Adv Ram Chander Sankhla Founder and Managing Partner Sankhla Law Associates

Adv Rahul Sankhla
Partner
Sankhla Law Associates

  1. Howsoever strange it may sound, that in law, a confession made before a Revenue officer, including a Customs, (also then Central Excise and service tax) and GST officer can be used against its maker or other person, but the same type of statement made before a police officer cannot be used so. The difference lies in details of the relevant statute, under which both types of officers perform their duties.

 

  1. The journey, post-Independence, to come to such conclusion though remained bumpy but adventurous, as sometimes it was declared that Customs officer are also Police officer and most of the times that he is NOT. Then, in the same judgements, there are two diagrammatically opposite views; one by majority and other by minority. Quite interesting, as both relies on same provisions and past case law. Through this article, an endeavour has been made to travel along this journey and enjoy the process.

 

  1. Article 20(3) OF Indian Constitution, which is the well-known right against self-incrimination. speaks that:

“No person accused of any offence shall be compelled to be a witness against himself.”

  1. A confessional statement made before a Customs officer and NOT compelled, but before an Indian or Foreign Police officer or officer under NDPS Act has different and contradictory implication qua the accused read with section 108 of Customs Act, section 25 of Evidence Act, section 161 of Cr. PC (now section 180 of Bhartiya Nagarik Suraksha Sanhita (BNSS)) and section 67 of NDPS Act. Though, it is settled that the Bhartiya Sakshya Adhiniyam 2023 (BSA), earlier Indian Evidence Act 1872 (in short EA) is not applicable, strictly, under the Customs Act, 1962 (in short CA), the latter being special enactment and self-sufficient code.

 

  1. However, the Revenue officer, including a Customs, (also then Central Excise and service tax) and GST officer has multiple and sometimes contradictory shades qua section 25 of the Indian Evidence Act (corresponding to Section 23 of BSA). It is settled that he is not a police officer, in the light of section 25 of the Evidence Act, hence a confessional statement made before him under Customs Act is a piece of evidence. Though the admissibility, sufficiency, credibility and weightage of such statement is a different subject altogether. And, much depend upon it being voluntary in nature.

 

  1. Another aspect to this settled proposition is whether the customs officer, Central Excise officer, DRI etc. is NOT the police officer under NDPS Act (Narcotics Drugs & Psychotropic Substances Act), which requires a critical understanding, as explained and observed by the Apex Court over the years.

 

What the Plain language says:

  1. Section 25 of Evidence Act (Section 23 of BSA) states,

“25. Confession to police-officer not to be proved. ––No confession made to a police-officer, shall be proved as against a person accused of any offence.”

 

Section 108 of Customs Act, speaks,

“108. Power to summon persons to give evidence and produce documents. (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making under this Act. (2) ….. (3) All persons so summoned shall be bound to attend either in person or by an authorised agent, as such officer may direct; and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements and produce such documents and other things as may be required:

Provided …… (4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code, 1860 (45 of 1860).

 

Section 67 of NDPS Act states,

“67. Power to call for information, etc.—Any officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act,— (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the facts and circumstances of the case.”

Section 161 of the Cr. PC (section 180 of BNSS):

“Examination of witnesses by police. — (1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. (3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records.  Provided that statement made under this sub-section may also be recorded by audio-video electronic means:

Provided further that the statement of a woman ……”

 

JOURNEY SO FAR IS BUMPY:

  1. The journey as to of who would constitute a “police officer” for the purpose of Section 25 of the Evidence Act begins with the judgment of Hon’ble Supreme Court in State of Punjab V. Barkat Ram-1962(3) SCR 338; MANU/SC/21/1961, wherein Raghubar Dayal, J speaking for majority in 2:1, held that a Customs Officer under the Land Customs Act, 1924 is not a “police officer” within the meaning of Section 25 of the Evidence Act.

