TaxTMI 
TaxTMI 
1961 (8) TMI 28
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....ated at the Customs Station and, as a result of further search, another quantity of gold was recovered from the rear part of the coal tender. A document, Ex. P.E., dated June 5, 1957, was also recovered. This document was shown to the respondent on June 9.. 1957, and the respondent inscribed on this document the note Ex. P. D1 to the effect "... the letter is the same which Tawaqual Shah had given to me yesterday. The same to be delivered to Ghulam Mohd. who has come from Pakistan and has stayed at Grand Hotel." On June 9, 1957, Barkat Ram, the respondent, made certain other statements, Ex. P. K., to Manohar Singh Bedi, Inspector of Customs, stating therein : "As usual on the 8th June, 1957, I took two bundles of Indian Currency from Ghulam Mohd. at Amritsar to Pakistan and when I brought 65 bars of gold from Tawakal Shah, from Pakistan, the Customs Officers recovered these 65 bars of gold from the engine at the Railway Station, Amritsar. I had kept concealed these 65 bars of gold in the engine in the presence , of Shri Ram Murti and Shri Jagan Nath, my two Firemen, at the Loco Shed. Lahore. I was to deliver this gold to Ghulam Mohd. at Amritsar." A second statement was; made to....
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....ers within the meaning of that term in s. 25 of the Evidence Act. We may mention, at this stage, that the Officers to whom the respondent made confessional statements, were Land Customs Officers appointed under the Land Customs Act. Section 9(1) of this Act reads: "The Provisions of the Sea Customs Act, 1878 (VIIT of 1878), which are specified in the Schedule, together with all notifications, orders, rules or forms issued,, made or prescribed, thereunder, shall, so far as they are applicable, apply for the. purpose of the levy of duties of land customs under this Act in like manner as they apply for the purpose of the levy of duties of customs on goods imported or exported by sea." Among the sections of the Sea Customs Act, made applicable by sub-s. (1) of s. 9 of the, Land Customs Act, are included all the sections in Chapters XVI and XVIT of the Sea 'Customs Act viz., ss. 167 to 193. In view of these provisions, we have really to consider whether the Customs Officers under the Sea Customs Act., in view of the various powers conferred on them under the. Sea Customs Act, are police officers contemplated by s. 25 of the Evidence Act. If they are Police officers, the Land Cust....
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....at this stage. It is according to the provisions of this sub-section that the provisions of the Sea Customs Act and the orders, rules etc., prescribed thereunder, apply for the purpose of levy of duties of and customs under the Land Customs Act in like manner as the apply for the purpose of, levy of duties of customs on goods imported or exported by sea. This makes it clear that the provisions conferring various powers on the Sea Customs Officers are for the purpose of levying and realization of duties of customs on goods and that those powers are conferred on the Lands customs officers also for- the same purpose. Apart from such an expression in s. 9 (1) of the, Land Customs Act, there are good reasons in support of the view that the powers conferred on the Customs Officers are different in character from those, of the police officers for the detection and prevention of crime and that the powers conferred on them are merely for the purpose of ensuring that dutiable goods do not enter, the country without payment of duty and that articles whose entry is prohibited are not brought in. It is with respect to the detecting and preventing of the smuggling of goods and preventing loss to....
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....search warrants are needed and detention of arrested person is required". In Thomas Dana v. The estate of Punjab ([1959] Supp. 1 S.C.R. 274,289.)it was "There are as many as 81 entriesin the Schedule to s. 167, besides those added later, but each one of those 81 or more entries, though an Offence, being an act infringing certain provisions of the sections and rules under the Act, is not a criminal offence They (i.e., Customs Officers) have been only given limited powers of search. Similarly, they have been given limited powers to summon persons to give evidence or to produce documents." Further it was observed at p. 291 "It is true that the petitioners were dealt with by the Collector of Central Excise and Land Customs, for the offence' of smuggling ; were, found "guilty', and a deterrent 'punish- ment was imposed upon them, but as he had' not been vested with the powers of a Magistrate or a criminal court, his proceedings against the petitioners were in the nature of Revenue proceedings, with a view to detecting the infringement of the provisions of the Sea Customs Act, and imposing penalties when it was found that they had been guilty of those infringements. T....
