ROSE v. FERNANDO

009-NLR-NLR-V-29-ROSE-v.-FERNANDO.pdf


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Present: Fisher C.J. and Schneider and Garvin JJ.
ROSE v. FERNANDO.277—P. C. Panadure, 10,172
Confession—Statement to Excise Inspector—Meaning of Police officer—Evidence Ordinance, s. 25.
A confession made to an Excise Inspector, whp is vested withpowers under sections 32, 34, and 36 of the Excise Ordinance, isadmissible in evidence.
Per Fishes C.J.—Such statements should not be acted uponunless the Court is satisfied that the statements alleged to beconfessions were really and voluntarily made.
C
ASE referred by Garvin J. to a Bench of three Judges on thequestion whether an Excise Inspector is a Police Officer
within the meaning of section 25 of the Evidence Ordinance, No. 14of 1895.
Croos Da Brera (with N. E.. Weerasuriya and Basnayake), foraccused, appellant.—The conviction in this case is mainly basedupon a confession made to an Excise Inspector by an accused whowas charged with having had in his possession a quantity offermented toddy in excess of the prescribed quantity. The questionis whether an Excise Inspector can be regarded as a Police Officerfor the purpose of section 25 of the Evidence Ordinance.
In Vidane Arachchi of Kalupe v. Appu Sinno 1 it was held that aconfession made to a Mudaliyar was inadmissible. Prior to theenactment of the Excise Ordinance there was the ArrackOrdinance. And all the duties that are now being performed bythe Excise Officers were then being performed by Police Officersunder the Arrack Ordinance. Section 32 of Ordinance No. 8 of 1912deals with the powers of Excise Officers. With the exception ofthe power of investigation, they have all the powers of the PoliceOfficers. The powers referred to in Chapter XII. of the CriminalProcedure Code are extraordinary ones, and they are not necessaryto constitute a person a Police Officer. In the Indian case ofAhmed v. Emperor 2 it was held that an Abkari Officer, correspondingtq an Excise Officer in Ceylon, is a Police Officer within the meaningof the section of the Indian Evidence Act corresponding tosection 25 of our Evidence Ordinance.
J. E. M. Obeyesekere, C.C., for the Crown, respondent.—Thedecision of the Bombay High Court in the case of Ahmed v. Emperor(supra) does not apply to the present case, for Excise Inspectors are1 22 N. L. R. 412.* (192$) /. L. R. 51 Bom. 78.
1927.
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1687.
Row v.Fernando
not officers who have the powers of investigation under Chapter XII.of the Criminal Procedure Code. Vide Excise Notification No. 1appearing in Government Gazette of December 18, 1912. TheBombay case proceeded almost entirely on this ground. Thoughthe Evidence Ordinance does not contain a definition of the term“ Police Officer/' reference may be made to section 6 of OrdinanceNo. 16 of 1865 and section 8 of the Criminal Procedure Code, bothof which define who a Police Officer is. It is not sought to restrictthe term ” Police Officer,” as uged in section 25 of the EvidenceOrdinance, to members of the regular police force in view of whathas been the practice of our Courts. But this practice, viz., thatof excluding confessions made to Police Headmen and the likeproceeded on the footing that they performed police duties. ExciseInspectors cannot be said to perform police duties in any sense ofthat expression. They are officers invested by statute with certainpowers for the protection of the Excise revenue. In this respectthey correspond to Sanitary Inspectors, Local Board Inspectors,and the like. The decision in 22 N. L. i?. 412 is based upon thefact that a Mudaliyar performs police duties.
Counsel also referred to the following decisions of the Indian Courtsto show the trend of judicial opinion in the matter: Queen t>. Ghose/Queen Empress v. Bhima,2 Alt Foong v. Emperor 2 Pereira v.Emperor*
August I, 1927. Fisher G.J.—
In deciding the question arising on this reference, I should liketo make it clear that we are in no degree expressing any opinionin favour of the value and weight of so-called confessions madeto persons in authority. Such statements should be jealouslyscrutinized, and should not be acted upon unless the Court issatisfied that the statements alleged to be confessions were reallymade and were made ■ voluntarily. Experience shows that suchconfessions frequently appear in otherwise weak cases, and thefact that if a confession can be obtained the necessity for anyfurther trouble of investigation will usually be obviated must notbe lost sight of.
It must be borne in mind that the enactment which section 25 ofthe Evidence Ordinance, 1895, reproduces was passed becauseit had been found that such statements could not be relied on ashaving been made without any pressure, inducement, or undueinfluence being used.
