PETITIONER: NARENDER CHADHA & ORS. Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT11/02/1986 BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) REDDY, O. CHINNAPPA (J) CITATION: 1986 AIR 638 1986 SCR (1) 211 1986 SCC (2) 157 1986 SCALE (1)154 CITATOR INFO : D 1987 SC 424 (12,24) R 1987 SC 716 (13) RF 1987 SC1676 (21) D 1989 SC 278 (20) E 1990 SC1256 (26,32) R 1990 SC1607 (13) E&D 1991 SC 284 (1,24,25,30,31) D 1991 SC1818 (6) D 1992 SC1188 (4,5) E 1992 SC1363 (1,4,TO,7,9,TO,13) ACT: Constitution of India, 1950 - Articles 14 and 16. Indian Economic/Indian Statistical <ORG> Rules, 1961. Direct recruits and promotees - Promotees holding posts in Grade IV of <ORG> in deliberate breach of quota rules continuously for 15 to 20 years on temporary/ad hoc basis Fixation of inter se seniority - Whether to be placed lower in seniority list to direct recruits entering service after such promotees - Quota rule - Not maintained - Rules confer relaxation power on <ORG> - Whether relaxation of quota rule to be assumed. HEADNOTE: The Indian Economic <ORG> Rules, 1961 and the Indian Statistical <ORG> Rules, 1961 were notified on November 1, 1961. These <ORG> were constituted with effect from that date by encadering numerous posts carrying economic and statistical functions in various ministries of <ORG>. Both the <ORG> have Grade I, Grade II, Grade III and Grade IV posts and Officers of Grade I to Grade IV are classified as Class-I Officers. The authorised permanent strength of each of the <ORG> is to be fixed by <ORG>, constituted under Rule 6, in accordance with the Rules. Under Rule 7, <ORG> was required to constitute a Selection <ORG> to determine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for each grade for the initial constitution of both the <ORG>. On receipt of the <ORG>' 8 report, the <ORG> was required to forward its recommendations to the <ORG>. The departmental candidates who were not absorbed at the initial constitution of the <ORG> were given the opportunity to apply for future vacancies. Future maintenance of the two <ORG> is governed by Rule 8. 212 After the initial constitution of the two <ORG> was completed it was found that a number of posts carrying economic/statistical functions could not be considered for inclusion in the officers' Grades. Further as the process of formation of the two <ORG> was prolonged for a number of years and the need for appointing more officers in various Departments during that long period also arose gradually, several posts carrying economic/statistical functions were created. Although Rule 8 provided that not less than 75 per cent of the vacancies in Grade IV should be filled up by direct recruitment through an open competitive examination to be held be <ORG> in the manner prescribed in Schedule II to the Rules and lt further provided that not more than 25 per cent posts of the vacancies in that Grade should be filled by selection from among officers serving in the offices under the <ORG> in Economic/ Statistical posts recognized for that purpose by <ORG>, no direct recruitment we resorted to till about the year 1968. In the meanwhile, a large number of persons in the feeder posts were appointed to the posts in Grade IV from time to time from the year 1962 onwards although the orders promoting them stated that they had been promoted only temporarily. Undisputedly, all those promotees have been holding those posts continuously till now without being reverted to the feeder posts from which they had been promoted. Some have been retried from those posts. Thus the prescribed quota of appointment from the two different sources was not maintained right from the commencement of the constitution of the <ORG>. After completion of the initial constitution of the two services under Rule 7, Rule 7A was added and subsequently amended. Rule 7A made special provision regarding certain departmental candidates who were to be absorbed in the two <ORG>. Between the years 1964 to 1984 in all there were 435 vacancies for direct recruitment in the Indian Economic <ORG> out of which only 342 posts were filled up by direct recruitment. Out of 93 remaining unfilled posts most of them were held all along by persons promoted from the feeder posts. In the Indian Statistical <ORG> as against a total of 303 vacancies meant for direct recruits between the years 1964 to 1984 only 275 direct recruits were appointed. The remaining 213 unfilled posts were held by the & departmental candidates. It was alleged that many of the departmental candidates had been allowed to hold posts including Grade IV of the two <ORG> purely on ad hoc and ex gratia basis. Earlier certain persons holding posts in Grade IV of these two services had filed Writ Petition under Article 32 seeking direction/order to <ORG> to confirm and regularise the petitioners in the posts held by them as and from the dates when they had become due for confirmation or regularisation in accordance with the Indian Economic <ORG> Rules 1961 or the Indian Statistical <ORG> Rules 1961 and to consider them for all future promotions when due on the basis of such seniority. This <ORG> on February 1 1984 directed <ORG> to fill up, within four weeks, the vacancies available to the departmental candidates under Rule 8 (1)(a)(ii) with effect from the date from which the petitioners become entitled to be promoted on regular basis, that their seniority will be determined according to Rules and that rotation system will not apply under the existing Rules. On May 1, 1984, after expiry of the extended time, the respondent - Union of India filed two sets of seniority lists in respect of the two services, namely, (i) lists based on the principle of rotation, and (11) lists based on Rule 9C of the Rules. Since the lists were to the disadvantage of the departmental prouotees, the <ORG> while declining to endorse either of the two seniority lists directed the respondent-Union to implement the order dated February l, 1984 on or before 30th November, 1984. In the meanwhile the petitioners filed a petition for initiating contempt proceedings against the respondent-Union of India which was resisted by the respondents Certain direct recruits also intervened and wanted to be heard before disposal of the contempt application. Opportunity was given to all the parties to make their submissions. Disposing of the petition, ^ HELD: 1. Having regard to the facts of the case and the events that have followed the order passed by this <ORG> on February 1, 1984, no action for contempt against the Union <ORG> or any of its officers for not obeying the orders of this <ORG> would be taken. [221 B-C] 214 2. The Union <ORG> is directed to treat all persons who have been promoted to several posts in Grade (n ) in Indian Economic <ORG> and Indian Statistical <ORG> contrary to the Rules till now as having been regularly appointed to those posts in Grade (IV) under Rule 8(1) (a) (ii) and assign them seniority in the cadre with effect from the dates from which they are continuously officiating in those posts. Even those promotees who have been selected in 1970, 1982 and 1984, shall be assigned seniority with effect from the date on which they commenced to officiate continuously in the posts prior to their selection. For purposes of seniority the dates of their selection shall be ignored. The direct recruits shall be given seniority with effect from the date on which their names were recommended by the <ORG> for appointment to such grade or posts as provided in clause (a) of Rule 9-C. A seniority list of all promotees and direct recruits shall be prepared on the above basis treating the promotees as full members of the <ORG> with effect from the dates from which they are continuously officiating in the posts. This direction shall be applicable only to officers who have been promoted till now, which means that rotation system will not be applicable under the Rules, as they exist now. All appointments shall be made hereafter in accordance with the Rules, and the seniority of all the officers to be appointed hereafter shall be governed by Rule 9-C. [237 D-H: 238 A] 3. If as a result of the preparation of the seniority list as aforesaid any officer is likely to be reverted, such officer shall not be reverted. He shall be continued in the higher post which he is now holding by creating a supernumerary post to accommodate him. Further promotion shall be given to him when it becomes due as per the new seniority list to be prepared. There shall be a review of all the promotions made so far from Grade (IV) to higher posts in the light of the new seniority list. [238 <CITATION> .  3 S.C.R. 847 followed. 4. When an officer has worked for a long period for nearly 15 to 20 years in a post and had never been reverted it cannot be held that the officer's continuous officiation 215 was a mere temporary or local or stop gap arrangement even though the order of appointment may state so. In such circumstances the entire period of officiation has to be counted for seniority. Any other view would be arbitrary and violative of Articles 14 and 16(1) because the temporary service in the post in question is not for a short period intended to meet some emergent or unforseen circumstances. [236 C-E] In the circumstances of the instant case, clause (b) of rule 9-C of the Rules which deals with the question of seniority of promotees becomes irrelevant as regards promotees who have been holding the posts from a long time. [236 E] 5. It is permissible for the <ORG> to recruit persons from different sources to constitute a service. It is also open to it to prescribe a quota for each source. Rules of recruitment framed on the above lines are perfectly legitimate and quite consistent with Articles 14 and 16 of the Constitution. When the Rules of recruitment prescribe recruitment from different sources in accordance with the specified quota the <ORG> is bound to appoint persons to the <ORG> concerned in accordance with the Rules. me seniority of persons recruited from different sources will have to be regulated accordingly. [230 C-E] In the instant case, the <ORG> had made violent departure from the Rules of recruitment by deliberately allowing those who were appointed contrary to Rules to hold the posts continuously over a period of long time. [230 E-F] 6. The petitioners were not promoted by following the actual procedure prescribed under rule 8(1)(a)(ii) but the fact remains that they have been working in posts included in Grade IV from the date on which they were appointed to these posts. The appointments are made in the name of the President by the competent authority. They are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they were promoted at any time since the dates of their appointment. me orders of promotion issued in some cases show that they are promoted in the direct line of their promotion. It was expressly admitted that the petitioners have been allowed to hold posts included in Grade IV of the said 216 <ORG>, though on an ad hoc basis. Therefore, it cannot be said that the petitioners are not holding the posts in Grade IV of the two <ORG>. Neither the <ORG> has issued orders of reversion to their former posts nor has anybody so far questioned the right of the petitioners to continue in the posts which they are now holding. It would be unjust to hold at this distance of time that the petitioners are not holding the posts in Grade IV. However, it is not the case that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. [231 B- H; 232 A] In the instant case, where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the <ORG> at all, particularly where the <ORG> is endowed with the power to relax the Rules to avoid unjust results. The <ORG> has also not expressed its unwillingness to continue them in the said posts. The other contesting respondents have also not urged that the petitioners should be sent out of the said posts. There is no impediment even under the Rules to treat the petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in Rule 16. [232 B-E] 7. If there is enormous departure from the Rules of recruitment in making appointments over several years, it should be presumed that the excess appointment by promotion had been made in relaxation of the Rules when power to relax the Rules is available. [233 C-D] A.Janardhana v. Union of India & Ors.  2 S.C.R. 936; <CITATION> .  1 S.C.R. 351; <CITATION> .  3 S.C.R. 431; <CITATION>  2 S.C.R. 323 followed. S.B. Patwardhan & Ors. etc. etc. v. State of Maharastra JUDGMENT:

