S FERNANDEZ Vs. STATE

JUDGEMENT

(1.) This appeal has been preferred by S. Fernandez 'alias' Salvador Fernandez who has been convicted under Section 13 read with Section 20, Dangerous Drugs Act in connection with the seizure of a certain quantity of illicit opium. It is alleged that on 24th October 1952, it K. G. Dock, Calcutta Port, he attempted to export and tranship by S. S. Tairea a certain quantity of opium in contravention of Section 7, Dangerous Drugs Act and thereby committed in offence punishable under Section 13 read with 3. 20, Dangerous Drugs Act. According to the prosecution version P. W. 1 W. P. Webber, a Preventive Officer of the Customs Department, received information that the appellant was in possession of some opium on board the ship mentioned above which was lying moored at 10 Kidderpore Dock; that he along with G. K. Das, Preventive Officer, Customs, caught hold of the appellant and took him to Customs for interrogation. It is further alleged that the appellant made a' confessional statement before P. W. 2 J. P. Smith, Inspector of Customs, Intelligence Branch, Mr. Das and himself. This statement was recorded by Mr. Das. The prosecution case is further that after this statement had been recorded Mr. Smith, Mr. Das and Mr. Webber went on board the Tairea and searched the place which had been indicated by the appellant, namely, berths 90 to 95 in second Class Cabin and from behind the water pipe in the cabin they recovered 27 packets of opium. It is in connection with this opium that the appellant has been convicted as mentioned above.

(2.) The main question in this appeal is whether this confessional statement is admissible in evidence. The learned Magistrate has held that it is not hit by Section 25, Evidence Act and in his view a Customs Officer is not a police officer within the meaning of Section 25, Evidence Act and as such the confessional statement in question is admissible in evidence with the remit that the appellant is liable to be convicted an the basis of the admissions made by him in that statement.

(3.) On behalf of the appellant it has been contended before us by Mr. Lahiri that the view taken by the learned Magistrate regarding the admissibility of the statement in question is erroneous. He has argued that a Customs Officer is a police officer and as such he comes within the mischief of Section 25, Evidence Act with the result that the statement recorded by G. K. Das is inadmissible in evidence. The question seems to be one of first impressions so far as this Court is concerned.