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TMI Blog1934 (2) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise, exercises the powers conferred by the Code of Criminal Procedure upon an officer in charge of a Police Station for the investigation of a cognizable offence, a Police Officer within the meaning of Section 25, Evidence Act. 3. So far as this Court is concerned, the following is the state of authority bearing upon the question. In Rokun Ali v. Emperor AIE 1918 Cal 138, which was a case Under Section 9, Opium Act (l of 1878), a confession made by the accused to a Superintendent of Excise was admitted against him in evidence, it being held that there was no inducement, threat or promise to shut it out Under Section 24, Evidence Act; but the question whether Section 25 of the said Act applied to the case or not was neither raised nor decided. In Ah Foong Chinaman v. Emperor AIE 1919 Cal 696, which also was a case Under Section 9, Opium Act (l of 1878), a confession made by the accused to an Inspector of Excise was sought to be ruled out on the ground that Excise Officers were in reality Police Officers, though not called as such ; but the contention was overruled, it being only observed that it was not possible to say that Excise Officers were Police Officers. This last-m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning of Section 25, Evidence Act. Later on however in the case of Matilal Kalwar v. Emperor AIR1932Cal122 , the view taken in the earlier Calcutta decisions has again been taken and it has been again held that an Excise Officer is not a Police Officer within the meaning of Section 25, Evidence Act. 5. It is apparent therefore that there is a conflict of judicial authority on the question whether an Excise Officer is a Police Officer within the meaning of Section 25, Evidence Act. The question formulated and referred as above stated however does not cover the entire ground of the conflict and, following as it closely does the wording of the question which was referred in the Bombay case above-mentioned, is some what inapposite, because it is clear from a comparison of, the relevant provisions of the Opium Act (1 of 1878), which is the Act to be considered in this connexion, and of the Bengal Excise Act (5 of 1909), the powers of an Excise Officer while investigating into offences under the said two Acts respectively are not quite the same; the Opium (Bengal) Amendment Act (5 B. C. of 1933) which has been recently enacted to amend the Opium Act (1 of 1878), in its application to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a larger sense than their ordinary meaning the Court is bound to read them in that sense: (Beale on Cardinal Rules of Legal Interpretation, Edn. 2, p. 333). 7. The Evidence Act is now more than half a century old, and though it may not rank with ancient statutes in the sense in which that expression is used in forensic language, the principle will hold good that great regard ought to be paid, in construing a statute, to the construction which was put upon it by those who lived about the time or soon after it was made, because the meaning which a particular word or expression bore in those days may have got mixed up or blurred during the interval that has elapsed. From this point of view, I regard the decision of this Court in the case of Queen v. Hurrybole Chunder Ghose (1876) 1 Cal 207, as a decision of very great importance. It is true that the facts of that case were very different from those of the cases which have given rise to the present question. And this fact has been very forcibly pointed out in the decision of the Patna High Court in the case of Radha Kishun Marwari v. Emperor AIR 1932 Pat 298. But it seems to me that the most important aspect of the weighty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd in the Full Bench decision of the Allahabad High Court in the celebrated case of Queen-Empress v. Babu Lal (1884) 6 All 509. In that case it has been shown how for the first time a new rule came into existence in the shape of Section 148, Criminal P. C. (Act 25 of 1861), which in the most imperative terms laid down that: No confession or admission made to a police officer, shall be used as evidence against an accused person. 11. And it is this rule which thus came into existence strictly speaking not as a rule of evidence, but rather as a rule governing the action of Police Officers and as a matter of criminal procedure, that was subsequently removed into the Evidence Act in 1872, in Section 25 as a rule of evidence. Act 25 of 1861 received the assent of the Governor-General in Council on 5th September 1861. In it the powers and duties of Police Officers of different grades acting under the Code were defined, but the term Police Officer itself was not defined. But a few months before, another Act, namely the General Police Act (5 of 1861) had been passed in which there was a definition or rather interpretation of the word police in its Section 1 which said: The wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or phrases must be construed as comprehending not only such things as they signify according to their natural import but those things which the interpretation clause declares that they shall include: see Per Lord Watson in Dilworth v. Commissioners of Stamps (1899) AC 99 at pp. 105 to 106. The natural import of the word police as understood in 1861, therefore was something more than the Police Force enrolled Under Act 5 of 1861. The preamble to the Act says: Whereas it is expedient to re-organize the Police and to make it a more efficient instrument for the prevention and detection of crime. 