IMPORTANT POINT
Confessional statement made by accused to Superintendent of Excise under Bihar and Orissa Excise Act would be inadmissible in evidence by virtue of Section 25 of Evidence Act.

ORDER

This appeal is directed against the conviction and sentence recorded by the learned Single Judge of the Patna High Court arising out of a case under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act ). The appellant, Abdul Rashid was found to be in company with the co-accused, Mohd. Islam from whose possession the offending article was recovered but the conviction of the appellant is based upon the alleged confessional statement made by him to the Superintendent of Excise under the provisions of Bihar and Orissa Excise Act as well as the statement of the co-accused stating therein that he was merely a carrier and the offending article belonged to the present appellant. Before the High Court, the learned Public Prosecutor fairly stated that the statement of the appellant made to the Superintendent of Excise would not be admissible in view of the majority judgment of this Court in Raja Ram Jaiswal v. State of Bihar1. But all the same, the High Court was of the opinion that since the investigating officer had the prior information of the fact that the accused persons are coming with the offending article and since the offending article was recovered from the co-accused and the appellant was found at that point of time, which is further corroborated by the statement of the co-accused, the conviction is well merited. When this case was listed for admission after notice, Mr. B.B. Singh, the learned Counsel appearing for the State of Bihar, raised a contention that the confessional statement of the appellant made to the Superintendent of Excise under the Bihar and Orissa Excise Act, 1915, would be admissible in evidence in view of the judgment of this Court in Pon Adithan v. Dy. Director, Narcotics Control Bureau, Madras2 and it is for this reason we have granted leave to examine this question. Undoubtedly, therefore the two items of evidence which could be utilised against the appellant to bring home the guilt is the so called confessional statement of the appellant to the Superintendent of Excise and the confessional statement of the co-accused. If the former is inadmissible in evidence and as such cannot be taken into consideration, no conviction could be sustained on the statement of the co-accused which cannot form the sole basis of a conviction. This Court in the case of Raja Ram v. State of Bihar (supra) considered the relevant provisions of the Bihar and Orissa Excise Act and the powers conferred upon an Excise Officer under the said Act and ultimately came to the conclusion that the said power is not analogous to that of a Customs Officer under the provisions of the Sea Customs Act. The Court also further came to the conclusion that in view of the positive provisions contained in sub-section (3) of Section 78 and the powers which an Excise Officer exercises under the provisions of Bihar and Orissa Excise Act, the conclusion is irresistible that the said Officer is a Police Officer for the purpose of Section 25 of the Evidence Act and therefore, a confessional statement of an accused made to such Excise Officer would be inadmissible in evidence. This decision was considered in a later decision of this Court in Badaku Joti Svant v. State of Mysore3. In that case, the statement made before a Deputy Superintendent of Customs and Excise under the Central Excise and Salt Act was for consideration and the Court held that the said Deputy Superintendent of Customs and Excise is not a Police Officer within the meaning of Section 25 of the Evidence Act. Wanchoo, Judge as he then was took into consideration the two lines of authorities of different High Courts on the subject and also considered the decision of this Court in Raja Ram and the scheme of the provisions of the Bihar and Orissa Excise Act, 1915. The court then drew up a distinction between a Central Excise Officer exercising power under the provisions of Central Excise and Salt Act and an Excise Officer under th