I should also like to emphasize the importance of not acceptingas evidence a mere statement that the accused person “ admittedthe charge.” The axact words of the statement which the witness
1 (1876) I. L. R. 1 Cal. 207.3 (1918) I. L. R. 46 Cal 411.
» (1892) I. L. R. 17 Bom. 486,4 (1926) /. L. R. 28 Bom. 674.
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lias construed as an admission Of guilt should be given in order thatthe Court may be in a position to decide whether the words ugedare really and only, capable of that construction. It is for theCourt to draw the proper deduction or inference from the wordsused, and not for the witness. There is a clear distinction betweenadmissions of a fact and admissions of guilt of an offence, but theformer are often taken or assumed to be the latter.
In this case we are called upon to decide what the Legislaturemeant when by section 25 of the Evidence Ordinance, 1895, itenacted that “ no confession made to a Police Officer shall be provedas against a person accused of any offence. ”-
It is now too late to say that it meant that the statement mustbe one made to a member of the police force as constituted underthe Police Ordinance, 1865. The established practice of theCourts based on the opinion of many learned Judges has been toconstrue the section as applying to statements made to those whoare authorized to exercise powers which constitute them PoliceOfficers in all but in name; such persons for instance, as PoliceHeadmen, who are directly authorized and required to concernthemselves with the same range of crimes as that with which the2»olice force themselves are concerned. That seems to me to do noviolence to the words themselves and to be, as Sir Alexander WoodKenton, Chief Justice (then Kenton J.), said in Nugokoniy v. Pereratxin accordance with both the spirit and the letter of the section.
But the position of an Excise Inspector, with whom we areconcerned in the- present case, is this: That in respect of a verylimited class of offences with which his own department is concerned,lie is given some powers which correspond to a fraction of the7 >owers vested in a Police Officer. To take the view that the exerciseunder statutory authority of any power similar to that vested in aPolice Officer constitutes a person exercising such a power a PoliceOfficer for the purposes of section 25 might lead to strange results.(See, for example, section 85 of the Criminal Procedure Code.)
There may be much to be said for the desirability of includingstatements such as that which forms the subject-matter of thisinquiry within the scope of the section, but I do not think that theLegislature by the words used intended to include statements whichwere made to persons, who, for the purpose of dealing with a specialnud limited class of offences, ai*e vested with the powers referredto in sections 32, 34, and 36 of the Excise Ordinance, No. 8of 1912.
Under these circumstances I am of opinion that the statement inquestion, the evidence as to which has been 'acted upon by theMagistrate as true and reliable, was admissible.
1927.
FisherC. J.
Rose v,Fernando
1 (1908) 7 Tamb, 25.
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1927. Schneider J.—
Rost v.Fernando
The question reserved by my brother Garvin J. for decision bythis Bench of three Judges is simple, but not free from difficulty.It is whether an Inspector appointed under the provisions of theExcise Ordinance, No. 8 of 1912, is a Police Officer within the meaningof section 25 of our Evidence Ordinance, No. 14 of 1895. TheEvidence Ordinance itself has no definition of the /Expression44 Police Officer. ** The Police Ordinance, No. 16 of 1865, defines itas meaning 44 a member of the regular police force/* and including44 all persons enlisted under this Ordinance. ** The 44 regular policeforce *' must be taken as meaning' the force established under theprovisions of the Ordinance. Our Criminal Procedure Code(section 3 (1) as amended by section 2 of the Ordinance No. 6 of1924) defines the expression as meaning a 44 member of an establishedpolice force ** and as including 44 the Inspector-General, the DeputyInspector-General, Superintendents, Inspectors, Sergeants, andConstables of Police. ** It also defines 44 Peace Officer ** as including4 4 Police Officers * * and 41 Headmen appointed by a GovernmentAgent in writing to perform police duties. ” These definitions arein express terms limited to the Ordinances in which they appear.There are three local cases in which the question was consideredwhether certain persons who were not members of the regularpolice force came within the designation of 44 Police Officer ** forthe purpose of section 25 of the Evidence Ordinance.
In Nuyokaniy v. Perera 1 decided in 1908, Wood Benton, J. heldthat a statement amounting to a confession made by an accusedperson to a Mudaliyar who was holding an inquiry on the order ofthe Government Agentupona petition presentedbythe complain-ant against a Police Vidanewas not admissibleinevidence. He
said: 44 It is of great moment that both the spirit and the letter ofthat section (section 25) should be maintained. I think it appliesto Headmen of all grades as well as to 4 Police Officers ’ within thestrict meaning of the term. ’* .1 am inclined to think that he usedthe words 44 Headmenof allgrades ** in answerasit were to an
argument which musthavebeen addressed tohim that Police
Vidanes might, but a Mudaliyar did not, come within the expression44 Police Officer.** I followed this decision, without discussing thequestion, in Vidave Arachchi of Kalupe v. Appu Sinno in 1921, andheld that a confession made to a Mudaliyar who had arrested anaccused person was inadmissible. The decision of these two cases,it will appear, was largely influenced by the definition of 44 PeaceOfficer ** in the Criminal Procedure Code, as including Headmenappointed by the Government Agent in writing to perform policeduties. The Mudaliyar, in certain parts of the Island, is the chiefof such Headmen.
