Page 26 - GSTL_13th August 2020_Vol 39_Part 2

J34 GST LAW TIMES [ Vol. 39
Whether Officers under indirect tax statutes are police officers within the meaning
of Section 25 of Indian Evidence Act :
This question is elaborately dealt by the Apex Court in its judgment Bad-
ku Joti Savant v. State of Mysore - 1978 (2) E.L.T. J323 (S.C.). It was argued on be-
half of appellant that a Central Excise Officer under Central Excise Act, 1944 is a
police officer within the meaning of words in Section 25 of Indian Evidence Act.
The appellant relied upon Apex Court judgment in the case of Raja Ram Jaiswal v.
State of Bihar, (1964) 2 S.C.R. 752 wherein it was held that an excise officer under
the Bihar and Orissa Excise Act (No. 2 of 1955) was a police officer within the
meaning of Section 25 of the Evidence Act. While giving finding on this issue the
Apex Court stated that two views namely one broad view and another narrow
view has been taken while construing the meaning of word police officer within
the meaning of Section 25 of the Evidence Act by various High Courts in India.
Broad view is that all officers whether they are police officers properly so-called
or not would be police officers within the meaning of those words if they have all
the powers of a police officer with respect to investigation of the offences with
which they are concerned. This view was supported by judgment in case of Na-
noo Sheikh Ahmed v. Emperor, (1927) I.L.R. 51 Bom 78. The narrow view taken by
some High Courts was that police officer in Section 25 of Evidence Act mean a
police officer properly so called and do not include officers of other Departments
of Government who may be charged with the duty to investigate under special
Acts, the special crimes thereunder like Customs Act and Central Excise Act and
so on. This view was based on support it derived from Radha Kishan Morari v.
King-Emperor, (1933) I.L.R. 12 Patna 44. The Apex Court assumed that the broad
view can be accepted. Thereafter it was argued on behalf of appellant that as per
Section 21(2) of Central Excise Act, 1944 the Central Excise Officer under the Act
has the same powers of as an officer in charge of a police station has when inves-
tigating a cognizable case. However Apex Court even after assuming broader
meaning construed to the word police officer under Section 25 of Evidence Act
held that Central Excise officer or a Customs officer is not a police officer within
meaning of Section 25 of Evidence Act because these officials have no power to
file a charge sheet under Section 173 of the Code of Criminal Procedure. Further
under Section 190(1) of the Code of Criminal Procedure, a Magistrate can take
cognizance of any offence either
(a) upon receiving a complaint of facts which constitute such offence.
(b) upon a report in writing of such facts made by a police officer
(c) upon information received from any person other than a police of-
ficer or upon his own knowledge or suspicion that such offence has
been committed.
After discussing the above said provisions of Section 190(1) of the
Cr.P.C. the Apex Court held that only those officers who can file a report under
Section 190(1)(b) can be a police officer. It further stated that Section 21 of Central
Excise Act, 1944 is different from Section 78(3) of the Bihar and Orissa Excise Act,
1915 which was considered in Raja Ram Jaiswal’s case - [1964] S.C.R. 752 because
in that case for the purpose of Section 156 of the Code of Criminal Procedure,
1898, the area to which an Excise officer empowered under Section 77 sub-section
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