# }j_lramju lvjerb-~1!'1 (Pl l t,/ v. Stelt of Jo./ali11rtJJhtra

- **Citation:** [1964] 2 S.C.R. 752
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** K. Si;nsA RAO, Raghubar Dayal, J. R. Mudiiolkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-lramju-lvjerb-1-1-pl-l-t-v-stelt-of-jo-ali11rtjjhtra-2958
- **Pages:** 58

## Headnote

Exciu O.fficu-Confession made to a7' Excise /n.•f"clor
in the cour.oe of i1westigalion-lf a wnfession made to a police
ufficer-"l'olicc O.Oie€r" 1 jJeaniny of--Excisr. Inspector, if a
polict officer-Cod• of Criminal Procetkm 1898 (Act V of l.90~)
ss.
1.;1;, 162-lnaian Evidenr,e Act, 1872 (Act I of 11!72)
s. 25-Bihur nnrl Ori'8a Exc;.e Act, 191.5 (Act 2 of 1915),
ss. 2 (S), 7, 47 (a), 68, G9, 70, 71, 72, 73, 71, 78,
SO,
82, 95, 96 . .
The appellant alongwith five other people, one of whom
was driving the car, were
travelling in a car belonging to
the appellant's brother. The car was stopped by the Excise
Inspector who conducted a search of the car and recovered
five bundles of Ganja, four from the luggage boot and one
from the leg space in front of the seat of the car. The boot
could be opened with the keys in the possession of the appellant
as \\'ell as one of the keys in the posses5ion of the driver. 'l'hc
appellant made a confession to the Excise Inspector admitting
his guilt. At the trial of the apprllant alongwith the other
persons he pleaded an alibi and
pleaded innocence. The
•
...
SlJPREml COURT REPORTS
753
trial court acquitted all the other accused but convicted the
appellant under s. 47 (a) of the Bihar and Orissa Excise Act.
1915, and sentenced him to undergo rigorous imprisonment
for one year and to pay a fine of Rs. 2,000. On appeal
the High
Court affirmed .this conviction
and sentence.
The appellant thereupon appealed to this Court with special
leave.
In the appeal before this Court it was contended that
the confessional statement Ex. 3 upon which reliance was
placed by the High Court as supporting the evidence ,of
P. W. 2, P. W. 3 and P. W. 4 was inadmissible and if this
statement was put' aside the evidence of these prosecution
Witnessi:o was insufficient in law to sustain the conviction of
the appellant. In objecting to the admissibility of the
statement reliahce was placed on s. 25 of the Indian Evidence
Act, 1872 ands. 162 of the Code of Criminal Procedure in as
rnuch as it was recorded by the Inspector of Excise while he was
investigating into an exci•c offence under Ch. XIV of the
Code of Criminal Procedure.
Hi/4 (per Subba Rao and Mudholkar JJ.) the words
·•Police Officer" in s. 25 of the Evidence Act are not to be
construed in a narrow way but have to be construed in a
wide and popular sense.
Those words are however not to be
coustrucd in so wide a sense as to include p~rsons on whom
only some of the
powers exercised by the police are
conferred.
·
· Stat• of Punjab v. Barka,t Ram [1962] 3 S, C. R. 338
referred to.
.
By virtue of s. 77 (2) read withs: 78 (3) of the Bihar &
Orissa· Excise Act, 1915, an Excise Inspector or Sub-Inspector
in the State of Bihar shall be deemed to be an officer in charge
of a police station and is entitled to investigate any offence under
the' Excise Act.
He can exercise all the powers which an officer
in charge of a police station can exercise under Ch. XIV of
the Code of Criminal Procedure. Therefore a confession
recorded by him during an investigation into an excise
offence cannot reasonably be regarded as anything different
from a confession to a police officer.
The test for determining whether a person is a "police
ofl"icer" for the purpose of s. 25 of the Evidence Act would be
whether the powers of a police officer which are conferred on
him or which arc exercisable by him because he is deemed to
be an officer in charge of a police station establish a direct or
1963
Raja Ram Jaiswal
v.
~tatt of Bihar
•
1163
Rojo R.lln Jdswol
••
Stou ef BIAm-
•
754'
SUPREME COURT REPORTS [1964] VOL.
substantial relationship with the prohibition enacted by '· 25
of the Evidence Act that is the recording of a confesoion.
In
other words the test would be whether the powers are such ao
would tend to facilitate the obtaining by him of a confemon
from a suspect delinquent.
It is the power of investigation which establishes a direct
relationship with the prohibitions under s. 25 of the Evidence

## Text

_Characters 0–39,987 of 111,525. This is a partial read: ask again with offset=39987 for what follows._

1963
}j_lramju
lvjerb-~1!'1
(Pl l t,/.
v.
Stelt of Jo./ali11rtJJhtra
Shoh J.
J9G3
Ap<il I
752 SUPREME COURT REPORTS [1964) VOL.
from the payment of land revenue. The futility
of the argument that the expression "person" when
it first occurs in sub·s. (3) includes the estate-holder,
becomes obvious if the clause is read after substituting
the expression "est~te-holder" for "person".
In that view of the case, this appeal fails and
is dismissed with costs.
Appeal dismissed.
RAJ A RAM J AISW AL
V.