State of Bihar & Ors. [1980] 3 S.C.R. 450; Baleshwar Das Ors. etc. v. State of U.P. 7 Ors. etc. [1981] 1 S.C.R. 449; <CITATION> .  3 S.C.R. 847; <CITATION> .  Supp. S.C.C. 221; <CITATION> .  Supp. S.C.C. 243 referred to. <ORG> v. <ORG>.  3 S.C.R. 271 distinguished.

8. By sticking to the quota rule as found in rule 8(1)(a), enormous prejudice would be caused to the petitioners and others who are similarly situated, even though their appointments have been made by deliberate deviation from the rules. The just solution to it would be to treat the petitioners as persons duly appointed to the <ORG> with effect from the date on which they were promoted to the Grade IV posts. [235 G-H; 236 B] & ORIGINAL JURISDICTION: Civil Miscellaneous Petition No. 2604 of 1985.

IN Writ Petition No. 1595 of 1979.

(Under Article 32 of the Constitution of India.) Petitioner No. 1 in person.

<NAME>, <NAME> and Miss <NAME> for Petitioner Nos. 2 to 25.

<NAME> and <NAME> for the Intervener. <NAME>, <NAME> and <NAME> for the Respondents.

<NAME>, <NAME>, <NAME> and <NAME> for the Respondents. (Union of India) The Judgment of the <ORG> was delivered by <NAME>, J. The perennial dispute regarding seniority between direct recruits and promotees which exists in Almost all the departments of Government has not spared <ORG> and <ORG> with which we are concerned in this case. This is the second phase of the battle which is being waged in this <ORG>. Earlier certain persons who had been holding posts in Grade IV of these two Services had filed Writ Petition No. 1595 of 1979 under Article 32 of the Constitution of India praying for a writ, direction or order in the nature of mandamus directing <ORG> to confirm or regularise the petitioners in the posts held by them as and from the dates when they became due for confirmation or regularisation in accordance with <ORG> Rules, 1961 or <ORG> Rules, 1961 and to consider them for all future promotions when due on the basis of such seniority. The said petition was filed in a representative capacity with the leave of the <ORG> under Order I Rule 8 C.P.C. A few officers who had been recruited as direct recruits to the posts in Grade IV in the said departments were impleaded as respondents and they were sued in a representative capacity as representing all other direct recruits who were likely to be affected by the decision. After the above case was heard, the <ORG> passed a short order on February 1, 1984 which reads thus :

"We are not able to understand why the vacancies available to the departmental candidates under Rule 8(ii) of the Indian Economic and Indian Statistical Services Rules, 1961, have not been filled up on regular basis. We find that some of the departmental candidates (petitioners) have been holding the promotional posts on ad hoc basis for several years. mere appears to be no justification for keeping them 'ad hoc' so long. We, therefore, issue a Writ of Mandamus directing <ORG> to fill up, within four weeks from today, the vacancies available to the departmental candidates under Rule 8(ii) with effect from the date from which the petitioners became entitled to be promoted on regular basis. Their seniority will be determined according to Rules. We wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now. The writ petition is disposed of in these terms. There will be no order as to costs."

