(1.) THE question before us is whether an Excise Officer duly empowered under S. 20-A of Opium Act, 1878 (as amended by Kerala Act, 16 or 1963) to investigate offences under that Act, and who has investigated such an offence, can be compelled, when giving evidence at the trial, to disclose whence he got the information as to the commission of the offence. In other words, whether he can claim privilege under S. 125 of the Evidence Act. pw. 1 in this case, an Inspector of Excise, who had investigated an offence under S. 9 of the Opium Act (as he was empowered to do under S. 20-A) was asked in cross-examination to furnish the name of the person who gave him the information as to the commission of the offence. Objection was taken by the assistant Public Prosecutor (presumably the witness was unwilling to answer the question) on the score that, under S. 125 of the Evidence Act, the witness could not be compelled to answer the question. THE learned Magistrate overruled the objection and the State has come up in revision, the Magistrate having very properly adjourned the case to enable it to do so.
(2.) S. 125 of the Evidence Act runs as follows: "125. No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. Explanation. "revenue officer" in this section means any officer employed in or about the business of any branch of the public revenue. " S. 20-A of the Opium Act says: "20-A. Power to invest Excise or Prohibition officers with the powers of an officer in charge of a Police station. The State government may, by notification in the Official Gazette, invest any officer of the Excise or Prohibition Department or any class of such officers with the powers of an officer in charge of a police-station for the investigation of offences under this Act. " And by the notification, SRO. No. 581/63, dated 17th June 1963, under S. 20-A of the Opium Act, the State Government has invested all officers of the Excise Department not below the rank of an Excise Inspector with the powers of an officer in charge of a police station for the investigation of offences under the said Act.
It is conceded that an offence under the Opium Act, at any rate as that Act is now worked, is not an offence against the public revenue. Therefore, the question whether pw. 1 is a Revenue officer within the meaning of S. 125 of the Evidence Act does not arise and the only question is whether he is a Police Officer within the meaning of that section.
The term, "police Officer" is not defined. But it is obvious that whether an officer is or is not a Police Officer does not depend on his designation or even on whether he belongs to the department called the Police Department, but depends on his functions and powers. No decision dealing with this question with reference to S. 125 of the Evidence Act has been brought to our notice, and we might point out that the reference to public Prosecutor v. Shaik Dawood AIR. 1957 A. P. 977 in Woodroffe and Ameer ali's Law of Evidence (1963 Edn. page 2642) as authority for the proposition that a Prohibition Officer under the Madras Prohibition Act is a police Officer within the meaning of S. 125 of the Evidence Act is misleading since the Madras Prohibition Act itself by S. 53-A expressly provides that he shall be deemed to be a Police Officer within the meaning and for the purposes of S. 125 of the Evidence Act.
(3.) THE decisions in State of Punjab v. Barkat Ram AIR. 1962 sc. 276, Raja Ram v. State of Bihar AIR. 1964 SC. 828 and Badaku Joti v. State of Mysore AIR. 1966 SC. 1746 have been brought to our notice. THEy deal with the question whether Customs officers and Excise officers exercising certain police powers are Police Officers within the meaning of S. 25 of the Evidence act. All that can be usefully deduced from these decisions for our purposes is that the term, "police Officer" is not to be construed in a narrow way but is to be construed in a wide and popular sense as meaning an officer entrusted with powers for the effective prevention and detection of crime in order to maintain law and order. Yet not so widely as to include all persons on whom some police powers are conferred. Whether an officer who, though not belonging to the department known as the Police Department, is duly empowered to perform certain functions and duties of a Police officer, is a police officer within the meaning of a particular statute will depend on the particular mischief that that statute is designed to meet. So far as S. 25 of the Evidence Act is concerned, the mischief lies in the circumstance that a Police officer is a person in authority generally possessed of the resources, and not infrequently of the will, to extort confessions. THE particular mischief which S. 125 of the evidence Act is designed to meet is best stated in the words of Grey C. J. and eyre, L. C J. which are quoted in most commentaries on the Act. This is what grey, C. J. said: "it is the duty of every citizen to communicate to his Government any information which he has of the commission of an offence against the laws. To encourage him in performing this duty without fear of consequences, the law holds such information to be among secrets of State. . . Courts of justice therefore will not compel or allow the discovery of such information, either by the subordinate officer to whom it is given, by the informant himself, or by any other person, without the permission of the government. " And Eyre, LCJ. said: "it is perfectly right that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which that detection is made, should not be unnecessarily disclosed; if it can be made to appear that really and truly it is necessary to the investigation of the truth of the case that the name of the person should be disclosed, I should be very unwilling to stop it, but it does not appear to me that it is within the ordinary course to do it. "
As we have seen, under S. 20-A of the Opium Act, an excise Officer can be invested with the powers of an officer in charge of a police station for the investigation of offences under the Act. P. W. 1 was in fact, so empowered, and he did investigate the offence. Having regard to the scope and intendment of S. 125 of the Evidence Act, we have no doubt that he must be regarded as a Police Officer within the meaning of the Act and that he cannot be compelled to disclose who was his informant.;