IBRAHIM AHMED Vs. EMPEROR

JUDGEMENT

(1.) The appellant has been convicted under Section 46 (A), Bengal Excise Act and under Section 9 (c), Opium Act and has been sentenced under the latter section, to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000, or in default to undergo further imprisonment for six months and under the former section, to undergo rigorous imprisonment for one year-the sentences of imprisonment being made to run concurrently.

(2.) The case for the prosecution is that on :30 July 1930, premises No. 16-H-2, Armenia Street were raided by a party of excise officers. The appellant was occupying two rooms, being the western and the eastern rooms on the north side of first floor. It is alleged that in the western room was found a quantity of opium and cocaine worth about Rs. 15,000. The defence is that the room was not in the occupation of the appellant, but that it was in the occupation of one Hasmat Khan. According to the evidence adduced by the P. W. 2, the Sub- Inspector, was the first person to go upstairs and he found the appellant coming out of a room. This was the western room in which all the stuff was found. The appellant wanted to re- enter the room, but he was stopped by the witness and then with the permission of the witness the appellant removed his wife and children -to the eastern room. Thereafter the western room was searched in the presence of the excise officers and other witnesses. The appellant himself brought out the cocaine and the opium contained in different receptacles from two almirahs and the key of one of the two almirahs was also produced by the appellant. It is said that the appellant made statements of a confessional nature both before the search and during the search. It is also said that after the search he was taken to the excise barracks where his confession was recorded by an Excise Inspector, P. W. 1, and it was signed by the appellant. This confession has been admitted into evidence as Ex. 3.

(3.) It is contended by Mr. Gregory for the appellant that the alleged confession is not admissible in evidence. He points out that although under the Opium Act the powers of excise officers are limited, under the Bengal Excise Act the powers of such officers are virtually those of police officers holding investigation. Section 14, Opium Act (Act 1 of 1878) gives to officers of the Excise Department power to enter, arrest, and seize, on information that opium is being unawfully kept in any enclosed place. Section 15 gives power to seize opium in open places. Section 16 provides that all searches under Section 14 or Section 15 shall be made in accordance with the provisions of the Criminal Procedure Code. Then Section 20 provides that every person arrested and thing seized, under Section 14 or Section 15, shall be forwarded without delay to the officer in charge of the nearest police station, and Section 21 provides for the report of all particulars of such arrest or seizure. On the other hand the Bengal Excise Act 5 of 1909 goes further. Section 73 prescribes that certain excise officers may investigate offences. This must be read with B. 35, Vol. 1, p. 108, Bengal Excise Manual (1918), which says that an Excise Inspector or Sub-Inspector is empowered to investigate any offence punishable under the Act. Then Section 74, Excise Act, prescribes the powers and the duties of excise officers investigating offences and the provision shows that such officers are virtually deemed to be police officers. Mr. Gregory has drawn our attention to the Bombay Abkari Act (Bombay. Act 5 of 1878).