1 {1908) 7 Tamb. 28.* {1921) 22 N. L. R. 412.
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In 1913 the precise question now presented for our decision wasraised in Siva Subramanian v. Kandan,1 and Ennis J. held in a shortjudgment that a confession made to an Excise Inspector wasadmissible in evidence. In the course of bis judgment he said: 44 InIndia a very wide interpretation has been given to the term 4 PoliceOfficer * in the equivalent section of the Indian Evidence Act, butno case has been cited in which it has been held to apply to anExcise Officer making a search, or to a Customs Officer, or otherofficer having similar powers. ** It is not possible to ascertain whatauthorities were cited to him, as the whole of the report consists ofa bare reproduction of the judgment only.
Before us the following decisions of the India High Courts werediscussed and cited as supporting the contention of the one partyor the other to this appeal:—(1) Queen v. H. C, Ghose 2, (2) QueenEmpress v. Bhima,3 (8) Queen Empress y. S. Sheik* (4) Ah Foong v.Emperor,® (5) Pereira v. Emperor* (6) Queen Empress v. Bobu Lai,7(7) N. S. Ahmed and another v. Emperor,8According to these cases the view consistently entertained in,India for over fifty years has been that the expression 44 PoliceOfficer ” in section 25 of the Indian Evidence Act should beconstrued, not 44 in any strict technical sense, but according to itsmore comprehensive and popular meaning or significance. " Thewords 44 popular significance” first occurred in the Queen v. Ghose(supra), which was decided in 1876. In that case the argument wassubmitted that a 44 Deputy Commissioner of Police ” who, in hiscapacity as a Magistrate, had recorded the confession of an accusedperson was not a “ Police Officer ” within the meaning of- section 25,and that the expression should be confined to that class of personswho are called in the Bengal Police Act (Act TV. of 1866) 44 membersof the police force. ” The words 44 popular significance ” were usedin reference to that argument, the Judge saying that a DeputyCommissioner of Police, be he also a Magistrate, is still a PoliceOfficer in the popular significance of that term.
I would refer in particular to two of the above-named cases: —(1) Ah Foong v. Emperor, (2) Ahmed and another v. Emperor.
In the former of these cases, the question was raised whether aconfession made to certain Excise Officers who had seized theaccused persons while transporting opium, contrary to law,was admissible in evidence, inasmuch as the officers 44 althoughnot called Police Officers were in reality Police Officers.” But theargument was dismissed without any other observation than thatin the opinion of the Judge (Sanderson C.J.): 44 It was not possibleto think that the Excise Officers could be said to be Police Officers. ”
1 1 Cr. A.R. 79.8 [1918) I.L. R. 46 Cal. 411.
* [1876) I.h. R. 1 Cal. 207.8 [1926) I.L. R. 28 Bom. 674.
a [1892) 1.L. R. 17 Bom. 485.7 (1884) 1.L. R. 6 All. 509.
4 [1899) /.L. R. 26 Cal 569.8 (1926) I.L. R. 51 Bom. 78.
1927.
Schneider
J.
Rose v.Fernando
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1987.
Schneider
J.
Rose V.Fernando
In the other case—Ahmed and another v. Emperor—all the othercases named above are discussed. It is a case decided by the FullBench of the Bombay High Court. It was held there that “ anAbkari Officer (corresponding to an Excise Officer in Ceylon) who.in the conduct of investigation of an offence punishable under theBombay Abkari Act, exercises the powers conferred by the Codeof Criminal Procedure, 1808, upon an officer in charge of a policestation for the investigation of a cognizable offence is a Police Officerwithin the meaning of section 25 of the Indian Evidence Act. ” Theprincipal judgment was delivered by Sir Amberson Marten C.J. Hedifferentiated the case Ah Foong v. Emperor (supra), and stated thatthe Excise Officers in that case were given only limited powersof arrest and were, therefore, not in the same position as AbkariOfficers under the Bombay Abkari Act upon whom “ the Legislature •had conferred substantially all the powers of a Police Officer, andhave thereby in effect made them Police Officers.