15. And Section 6 of the Act, which conferred Magisterial powers upon certain supe rior officers of the police says: They shall be so invested only so far as may be necessary for the preservation of the peace, the prevention of crime, and the detection, apprehension and detention of offenders in order to their being brought before a Magistrate. 16. The police therefore were instruments for the prevention and detection of crimes with the concomitant powers of apprehension and detention of offenders in order to their being brought to justice, such powers varying according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer within the meaning of Section 25, Evidence Act, Queen.Empress v. Salemuddin (1899) 26 Cal 569, Queen-Empress v. Indra Chandra Pal 2 CWN 637. Queen. Empress v. Keta Baisnavi 2 CWN (180). Also Nazir Jharu dar v. King.Emperor 9 CWN 474, in which the admissibility of a confession before a chowkidar was doubted. In one of these cases, namely lndra Chandra Pal's case 2 CWN 637 it was pointed out that a chowkidar, although he is not a Police Officer under Act 5 of 1861 is a Police Officer under Regn. 20 of 1817 and Act 1 of 1892. The contrary view which was taken in the case of Queen-Empress v. Bepin Bihari Dey 2 CWN 71 and which is no longer tenable in view of the express enactments relied upon in lndra Chandra Pal's case 2 CWN 637, was based upon the distinction that a chowkidar had no power of holding an investigation for the purpose of detecting offenders. The learned Judges said in that case: The reason why the law in Sections 25 and 26; Evidence Act, jealously excludes a confession made to Police Officer, and a confession made by an accused whilst in the custody of a Police Officer unless it be made in the immediate presence of a Magistrate, is that there is room fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole department working for a common end, namely the prevention and detection of crime, and crimes which were previously unprovided for, being gradually brought in within their cognizance. 19. From the year 1773 the monopoly of opium was first assumed in behalf of the company and by 1797-98 the system of providing opium by agencies in the Provinces of Bengal, Bihar, Orissa and Benares was completely established. The intermediate Regulations by which opium monopoly was gradually systematized need not be referred to because all of them were superseded by Regn. 13 of 1816: see Harrington's Analysis, Part 6, Section 3. 20. It will be seen from this Regulation that while opium was made into a separate department for the purpose of revenue, Police and Abkari Darogas were to act simultaneously for the prevention and detection of offences committed in breach of the Regulation (e.g., see Sections 32, 33, 35, 36 etc). In the Opium Act (13 of 1857) there are also similar provisions, e.g., see Sections 22, 23 and 24. Section 22 enjoined land-holders and others to give information of illegal cultivation of poppy to the Police or Abkari Darogas or Opium Gomasthas. Section 23 provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the discharge of their duties (vide Section 23 of the Regulation). There were no other enactments on this subject prior to 1872 which are worth mentioning in this connexion. From what has been stated above, I think it is clear that before 1872 when the Evidence Act was enacted, except as regards the illegal cultivation of poppy in respect of which an officer concerned had received intelligence, a matter which was dealt with by Section 24, Opium Act 13 of 1857, no police powers were exercisable by officers of the Opium or the Excise Department. And it is also clear that the aforesaid provision namely Section 24 of Act 13 of 1857, gave only a very limited power to hold a summary inquiry and to grant bail or to send the offender in custody. On the other hand in the matter of prevention and detection of such offences as related to these branches of revenue, Abkari and Excise Officers as well as policemen worked hand in hand. And this, I understand, is why even to-day men of the excise are not unoften in common parlance in Bengali called men of the Abkari Police. 23. It was in this state of the law that in 1872 the Evidence Act was enacted, and in that Act the legislature did not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and revenue officers. 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 he is holding an investigation or not, while no such disability can be said to have been intended in the case of an Excise Officer. So far as the first of these points is concerned I entirely agree in what was said by Marten, C.J., in the case of Nanoo v. Emperor (5) (at p. 95 of 51 Bom) to meet it. And as regards the second point I need only observe that whereas police officers by reason of Section 22 of Act 5 of 1861 are to be always 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 they may be regarded as police officers. In the conclusion that I have arrived at as stated above, I feel fortified by the intention, as I appreciate it, of the legislature as expressed in the enactments that have come into being since 1872. The powers and duties of Excise Officers investigating offences have been gradually brought more an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Opium (Bengal Amendment) Act, 