of the offence with which they were
· charged. It was contended before the High Court
that the said confessional statements were hit by
s. 25 of the Evidence Act and, therefore, they were
inadmissible in evid~nce. The High CourtJ accepting the contention} held that, if the statements
were excluded, there was no other evidence to
sustain the conviction. On that finding, the High
Court set aside the conviction of the accused. The
State has preferred the present appeal against the
acquittal of Barkat Ram.
Learned counsel for the State
contended
196(
The Stale of Pu'!jafl
v.
Ba.kat Ram
Subba Rao ].
1!161
1 f.t Stoll oj 1':11,/ah
v
L'a, fat I Rmr1
354
SUPRE:\IE COtJR11 RtPOR'tS
[1062]
that Customs ofliciah.; an~ not poli!"(~ officers within
the nwaning of s. 2G of tl1c EYidenee Act, and,
t hcrefnn·, thL' statPm<'nts madt:
by the r<'spon-
<lcnts
('ollfcst:;ing 1 heir guilt were admissible in
CY idn1ce and thl· eou y iet iom.; Lase<l t.IH.·reou were
~ust aiua blc.
Hefurc eousi<lcring the dr<..:i~ions eitc<l at thO'
Bm·, ld us look at the mntel'i:d pro\"i8ious of the
rC>!cnmt Acts.
'J'hc indian En"denre Act, /.~·; ::.
Sec/ ion :!,j
X o. con ft's~ion ma.clo to
a,
politl' (lllitcr !:ihall be Jn·ovetl as agaillst a
person avcused of auy offl'nce.
Code of Criminall'roc.alw·e, I.ws.
Sectiun 5. ( 1) All offcncPR under the lud i~m
Pemtl Code (4fl of 18GO) shall be illvestignted, inquired into, tried anrl othc1·wise dealt
with ncc:orcliug to the provisiow:1 herC>inaftcr
conta inu.l.
(2) All ofrl'nces under auy other
Jaw
slmll be invcstigatPd, iuquired
into, tried
and othenvisc rlea.lt with according to the
same pro·1isionl'l, but subject to any enactment for the time being in force rrgulating
the matmer of plaee of investigating, inquiring iuto, trying or otherwise dea.ling with
such offe11ees.
Police Act IsGJ
'
.
Section 1 ............ the word "police'' shall
include all persons who sha.ll Le enrolled
under this Act.
Se(t Customs Act, 1878,
Section 6. The Central Govemmcnt mav
appoint such persons as it thinks fit to be
officers of Customs, a.nd to exerciso the
powers eoJ&•rrcd, and J>crform tho dutie::J
imposed} by this Act on such officers.
. -
3 S.d.It.
SVERPME COVR'.r REPOR'rS
355
The question is whether a customs officer is a
police officer within the meaning of s. 25 of the
Evidenc:} Act.
The Evidence Act does not define
thu term "police officer''. The Sea Customs Act
does not designate any officers appointed thereunder as police otlicers. The police Act of 1861
gives an inclusive definition of the word "police"
and therefore, it is not exhaustive; and ('it comprehends not only svch things as it signifies according to its natural import, but also enlarges tho
meaning of the said word so as to take in otlwr
things.''
S~ction 5 (2) of the Code of Criminal Procedure
also contemplates
investigation of, or
inquiry into, offences under other
enactments
regulating the manner or pJace of in vestigatiou,
that is, if an act creates an offence and regulates
the manner aud place of investigation or inquiry
in regard to the said offence, the procedure prescribed by the .Code of Criminal Pr9cedure will
give place to that provided in that Act. If the
said Act entrusts investigation to an officer other
than one designated fl.S 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 tho problem, having regard
to permiss1ble rules of interprBtation 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 mem bor of the police force constituted
under the Police Actt an officer who by statutory
fiction is deemed to be a police officer in charge
of a police station u~der the Code of Criminal
Procedure; and (iii) an officer on whom a statute
oonfers powers and imposes duties of a police
officer under the Code
of Criminal Procedure,
without describing him as a police officer or equating him by fiction to such a:q. officer. No":, which
1161
The State of l'wlj«b
v.
.
Barkal Ram
lh( S;u/e of 1'11niul•
\'.
Bllfl.ai R<ml
Subba Rao ).
356
StJPHE~IE COURT nEPORTS
ffi('il.llill!! b to he attributed to the term "police
ofliePJ'1' iu s. ~:; of the Edclcw:e Aet ? In the
abs(:nev of :t definition in the Evidencr. A('t it is
permi!:isiole to tmvel oeyond
the four
corners
oft h(~ statute to as(:(.!rtain tlw lcgisla t i ,.o inteu·
t ion.
Wlmt was the meaning which the le"isla·
'·
I:">
turc iut<·nded to give to the term "police otliccr"
~t the time the said scctiuu
wa,-; enacted ? That
lSCttion was takrn out of the Ct·irninal Procedure
Codr, l8Gl (Act :?i3 of IHGI) and
ins~~rt!·d iu the
EvidPnc:e Act of lSI:! as s. ;!.). ~tephen in hil-3 Tntroductiuu to th" Eddenec Aet states at
p. 171
thus:
'' [ nH.y observe,
tlJlOII the provi~iOIJS
rc ld.t iug
to them, that sections ~:;, ;.?(j and
;!.7
wer1~ tmnsferred to the Evidenec Act
·verlmt-i m from the Co do of Crimina! Pro·
c:edurc, Ad XXV of JSul. They differ widely
fl'om tho law of England, aml wcr<' jnserted
in the Act of lSlH in ordE-r tu prevent the
praetice of torture hy the po]i('c for the
purpose
of extracting confe:;sions
from
per:;or1s in their custody."
So too,
Mahmood, ,J., in
(l~teen Emzm::s8 v.
lJalmh'l ( 1) gave the following reasons for the enactment. of a. :.!.5 of the Evidence Act at p. ~32:3.
" ............ t11C legisla turo had in view tho
malpracticcR of police officers in extorting
confessions from accused personH in order to
gain credit hy securing conYictions, and that
those malpractices went to the length of
poaiti\·e torture; nor do I doubt that the
J...egisla.t urc, ill laying down such stringent
rules, regarded tho evidence of police officer3
as untrustworthy, and the object of the rules
was to put a stop to the extortion of confession, by taking ~way from the police officers
as the advantage of proving such exported
confessions
tluring
the
trial
of accused
pcn!Ons. ,,
(I) (1884) I. L. R. 6 All. 509.
(.
L
3 S.C.R.
SUPREME COURT REPORTS
357
It is,
therefore,
c1ear
that s. 2n
of the
Evidence Aet was enacted to subservc a high
purpose and that is to prevent the po]ice from
obtaining confessions by force, torture or inducement. The salutary
principle underlying the
section would apply equally to other officers, by
whatever designation they ma.y be known, who
have tho powdr and duty to detect and investigate
into crimes and is for that purpose in a position to
extract confessions from the accused.
In the Oxford Dictionary, the word up1Iice"
is defined thus :
v
"The department of government which
is conc~rnecl with the maintenance of public
order and safety, and the enforc0ment ilf the
law; the extent of its functions ,-arying
greatly in different countries and at cliff Jrent
periorls.
The civil force to which is entruqted the
duty of maintD.ining public order, enforcing
regulations for the prevention and punishment
of breaches of the law, and detecting crime;
construed as plural, the mom hers 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 1801 has
such powers and duties under the Code of Criminal
Procedure, but they arc not confined only to snell
police officers. As the State's power and (luties
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.