(Rule 8(ii) has to be read as Rule 8(1)(a)(ii)) <ORG>, as can be seen from the order set out above, was directed to comply with the directions contained therein within four weeks from the date of the order. On the expiry of four weeks, stipulated by this <ORG>, <ORG> filed an application for extension of time to comply with the directions contained therein fully. Time was extended by the <ORG> till April 30, 1984. On May 1, 1984 <ORG> filed before the <ORG> two sets of seniority lists in respect of the above two Services namely, lists based on the principle of rotation and lists based on Rule 9-C of the Indian Economic Service/Indian Statistical Service Rules. Since on a perusal of the said lists it was found that the position of some of the departmental promotees who had already put in nearly 15 years of service in Grade IV was worse than V the position in which they were before the writ petition was filed and were facing imminent threat of reversion to the feeder posts from which they had been promoted several years ago, the <ORG> directed the petition to come up for hearing before the <ORG> on its re-opening after summer vacation and directed that status quo should be maintained in the mean- while. Then on July 24, 1984 the <ORG> while declining to endorse either of the two seniority lists directed <ORG> to implement the order dated February 1, 1984 on or before 30th November, 1984. In the meanwhile the petitioners filed Civil Miscellaneous Petition No. 2604 of 1985 complaining that <ORG> had failed to comply with the order made by this <ORG> and that action should be taken for contempt against it. While opposing the application for contempt, on behalf of <ORG> it was stated in the course of the affidavit sworn by <NAME>, Deputy Secretary, <ORG>, New Delhi thus :

"23. In view of the submissions made above this Respondent would urge that the directions of <ORG> dated 1.2.84 in the matter of (i) filling the vacancies under Rule 8(ii) and (ii) to fix the seniority according to Rules without the application of rotation system, have been complied with bona fide and in a good faith. Rule 8(ii) of the IES Rules/ISS Rules provides for the quota for the departmental promotees and also the manner in which the Select List for promotion by a duly constituted <ORG> presides over by a Member of <ORG> has to be drawn. All the vacancies available to the departmental candidates under Rule 8(ii) up to the end of 1983 have already been given to them by issuance of Select Lists drawn from time to time. Action is in process to prepare further Select List in respect of the vacancies available to the officers till the end of the year 1984. As regards seniority, <ORG> had ordered to fix the seniority according to the Rules and without the application of the rotation system. The revised seniority lists prepared by this Respondent and finalised after inviting objections etc. from the concerned officers have been framed according to the Rules i.e. in terms of the provisions of Rule 9-C of the IES Rules/ISS Rules and without application of the rotation system. This Respondent, would, therefore, urge with respect ad all humility that he has complied with the directions of <ORG> bona fide ant in good faith. However, If there 18 any slip on the part of this Respondent in carrying out the directions of <ORG> of if <ORG> considers that the orders should have been executed in any other manner, this Respondent would tender unconditional apology ant will be duty bound to obey ant implement, such orders directions as <ORG> may teem fit or pleaset to issue in the circumstance of the case."

In the meanwhile certain direct recruits also intervened in the course of the said petition ant requested that they should be heart before any order was passed by the <ORG> on the contempt application. While the order passed by the <ORG> on February 1, 1984 did not require any clarification at all, since the parties tried to place different interpretation on <ORG>, prayer was mate by <ORG> as stated above seeking further clarifications in the light of certain recent decisions rendered by this <ORG>, we gave opportunity to all the parties to make their submissions once again. Availing themselves of the opportunity given by the <ORG> learned counsel for the promotees and the direct recruits have virtually reargued the matter. It should be stated here that no specific stand was taken on this occasion by <ORG> except bringing to the notice of the <ORG> the relevant provisions of law. On its behalf it was submitted very fairly by <NAME>, that there was no intention on the part of the <ORG> or any of its officers to flout the order of the <ORG> passed earlier and that if the <ORG> found that there has been any mistake in the preparation of the lists of seniority, those lists would be prepared afresh in the light of any direction that may be given by the <ORG> in the course of these proceedings. Having regard to the facts of the case and the events that have followed the order passed by this <ORG> on February 1, 1984, we do not feel called upon to take any action for contempts against <ORG> or any of its officers for not obeying the orders of this <ORG>. We have, however, found it necessary to consider the matter again in the light of the submissions made by the parties and issue fresh directions in this case. We feel that a detailed order is also called for in the circumstances of the case.

The Indian Economic <ORG> Rules, 1961 and <ORG> Rules, 1961 (hereinafter referred to as 'the Rules') which are more or less identical with regard to the questions involved in this case were notified on November 1, 1961 and these <ORG>s were constituted with effect from that date by encadering numerous posts carrying economic and statistical functions in the various ministries of <ORG>. These <ORG>s were meant to comprise a pool of officers having appropriate qualifications for performing the aforesaid technical functions involved in various posts. me strength of the various grades of <ORG> at the initial constitution of the <ORG>, i.e., on November 1, 1961 was Grade 1 - 15, Grade II - 15, Grade III - 95 and Grade IV - 199 - Total 324 posts. me strength of the various grades of <ORG> at the initial constitution of the <ORG>, i.e., on November 1, 1961 was Grade I - 8, Grade II- 7, Grade III - 54 and Grade IV - 116 Total 185 posts.

The officers of Grade I to Grade IV are classified as Class-I Officers. The authorised permanent strength of each of the Services is to be fixed by <ORG> with the guidance of <ORG> in accordance with the provisions of the Rules. It is required to be based on the following principles:

1) it shall be assumed that 80 per cent of the total number of semi-permanent posts are likely to be continued indefinitely in one form or another, and shall be provided for in the permanent strength; and

2) all the purely temporary posts and 20 per cent of the semi-permanent posts shall be excluded for purposes of determining the permanent strength.

<ORG> (<ORG>) advised by a Board known as <ORG> is designated as <ORG> under rule 6 of the Rules. Initial constitution of both the <ORG>s was required to be done in accordance with rule 7. & der that Rule <ORG> was required to constitute a Selection <ORG> with a Chairman or a Member of the commission as President, not more than two representatives of the partici- pating <ORG> and the Chief Economic Adviser in <ORG> (<ORG>) to deter mine the suitability of departmental candidates for appointment to the different grades and to prepare an order of preference for each grade for the initial constitution of the <ORG>. On receipt of the <ORG>'s report the <ORG> was required to forward its recommendations to the Government and such recommendations might include a recommendation that a person considered suitable for appointment to a grade might, if a sufficient number of vacancies were not available in that grade, be appointed to a lower grade. me departmental d i dates who were not absorbed at the initial constitution of the <ORG> were to continue to work as on the date of the initial constitution and were given the opportunity to apply (and getting selected if they were found suitable) for future vacancies. We are informed that the notifications regarding the initial constitution of these two <ORG>s were issued by the middle of February 1, 1964 with effect from February 15, 1964. Future maintenance of these two <ORG>s is governed by rule 8 of the Rules. Initially rule 8, which is relevant for the purposes of this case read as follows :

"8.(1) Future maintenance of the Service - after the initial constitution of the Service has been completed by appointment of departmental candidates or otherwise, vacancies shall be filled as hereinafter provided.

(a) Grade IV - Assistant Director.

(i) Not less than 75 per cent of the vacancies in this grade shall be filled by direct recruitment through an open competitive examination to be held by the <ORG> in the manner prescribed in Schedule II. Provided that 25 per cent of the said quota for direct recruitment may be set apart for a maximum period of 5 years for absorption of officers considered suitable for appointment at the initial constitution of the Service but who could not be so appointed in the absence of vacancies.

(ii) Not more than 25 per cent of the vacancies in this grade shall be filled by selection from among officers serving in offices under the <ORG> in Economic posts recognised for this purpose by <ORG> who shall prepare a list of such posts in consultation with the commission. <ORG> may, in consultation with the <ORG>, add to or modify the list from time to time. The selection will be made from amongst those who have completed at least 4 years of service in those posts on the basis of merit with due regard to seniority by <ORG> on the advice of the <ORG>.......... "

Rule 8(1)(a) now reads thus :-

"8.(1) Future maintenance of the service; after the initial constitution of the service had been completed by appointment of departmental candidates or otherwise and after promotions in accordance with sub-rule (2A) of Rule 7 have taken place, vacancies shall be filled as hereinafter provided.