1933-Bengal Act 5 of 1933, and I think we may take it that by virtue of those provisions an officer acting under the Opium Act is now very much in the same position as an ordinary Excise Officer. The question which we have to decide may be simply stated in this form. Is an Excise Officer a Police Officer for the purpose of Section 25, Evidence Act? At first glance one would be disposed without any hesitation to reply that, of course, an Excise Officer is not a police officer. I concede however that the matter cannot be disposed of quite so summarily or so succinctly as that because the problem is complicated by the provisions of Section 74, Excise Act. No doubt in order to come to a decision on the point it is desirable if not indeed necessary to delve into the history of the relevant legislation, but it is of even greater importance in my opinion to remember at the outset that the Evidence Act contains those provisions which are set forth in Section 24, Evidence Act, as well as the provisions in Sections 25, 26 and 27. 27. The learned advocate who appeared before us on behalf of the appellant to argue against the admissibility of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Vacher and Sons., Ltd. v. London Society of Compositors (1913) AC 107 as an authority for the proposition that for the purpose of construing words used in a statutory enactment the grammatical and ordinary sense of the words is to be adhered to. Lord Macnaughten quoted the warning given by Tindal, C.J., in the Sussex Peerage case (1844) 11 Cl and F 85 (at p. 143), which is to this effect: If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expand these words in their natural and ordinary sense. The words themselves alone do, in each case best declare the intention of the legislature. 28. In this connexion I would also refer to the case of Satish Chandra Chakravarli v. Ram Doyal De AIR 1921 Cal 1, where a Full Bench of this Court emphasized the proposition that the Court must administer the law as prescribed by the legislature and neither enlarge nor restrict its scope. It seems to me therefore that as a matter of first impression one ought quite definitely to conclude that when the legislature conferred upon the people of this country, the important privilege now contained in the provisions of Section 25, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge as against the community at large. 30. The provisions of Section 24 are themselves extremely wide and it is difficult to see why it should have been thought necessary wholly to exclude for example the incriminating statement of an individual who entirely of his own volition has walked into a police station or addressed a police officer and announced that he has done something which is a contravention of the criminal law. The provisions of Section 24 are of course sufficient to exclude any confessions which are not made entirely voluntarily. To my mind it is clear that in effect the provisions of Section 25 cast a very serious stigma upon the integrity of the police as such and one ought to hesitate a long time and be absolutely sure of the necessity for so doing before extending the scope of Section 25 in such a way as to cast an equal stigma upon officers engaged in the excise service. Moreover one ought to be satisfied beyond all doubt whatever before coming to a conclusion which has the effect of further weighing the scales of justice in favour of wrong-doers as against those charged with the prevention, detection and punishment of contraventions of public law. It has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s now settled law that an excise officer is not a police officer within the meaning of the Evidence Act. 33. They in fact followed the case of Ah Foong v. Emperor AIR 1919 Cal 696. In the same year there was a decision on similar lines in the Bombay High Court in Raphael Pereira v. Emperor AIR1926Bom517 . In the following year again there was the decision of this Court in the case of Har bhanjan Sao v. Emperor AIR1927Cal527 , where again Suhrawardy. J., and Mitter, J., held that a confession made to an Excise Officer is admissible in evidence as an Excise Officer is not a Police Officer and Section 25, Evidence Act, does not apply to such a confession. Two years later there was a case in the Rangoon High Court, Maung San Myin v. Emperor AIR 1930 Rang 49, where it was held that although the Excise Officer concerned in the case had powers of arrest, search, granting bail and so on, under the Burma Excise Act, 1917, he was not a Police Officer. Therefore the admission made to such an Excise Officer was admissible in evidence. There is a passage in the judgment of Baguley, J., in this case where in dealing with the previous decision of V.R.Venkataraman v. Emperor (1909) 3UBR1 the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 25, Evidence Act. The point may be arguable but so far as this Court is concerned it is not now resintegra. It has been held in several cases that he is not, in Harbhanjan Sao v. Emperor AIR 1930 Rang 49, Bohumali v. Emperor AIR 1918 Cal 138 and Ah Foong v. Emperor AIR 1919 Cal 696. Reference has been made to a Full Bench decision of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor AIR1927Bom4 . 