MANGALSINGH BHANSINGH RATHOD v. STATE — 1987 DIGILAW 159 (GUJ)

R. A. MEHTA, J. ( 1 ) THIS is a bail application in respect of an offence under The Narcotic Drugs and Psychotropic Substances Act 1985 985 grams of brown sugar valued at Rs. 59 100 is the subject matter the offence. On 23-9-1957 the Preventive Officer of Central Excise Headquarters Office Ahmedabad bad received an information to the effect that accused No. 1-Bharatji was to deliver brown sugar to accused No. 2-Bansi G. Chauhan at about 1-00 oclock. As a result of this information there were watch search and seizure and it quantity of 985 grams of foreign brown sugar valued at Rs. 59 100 was seized under a panchnama. ( 2 ) THE accused No. 3 the present petitioner was not present and was not shown to be involved in the offence. However it appears from the statements of accused Nos. 1 and 2 that this narcotic drug i. e. brown sugar was supplied by the present petitioner-accused No. 3 about a week before its seizure and was given for disposal and preservation. The statements of the co-accused were recorded by the authorised officer of Excise Department under See. 67 of the Act. Accused No. 2 has stated that this muddamal was supplied by the petitioner about seven days before its seizure and 3 to 4 days thereafter i. e. on 23-9-1987 this petitioner had also asked for money and price of the brown sugar. However the accused No. 2 had expressed his inability to make any payment because the brown sugar was not till then sold and therefore he had stated that either the petitioner might take back the brown sugar or might take money after it is sold. However the petitioner had insisted only on payment. It also appears from the statement of accused No. 2 that even on the date of the seizure of muddamal this petitioner had gone to the house of the accused No. 2 however the petitioner had returned having realized the situation prevailing there as the Officers of Central Excise were present. There is also a statement of the petitioner himself recorded in his language Hindi. Therein he has admitted having bought and supplied the brown sugar. ( 3 ) THE petitioner applied for bail to the learned Chief Metropolitan Magistrate. However he rejected his order dated 5-10-1987. There is also a statement of the petitioner himself recorded in his language Hindi. Therein he has admitted having bought and supplied the brown sugar. ( 3 ) THE petitioner applied for bail to the learned Chief Metropolitan Magistrate. However he rejected his order dated 5-10-1987. The learned Sessions Judge also rejected his bail application by his order dated 16-10-1987. ( 4 ) THE learned Counsel for the petitioner has submitted that there is no material or evidence tn connect the petitioner-accused No. 3 with the offence. He was not found in possession of the brown sugar nor was he present at the time when it was seized and he has submitted that the statements have been falsely recorded and they are inadmissible in evidence and therefor there is no material on the evidence on the basis of which it can be said that there is reason to believe that this petitioner is involved in the serious offence alleged against him. He has submitted that under Sec. 25 of the Evidence Act no confession made to the police officer shall be proved against a person accused of any offence. He has also relied on Sec. 26 of the Evidence Act and submitted that no confession made by any person while he is in the custody of the police officer unless it is made in the presence of Magistrate shall be proved against that person. In the present case the confession and incriminating statements of the accused have been made before the aothorised excise officer and it is the contention of the learned Counsel for the petitioner that these officers are police officers and therefore. these statements are directly hit by Secs. 25 and 26 of the Evidence Act. Sections 25 and 2 (5) read as under:"sec. 25:"no confession made to a Police Officer shall be proved as against a person accused of any offence. See. these statements are directly hit by Secs. 25 and 26 of the Evidence Act. Sections 25 and 2 (5) read as under:"sec. 25:"no confession made to a Police Officer shall be proved as against a person accused of any offence. See. 26: No confession made by any person whilst be is in the custody of a Police Officer unless it be made in the immediate presence of a Magistrate shall be proved as against such person"the learned Counsel for the petitioner for that purpose has also relied on Sec. 53 of the Narcotic Drugs and Psychotropic Substances Act 1985 which reads as under: See 53 (1) :" The Central Government after consultation with the State Government may by notification published in the official Gazette invest any officer of the department of Central Excise Narcotics Customs Revenue Intelligence or Border