STATE OF BIHAR
(K. Si;nsA RAO, RAGHUBAR DAYAL and
J. R. MUDIIOLKAR JJ.)
Exciu O.fficu-Confession made to a7' Excise /n.•f"clor
in the cour.oe of i1westigalion-lf a wnfession made to a police
ufficer-"l'olicc O.Oie€r" 1 jJeaniny of--Excisr. Inspector, if a
polict officer-Cod• of Criminal Procetkm 1898 (Act V of l.90~)
ss.
1.;1;, 162-lnaian Evidenr,e Act, 1872 (Act I of 11!72)
s. 25-Bihur nnrl Ori'8a Exc;.e Act, 191.5 (Act 2 of 1915),
ss. 2 (S), 7, 47 (a), 68, G9, 70, 71, 72, 73, 71, 78,
SO,
82, 95, 96 . .
The appellant alongwith five other people, one of whom
was driving the car, were
travelling in a car belonging to
the appellant's brother. The car was stopped by the Excise
Inspector who conducted a search of the car and recovered
five bundles of Ganja, four from the luggage boot and one
from the leg space in front of the seat of the car. The boot
could be opened with the keys in the possession of the appellant
as \\'ell as one of the keys in the posses5ion of the driver. 'l'hc
appellant made a confession to the Excise Inspector admitting
his guilt. At the trial of the apprllant alongwith the other
persons he pleaded an alibi and
pleaded innocence. The
•
...
SlJPREml COURT REPORTS
753
trial court acquitted all the other accused but convicted the
appellant under s. 47 (a) of the Bihar and Orissa Excise Act.
1915, and sentenced him to undergo rigorous imprisonment
for one year and to pay a fine of Rs. 2,000. On appeal
the High
Court affirmed .this conviction
and sentence.
The appellant thereupon appealed to this Court with special
leave.
In the appeal before this Court it was contended that
the confessional statement Ex. 3 upon which reliance was
placed by the High Court as supporting the evidence ,of
P. W. 2, P. W. 3 and P. W. 4 was inadmissible and if this
statement was put' aside the evidence of these prosecution
Witnessi:o was insufficient in law to sustain the conviction of
the appellant. In objecting to the admissibility of the
statement reliahce was placed on s. 25 of the Indian Evidence
Act, 1872 ands. 162 of the Code of Criminal Procedure in as
rnuch as it was recorded by the Inspector of Excise while he was
investigating into an exci•c offence under Ch. XIV of the
Code of Criminal Procedure.
Hi/4 (per Subba Rao and Mudholkar JJ.) the words
·•Police Officer" in s. 25 of the Evidence Act are not to be
construed in a narrow way but have to be construed in a
wide and popular sense.
Those words are however not to be
coustrucd in so wide a sense as to include p~rsons on whom
only some of the
powers exercised by the police are
conferred.
·
· Stat• of Punjab v. Barka,t Ram [1962] 3 S, C. R. 338
referred to.
.
By virtue of s. 77 (2) read withs: 78 (3) of the Bihar &
Orissa· Excise Act, 1915, an Excise Inspector or Sub-Inspector
in the State of Bihar shall be deemed to be an officer in charge
of a police station and is entitled to investigate any offence under
the' Excise Act.
He can exercise all the powers which an officer
in charge of a police station can exercise under Ch. XIV of
the Code of Criminal Procedure. Therefore a confession
recorded by him during an investigation into an excise
offence cannot reasonably be regarded as anything different
from a confession to a police officer.
The test for determining whether a person is a "police
ofl"icer" for the purpose of s. 25 of the Evidence Act would be
whether the powers of a police officer which are conferred on
him or which arc exercisable by him because he is deemed to
be an officer in charge of a police station establish a direct or
1963
Raja Ram Jaiswal
v.
~tatt of Bihar
•
1163
Rojo R.lln Jdswol
••
Stou ef BIAm-
•
754'
SUPREME COURT REPORTS [1964] VOL.
substantial relationship with the prohibition enacted by '· 25
of the Evidence Act that is the recording of a confesoion.
In
other words the test would be whether the powers are such ao
would tend to facilitate the obtaining by him of a confemon
from a suspect delinquent.
It is the power of investigation which establishes a direct
relationship with the prohibitions under s. 25 of the Evidence
Act. Therefore where such power is conferred upon an officer,
the mere fact
that he posoesses some other powers under
another law would not make him any the leso a police ofl"ICCr
for the purpose of s. 25.
The object of enacting s. 25 of the Evidence Act wao to
eliminate from consideration confes•ion made to an officer who
by virtue of his position, could extract by force, torture or
inducement a confession.
An Excioe Officer acting uncl.cr
s. 78 (3) of the Bihar & Orissa Excise Act, 1915, would be in
the same position as an officer in charge of a police otation
making an investigation under Ch. XIV of the Code of
Criminal Procedure. He would likewise
have the
same
opportunity of extracting confes.•ion from a ou•pect. It i<
therefore difficult to draw a rational distinction between a
confesoion recorded
by a Police Ofl'lcer •trictly so called
and recorded by an EJ1cise Officer who is deemed to be a police
officer.
Ca<c law reviewed.
