AMIN SHARIFF Vs. EMPEROR

JUDGEMENT

(1.) On receipt of some information an Excise Inspector with a raiding party went to a certain place and on making a search there seized a bundle which was found to contain seven seers of opium valued at Rs. 1,050. He arrested three persons one of whom was one Amin Shariff (appellant in appeal No. 262), and another, one Jahabir Singh (Appellant in appeal No. 379), both of whom have been convicted by the Chief Presidency Magistrate of Calcutta under Section 9, Opium Act (l of 1878). These two men are said to have made confessions to the Excise Inspector. At the hearing of the appeals which the accused persons have preferred to this Court, a question having arisen as to whether the said confessions are admissible in law, in view of the provisions of Section 25, Evidence Act, the Division Bench which was dealing with the appeals, has made this reference.

(2.) The question referred runs in these words: Is an Excise officer, who, in the conduct of investigation of an offence against the Excise, exercises the powers conferred by the Criminal P. C. upon an officer in charge of a Police Station for the investigation of a cognizable offence, a Police Officer within the meaning of Section 25, Evidence Act.

(3.) So far as this Court is concerned, the following is the state of authority bearing upon the question. In Rokun Ali V/s. Emperor AIE 1918 Cal 138, which was a case Under Section 9, Opium Act (l of 1878), a confession made by the accused to a Superintendent of Excise was admitted against him in evidence, it being held that there was no inducement, threat or promise to shut it out Under Section 24, Evidence Act; but the question whether Section 25 of the said Act applied to the case or not was neither raised nor decided. In Ah Foong Chinaman V/s. Emperor AIE 1919 Cal 696, which also was a case Under Section 9, Opium Act (l of 1878), a confession made by the accused to an Inspector of Excise was sought to be ruled out on the ground that Excise Officers were in reality Police Officers, though not called as such ; but the contention was overruled, it being only observed that it was not possible to say that Excise Officers ware Police Officers. This last-mentioned decision was followed in Harbhanjan Sao v. Emperor , which was a case Under Section 46, Bengal Excise Act; (5 of 1909). In Tura Sardar V/s. Emperor AIR 1980 Cal 710, which was a case under Secs.46 and 61, Bengal Excise Act (5 of 1909), a confession made to an Excise Inspector and an Excise Sub-Inspector was held admissible in spite of Section 25, Evidence Act. In that case the argument that an Excise Officer is a Police Officer within the meaning of Section 25, Evidence Act, was overruled on the ground that the question was no longer res integra, having regard to the decisions in the cases of Rokun Ali V/s. Emperor AIE 1918 Cal 138, Ah Foong Chinaman V/s. Emperor AIE 1919 Cal 696 and Harbhanjan V/s. Em-per or .