Raja Ram Jaiswal vs State Of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 125 of 1961

Decision Date: 04 April 1963

Coram: J.R. Mudholkar, Raghubar Dayal, Subba Rao

In this case the Supreme Court heard an appeal filed by Raja Ram Jaiswal against the State of Bihar. The judgment was delivered on 4 April 1963 by a bench comprising Justice J.R. Mudholkar, Justice Subbarao and Justice Raghubar Dayal. The appellant, Raja Ram Jaiswal, was charged under several provisions of the Bihar and Orissa Excise Act, 1915, including section 47(a). The factual background was that the appellant, together with five other persons, was traveling in a car that belonged to the appellant’s brother. One of the occupants was driving the vehicle. While the car was on the road, an Excise Inspector stopped it and conducted a search. During the search the inspector discovered five bundles of ganja: four bundles were found in the luggage boot and one bundle was located in the leg space in front of the seat. The boot could be opened with keys that were in the possession of both the appellant and the driver. After the seizure, the appellant made a confession to the Excise Inspector, admitting that he was guilty of the offence. At the trial the appellant, along with the other accused, pleaded an alibi and asserted his innocence. The trial court acquitted the five co‑accused but convicted the appellant under section 47(a) of the Bihar and Orissa Excise Act, 1915, imposing a term of one year of rigorous imprisonment and a fine of two thousand rupees. The appellant appealed to the High Court, which affirmed both the conviction and the sentence. Subsequently, the appellant obtained special leave to appeal to this Court. In the appeal before the Supreme Court the appellant contended that the confessional statement, marked as Exhibit 3, which the High Court relied upon to support the testimony of the prosecution witnesses PW 2, PW 3 and PW 4, was inadmissible. He argued that if that statement were excluded, the remaining evidence of those witnesses would be legally insufficient to sustain his conviction. To support his objection the appellant relied on section 25 of the Indian Evidence Act, 1872, and on section 162 of the Code of Criminal Procedure, emphasizing that the confession had been recorded by the Excise Inspector while he was investigating an excise offence under Chapter XIV of the Code. The Court, speaking through Justices Subbarao and Mudholkar, examined the meaning of the term “police officer” in section 25 of the Evidence Act. The Court held that the expression “police officer” should not be interpreted narrowly; instead it must be given a broad and popular meaning. However, the Court also clarified that the term should not be expanded so far as to include persons who possess only some of the powers normally exercised by police officers.

In interpreting the expression “police officer” found in section 25 of the Evidence Act, the Court held that the term must not be given a narrow construction; rather, it should be understood in a broad and popular sense. Nevertheless, the term should not be expanded so far as to embrace persons who possess only a portion of the powers ordinarily exercised by the police. The Court referred to the decision in State of Punjab v. Barkat Ram [1962] 3 S.C.R. 338 to support this view. Under sections 77(2) and 78(3) of the Bihar & Orissa Excise Act, 1915, an Excise Inspector or Sub‑Inspector in Bihar is deemed to be an officer in charge of a police station and is authorised to investigate any offence punishable under the Excise Act. Consequently, such an officer may exercise all the powers that an officer in charge of a police station may exercise under Chapter XIV of the Code of Criminal Procedure. Because of this statutory deeming, a confession recorded by an Excise Inspector while investigating an excise offence cannot be regarded as different in character from a confession made to a police officer. The Court articulated the test for deciding whether a person qualifies as a “police officer” for the purposes of section 25 of the Evidence Act: one must examine whether the powers conferred on the person, or the powers he can exercise by virtue of being deemed an officer in charge of a police station, create a direct and substantial relationship with the prohibition embodied in section 25, namely the prohibition against using a confession obtained by certain prohibited means. In other words, the decisive factor is whether the powers enable the officer to facilitate the procurement of a confession from a suspect. It is the investigative power that establishes this direct relationship with the restrictions of section 25. Accordingly, even if the officer possesses additional powers under a different statute, such ancillary powers do not diminish his status as a “police officer” within the meaning of section 25. The purpose of enacting section 25 was to exclude from evidence any confession obtained from an officer who, by virtue of his official position, could extract a confession through force, torture or inducement. An Excise Officer acting under section 78(3) of the Bihar & Orissa Excise Act, 1915, occupies the same position as an officer in charge of a police station conducting an investigation under Chapter XIV of the Code of Criminal Procedure, and therefore enjoys the same opportunity to obtain a confession from a suspect. The Court consequently found it difficult to draw a rational distinction between a confession recorded by a strictly designated police officer and one recorded by an Excise Officer who is deemed to be a police officer. The Court surveyed relevant case law, including Harbhanian Sao v. Emperor (1927) 1 L.R. 54 Cal. 601, Matilal Kalwar v. Emperor (A.I.R. 1932 Cal. 122), and Ameen Sharief v. Emperor (1934) 1 L.R. 61 Cal. 607, among others, to support this reasoning.

The Court recorded that the authorities cited included Cal. 607, Nanoo Sheikh Ahmed v. Emperor, (1926) I. L. R. 31 Bom. 78; Public Prosecutor v. O. Paramasivam, A. I. R. 1953 Mad. 917; Ibrahim v. Emperor, A. I. R. 1944 Lah. 57; Radha Kishun Maruwari v. King Emperor, 1932 I. L. R. 12 Pat. 46; and Queen v. Hurribole Chunder Ghose, (1876) 1. L. R. 1 Cal. 207. The Court added that there was an additional ground for excluding the confession made to an Excise Sub‑Inspector. It explained that such a confession was a statement made during the course of an investigation to a person who exercised the powers of an officer in charge of a police station, and that, under section 162 of the Code of Criminal Procedure, statements of this character were excluded from evidence except for the purpose of contradiction. Consequently, the Court concluded that both section 25 of the Evidence Act and section 162 of the Criminal Procedure Code rendered the appellant’s confession inadmissible as evidence. The judgment then noted, per Justice Raghubar Dayal, that the appeal should be allowed, but for reasons different from those already discussed. A careful examination of the various provisions of the Bihar & Orissa Excise Act, 1915, led the Court to the conclusion that the legal position of an Excise Officer was analogous to that of a Customs Officer, a position the Court had previously held was not that of a “police officer” in the case of State of Punjab v. Barkat Ram, A. I. R. 1962 S. C. 276. The Court observed that sections 7, 89, 95 and 96 of the Bihar and Orissa Excise Act, 1915, sufficiently indicated that the actions of Excise Officers under that Act and under any other law dealing with excise revenue were treated alike, and that the Act resembled the Sea Customs Act in being primarily concerned with the collection of excise revenue. The Court further held that an Excise Officer could not be considered a police officer for the purposes of section 25 of the Evidence Act at any time, and certainly not merely when performing investigative duties. It stressed that the mere fact that an Excise Officer possessed certain powers similar to those of police officers in relation to violations of excise laws was not sufficient to classify them as police officers within the meaning of section 25 of the Evidence Act. The Court pointed out that under section 85(3) of the Bihar & Orissa Excise Act, 1915, all officers other than collectors who made arrests, searches or seizures under the Act were deemed to be police officers only for the purposes of the provisions relating to arrests, searches and seizures in the Criminal Procedure Code. This, the Court said, demonstrated that the legislature did not intend for Excise Officers performing duties akin to those of regular police officers to be deemed police officers solely because they performed such duties. Accordingly, the Court concluded that Excise Officers, when investigating offences under the Act, were not to be deemed police officers for the purpose of the investigative provisions of the Code of Criminal Procedure, and that the effect of section 85(3) was limited to the specific contexts of arrest, search and seizure.

In interpreting section 78(3) the Court observed that, because of the provisions contained in sub‑sections (2) and (3) of section 156 of the Code of Criminal Procedure, any proceeding initiated by an Excise Officer who is authorised under those provisions could not be challenged on the ground that the Officer lacked power to investigate the offence. The Court further noted that both the historical development of the Code of Criminal Procedure and the enactments relating to excise have consistently treated Excise Officers as distinct from members of the regular police force. Specific legislative provisions were highlighted which expressly designate certain officers from the Revenue and Police Departments to be deemed Excise Officers for the purposes of the excise legislation. Consequently, the Court held that an Excise Inspector or an Excise Sub‑Inspector who had been empowered by the State Government under section 77(2) of the Excise Act could not be classified as a police officer within the meaning of section 25 of the Indian Evidence Act. Accordingly, those officers could not be treated as police officers for the purposes of section 162 of the Code of Criminal Procedure. The judgment then set out the formal details of the appeal: it was a criminal appeal numbered 125 of 1961, filed by special leave against the order dated 20 January 1961 of the Patna High Court in criminal revision number 1274 of 1960. The parties were represented by counsel for the appellant and counsel for the respondent. The judgment was dated 4 April 1963 and was delivered by Justice Mudholkar, with Justice Dayal delivering a separate judgment. The Court explained that the substantive issue for determination was whether a confession made by the appellant and recorded by the Excise Inspector conducting the investigation was inadmissible under the provisions of section 25 of the Indian Evidence Act, 1872. The Court recorded that, as far as it was concerned, it was not contested that on 3 August the appellant had been stopped by Excise Inspector R. R. P. Sinha, identified as plaintiff‑witness 1, on Bayley Road near the New Secretariat in Patna at 10 p.m. The vehicle involved was owned by the appellant’s brother, Radhey Shyam, although the brother was not present in the vehicle at that time. The vehicle was then being

The prosecution produced the keys that were used to open the luggage boot. The Excise Inspector then prepared a seizure memorandum identified as Exhibit 2 and, in the presence of witnesses, recorded statements from every person who had been in the car at the time of the stop, including the appellant. The appellant’s own statement was entered as Exhibit 3. After the police investigation was concluded, all individuals who had been in the car—namely the appellant and his brother Radhey Shyam—were charged and tried before the Judicial Magistrate. The magistrate found each of them guilty. On appeal, the Sessions Judge in Patna set aside the convictions of everyone except the appellant, who remained convicted. Because the other accused were acquitted, the Court did not need to examine the defenses raised by those persons. The appellant, however, advanced a defense asserting that he had not been traveling in the car at the relevant moment. He claimed that on the night in question he was staying at the residence of Kanhai Singh, identified as Deponent 1, located in Subjibagh Mohalla, Patna, and that the Excise Inspector arrested him at six o’clock in the morning on 4 August at that house. He further contended that after his arrest the Excise Inspector R.R.P. Sinha, together with other officers of the Excise Department, placed him in a jeep, threatened and abused him, physically assaulted him, and ultimately obtained his signature on a blank sheet of paper. According to the appellant, these actions amounted to a false implication by the Excise Inspector. The Court observed, however, that every lower court had accepted the testimony of the prosecution witnesses, which established that the appellant was indeed seated in the car when the Excise Inspector stopped it. The appellant’s counsel, Mr. Chari, did not dispute this finding, nor did he argue that the appellant’s signature had been taken on a blank paper by the officers. Instead, his principal contention was that there was no legally admissible evidence upon which the appellant’s conviction could stand. He challenged the confessional statement marked as Exhibit 3, which the High Court had relied upon to corroborate the testimony of PW‑2 Debendra Prasad Singh, PW‑3 Paresh Nath Prasad Singh, and PW‑4 Rabindra Prasad Singh, asserting that this statement was inadmissible. He further argued that if the confessional statement were excluded, the remaining testimony of the three prosecution witnesses, on which the High Court had based its judgment, was insufficient under law to uphold the appellant’s conviction under section 47(a) of the Excise Act. The relevant portion of section 47 states: “Penalty for unlawful import, export, transport, manufacture, possession, sale, etc.—If any person, in contravention of this Act, or of any rule, notification or order made, issued or given, or license, permit or pass granted under this Act, (a) imports, exports, transports, manufactures, possesses or sells any intoxicant; … he shall be liable to imprisonment for a term which may extend to one year or to fine which may extend to two thousand rupees, or to both.” The Court noted that the evidence of the prosecution witnesses, taken together with the Excise Inspector’s testimony, formed the basis for its further findings.

