TaxTMI 
TaxTMI 
1990 (3) TMI 73
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....said truck was recovered. The machinery was meant to be exported to Saudi-Arabia and the United Kingdom by M/s. Northern Exports (Importers, Exporters and Commission Agents) and M/s. Modern Machinery and Instruments, both @f New Delhi. After the hashish was found hidden in the machines loaded in the said vehicle, the same was attached under a seizure memo. Joginder Singh and Shivraj Singh, the drivers of the vehicle, were apprehended on the spot by the DRI officials. 3. The disclosure made by these two drivers led to the search of a Farm House at Khasra No. 417, Gadaipur, Mehrauli, New Delhi on the 13th/14th and 15th of July, 1986. In the course of the said search hashish weighing about 976 Kgs. was recovered from the machines lying in the said premises and a further quantity of 365 Kgs. was recovered from gunny bags which were secreted underground in the out-house of the Farm House. The DRI officials learnt in the course of investigation that the said hashish was to be exported through M/s. Lee Muirhead (I) Ltd., and M/s. Shiekh and Pandit, of Calcutta. Mohan Lal Pandit and Tushar Pandit, the partners of the said two firms, respectively, were arrested. One Subhash Narang who wa....
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.... disposal in accordance with law to the learned Single Judge. It is against this conclusion reached by the Division Bench of the High Court that the appellants are before us. 5. Section 25 of the Evidence Act reads as under : "No confession made to apolice officer shall be proved as against a person accused of any offence". (Emphasis supplied). Thus a confession made to a police officer cannot be used or tendered in evidence as against a person accused of any offence. Section 26 next provides that no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Section. 27, which is in the nature of an exception to Sections 25 and 26, provides that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The restriction on admissibility of a confession of an accused person imposed by Sections 25 and 26 of the Evidence ....
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.... the Evidence Act. To buttress this submission our attention was invited to Section 2 (xxix) of the Act which says that words and expressions used in the Act but not defined will have the same meaning as is assigned to them in the Code. Since the word 'investigation' is not defined in the Act, counsel submitted, that we must look to Section 2(h) of the Code which defines the said expression to include all proceedings under the Code for the collection of evidence conducted by a police officer. Section 4(2) of the Code next provides that all offences under any other law, i.e., other than the Indian Penal Code, shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It was argued that since the Act does not regulate the manner of investigation, the investigation must be made in accordance with the provisions in that behalf contained in Chapter XII of the Code; it must, therefore, be assumed that the officer investigating the crime under the Act is a "police officer", pro....
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....rious terms and expressions used therein and provisions enabling addition to and omission from the list of psychotropic substances. Chapter II entitled 'Authorities & Officers' empowers the Central as well as the State Governments to make appointments of certain officers, etc. for the purposes of the Act. The newly added Chapter IIA provides for the Constitution of a national fund for control of drug abuse. Provision for the prohibition, control and regulation on cultivation, production, manufacture, etc., of any narcotic drug or psychotropic substance is to be found in Chapter III. Chapter IV defines the offences punishable under the Act and prescribes the penalties therefor. Needless to say that the punishments prescribed are very severe. In some cases the minimum punishment is 10 years with fine extending to Rs. 2 lacs and above. By a recent amendment death penalty is prescribed for certain offences committed by persons after a previous conviction. Provision for rebuttable presumption of mens-rea-culpable mental state is also made under Section 35 and Special Courts are envisaged by Sections 36 and 36A for the trial of offences punishable under the Act. Every offence punishable ....
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....on of offences, during the course of such investigation, relevant in certain circumstances e.g., when the maker of the statement is dead or cannot be traced or is incapable of giving evidence or is kept away by the opposite party or whose presence cannot be secured without delay or when he is examined as a witness in the case. Section 54 permits raising of a rebuttable presumption against an accused in a trial for any offence under the Act to the extent permitted by clauses (a) to (d) thereof. Section 55 enjoins upon an officer-in-charge of a police station to take charge of and keep in safe custody any article seized under the Act and made over to him. Section 57 enjoins upon the officer making an arrest or effecting seizure under the Act to make a full report thereof to his immediate superior within 48 hours. Section 58 provides the punishment for vexatious entry, search, seizure or arrest. Section 67 empowers an authorised officer to call for information or require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case. The newly added Chapter VA deals with forfeiture ....
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....officers. See The State of Punjab v. Barkat Ram 1962 (3) SCR 338 at 347 and Raja Ram Jaiswal v. State of Bihar 1964 (2) SCR 752 at 761. This view has been reiterated in subsequent cases also. 12. The question then is whether the expression "police officer", even if liberally construed, would take in its fold officers of other departments including the DRI invested with powers under Section 53 of the Act. According to the view taken by the Bombay High Court in Sheikh Ahmed v. Emperor (1927) I.L.R. 51 Bombay 78 they perhaps would, but not if the view expressed by the Patna High Court in Radha Kishan Marwari'v. King Emperor (1933) I.L.R. 12 Patna 46 prevails. These two lines of thought have been the subject matter of scrutiny by this Court in a few subsequent cases. We will presently refer to them. 13. In the case of Barkat Ram this Court was called upon to consider whether Customs Officers to whom confessional statements were made could be said to be police officers within the meaning of Section 25, Evidence Act. On behalf of the prosecution it was argued that the mere fact that certain powers of arrest, search, seizure and recording of evidence have been conferred on such offi....