Harbhanjan Sao v. Emperor, (1927) I. L. R. 54, Cal. 601,
Matilal Kalwar v. Emperor, A. I. R. 1932 C'.al. 122, Af>lfen SM,.
ri•f v. Emperor, (1934) I. L. R. 61 Cal. 607, Nanoo &eilr.la
Ahmed v. Emperor, (1926) I. L. R.
51 Hom. 78, Public
Praauu/.or v. C. ParamtuJimm, A. I. R. 1953 Mad, 917, lbrahim
v. Emptror, A. I. R. 1944 Lah. 57, Radlia Ki•hun MaMDari
v. King Emperor, 1932 I. L. R.
12 Pat. 46 and
Qmm v.
Hvrribok Clnmder
Ghose,
( 1876)
I. L. R. I Cal. 207.
referred to.
There is one more reason also why the confession made
to an Excise Sub·Inspector must be <itcluded, that io, it i< a
statement made during the course of investigation to a person
who exercises the power of an officer in charge of a police station.
Such a statement is excluded from evidence by s. 162 of the
Code of Criminal Procedure except for the purposes of contra·
diction. Therefore both by s. 25 of the Evidence Act ao well
as s. 162 of the Criminal Procedure Code the confession of tho
appellant is inadmi,.,<ible in evidence
-
•
2 S.C.R.
SUPREMB COURT REPORTS
~55
Ptr Rachubar Dayal, J. The appeal should be allowed
1963
but for diffi:rrcnt reasons.
A scrutiny of the various
provmons of the Bihar &
Orissa Excise Act, 1915, leads to the conclusion that the legal
position of an Excise Officer io similar to that of the Customs
Officer whom this Court has held to be not a "police officer"
in the case of Stat• of Pu1tjab v' Barkat Ram, A. I. R. 1962
s. c. 276.
The provioions of ss. 7, 89, 95
and 96 of the Bihar and
Orissa EJ<cise Act, 1915, are sufficient to indicate that the
action 0f Excise Officers under the Act and under any other law
relating to excise revenue is treated alike.
The Act is like Sea
CustQms Act primarily concerned with the collection of the
Excise revenue.
An Excise Officer cannot be a police officer for the
purpose of s. 25 of the Evidence Act at all times. He cannot
be a police officer only when he is discharging the duties of
an investigating officer.
The mere fact that the Excise
Officer vossesscs certain powers similar to those of po lice
officers in regard to infraction of excise laws is not a sufficient
ground for holding them to be police officers within the meaning of s. 25 Evidence Act.
Under s. 85(3) of the Bihar & Orissa Excise Act, 1915
all officers other than collectors who make arrests, searches
or seizures under the Act are deemed to be police officers for
the purpose of the provisions relating to arrests, searches
and seizures in the Criminal Procedure Code.
It is therefore
clear that the Legislature did not contemplate that Excise
Officers performing other duties corresponding to the duties
of the regular police officers be deemed to be police officers
merely on account-Of their performing those duties. It follows
that Excise Officers when investigating offences under the Act
are not to be deemed police officers for the purpose of the
provisions about investigation in the Code of Criminal Procedure.
The effect of s. 78(3) can only be that in view of the
provisions of sub-ss. (2) and (3) of s. 156 of the Code of
Criminal Procedure no proceedings by the Excise Officer so
empowered shall be called into question on the ground that he
was not empowered tP investigate an offence.
The history of the Code of Criminal Procedure as well as
.the Excise law shows that Excise Officers have been considered
Raj11 Ram Jaiswal
v.
State nf Bifu1r
J963
&fa R""' /"""111
••
Sl4U ef Bl/lar
756 SUPREME COURT REPORTS [1964] VOL.
di!l'erent from police officen and that clear provisions were
created for certain officers of the Revenue and Police departments to be deemed Excise Officers .
The Excise Inspector and Sub-Inspector empowered by
the State Government under s. 77 (2) of the Act are not police
officen within the meaning of s. 25 of the Evidence Act and
that the aforesaid officers cannot be treated to be police
officers for the purpose of s. 162 of the Code of Criminal
Procedure.
CRIMINAL APPELLATE Ju1tISDICTION: Criminal
Appeal No. 125 of 1961.
Appeal by special leave from the judgment
and order dated January 20, 1961 of the Patna
High Court in Criminal Revision No. 1274 of
1960.
A.S.R. Chari, M.K. Ramamurthi, R.K. Garg,
8.C. Agarwala and D.P. Singh, for the appellant.
D. Goburdhan, for the respondent.
1963.
April 4. The Judgment
of Subba
Rao and Mudholkar JJ. was delivered by Mudholkar J. Dayal J. delivered a separate Judgment.
MuDHOLKAU J.-In this appeal by special
leave from the judgment of the Patna High Court
affirming the conviction of the appellant under
s. 47 (a) of the Excise Act and
the sentences of
rigorous imprisonment for one year and of fine
amounting to Rs. 2,000 awarded by the Judicial
Magistrate,
First Class,
Patna, the substantial
question which falls for decision is whether a confession made by the appellant and recorded by the
Excise Inspector who was investigating the case is
inadmissible by reason of the provisions of s. 25 of
the Indian Evidence Act, 1872.
It is not disputed before us by Mr. Chari that on
August 3, 1957, a motor car bearing No. WBC 562
2 s.e.R. SUPRENIE COURT REPORTS
757
was stopped by
the
Excise
Inspector, R.R.P.