The Court observed that the testimonies of PW 2, PW 3 and PW 4, when read together with the evidence of the Excise Inspector, established a series of factual findings. First, it was found that the appellant was seated beside the driver at the time the vehicle was stopped by the Excise Inspector. Second, the investigation recovered five bundles of non‑duty‑paid Nepali ganja from the vehicle. Third, the record showed that four of those bundles were located in the luggage boot of the car while the remaining bundle was discovered in the leg space in front of the front seat. Fourth, a set of keys marked “Ex II series” was recovered from the appellant’s pocket, and a separate set of keys marked “Ex I series” was recovered from the driver, identified as Jagdish Sah. Fifth, it was established that every key belonging to the Ex I series could open the lock of the luggage boot, and that two of the Ex II series keys were also capable of opening the same lock.

To substantiate these points, the prosecution relied upon seizure memorandum Ex F together with the testimony of the Excise Inspector and the statements of PW 2 (Debendra Prasad Singh), PW 3 (Paresh Nath Prasad Singh) and PW 4 (Rabindra Prasad Singh). However, upon close examination of Ex F, the Court noted that the document displayed material alterations and erasures. The Court therefore concluded that the High Court had erred in disregarding these defects, and that the present Court was entitled to consider the document’s imperfections.

The Court described the nature of the alterations in detail. In columns five and six of the original memo, a bundle containing 35 seers of ganja was initially recorded as being found in the leg space in front of the rear seat. The Court found that the original entry in column six had been overwritten with unrelated wording, obscuring the original description. Further, column five listed the weights of four bundles as 35 seers, 26 seers, 18 seers and 6 seers. The first bundle’s weight had been excluded from the first bracket that grouped the weights of the first three bundles, only to be later re‑included by introducing a second bracket. Column six then asserted that the bundles were located in the luggage boot, but the 6‑seer bundle was omitted from that bracket and a new remark—“In the leg space in front of front seat”—had been clumsily inserted after an erasure. Moreover, wherever the appellant’s name appeared in column eight, the Court observed that the original text had been erased and replaced with the appellant’s name. These observations led the Court to determine that the document had been materially altered and could not be relied upon as trustworthy evidence, except to the extent that it was corroborated by the appellant’s confession.

In this case the Court observed that the High Court had refused to rely on the direct testimony of witnesses unless it was supported by the confession. The prosecution maintained that a single bundle of ganja had been discovered in the leg space in front of the front seat of the automobile. The Court kept in mind that six individuals were present in the vehicle at the relevant moment and that the luggage boot in which the bundles were stored could be opened both with the set of keys recovered from the appellant and with another set of keys recovered from the driver. Because the driver had been acquitted, the Court concluded that, without the assistance of the confessional statement identified as Exhibit 3, it was impossible to show that the appellant alone possessed the ganja found in the car. Accordingly, the Court held that the appellant’s conviction could be upheld only if the confessional statement were found admissible as evidence. Counsel for the appellant objected to the admissibility of the confession on the basis of section 25 of the Evidence Act and further argued that the statement was excluded by section 162 of the Code of Criminal Procedure since it had been recorded by R. R. P. Sinha, an Inspector of Excise, while he was investigating an excise offence under Chapter XIV of the Code. Section 25 of the Evidence Act provides that “No confession made to a police officer shall be proved as against a person accused of any offence.” The Court noted that Inspector Sinha was an Excise Officer and not a member of the police force or establishment. Nonetheless, the Court referred to a large body of precedent, including the decision of this Court in The State of Punjab v. Barkat Ram, which held that the expression “police officer” in section 25 should not be interpreted narrowly but must be given a broad and popular meaning. The Court further explained that the term should not be expanded so far as to include persons who possess only some of the powers exercised by the police. The earlier judgment had examined whether a Customs Officer could be regarded as a police officer for the purposes of section 25 and concluded that a Customs Officer is principally concerned with detecting and preventing smuggling and safeguarding customs revenue, rather than with the detection and punishment of crimes committed by individuals. The Court emphasized that although Customs Officers exercise certain police‑like powers, such as search and seizure, these powers are limited in scope and purpose and therefore do not automatically render the officer a “police officer” within the meaning of section 25.

The Court observed that officers who work under the Sea Customs Act to prevent the smuggling of goods also perform judicial functions because they have the authority to confiscate smuggled items and to impose penalties on individuals found guilty of smuggling. However, the Court held that the mere fact that Customs officers possess powers similar to those of police officers for detecting violations of customs law does not make them police officers within the meaning of section 25 of the Evidence Act. The reason is that the powers granted to Customs officers, such as the power to search, are limited in scope and are specifically aimed at protecting the revenue of the State rather than at the broader objectives of crime detection and punishment. The majority of the earlier judgment did not express a view on whether officers belonging to departments other than the police, who are vested with the powers of a police‑station in‑charge under chapter 14 of the Code of Criminal Procedure, should be treated as police officers for the purposes of section 25 of the Evidence Act. Consequently, the question of whether an Excise Officer qualifies as a police officer remained unresolved by that judgment, and it is precisely this issue that the present appeal is called upon to examine.

Section 78(3) of the Bihar and Orissa Excise Act, 1915 (2 of 1915) provides that an Excise Officer who is empowered under section 77, sub‑section (2) of the same Act shall, for the purposes of section 156 of the Code of Criminal Procedure, be deemed to be an officer in charge of a police station with respect to the geographical area to which his appointment as an Excise Officer extends. Sub‑section (1) of section 77 authorises the Collector of Excise to investigate, without obtaining a Magistrate’s order, any offence punishable under the Excise Act that occurs within his jurisdiction. Sub‑section (2) further allows any other Excise Officer specially empowered by the State Government to investigate, also without a Magistrate’s order, any such offence that a court having jurisdiction over the local area could inquire into or try under the same provisions. By virtue of these provisions, the Lieutenant Governor of Bihar and Orissa issued Notification No. 470‑F on 15 January 1919, specifically empowering Inspectors and Sub‑Inspectors of Excise to investigate any offence punishable under the Act. That notification has not been contested and remains in force; under section 92 of the Act, the notification is deemed to have the same effect as if it were enacted by the legislature. Accordingly, an Excise Inspector or Sub‑Inspector appointed in the State of Bihar is deemed, for the area of his appointment, to be an officer in charge of a police station and, in that capacity, may investigate any offence under the Excise Act within that area without first obtaining a Magistrate’s order.

Because the Excise Inspector is not required to obtain the order of a Magistrate, he may exercise all the powers which an officer in charge of a police station may exercise under Chapter XIV of the Code of Criminal Procedure. He may investigate offences, record statements of persons questioned, conduct searches, seize any articles connected with an offence under the Excise Act, arrest an accused, grant bail, forward the accused for trial before a Magistrate, file a charge‑sheet and perform other similar functions. Accordingly, his position with respect to offences under the Excise Act that are committed within the territory to which his appointment extends is indistinguishable from that of an officer in charge of a police station. In relation to those offences he is not only charged with the duty of preventing their commission but also with the duty of detecting them, and for that purpose he is empowered to act in every respect as an officer in charge of a police station. It is true that, unlike a police‑station officer, he does not bear responsibility for maintaining general law and order and he cannot exercise police powers in respect of offences punishable under the general law or under any other special statutes. Nevertheless, insofar as offences under the Excise Act are concerned, there is no distinction whatsoever between the nature of the powers he wields and the powers exercised by a police officer in dealing with offences that he is mandated to prevent and disclose. Consequently, it is logical to hold that a confession recorded by him during an investigation into an excise offence cannot reasonably be treated as anything other than a confession made to a police officer. While carrying out the investigation he exercises the powers of a police officer, and the statutory provision treats him as a police officer even though he does not belong to the police force created under the Police Act. The Court has previously held that the term “police officer” in section 25 of the Evidence Act is not limited to persons who are members of the regularly constituted police force. The status of an Excise Officer empowered under section 77(2) of the Bihar and Orissa Excise Act differs from that of a Customs Officer for two reasons. First, the Excise Officer does not exercise any judicial powers, whereas a Customs Officer does exercise judicial powers under the Sea Customs Act, 1878. Second, a Customs Officer is not deemed to be an officer in charge of a police station and therefore cannot exercise powers conferred by the Code of Criminal Procedure, including those of a police‑station officer. The Customs Officer does possess the authority to make searches, seize articles suspected of being smuggled, and arrest persons suspected of committing an offence under the Sea Customs Act, but his powers are confined to those expressly provided in the Sea Customs Act and do not extend to investigative powers under section 156 of the Code of Criminal Procedure.

