An Excise Officer, empowered under S.20-A of the Opium Act, can claim privilege under S.125 of the Evidence Act and refuse to disclose the informant's identity.

1. The question before us is whether an Excise Officer duly empowered under S.20-A of Opium Act, 1878 (as amended by Kerala Act, 16 or 1963) to investigate offences under that Act, and who has investigated such an offence, can be compelled, when giving evidence at the trial, to disclose whence he got the information as to the commission of the offence. In other words, whether he can claim privilege under S.125 of the Evidence Act. pw.1 in this case, an Inspector of Excise, who had investigated an offence under S.9 of the Opium Act (as he was empowered to do under S.20-A) was asked in cross-examination to furnish the name of the person who gave him the information as to the commission of the offence. Objection was taken by the Assistant Public Prosecutor (presumably the witness was unwilling to answer the question) on the score that, under S.125 of the Evidence Act, the witness could not be compelled to answer the question. The learned Magistrate overruled the objection and the State has come up in revision, the Magistrate having very properly adjourned the case to enable it to do so.

2. S.125 of the Evidence Act runs as follows:

"125. No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any Information as to the commission of any offence against the public revenue.

Explanation. "Revenue officer" in this section means any officer employed in or about the business of any branch of the public revenue."

S. 20-A of the Opium Act says:

"20-A. Power to invest Excise or Prohibition Officers with the powers of an officer in charge of a Police station. The State Government may, by notification in the Official Gazette, invest any officer of the Excise or Prohibition Department 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."

And by the notification, SRO. No. 581/63, dated 17th June 1963, under S.20-A of the Opium Act, the State Government has invested all officers of the Excise Department not below the rank of an Excise Inspector with the powers of an officer in charge of a police station for the investigation of offences under the said Act.

3. It is conceded that an offence under the Opium Act, at any rate as that Act is now worked, is not an offence against the public revenue. Therefore, the question whether pw.1 is a Revenue officer within the meaning of S.125 of the Evidence Act does not arise and the only question is whether he is a Police Officer within the meaning of that section.

4. The term, "Police Officer" is not defined. But it is obvious that whether an officer is or is not a Police Officer does not depend on his designation or even on whether he belongs to the department called the Police Department, but depends on his functions and powers. No decision dealing with this question with reference to S.125 of the Evidence Act has been brought to our notice, and we might point out that the reference to Public Prosecutor v. Shaik Dawood AIR. 1957 A. P. 977 in Woodroffe and Ameer Ali's Law of

Evidence (1963 Edn. page 2642) as authority for the proposition that a Prohibition Officer under the Madras Prohibition Act is a Police Officer within the meaning of S.125 of the Evidence Act is misleading since the Madras Prohibition Act itself by S.53-A expressly provides that he shall be deemed to be a Police Officer within the meaning and for the purposes of S.125 of the Evidence Act.

5. The decisions in State of Punjab v. Barkat Ram AIR. 1962 SC. 276, Raja Ram v. State of Bihar AIR. 1964 SC. 828 and Badaku Joti v. State of Mysore AIR. 1966 SC. 1746 have been brought to our notice. They deal with the question whether Customs officers and Excise officers exercising certain police powers are Police Officers within the meaning of S.25 of the Evidence Act. All that can be usefully deduced from these decisions for our