Security Force or any class of such officers with the powers of an officers charge of a Police Station for the investigation of the offence under this Act. (2) The State Government may by notification published in the official Gazette invest any officer of the department of Drugs Control Revenue or Excise 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. "it is on the basis of the provisions of Sec. 53 read with the notification which confers on the central excise officer powers of an officer-in-charge of a police station that the argument is made that these officers are police officers and therefore the statements made before them by accused or co-accused are inadmissible in evidence ( 5 ) THE learned Counsel for the petitioner has also submitted that the comparison with the corresponding provisions of the Customs Act or the Central Excises and Salt Act and the Railway Property (Unlawful Possession) Act is inappropriate because under these Acts there is no power in the officers under that Act to file a chargesheet Under Sec. 9 of the Central Excises and Salt Act offences under that Act are noncognizable. Under Sec. 37 of the Customs Act no cognizable can be taken except when it is authorised by an officer under that Act and under the Railway Property (Unlawful Possession) Act the powers are of making enquiry and not of investigation. Under Sec. 37 of the Customs Act no cognizable can be taken except when it is authorised by an officer under that Act and under the Railway Property (Unlawful Possession) Act the powers are of making enquiry and not of investigation. The learned Counsel for the petitioner has also submitted that the central excise officer has been invested with the pouters of an officer-in-charge of a police station for investigation of offences under the Act he is virtually and practically a police officer and that he has power to file a chargesheet under Sec. 173 of the Criminal Procedure Code. The petitioner has relied on the decision of the Supreme Court in the case of Balkishan A. Devidayal v. State of Maharashtra AIR 1981 SC 379 . In that case the question was whether an officer of Railway Protection Force making an inquiry in respect of offence under Railway Property (Unlawful Possession) Act 1966 is a police officer or not. Holding that such officer of Railway Protection Force is not a police officer the Supreme Court observed that the primary test for determining whether an officer is a police officer is whether the officer concerned under the Special Act has been invested with all the powers exercisable by an officer-in-charge of a police station under the Criminal Procedure Code qua investigation of offences under that Act including the power to initiate prosecution by submitting a report (chargesheet) under Sec 173 of the Criminal Procedure Code. It was further observed that in order to bring him within the purview of a police officer for the purpose of Sec. 25 of the Evidence Act it is not enough to show that he exercises some or even many of the powers of a police officer conducting an investigation under the Code. It was further observed that from the comparative study of the relevant provisions of the 1966 Act and the Code it is abundantly clear that an officer of the RPF making an inquiry under Sec. 8 (1) of the 1966 Act does not possess several important attributes of an officer-in-charge of a police station conducting an investigation under Chapter XVI of the Code. The character of the `inquiry is different from that of an investigation under the Code The official status and powers of an officer of the Force in the matters of inquiry under the 1966 Act differ in material aspects from these of a police officer conducting an investigation under the Code. Particularly he has no power to initiate prosecution by filing a chargesheet before the Magistrate concerned under Sec. 173 of 117 Code which has been held to be the clinching attribute of an investigating police officer. The Supreme Court therefore held that any confessional or incriminating statement recorded by him in the course of an inquiry under Sec. 8 (1) of the 1966 Act cannot be excluded from evidence under the said Section. ( 6 ) THE learned Counsel appearing for the respondents has submitted that an authorised officer of the Central Excise Department has been authorised under Sec. 67 to examine any person and the statements recorded by such an officer are not hit by either Sec. 25 or 26 of the Evidence Act It is also submitted that these officers even though they are officers under See. 53 invested with the power of investigation of offence cannot file a chargesheet which is a power invested only in a police officer and these officers are not governed by all the provisions of Chapter XII of the Criminal Procedure Code. These officers are not required to follow the procedure of