 

  1. After analysing Land Customs Act 1924, Sea Customs Act 1878 and Police Act, 1861, it was held that, in view of the nature of the duties imposed on the police officers, the nature of the authority conferred and the purpose of the Police Act, that the powers which the police officers enjoy are powers for the effective prevention and detection of crime in order to maintain law and order. The powers of Customs Officers are really not for such purpose. Their powers are for the purpose of checking the smuggling of goods and the due realisation of customs duties and to determine the action to be taken in the interests of the revenues of the country. The Customs Officer, therefore, is not primarily concerned with the detection and punishment of crime committed by a person, but is mainly interested in the detection and prevention of smuggling of goods and safeguarding the recovery of customs duties. (page 343-345 of Barkat Ram)

 

  1. Even before, in Thomas Dana’s case [MANU/SC/0140/1958: (1959) Supp (1) SCR 274, 289], while referring to Sea Customs Act, it was held that powers of search etc., conferred on the Customs officer are, of a limited character and have a limited object of safeguarding the revenues of the State. It is also to be noticed that the Sea Customs Act itself refers to police officer in contradistinction to the Customs Officer (Section 180). It is well-settled that the Customs Officer, when they act under the Sea Customs Act to prevent the smuggling of goods by imposing confiscation and penalties, act judicially: Leo Roy Frey v. Superintendent District Jail, Amritsar [MANU/SC/0111/1957: 1958 SCR 822]; Shewpujanrai Indrasanrai Ltd. v. Collector of Customs [MANU/SC/0056/1958: 1959 SCR 821]. Any enquiry Under Section 171-A is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 Indian Penal Code, in view of its Sub-section (4). Thus, they are not the Police Officers.

 

  1. Subba Rao, J. dissented (minority view in Barkat Ram). He made a neat division of “police officer” into any one of the following categories: (i) a police officer who is a member of the police force constituted under the Police Act; (ii) though not a member of the police force constituted under the Police Act, an officer who by statutory fiction is deemed to be a police officer in charge of a police station under the Code of Criminal Procedure; and (iii) an officer on whom a statute confers powers and imposes duties of a police officer under the Code of Criminal Procedure, without describing him as a police officer or equating him by fiction to such an officer. Then concluded that, given the functional test and the object of Section 25, a customs officer would be a “police officer” properly so called.

 

 

  1. Came 1963, in Raja Ram Jaiswal V. state of Bihar-MANU/SC/65/1963; 1964(2) SCR 752, again with a majority of 2:1, Mudholkar, J. speaking for majority held that a confession made to an Excise Inspector under the Bihar and Orissa Excise Act of 1915, would be a confession made to a police officer for the purpose of Section 25 of the Evidence Act. The reasons explained, among other, were that position of an Excise Officer empowered Under Section 77(2) of the Bihar and Orissa Excise Act is not analogous to that of a Customs Officer for two reasons. One is that the Excise Officer, does not exercise any judicial powers just as the Customs Officer does under the Sea Customs Act, 1878. Secondly, the Customs Officer is not deemed to be an officer in charge of a police station and therefore can exercise no powers under the Code of Criminal Procedure and certainly not those of an officer in charge of a police station. No doubt, he too has the power to make a search, to seize articles suspected to have been smuggled and arrest persons suspected of having committed an offence under the Sea Customs Act. But the Excise Officer does under the Bihar and Orissa Excise Act of 1915.

 

  1. The Constitution Bench of the Apex Court in Badku Joti Savant v. State of Mysore-MANU/SC/0276/1966: (1966) 3 SCR 698 considered the provisions under Central Excise and Salt Act, 1944 i.e. Section 19 & 21, which laid down the procedure of arrest, and the main purpose of the Act i.e. to levy and collect excise duties, said that, the Central Excise Officer is not deemed to be an officer in charge of a police station, hence not a police officer as referred to, in section 25 of Evidence Act, read with section 161, 162, 173(2), 190 of Code of Criminal Procedure.

 

  1. Another Constitution Bench of the Apex Court in Romesh Chandra Mehta v. State of West Bengal-MANU/SC/0282/1968 : (1969) 2 SCR 461, after referring various provisions of the Sea Customs Act, 1878 like power to search any person on reasonable suspicion (Section 169); to screen or X-ray the body of a person for detecting secreted goods (Section 170-A); to arrest a person against whom a reasonable suspicion exists that he has been guilty of an offence under the Act (Section 173); to obtain a search warrant from a Magistrate to search any place within the local limits of the jurisdiction of such Magistrate (Section 172); to collect information by summoning persons to give evidence and produce documents (Section 171-A); and to adjudge confiscation Under Section 182 observed that customs officer could not be said to be a police officer for the purpose of Section 25 of the Evidence Act.

 

  1. Barkat Ram (supra), Raja Ram Jaiswal (supra) and Badku Joti Savant (supra) were all referred to in Romesh Chandra Mehta. The Court then laid down, what according to it was the true test for determining whether an officer of customs is to be deemed to be a police officer, as follows:

“But the test for determining whether an officer of customs is to be deemed 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. It is not claimed that a Customs Officer exercising power to make an enquiry may submit a report Under Section 173 of the Code of Criminal Procedure.” (at page 469)

 

  1. Another Constitution Bench of the Apex Court in Illias v. Collector of Customs, Madras-MANU/SC/0297/1968: (1969) 2 SCR 613; this time under the Customs Act, 1962 held the same proposition that Customs officer is not a “police officer” within the meaning of Section 25 of the Evidence Act.