In this case the Court observed that the officer in question possessed no authority to conduct an investigation under section 156 of the Code of Criminal Procedure. All of the powers that he could exercise were expressly enumerated in the Sea Customs Act. While certain powers listed in chapter XVII of that Act were similar to powers possessed by a police officer under the Code of Criminal Procedure, those powers were not identical to police powers and were not derived from, nor referenced to, the Code. Moreover, on some matters the officer did not even have powers analogous to those of a police officer. Consequently the officer was not authorized to forward a report to a magistrate under section 190 of the Code of Criminal Procedure for the purpose of obtaining magistrate’s cognizance of an offence. Section 187(A) of the Sea Customs Act expressly stipulated that cognizance of an offence under that Act could be taken only on a written complaint made by a customs officer or another customs officer not below the rank of Assistant Collector of Customs, and such complaint had to be authorised by the Chief Customs Officer. The Court acknowledged that a statute may confer on a public servant certain powers and duties that resemble those of a police officer, but that the officer might also be required to perform other functions and to exercise other powers. The State submitted that the mere attribution of a few police‑type powers to such an officer did not convert him into a police officer; therefore, the appropriate consideration was the entire set of powers attached to his office together with the principal purpose for which he was appointed. The State’s argument contended that when an officer is tasked with a broad spectrum of duties and consequently wields a wide array of powers, the fact that some of those statutory powers are similar to or even identical with police powers does not make him a police officer, and consequently a confession recorded by such an officer would not fall within the prohibition of section 25 of the Evidence Act. The Court held that, for the purpose of deciding who may be regarded as a “police officer’’ under section 25, the relevant factor was not the aggregate of all powers enjoyed by the officer but rather the nature of the powers that the law authorises him to exercise. Accordingly, the test to be applied was whether the powers conferred on him, or the powers he could exercise because he was deemed to be in charge of a police station, created a direct

In this matter, the Court explained that the appropriate test for deciding whether a person may be regarded as a “police officer” for the purposes of section 25 of the Evidence Act is whether the powers possessed by that person create a direct or substantial link with the prohibition contained in that provision, namely the prohibition against recording a confession. In other words, the test focuses on whether the powers enable the person to facilitate the obtaining of a confession from a suspect or a delinquent. If the powers are such that they would tend to assist in drawing out a confession, the Court held that it is unnecessary to examine the principal purpose for which the person was appointed or to consider any other powers that the person may have. The Court noted, however, that the consideration of purpose and other powers might become relevant where the powers conferred are of a very limited nature and, by themselves, are insufficient to enable the person to obtain a confession.

To illustrate the point, the Court referred to the Sea Customs Act, which confers a wide range of powers on Customs Officers, but limits powers analogous to those of a police officer to Chapter XVII, which deals with procedures relating to offences, appeals and similar matters. Under section 169 a Customs Officer may search, on reasonable suspicion, any vessel in any Indian port or any person who has disembarked from a vessel. That power is subject to the right given by section 170 to the person searched to require the officer to take the person before a Magistrate or a Customs Collector for the validity of the search to be determined. By contrast, a police officer exercising a search under section 102, subsection (3) of the Code of Criminal Procedure is not bound by such a restriction. Moreover, while a police officer in charge of a police station may search any place in connection with a cognizable offence after recording his reasons in writing, a Customs Officer may not search any land‑based place where dutiable or prohibited goods are hidden unless he first obtains a warrant from a Magistrate. Section 173 of the Act empowers a Customs Officer to arrest a person when there is reasonable suspicion of an offence, but obliges the officer to produce the arrested person before the nearest Magistrate, who alone may decide whether to keep the person in custody or to release him on bail. A police officer, on the other hand, may release an arrested individual on bail without first obtaining a magistrate’s order, and is required to present the person before a magistrate only if he does not grant bail, within twenty‑four hours of the arrest. The Court further observed that the power to grant bail itself gives a police officer authority over the arrested person and the ability to influence his conduct. Finally, while a Customs Officer may seize any article liable to confiscation under the Act, he must, upon request, provide a written statement of the reasons for the seizure, and similarly must give a written statement of the reasons for an arrest if the arrested person so demands. No comparable duty is imposed on a police officer who seizes property or makes an arrest. The Court concluded that Chapter XVII contains no other powers that can be said to be analogous to those of a police officer, and that the remaining powers conferred on a Customs Officer are limited to those necessary for preventing offences under the Sea Customs Act and related matters.

The Court observed that the authority to grant bail vested in an officer in charge of a police station inherently enables that officer to exercise control over the arrested individual and to influence the individual’s conduct if the officer so desires. The Court then turned to the powers of a Customs Officer, noting that a Customs Officer is authorized to seize any article that is liable to confiscation under the Sea Customs Act. However, the Court stated that when a Customs Officer effectuates such a seizure, the officer becomes obligated, upon request by the person in charge of the seized property, to provide a written statement setting out the reasons for the seizure. In the same vein, the Court explained that when a Customs Officer arrests a person, the officer must, if the arrested person so requests, furnish a written statement disclosing the reasons for the arrest. The Court contrasted this duty with the position of a police officer, pointing out that no comparable statutory duty is imposed on a police officer who seizes an article or arrests a person.

The Court further explained that Chapter XVII of the Sea Customs Act contains no other powers that could be described as analogous to those of a police officer. The entirety of that chapter, the Court said, demonstrates that the additional powers granted to a Customs Officer are limited to those necessary for preventing offences under the Sea Customs Act and for matters incidental thereto. The Court emphasized that the investigative powers that a police officer possesses with respect to offences are not conferred upon a Customs Officer. It is precisely the possession of those investigative powers that allows police officers and persons deemed to be police officers to exercise a form of authority over arrested persons, thereby facilitating the procurement of statements that may be incriminating. The law, the Court noted, permits a police officer to obtain such statements for the purpose of aiding the investigation of offences, but those statements are rendered inadmissible as evidence because a concern regarding their voluntariness inevitably arises.

According to the Court, the investigative power creates a direct connection with the prohibition embodied in section 25 of the Indian Evidence Act. Consequently, the Court held that when an officer is vested with such investigative power, the mere fact that the officer also holds other powers under a different statute does not diminish his status as a “police officer” for the purposes of section 25. In discussing the purpose behind section 25, the Court found it useful to recall the object for which that provision was enacted. To illustrate this purpose, the Court quoted the judgment of Justice Mahmood in Queen Empress v. Babulal (1), stating: “malpractices of police officers in extorting confessions from accused persons in order to gain credit by securing convictions, and that those malpractices went to the length of positive torture; nor do I doubt that the Legislature, in laying down such stringent rules, regarded the evidence of police officers as untrustworthy, and the object of the rules was to put a stop to the extortion of confession, by taking away from the police officers the advantage of proving such extorted confessions during the trial of accused persons.” The Court concluded that the provision was enacted expressly to exclude from consideration confessions made to an officer who, by virtue of his position, could obtain such confessions through force, torture or inducement.

In this case, the Court observed that an officer who, by virtue of his position, could obtain a confession through force, torture or inducement fell within the class of persons referred to in section 25 of the Evidence Act. The Court noted that an Excise Officer exercising authority under section 78(3) occupied the same position as the officer in charge of a police station who conducted an investigation under Chapter XIV of the Code of Criminal Procedure. Consequently, the Excise Officer possessed the same opportunity to extract a confession from a suspect as a police officer. The Court therefore found it difficult to draw a rational distinction between a confession recorded by a strictly defined police officer and one recorded by an Excise Officer who was deemed to be a police officer for the purposes of the provision. The Court recognised that a large number of decisions had been cited before it on the question whether the term “Police Officer” in section 25 of the Evidence Act was limited to members of the police force or had a broader meaning. The Court held that it was unnecessary to revisit all those authorities because, in Barkat Ram’s case (2), the expression had been expressly held not to be confined to a narrow construction. The Court nevertheless referred to certain authorities in which the specific issue of whether an Excise Officer fell within the meaning of “Police Officer” under the section had been examined. The Court pointed out that those authorities were not unanimous. In Ah Foong v. Emperor (1), Harbhanjan Sao v. Emperor (2) and Matilall Kalwar v. Emperor (3) it had been held that an Excise Officer was not a police officer. A contrary view had been adopted in Ibrahim Ahmed v. King Emperor (4), a view that was affirmed by a Full Bench in Ameen Sharif v. Emperor (5). The Full Bench decision, together with Ibrahim Ahmed’s case (4), followed the earlier judgment of the Bombay High Court in Nanoo Sheikh Ahmed v. Emperor (6). Similar conclusions were reached in Public Prosecutor v. C. Paramasivam (7) and Ibrahim v. Emperor (8). In Radha Kishun Marwari v. King Emperor (9) it had been held that an Excise Officer exercising powers under the Bihar Excise Act was not a police officer and that a statement made to him did not fall within section 25 of the Evidence Act. The Court stated that it did not need to consider that decision further because the learned judges in that case limited the term “Police Officer” in section 25 to members of the police force, a construction that conflicted with the broader interpretation given in Barkat Ram’s case. The Court then examined the reasoning in Ah Foong’s case (1), noting that Sanderson C.J., who delivered the leading judgment, expressed the view that the Excise Officers before the court could not be regarded as police officers and therefore the statements made to them were not admissible as they were not made to police officers.

In the matter before the Court, it was observed that the earlier judgments did not engage in any discussion of whether an Excise Officer could be regarded as a police officer for the purposes of section 25 of the Evidence Act. The case in which this point was raised involved an offence under the Opium Act and the officer who performed the investigation was an Excise Officer. The judgments cited for this proposition included: (1) 1918 I.L.R. 46 Cal. 41, (2) 1927 I.L.R. 54 Cal. 601, (3) A.I.R. 1932 Cal. 122, (4) 1931 I.L.R. 58 Cal. 1260, (5) 1934 I.L.R. 61 Cal. 607, (6) 1926 A.L.R. 51 Bom. 78, (7) A.I.R. 1953 Mad 917, (8) A.T.R. 1944 Lah 57, (9) 1932 I.L.R. 12 Pat. 46, and (10) [1962] 3 S.C.R. 338. Each of these authorities held that an Excise Officer acting under the Opium Act was not endowed with the powers of an officer in charge of a police station as defined in Chapter XIV of the Code of Criminal Procedure. The later decision in Harbhanjan Sao’s case (1) simply followed the earlier view, as did Matilal’s case (2). When Ibrahim Ahmed’s case (3) arose after the amendment of the Opium Act, the Court adhered to the approach adopted in Nanoo Sheikh Ahmed’s case (4). In that case, a Full Bench of the Bombay High Court examined a large series of precedents beginning with The Queen v. Hurribole Chunder Ghose (5). Justice Marten, C.J., quoted two passages from that decision, stating that “its humane object is to prevent confessions obtained from accused persons through any undue influence, being received as evidence against them … 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” (p. 215), and adding that “it is better in construing a section such as the 25th, which was intended as a wholesome protection to the accused, to construe it in its widest and most popular signification” (p. 216).