Sinha (P.W.l) on the Bayley Road, near the New
Secretariat, Patna, at 10.00 p.m. The car belongs
to the . appellant's brother Radhey Sh yam; but he
was not at that moment in the car. The car was
then being driven by Jagdish Sah and the appellant
was sitting by his side. Four other persons were
sitting on the back seat.
The Excise Inspector
searched the car in the presence of three witnessess
Debendra Prasad Singh (P. W. 2), Paresh Nath
Prasad Singh (P.W. 3) and Rabindra Prasad Singh
(P.W. 4) and recovered from the car five bundles
of non-duty paid Nepali Ganja.
According to the
prosecution four of them were recovered from the
luggage boot of the car while one was recovered
from the leg space in front of the front seat of the
car.
According to the appellant, however, no ganja
was carried in the car and, therefore,. none was seized
from the car. Further, accordiag to the prosecution, the appellant produced the keys with which
the luggage
boot
was opened.
The
Excise
Inspector made a seizure memo Ex. 2 and recorded
the statements of all the persons who were in the
car, including the appellant. Exhibit 3 is the
statement of the appellant.
1
After the investigation was completed all the
persons who were in the car at that time including
the appellant and Radhey Shyam, the brother of the
appellant, were put up for trial before the Judicial
Magistrate. He convicted all of them but in appeal
the Sessions Judge, Patna, acquitted all except the
appellant. It is, therefore, not necessary to refer to
the defence taken by the acquitted persons. The
appellant's defence was that he was not travelling in
the car at the relevant moment and that he was at
that time in the house of Kanhai Singh (D. W. 1)
which is ·situate in Subjibagh Mohatla of Patna
where he was arrested by the Excise Inspector .
~t 6.00 on the morning of August 4.
His defem;e
1969
Raja Ram J.Uwal
Y.
S1a11 of Bihar
Mudholk111 J.
1963
R1Jja Jf11111 Jais111'J
••
'i'ltr/1 of Bi11ar
Afut/h~lKtsr J.
758
SUPREME COURT REPORTS [1964] VOL.
further is that after his arrest R. R. P. Sinha, P. W.
I and other officers of the Excise Department took
him in a jeep, subjected him to threats and abuse.!,
assaulted him and eventually took his signature on a
blank paper. Thus his defence is that he was falsely
implicated by the Excise Inspector. In view, however,
of the fact that all the courts have accepted the
evidence o( the prosecution witnesses which establishes
the fact that the appellant was actually in the car
when it was stopped by the Excise Inspector, Mr.
Chari has rightly not challenged that finding.
He
has also not contended that the appellant's signature
was taken on a blank paper by the Excise Officers.
The argument he advanced, however, is that there
is no legally
admissible evidence on the basis of
which the appellant's conviction can be sustained.
The confessional statement Ex. 3 upon which reliance
has been placed by the High Court as supporting the
evidence of P. W. 2 Debendra Prasad Singh, P. W.
3 Paresh Nath Prasad Singh and P. W. 4 Rabindra
Prasad Singh is attacked as being inadmissible in
evidence and it is said that if this statement is put
aside the evidence of the three prosecution witnesses
on whom reliance has been placed by the High
Court is insufficient in law to sustain the conviction
of the appellant under s. 47 (a) of the Excise Act.
The relevant portion of s. 4 7 runs thus :
"Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.-
If any person, in contravention of this Act,
or of any rule,
notification or order made,
issued or given, or
license, permit or pass
granted, under this Act,-
( a)
imports, exports, transports, manufactures,
possesses or sells
any intoxicant ; or
he shall be liable to imprisonment for a
term which may extend to one year or to
2 S.C.R. SUPREME COURT REPORTS
759
fine which may extend to two thousand
rupees, or to both."
~
The evidence of P. Ws. 2, 3 and 4 taken
along with the evidence of the Excise Inspector establishes the following facts :
(1) that the appellant was s1ttmg by the side
of the driver when the car was stopped by
the Excise Inspector ;
(2)
that five bundles of non-duty paid Nepali
Ganja were recovered from the car;
(3) that four bundles were recovered from the
luggage boot of the car and one from the
leg space in front of the front seat ;
(4) that a bunch of keys marked Ex. 2 series
was recovered from the pocket of the appellant and another bunch of keys marked Ex.
1 series was recovered from the possession
of the driver J agdish Sah ;
( 5) that every key of Ex. 1 series could open
the lock of the luggage boot and two keys
of Ex.
2 series could
also open the
lock.
In order to est<lblish this, the prosecution has
relied on the seizure memo Ex. F and the evidence
ofthe Excise Inspector and P. W. 2 Debendra
Prasad Singh. P. W. 3 Paresh Nath Prasad Singh and
P. W. 4 Rabindra Prasad Singh. A perusal of Ex. F
would, however, show that material alterations and
erasures appear to have been made in that document
by reason of which no reliance can be placed upon
it. The High Court has wholly ignored this fact
and we are, therefore, entitled to take it into consiqenltion.
~t, WO\lld appear that originally it was
1969
Raja 11JJm Jaisw•I
y,
State flf BiluJr
Mudholkar J.
1963
Rai1J Ram Jaint:al
v.
Statt oj Bi_har
:lfudho/kor J.