(a) Grade IV - Assistant Director.

(i) Not less than 75 per cent of the vacancies in this grade shall be filled by direct recruitment through an open competitive examination to be held by the <ORG> in the manner prescribed in Schedule II. Provided that 25 per cent of the said quota for direct recruitment may be set apart for a maximum period of 5 years for absorption of officers considered suitable for appointment at the initial constitution of the service but who could not be so appointed in the absence of vacancies.

(ii) Not more than 25 per cent of the vacancies in this grade shall be filled by selection from among officers serving in offices under the <ORG> in Economic posts recognised for this purpose by <ORG> who shall prepare a list of such posts in consultation with the <ORG>. <ORG> may, in consultation with the <ORG>, add to or modify the list from time to time. The selection will be made from amongst those who have completed at least 4 years of service on a regular basis in these posts on the basis of merit with due regard to seniority by <ORG> on the advice of the <ORG>.

Provided that if any junior person in an office under the <ORG> is eligible and is considered for selection for appointment against these vacancies, all persons senior to him in that office shall also be so considered notwithstanding that they may not have rendered 4 years of service on a regular basis in their posts."

After the initial constitution or the two Services was completed it was found that a number of posts carrying Economic/Statistical functions could not be considered for inclusion in the officers' Grades due either to misunderstanding or to inadvertence. Further as the process of formation of <ORG> and <ORG> was prolonged for number of years and the need for appointing more officers in the said Departments during that long period also arose gradually several posts carrying economic/statistical functions were created. Although rule 8 provided that not less than 75 per cent of the vacancies in Grade IV should be filled up by direct recruitment through an open competitive examination to be held by <ORG> in the manner prescribed in Schedule II to the Rules and further provided that not more than 25 per cent posts of the vacancies in that grade should be filled by selection from among officers serving in The offices under the <ORG> in Economic/Statistical posts recognised for that purpose by <ORG>, no direct recruitment was resorted to till about the year 1968. In the meanwhile a large number of persons in the feeder posts were appointed to the posts in Grade IV from time to time from the year 1962 onwards although the orders promoting them stated that they had been promoted only temporarily. It is not disputed that all those promotees have been holding those posts continuously till now without being reverted to the feeder posts from which they had been promoted. Some have retired from those posts on attaining the age of superannuation.

We shall reproduce below one of the notifications issued in connection with the promotion to the posts in Grade IV of such officers, some of whom are the petitioners in this petition. It reads thus :

"GOVERNMENT OF INDIA PLANNING COMMISSION Yojana Bhawan, Parliament Street New Delhi-1, the 20th/23rd November '65 NOTIFICATION No.F.8(10)/65-ADM.I: The President is pleased to appoint the following Economic Investigators Grade I, Planning <ORG>, as Research Officers in the <ORG> in a temporary capacity with effect from the 6th November 1965 (forenoon), and until further order :-

Shri K.V. Vishwanathan Shri <NAME> Shri <NAME> <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME> Shri <NAME>

(<NAME>) (Deputy Secretary to <ORG>) ............................................. All these officers excepting Shri <NAME> are either permanent or quasi-permanent in the grade of Economic Investigators. <NAME> is quasi Permanent in the grade of Senior Computor. The promotion of all is in the direct line.

In another order of promotion issued while promoting another officer by name <NAME> on November 21, 1966 it was mentioned that his promotion to the post of Research Officer was in direct line of Economic Investigator Grade I/II. It should be stated here that although rule 8 (1) (a) provided that not less than 75 per cent of the vacancies in Grade IV of the two Services should be filled up by direct recruitment through an open competitive examination to be held by the <ORG> in the manner prescribed in Schedule II to the Rules and that not more than 25 per cent of the vacancies in the Grade could be filled up by a selection from among officers serving in offices under the <ORG> in Economic/Statistical posts recognised for this purpose by <ORG>, the prescribed quota of appointment from the two different sources, referred to above, was not maintained right from the commencement of the Constitution of the Services. me initial constitution of the two Services was completed under rule 7 of the Rules with effect from February 15, 1964 as mentioned earlier.

Thereafter rule 7A was added.

That rule was added by a notification dated December 24, 1966 and it has been amended subsequently by a notification dated February 12, 1972. Rule 7A made special provision regarding certain departmental candidates who were to be absorbed in the two <ORG>. It provided that notwithstanding anything contained in rule 8 of the Rules, <ORG> on the advice of the Board should constitute <ORG> for the purpose of appointing officers who were departmental candidates to the <ORG> in question. A departmental candidate who was not selected for appointment for any grade in the <ORG> could continue to hold the post which he was holding then and might be considered by <ORG> on the advice of the Board for appointment to the service at the subsequent stage or stages in consultation with the <ORG>. It further provided that any departmental candidate, referred to in sub-rule (1) of rule 7A who did not on a selection to any Grade in the Service desire to be absorbed tn the service might continue to hold the post held by him immediately before the selection as if he had not been selected. The validity of rule 7A was questioned by some of the direct recruits, who were appointed in the year 1968 in <ORG> by a Writ Petition. We understand that the said writ petition has been transferred to the file of <ORG> and the said writ petition is still pending. We are not concerned here with the merits of the contentions urged by the contesting parties in those proceedings. We are concerned in this case only with the question of seniority as between direct recruits and promotees.