 

  1. In State of U.P. v. Durga Prasad MANU/SC/0216/1974: (1975) 3 SCC 210, and Balkishan A. Devidayal v. State of Maharashtra MANU/SC/0112/1980: (1980) 4 SCC 600, a Division Bench of Apex Court after referring to Section 8 of the Railways Property (Unlawful Possession) Act, 1966, which is similar to Section 21 of the Central Excise Act, held that member of that Railway Force is not a “police officer” within the meaning of Section 25 of the Evidence Act. The reasoning given, among other, was,

“20. ……… Members of the Force are appointed under the authority of the Railway Protection Force Act, 1957, the prime object of which is the better protection and security of Railway property. Powers conferred on members of the Force are all directed towards achieving that object and are limited by it. It is significant that the Act of 1957, by Section 14, makes a distinction between a member of the Force and a police officer properly so called.” (emphasis supplied)

 

  1. In State of Gujarat v. Anirudhsing and Anr. MANU/SC/0749/1997: (1997) 6 SCC 514, the Apex Court considered as to whether a member of the State Reserve Police Service acting under the Bombay State Reserve Police Force Act, 1951 could be said to be a police officer within the meaning of Section 25 of the Evidence Act, it was held:

“19. It would, thus, be clear that a senior reserve police officer appointed under the SRPF Act, though is a police officer under the Bombay Police Act and an officer-in-charge of a police station, he is in charge only for the purpose of maintaining law and order and tranquillity in the society and the powers of investigation envisaged in Chapter XII of the Code of Criminal Procedure have not been invested with him. As a result, it was held that such officer could not be said to be a “police officer” within the meaning of Section 25 of the Evidence Act. (emphasis supplied)

 

  1. It is well settled that statements recorded Under Section 108 of Customs Act are admissible in evidence as held in K.I. Pavunny v. Assistant Collector (H.Q.) Central Excise Collectorate, Cochin MANU/SC/2070/1997: (1997) 3 SCC 721. In N.J. Sukhawani v. Union of India MANU/SC/0127/1996: AIR 1996 SC 522, it was observed that the statement made Under Section 108 of the Customs Act is a material piece of evidence collected by customs officials. A statement made by the co accused can be used against others.

 

  1. In Tofan Singh Vs. State of Tamil Nadu- MANU/SC/0797/2020; 2020 INSC 620; AIR 2020 SC 5592), Rohinton Fali Nariman, J. speaking for majority of 2:1, observed that,

“The golden thread running through all these decisions – beginning with Barkat Ram (supra), is that where limited powers of investigation are given to officers primarily or predominantly for some purpose other than the prevention and detection of crime, such persons cannot be said to be police officers under Section 25 of the Evidence Act. What must be remembered is the discussion in Barkat Ram (supra) that a “police officer” does not have to be a police officer in the narrow sense of being a person who is a police officer so designated attached to a police station. The broad view has been accepted, and never dissented from, in all the aforesaid judgments, namely, that where a person who is not a police officer properly so-called is invested with all powers of investigation, which culminates in the filing of a police report, such officers can be said to be police officers within the meaning of Section 25 of the Evidence Act, as when they prevent and detect crime, they are in a position to extort confessions, and thus are able to achieve their object through a shortcut method of extracting involuntary confessions.”

 

WHETHER REVENUE OFFICER INCLUDING CUSTOMS EMPOWERED UNDER SECTION 42/53 OF THE NDPS ACT ARE POLICE OFFICERS AND THEREFORE STATEMENTS RECORDED BY SUCH OFFICERS WOULD BE HIT BY SECTION 25 OF THE EVIDENCE ACT:

  1. This question was authoritatively answered by Apex Court in case of Tofan Singh in 2020 (supra). It needs to be informed to the readers that in Noor Aga v. State of Punjab and Anr. MANU/SC/2913/2008: (2008) 16 SCC 417, it was held that the NDPS Act is a complete code by itself and the Customs Officers have been clothed with the powers of police officers under the Act. It does not, therefore, deal only with a matter of imposition of penalty or an order of confiscation of the properties under the Act, but also with the offences having serious consequences.

