A confession made to an Excise Officer during the investigation of an offence under the Opium Act, 1878, is inadmissible under S. 162 of the Code of Criminal Procedure, 1898.

Judgement

NARASIMHAM, C. J. :- The question referred to the Full Bench by a Division Bench of this Court is:

"Whether a confession made to an Excise Officer exercising the powers of a Police Officer is a confession made to a Police Officer and is not admissible under S. 25 of the Indian Evi. Act."

The referring Bench noticed the conflict of decisions of the various High Courts on this question and thought that it should be definitely settled once for all, so far as this Court and the Courts subordinate to it are concerned. In a Full Bench decision of the Patna High Court reported in Radhakishun Marwari v. Emperor, AIR 1932 Pat 293 (SB) (A) it was held that an Excise Officer exercising powers under the Bihar and Orissa Excise Act read with the Dangerous Drugs Act, was not a Police Officer" and that a confession made to him by an accused person was therefore admissible in evidence not being hit by S. 25 of the Evidence Act.

There was an earlier Full Bench decision of the Bombay High Court, reported in Nanoo Sheikh Ahmed v. Emperor, AIR 1927 Bom 4 (B) to the contrary, but the Patna High Court did not accept the correctness of that Bombay decision. Subsequently, however, a Full Bench of the Calcutta High Court, in Amin Sharif v. Emperor AIR 1934 Cal 580 (C) dissented from the Patna view and preferred to follow the Bombay view and held that an Excise Officer while conducting investigation of an offence against the Excise Act, exercised all the powers under the Cri. P. C. for the purpose of investigating a criminal offence, and should be held to be a Police Officer for the purpose of S. 25 of the Ind. Evi. Act also.

In a recent Division Bench decision of the Madras High Court reported in Public Prosecutor v. Paramsivan AIR 1953 Mad 917 (D) the Calcutta and Bombay views were preferred to the Patna view.

2. The Patna view has prevailed in the States of Bihar and Orissa for nearly twenty-four years, and when its correctness was challenged before a Division Bench of this Court in the case reported in Banchhanidhi Sahu v. The State ILR 1955 Cut 109 (E) that Bench held that there was no special reason for departing from the settled practice and that it was not necessary to refer the question to a larger Bench.

The Division Bench which referred the question to the Full Bench noticed the aforesaid decision of this Court but pointed out that in that decision the amendment made to the Opium Act by Orissa Act II of 1939 was not taken into consideration and that there were sufficient grounds for referring the question to a Full Bench in order to examine the correctness of the Patna view.

3. Before discussing the legal questions I may refer to the facts of the case which are unchallenged. On 15-1953 as Excise Sub-Inspector (P.W. 1) on receipt of previous intimation searched the house of one Paluni Dei in village Gondia, P. S. Gondia in the Sadar Subdivision of Dhenkanal District, and recovered two packets of opium weighing one tola and forty tolas respectively, from a locked up almirah and a trunk. The key of the almirah was produced by Paluni Dei,

Her husband Satyabadi was not in the house then, but the petitioner Jaladhar Sahu, who is her son-in-law, was present in the house during the search. The Excise Sub-Inspector arrested Paluni Dei, and just then petitioner Jaladhar admitted before him that he had brought the two parcels of opium and kept them there. He also gave a statement in writing Ext. 2 to that effect. The Excise Officer sent up for trial both Paluni Dei and the petitioner Jaladhar Sahu for unauthorised possession of opium which was punishable under S. 9(a) of the Opium Act, 1878.

The trying Magistrate convicted both of them and sentenced them to pay fines. On appeal the learned Sessions Judge maintained the conviction but reduced the sentence of fine passed on Paluni Dei. The revision petition before this High Court was filed only by Jaladhar Sahu and it was contended that the entire case against him depended on his confession before the