From the statements annexed to the counter-affidavit filed by <NAME>, Director in <ORG>, it is seen that in <ORG> there were 3 vacancies for direct recruits in the year 1964, 18 in the year 1965, 80 in the year 1966 and 12 in the year 1967. Nobody was recruited directly to those posts during those years. In the year 1968 there were 11 vacancies for direct recruits but 32 were recruited directly during that year. In 1969 there were 6 vacancies for direct recruits and 31 were recruited, in 1970 there were 33 vacancies for direct recruits, in 1971 there were 12 vacancies for direct recruits, in 1973 there were 25 vacancies for direct recruits, 'n 1974 there were 20 vacancies for direct recruits and in 1975 there were 11 vacancies for direct recruits. By the year 1984 in all there were 435 vacancies for direct recruits out of which only 342 posts were filled up by direct recruitment. In all 93 posts intended for direct recruits remained unfilled and most of them were held all along by persons who had been promoted from the feeder posts. The position in <ORG> was more or less the same. As against a total of 303 vacancies meant for direct recruits between the years 1964 and 1984 only 275 direct recruits were appointed. In this department also the posts which remained unfilled had been held by the persons who were departmental candidates. It is alleged in the counter-affidavit filed on behalf of <ORG> of which the deponent is <NAME>, Deputy Secretary in <ORG> that many of the departmental candidates had been allowed to hold posts including in Grade IV of the aforesaid Services purely on ad hoc and ex gratia basis. The relevant part of the counter-affidavit is to be found in paragraphs 21 to 24 thereof. It is unfortunate that even though the promotees have been discharging their duties to the best of their ability and receiving salary and allowances from the Government for the services rendered by them, it is alleged in the course of the said counter- affidavit that what was being paid to them was by way of grace. This statement adds insult to injury. If the Government felt that they were not competent to discharge their duties and they had not been appointed permanently to the posts held by them, it was open to it to revert them to their posts from which they had been promoted leaving it open to them to question the orders of reversion in Court. The Government was in need of their services and the petitioners have been holding these posts for nearly 15 to 20 years. It is not fair to say at this distance of time that the Government was only keeping them in their posts as a matter of grace. Be that as it may, it is seen that <ORG> met only thrice between 1965 and 1584, i.e. 1970, 1972 and 1984 although under te rules and instructions issued by <ORG> on the advice of <ORG>, <ORG> had to meet annually. When <ORG> met in the year 1970, it prepared a select list consisting of 33 names to fill 33 vacancies only in Grade IV from amongst those who had already been promoted to Grade IV temporarily and at that time only officers who had completed four years of regular service in the feeder posts as on December 31, 1966 were considered although <ORG> was meeting in the year 1970. If it had taken into consideration the service put in by the departmental candidates till the date on which it took up their cases for consideration for promotion many others who had been promoted on a temporary basis to Grade IV would have become eligible for consideration. By omitting to take the cases of those persons into consideration on the ground that they had not completed four years of regular service in the feeder posts as on December 31, 1966 <ORG> violated Articles 14 and 16(1) of the Constitution of India. It is further seen that <ORG> made its recommendations on the basis of the records of service and seniority of each of the departmental candidate. It is not known whether any of them were found to be unfit on the basis of their record of service only. It is, however, seen that the select list contained only 33 names because <ORG> felt that they were the only vacancies for which it could make recommendations under rule 8(1)(a)(ii) of the Rules. If it had made recommendations to the Government in respect of all the vacancies which were available then, perhaps, the names of some others who were left out would have been included in the select list. Then after an interval of 12 years <ORG> met in the year 1982. There again the same procedure was followed and the next meeting of <ORG>, as already stated, was in 1984. For no fault of the petitioners and the officers similarly situated their cases for promotion were not considered every year and even those who have been found fit by <ORG> for promotion had to wait for nearly 15 years to get into the 'regular' service through a select list prepared by <ORG>.

In, compliance with our direction the <ORG> has produced before the <ORG> two lists showing the names of officers who were appointed to Grade IV posts of <ORG> either regularly or on ad hoc basis arranged according to the dates from which they have been officiating in these posts continuously.

large number of decisions were cited at the <ORG> by the learned counsel for the parties. Some of them are <ORG>

<ORG> etc. v. State of Maharashtra & Ors. [1977]-3 S.C.R. 775, <CITATION> .  3 S.C.R. 450, <ORG> etc. v. State of U.P. & Ors. etc.  1 S.C.R. 449, <CITATION> .  2 S.C.R. 936, <CITATION> .  3 S.C.R. 847, <CITATION> .  1 S.C.R. 351, <ORG> etc. v. <ORG>.  3 S.C.R. 271, <CITATION> .  3 S.C.R. 431, <CITATION> .  Supp. S.C.C. 221 and <CITATION> .  Supp. S.C.C.

243. We have carefully considered all the decisions cited before us.

It is now well-settled that it is permissible for the <ORG> to recruit persons from different sources to constitute a service. It is also open to it to prescribe a quota for each source. Rules of recruitment framed on the above lines are perfectly legitimate and quite consistent with Articles 14 and 16 of the Constitution. It is also true that when the Rules of recruitment prescribe recruitment from different Services in accordance with the specified quota the <ORG> is bound to appoint persons to the Service concern ed in accordance with the said Rules. The seniority of persons recruited from different sources will have to be regulated accordingly. So far there can be no controversy. But we are faced in this case with the problem of resolving conflicts which have arisen on account of a violent departure made by the <ORG> from the Rules of recruitment by allowing those who were appointed contrary to the Rules to hold the posts continuously over a long period of time. The question is whether after such a long period it is open to the <ORG> to place them in seniority at a place lower than the place held by persons who were directly recruited after they had been promoted, and whether it would not violate Articles 14 and 16 of the Constitution if the <ORG> is allowed to do so. Promotions of officers have been made in this case deliberately and in vacancies which have lasted for a long time. A letter dated August 11, 1978 written by <NAME>, Minister of <ORG> for <ORG>, <ORG> to Shri <NAME>, Member of <ORG> substantiates the conclusion. The relevant part of the letter reads :

"Government resorted to making ad-hoc appointments as it was separately considering proposals to re-

Organise Grade IV of the two Services<ORG> Pending such reorganisation <ORG><ORG> has taken a deliberate decision to restrict direct recruitment for the present<ORG> It is, therefore not correct to say that ad-hoc appointments have been made due to nonavailability of direct recruits<ORG> I may add that but for his deliberate decision, most of the officers holding ad-hoc posts in Grade IV would have continued to stagnate in the lower posts of Investigators<ORG>"

At one stage it was argued before us on behalf of some of the respondents that the petitioners who have not been appointed in accordance with rule 8(1)(a)(ii) could not be treated as members of <ORG> or of <ORG> at all and hence there was no question of determining the question to seniority as between the petitioners and the direct recruits. This argument has got to be rejected. It is true that the petitioners were not promoted ay following the actual procedure prescribed under rule 8(1)(a)(ii) but the fact remains that they have been working in posts included in Grade IV from the date of which they were appointed to these posts. The appointments are made in the name of the President by the competent authority. They have been continuously holding these posts. They are being paid all along the salary and allowances payable to incumbents of such posts. They have not been asked to go back to the posts from which they were promoted at any time since the dates of their appointment. The orders of promotion issued in some cases show that they are promoted in the direct line of their promotion. It is expressly admitted that the petitioners have been allowed to hold posts included in Grade IV of the aforesaid services, though on an ad hoc basis. (See Para 21 of the counter- affidavit filed by <NAME>, Deputy Secretary, <ORG>). It is, therefore, idle to contend that the petitioners are not holding the posts in Grade IV of the two Services in question. It is significant that neither the <ORG> has issued orders of reversion to their former posts nor has anybody so far questioned the right of the petitioners to continue in the posts which they are now holding. It would be unjust to hold at this distance of time that on the facts and in the circumstances of this case the petitioners are not holding the posts in Grade IV. The above contention is therefore without sub stance. But we, however, make it clear that it is not our view that whenever a person is appointed in a post without following the Rules prescribed for appointment to that post, he should be treated as a person regularly appointed to that post. Such a person may be reverted from that post. But in a case of the kind before us where persons have been allowed to function in higher posts for 15 to 20 years with due deliberation it would be certainly unjust to hold that they have no sort of claim to such posts and could be reverted unceremoniously or treated as persons not belonging to the Service at all, particularly where the <ORG> is endowed with the power to relax the Rules to avoid unjust results. In the instant case the <ORG> has also not expressed its unwillingness to continue them in the said posts. m e other contesting respondents have also not urged that the petitioners should be sent out of the said posts. m e only question agitated before us relates to the seniority as between the petitioners and the direct recruits and such a question can arise only where there is no dispute regarding regarding the entry of the officers concerned into the same Grade. In the instant case there is no impediment even under the Rules to treat these petitioners and others who are similarly situated as persons duly appointed to the posts in Grade IV because of the enabling provision contained in the rule 16 thereof. Rule 16 as it stood at the relevant time read as follows :

"16. m e Government may relex the provisions of these rules to such extent as may be necessary to ensure satisfactory working or remove ln-equitable results.