760 SUPREME COURT REPORTS [19M] VOL.
shown in col. 5 and 6 taken tt>gether that a bundle
containing 35 seers of ganja was found in the leg
space in front of the rear seat but what was written
originally in col. 6 has been over-written by inserting words describing meaningless facts on top of the
words originally written and in continuation of them.
In Col. 5 the weight of the bundle is given as 35
seers and below it weights of four other bundles are
mentioned. They are :~5 seers, 26 seers, 18 seers and
6 seers.
The weight
of the first bundle was
excluded
from
the
bracket
in
which
the
weights of the first three bundles were included.
Then by introducing another bracket, the first
bundle was
included
within
it.
Against the
bracket it is stated in col. 6 that the bundles
were found
in the luggage boot. The bundle
weighing 6 seers is not included in the bracket.
Against it, there was some other remark in col. 6
which has
been
clumsily
erased and in its
place it is stated "In the leg space in front of front
seat.'' Again, in col. 8 wherever
the appellant's
name appears there appears to have been something
else originally which was
erased and his name
written there subsequently.
A bare look at the
document shows that it has been materially altered
and is, therefore, not a kind of material on which
reliance can be placed. It is only with the aid of
the confession that it can be accepted as incriminating the appellant,
For, even the direct evidence of
witnesses was not regarded by the High Court as
worthy of credence, unaided by the confession.
It is indeed the prosecution case that one bundle
of ganja was found in the leg space in front of the front
seat. Bearing in mind the fact that there were six persons in the car at the time and that the lu_ggage boot
in which the bundles were kept could be opened not
merely with the keys which were recovered from
the appellant but also with the keys which were
recovered from the driver it is not possible to say,
2 s.c.R.
SUPREME COURT REPORTS
761
though the driver has been acquitted, that the
appellant was in exclusive possession of the ganja
which was found in the car except with the aid of
the confessional statement, Ex. 3. It follows, there-.
fore, that the appellant's conviction could be main·
tained on! y if, we hold that the confessional statement is admissible in evidence.
Mr. Chari besides objecting to the admissibility
~
of the confessional statemi:nt relying on s. 25 of the
Evidence Act also contends that that statement is
rendered inadmissible by the provisions of s. 162,
Code of Criminal Procedure inasmuch as it was recorded by R. R. P. Sinha, Inspector of Excise while
he was investigating into an excise offence under
Ch. XIV of the Code of Criminal Procedure.
Section 25 of the Evidence Act reads thus :
"No confession made to a police officer shall be
proved as against a person accused of any
offence."
Undoubtedly th6 Inspector R.. R. P. Sinha is an
Excise Officer and not a police officer in the sense
that he does not belong to the police force or the
police establishment. It has, however, been held
in a large number of cases, including the one decided
, by this court, The State of Punjab v. Barkat Ram ('),
that the words "Police Officer" to be found in
s. 25 of the Evidence Act are not to be construed in
a narrow way but have to be construed in a
wide and po_pular sense.
Those words, according
to this Court, are however not to be construed in so
wide a sense as to include persons on whom only
some of the powers exercised by the police are conferred.
This Court was there
concerned with
the question whether a Customs Officer can be
regarded as a Police Officer and consequently whether
a confession made to such an officer is hit by the
provisions of s. 25 of the Evidence Act. In the
(1) p962] 8 I, C, R. SSS,
1963
Raja Ram Jaiswa I
v.
Stale o/ ./Jj/rar
Mudholkar J,
1903
R6}• Ra"' Ja1wal
••
SW 1 •f Bihor
Mut0t6/k4r J.
762
SUPREME COURT REPORTS [1964] VOL.
majority judgment Raghubar Dayal J., has ob.
served :
"The
Customs
Officer,
therefore,
1s
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 safe·
guarding the recovery of customs duties.
He
is more concerned with the goods and customs
duty, than with the offender." (p. 279).
After pointing out that Customs Officers, when they
act under the Sea Customs Act for the prevention of
smuggling of goods, also act judicially inasmuch as
they are entitled to confiscate the goods and levy
penalties on the person found smuggling, he said
that the mere fact that similar powers in regard to
detection of infractions of Customs laws have been
conferred on Officers of the Customs Department as
are conferred on Officers of the Police is
not
sufficient for holding them to be police officers within
the meaning of s. 25 of the Evidence Act because
the powers of search etc., conferred on the former
are of a limited character and have a limited object
of safeguarding the revenues of the State. The
majority, however expressed no opinion on the
question whether officers of departments other than
the police on whom the powers of an officer·incharge of a police station under ch. I 4 of the Code
of Criminal
Procedure arc conferred arc police
offic"rs or not for the purpose of s. 25 of the Evidence
Act.
The question whether an Excise Officer is a
Police Officer was thus left open by them.
It is precisely this question which falls for
consideration in the present appeal.
For, under
s.78(3) of the Bihar and Orissa Excise Act, 1915
(2 of 1915) an Excise Officer empowered under
s. 77, sub-s. (2) of that Act shall, for the purpose of
2 S.C.R.
SUPRENfE COURT REPORTS
763
s. 156 of the Code of Criminal Procedure be deemed .
to be an officer in charge of a police station with
respect to the area to which his appointment as an
Excise Officer extends. Sub-section ( l) of s. 77 em•
powers the Collector of Excise to investigate without
the order of a Magistrate any offence punishable
under the Excise Act committed within the limits of
his jurisdiction.