36. The learned Chief Justice giving the judgment of the Full Bench at p. 93 of the report distinguished the Calcutta case on the ground that Abkari law in Calcutta was different from that in Bombay and that the latter was more stringent than the former. This point is settled by authorities of this Court and as the law now stands an Excise Officer is not a Police Officer within the meaning of Section 25, Evidence Act. As a branch of this ground Mr. Pal has also argued that Under Section 74, Bengal Excise Act, 1909, an Excise Officer is a Police Officer within the meaning of Section 162, Criminal P. C. and any statement made to him cannot be proved against the accused. Under Section 74, Excise Act, whenever an Excise Officer suspects the commission of an offence he is empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the course of his argument admitted to all intents and purposes that what he was contending for, was that the Court should in effect arrogate to it the functions of the legislature and insert into Section 25, Evidence Act, after the words police officer some such expression or such other persons as may from time to time and for certain purposes be acting as police officers under some statutory authority. I can only repeat that had the legislature in the year 1861 or in the year 1872 or at any subsequent time intended any such thing, in my opinion they would have said so in clear and unmistakable terms and it is not for this Court or any other Court to vary or add to the plain language of Section 25, particularly having regard to the fact which I have already emphasized- that any addition upon the lines indicated would have the effect of conferring the extraordinary privilege given by Section 25 on an additional class of wrong-doers and indeed confer on a limited class of the community an indulgence of a kind not enjoyed in all probability by any one in any country other than India. 39. The decision of the Full Bench of the Bombay High Court was followed by Section by S.K. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... police officers for the purpose of Section 25, Evidence Act. It cannot in my opinion be too often emphasized that as Section 25 contains an absolute prohibition and an unqualified exclusion of statements which under English criminal jurisprudence would generally speaking be regarded not only as admissible but valuable evidence, the provisions must be strictly construed and not extended by inductive reasoning or by the presumed effect of other statutes not directly concerned with the law of evidence. The transferring of the provisions now contained in Section 25, from Criminal P. C, to the Evidence Act indicates that the legislature intended that they should be treated solely under the law of evidence and nothing else. It is noteworthy that despite the decision of the Full Bench of the Bombay High Court and the judgment of S.K.Ghose, J., to which I have just referred, Sir C.C. Ghose while acting as Chief Justice of this Court-with the concurrence of Pearson J., preferred to follow the earlier decisions of this Court: see Mati Lal Kalowar v. Emperor AIR 1932 Cal 122, and so accordingly held that an Excise Sub-Inspector is not a police officer within the meaning of Section 25, Evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kerji, J., has cited in his judgment as supporting a contrary view. That case as Mukerji, J., observed was decided within a few years of the passing of the Evidence Act. The learned Chief Justice said: The term Police officer should be read not in any strict technical sense, but according to its more comprehensive and popular meaning. 45. In my opinion although the observations to that effect are relied on in support of the view that Excise Officers are Police Officers, they may equally well and indeed with greater justification be taken to operate in the reverse sense, for one would imagine that no ordinary member of the public would have it in mind to identify an Excise Officer with a Police Officer for all purposes. I am supported in this view by the observations of Sir Courtney Terrel in the recent Patna case to which I shall refer in detail presently. It is in my judgment of supreme significance that as recently as last year in the Opium (Bengal Amendment) Act 1933, Officers of Excise are definitely differentiated from Police Officers, the categories referred to in that Act being Officers of the Excise, Police and Customs. We find for example in Section 20-J(1) this pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l P. C, if an enquiry or investigation under that section is delegated to a private person, such person is to exercise all the powers conferred by the Code of Criminal Procedure on an officer in charge of the police station except that he is not to have the powers to arrest without warrant. 51. Are we then to suppose that such a private individual should also be regarded as a Police Officer within the meaning of Section 25, Evidence Act? Another of the learned Judges discussing the same point said: It may be observed however that there are officers who have no powers of investigation under Criminal Procedure Code, e.g., police constables, and yet such officers are nevertheless Police Officers within the meaning of Section 25, Evidence Act. The mere possession of certain of the powers of a Police Officer even though those powers include the power of investigation under the Code, does not suffice, in my opinion to convert into a Police Officer one who has no other claim to that status; e.g., Section 202, Criminal P. C, empowers a Magistrate receiving a complaint to direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a Police Officer or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , has been misunderstood as a decision that the term includes not only Police Officers but any on whom is conferred the powers of a Police Officer, although it has nowhere been decided what minimum aggregation of functions will constitute any person a Police Officer within the meaning of the section. 