( 1 ) * * * *

( 2 ) IN view of the evidence discussed hereinabove apart from other evidence on the record the convictions referred to hereinabove can be sustained. But the prosecution has also relied on the statements of the accused recorded during the inquiry. The accused No. 1 has given the statement at Ex. 36 on 11-9-1978 Ex. 37 on 11-9-1978 Ex. 40 which is a copy of the Ex. 57 given on 11-9-78 Ex. 38 on 12-9-1978 and Ex. 42 on 14-9-1978. Material part of the aforesaid statements have been discussed while considering the arguments advanced on behalf of the accused No. 1 and dealing with the evidence against the accused No. 1.

( 3 ) THE accused No. 2 has also given the statements at Ex. 34 dt. 9-9-1978 Ex. 39 dt. 11-9 -1978 Ex. 63 dt. 12-9-1978 Ex. 94 dt. 25 Ex. 263 dt. 21-9-1978 Ex. 221 dt. 24-11-1978 Ex. 225 dt. 4 Ex. 230 dt. 7-2-1979 and Ex. 231 dt. 8-2-1979.

( 4 ) THE accused No. 3 has also given the statement at Ex. 189 dt. 1-9-1978 Ex. 262 dt. 8-9-1978 Ex. 443 dt. 15-9-1978 and Ex. 195 dt. 26-9-1978.

( 5 ) THE submission of Mr. M. C. Bhatt on behalf of the accused Nos. 2 3 and 4 is that the Excise Officers are Police Officers and therefore the statements recorded by them which are in the nature of confession are inadmissible in evidence.

( 6 ) IT may be stated that this very contention was raised before the learned Special Judge and the learned Special Judge has rightly held that there is hardly any substance in the contention and also he referred to the decision of the Supreme Court in the case of Badaku Joti v. State of Mysore reported in AIR 1966 S. C. page 1746. In the said case the Supreme Court after considering the relevant portion of the Central Excise Act has in terms held that even though the Central Excise Officer may have been making inquiries for purposes of the Act powers which an officer-in-charge of a Police Station has when investigating a cognizable offence he does not thereby become a police officer even if we give the broader meaning to those words in sec. 25 of the Evidence Act and it was held by the Supreme Court in the said case that the statement made by the appellant to the Deputy Superintendent of Customs and Excise would not be hit by sec. 25 of the Evidence Act and would be admissible in evidence unless the appellant can take advantage of sec. 24 of the Evidence Act. In that view of the matter we also do not find any substance in this contention and hence reject the same.

( 7 ) DURING the course of the arguments Mr. M. C. Bhatt the learned Advocate appearing on behalf of the accused Nos. 2 3 and 4 has presented a Misc. Criminal Application No. 1416 of 1985 in the Criminal Appeal No. 249 of 1982 and sought permission to add certain grounds in the appeal. One of the grounds which he wanted to add was that the statements of the accused Nos. 1 2 and 3 alleged to have been recorded by the Excise Officers are not admissible in the trial court against the accused under the provisions of the Indian Penal Code. Secondly that the said statements recorded under the said Act by the Excise Officers cannot be used as evidence against the said persons in the criminal trial who stand charged under the common law and that the relevancy of the said statements is not extended in respect of the statements of the persons who would be ultimately accused in a trial in which the charges are levelled under any other provisions except the said Act namely the Central Excise Act and more particularly in a trial for the charge under the provisions of the Indian Penal Code. On this point Shri Bhatt has relied on the provisions of sec. 9d of the Central Excises and Salt Act 1944 and submitted that as per the said section a statement made and signed by a person before any Central Excise Officer of a gazetted rank during the course of any inquiry or proceeding under this Act shall be relevant for the purpose of proving in any prosecution for an offence under this Act the truth of the facts which it contains