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....eld to be a police officer within the meaning of that expression in s. 25 of the Evidence Act. There has, however, arisen a divergence of opinion about officers on whom some powers analogous to those of police officers have been conferred being police officers for the purpose of s. 25 of the Evidence Act. The view which favours their being held police officers, is based on their possessing powers which are usually possessed by the police and on the supposed intention of the legislature at the time of the enactment of s. 25 of the Evidence Act to be that the expression 'police officer' should include every one who is engaged in the work of detecting and preventing crime. The other view is based on the plain meaning of the expression and on the consideration that the mere fact that an officer who, by no stretch of imagination is a police officer, does not become one merely because certain powers similar to the powers of a police officer are conferred on him. We now refer to certain aspects which lead us to consider that the expression "police officer' has not such a wide meaning as to include persons on whom certain police powers are conferred. The object of enacting s.....
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....take as stated above, two points have been raised........... And the other is that in section 25 of the Act, in respect of an officer of the police, there is a personal disability implied irrespective of the question whether be-is holding an investigation or not, while no such disability can be said to have been intended in the case of an excise officer. ......... And as regards the second point, I need only observe that, whereas police officers, by reason of section 22 of Act V of 1861, are always to be considered on duty for the purposes of the Act, all revenue officers, on the other hand, are not police officers and it is only such of them as may be exercising the powers of police officers and only when exercising such powers that they may be regarded as police officers." Similar views were expressed in Ibrahim v. Emperor(A. I. R. 1944 Lah. 57) and Public, Prosecutor v. Paramasivam (A. I. R. 1953 Mad. 91). But, in our opinion, merely because 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 a sufficient ground for holding them to be police officers with....
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....ld be highly incongruous that moat of the offences under s.167 be disposed of by the Customs Officers themselves and that such confessional statements recorded by Customs Officers be good material for them to take action and to penalize the offender to any amount of fine and yet the and statements be held to be not admissible in evidence if they have to be used at a trial for a criminal offence in a regular Court of law. We therefore hold that the Customs Officers are not police officers for the purpose of s. 25 of the Evidence Act. We further hold that the conviction of the respondent for the offences under s. 23(1) of the Foreign Exchange Regulation Act, 1947, 'and under s.167(81) of the Sea Customs Act, 1878, on the basis of his statements to the Customs Officers, was legal and was wrongly set aside by the High Court. We therefore allow the appeal, set aside the order of acquittal of the respondent for the aforesaid offences and restore the order of conviction passed by the Magistrate and confirmed by the Sessions Judge. We make it clear, however, that we do not express any opinion on the question whether officers of departments other than the police, on whom the powers of ....
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....ore, they were inadmissible in evidence. The High Court, 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 that Customs officials are not police officers within the meaning of s. 25 of the Evidence Act, and, therefore, the statements made by the respondents confessing their guilt were admissible in evidence and the convictions based thereon were sustainable. Before considering the decisions cited at the Bar, let us look at the material provisions of the relevant Acts. The Indian Evidence Act, 1872 Section 25 No. confession made to a police officer shall be proved as against a person accused of any offence. Code of Criminal Procedure, 1898. Section 5. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried and othe....
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....the Code of Criminal Procedure, without describing him as a police officer or equating him by fiction to such an officer. Now, which meaning is to be attributed to the term "police Officer" in s. 25 of the Evidence Act ? In the absence of a definition in the Evidence Act it is permissible to travel beyond the four corners of the statute to ascertain the legislative intention. What was the meaning which the legislature intended to give to the term "police officer" at the time the said section was enacted ? That section was taken out of the Criminal Procedure Code, 1861 (Act 25 of 1861) and inserted in the Evidence Act of 1872 as s. 25. Stephen in his Introduction to the Evidence Act states at p. 171 thus : "I may observe, upon the provisions relating to them, that sections 25, 26 and 27 were transferred to the Evidence Act verbatim from the Code of Criminal Procedure, Act XXV of 1861. They differ widely from the law of England, and were inserted in the Act of 1861 in order to prevent the practice of torture by the police for the purpose of extracting confessions from persons in their custody." So too, Mahmood, J., in Queen Empress v. Babulal ((1884) I. L. R. 6 All. 509) gave the fol....