The Full Bench further observed that Ah Foong’s case (6) offered hardly any discussion of the issue. It noted that while Excise Officers in Bengal possessed only limited powers under the Opium Act of 1878, those in Bombay exercised broader investigative powers. The learned Chief Justice then expressed the view that, since the Bombay Legislature had deliberately conferred upon the Abkari officers substantially all the powers of a police officer, those officers should, in effect, be treated as police officers within the meaning of section 25. Consequently, any confession made to such an officer during an investigation undertaken under the Abkari Act or the Criminal Procedure Code would be inadmissible as evidence (p. 94). Finally, Justice Shah observed that section 25 of the Indian Evidence Act embodies a fundamental rule that must be applied in substance rather than as a mere formality, emphasizing the substantive protection afforded to the accused.

In this case the Court explained that a correct and equitable reading of section 25 of the Indian Evidence Act requires that the term “police officer” be understood to refer to any officer who lawfully wields the powers of police, irrespective of the title by which he is designated, and even if that officer performs additional duties under other statutes, provided that for the purpose of investigating offences under a specific Act he is empowered to exercise the powers that are normally vested in an officer in charge of a police station for the investigation of a cognizable offence. The Court noted that Justice Fawcett had observed that the Legislature had not altered the relevant Act after the decision in Hurribole’s case (1), in which the expression “police officer” was given a broad meaning; consequently the courts were justified in continuing to apply that expansive interpretation. Justice Kemp, while agreeing that the expression should not be confined to a narrow construction, cautioned against a blanket pronouncement that the term should always be given its popular and most inclusive sense, yet he nevertheless concluded that an Excise Officer operating under the Bombay Abkari Act must be regarded as a police officer to the extent that he possessed investigative authority over excise offences. Justice Mirza concurred with this view but offered no further reasoning. The Court then turned to the matter referred to a Full Bench in Ameen Sharif’s case (2), where the pivotal question was whether an excise officer who, in the course of probing an offence against the excise law, exercises the powers granted by the Code of Criminal Procedure to an officer in charge of a police‑station for the investigation of a cognizable offence, qualifies as a “police officer” within the meaning of section 25 of the Indian Evidence Act. That reference arose under the Bengal Excise Act, and Justice Mukerji, who authored the leading judgment, first observed that the powers of an Excise Officer acting under the Opium Act I of 1878 before its amendment by the Opium (Bengal Amendment) Act (1933) differed from those of an Excise Officer operating under the Bengal Excise Act (1909). He further explained that during the arguments a broader issue had been presented for the Full Bench’s determination, arising from the order of reference together with the factual matrix of the cases concerned. Justice Mukerji then stated that to resolve the question it was necessary to examine the meaning of the term “police officer” as employed in section 25 of the Evidence Act. Although the provision does not belong to the category of “ancient statutes” in the technical sense used by forensic scholars, great deference must be accorded, when construing a law enacted long ago, to the interpretation that was given to it by those who lived at the time of its passage or shortly thereafter, because the contemporary meaning of a particular word or expression may have become distorted or blurred over the intervening years.

The Court observed that the precise meaning of a particular word or expression in earlier times may become confused or blurred as time passes. From that viewpoint it regarded the decision in Queen v. Hurribole Chunder Ghose as being of great importance. Although that decision had already been mentioned, the Court did not adopt the view that the principle used in construing an ancient statute should be applied to the provision under consideration. The Evidence Act, being a statute of 1872, was examined in Senior Electric Inspector v. Laxminarayan Chopra, where this Court noted that the maxim contemporanea expositio, articulated by Coke, was employed in interpreting ancient statutes but not in interpreting statutes that were comparatively modern. The Court further explained that the rule of construction appropriate to any statute, whether ancient or modern, is the same: to ascertain the intention of the Legislature. Nevertheless, the Court agreed that it would be improper to give a wide meaning to words used in legislation enacted in remote ages when society was relatively static, whereas a different approach would be appropriate for words in a modern, progressive society where knowledge expands rapidly. The Evidence Act was enacted at a time when a revolution in ideas had already begun and considerable scientific advances had been made; consequently, the maxim laid down by Coke could not be properly applied to the language employed by the Legislature in section 25 of the Evidence Act. The learned judge, however, did not base his judgment solely on this observation. After reviewing a large number of decisions of the Indian High Courts, he concluded that an Excise Officer exercising the powers of an officer in charge of a police station within the area to which he was appointed would fall within the expression “police officer” appearing in section 25 of the Evidence Act. Referring to section 6 of the Police Act and other related provisions, he pointed out that the police were instruments for the prevention and detection of crimes, possessing powers of apprehension and detention of offenders that varied according to the position or status of the particular member of the body. In other words, “police officers” were officers whose duty was to prevent and detect crimes. Apart from any technical meaning that the term might acquire under a specific Act, the broader and popular meaning of the term was as just described. In the Oxford Dictionary, two of the

In this passage the Court examined the various meanings attributed to the word ‘police’ as found in dictionary definitions. It quoted that the term may be described as the branch of government responsible for maintaining public order and safety and for enforcing the law, noting that the scope of its functions varies widely across countries and historical periods. It also defined the civil force charged with preserving public order, enforcing regulations designed to prevent and punish legal breaches, and detecting crime; the term was said to be used in the plural to refer to the members of such a force or to the constabulary of a locality. The Court observed that all of these duties performed by police officers represent different phases and methods of carrying out the two overarching responsibilities of preventing crime and detecting crime. Although the statute does not specify the minimal collection of functions that would qualify a person as a ‘police officer’ within section 25 of the Evidence Act, the Court held that the broader and commonly understood meaning of ‘police officer’ as it existed in 1861 can be discerned from the language of the Police Act of that year. It explained that the powers and duties assigned to police officers under various enactments, whether under Act V of 1861, Act XXV of 1861, or any other legislation, are merely detailed provisions intended to enable the entire police body, considered as a whole, to fulfil the two essential duties of crime prevention and crime detection. The Court emphasized that the function of detecting offenders, which necessarily includes conducting investigations, has consistently been regarded as a characteristic that warrants special treatment of confessions made to police officers, as indicated on pages 623‑4 of the cited authority. The Court concurred with the learned judge that, in general, the duty of investigating offences and bringing offenders to justice distinguishes police officers from private persons or other state agencies. Because police officers are engaged in investigations, they naturally seek to gather as much evidence as possible against a suspect, and in their zeal they may resort to obtaining a confession by exploiting their position and authority over the detained individual. Accordingly, the Court accepted the learned judge’s observation on page 629 that there is no apparent reason why, in 1872, when dealing with an offence under the then‑existing Opium Act (XIII of 1857), the legislature would have omitted a confession made to a regular police officer while permitting a confession made to an abkari or excise officer, provided that such officer was actually conducting an investigation and exercising powers that a police officer is authorised to wield.

In this case the Court observed that a person who was conducting an investigation into an offence and who was using powers that a police officer could properly exercise was being treated as a police officer for the purposes of section 25 of the Evidence Act. The Court explained that, at the time of the earlier statutes, the individual in question did not possess such powers and therefore could not have exercised them. When, at a later date, the individual acquired those powers and was able to use them in relation to offences that were not yet defined by law, the Court held that the person then became an officer for whom the term “police officer” in section 25 was intended. The learned judge then examined two arguments that had been raised before the Full Bench which appeared to oppose this view. The first argument suggested that a distinction existed between “police officers” and “revenue officers.” The second argument contended that section 25 of the Evidence Act implied a personal disability for any police officer irrespective of whether the officer was actually conducting an investigation, whereas no similar disability was intended for an Excise Officer. Regarding the first point, the learned judge accepted the answer given by Marten C. J. in the case of Nanoo Sheikh Ahmed, reported at page 95, which addressed a similar issue. Concerning the second point, the judge explained that, because of section 22 of Act V of 1961, police officers were always regarded as being on duty for the purposes of that Act, whereas revenue officers were not police officers unless they were exercising police powers, and only while exercising those powers could they be considered police officers. The Court agreed with this position, and Mallik and Ghose JJ. joined the judgment of Mukherji J. However, Jack J. did not accept Hurribole’s authority that an Excise Officer became a police officer merely by holding certain police powers. Jack J. concluded that the application of section 25 of the Evidence Act to an Excise Officer should be limited to a confession made to that officer during the course of an investigation carried out under section 74(3) of the Excise Act, as referenced in the 1926 decision reported in I.L.R. 51 Bom. 78 and the 1876 decision reported in I.L.R. 1 Cal. 207. In other words, Jack J. meant that although an Excise Officer could not be classified as a police officer in general, when the officer performed functions under section 74(3) of the Excise Act he would act as a police officer, and consequently a confession obtained by him would fall within the ambit of section 25 of the Evidence Act. Costello J. differed from the other judges and based his reasoning largely on the authorities cited earlier in the judgment.

In referring to the decision in the case of Radha Kishan Marwari (1), the judge observed that judges inevitably encounter endless difficulties when they try to extend the plain provisions of any statutory enactment. He stated that where the language of an enactment is clear, it should be interpreted strictly, and that in the present case such strict construction is, in his view, highly unsound and even dangerous for the court. He warned against using subtle argument or invoking other statutes to broaden the provisions contained in section 25. He expressed a clear opinion that when the legislature used the term “police officer,” it intended the expression to be understood in the ordinary sense commonly known to the public, and in no other sense at all (p. 648). The learned judge apparently omitted the observation that, in popular usage, Excise Officers are also regarded as police officers and are often referred to as “the Excise Police.” A review of decisions of the High Courts across India demonstrates that the majority of judicial opinion aligns with the view already expressed. An additional reason exists for excluding the confession made to an Excise Sub‑Inspector. Such a confession is a statement made during the course of an investigation to a person who exercises the powers of an officer in charge of a police station, and therefore it is excluded from evidence by section 162 of the Code of Criminal Procedure, except for the purpose of contradiction. Consequently, both section 25 of the Evidence Act and section 162 of the Criminal Procedure Code render the appellant’s confession inadmissible. If the confession is excluded, the appellant’s conviction cannot be sustained. Accordingly, the appeal was allowed, the conviction and sentences were set aside, and the appellant was discharged.

Justice Raghu Bar Dayal agreed that the appeal should be allowed and that the conviction and sentences be set aside, but for different reasons. He did not accept that the confession was inadmissible because it was made to a police officer. Instead, he held that the admissibility of the alleged confession depended on whether the Excise Inspector fell within the meaning of “police officer” under section 25 of the Indian Evidence Act, and he concluded that the Excise Inspector does not. Referring to the decision in State of Punjab v. Barkat Ram (1), he noted that the Supreme Court had held that a customs officer is not a police officer for the purposes of section 25. The Court’s reasoning was based on the observation that the powers of a police officer are intended for the effective prevention and detection of crime in order to maintain law and order, whereas a customs officer is primarily concerned with the detection and prevention of smuggling of goods and the recovery of customs duties, not with the detection and punishment of crimes committed by individuals. This distinction, he argued, precludes treating an Excise Inspector as a police officer within the meaning of the evidentiary provision.