Sec. 154 of recording the FIR and any information relating to the commission of a cognizable offence under the Narcotic Drugs and Psychotropic Substances Act if given to an officer under the Excise Act (even though empowered with the powers of a police station officer) is not required to be reduced to writing or to be read over to the informant nor it is required to be signed by the person nor it is required to be entered in a book prescribed under Sec. 154 nor it is required to be given to the informant. In this connection a reference is made to Sec. 68 of the Act showing that no officer acting in exercise of powers vested in him under any provisions of the Act or any Rule or order made thereunder shall be compelled to say when he got any information as to the commission of any offence: It is also submitted that such information is not required to be reported to the Magistrate under Sec. 157 or 158 of the Criminal Procedure Code. Section 51 of the Act was also pointed out which reads of under:" The provisions of the Code of Criminal Procedure 1973 shall apply in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests searches and seizures made under this Act. " ( 7 ) IT is submitted that in this view of the matter if Chapter XII was applicable by virtue of Sec. 53 this provision was absolutely unnecessary because Sec. 165 of the Code is already there in the Chapter regarding such acts. Similarly Sec. 52 of the Act provides for arrest of a person and production before the Magistrate showing that all the provisions of Chapter XII are not attracted. It is also submitted that the provisions of Sec. 167 regarding orders custody and detention of the accused and release after 90 days or 60 days where investigation is not over are not applicable in the present case for offences under the Narcotics Drugs and Psychotropic Substances Act and it is therefore submitted that Sec. 173 for filing chargesheet is also nor applicable to the excise officer authorised under Sec. 53 of the Act. The authorised excise officer is not required to file any chargesheet on completion of the investigation and that duty is cast only on the police officer and not an authorised officer who is deemed to be in-charge of police station. ( 8 ) IN my view there is considerable force in the contention of the respondents and the arguments of the petitioner must fail. The reasons follows. ( 9 ) THE Central Excises and Salt Act Sec. 9 shows that offences under that Act are non-cognizable and therefore there is no question of a police officer or central excise officer filing a chargesheet under Sec. 173 of the Code of Criminal Procedure. The reasons follows. ( 9 ) THE Central Excises and Salt Act Sec. 9 shows that offences under that Act are non-cognizable and therefore there is no question of a police officer or central excise officer filing a chargesheet under Sec. 173 of the Code of Criminal Procedure. However Sec. 21 of that Act requires to be seen which reads as under: 21 (1)" When any person is forwarded under Sec. 19 to a Central Excise Officer empowered to send persons so arrested to a Magistrate the Central Excise Officer shall proceed to inquiry into the charge against him. 2. For this purpose the Central Excise Officer may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a Police Station may exercise and is subject to under the Code of Criminals procedure 1898 (5 of 1595) when investigating a cognizable case: Provided that: (A) if the Central Excise Officer is of opinion that there is sufficient evidence or reasonable ground of suspicion against the accused person he shall either admit him to bail to appear before a Magistrate having jurisdiction in the case or forward him in custody to such Magistrate; (B) if it appears to the Central Excise Officer that there is not sufficient evidence or reasonable ground of suspicion against the accused person he shall release the accused person on his executing a bond with or without sureties as the Central Excise Officer may direct to appear if and when so required before the Magistrate having jurisdiction and shall make a full report of all the particulars of the case to his official superior. " ( 10 ) FROM reading sub-sec. (2) of Sec. 21 it is clear that the central excise officer has also been vested with the same powers as the officer-in-charge of a police station as under Sec 53 of the present Act. However the phraseology mentioned therein is materially significant and deliberately different. The Legislature has made a significant departure. Under Sec. 21 (2) of the Central Excise Act such central excise officer is Dot only invested with the powers of an officer-in-charge of a police station but is also subject to the same provisions as the officer-in-charge of a police station and is also subject to all other provisions under the Code of Criminal Procedure. Under