(Prayer: Petition (disposed of on 28-7-1947) under Ss. 435 and 439 Crl. P.C., 1898 praying the High Court to revise the order of the Stationary Sub-Magistrate of Pulivendla dated 26-5-1947 in C.C. No. 353 of 1947.)

The only question which arises in this revision petition is whether a confessional statement recorded by a Prohibition Sub-Inspector is not admissible in evidence because it is a confession made to a police officer. The decision turns upon whether a Prohibition Sub-Inspector can be deemed to be a police officer within the meaning of S. 25 of the Indian Evidence Act. The Stationary Sub Magistrate, Pulivendla, has held that he is not and therefore the statement of the accused recorded by him is admissib le.

Mr. Jagannadha Das for the petitioner took me through all the relevant provisions of the Madras Prohibition Act. In particular he stressed upon the following provisions. S. 15 declares that all offences under the Act shall be cognizable and the provisions of the Code of Criminal Procedure, 1898, with respect to cognizable offences shall apply to them. S. 38 provides how a person arrested under the provisions of Ss. 28, 29, 32 or 33 has to be dealt with. Sub-S

. (3) of that section says that on the arrested person being brought in custody before a Prohibition or Police officer, such officer shall hold such enquiry as he may think necessary. He relied particularly on these two provisions and G.O. No. 475 Mis. 2056 Revenue dated 21st September 1946 which declared every prohibition station house to be a police station. This G.O. is apparently issued in accordance with the definition in S. 3 Sub-S. (13) which says that police station includes a ny place which the Provincial Government may, by notification, declare to be a police station for the purposes of this Act.

Learned Advocate for the petitioner contended that the term police officer which has not been defined in the Evidence Act should not be understood in a restricted sense to comprise only officers regularly employed in the police department but it should include officers invested with powers to detect offences and to investigate into them. He relied upon the Full Bench decisions in Ameen Sharif v. Emperor (61 Cal. 607 [LQ/CalHC/1934/38] (F.B.), and Nanoo v. Emperor(51 Bom. 78) . He however admitted that the decision in Radhakishun Marwari v. King Empe (12 Pat. 46(F.B.), takes a different view. This decision was itself discussed in the Calcutta Full Bench decision (61 Cal. 607) [LQ/CalHC/1934/38] .

The Madras High Court has, in a series of cases, taken the view that an Excise officer under the Madras Abkari Act is not a police officer within the meaning of S. 25 of the Evidence Act. Sundaram Chetti J. in Mahalakshmayya v. Emperor (1932 M.W.N. Crl. 69), Bardswell J. in Duraisami Nadar v. Emperor (1934 M.W.N. Crl. 67), Horwill J. in Public Prosecutor v. Marimuthu Goundan (1938 (1) M.L.J. 238=47 L.W. 27), and very recently Yahya Ali J. in Myilvahanan, In re (1946 (2) M.L.J. 480=59 L.W. 751), have taken this view in spite of the fact the Excise Officers are invested with several powers similar to and of the nature of police powers. I find it difficult to distinguish these cases from the present case and I find nothing in the Prohibition Act which warrants my so doing.

The Calcutta and the Bombay cases must be read with the respective provisions of the Acts with which they dealt. In Ameen Sharif v. Emperor 1 the relevent provision was S. 74, Sub-S

. (3) of the Bengal Excise Act, which declared the area to which an Excise Officer empowered under S. 73(2) is appointed shall be deemed to be a police station and such officer shall be deemed to be the officer in charge of such station. The Bombay Full Bench decision (51 Bom. 78) must be read along with S. 41 of the Bombay Abkari Act which provides inter alia that every officer in the conduct of investigation of all offences punishable under the Act shall exercise powers conferred by the Code of Criminal Procedure on an officer in charge of the police station for the investigation of a cognizable offence. That an identical conclusion would be reached if there is a similar provision in any other enactment is evident from the decision of a Division Bench of this Court in Someshwar H. Shelat, In re. (1946 (1) M.L.J. 368=59 L.W. 252) It was there pointed out that a special officer of the Commercial Tax Department invested by the Provincial Government with the powers under S. 12(3) of the Hoarding and Profiteering Prevention Ordinance is a police officer within the meaning of S. 162 of the Code of Criminal Procedure and S. 25 of the Indian Evidence Act, because Sub-S

. (3) of S. 12 of that Ordinance enacted that in conducting the investigation the officer shall have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Code of Criminal Procedure, 1898, when investigating a cognizable offence within the limits of his station.

It is true that the G.O. referred to by Mr. Jagannadha Das declares a prohibition station house to be a police station within the meaning of the Prohibition Act, but it does not make the prohibition officer or an officer in charge of a prohibition station a police officer. To my mind a very important fact which must be taken into account in coming to a decision on this question is that throughout the Act in more than one section police officer is mentioned in contradistinction to a prohibition officer. (Vide Ss. 32, 41, 42, 45, 46, 47, 48 and 49).

It is not permissible to decide the question on an anxiety to escape what is pointed out as an anomaly. It is impossible to avoid it and as an instance one can refer to the fact that a confession made before a Village Munsif is admissible in evidence but a confession made before the District Superintendent of Police is not.

I therefore agree with the Magistrate that the statement of the accused made to the Prohibition Sub-Inspector is not inadmissible in evidence under S. 25 of the Indian Evidence Act. The petition is therefore dismissed.