EKAMBARAM Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) EKAMBARAM , the Petitioner herein, stands convicted and sentenced to undergo R. I. for one year for an offence under Section 3A of the Railway Property (Unlawful Possession) Act (Act 29 of 1966). On 16th December 1969, P. W. 1, the Sub -Inspector attached to the Railway Protection Force at Arkonam, saw this Petitioner coming from the west towards the east in the Down Main Railway track with another person carrying something on their left shoulders. M.O.1, a railway cast -iron break block with the inscriptions 'IRSBG -900' on one side and 'BEMCO' on the other side was seized from him under the cover of the mahazar Ex.P -1 attested by P. W. 2. He could not satisfactorily explain as to how he came by it. Ex. P -2 statement was made by him confessing the crime. The case was then charged. P. Ws. 1 and 2 deposed to the above facts. P.W.3, the Train Examiner attached to the Arkonam Junction, stated that M.O.1 is a property of the Indian Railways, not available in the open market. When questioned, Petitioner denied the possession attributed to him and stated that he was taken from his house and his signature was then taken in Ex. P -2.D. Ws. 1 and 2 were examined by him for substantiating this version Believing the evidence adduced on the side of the prosecution, the learned Magistrate convicted and sentenced the Petitioner as stated above. On appeal, the learned Sessions Judge at Chingleput affirmed both the conviction and sentence. Petitioner contends that he has been wrongly convicted.

(2.) MR . Ahmed Meeran, learned counsel appearing for the Petitioner, contends that P. W. 1 is a police officer, that the statement Ex. P -1 recorded by him from the Petitioner comes within the purview of S. 25 of the Indian Evidence Act, and that the Courts below erred in convicting the Petitioner on the basis of this statement. He relies upon the decision in Rajaram Jaiswal v. State of Bihar : A.I.R. 1964 S.C 828 and contends that the words 'police officer" found in S. 25 of the Evidence Act should not be construed in a narrow way, but should be construed in a wide and popular sense. There, in that case the statement was recorded by an Excise Inspector who was empowered by a notification to investigate any offence under the Bihar and Orissa Excise Act. The exercise officers in that case did not exercise judicial powers just as the customs officer does under the Sea Customs Act, 1878. The words 'police officer' in S. 25 however, should not be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. The Supreme Court in State of Punjab v. Barkat Ram : A.I.R. 1962 S.C. 276 held that the customs officer is not a police officer and consequently a confession made to him is not hit by the provisions of S. 25 of the Evidence Act. He acts judicially inasmuch as he is entitled to confiscate the goods and levy penalties on the persons found smuggling. The mere fact that similar powers in regard to the detection of infractions of customs laws have been conferred on officers of the Customs Department, as are conferred on officers of the police is not sufficient for holding them, to be police officers within the meaning of S. 25 of the Evidence Act. Mere conferment of powers of investigation does not make the Deputy Superintendent of Customs and Excise a police officer: Vide Badaku Joti Svant v. State of Mysore : A.I.R. 1966 S.C. 1746 The Collector of Customs, Madras v. Kotumal Bhirumal Pabiajani and Ors., 1967 M.L.J. Cri. 381 and Illias v. The Collector of Customs, Madras, (1970) 1 M.L.J. (S.C.) 133. As pointed out by the Supreme Court in Ramesh Chandra Mehta v. The State of West Bengal : A.I.R. 1970 S.C. 1940 the test for determining whether an officer of the customs is deemed to be a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report under Section 173 of the Code of Criminal Procedure. The customs officer exercising power to make an inquiry cannot submit a report under Section 173 of the Code. Therefore, he is not a police officer, with the result, the statement made before him by a person who is arrested is not covered by Section 25 of the Evidence Act.

(3.) THUS , the statement Ex. P. 2 made by the Petitioner to P.W. 1 is not hit by S. 25 of the Evidence Act. Even if Ex. P. 2 is excluded, there is the evidence of the two witnesses, P. Ws. 1 and 2. which establish the case against the Petitioner. The conviction is correct and the same is confirmed. The Petitioner is a first offender. He is aged 23. He shall be released under Section 4(1) of the Probation of Offenders Act on his executing a bond for Rs. 500/ - with one surety for a like sum to the satisfaction of the Additional First Class Magistrate, Tiruttani, to be of good behaviour for a period of one year from this date.