Officers of Excise Department invested with powers of Police officers.

Raman Nayar, J.-

The question before us is whether an Excise Officer duly empowered under section 20-A of Opium Act, 1878 (as amended by Kerala Act (XVI of 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 section 125 of the Evidence Act. P.W. 1 in this case, an Inspector of Excise, who had investigated an offence under section 9 of the Opium Act (as he was empowered to do under section 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 section 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. section 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.”

section 20-A of the Opium Act says:

“20-APower to invest Excise or Prohibition Officers with the powers of on 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, S.R.O. No. 581/63, dated 17th June, 1963, under section 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.

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 P.W. 1 is a Revenue officer within the meaning of section 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.

The term, “Police Officer” is not denned. 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 section 125 of the Evidence Act has been brought to our notice, and we might point out that the reference to Public Prosecutor v. Shaik Dawood1 in Woodroffe and Ameer Ali's Law of Evidence (1963 Edition, page 2642) as authority for the proposition that a Prohibition Officer under the Madras Prohibition Act is a Police Officer within the meaning of section 125 of the Evidence Act is misleading since the Madras Prohibition Act itself by section 53-A expressly provides that he shall be deemed to be a Police officer within the meaning and for the purposes of section 125 of the Evidence Act.

The decisions in State of Punjab v. Barkat Ram1, Raja Ram2 and Badaku Joti v. State of Mysore3 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 section 25 of the Evidence Act. All that can be usefully deduced from these decisions for ou