In this passage the Court explained that the principal function of customs officers is the detection and prevention of smuggling of goods and the protection of customs revenue, not the maintenance of general law and order. Accordingly, the Court held that an Excise or Customs officer does not fall within the expression “police officer” contemplated in section 25 of the Indian Evidence Act. The Court relied on the decision in State of Punjab v. Barkat Ram, reported in (1) [1962] 3 S.C.R. 338, where it was observed that a customs officer’s duties differ from those of a police officer because the former are directed primarily at controlling smuggling and securing the recovery of customs duties. The Court further noted that although customs officers possess certain powers similar to those of police officers for detecting violations of customs law, such similarity is insufficient to deem them police officers under section 25, even though the term “police officer” is to be given a wide and popular meaning, as stated in Queen v. Hurribole, (1). The Court clarified that the expression “police officer” does not extend to persons who merely possess some police‑type powers incidentally.

The Court went on to observe that any confession made to a police officer, irrespective of his rank or the circumstances of the confession, is inadmissible in evidence. In contrast, a confession made to a customs officer when that officer is not performing a duty that corresponds to that of a police officer will also be inadmissible, even if it could be argued that the officer was exercising powers akin to those of a police officer at the time. The Court supported this view by pointing out that the Sea Customs Act itself distinguishes between the terms “police officer” and “customs officer”. Moreover, customs officers exercise quasi‑judicial functions under the Sea Customs Act when they prevent smuggling, impose confiscation, and levy penalties; proceedings before them are therefore deemed “judicial proceedings” for the purposes of sections 193 and 228 of the Indian Penal Code.

Turning to the Bihar and Orissa Excise Act of 1915 (Act II of 1915), the Court found a parallel conclusion concerning excise officers who are vested with investigative powers under the Act. The preamble of the Act states that it is expedient to amend and reenact the law relating to the import, export, transport, manufacture, possession, and sale of certain liquors and intoxicating drugs. Clause (8) of section 2 defines an “Excise Officer” as the Collector or any other person appointed or invested with powers under section 7. Section 7 provides that the administration of the Excise Department and the collection of excise revenue within a district shall ordinarily be under the charge of the Collector, and that the State Government may, by notification applicable to the whole State or a specified area, appoint an officer who, subject to such control as the State Government may direct, shall have control of the administration of the Excise Department and the collection of excise revenue. Excise Commissioners are appointed under subsection 7(2)(a). The Court noted that other officers, such as Superintendents of Excise, Inspectors of Excise, and Sub‑Inspectors of Excise, are appointed under the remaining clauses of subsection 7(2), and that the Superintendent of Excise exercises certain powers of the Collector to whom he is subordinate.

Section 2(2) of the Act identifies Superintendents of Excise, Inspectors of Excise and Sub‑Inspectors of Excise as officers falling under clause 2 of section 7. The Superintendent of Excise exercises certain powers that are specified for the Collector and is subordinate to the Collector. Chapter VIII of the Act deals with offences and penalties. Section 63 provides the penalty for contempt of court and states that every proceeding under the Act before a Collector, or before any officer of a rank that the State Government may prescribe by notification, who is exercising the powers of a Collector, shall be deemed a “judicial proceeding” within the meaning of section 228 of the Indian Penal Code of 1860. Officers who may exercise the powers of a Collector include Superintendents of Excise, Sub‑Divisional Officers and Deputy Collectors. Section 68 authorises the Collector or any Excise Officer specially empowered by the State Government, not below the rank of Deputy Collector or Superintendent of Excise, to compound offences and to release property liable to confiscation in certain circumstances upon payment of a sum of money not exceeding five hundred rupees to the Collector or such Excise Officer. Section 69 empowers the Excise Commissioner, the Collector or any Excise Officer not below a rank that the State Government may prescribe by notification and subject to any restrictions prescribed by rule made under section 89, to enter and inspect any place of manufacture, storage or sale of any intoxicant by a licensed manufacturer, to test and seize measures, to examine accounts and registers, and to seize them if there are reasonable grounds to believe they are false. Excise Officers not below the rank of Sub‑Inspector have been empowered under section 69 by Notification No 470‑F dated 15 January 1919 of the Financial Department of the Government of Bihar and Orissa, and this Notification is understood to remain in force. Section 70 authorises any officer of the Excise, Police, Salt, Customs or Land Revenue Department, or any person empowered by the State Government by notification, to arrest without warrant any person found committing offences punishable under sections 47, 49, 55 or 56 of the Act and to seize and detain any article that he has reason to believe is liable for confiscation under the Act or any other law then in force relating to excise revenue, and to detain and search any person, vessel, raft or vehicle on which he may have reasonable cause to suspect such article. Sections 71 and 72 provide that the Collector or any Magistrate empowered to try offences punishable under the Act may issue a warrant for the arrest of any person whom he has reason to believe has committed or abetted any offence punishable under sections 47, 49, 55 or 56 and may issue a warrant for the search of any intoxicant, material, still, utensil or other article in respect of which the alleged offence has been or is likely to be committed.

The provisions also allow the search of any intoxicant, material, still, utensil or similar article when the alleged offence has already been committed or is likely to be committed. Section 73 authorises the Collector, a Sub‑Divisional Magistrate or a first‑class Magistrate to arrest a person in his presence when he is competent to issue an arrest warrant. The same officer may also direct a search to be carried out in his presence when he is competent to issue a search warrant. Section 74 empowers an Excise Officer of a rank prescribed by the State Government, by notification, to arrest certain offenders when that Officer has reason to believe that an offence has been committed or is being committed and when obtaining a search warrant might enable the offender to escape or conceal evidence. The State Government has prescribed that Excise Officers not below the rank of Sub‑Inspector may exercise the power conferred by this section. Section 77 is particularly relevant and is reproduced in full below: ‘(1) A Collector may, without the order of a Magistrate, investigate any offence punishable under this Act which a Court having jurisdiction over the local area within the limits of the Collector’s jurisdiction would have power to inquire into or try under the provisions of Chapter XV of the Code of Criminal Procedure, 1898, relating to the place of inquiry or trial. (2) Any other Excise Officer specially empowered in this behalf by the State Government in respect of all or any specified class of offences punishable under this Act may, without the order of a Magistrate, investigate any such offence which a Court having jurisdiction over the local area to which such Officer is appointed would have power to inquire into or try under the aforesaid provisions.’ Under sub‑section (2) of Section 77 the State Government has specially empowered Inspectors of Excise and Sub‑Inspectors of Excise to investigate any offence punishable under the Act. Section 78 provides that ‘(1) Any Collector, or any Excise Officer empowered under Section 77, sub‑section (2), may after recording in writing his reason for suspecting the commission of an offence which he is empowered to investigate, exercise (a) any of the powers conferred upon a Police Officer making an investigation, or upon an officer in charge of a police‑station, by sections 160 to 171 of the Code of Criminal Procedure, 1898 (5 of 1898), and (b) with respect to offences punishable under Section 47, Section 49, Section 55 or Section 56 of this Act, any of the powers conferred upon Police Officers in respect of cognizable offences by clause first of sub‑section (1) of Section 54 and by Section 56 of the said Code; the said portions of the Code shall apply accordingly, subject to any restrictions or modifications prescribed by the State Government by rule made under Section 89, clause (o). (2) Subject to any restrictions prescribed by’.

The Court explained that, under the authority granted by the State Government, a Collector or an Excise Officer who is empowered under section 77, sub‑section (2), may, without obtaining the approval of a Magistrate, discontinue any further legal proceedings against any individual who is actually involved or who is alleged to be involved in an offence that the Collector or a subordinate Excise Officer has investigated, provided that the officer records in writing the reasons for such a decision. For the purpose of applying section 156 of the Code of Criminal Procedure, 1898 (5 of 1898), the Court held that the territorial jurisdiction assigned to an Excise Officer empowered under section 77, sub‑section (2), shall be treated as if it were a police station, and that officer shall be considered the officer in charge of that station. The Court further observed that when an investigation conducted by a Collector or an Excise Officer empowered under section 77, sub‑section (2) comes to an end, and if the investigating officer finds that the evidence gathered is sufficient to warrant the commitment of the accused to a Magistrate, the investigating officer must, unless he opts to act under sub‑section (2) of the present provision or under section 68 of the Act, forward a written report to a Magistrate who has jurisdiction to inquire into or try the case. Such a report, the Court noted, is deemed for the purposes of section 190 of the Code of Criminal Procedure, 1898 (5 of 1898), to be a police report. Section 79, the Court explained, deals with security and bail and authorises any Excise Officer of a rank not below that which the State Government may, by notification, prescribe, to release persons on bail or on their own bond. The State Government has, in fact, prescribed that any Excise Officer not below the rank of Sub‑Inspector may exercise this bail‑granting power. Section 80 provides that articles seized and persons arrested under a warrant issued by the Collector must be produced before the Collector. Moreover, where articles are seized and persons are arrested under the Act by individuals or officers who do not possess the authority to release arrested persons on bail or on their own bond, such seized articles and arrested persons must be produced before or forwarded to the Collector, or to an Excise Officer empowered under section 77(2) to investigate the offence, or to the nearest Excise Officer who does have the authority to release on bail or bond, or to the officer in charge of the nearest police station, whichever is nearer. Section 82, the Court recited, states that when any Excise Officer below the rank of Collector, or any officer in charge of a police station, makes or receives information concerning any arrest, seizure, or search undertaken under this Act, that officer must, within twenty‑four hours, prepare a full report containing all particulars of the arrest, seizure, or search, or of the information received, and must forward that report to the Collector and to the Excise Officer (if any) empowered under section 77, sub‑section (2), whose local jurisdiction covers the location where the arrest, seizure, or search occurred. Finally, Section 84 mandates that any person arrested for an offence under this Act shall be informed, as soon as practicable, of the grounds for that arrest.

The law required that a person who had been arrested be taken before the nearest magistrate within twenty‑four hours of the arrest, but the period did not include the time needed for the journey from the place of arrest to the magistrate’s court. The statute further provided that no arrested individual could be kept in custody beyond that twenty‑four‑hour period unless the magistrate gave express authority for such detention. Sub‑section (2) of the same provision stated: “(2) A Magistrate to whom an accused person is forwarded under section 167 of the Code of Criminal Procedure, 1898 (5 of 1898), by a Collector or an Excise Officer empowered under section 77, sub‑section (2), may exercise the powers conferred upon a Magistrate by the said section 167.”