With all respect to the learned Judges who decided the abovecases, I venture to say that while accepting those cases as guides onlyin so far as they* decide that the expression “ Police Officer ” in theEvidence Act should be construed, not in any technical sense,but should be given a more comprehensive significance, I amunable to agree that it should be construed according to its“ popular significance, whatever that may mean-. “ Popularsignificance ” is too vague. Our Evidence Ordinance and ExciseOrdinance were both modelled closely upon the Indian Acts.Accordingly, the decisions of the Indian Courts, although notbinding on us, are of great assistance to us in interpreting theseOrdinances. The case of Ahmed and another v. Emperor (supra)cannot be relied upon as an authority for supporting the propositionthat an Excise Inspector under our Ordinance is a “ Police Officer ”within the meaning of section 25 of our Evidence Ordinance. TheIndian case turns entirely upon the fact that the Excise Officersin that case had the power of investigation under section 41 ofthe Bombay Abkari Act (No. V. of 1878), which correspondsto section 33 of our Ordinance. The Excise Inspectors under ourOrdinance are not given the powers in section 33. They and otherofficers of Excise derive their appointment and powers by virtue ofa notification by the Governor under the provisions of section 7 ofour Ordinance. The only notification in this connection which wasbrought to our notice is Excise Notification No. 1 appearing inthe Government Gazette of December 13, 1912. The only powers■- conferred upon Excise Inspectors by that notification are those insections 32, 34, and 36 of the Ordinance. The powers in thosesections are limited to entering and, inspecting certain places ofmanufacture and bottling of excisable articles, to arrestingoffenders against Excise laws, and to searching places upon suspicion
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that offences are being committed in such places. Our exciseInspectors, therefore, have not the wide police powers possessed bythe Excise Officers in the Indian case.
The Indian case, therefore, does not support the contention thatour Excise Inspectors are Police Officers, nor am I convinced byany arguments addressed to us that they are to be regarded asPolice Officers within the meaning of section 25 of our EvidenceOrdinance. The question whether an Excise Officer clothed withthe powers mentioned in section 33 of the Excise Ordinance comeswithin the expression Police Officer in section 25 of the EvidenceOrdinance does not arise on this appeal, and I express no opinionthereon in holding that an Excise Inspector does not. I so hold onthe ground that the mere possession by a person of only certainlimited powers, such as the right to arrest an offender or search aplace in connection with an offence, is not sufficient to invest himwith the character of a Police Officer any more than those personswho, under the Criminal Procedure Code, the Customs Ordinanceand the Bailway Ordinance, or any other law, are given limitedpowers of arrest or search of person or place for the purposes ofthose enactments. As at present advised I would construe “ PoliceOfficer* * in section 25 of the Evidence Ordinance as meaning anofficer of police as defined by the Police Ordinance, and as includinga Peace Officer within the latter part of the definition of PeaceOfficer in the Criminal Procedure Code. In giving this constructionI am not- unmindful of the fact that the section was intended asa wholesome protection to the accused, and that, as Sir RichardGarth C.J. said in Queen v. Chunder Ghose (supra), its humaneobject is to prevent confessions obtained from accused personsthrough any undue influence being received as evidence againstthem.
Garvin J.—
The purpose of this reference was to obtain an authoritativedecision on the question whether an Excise Officer could be regardedas a Police Officer within the meaning of section 25 of the EvidenceOrdinance, 1895. A confession to an Excise Officer is not anuncommon feature of the records of proceedings taken in prose-cutions under the Excise Ordinance. Whatever may be thoughtof the policy of giving such confessions in evidence, it has become amatter of practical importance to determine whether in law suchconfessions are admissible, or whether they should be excludedunder the provisions of section 25 of the Evidence Act for thereason that Excise Officers are “ Police Officers,’* within themeaning to be assigned to that term, as it is used in that section.
For my own part, I do not think the term “Police Officer” asused in section 25 can be given a more extensive meaning than has
1927.
Schneider
J.
Bose v.Fernando
( 52 )
1927.
Garvin .T.
Rose t.Fernando
already been given to it in th.e judgments of this Court. The term“Police Officer” ordinarily means a member of an established policeforce; as used! in section 25 of the Evidence Act it may legitimatelybe applied to officers of Government who are authorised generallyto act as Police Officers and are charged with the performance of theduties and armed with the powers of a Police Officer—in short, whoare, as my Lord has said in his judgment, Police Officers in every-thing but name.
I desire also to express my entire agreement with the observationsmade by my Lord on confessions and the need for satisfying oneselfas to the. reality of an alleged confession before it is acted upon.