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....s not define a 'police officer' and ss. 5(2) thereof makes the procedure prescribed by the Code subject to the procedure that may be prescribed by any specific Act. This construction would make the provisions of s. 25 of the Evidence Act otiose in respect of officers on whom specific and incontrovertible police powers are conferred. But the third position would not only carry out the intention 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 ss. 25 of the Evidence Act". In the final analysis this Court held that the duties of the Customs Officer were substantially different from those of the police and merely because they possessed certain powers having similarity with those of police officers, cannot make them police officers within the meaning of Section 25 of the Evidence Act. 14. In the case of Raja Rani Jaiswal the undisputed fa....
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..... Accordingly, it held that the Central Excise Officer was not a police officer under Section 25 of the Evidence Act. This Court while dealing with the submission based on Section 21(2) of the Central Excises & Salt Act, 1944, observed that even though this sub-section confers on the Central Excise Officer the same powers as an officer-in-charge of a police station investigating a cognizable case "it does not, however, appear that a Central Excise Officer under the Act has power to submit a charge-sheet under Section 173 of the Code....". Thus the ratio of the decision appears to be that even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code. 16. In Romesh Chandra Mehta v. State of West Bengal 1969 (2) S.C.R. 461 a bench of five learned Judges held: "... the test for determining whether an officer of customs is to be deemed a police officer is whether he is invested with all the powers of a police officer qu....
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....rpose of holding the inquiry". 19. In a more recent case, Balkishan A. Devidayal etc. v. State of Maharashtra etc. 1981 (1) SCR 175 the question which arose for determination was whether an Inspector of the Railway Protection Force enquiring into an offence under Section 3 of the Railway Property (Unlawful Possession) Act, 1966, can be said to be a "police officer" under Section 25, Evidence Act. This Court, after a review of the case law, concluded at page 201 as under : "In the light of the above discussion, it is clear that an officer of the RPF conducting an enquiry under Section 8(1) of the 1966 Act has not been invested with all the powers of an officer-in-charge of a police station making an investigation under Chapter XIV of the Code. Particularly, he has no power to initiate prosecution by filing a charge-sheet before the Magistrate concerned under Section 173 of the Code, which has been held to be the clinching attribute of an investigating 'police officer'. Thus, judged by the test laid down in Badku Jyoti Savant's which has been consistently adopted in the subsequent decisions noticed above. Inspector Kakade of the RPF could not be deemed to be a 'police officer' ....
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....h he has reason to believe an offence punishable under Chapter IV has been committed, and along there with any animal or conveyance or article liable to confiscation under the Act and any document or other article which furnishes evidence of the commission of the offence relating to such drug or substance. Power is also conferred on such an officer to detain and search any person whom he has reason to believe to have committed an offence under Chapter IV and if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him unlawful, arrest him, and any other person in his company. By Section 44 the provisions of Sections 41, 42 and 43 are made applicable in relation to offences concerning coca plant, opium poppy or cannabis plant. Where it is not practicable to seize any goods (including standing crop) liable to confiscation, any officer duly authorised under Section 42 is empowered to serve on the owner or person in possession of the goods, an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of such officer. Section 48 confers on the Magistrate or any officer of the gaze....
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....hin the local area of that police station and which may be delivered to him. Section 57 enjoins upon any officer making an arrest or effecting seizure under the Act to make a full report of all the particulars of such arrest or seizure to his immediate official superior within 48 hours next after such arrest or seizure. These provisions found in Chapter V of the Act show that there is nothing in the Act to indicate that all the powers under Chapter XII of the Code, including the power to file a report under Section 173 of the Code have been expressly conferred on officers who are invested with the powers of an officer-in-charge of a police station under Section 53, for the purpose of investigation of offences under the Act. 21. The Act was enacted for the control and regulation of operations relating to narcotic drugs and psychotropic substances. Under Sections 41, 42, 43, 44 and 49 of the Act certain powers of arrest, search and seizure have been conferred on certain officers of different departments. If the arrest or seizure is made pursuant to a warrant issued under Section 41(1), the person arrested or the article seized has to be forwarded to the Magistrate with despatch. I....
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....ll proceedings under the Code for collection of evidence conducted by a police officer or by any person authorised by a magistrate in this behalf. Under Section 4(2) of the Code all offences under any other law have to be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code. However, according to Section 5, nothing contained in the Code shall, unless otherwise provided, affect any special or local law or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The power to investigate is to be found in Chapter XII of the Code which begins with Section 154 and ends with Section 176. The scheme of this Chapter is that the law can be set in motion in regard to a cognizable offence on receipt of information, written or oral, by the officer-in-charge of a police station. Once such information is received and registered, Section 156 empowers any officer-in-charge of the police station to investigate the same without any magisterial order. The investigation which so commences must be concluded, without unnecessary delay, by the submission of a report unde....