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....appropriate to the subject with reference to which they functioned. It is not the garb under which they function that matters, but the nature of the power they exercise or the character of the function they perform is decisive. The question, therefore, in each case is, does the officer under a particular Act exercise the powers and discharge the duties of prevention and detection of crime ? If lie does, he will be a police officer. There is a conflict of judicial opinion on the question raised. The earliest decision, which was followed by other later decisions, is that of the Calcutta High Court in The Queen v. Hurribole Chunder Ghose((1876) 1.L.R. I Cal. 207.). The decision in that case was given in 1876. It indicates in a way how the courts understood the term "Police officer" in. or about the time when s. 25 was inserted in the Evidence Act: There the question was whether a Deputy Commissioner of Police before whom a prisoner made a statement was a police officer within the meaning of s. 25 of the Evidence Act. It was argued that the term "police officer" comprised only that class of persons who are called under the Bengal Police Act the members of the police force. Answering t....
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....e investigation of offences under particular Act he exercises the powers of an, officer in charge of a police station for the investigation of a cognizable offence conferred upon him by that Act." . This decision, therefore, accepted the principle that nomenclature given to a particular officer was not decisive of the question whether he was a police Officer, but the powers conferred upon him.afforded the criterion. It is true that s. 41 of the Bombay Abkari Act stated, "Every such officer shall in the conduct of such investigation exercise the powers conferred by the Code of Criminal Procedure, 1898, upon an officer in charge of a police- station for the investigation of a cognizable offence." But conferment of power on an officer by reference to another Act in only one of the legislative devices and such conferment also could be made by specific provisions in an Act without reference to another Act. A full Banch of the Calcutta High Court in Ameen Sharif v. Emperor()(1934) 1. L. R. 61 Cal. 607) adopted the same test for deciding whether an officer was a police officer or not. That decision related to an excise officer, and the Bengal Excise Act conferred powers on the excise of....
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....ested with the powers of an officer in charge of a police station for investigation of offences under s.20A of the Opium Act w as a "police officer" coming within the purview of s. 25 of the Evidence Act. Balakrishna Ayyar, J., made the following observations at p. 918 "There is no exhaustive definition of the expression 'Police Officer' in any of our statutes........... In the absence of a statutory definition, and, apart from all authority, one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such or, on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If he is not so called then the next step is to ask : what does the law require him to do ? What are the ditties imposed on him ? and what are the powers conferred on him ? If these are substantially those of a police officer there need be no qualms in regarding him as one. If his powers and duties are confined to a particular extent of territory or to a particular subject matter he will be a police officer only in respect of that territory or ....
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....turned specifically mentioned that in conducting the investigation particular officers would have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Criminal Procedure Code. I do not see how that circumstance makes a difference in the application of s. 25 of the Evidence Act. The fact that that Ordinance, by reference to the Code of Criminal Procedure, conferred powers on the Commercial Tax Officers, but the Sea Customs Act conferred similar powers not by reference to any Code, but by express enactment, could not make any difference in the application of the principle. I shall consider at a later stage the scope of the powers conferred by the Sea Customs Act on a Customs Officer in the matter of prevention, detection and investigation of crimes. The Punjab High Court, on the other hand, in Gopal Dass v. The State (A.I.R. 1959 Punjab 1 13) held that a Customs Officer under the Sea Customs Act had powers analogous to police powers relating to prevention or detection of crimes and, therefore, he was a police officer within the meaning of s. 25 of the Evidence Act. The Calcutta High Court in Fernandez. v. State (A.I.R. 1953 Cal. 21....
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....tention of the Legislature, but would also-make the section purposive and useful without doing any violence to the language of the section. A police officer within the meaning of s. 25 of the Evidence Act may be defined thus : An officer, by whatever designation he is called, on whom a statute substantially confers the powers and imposes the duties of the police is a police officer within the meaning of s. 25 of the Evidence Act. With this background let us scrutinize the provisions. of the Sea Customs Act to ascertain whether such powers have been conferred and duties imposed on a Customs officer. Section 167 of the Sea Customs Act opens out with the following words: "The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference 'to such offences respectively:" Chapter XVI of the Act deals with offences and penalties. Section. 167 provides penalties for offences in a tabular form. The first column gives the particulars of offences, the second column gives the section to which the offence has reference and the third column gives the penalties in respect of each offence. Apart from ....