Ramkaransingh v. Emperor

1. The applicant Ramkaransingh and one Beni Madho Singh were at about 8 p.m, on 5th July 1934 returning from Mohgawan to Basim when they were stopped and challenged by an Excise Sub-Inspector and his party. It is alleged that the applicant's companion threw away a bottle which contained illicit liquor. Beni Madho Singh is the brother-in-law of the applicant, and the prosecution story, which has been found proved, is that the two were cycling together and they were bringing this liquor for the applicant Ramkaransingh's daughter who was ill. Ramkaransingh is said to have made a confession to the Excise Sub-Inspector to that effect. The applicant in his examination in Court denied the offence entirely. According to him the bottle was shown to them after they had moved on, and Beni Madho Singh was falsely accused of having brought it.

2. It is clear that the conviction depends on the admissibility of the applicant's statement to the Excise Sub-Inspector.

3. It has not been proved that the bottle was of such a size and was so carried by Beni Madho Singh that his companion must necessarily have been aware of it. From the mere fact of their cycling together Ramkaransingh's complicity cannot be safely inferred.

4. There does not appear to be any direct authority of this Court on the point whether an Excise Sub-Inspector comes under the category of a Police Officer in Section 25 of the Evidence Act. In 1927 Nag. 222 1927 Nag 222 , 101 IC 599 , 28 Cr LJ 471 , 23 NLR 23 the question was whether a police patel came under that section. Hallifax and Mitchell, A.J.Cs, recognized that the section should be liberally interpreted at least to the extent of covering those persons who, like Police Officers, are so much more interested in obtaining convictions than any member of the community is, that they might possibly resort to improper means for doing so. The Judges held that a police patel was not such a person, as, although he has powers and duties in respect of the investigation of offences, he has the interests of his fellow villagers at heart at least as much if not more than those of the police. Their opinion was that the holding of certain powers ordinarily held by Police Officers is not a sufficient reason by itself although the consequences that flow from it may be. In this connexion they remark:

“Otherwise it would be necessary to include within the scope of Section 25 of the Evidence Act, several other persons who have never yet been regarded as so included, such as Officers of the Excise and Customs and Forests.”

5. Although Excise Officers had not up till the date of this ruling been regarded in this province as Police Officers according to S. 25, what I have to decide is whether they should be so regarded. There is he doubt that they possess by virtue of the Excise Act what may be called “police powers”: see Sections 51, 52, 55 and 59 of the C.P Excise Act, as to their powers of inspection, search, arrest, seizure, investigation and prosecution. It must further be considered whether according to the principle laid down in 1927 Nag. 222 1927 Nag 222 , 101 IC 599 , 28 Cr LJ 471 , 23 NLR 23 they are more interested in obtaining convictions than ordinary members of the community. In this connexion I would refer to S. 259, Ch. 8, C.P Excise Manual, Vol. 1:

“The prevention of offences against the Excise Act and the other Acts, which they are called upon to administer, forms a most important part of the duties of all Excise Officers. It is probable that, as Government's Excise policy of restriction develops further, the importance of preventive work will increase proportionately.”

6. Again in S. 295 seq., there are rules about granting of rewards and it is clear that all Excise Officers are eligible for them and that successful prosecutions may be to their advantage. Thus on the Page: 14principle laid down in the abovementioned case I think that officers of the Excise department, should be held to be Police Officers for the purpose of Section 25 of the Evidence Act.

7. The question has been considered in various High Courts and authority is not unanimous on the point. But I am fortified in my conclusion by the weight of authority to be found in 1927 Bom. 4 1927 Bom 4 , 99 IC 330 , 28 Cr LJ 122 , 51 Bom 78 (FB), 1929 Lah. 29 1929 Lah 29 , 112 IC 783 , 30 Cr LJ 15 , 10 Lah 524, 1931 Cal 350 1931 Cal 350 , 131 IC 113 , 32 Cr LJ 640 , 58 Cal 1260, and a very recent case, 1934 Cal. 580 1934 Cal 580 , 1934 Cr C 841 , 150 IC 561 , 35 Cr LJ 1071 , 61 Cal 607 (FB). A contrary view was expressed in 1930 Rang. 49 1930 Rang 49 , 1930 Cr C 241 , 121 IC 715 , 31 Cr LJ 303 , 7 Rang 771 and some earlier Calcutta cases, 1919 Cal. 696 1919 Cal 696 , 48 IC 504 , 20 Cr LJ 24 , 46 Cal 411, 1927 Cal. 527 1927 Cal 527 , 102 IC 547 , 28 Cr LJ 579 , 54 Cal 601 and 1932 Cal. 122 1932 Cal 122 , 140 IC 257 , 1932 Cr C 107 , 34 Cr LJ 21. In the Burma case the decision turned on the fact that Excise Officers appointed by the Burma Excise Act of 1917 were no longer sworn in as Police Officers. The earlier Calcutta cases have been fully considered in the Full Bench case, 1934 Cal. 580 1934 Cal 580 , 1934 Cr C 841 , 150 IC 561 , 35 Cr LJ 1071 , 61 Cal 607 (FB) in which four Judges held (Costello, J., dissentiente):

“An Excise Officer, who, in the conduct of investigation of an offence against the Excise, exercises the powers conferred by the Code of Criminal Procedure upon an officer in charge of a police station for the investigation of a cognizable offence, is a Police officer within the meaning of Section 25 of the Evidence Act.”

8. That conclusion has my respectful concurrence. It follows that the proof against this applicant is inadequate and he is entitled to acquittal. The trial is defective in another particular also, as proof was inadequate that the liquor seized was illicit. There are bald statements on record by the Excise Sub-Inspector and by the Excise peon that the stuff was “I.D.L,” which are not enough. No doubt that the Excise Sub-Inspector is an expert in his own department and is able to distinguish liquors, but the Court should have, under Section 51 of the Evidence Act, ascertained the grounds on which his opinion was based, so as to test it. The evidence recorded in the connected case about this same liquor cannot of course be imported into the present one. The application therefore succeeds and the applicant is acquitted of an offence under Section 34(a) of the Excise Act.

9. Application succeeds.