56. I would most emphatically agree with Sir Courtney-Terrell where he says the fact is that the term 'Police Officer' is sufficiently well understood to allow of its use without any precise definition. It is well recognized that different countries and states confer upon their respective Police Officers different powers. Nevertheless it is not difficult to decide whether any particular individual is or is not a Police Officer in any particular country and it has been held that: A confession made to a Police Officer of a foreign force in the country where he is in fact a Police Officer is not admissible in an Indian trial. 57. Sir Courtney-Terrell then proceeds to deal with the second of the two fallacies underlying the decision in the Bombay case and all the decisions which would identify an Excise Officer with a Police Officer for the purposes of Section 25. The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in evidence unless it could be ruled out, under the provisions of Section 24, Evidence Act. Having regard to the importance of this matter to the public and the State and in view of the confusion set up by conflicting decisions it would seem desirable that the legislature should deal with the matter again and give a clear definition of what it is intended the section should cover and possibly whether the time has not now come when the slur on the police implied in Section 25 should not be removed by the repeal of the section altogether seeing that the provisions of Section 24 afford ample safeguards against any real oppression or coercion. Mallik, J. 60. I agree with my learned brother Mukerji, J. Jack, J. 61. The question referred to us is whether an Excise Officer who in the conduct of the investigation of an offence against the Excise, exercises the powers conferred by the Code of Criminal Procedure upon an officer in charge of a Police Station for the investigation of a cognizable offence, is a Police Officer within the meaning of Section 25, Evidence Act. Section 25, Evidence Act states that: No confession made to a Police Officer shall be proved as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confessions made to persons other than Police Officers surely it would have introduced words to that effect in the section, at least after Excise Officers were given police powers. I would suggest that there was no need to do so because Section 74, Excise Act, gives Excise Officers while engaged in the investigation of an excise case the status of a Police Officer for purposes of the investigation of the case, and the recording of a confession would be part of the investigation: Where the words of a statute are themselves precise and unambiguous those words are to be taken in their ordinary meaning. 66. There is, I think, no ambiguity in the term Police Officer, and therefore it was not considered necessary to give any definition of the term in the Evidence Act or in any other statute; we have simply to take the words in their ordinary meaning. Sir Richard Garth in the case of Queen v. Hurribola Ghunder Ghose (1876) 1 Cal 207 says: I consider that the term Police Officer should be read not in any strict technical sense, but according to its more comprehensive and popular meaning. In common parlance and amongst the generality of people the Commissioner and Deputy Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... speaking, arise out of the appeal which is against a conviction Under Section 9, Opium Act, and not one under the Bengal Excise Act 5 of 1909. He has however said that in view of the importance of the matter he would not press this technical objection and he has invited us to give our opinion on the question as stated above. The decision of this question turns upon a construction of Section 25, Evidence Act; in particular, upon a construction of the words police officer occurring therein. Sections 25, 26 and 27 were embodied in the Evidence Act from the Criminal Procedure Code, Act 25 of 1861. This is how Stephen puts the matter: I may observe upon the provisions relating to them that Sections 25, 26 and 27 were transferred to the Evidence verbatim from the Code of Criminal Procedure, Act 25 of 1661. 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. (Stephen's Introduction to the Evidence Act, p. 171.) 70. The provision in Section 25 is definite and explicit; for our purpose the expressions police officer an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Police Act (Act 4 of 1866) does contain a definition of police officer, but it is merely that it shall mean any member of the Calcutta Police Force. 