JUDGMENT

R.L. Gulati, J. - The petitioner is a dealer in tobacco which is a commodity liable to Central Excise Duty under the Central Excise and Salt Act, 1944. He keeps a ware-house at Maunath Bhanjan in the district of Azamgarh. In this ware-house he stores tobacco.

2. On December 19, 1964 a party of the officers of the Excise Department, headed by the Deputy Superintendent of the Central Excise, Allahabad, carried out a surprise check of the petitioner's ware-house and found that between December 17 and December 19, 1964, the petitioner had removed from the ware-house 350 bags of biri tobacco without paying excise duty and in the same period had brought into the ware-house, in an unauthorised manner, 171 bags of biri tobacco which were found to be in excess of the stock shown in his books of accounts. The petitioner's statement was recorded at the spot wherein he admitted these irregularities. The excess stock was seized.,Later, on 8th of February, 1965 a notice was issued to the petitioner to show cause as to why excise duty should not be levied upon 350 bags of tobacco which were found short and why the stock found in excess should not be confiscated. The petitioner submitted a written explanation on 13th material on the record demanded from the February, 1965 in which he admitted the shortage to the extent of 179 bags, but denied the excess of 171 bags. The Collector Central Excise after considering the material on the record demanded from the petitioner excise duty of Rs. 40,294.36 on 350 bags of tobacco and ordered the confiscation of 171 bags of tobacco which were found to have been brought into the ware-house in an unauthorised manner. He also imposed a penalty of Rs. 2,000/-. It was further ordered that the confiscated stock of 171 bags be released to the petitioner on payment of a further fine of Rs. 5,000/-. The petitioner appealed to the Central Board of Excise and Customs, New Delhi, but his appeal was dismissed on April 3, 1967. The petitioner then preferred a revision petition to the Union of India which was also rejected on November 30, 1967. The petitioner- has now moved this Court under Article 226 of the Constitution praying for writs of certiorari and mandamus.

3. The principal contention raised before us is that the petitioner's statement recorded on the 19th December, 1964 was a confession which could not be used in evidence against him by reason of the provisions of Section 25 of the Indian Evidence Act. Mr. H. N. Seth, learned counsel for the opposite party, in reply has made the following submissions :

(a) That an excise officer is not a police officer within the meaning of Section 25 of the Indian Evidence Act.

(b) That the provisions of the Indian Evidence Act would not apply to the instant case as the proceedings before the Collector are not judicial proceedings before a court.

(c) That the petitioner's statement is an admission and not a confession.

(d) That the decision rendered against the petitioner is not based merely on his statement but is supported by other evidence and material on the record.

4. We propose to examine the last contention of Mr. Seth first, because if he is right in that contention then it would not be necessary to go into the remaining contentions.

5. We find that before taking the impugned action against him the petitioner was served with a show cause notice dated 8th February, 1965 by the Collector, Central Excise, Allahabad. This notice sets out in clear terms the charges against him and calls upon the petitioner to render an explanation and to produce such evidence as he may like in support of his defence. The notice further states that the petitioner should indicate in the written explanation whether he would wish to be heard in person.

6. We further find that the petitioner submitted' a written explanation dated February 13, 1965 and was also granted an opportunity of oral hearing. In the written explanation the petitioner admitted the shortage of 179 bags in the followin