Sub-section (2) of that section
provides that any other Excise Officer specially empowered in this behalf by the State Goverument in
respect of all or any specified class of offences punishable under the Excise · Act may, without the order
of a Magistrate, investigate any such offence which
a court having jurisdiction within the local area to
which such officer is appointed would have power to
inquire into or try under the aforesaid provisions.
By virtue of these provisions the Lieutenant Governor
of Bihar and Orissa by Notification No. 470-F dated
January 15, 1919 has specially empowered Inspectors of Excise and Sub-Inspectors of Excise to
investigate any offence punishable under the Act.
It is not disputed before us that this notification is
still in force.
By virtue of the provisions of s. 92 of
the Act it shall have effect as if enacted in the Act.
It would thus follow that an Excise Inspector or SubInspector in the State of Bihar shall be deemed to
be an officer in charge of a police station with respect to the area to which he is appointed and is in
that capacity entitled to investigate any offence under
the Excise Act within that area without the order of
a Magistrate. Thus he can exercise all the powers
which an officer in charge of a police station can
exercise under Ch. XIV of the Code of Criminal
Procedure, He can investigate into offences, record
statements of the persons questioned by him, make
searches, seize any articles connected with an offence
under the Excise Act,
arrest an accused person,
grant him bail, send him up for . trial. before a
Magistrate, file a charge sheet and so on. Thus his
position in so far as offences 1.1nc!er the Excise Act
1963
Raja Ram /aiswel
v.
Slate of Biht1r
Mudholkar J.
196J
R•jo R•m Joiswal
v.
St.u ef BiM•
Mlllilwlkar J.
764
SUPREME COURT REPORTS [1964] VOL.
committed within the area to which his appointment
extends are concerned is no different from that of an
officer in charge of a police station.
As regards these
offences not only is he charged with the duty of
preventing their commission but also with their detec·
tion and is for these purposes empowered to act in
all respects as an officer in charge of a police station.
No doubt unlike an officer in charge of a police
station he is not charged with the duty of the maintenance of I aw and order nor can he exercise the
powers of such officer with respect to offences under
the general law or under any other special laws.
But all the same, in so far a~ offenc~s under the Excise
Act are concerned, there is no distinction whatsoever
in the nature of the powers he exercises and those
which a police officer exercises in relation to offences
which it is his duty to prevent and bring to light.
It would be logical, therefore, to hold that a confession recorded by him during an investigation into
an excise offence cannot reasonably. be regarded as
anything different from a confession to a police
officer.
For, in conducting the investigation he
exercises the powers of a police officer and the act
itself deems him to be a police officer, even though
he docs not belong to the police force constituted
under the Police Act.
It has been held by this court
that the expression "Police Officer" in s. 25 of the
Evidence Act is uot confined to persons who are
members of the regularly constituted police force.
The position of an Excise Officer empowered under
s. 77(2) of the Bihar and Orissa Excise Act is not
analogous to that of a Customs Officer for two
reasons.
One is that the Excise Officer does not
exercise any j udici<d powers jusl as the Customs
Officer docs under the Sea Customs Act, 1878.
Secondly, the Customs Officer is not deemed to be
an officer in charge of a police station and therefore
can exercise no powers under the Code of Criminal
Procedure and certainly not those of an officer in
charge of a police station. No doubt, he too has t!ie
2 s.c.R.
StJPRENIE COURT REPORTS. 765
power to make a search, to seize articles suspected to
hal'e been smuggled and arrest persons suspected of
h:J.ving committed an offence under the Sea Customs
Act. But that is all.
Though he can make an
enquiry, he has no power to investigate into an
offence under s. 156 of the Code of Criminal Procedure. Whatever powers he exercises are expressly
set out in the Sea Customs Act.
Though some of
those set out in ch. XVII may be analogous to those
of a Police Officer under the Code of Criminal Procedure they are not identical with those of a police
officer and are not derived from or by reference to
the Code. In regard to certain· matters, he does not
possess powers even analogous to those of a Police
Officer. Thus he is not entitled to submit a report
to a Magistrate under s. 190 of the Code of Criminal
Procedure with a view that cognizance of the offence
be taken by the Magistrate. Section 187(A) of the
Sea Customs Act specially provides that cognizance
of an offence under the Sea Customs Act can be
taken only upon a complaint in writing made by the
Customs Officer or other officer of the customs not
below the rank of an Assistant Collector of Customs
authorised in this behalf by the Chief Customs
Officer.
It may well be that a statute confers powers
and imposed duties on a public servant, some of
which are analogous to those of a police officer. . But
by reason of the nature of other duties whic;h he is
required to perform he may be exercising various
other powers also, It is argued on behalf of the
State that where such is the case the mere conferral
of some only of the powers of a police officer on
such a person would not make him a police officer
and, therefore, what must be borne in mind is the
sum total of the powers which he enjoys by virtue of
his office as also the dominant purpose for which he
is appointed.
The contention thus is that when an
officer has to perform a wide range of duties and
•
1969
Rf.i• Rtm l•i.rai•l
v.
Stal• •f Bihor
Mud/Jolk., J.
196J
Rdj0 Ram }diJwal
..