" Now rule 16 reads thus :

"16. Powers to relex: me Government may in consultation with the Commission and for reasons to be recorded in writing relex any of the provisions of these rules with respect to any class or category of persons or posts and no such relaxation shall be given so as to have retrospective effect.

" <NAME> case (supra) may be carefully considered at this stage. In that case this Court was concerned with the Indian Foreign Service which was governed by the Indian Foreign Service, Branch 'B' (Recruitment, Cadres, Seniority and Promotion) Rules, 1964. The said rules provided for recruitment to the said Service from three different Services,

(i) direct recruitment by competitive examination, (ii) substantive appointment of persons included in the select list promoted on the basis of a limited competitive examination and (iii) promotion on the basis of seniority. One of the Rules provided that the recruitment should be made from the above sources on the following basis: (i) 1/6th of the substantive vacancies to be filled in by direct recruitment, (ii) 33, 1/3% of the remaining 5/6 of the vacancies to be filled on the basis of results of limited competitive examinations and (iii) the remaining vacancies to be filled in by promotion on the basis of seniority. The Court found that the direct recruitment had rot been made for years, limited competitive examination had also not been held for years and promotions from the select list had been made in excess of the quota. It found that there was enormous departure from the rules of recruitment in making appointments over several years. The Court was of the view that the situation in this case was similar to the situation in two other earlier cases of this Court in <NAME> case (supra) and <ORG>.. (supra). The Court felt that in the circumstances it should be presumed that the excess appointment by promotion had been made in relaxation of the Rules since there was power to relax the Rules similar to the power under rule 16 in the Rules with which we are concerned here. Justifying the above view the court observed at pages 458-459 thus :

"It was however contended that it is not permissible to infer that promotions in excess of quota were given by relaxing the quota rule because the posts in Integrated Grade II and III were within the purview of <ORG> and the proviso to Rule 29(a) mandates that power to relax is hedged in with a condition that it can be done after consultation with the <ORG>, and there is nothing to show that the <ORG> was ever consulted. Undoubtedly, the proviso to Ru e 29(a) requires that the controlling authority cannot relax any of the provisions of the rules in respect of posts which are within the purview of <ORG> unless after consultation with the <ORG>. It was submitted that nothing is placed on the record by the petitioners to show that power to relax the quota rule was exercised after consultation with <ORG>. Assuming that there was no consultation, would the exercise of power to relax be vitiated and the appointments made in relaxation of the mandatory quota rule would be ab initio invalid. Commencing from the decision of <ORG> in <ORG> v. <NAME> AIR 1917 P.C. 142 it is well-settled that 'when the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work general inconvenience or injustice to persons who have not control over those entrusted with the duty and that at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity o the acts done'. The view was expressed in the context of the failure to revise list of Jurors by the Sheriff according to the revised statues of Quebec and conviction was challenged on the ground of mistrial held by selecting Jurors from unrevised lists. The challenge failed. Coming home in <CITATION> ,  S.C.R. 533 a Constitution Bench of this Court specifically held that where consultation with the Public Service <ORG> is provided as required by Art. 320(3) (c) of the Constitution such provisions is not mandatory and they do not confer any rights on public servants so that the absence of consultation or irregularity In consultation does not afford him a cause of action in a court of law. There are number of subsequent decisions to which our attention was called reiterating the same principle. Therefore assuming there was failure to consult <ORG> before exercising the power to relax the mandatory quota rule and further assuming that the posts in Integrated Grade IT and III were within the purview of <ORG> and accepting for the time being that the <ORG> was not consulted before the power to relax the rule was exercised yet the action taken would not be vitiated nor would it furnish any help to <ORG> which itself cannot take any advantage of its failure to consult the <ORG>. Therefore it can be safely stated that the enormous departure from the quota rule year to year permits an inference that the departure was in exercise of the power of relaxing the quota rule conferred on the controlling authority. Once there is power to relax the mandatory quota rule, the appointments made in excess of the quota from any given source would not be illegal or invalid but would be valid and legal as held by this Court in <CITATION> ,  1 S.C.R. 1037. Therefore the promotion of the promotees was regular and legal both on account of the fact it was made to meet the exigencies of service in relaxation of the mandatory quota rule and to substantive vacancies in service.

The <ORG> ultimately quashed the seniority list and directed the preparation of seniority list on the basis of length of continuous officiation in the cadre. The facts in this case being almost identical there is no reason why the view express in <NAME> case (supra) should not be adopted here also.

The continuance of these petitioners may be justified on the basis of the above quoted rule 16 onthe assumption that the Government had relaxed the Rules and appointed them to the posts in question to meet the administrative requirements.

The enormity of the prejudice that is likely to be caused to the petitioners and others who were similarly situated can be demonstrated by setting out the effect of sticking to the quota rule as found in rule 8(1)(a) even though there has been a deliberate deviation from it. The result of applying the quota rule would be as follows: Petitioner No.1 who was promoted to Grade 17 on November 6, 1965 would be junior to a direct recruit of 1974 batch. Petitioner No.3 who was promoted to Grade IV on March 22, 1966 would become junior to a direct recruit of 1979 batch. Petitioner No.6 who was promoted to Grade IV post in July 1, 1966 would become junior to direct recruits of 1982 batch. Petitioner No. 10 who was promoted to Grade IV on May 18, 1968 would become junior to direct recruits of 1982 batch. Petitioners Nos. 16 to 18 and 21 to 25 would continue to be treated as ad hoc appointees and will be junior to every body appointed till now into the service as they cannot be fitted any whf e even though they have put in 9 to 15 years of service in Grade IV. These startling results ought to shock anybody's conscience. The only just solution to this problem is to treat the petitioners as persons duly appointed to the Service with effect from the day on which they were promoted to the Grade IV posts.

As observed in <CITATION>  2 S.C.R. 325 when an officer has worked for a long period as in this case for nearly fifteen to twenty years in a post and had never been reverted it cannot be held that the officer's continuous officiation was a mere temporary or local or stop gap arrangement even though the order of appointment may state so. In such circumstances the entire period of officiation has to be counted for seniority. Any other view would be arbitrary and violative of Articles 14 and 16(1) of the Constitution because the temporary service in the post in question is not for a short period intended to meet some emergent or unforeseen circumstances. Clause

(b) of rule 9C of the Rules which deals with the question of seniority of promotees becomes irrelevant in the circumstances of this case as regards the promotees who have been holding the posts from a long time as stated above.

The decision in <NAME> case (supra) and the decision in <NAME> case (supra) strongly support the above view. It is necessary to refer to them in great detail since in <NAME> case (supra) the effect of the said decisions is set out very clearly.

The decision in <NAME> case (supra) is not of much assistance to the direct recruits. In that decision there was a specific finding that except for a period o' two years i.e. in 1966 and 1970, direct recruitment had been made in accordance with the Scheme governing recruitment to <ORG> and that there was substantial compliance with the rules of recruitment governing that Service. The Court observed that in the absence of serious failure in implementing the relevant rules there was no ground to interfere with the inter se seniority of the officers in the Grades concerned. Hence that decision is distinguishable on facts from the present case.