73. It also prescribes the duties (Section 10-A) which arising out of the exigencies of city, are not identical with the duties prescribed by Section 23 of Act 5 of 1861. No doubt the legislature of 1872 was cognisant of the duties and powers of a police officer of that period. But it is noteworthy that it used the words police officer in Section 25, Evidence Act, without any qualifying expression. By a later provision in Section 125 which was passed in 1887 a reference was made to revenue officer as distinct from police officer. But in Section 25 the expression police officer remained without any differentiation or amendment. On the other hand, the section applies to a person accused of any offence. Since 1872 not only have new offences been created by later Acts, but new bodies of officers have been created who are vested with powers of police with regard to these offences. Would that make any difference to the application of the section to those officers? I think not. 74. The scheme of the Act with regard to con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the words may be modified, so as to avoid that absurdity, repugnance and inconsistency, but no further. (Beal's Cardinal Rules of Legal Interpretation, 3rd Edn., p. 343, et seq.) 76. Where the authorities are collected, it does not seem to me that the interpretation which I have sought to put upon Section 25 goes contrary to this maxim. With great respect the opposite contention results in a stilted, narrow, and superficial view of law, by the application as it were of a copy book maxim. The words police officer may be plain, but they are not defined in the Evidence Act. The contention that the term applies only to members of the police force is not borne out by authority. On the other hand it is quite consistent with the scheme of the Act that a person who exercises the powers of a police officer should be hit by the prohibitive provision in Section 25. 77. What is the position of an excise officer in an excise case? We find that in an excise case an excise officer is the real police officer. He is so by statute. In practice he is often the only police officer in the case. The provisions of the Bengal Excise Act of 1909 make it quite clear that an excise officer ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a slipshod and negligent manner. 79. In the Calcutta High Court there is a number of cases in which the view has been taken that a excise officer is not a police officer for the purpose of Section 25, Evidence Act. These cases are Rukumali v. Emperor AIR 1918 Cal 138; Ah Foong Chinaman v. Emperor AIR 1919 Cal 696; Harbhanjan Sao v. King-Emperor AIR1927Cal527 ; Tura Sardar v. Emperor AIR 1980 Cal 710 and Matilal Kalwar v. Emperor AIR1932Cal122 . In none of these cases however the question of an excise officer exercising powers of a police officer was discussed and it does not seem that in any of these cases except the last mentioned the attention of the learned Judges was directed to the material provisions of the Excise Act. In the case of Tura Sardar v. Emperor AIR 1980 Cal 710 it was held that the question did not arise having regard to the facts of the case. In the case of Matilal Kalwar v. Emperor AIR1932Cal122 , the case of Ibrahim Ahmed v. Emperor AIR1931Cal350 , was not followed, because in that case it was not thought necessary to refer the matter to a Full Bench for decision. In the case of Ibrahim Ahmed v. Emperor AIR1931Cal350 , the position of an excise officer with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of an accused person one certainly would not make a distinction as between an excise officer and a police officer. All this cannot be dismissed as a popular misconception, for it is no misconception at all. On the other hand it is in keeping with the Oxford Dictionary definition of the Word 'police' which is quoted in the judgment just delivered by my learned brother Mu-kerji, J. It may be that the power to investigate is not a complete test, because a police constable has no power to investigate ; one is landed in this sort of difficulty in trying to get at an exhaustive definition of the term 'police officer.' Nor should the case of a person who has been directed to inquire into a case Under Section 202, Criminal P. C, create any difficulty on the ground that by Sub-section (2) such a person shall exercise the powers of an officer in charge of a police station, for such a person would not have the power to arrest without warrant ; he is only to investigate for the purpose of ascertaining the truth or falsehood of the complaint and for that purpose to take evidence, as for instance, Under Section 161 of the Code, and not to prevent or detect a crime or appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to Act 1 of 1878. But the effect of the amendment by the Bengal Act 5 of 1933 is to bring the position in Bengal more completely into line with that under the Excise Act. By Section 12, Amendment Act the Local Government may authorize any class of officers of the Excise, Police or Customs Department to investigate offences and to grant bail to persons as arrested. They become the investigating police, with the necessary police powers. It is also enacted that the provisions of Section 162, Criminal P. C. shall apply to statements of witnesses as recorded, and also that the provisions of Section 172 of the Code shall apply to the diary of proceedings in investigation which is required to be kept. No doubt excise, police and customs officers are distinctly mentioned, but the distinction in nomenclature is purely departmental. In respect of their powers they are all the same. In practice too there is no difference from the point of view of an accused person between an officer acting under the Opium Act and an officer under the Excise Act. In the view that I have taken it seems to me that no exception should be made in the case of an officer under the Opium Act. He also is a polic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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