Stalt of Bihor
Mutihel.Aar J.
766 SUPREME COURT ltEPORTS [1964] VOL.
exercise
correspondingly a wide range of powers,
the mere fact that some of the powers which the
statute confers upon him are analogous to or,even
identical with those of a police officer would not
make
him a police officer and, therefore, if such
an officer records a confession it would not be
hit bys. 25 of the Evidence Act.
In qur Judgment
what is pertinent to bear in mind for the purpose
of determining as to who can be regarded a "police
officer" for the purpose of this provision is not the
totality of the powers which an officer enjoys but the
kind of
powers which the law enables him to
exercise. The test for determining whether such a person is a "policer officer" for the purpose of s. 25 of
the Evidence Act would, in our judgment, be whether
the powers of a police officer which arc 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 our 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.
These questions
may perhaps be relevant for consideration where the
powers of a police officer conferred upon him arc of
a very limited character and are not by themselves
sufficient to facilitate the obtaining by him of a
confession.
As an instance of a law which confers on an
officer
powers of a limited character which are
analogous to
those conferred upon police officers,
we may refer to the Sea Customs Act itself.
This
Act confers a wide range of powers on Customs
Officers.
But powers analogous to those of a police
officer are to be found only in ch. XVII which deals
•
!! S.C.R. SUPRBNID COURT REPORTS
767
with "procedure relating to offences, appeals etc."
Under s. 169 a Customs officer is empowered to
search on reasonable suspicion any vessel in any
port in India or any person who. has landed from
any vessel. This power, however, is subject to the
right given by s. 170 to that person to require the
Customs officer to take him before his search to a
Magistrate or
Customs Collector. Where such
person exercises that right the question as to whether
he should be searched or not would depend upon
the Magistrate or the
Customs Collector being
satisfied about the existence of reasonable grounda
for the search. No such restriction is imposed upon
a police officer making a
search under s. 102,
sub-s. (3) of the Code.
Again, whereas an officer
in charge of a police station can search any place
in connection with a cognizable offence under investigation after recording in writing his reasons, a
Customs Officer cannot search any place on land
where a dutiable or prohibited goods or documents
relating to such goods are secreted without first
obtaining a search warrant from
a Magistrate.
Under s. 173 of the Act a Customs Officer has the
power to arrest a person against whom reasonable suspicion exists that he has been guilty of
an , offence under the Act. But he is required to
produce that person forthwith before the nearest
Magistrate and it will be for the Magistrate either
to commit that person to jail custody or release him
on bail at his discretion.
An officer in charge of a
police station has, however, the power, to release
an arrested person on his furnishing bail and is not
required for the purpose to obtain an order of a
Magistrate. It is only where he does not release
him on bail that he must produce him before a
Magistrate within 24 hours of arrest. We may add
that the existence of the power to grant bail in an
officer in charge of a police station itself enables him
to exercise authority over the arrested person and
influence his conduct if he so wishes.
Finally, a
IR63
R'l}• &m l.U•,.
v.
Si.11 of Bi"4r
Mudholkat J, .
1963
Rdja Rmn J(Jiswal
Y.
Sl&Je of Bihar
MuilwJkar J.
768
SUPREME COURT REPORTS [1964] VOL·.
Customs Officer has power to seize anything lialile
to confiscation under the Act. But wh~re he has
seized anything he is liable. on demand of the person
in charge of the thing so seized, to give him a
statement in writing of the reasons for such seizure.
Similarly where he has arrested a person, he is bound
to give to that person, if that person so demands, a
statement in writing disclosing the reasons for the
arrest.
No such duty is cast upon a police officer
seizing an article or arresting a person. Chapter
XVII deals with 110 other powers which could be
said to be analogous to those of a police officer.
The whole of that chapter shows that the other
powers conferred upon a Customs Officer are such,
as arc necessary for preventing the commission of
offences under the Sea Customs Act and matters
incidental thereto. It is worthy of note that the
powers of investigation into offences which a police
officer enjoys are not conferred upon a Customs
Officer. It is the possession of these powers which
enables police officers and those who are deemed to
be police officers to exercise a kind of authority over
the persons arrested which facilitate the obtaining
from them statements which may be incriminating
to the persons making them. The law allows the
police officer to obtain such statements with a view
to facilitate the investigation of the offences. But
it renders them inadmissible in evidence for the
obvious reason that a suspicion about voluntariness
would attach to them. It is the power of investigation which establishes a direct relationship with
the prohibition enacted in s. 25.
Therefore, where
such a power is conferred upon·an officer, the me~e
fact that he possesses some other powers under
another law would not make hiin any the less· a
police officer for the purposes of s. 25.
In this connection it would be pertinent to
bear in mind the object with which the provisio~s
of s. 25 of the Evidence Act were enacted. For th1S
'
2 s.c.R. SUPREME COURT REPORTS
769
purpose we can do not better than quote the following passage from the judgment of Mahmood J. in
Queen Empress v. Babulal (1).
19~1 '
lt.•i• RM1l lailw•l
y,
SM!e of· ~i/1•
" .................. the Lagislature had· in view
M.JJiolku 1.
the malpractices of police officers in extorting
confessions from accmed persons in order · to
gain credit by securing convictions, and that
those
malpractices went to the length· or
positive torture; nor do I doubt that the
Legislature, in laying down such stringent
rules, regarded the evidence of police officera
as untrustworthy, and the object of the rule•
was to put a stop to the extortion of confession,
by taking away fronl the police officer1 the
advantage of proving such extorted confession•
during the trial of accused· persons."
