PUBLIC PROSECUTOR Vs. C PARAMASIVAM
HIGH COURT OF MADRAS
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BALAKRISHNA AYYAR, J. -
(1.) ON 1.1.1952 a consignment of illicit opium was despatched by train from New Delhi to Madras and from Madras on to Chidambaram. Acting on some information that he had received, Mr. Khadir Hussain, an Assistant Inspector of Excise who was also a Deputy Prohibition Officer, shadowed the article to Chidambaram. On 5.1.1952 one Paramasivam went to the railway parcel office at Chidambaram, tendered the way bill to the General Parcel Clerk and after signing in the delivery book took delivery of the parcel. At that stage Mr. Khadir Hussain detained him and questioned him. He also seized the parcel which, on examination, was found to contain 33 seers of opium.
(2.) ON these allegations Paramasivam and three others were prosecuted before the Sub -Magistrate, Chidambaram. At the trial Mr. Khadir Hussain gave evidence for the prosecution. When he was in the box the Assistant Public Prosecutor asked him what Paramasivam had told him when questioned by the witness after his arrest. To that question the defence counsel took exception on the ground that Section 162, Criminal Procedure Code prohibited such statements from being given in evidence for the prosecution. The learned Magistrate upheld the objection. On that, the prosecution came upon in revision to this Court. Somasundaram, J., who first heard the matter considered that an authoritative decision was necessary on the point that had been raised and so referred the following question to a Bench :
"The question that is raised in this petition is whether in view of Madras Act 32 of 1951 which was introduced as an amendment to Section 20 of the Opium Act (Central Act 1 of 1878), a confession made to a Prohibition Officer is admissible or not." Before attempting to answer this question it is as well to examine some of the provisions of the Opium Act (Central Act 1 of 1878). Section 4 prohibits the possession, transport, import, export or sale of opium except under certain circumstances referred to in that Act. Section 9 provides penalties for the contravention of Section 4 and some other sections. Section 14, as it stood before it was amended in Madras, conferred on certain categories of officers belonging to the departments of Excise, Police, Customs, Salt, Opium and Revenue, power of entry, search, seizure and arrest when they had reason to believe that opium liable to confiscation under the Act was kept or concealed in any building, vessel or enclosed space. These powers, however, could be exercised only between sunrise and sunset. Section 15 empowers every officer of the departments referred to in Section 14 to seize opium in transit or in any open place. It also confers powers of detention, search and arrest. Section 20 requires that every person arrested and every thing seized under Section 14 or Section 15 shall be forwarded without delay to the officer in charge of the nearest Police Station. Section 21 requires an officer making an arrest or seizure under the Act to send a report of the matter to his immediate official superior within 48 hours thereafter.
(3.) IT will be noticed that under the Act, as it stood before it was amended, though the officers of the Excise, Customs and other departments were given powers to enter, search, seize and arrest, they had no power to investigate. In 1951 the Madras Legislature amended the Central Opium Act in certain respects. Officers of the Prohibition Department were included in the categories of others referred to in Section 14 who could enter, search, seize and arrest on reasonable suspicion of a contravention of the provisions of the Act. A new section, Section 20A was added which runs as follows :
"The State Government may, by notification in the Official Gazette, invest any officer of the Prohibition Department, or every officer belonging to any special class in that department, with the powers of an officer in charge of a police station for the investigation of offences under this Act."
The result of the amendment is to confer on officers of the Prohibition department in relation to offences under the Opium Act, practically all the powers of a Station House Officer. But, at the same time it will be noticed that the Amending Act does not call these officers Police Officers.;
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