Section 85 of the Act then incorporated the procedural machinery of the Code of Criminal Procedure, 1898, to the extent that it was applicable to matters arising under the excise legislation. Sub‑section (1) declared: “Save as in this Act otherwise expressly provided, the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), relating to arrests, detentions in custody, searches, summonses, warrants of arrest, search warrants and the production of persons arrested shall apply so far as may be, to arrests, detentions and searches made, summonses and warrants issued, and the production of persons arrested under this Act.” Sub‑section (2) added that, for the purpose of those Code provisions, a Collector would be treated as a Court. Sub‑section (3) further specified that officers to whom a Collector’s warrant was directed or endorsed, and officers other than Collectors who made arrests, searches or seizures under the Act, would be deemed police officers for the purposes of the Code.

Section 89 gave the State Government the power to formulate rules necessary to achieve the objectives of the Act or any other law then in force relating to excise revenue. Section 95 protected the Government and any Excise Officer from civil litigation by stating that no civil suit could be filed in any civil court against them for any act done in good faith or ordered to be done in pursuance of this Act or any other contemporaneous excise‑revenue law. Section 96 dealt with the limitation periods for suits and prosecutions, providing that: “No Civil Court shall try any suit against the Government in respect of anything done, or alleged to have been done, in pursuance of this Act, and, except with the previous sanction of the State Government, no Magistrate shall take cognizance of any charge made against any Excise Officer under this Act or any other law relating to the excise‑revenue or made against any other person under this Act, unless the suit or prosecution is instituted within six months after the date of the act complained of.”

The Court observed that the combined effect of sections 7, 89, 95 and 96 demonstrated that the actions of Excise Officers carried out under this Act or any other excise‑revenue law were to be treated in the same manner. Consequently, the Act was characterised as being similar to the Sea Customs Act, with its primary concern being the collection of excise revenue rather than the prevention or detection of crime, a purpose explicitly reflected in the preamble of the statute.

The Court explained that the statute sets out the conditions governing the import, export, transport, manufacture, possession and sale of liquor and intoxicating drugs. Offences under the statute arise when any of those conditions are violated, and the authority granted to Excise Officers to make arrests, conduct searches, seize material or investigate offences is merely incidental to their general duty to ensure compliance with the statutory provisions. The Court noted that the initial reasoning used to conclude that Customs Officers are not to be treated as police officers applies equally to Excise Officers who are vested with investigative powers. Accordingly, an Excise Officer cannot be regarded as a police officer for the purposes of section 25 of the Evidence Act at all times; he is regarded as a police officer only while performing the specific function of an investigating officer. In light of consideration No 2 and subject to the provisions of section 85 (2), the Court held that the term “police officer” in section 25 of the Evidence Act does not extend to Excise Officers even though they possess certain powers similar to those of police officers. Section 82, the Court observed, distinguishes between the officer in charge of a police station and an Excise Officer empowered under section 77 (2) of the Act; the former is required to forward information concerning any arrest, seizure or search made under the Act, or any information received about such actions, to the Collector and to the Excise Officer exercising jurisdiction under section 77 (2) in the relevant area. Therefore, consideration No 4 is also applicable in this situation. The Court further stated that Excise Officers holding the rank of Superintendent of Excise or Deputy Collector are authorized under section 68 to compound offences and to release property that would otherwise be liable to confiscation. This power presupposes that the offender acknowledges his guilt and agrees to compound the offence, a declaration that is normally made to an Excise Inspector or Sub‑Inspector at the outset. The Court found it inconsistent to deem a confession made to such an Excise Officer inadmissible in a criminal trial on the basis that the Officer is a police officer, when the statute itself permits a senior Excise Officer to compound the offence with the offender and discharge him pursuant to section 68 and the relevant Government Notification. Moreover, the Court held that all proceedings before the Collector, the Superintendent of Excise, the Sub‑Divisional Officer and the Deputy Collector, when they are exercising the Collector’s powers, constitute judicial proceedings within the meaning of section 228 (1) of the Code of Criminal Procedure. Section 85 (3) of the Code, the Court explained, specifies the officers and circumstances under which a person may be deemed a police officer for the purposes of the Code. Accordingly, every officer other than a Collector who makes an arrest, conducts a search or effectuates a seizure under the Act is to be deemed a “police officer” for the provisions relating to arrests, searches or seizures in the Code of Criminal Procedure. It is

In this case, the Court observed that the legislature clearly intended that police officers, meaning those who carry out arrests, searches and seizures under the Criminal Procedure Code, would be deemed police officers for those specific functions. The legislature also provided that excise officers or any other persons authorised by the Act to perform those same functions should be treated as police officers solely for the purposes of those particular duties. However, the Court noted that the legislature did not intend to treat excise officers as police officers simply because they may also perform other duties that resemble the work of regular police officers. Consequently, when excise officers investigate offences under the Excise Act, they are not to be regarded as police officers for the investigative provisions contained in the Code of Criminal Procedure. The Court further explained that, had the legislature wished to deem investigating officers under the Act as police officers for the purposes of the investigative provisions of the Code of Criminal Procedure, for section 25 of the Evidence Act, or for any other statutory purpose, it would have expressed that intention in clear language, which it did not. Accordingly, the Court rejected the suggestion that a Collector, who is an excise officer vested with investigative powers by section 77 of the Act, becomes a police officer within the meaning of section 25 of the Evidence Act. The Court also pointed out that subsection (3) of section 85 does not even provide that such a collector is to be deemed a police officer when making arrests, searches or seizures under the Act.

The Court further examined the reliance placed on subsection (3) of section 78 of the Excise Act, which some counsel argued makes inspectors and sub‑inspectors of excise police officers for the purposes of section 25 of the Evidence Act. Subsection (3) of section 78 states that, for the purposes of section 156 of the Code of Criminal Procedure, the area assigned to an excise officer empowered under section 17(2) shall be deemed a police station, and that officer shall be deemed the officer in charge of that station. While recognizing that this provision deems the designated area to be a police station and the officer to be the officer in charge for the limited objective of applying section 156 of the Code of Criminal Procedure, the Court held that this does not transform the excise officer into a police officer for any broader purpose, including the definition found in section 25 of the Evidence Act. Hence, the Court concluded that the provision merely creates a specific procedural equivalence for a narrow investigative function and does not extend the label of “police officer” to excise officers beyond that limited context.

The Court observed that the declaration that an area is to be deemed a police station and that the officer appointed to that area is deemed to be the police officer in charge of that station applies only for a very narrow purpose. The limited purpose is the application of section 156 of the Code of Criminal Procedure, and the designation does not extend to any other purpose. Section 156 of the Code reads: “(1) Any officer in charge of a police‑station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XV relating to the place of enquiry or trial. (2) No proceeding of a police‑officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. (3) Any Magistrate empowered under section 190 may order such an investigation as above‑mentioned.” The Court noted that the effect of sub‑section (1) of section 156 is already incorporated in sub‑section (2) of section 77 of the Excise Act, which authorises officers to investigate, without a Magistrate’s order, any offence that a Court having jurisdiction over the local area to which the officer is appointed could inquire into or try. Sub‑section (1) of section 156 therefore does nothing more than reaffirm that an officer in charge of a police‑station may, without a Magistrate’s order, investigate any cognizable offence that the appropriate Court could inquire into or try under Chapter XV. Consequently, the Court held that the operation of sub‑section (3) of section 78 is limited to the view that, because of the provisions of sub‑sections (2) and (3) of section 156, no proceeding taken by an Excise Officer empowered under section 77(2) may be challenged on the ground that he lacked authority to investigate the offence, and that any Magistrate empowered under section 190 of the Code of Criminal Procedure may direct such an Excise Officer to investigate an offence under the Act. In this reasoning, the Court concluded that the provisions of section 78(3) do not support the view that an Excise Officer empowered under section 77(2) is a police officer for all purposes of investigation under the Code of Criminal Procedure or for the purposes of section 25 of the Evidence Act. Moreover, the Court pointed out that the limited effect of sub‑section (3) of section 78 becomes clear when read together with sub‑section (1) of section 78, which provides that an Excise Officer empowered under section 77(2) may exercise any of the powers conferred upon a police officer making an investigation or by an officer in charge of a police‑station as prescribed in sections 160 to 171 of the Code of Criminal Procedure. If sub‑section (3) were to make the Excise Officer a police officer in charge for the whole investigation, there would be no necessity to specify in sub‑section (1) that the officer could exercise powers under particular sections, the Court observed.

In this case the Court examined whether an Excise Officer who is empowered under Section 77 (2) can be treated as the officer in charge of a police station for the whole of an investigation under the provisions of Sections 160 to 171 of the Code of Criminal Procedure. The Court observed that if sub‑section (3) were to make such an Excise Officer a police officer in charge of a police station for the entire investigation, then there would be no reason to include in sub‑section (1) the specification that he may exercise powers only under certain sections mentioned therein. The Court noted that the powers conferred on the Excise Officer in his capacity as an investigating officer under Section 78 (1) are themselves limited. Under Section 160 of the Code of Criminal Procedure the Officer may issue a summons to persons for the purpose of investigation. He may also examine those persons orally about the facts and circumstances of the case, in the same manner as a police officer may do under sub‑section (1) of Section 161. However, the Court pointed out that a person examined by the Excise Officer is not compelled to answer every question relating to the case that the Officer puts to him, whereas a person examined by a police officer is bound to answer the questions under sub‑section (2) of Section 161 of the Code of Criminal Procedure and also under Section 171‑A of the Sea Customs Act when examined by a Customs Officer. The Court further explained that Section 162 of the Code does not grant any new power to a police officer; it merely provides that any statement made to a police officer during an investigation conducted under Chapter XIV of the Code may be used only for the limited purpose specified in that sub‑section, and only at an enquiry pertaining to the offence that was under investigation at the time the statement was made. Because an investigation carried out by the Excise Officer is not an investigation under Chapter XIV of the Code of Criminal Procedure, the restrictions of Section 162 do not apply. The Court stressed that although the Excise Officer may perform steps that are similar to those a police officer would take, this similarity does not transform his investigation into one that falls within Chapter XIV. The Court also held that Section 163 has no bearing on the question of conferring any additional power, as it merely prohibits a police officer from offering, making, or causing to be offered or made any inducement, threat or promise as described in Section 24 of the Indian Evidence Act, and it requires that the officer not prevent any person from making a voluntary statement during the investigation. Section 164, according to the Court, deals with the recording of statements and confessions by a Magistrate during an investigation under Chapter XIV, and at most it may be read to imply that an Excise Officer could send a confessing accused to a Magistrate for the purpose of recording a confession. In exercising the powers under Section 165 of the Code of Criminal Procedure, the Excise Officer may, in certain circumstances, search a place for an item that may be useful to the investigation, and, by virtue of Section 166 of the Code, he may require another Excise Officer or a police officer to cause such a search to be made. The Court concluded that Section 168 of the Code does not have any application to the present scenario.

