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TMI Blog1967 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... case was being heard contending that the statement recorded by the Customs officer under S. 108 of the Act of 1962 was not admissible in evidence as being hit by S. 25 of the Indian Evidence Act. 2. In Criminal Revision Application No. 447 of 1967 the offence is alleged to have occurred on December 26, 1964, when five hundred forty watches were seized from the petitioner, Dady Fatakia. In his case also he was served with a summons under S. 108 of the said Act and his statement was recorded by the Customs Officer. Eventually, a complaint was filed against him also on September 21, 1966. He also filled an application contending that his statement was not admissible in evidence because it was hit by S. 25 of the Indian Evidence Act. 3. In Criminal Revision Application No. 475 of 1967 the offence is alleged to have occurred on May 30, 1965, when eleven thousand tolas of gold, were seized from the Petitioner, Punamchand Chopra. In this case the petitioner was accused No. 2 He also raised a similar contention. We are told, in his case, the statement was recorded under S. 107 of the Act of 1962. When the statement was being relied upon before the trial Magistrate, he raised a simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court, observing that the Customs officer is 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 an safeguarding the recovery of customs duties and that he is more concerned, with the goods and customs duty, than with the offender, held that the duties of the Customs officers are very much different from those of the Police officers, and therefore, S. 25 of the Evidence Act cannot apply to statements recorded by them. The ratio of this decision is that though a Customs officer may, in order to enable him to discharge his duties efficiently, be invested with some powers, which may have similarity with those of Police officers, yet since the primary purpose of investing of such powers in him is not for the purpose of maintaining law and order but for a specific purpose such as, safeguarding the revenues of the State of or its economy, he will not fall within the expression police officer and the statement recorded by him would not be hit by S. 25 of the Evidence Act. This view has been later reaffirmed in Badaku Joti v. State of Mysore, 1966CriLJ1353 , by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... logous to that of a Customs Officer for two reasons. One is that the Excise officer does not exercise any judicial powers just as the Customs officer does 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 . His Lordship points out that though the officers under the Sea Customs Act have some powers analogous to those of police officers under the Criminal Procedure Code, they are not identical with those of police officers are not derived from or by reference to the Code. Their Lordships distinguished Barkat Ram's case, [1962]3SCR338 and held that the statement recorded by the Excise officer was hit by S. 25 of the Evidence Act. 8. Mr. Ashok Desai, however, relied very much on the test which is apparently formulated by their Lordships in paragraph (11) of the judgment. The learned Judge says (p. 833): ..............The test for determining whether such a person is a 'police officer' for the purpose of S. 25 of the Evidence Act would, in our judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect excise duties and that the Central Excise offices have been appointed under the Act for that purpose and in order that they may efficiently discharge their duties and prevent evasion of the duty certain powers of investigation, search and seizure are vested in them. It was further emphasized that after the investigation, the officer had not to submit a report to the Magistrate unlike a police officer, and this very clearly distinguished an excise officer from a police officer. Having regard to this decision, it seems to us that it is difficult to hold that the test laid down in Barkat Ram's case, [1962]3SCR338 , viz., the primary purpose of investing the officers with the powers of search and seizure and others powers, was given up and the new test accepted. The fuller Bench in Badaku Joti's case, 1966CriLJ1353 , reaffirmed the test laid down in Barkat Ram's case, [1962]3SCR338 , and distinguished Raja Ram's case, 1964CriLJ705 , on the construction of the Bihar and Orissa Excise Act, 1915, only. 10. This Court has also decided similarly in Laxman Padma v. State, AIR1965Bom195 , under the Sea Customs Act, 1878. 11. We are not satisfied that under the Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ub-section (2). Sub-section (2) limits the application of the section to gold, diamonds, manufactures of gold or diamonds, watches, and enables the Central Government to add to the class of such goods by a notification in the official Gazette. If the powers under S, 169 of the old Act did not make a Customs officer a Police officer, it is difficult to see why he should become a Police officer merely because the exercise of that power is extended to persons outside the Customs limits. It is intended to meet cases of discovery of smuggled articles outside the Customs limits. 14. Section 102 of the Act of 1962 is somewhat similar to S. 170 of the old Act. Section 170 of the old Act provided that if the person about to be searched required the officer, the officer was bound to take him before the nearest Magistrate or Customs Collector. Section 102(1) of the Act of 1962 is consequential provisions and requires him before search to betaken to the nearest gazetted officer of Customs or Magistrate. Only one addition is made as a safeguard and that is that the search must be conducted in the presence of two or more persons and a list of all things seized in the course of such search mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duration. Sub-section (3), however, is very much relied for it provides: Where an officer of Customs has arrested any person under sub-section (1), he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898 . Now, it is true that there is a reference to an officer-in-charge of a police station in this sub-section. But then the question is what powers of the police officer are given to the Customs officers. The provision does not give the Customs officers the powers of the officer-in-charge of a police station in respect of investigation and report. Instead of defining power to grant bail in detail saying as to what they should do or should not do, the short and expedient way of referring to the powers of another officer when placed in somewhat similar circumstances has been adopted. By its language the sub-section does not equate the officers of Customs with an officer-in-charge of a police station, nor does it make him one by implication. It only, therefore, means that he has got powers as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the modification that in sub-section (5) of Section 165 of the Code, the word Magistrate shall be substituted by the words Collector of Customs . This again does not give any additional power to the Customs officer so as to enable him to have ascendency over the citizen. 17. Section 106 of the Act of 1962 gives power to search an aircraft. 18. Sections 107 and 108 of the Act of 1962 relate to examination of person and giving of evidence. Section 107 enables a Customs officer empowered in this behalf by general or special order of the Collector of Customs to examine any person in the course of any enquiry and call upon him to produce or deliver an document or thing relevant to the enquiry. This section is new. Section 108(1) of the said Act corresponding to Section 171-A of the old Act, enables any gazetted officer of Customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which he is making in connection with the smuggling of any goods. Sub-section (3) of the said section requires that all person so summoned shall be bound to attend either in person or by an authorised agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers acting under the Criminal Procedure Code and are not bound to make a report, it is clear that they cannot be regarded as police officers and statements recorded by them cannot be hit by S. 25 of the Indian Evidence Act. 22. Even if we were to adopt the test laid down in Raja Ram's case, 1964CriLJ705 , i.e., one of ascendency and opportunity of extracting confessions as we have pointed out, Section 104(3) of the Act of 1962 read in its context does not give any ascendency whatsoever to the officer over a citizen merely because the power of granting bail has been given to him. A police station has a lock-up which is in charge of police officers. When a police officer keeps a person in the lock-up, he has sole charge of the prisoner and he has opportunity of extracting a confession. Neither the Sea Customs Act, 1878, nor the Act of 1962 provides the Customs officers with a lock-up under their control. Their actions are open to view as those of any other officer in his office and they cannot, therefore, extract any confession from the person whom they are questioning. The observations made in Raja Ram's case, AIR 1964 828, that the power of granting bail enables an of ..... 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