 

  1. After considering major provisions of the NDPS Act (Sections 28, 29 and 30 i.e. punishments for attempts to commit offences, and for abetment and criminal conspiracy; Sections 35, 54 and 66- presumptions in which the burden of proof is reversed, now being on the Accused; Section 37 makes all offences under the Act cognizable and non-bailable, with stringent conditions for bail; Section 41, 42 – Power of entry, search, seizure and arrest without warrant or authorisation.; Section 50- Conditions under which search of persons shall be conducted; section 52-Disposal of persons arrested and articles seized;  Statement of Objects and Reasons; various International Conventions on Narcotic Drugs and Psychotropic Substances and for matters connected therewith etc., it was held that,

“The NDPS Act is a penal statute. It invades the rights of an Accused to a large extent. It raises a presumption of a culpable mental state. Ordinarily, even an Accused may not be released on bail having regard to Section 37 of the Act. The court has the power to publish names, address and business, etc. of the offenders. Any document produced in evidence becomes admissible. A vast power of calling for information upon the authorities has been conferred by reason of Section 67 of the Act.” (Refer Directorate of Revenue and Anr. v. Mohammed Nisar Holia MANU/SC/8167/2007: (2008) 2 SCC 370.)

 

  1. However, the Apex Court in Raj Kumar Karwal v. Union of India and Ors. MANU/SC/0014/1991: (1990) 2 SCC 409, despite noticing the fact that the NDPS Act prescribes offences which are “very severe” and that Section 25 is a wholesome protection which must be understood in a broad and popular sense, yet it arrives at a conclusion that the designated officer (like Customs, Central Excise etc.) under Section 53 of the NDPS Act cannot be said to be a police officer under Section 25 of the Evidence Act.

 

  1. Noticing various anomalies in Raj Kumar Karwal (supra) and Kanhaiyalal v. Union of India MANU/SC/7047/2008: (2008) 4 SCC 668, and overruling them, Hon’ble the Supreme Court in Tofan Singh (supra) explained that every empowered officer under section 53 of the NDPS Act, whether Revenue officers i.e. Customs, Central Excise, State excise, Revenue Intelligence or any officers, are police officers with respect to proceedings taken under NDPS Act. The relevant paras are reproduced, as

“152. Thus, to arrive at the conclusion that a confessional statement made before an officer designated Under Section 42 or Section 53 can be the basis to convict a person under the NDPS Act, without any non obstante Clause doing away with Section 25 of the Evidence Act, and without any safeguards, would be a direct infringement of the constitutional guarantees contained in Articles 14, 20(3) and 21 of the Constitution of India.

 

            1. We answer the reference by stating:

(i) That the officers who are invested with powers Under Section 53 of the NDPS Act are “police officers” within the meaning of Section 25 of the Evidence Act, as a result of which any confessional statement made to them would be barred under the provisions of Section 25 of the Evidence Act, and cannot be taken into account in order to convict an Accused under the NDPS Act.

 

(ii) That a statement recorded Under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act.” (Emphasis supplied)

 

  1. Of interest to note, even in this case (Tofan Singh (supra)), the minority judgement by Indira Banerjee, J., after analysing NDPS Act, the true meaning and real intention of the legislature and various judgements of the Apex court including very same judgements on which majority relied, came to the conclusion that Central Excise Officers, Customs officers and Railway Protection Force Officers are NOT police officer qua section 25 of the Evidence Act. It reaffirmed the Judgment in Raj Kumar Karwal Kanhaiyalal (supra).

 

WHETHER CONFESSION BEFORE POLICE OFFICER UNDER THE CUSTOMS ACT IS RELIABLE:

  1. An interesting question, though arises as to whether the police officer is NOT a police officer for the purposes of Customs Act. The Central Govt. can entrust the power of Customs Officer on any officer under the Customs Act. (section 6 of Customs Act) We have to really wait to get this answer authoritatively, as so far, no such question has been raised, as per the little understanding of the authors.

 

CONCLUSION:

  1. So, as of now, it can be safely summed up that Revenue officer, including a Customs, (also then Central Excise and service tax), GST officer and Railway Protection Force Officers and similarly situated officers are not police officers qua section 25 of the Evidence Act, under their respective statutes.

 

  1. Such officers were not police officer till 2020 (Tofan Singh). However, 2020 onwards, come Tofan Singh judgement of larger bench, they are police officer, when empowered and act under NDPS Act, qua section 25 of the Evidence Act, and any confession made are not a piece of evidence against the maker.

 

  1. So far, the journey ends here.

 

  1. Tomorrow may be another day……..

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