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TMI Blog1926 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... onvicting the accused, the Magistrate has relied upon a certain confession alleged to have been made by them to the Excise officer. It is contended that this confession was inadmissible in evidence having regard to Section 25 of the Evidence Act. Accordingly, the Division Bench have submitted, this question to the Full Bench for decision. 4. Now Section 25 of the Indian Evidence Act provides: No confession made to a Police officer shall be proved as against a person accused of any offence 5. I may also refer to Section 125, which provides: No Magistrate or Police officer shall be completed to say whence he got any information as to the commissions of any offence, and no Revenue officer shall be compelled to, say whence he got any information as to the, commission of any offence against the public revenue. Explanation.--'Revenue officer' in this section means any officer employed in or about the business of any branch of public revenue. 6. Was then the Excise officer, in the present case, a Police officer within the meaning of Section 25 ? Now, it is quite clear that, under the Bombay Abkari Act 1878 as amended by subsequent Acts, certain important powers p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, to all intents and purposes, we get here a person exercising all the material powers of a Police officer, although he is not officially called by that name, but by the name of an Excise officer. 12. Now, what was the object of Section 25 of the Evidence Act ? It was, I take it to prevent the abuse of their powers by the police in this country in extorting confessions from persons in their custody ; and I take it that one of the most important periods, during which the accused persons were intended to be protected by the Legislature, was when the case was being investigated by the Police officers and when the accused were perhaps solely in police custody and not allowed to see any other person. Therefore, so far as the spirit of the Act is concerned, we have the same possibilities of evil, when an Excise officer investigates a case as we should have in the case of an investigation by Police officers in charge of a police station under the Criminal P.C., 13. How, then, have the Indian High Courts interpreted Section 25 of the Evidence Act ? The case of Queen v. Hurribole Chunder Ghose [1876] 1 Cal. 207, decided by Chief Justice Sir Richard Garth and Mr. Justice Pontif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Opium Act of 1878, there was given to the Excise officers certain limited powers of arrest, yet in Bengal, as opposed to Bombay, there have not been conferred on an Excise officer the powers of investigation and so on, which I have already alluded to. Accordingly, the Calcutta Court was dealing with a case where the officer at most had a limited power of arrest. It is urged by the pleader for the accused in his able argument, that this decision of the Calcutta Court was obiter, because the Court held that, in any event, the alleged confessions were not confessions within the meaning of Section 25 or Section 30, as they were really in the nature of exculpatory statements : see page 418. But I am not prepared to distinguish that case on that ground. The Court took the point as? to Section 2S first and held that the alleged confessions were admissible under Section 25. Consequently, that was sufficient to dispose of the case, and they need not have gone in to the further point as to whether the alleged confessions could be taken into consideration against the co-accused under Section 30. The judgment of Sir Lancelot Sanderson does not deal in any detail with the point which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have thereby, in effect made them Police officers within the meaning of Section 25, and that, accordingly, any confession made, to such an officer in the course of his investigation under the Abkari Act, or the Criminal Procedure Code, is inadmissible in evidence. 22. In this connexion, I should like to point out that it was open to the Legislature or to Government to do one of two or three things. It could detach ordinary Police officers to investigate excise offences. Or, on the other land, it could appoint other officers of Government or new officers to perform the duties of investigation and arrest and so on, which had previously been performed by ordinary Police officers. Whichever course was adopted, any alleged offence would, in effect, be investigated by persons in the position of policemen. In this very case it would appear that the effect of the above sections of the Abkari Act is that certain duties, which previously fell upon ordinary Police officers, are in fact now being carried out by the Abkari-officers, who have been given these particular police powers. We have even been told by counsel that persons arrested for Excise offences are not now taken to the ordina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the section is not to be understood in any technical sense, but includes an officer who is vested with the powers of the police by law. In the present case the officer concerned has got certain powers under the sections of the Bombay Abkari Act. It is not necessary for me to refer to all the sections under which he has got certain limited powers of arrest and search. But it is important to note that, before the present Section 41 was enacted by the Amending Act (Bom. Act XII of 1912), under the old Section 41 he had practically no powers of investigation, and that, after an accused person was arrested it was part of his duty to send , him to an officer in charge of a police station. That section, as it stood before 1912, was altered by the Legislature and it has been provided in Sub-section (2) of Section 41 that: Every such officer [i. e. the officer referred to in Sub-section (1)] 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. 27. Taking the other sections of the Act under which he has got certain limited powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Excise officers exercising the powers, under Section 20 of the Opium Act as amended by the Bombay Act, would not be Police officers. With the utmost respect I am unable to accept that view, which does not appear to me to accord with the true meaning of Section 25 of the Indian Evidence Act. C.G.H. Fawcett, J. 30. I am of the same opinion. The view taken in the leading case. Queen v. Hurribole Chunder Ghose [1876] 1 Cal. 207, that the term 'Police officer' in Section 25 of the Evidence Act should be read not in any strict technical sense, but according to its more comprehensive and popular meaning, is one which was arrived at only four years after the Evidence Act was enacted. That construction has been followed by this Court, as well as other High Courts; and, if the Legislature had considered that that was a wrong construction to put upon the term 'Police officer' in Section 25 of the Evidence Act, the probability is that the section would have been amended so as to overrule such a construction. Therefore, when the learned Advocate-General contends that Section 25 of the Evidence Act does not cover a Revenue officer, or any other officer on whom by statu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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