This provision was thus enacted to eliminate
from consideration confessions made to an officer
who, by virtue of his position, could extort by force,
torture or inducement a confession. An Excise
Officer acting under s. 78 (3) would be in the same
position as Officer in charge of a police station making
an· investigation under Ch. XIV of the Code of
Criminal Procedure. He would likewise have the
same opportunity of extorting a confession from a
suspect. It is, therefore, difficult to draw a rational
distinction between a confession recorded by a
Police Officer strictly so called and one recorded by
an Excise Officer who is deemed to be a Police
Officer.
A large number of decisions were cited at the
bar b~aring on the question as to whether the
expression "Police Officer" used in s. 25 of the
Evidence Act is restricted to the members of the
force or has a wider meaning. It is unnecessary to
refer to those decisions because in Barkat Ram' a
case ('), it has clearly been held that the expression
(l) (1884) 1.L.R, 6 All. 509, 523.
\2) [ !962J 3 S. c. R. 338,
'
'*'
Raja Ram laiiwal
v.
Sl4t1 of Biluu
Mudholkar J.
'70 SUPREME COURT REPORTS[l964] VOL.
is not to be construed in a narrow way.
\Ve may,
however,
refer
to certain. decisions
in which
the question whether an Excise Officer is a Police
Officer within the meaning of that section has been
specifically considered.
I here is,
however, no
unanimity in those decisions. Thm in Ah Fo011g v.
Emperor (1),
Ilarbhanjan
Sao v.
Emperor ('),
Matilall Kalwar v. Emperor ('), it was held that an
Excise Officrr is not a Police Officer,
A contrary
view was, however, taken in Ibrahim Ahmed v.
King Emperor('). The view taken in that case was
affirmed by a Full Bench in Ameen Sharif v.
Emperor (').
The view taken in the Full Bench
case as well as in Ibrahim Ahmed's case ('), follows
that of the Bombay High Court in Nanoo Sheikh
Ahn1ed v. Emperor (').
A similar view was also
taken in Public Prosec1ttor v. C. Paramasivam (1),
Ibrahim v. Emperor ('). In Radha K ishun MaruYJri
, v. King Emperor ('), it
wa~, however, held that an
Excise Officer functioning under the Bihar Excise
Act is not a Police Officer and that a statement
made to him is not within s. 25 of the Evidence Act.
We need not; however, consider the last mentioned
decision because there the learned Judges have construed the expression "Police Officer" in s. 25 of
the Evidence Act to mean only an officer of the
police force.
That, however, is not in accord with
what this Court has held in Barkat Ram's case (10).
We will briefly examine the other decisions.
In Ah Foong's case('), all that Sanderson CJ.,
who delivered the leading judgment has said was
that he dirl not think that Excise Officers in the
case before the court could be said to be Police
Officers and that the statements made by the accused
to them were not admissible by
rea~on of the fact
that they were made to Police Officers.
There is
thus no discussion of the question at all.
Apart
from that the offence concerned in that case was
one under the Op:um Act and an Excise Officer
(1) (10IR' T.t .. R. 4• r.al. 411.
(3) A.l.R. 1032 r.1 1n.
(5J 1193~) 1.1 .. R. fil C.I 007.
171 A.l.R. 1913. Mad 917.
(9) (1.9321 IL R. 12 Pat 46 EB.
12\ (19271 l.L.R: 54 rat 601.
1') (1931) 1.L R. SB Cal. 1160.
(RI (192611.L.R. Sl Bom. 78
18) A.!.R. 19441.ah 57.
( 10 [1962] 3 S.Cll. 338.
2 s.c.R.
SUPREME COURT REPORTS
771
·acting under that Act was not conferred with the
powers of an dficer in charge of a police station
under lh. XIV of the Code' of Criminal Procedure.
Harbhanjan Sao's case ('), merely followed this
case as also did Matilr!l's ca.qe ('). Ibrahim Ahmed's
case ('), was a case which arose after the amend·
ment of the Opium Act and it followed the view
taken in Nanoo Sheikh Ahmed's case (').
In
Nanoo Sh•ikh Ahmed's case('), a Full Bench of the
Bombay High Court examined a large number of
decisions commencing from The Queen v. Hurribole
Chunder Ghose (').
Ma~ten C. J.
quoted
with
approval the following two passages from that case :
"Its humane object is to prevent confessions
obtained from accused persons through any
undue influence, being received as evidence
against them ..... ; ......................... ! consider
that the term 'police officer' should be reac.
not in any strict technical sense, but according to its more comprehensive and popular
meaning.'' (p. 215).
" ......................... and I think it better in
construing a section such as the 25th which
. was intended as a wholesome protection to
the accused to construe it in its widest and·
most popular signification." (p. 216) .
..
The Full Bench pointed out that in Ah Foong'a
case ('), there was hardly any discussion of the
question and further pointed out that Excise Officers
had limited power in Bengal under the Opium Act
of l 878 whereas in Bombay they exercised the
powers of investigation and so on. The learned
Chief ]'1stice then observed :
" ........