It was observed that Section 169 of the Code of Criminal Procedure does not apply to an Excise Officer who is empowered under Section 77(2) of the Excise Act. Section 168, however, obliges any subordinate police officer who is conducting an investigation to forward the results of that investigation to the Station Officer. In the same manner, all Inspectors and Sub‑Inspectors of Excise are mandated by Section 78(4) of the Excise Act to report to the Magistrate who is trying the accused, provided that the magistrate has not already halted further proceedings under the authority conferred by Section 78(2). Such a report is made when there is insufficient evidence to commit the accused to trial before the magistrate. For that reason, Section 169 of the Code of Criminal Procedure is also inapplicable to an Excise Officer exercising powers under Section 77(2). Section 170, on the other hand, empowers the officer in charge of a police station to forward an accused person to a magistrate when there is sufficient evidence for trial. Under Section 171, a police station officer may, in certain circumstances, send a witness who has lodged a complaint and is in custody before a magistrate.

The Court proceeded to examine a series of decisions in which it had been held that an officer who does not belong to the regular police force, but who is vested with the powers of a station officer for the purpose of investigating offences within his jurisdiction, becomes a “police officer” within the meaning of Section 25 of the Indian Evidence Act during the course of such investigation. The reasoning behind that view rested on two principal considerations. First, neither the original Criminal Procedure Code of 1861, which originally contained a provision identical to that of Section 25 of the Evidence Act, nor the Evidence Act of 1872 itself defined the term “police officer”. Moreover, the definition of “police” in the Police Act of 1861 was not a precise definition but rather an inclusive one, leaving the expression “police officer” open to interpretation in line with the original intention and purpose of the legislature when enacting Section 25. Second, the term “police officer” in Section 25 should be understood according to the meaning it carried at the time of its enactment. In support of this approach, the Court cited the view expressed in Hurribole’s Case, which was accepted and interpreted to mean that any individual regarded by the public as a police officer would fall within the definition. The Court then turned to Hurribole’s Case, which had been referenced in Barkat Ram’s Case. In Hurribole’s Case, a man named Mr. Lambert, who was a member of the regular police force and was recognized as such outside Calcutta—a city where the Police Act of 1861 did not apply—was posted in Calcutta as Deputy Commissioner of Police and was also invested with the powers of a magistrate. In that case, the accused had initially made a confession to two policemen, and that confession had been recorded in writing.

In the case under discussion, the accused first gave a written confession. Afterwards he was taken to the police office where he was placed before Mr. Lambert, who held the position of Deputy Commissioner of Police. The accused reiterated his earlier statement before Mr Lambert, and Mr Lambert, acting in his capacity as a Magistrate, received the statement and certified it as true. The central issue was whether this confession fell within the prohibition contained in section 25 of the Evidence Act. The answer depended on whether Mr Lambert could be regarded as a “police officer” as defined by that provision. Justice Garth, speaking for the Court, rejected the argument that the term “police officer” should be limited only to those persons expressly named in the Bengal Police Act as members of the police force. He observed that the expression should not be interpreted in a narrow technical sense but rather in its broader, popular meaning. In everyday language and in the perception of the general public, the Commissioner and the Deputy Commissioner of Police are understood to be police officers just as fully as the ordinary rank‑and‑file members of the force. Justice Garth therefore reasoned that, in construing a provision such as section 25, which was intended to give comprehensive protection to an accused, the Court should adopt the widest and most commonly understood interpretation of the term “police officer.” These remarks imply that Mr Lambert, although a regular member of the police establishment, did not cease to be a police officer when he was appointed Deputy Commissioner of Police in Calcutta and vested with magisterial powers. He would continue to be regarded as a police officer by the public at large and consequently must be treated as such for the purposes of section 25. The Court’s use of the comparative adjectives “narrow” and “wider” with respect to the meaning of “police officer” was intended to convey that, even if a person’s formal status at a particular moment – for example, his temporary posting as Deputy Commissioner of Police – might not fall within the strict definition found in either the Bengal Police Act or the Police Act of 1861, his underlying regular service as a police officer makes him a police officer in the sense contemplated by the statute. Justice Garth did not suggest that courts should base the meaning of the term on the subjective views of the people as to whether a particular individual is a police officer. To rely on such a subjective standard would be unstable, because it would lack an objective benchmark for interpretation. A further question that arose in the case concerned …

In this case the Court considered whether a confession could be admitted on the basis of section 26 of the Evidence Act, which provides that a confession made by a person while in police custody is inadmissible unless it is made in the immediate presence of a Magistrate. The argument advanced was that Mr Lambert, being a Magistrate, had taken the confession in his official capacity and therefore the confession should be admissible. The Court rejected this submission, holding that section 25 of the Evidence Act is mandatory and categorically bars any confession made to a police officer, irrespective of the circumstances, from being used as evidence against the maker. By applying section 25, the Court effectively disregarded Mr Lambert’s status as a Magistrate. The confession was not treated as having been taken by a Magistrate; instead it was deemed to have been made to a police officer because Mr Lambert, by virtue of his service, was a police officer. The only source of his magistrate‑like authority derived from his appointment as Deputy Commissioner of Police, which merely conferred upon him certain powers ordinarily possessed by a Magistrate. Consequently, the Court stressed that the mere bestowal of some powers of one class of officer on another does not transform the latter into a member of the former class. Even if an officer is temporarily exercising functions normally belonging to a different class, such as a Magistrate, the officer does not acquire the legal status of that class for the purpose of the Evidence Act.

The Court further observed that the reasoning of the learned Chief Justice, who suggested that section 25 should be interpreted in its broadest and most popular sense, does not intend to expand the definition of “police officer” to the point where courts must inquire into the public’s general perception of who is a police officer. Rather, the observation means that the term is not confined strictly to those persons who fall within a specific statutory definition of police officer, but may include any individual who belongs to the police force in a general sense. The Court noted that neither the Criminal Procedure Code of 1861 nor its subsequent amendments provide a definition of “police officer,” although many of its provisions refer to that term. For the purpose of the present dispute, the Court referred to section 148 of the Code of Criminal Procedure, 1861 (Act XXV of 1861), which states: “No confession or admission of guilt made to a Police Officer shall be used as evidence against a person accused of any offence.” The Court questioned which category of persons the 1861 Code contemplated when it used the expression “Police Officer.” It expressed the view that the Code could only have referred to regular members of the police, i.e., those officers on whom the Code expressly bestowed police powers and duties, and not to a vague class of persons whose status might be determined by popular opinion. The Legislature, therefore, would be the authority to specify the class of persons deemed to be police officers, and the Code was not intended to leave that determination to judicial speculation.

In this passage the Court explained that the Code of Criminal Procedure intended the term “police officer” to refer to regular uniformed police personnel for the purpose of its various provisions. The Code had to identify a specific class of individuals who would receive the powers and duties normally attached to a police officer. It could not assign those powers and duties to an indefinite group whose status would have to be decided later by courts based on public opinion. Consequently, the only clear category was the members of the police as defined by the statutes then in force, without relying solely on the general Police Act of 1861, any special Police Acts applicable to the Presidency towns, or persons whom particular statutes might deem to be police officers. In the latter situation it would be the Legislature that would specify the class of persons to be treated as police officers. The Court observed that it was not unusual for the Legislature in 1861 to enact provisions deeming certain individuals to belong to a particular class of officers. Historically the Court found the expression “police officer” or “police” to be a well‑defined term rather than a vague one. The Court referred to the Regulations of 1793 issued by the Governor General in Council, which addressed many matters concerning the administration of the East India Company’s territories. The preamble of Regulation XXII of 1793 stated that its purpose was to establish an efficient police force throughout the country so that offenders could not escape the pursuit of agents of justice, especially when landholders and farmers were previously obligated to keep the peace and to produce robbers and stolen property, a requirement that had become ineffective. Section 11 of that Regulation declared: “The police of the country is, in future, to be considered under the exclusive charge of the officers who may be appointed to the superintendence of it on the part of Government. The landholders and farmers of land who were bound to keep up establishments of tannahdars and police officers for the preservation of the peace are accordingly required to discharge them, and all landholders and farmers of land are prohibited from entertaining such establishments in future.” Section III further provided that, from that point forward, landholders and farmers would not be held responsible for robberies committed on their estates unless specific conditions set out in the Regulation were satisfied. The Court noted that this Regulation represented the first systematic code for creating an efficient police force under British control. Prior to this, the duties of maintaining peace and preventing and investigating crimes, particularly offences against property such as robbery and theft, were performed by the landholders and farmers themselves.

In this case the Court observed that the pre‑amble and section II of the early Regulation clearly required that the whole police force be placed under the exclusive charge of officers appointed by the Government. The Government itself was therefore responsible for appointing all police officers. Later statutes and regulations on the police were built upon the foundation laid by that Regulation. The Court noted that the purpose of the Police Act of 1861 was likewise to bring the entire police establishment of the country within a single legal framework. The short title of the Act is “An Act for the Regulation of Police,” and its pre‑amble states that it is expedient to reorganise the police and to make it a more efficient instrument for the prevention and detection of crime. Section 1 defines the expression “general police district” to include any Presidency, State or any place where the Act is to be applied. Section 2 provides that, for the purposes of the Act, the whole police establishment that exists under a State Government shall be treated as one police force and shall be formally enrolled; consequently the persons belonging to that establishment constitute a distinct class of individuals. Section 3 then declares that the superintendence of the police throughout a general police district shall vest in, and be exercised by, the State Government to which that district is subordinate. The Court explained that this provision does not refer merely to the superintendence of a police force, but places the entire police establishment of the State under the control of that Government. Administration of the whole police is assigned to the Inspector General of Police by section 4, while within each district the administration is vested in the District Superintendent of Police. The Court pointed out that these officers do not have any administrative control over Excise Officers. Section 47 authorises the State Government to declare that any authority previously exercised by a District Magistrate over a village watchman or other village police officer for police purposes shall, subject to the general control of the District Magistrate, be exercised by the District Superintendent of Police. This, the Court held, clearly demonstrates that the Act intended to bring the entire police, whether already governed by the Act or not, within its jurisdiction in the areas where the Act is in force. Because various persons, under different Acts or other arrangements, were performing police functions, the Police Act of 1861 defined the word “Police” to include all persons who would be enrolled under the Act, thereby indicating that the definition could extend to individuals who were not directly enrolled but performed police duties. Section 21 of the Act specifically mentions hereditary police officers and other police officers appointed under Act XX of 1856, the Bengal Chowkeydari Act. The Court concluded that, although the definition of “Police” in the Act is inclusive, it is not so expansive as to cover every individual to whom any other Act confers powers similar to those of a police officer.

