Ekambaram vs State of Tamil Nadu

Somasundaram, J.—Ekambaram, the Petitioner herein, stands convicted and sentenced to undergo R. I. for one year for an offence u/s 3A of the Railway Property (Unlawful Possession) Act (Act 29 of 1966). On 16th December 1969, P. W. 1, the Sub-Inspector attached to the Railway Protection Force at Arkonam, saw this Petitioner coming from the west towards the east in the Down Main Railway track with another person carrying something on their left shoulders. M.O.1, a railway cast-iron break block with the inscriptions ''IRSBG-900'' on one side and ''BEMCO'' on the other side was seized from him under the cover of the mahazar Ex.P-1 attested by P. W. 2. He could not satisfactorily explain as to how he came by it. Ex. P-2 statement was made by him confessing the crime. The case was then charged. P. Ws. 1 and 2 deposed to the above facts. P.W.3, the Train Examiner attached to the Arkonam Junction, stated that M.O.1 is a property of the Indian Railways, not available in the open market. When questioned, Petitioner denied the possession attributed to him and stated that he was taken from his house and his signature was then taken in Ex. P-2.D. Ws. 1 and 2 were examined by him for substantiating this version Believing the evidence adduced on the side of the prosecution, the learned Magistrate convicted and sentenced the Petitioner as stated above. On appeal, the learned Sessions Judge at Chingleput affirmed both the conviction and sentence. Petitioner contends that he has been wrongly convicted.

Mr. Ahmed Meeran, learned counsel appearing for the Petitioner, contends that P. W. 1 is a police officer, that the statement Ex. P-1 recorded by him from the Petitioner comes within the purview of S. 25 of the Indian Evidence Act, and that the Courts below erred in convicting the Petitioner on the basis of this statement. He relies upon the decision in Raja Ram Jaiswal Vs. State of Bihar, and contends that the words ''police officer" found in S. 25 of the Evidence Act should not be construed in a narrow way, but should be construed in a wide and popular sense. There, in that case the statement was recorded by an Excise Inspector who was empowered by a notification to investigate any offence under the Bihar and Orissa Excise Act. The exercise officers in that case did not exercise judicial powers just as the customs officer does under the Sea Customs Act, 1878. The words ''police officer'' in S. 25 however, should not be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred. The Supreme Court in The State of Punjab Vs. Barkat Ram, held that the customs officer is not a police officer and consequently a confession made to him is not hit by the provisions of S. 25 of the Evidence Act. He acts judicially inasmuch as he is entitled to confiscate the goods and levy penalties on the persons found smuggling. The mere fact that similar powers in regard to the detection of infractions of customs laws have been conferred on officers of the Customs Department, as are conferred on officers of the police is not sufficient for holding them, to be police officers within the meaning of S. 25 of the Evidence Act. Mere conferment of powers of investigation does not make the Deputy Superintendent of Customs and Excise a police officer: Vide Badku Joti Savant Vs. State of Mysore, The Collector of Customs, Madras v. Kotumal Bhirumal Pabiajani and Ors. 1967 M.L.J. Cri. 381 and Illias v. The Collector of Customs, Madras (1970) 1 M.L.J. (S.C.) 133. As pointed out by the Supreme Court in Union Textile Traders Vs. Shri Bhawani Cotton Mills Ltd., the test for determining whether an officer of the customs is deemed to be a police officer is whether he is invested with all the powers of a police officer qua investigation of an offence, including the power to submit a report u/s 173 of the Code of Criminal Procedure. The customs officer exercising power to make an inquiry cannot submit a report u/s 173 of the Code. Therefore, he is not a police officer, with the result, the statement made before him by a person who is arrested is not covered by Section 25 of the Evidence Act.

By the Railway Protection Force Act, 1957, a special force known as the Railway Protection Force was constituted ''for the better protection and security of railway property''. The members of the force are clothed with the power to arrest, without warrant, persons concerned or reasonably suspected to be concerned in offences relating to railway property, punishable with imprisonment for a term exceeding six months, and persons found taking precautions to conceal their presence within the railway limits under such circumstances which afford reason to believe that they are doing so with a view to committing theft of, or damage to, railway property. It is evident from the Act that the members of the Railway Protection Force are not police officers, because they are directed to forward the persons arrested to the nearest police station without unnecessary delay. The Railway Property (Unlawful Possession) Act, 1966, has, however, made certain departures from the Railway Protection Force Act. S. 6 empowers any member of the Force to arrest without a warrant any person who has committed a crime or against whom a reasonable suspicion exists of his having been concerned in an offence punishable under the Act. S. 8 prescribes an inquiry by an officer of the Force into the charge against a person arrested and for that purpose invests the officer with the same powers and subjects him to the same provisions, as the officer in charge of a police station. He should forward him to the Magistrate having jurisdiction. S. 9 of the Act empowers him to summon any person, whose attendance he considers necessary, either to give evidence or to produce a document. Sub-section (4) of this section further declares that the enquiry by the officer of the Force shall be deemed to be a ''judicial proceeding'' within the meaning of Sections 193 and 228 of the Indian Penal Code. These provisions emphasize that officers of the Force can never be considered to be police officers for the purposes of S. 25 of the Evidence Act. An inquiry by this officer is not the same as an investigation by the police under the Criminal Procedure Code. They cannot file a charge-sheet and they have to file only a complaint. The statements and confessions made to these officers during the course of inquiry would thus be admissible against the person: Vide The Public Prosecutor v. Kalagana Kanaka Rao and two others 1969 M.L.J. Cri. 821 and Superintendent and Remembrancer of Legal Affairs, West Bengal on behalf of the State of West Bengal Vs. D. Surya Rao and Another,

Thus, the statement Ex. P. 2 made by the Petitioner to P.W. 1 is not hit by S. 25 of the Evidence Act. Even if Ex. P. 2 is excluded, there is the evidence of the two witnesses, P. Ws. 1 and 2. which establish the case against the Petitioner. The conviction is correct and the same is confirmed. The Petitioner is a first offender. He is aged 23. He shall be released u/s 4(1) of the Probation of Offenders Act on his executing a bond for Rs. 500/- with one surety for a like sum to the satisfaction of the Additional First Class Magistrate, Tiruttani, to be of good behaviour for a period of one year from this date.

With this modification, the revision is dismissed.