We are aware that the view we are taking may upset the inter se seniority between those promotees who were included in the Select List of 1970, 1982 and 1984 and those who were included later on or who have not been included at all till now. The existence of this possibility should not deter us from adopting a uniform rule in the case of all promotees and direct recruits to adjust the equities amongst them as regards their relative seniority in the light of the violent departure made by the <ORG> both as regards direct recruitments and promotions which <ORG> had to make every year under the Rules. The prejudice which the promotees included in the Select Lists might suffer is marginal and has to be ignored.

Having given our anxious consideration to the submissions made on behalf of the parties and the peculiar facts present in this case we feel that the appropriate order that should be passed in this case is to direct <ORG> to treat all persons who are stated to have been promoted in this case to several posts in Grade IV in each of the two <ORG>s contrary to the Rules till now as having been regularly appointed to the said posts in Grade IV under rule 8(1)(a)(ii) and assign them seniority in the cadre with effect from the dates from which they are continuously officiating in the said posts. Even those promotees who have been selected in 1970, 1982 and 1984 shall be assigned seniority with effect from the date on which they commenced to officiate continuously in the posts prior to their selection. For purposes of seniority the dates of their selection shall be ignored. The direct recruits shall be given seniority with effect from the date on which their names were recommended by the <ORG> for appointment to such grade or post as provided in clause (a) of Rule 9-C of the Rules. A seniority list of all the promotees and the direct recruits shall be prepared on the above basis treating the promotees as full members of the <ORG> with effect from the dates from which they are continuously officiating in the posts. This direction shall be applicable only to officers who have been promoted till now. This is the meaning of the direction given by the <ORG> on February 1, 1984 which stated, 'we wish to make it clear that there is no question of any rotation system being applied under the Rules, as they exist now.' All appointments shall be made hereafter in accordance with the Rules and the seniority of all officers to be appointed hereafter shall be governed by rule 9-C of the Rules.

We are informed that some of the promotees and direct recruits who are governed by this decision have been promoted to higher grades. If as a result of the preparation of the seniority list in accordance with the decision and the review of the promotions made to higher grades any of them is likely to be reverted such officer shall not be reverted. He shall be continued in the higher post which he is now holding by creating a supernumerary post, if necessary to accommodate him. His further promotion shall however be given to him when it becomes due as per the new seniority list to be prepared pursuant to this decision. There shall, however, be a review of all promotions made so far from Grade IV to higher posts in the light of the new seniority list. If any officer is found entitled to be so promoted to a higher grade he shall be given such promotion when he would have been promoted in accordance with the new seniority list and he shall be given all consequential financial benefits flowing therefrom. Such review of promotions shall be completed within three months and the consequential financial benefits shall be paid within three months thereafter. In giving these directions we have followed more or less the directions given in <CITATION> . (supra).

We direct that the above directions shall be complied with within the period indicated above.

The petition is accordingly disposed of.

A. P. J.


JUDGMENT <NAME>, J.

1. On 1-1-1952 a consignment of illicit opium was despatched by train from New Delhi to Madras and from Madras on to <NAME>. Acting on some information that he had received, Mr. <NAME>, an Assistant Inspector of Excise who was also a Deputy Prohibition Officer, shadowed the article to <NAME>. On 5-1-1952 one <NAME> went to the railway parcel office at <NAME>, tendered the way bill to the General Parcel Clerk and after signing in the delivery book took delivery of the parcel. At that stage Mr. <NAME> detained him and questioned him. He also seized the parcel which, on examination, was found to contain 33 seers of opium.

2. On these allegations <NAME> and three others were prosecuted before the Sub-Magistrate, <NAME>. At the trial Mr. <NAME> gave evidence for the prosecution. When he was in the box the Assistant Public. Prosecutor asked him what <NAME> had told him when questioned by the witness after his arrest. To that question the defence counsel took exception on the ground that Section 162, Cr. P. C. prohibited such statements from being given in evidence for the prosecution. ' The learned Magistrate upheld the objection. On that, the prosecution came upon in revision to this Court. <NAME> who first heard the matter considered that an authoritative decision was necessary on the point that had been raised and so referred the following question to a Bench :

"The question that is raised in this petition is whether in view of Madras Act 32 of 1951 which was introduced as an amendment to Section 20 of the Opium Act (Central Act 1 of 1878), a confession made to a Prohibition Officer is admissible or not."

Before attempting to answer this question it is as well to examine Some of the provisions of the Opium Act (Central Act 1 of 1878). Section 4 prohibits the possession, transport, import, export or sale of opium except under certain circumstances referred to in that Act. Section 9 provides penalties for the contravention of Section 4 and some other sections. Section 14, as it stood before it was amended in Madras, conferred on certain categories of officers belonging to the departments of <ORG>, <ORG>, Customs, Salt, Opium and Revenue, power of entry, search, seizure and arrest when they had reason to believe that opium liable to confiscation under the Act was kept or concealed in any building, vessel or enclosed space. These powers, however, could be exercised only between sunrise and sunset. Section 15 empowers every officer of the departments referred to in Section 14 to seize opium in transit or in any open place. It also confers powers of detention, search and arrest. Section 20 requires that every person arrested and every thing seized under Section 14 or Section 15 shall be forwarded without delay to the officer in charge of the nearest <ORG> Station. Section 21 requires an officer making an arrest or seizure under the Act to send a report of the matter to his immediate official superior within 48 hours thereafter,

3. It will be noticed that under the Act, as it stood before it was amended, though the officers of the <ORG>, <ORG> and other departments were given powers to enter, search, seize and arrest, they had no power to investigate. In 1951 <ORG> amended the Central Opium _Act in certain respects. Officers of <ORG> were included in the categories of others referred to in Section 14 who could enter, search, seize and arrest on reasonable suspicion of a contravention of the provisions of the Act. A new section, Section 20A was added which runs as follows :

"<ORG> may, by notification in the Official Gazette, invest any officer of <ORG>, or every officer belonging to any special class in that department, with the powers of an officer in charge of a police station for the investigation of offences under this Act."

4. The result of the amendment is to confer on officers of the Prohibition department in relation to offences under the Opium Act , practically all the powers of a <ORG> Officer. But, at the same time it will be noticed that the Amending Act does not call these officers Police Officers.

5. There is no exhaustive definition of the expression "Police Officer" in any of our statutes. Act 5 of 1861 (Indian Police Act ) merely says, "the word 'Police' shall include all persons who shall be enrolled under this Act."

'Ex facie', this definition is not exhaustive, and it is of no help in answering the question that is now before us. In the absence of a statutory definition, and, apart from all authority, one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such, or, on whom it confers all or substantially all the powers and imposes the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If- he is not so called then the next step is to ask: what does the law require him to do? What are the duties imposed on him? and what are the powers conferred on him? If these are substantially those of a police officer there need be no qualms in regarding him as one. If his powers and duties are con-fined to a particular extent of territory or to a particular subject-matter he will be a police officer only in respect of that territory or that subject-matter. The material thing to consider would be not the name given to him, nor the colour of the uniform he is required to wear, tout his functions, powers and duties. A police officer does not cease to be such merely because he is put into a white <ORG> uniform instead of one in khaki drill; a medicine will be just the same whether it is packaged in a glass jar or a plastic container.