In this case the Court observed that the term “police officer” is limited to persons to whom powers analogous to those of a police officer are conferred by a specific statute, and that the Excise Law historically treated Excise Officers as a separate class from regular police officers. The legislation expressly provided that certain officers belonging to the Revenue Department and the Police Department could be deemed Excise Officers for the purposes of enforcing excise regulations. The Court referred to Regulation XXXIV of 1793, which, with modifications, restated the rules originally issued on 16 April 1790 and on later dates for imposing a tax on intoxicating liquors and drugs and for preventing their illicit manufacture and sale. That regulation was later superseded by Regulation X of 1813. Section I of Regulation X of 1813 set out the purpose of the new regulation, stating that it was intended to consolidate all existing rules relating to that branch of public revenue into a single Regulation with appropriate alterations and amendments, thereby emphasizing that the Regulation dealt with matters of public revenue. Section XVIII of the same Regulation provided that, for the more convenient collection of duties on spirituous liquors and related items, collectors could appoint officers titled “abkarry darogahs” to collect those duties. These darogahs were authorized to apprehend and forward to the Collector any person who possessed an unlicensed still or who engaged in the illicit sale of spirituous liquors. Section XXII further mandated that all investigations necessary to address the illicit manufacture or sale of spirituous liquors should be conducted by the collectors of land revenue or by other public officers entrusted with the charge of the “abkarry mohaul.” The same section also empowered the Collector or other officers in charge of the “akbarry mohaul” to cause the apprehension of persons charged with or suspected of offences under the Regulation so that a regular enquiry could be conducted. Under Section XXIII, officers responsible for the “abkarry mohaul” were given the authority to issue search warrants. Section XXXI entitled collectors of land revenue to receive a commission on the net amount of “abkarry” revenue realized by them.

The Court then turned to the legislation enacted in 1856, noting that Act XXI of 1856 repealed Regulation X of 1813. The Act was titled “An Act to consolidate and amend the law relating to the Abkaree Revenue in the Presidency of Fort William in Bengal,” and its preamble declared that it was expedient to consolidate and amend the laws governing the manufacture of spirits, the sale of spirituous and fermented liquors, intoxicating drugs, and the collection of revenue derived therefrom. Section II of the 1856 Act stipulated that collectors of land revenue would be placed in charge of collecting revenue arising from the manufacture of spirits and the sale of spirits, liquors, and intoxicating drugs. Section IV of the same Act empowered those collectors to appoint a range of officials, including darogahs, jemadars, peons, surveyors, gaugers, and other officers, for the purpose of collecting the abkaree revenue and preventing smuggling. This provision reflected the continuation of the administrative structure established under earlier regulations, whereby specialized officers such as the “abkarry darogahs” were integrated into the revenue collection system and granted powers to enforce the relevant excise laws.

The statute assigned the collection of the abkaree revenue and the prevention of smuggling to officers designated as abkaree officers. It allowed the office of an abkaree darogah to be combined with the office of any tuhseeldar, naib tuhseeldar or peshkar, and in such cases section IV stipulated that those officers and all subordinate officers would be deemed to be abkaree officers within the meaning of the Act. Section LV authorised abkaree officers to enter and inspect the shops or premises of licensed manufacturers or retail vendors. Section LVI gave them the power to stop and detain any person carrying articles liable to confiscation under the Act, to seize such articles and to arrest the person in possession of them. Section LVII conferred further powers of arrest on the officers under certain circumstances. Section LXV required that all police officers must assist the abkaree officers in carrying out the provisions of the Act when the latter gave notice or made a request. In these provisions the terms “police officers” and “abkaree officers” refer respectively to officers of the regular police and to officers of the abkaree department, and the Act expressly distinguishes between the two categories.

Section LVIII empowered an abkaree officer of rank above a jemadar of peons to enter and search specified places, but only in the presence of the darogah or another police officer, as prescribed in that section. Section LIX vested certain powers in officers of the Police, Customs and Revenue Departments and authorised the Government to invest those officers with authority to search for, seize, and confiscate spirituous and fermented liquors and intoxicating drugs, and to arrest persons found possessing such articles. The provision further stated that any officer so empowered, as well as all police, customs and revenue officers acting under the authority conferred by that section for the purpose of suppressing illicit dealings in opium, would be deemed to be an abkaree officer within the meaning of the Act.

Consequently, the legislature, through sections IV and LIX, clearly intended that, whenever it deemed necessary, officers who were not originally abkaree officers could be treated as such for the purposes of exercising the powers conferred by the Act. The Criminal Procedure Code of 1861, by section 148, provided that no confession made to a police officer could be used as evidence against an accused person. Considering the first Regulation XXII of 1793, which created the police under direct governmental control, and Regulation XXXIV of 1793, which governed the abkaree department up to 1856, the Court expressed the view that it is not possible to conclude, in its opinion, that the legislature, when using the expression “police officer” in section 148 of the 1861 Code of Criminal Procedure, intended that term to include abkaree officers who possessed investigative powers, especially since the statute makes no reference to such inclusion.

The Court observed that the legislation had prescribed the procedure to be followed in conducting investigations that were necessary to establish offences under the Abkaree Act against alleged culprits. It noted that certain provisions previously mentioned made it clear that the Legislature had expressly declared that officers of departments other than the Police could, in particular situations, be deemed to be Abkaree officers. Consequently, the Court reasoned that if the Legislature had intended the term “police officers” in the Code of Criminal Procedure of 1861 or in section 25 of the Evidence Act of 1872 to include such non‑police officers who were given investigative powers, it could have easily stipulated that a confession made to a police officer or to those other officers would be inadmissible as evidence. The Legislature also could have clarified the meaning of “police officer” for the purposes of section 148 of the Criminal Procedure Code of 1861 or section 25 of the Evidence Act of 1872. The Court held that the Legislature’s failure to do so demonstrated a clear intention not to extend the expression “police officer” in section 25 of the Evidence Act to a broad, general sense. The Court referred to the construction of the term in earlier cases such as Nanoo v. Emperor (1), Ameen Sharif v. Emperor (1) and Public Prosecutor v. Paramasivam (3). It also cited Radha Kishun Marwari v. King Emperor (4), where it was held that an Excise officer did not fall within the meaning of “police officer” under section 25 of the Evidence Act. The Court noted that three judges, including Chief Justice Courtney Terrel, had expressed disagreement with the Bombay High Court’s view in Nanoo v. Emperor (1). After remarking that the decision in Hurribole’s case (2) had been widely misunderstood, the judge explained that the term “police officer” was sufficiently well understood to be used without a precise definition, acknowledging that different countries and states grant varying powers to their police forces. He further stated that it was not difficult to determine whether a particular individual was a police officer in a given country, and that a confession made to a foreign police officer in the country where that officer actually served as a police officer was not admissible in an Indian trial. The judge also expressed the opinion that courts were not primarily concerned with the legislative purpose behind a law and that the Legislature might not have drafted a provision to achieve the entirety of its intended objective; consequently, where the Legislature had not expressly indicated a different intention, its plain words must be followed.

The Court observed that the literal words of the statutory provision must be given effect. Justice Fazl Ali concurred with this approach and, at page 56, expressed that a clear distinction exists between an individual who is purely a police officer and a person who is essentially not a police officer but who has been temporarily vested with police powers; this distinction is material and cannot be ignored when construing section 25 of the Evidence Act. He further added at page 57 that adopting a broader interpretation would disregard the ordinary meaning of the expression “police officer” as recorded in the authorities (1926) I.L.R. 51 Bom 78 and (1871) I.L.R. I Cal 207, and would unduly expand the scope of the section. Justice Fazl Ali noted that the framers of the Evidence Act could have expressly provided that confessions made to a police officer as well as to persons who are, for a limited time and for specific purposes, vested with police powers are inadmissible, but they chose not to. Justice Agarwala, on the other hand, held that the term “police officer” in section 25 refers only to those who are enrolled in or appointed as members of the regular police force. The Court adopted the broader perspective advanced by the Chief Justice and Justice Fazl Ali, and consequently held that the Excise Inspector and the Sub‑Inspector who were empowered by the State Government under section 77(2) of the Excise Act do not fall within the definition of “police officer” under section 25 of the Evidence Act. Accordingly, those officers cannot be treated as police officers for the purposes of section 162 of the Code of Criminal Procedure.

The Court explained that section 162 of the Code of Criminal Procedure does not grant any power to a police officer; rather, it regulates the use of statements recorded by a police officer who is conducting an investigation under Chapter XIV of the Code. The investigation carried out by the Excise Inspector, however, is not conducted under Chapter XIV but under the specific provisions of the Excise Act, and this provides an additional reason why section 162 of the Code of Criminal Procedure does not apply to statements made to an Excise officer during the course of an enquiry under the Act. In the present case, the record of evidence showing that the appellant was found in possession of Nepali ganja cannot be relied upon to sustain his conviction. The High Court had placed reliance on that finding because it considered the appellant’s confession. The Court observed that the Excise Inspector’s tampering with the seizure memo seriously impugns his credibility, creating substantial doubt about whether the appellant’s confession was made voluntarily. Because the Court was not satisfied that the confession was voluntary, it declined to use the confession to support the inadequate testimony of the prosecution witnesses regarding the recovery of the ganja from the appellant’s possession, and consequently chose not to uphold the conviction, despite the High Court’s earlier finding.

The Court recorded as a matter of fact that the narcotic substance identified as ganja had indeed been recovered from the possession of the appellant. In reviewing the judgment of the High Court, the Court observed that the higher tribunal had failed to examine the issue of tampering with the seizure memorandum in its entirety. The Court noted that the High Court neither fully explored the various dimensions of the alleged alteration of the seizure memo nor assessed how such tampering might bear upon the question of whether the appellant’s confession was given voluntarily. Because the voluntariness of a confession is a fundamental requirement for its admissibility, the Court emphasized that any doubt raised by the tampered seizure record should have been carefully considered. The failure to address this critical link, according to the Court, meant that the High Court did not evaluate the possible impact of the memo’s manipulation on the overall case against the appellant. Consequently, the Court concluded that the omission was material and could not support the conviction that had been affirmed by the High Court. On this basis, the Court allowed the appeal, setting aside the earlier decision and providing relief to the appellant.