Sec. 21 (2) of the Central Excise Act such central excise officer is Dot only invested with the powers of an officer-in-charge of a police station but is also subject to the same provisions as the officer-in-charge of a police station and is also subject to all other provisions under the Code of Criminal Procedure. While enacting the present Sec. 53 the Legislature has made a deliberate departure and not used the words that such officer shall be subject to the solve provisions and subject to the Code of Criminal procedure. This departure has to be given a meaning and purpose and the purpose is that even though the central excise officer is invested with powers of police station officer for the investigation of offences he is not subject to all the provisions of Chapter XII of the Code of Criminal Procedure. If Chapter XII of the Code was applicable in respect of all matters there was nothing preventing the Legislature to say so. Instead of that the Legislature has provided for examination of persons and recording of statements under Sec. 67; for seizure and arrest under Secs. 51 and 52 of the Act. From reading several provisions of Chapter XII of the Code it clearly appears that the officer of Central Excise or Customs who is empowered under Sec. 53 to be a police station officer is not a police officer and he is not under any obligation and he is not subject to the provisions of Secs 154 157 158 167 and 173 of the Code of Criminal Procedure. He has only the powers of investigation and he has no power to record FIR or to file a chargesheet. The very fact that he is not constituted a police officer but only invested with investigative power of a police officer indicates the legislative intention Several powers of police station officer are expressly conferred. That was not necessary if Chapter XII was applicable to the authorised excise officer. ( 11 ) IN the case of Jagatsinh S. Sodha v. Collector of Customs and Anr. Misc. That was not necessary if Chapter XII was applicable to the authorised excise officer. ( 11 ) IN the case of Jagatsinh S. Sodha v. Collector of Customs and Anr. Misc. Criminal Application No. 787 of 1987 decided by J. P. Desai J. on 1-5-1987 an analogous question was raised whether Sec. 167 of Chapter XII of the Code would apply to the investigation made by an authorised customs or excise officer in offences under the Narcotics Act and it was held that the provisions of Sec. 167 of the Code do not apply to the offences under the Narcotics Act investigated by authorised officers of Customs or Excise department It was held as under:"section 51 of the said Act of course says that the provisions of the Code of Criminal Procedure 1973 shall apply but it specifically states that they shall apply in so far as they are not inconsistent with the provisions of the Act to all warrants issued and arrests searches and seizures made under the Act Simply because the offences under the Act are made cognizable it does not mean that all the provisions of the Code apply. The Legislature has made a specific provision when it intended to say that certain provisions of the Act will apply to such offences The arrest has not been made by an officer in-charge of the Police Station and therefore Sec 57 of the Code of Criminal Procedure cannot apply and therefore Sec 6 of the Cede cannot any Sec 1 only says that the provisions of the Code will apply to the warrants which as to be issued to the arrests searches and seizures made under the Act the do rot certain to the investigation When a warrant is issued it has to be executed In absence of any provision in the ACt the warrant has to be enacted in the manner provided by the Code. Similarly so far as arrest is concerned no provision is made ill the Act as to how arrest is to be elected. In that case the procedure laid down in the Code has to be supplied while arising the accused. Similarly for searches and seizures also the provisions of the Code will apply because there is no provision made in the Act. Looking the whole scheme of the Act. In that case the procedure laid down in the Code has to be supplied while arising the accused. Similarly for searches and seizures also the provisions of the Code will apply because there is no provision made in the Act. Looking the whole scheme of the Act. it is difficult to accept the contention raised by the petitioner that the provisions of See. 167 of the Code will apply to such offences and therefore the contention deserves to be rejected. " ( 12 ) I am in respectful agreement with the above view. The learned single Judge has also relied upon the Division Bench judgment of Allahabad High Court in the case of Mahesh v. Union of India and Ors. in a Habeas Corpus Writ Petition decided on 6/05/1986 In that case the accused had not release on the sole ground that the chargesheet was not filed