IN RE: MAYILVAHANAM AND ORS. Vs. STATE

JUDGEMENT

(1.) THE seven petitioners were convicted by the Additional First Class Magistrate of Negapatam under Rule 84(3) read with Rule 121 of the Defence of India Rules punishable under Rule 84(6) of the same rules. On appeal the Sessions Judge of East Tanjore at Negapatam confirmed the conviction but reduced the sentences. The case against the accused was that they transported rice by sea from British India to Ceylon which is prohibited under a notification issued under Rule 84(3) of the Defence of India Rules. The learned Sessions Judge has set out the facts with care in his exhaustive judgment. The conviction depends exclusively upon the statements made by each of the petitioners to the Assistant Inspector of Customs who proved them as P.W. 1. The main contention throughout on behalf of the accused has been that these statements are not admissible in evidence being repugnant to the provisions of Section 25 of the Indian Evidence Act. Under that section, no confession made to a police officer can be proved as against a person accused of any offence. It is the petitioners' contention that since the Assistant Inspector of Customs is invested under the Sea Customs Act with certain powers of search, arrest and seizure he should be deemed to be a police officer for the purpose of Section 25. In support of this proposition he relies on two decisions of the Calcutta and the Bombay High Courts and on a decision of a Bench of this Court in Someshwar H. Shelat In re : AIR1946Mad430 . The Calcutta decision was that of a Full Bench in Ameen Sharif v. Emperor, I.L.R. (1934) Cal. 607 and the Bombay case is Manoo Sheik Ahmed v. Emperor, I.L.R. (1926) Bom. 78. That is also a decision of a Full Bench. Both these cases related to excise officers and it was held therein that an excise officer is a police officer within the meaning of Section 25 of the Indian Evidence Act. In this Court, however, the contrary view has been uniformly taken upon the lar guage employed in the Madras Excise Act as contradistinguished from the language in the Bengal Excise Act and the Bombay Excise Act. The Bengal Excise Act makes the excise officers for the purpose of Section 25, police officers, and it is upon this provision contained in the Bengal Excise Act that the Calcutta Full Bench rested its conclusions. The Bombay Excise Act also is similar to the Bengal Excise Act. In the Madras Excise Act however there are no provisions which confer the same amount of powers on the excise officers in this Presidency as in the Bombay and Calcutta Excise Acts. It is for this reason that this Court has in a number of decisions held the view that upon the construction of the Madras Excise Act excise officers in this Province cannot be deemed to be police officers within the meaning of Section 25 of the Indian Evidence Act. The decisions are Mahalakshmayya v. Emperor, (1932) M.W.N. Cri. 69 and Doraiswami Nadar v. Emperor, (1934) M.W.N. Cri. 67 decided by Sundaram Chetti, J. and Bardswell, J., sitting separately. The last decision was by Horwill, J., in Public Prosecutor v. Marimuthu Goundan, (1938) 1 M.L.T 238 . In that case the learned Judge on a scrutiny of the relevant provisions of the Madras Excise Act observed:

(2.) IT is conceded that if these statements are admissible in evidence the guilt of the petitioners is established beyond question. The conviction of all the petitioners must therefore be confirmed. The only question that remains is one of sentence. It is pointed out that all the petitioners were boatmen in the employ of a person in Ceylon. They have been in remand for thirty -four days and they had obviously been used by others as mere instruments. The sentences of rigorous imprisonment awarded to accused 1, 3, 4 and 6 are reduced to the periods already undergone. The sentences of fine against all of them will stand.