against him within a period of 90 days Section 4 (2) of Criminal Procedure Code was referred providing that all the offences under any other law (other than I P. C.) shall be investigated enquired into tried and otherwise dealt with according to the provisions of the Code. hut subject to any enactment for the time being in force regulating the manner or place of investigating. inquiring into trying or otherwise dealing with such offences Thus if the special enactment indicated a different procedure of investigation and initiation of prosecution the said procedure has to be followed and not the procedure prescribed by the Court The Division Bench of Allahabad High Court after referring to various provisions of Chapter XII came to the conclusion that entire Chapter XII deals with the investigation by police and it nowhere refers to any other investigation. After referring to the various provisions of the Narcotics Act and the narcotic offence being cognizable offence it came to the conclusion that the Act is a complete Code relating to offences under the Act and therefore Chapter XII of the Code would not be applicable to investigation of narcotic offence by the authorised excise officers in view of Sec. 4 (2) of the Code. In coming to this conclusion the Division Bench of Allahabad High Court referred to and considered the provisions of Sec. 41 (2) 42 52 and 53 of the Act and observed that these authorised officers are competent to exercise the powers exercisable by an officer-in-charge of a police station. But there by they will not become police officers by themselves and that the authorised officers were not police officers inspite of the provisions of Sec. 53 and the Chapter XII would not be attached to their investigation and therefore the Division Bench ultimately came to the conclusion that the chargesheet could not be filed by the authorised excise officer investigating narcotic offences and they could only file a complaint under Sec. 190 (1) (a) of the Code and they cannot file a chargesheet under Sec. 173 of the Code. This judgment is a clear answer to the argument of the present petitioner that the excise officer has the power to file a chargesheet and that he is a police officer. Both these contentions stand negatived. ( 13 ) THIS judgment of Allahabad High Court was followed by the learned single Judge of that High Court in the case of Ranjitsingh v. State in Misc. Criminal Case No. 2663 (B) of 1986 and other connected cases decided on 4-2-1987. Those cases also of bail applications in narcotic offence and the question was about admissibility in evidence of the statements made before authorised excise officer There also the learned Judge came to the conclusion that such excise officers were not police offices and the statements made be ore them were not admissible in evidence. ( 14 ) A similar view has also been taken by another learned Judge of this Court (Coram: A. S. Qureshi J.) in Misc. Criminal Application No. 2082 of 1986 decided on 10-10-1986 (Assistant Collector of Customs Ahmedabad v. State of Gujarat ). In that case earlier a statement was made by the learned Counsel for the Customs Department that the customs officer would file a chargesheet within three weeks. However later it was realized that the customs officer had no power to file such chargesheet in respect of investigation under Narcotic Drugs and Psychotropic Substances Act and hence an application was made to modify the same so that the customs officer may file a complaint within three weeks instead of a chargesheet. However later it was realized that the customs officer had no power to file such chargesheet in respect of investigation under Narcotic Drugs and Psychotropic Substances Act and hence an application was made to modify the same so that the customs officer may file a complaint within three weeks instead of a chargesheet. After hearing both the sides and referring to the Supreme Court judgment including Balkishan cases (supra) the Court came to the conclusion that no chargesheet could be filed by the customs officer and only a complaint could be filed and therefore the direction was modified accordingly ( 15 ) IN view of the aforesaid discussion it clear that all the provisions of Chapter XII of the Code cannot be attracted in respect of narcotics offences investigated by authorised officers of customs excise and other department and such authorised officers are not police officers and statements made before them are not inadmissible in evidence and they have no power to file a chargesheet under Sec. 173 of the Code. In that view of the matter it cannot be said that there is no material about the involvement of the petitioner in narcotics offences. Hence. this is not a fit case where the petitioner can be granted bail. Hence the application for bail is dismissed. Application dismissed. .