6. Support for the view that regard must be had not to the name but to the powers, duties and functions of the officer, is to be found in the decision reported in -- 'Someshwar H. Shelat, in re', AIR 1946 Mad 430 (A). In that case the question for decision was whether a Special Officer of <ORG>, who had been empowered by '<ORG> in exercise of the powers conferred on them by Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance was a police officer within the meaning and for the purpose of Section 162 , Cr. P. C. and Section 25 of the Evid'ence Act. The sub-section of the ordinance ran as follows :

"The Controller General and such Inspectors or other officers as may be empowered by <ORG> in this behalf shall, within the respective areas for which they are appointed, have power to investigate all offences punishable under this Ordinance, and in conducting any such investigation Shall, within the said areas, have all the powers, duties, privileges and liabilities of an officer in charge of a police station under the Cr. P. C., 1898, when investigating a cognizable offence within the limits of his station."

7. A Bench of this Court had no hesitation in holding that an officer empowered under this section was a police officer.

8. Mn <NAME>, the learned Public Prosecutor, drew our attention to six decisions of this Court which have a hearing on the Question before us. In -- 'Mahalakshmayya v. Emperor', 1932 Mad WN Cr 69 (B), <NAME> ruled that a statement by an accused person to an Excise Inspector in answer to questions put by him is not a confession made to a police officer within the meaning of Section 25 of the Evidence Act. In -- 'Doraiswami Nadar v. Emperor'. 1934 Mad WN Cr 67 (C), <NAME> followed this case and ruled to the same effect.

9. <CITATION> ', AIR 1938 Mad 460 (D), Horwill J. followed the two earlier decisions just now referred to. Before that learned Judge the decisions in -- ' <CITATION> ', AIR 1927 Bom 4 (FB) (E) and -- 'Ameen Sharif v. Emperor', AIR 1934 Cal 580 (FB) (F) were cited. But lie distinguished them saying, "The Full Bench of <ORG> followed a Full Bench of <ORG>, whose decision naturally turned on the interpretation of the Bombay Excise Act which, in this respect, is similar to the Calcutta Act. The Madras Act, however, does not give excise officers quite the same powers as the Bombay and Calcutta Excise Acts, and for that reason this court has on three occasions held that for the purpose of Section 25 of the Evidence Act, an excise officer is not a police officer."

No doubt he went on to add, "It appears to me that as Section 25 refers only to a police officer, a court should not extend it to other classes of officers merely on grounds of, similarity of function, especially in view of the fact that the Evidence Act was introduced at a time when the methods of the police were much more open to attack than they are now." 10. In -- 'Mayilvahanam, In re', AIR 1947 Mad 308 (G), <NAME> had to consider the position of an Assistant Inspector of <ORG> and he took the same view that had been taken in the earlier decisions of this <ORG>. See also -- '<NAME>, In re', AIR 1948 Mad 116 (H) and -- '<NAME>, In re', (I). 11. It seems to me that none of these decisions are in point because they belong to a time before the Central Opium Act was amended by <ORG> in 1951. 12. In -- 'AIR 1927 Bom 4 (FB)' (E), the following question was formulated for the decision of the <ORG>: "Is an Abkari Officer, who, in the conduct of investigation of an offence punishable under the Bombay Abkari Act, exercises the powers conferred by the Criminal Procedure Code , 1898, upon an officer in charge of a police station for the investigation of a cognizable offence, a police officer within the meaning of Section 25 of the Evidence Act?"

All the learned Judges, there were five of them, were unanimously of the opinion that the question should be answered in the affirmative. A different view was taken by a Full Bench of three Judges of <ORG> in --'Radhakishun v. <NAME>', AIR 1932 Pat 293 (SB) (J). Mr. <NAME>, the learned Public Prosecutor, placed special emphasis on this decision because the question that was decided in that case was whether a confession made before an Excise Inspector who, under the Dangerous Drugs Act (Central Act 2 of 1930) not only had the power to arrest and search but had also been invested by the local Government with the powers of an officer in charge of a police station for the investigation of an offence under that Act, is admissible evidence. Section 30 of the Central Act 2 of 1930 runs as follows:

"<ORG> may invest any officer of <ORG> or any class of such officers, with the powers of an officer in charge of a police station for the investigation of offences under this Act,"

Mr. <NAME> pointed out that Section 4 of the Madras Act 32 of 1951 which introduced Section 20-A into Central Act 1 of 1878 is practically a reproduction of Section 30 of the Dangerous Drugs Act. This circumstance no doubt makes the Patna case more apposite but it does not invert the reasoning in that case with any greater force." The Patna case was exhaustively considered by a Full Bench of five Judges in Calcutta. See -- 'AIR 1934 Cal 580 (FB)' (F) in which by a majority of 4 to 1 the learned Judges preferred the view of <ORG> to that of <ORG>. The report of that decision occupies 56 pages of the book and every conceivable aspect of the matter has been exhaustively discussed. It is held to discover much which can be profitably added to that discussion.

13. On the view taken by the learned Judges In the Patna case and by <NAME> in the Calcutta case, I would make these observations. It appears to me that they looked too narrowly to the appearance of things and declined to look at the substance behind the appearance. They focussed attention on the label and would not look farther. I also consider that the learned Judges were being much too strict when they refused to consider why these rules of exclusion were embodied in Section 162 , Cr. E, C. and Section 25 of the Evidence Act. It is true that the grounds of exclusion are not indicated either in the Evidence Act or the Criminal Procedure Code . But that does not seem a sufficient reason for refusing to consider that aspect of the matter. It has some times been said that he does not know the law who does not know the reason for the law. Surely, if you refuse to look at the reason for a particular rule of law how can any valid conclusion be reached?

14. I prefer the view taken by <ORG> in Bombay; and in Calcutta, and would say that in relation to an offence under the Opium Act a Prohibition Officer on whom <ORG> has conferred the powers of an officer in charge of a police station, is a police officer for purposes of Section 162 , Cr. P. C. and Section 25 of the Evidence Act.

15. It follows that the confession in this case is inadmissible in evidence. In the result the revision petition is dismissed.

16. <NAME>: This matter has now come before us having been referred by our learned brother <NAME> to resolve the judicial conflict on the interpretation of Section 20 of the Opium Act. The question to be answered by us is:

"Is the Excise Officer who exercises the powers conferred by the Criminal Procedure Code in charge of police station in the conduct of an investigation of an offence against excise laws a police officer within the meaning of Section 25 of the Evidence Act and Section 162 , Cr. P. C."

17. The facts relevant for the purpose of this enquiry are the following: It is alleged for the prosecution that on 1-1-1952 a parcel was booked from New Delhi to Madras by train from where the same was sent on the morning of 5-1-1952 to <NAME>. At this place, the first accused took delivery of the parcel at the instance of accused 2 to 4. When the first accused was taking it out of the parcel office, <NAME>, an Assistant Inspector of Excise caught hold of him and on an examination it was found to contain 33 seers of opium. After investigation, a charge sheet was laid against the first accused for possession of opium punishable under Section 9 (a) of the Opium Act and against accused 2 to 4 under Section 9 (b) of the said Act for transporting opium. In the course of examination of <NAME> he wanted to prove a statement made by the first accused to him which was reduced to writing. An objection was taken on behalf of the accused to the admissibility of the statement on the ground that the officer to whom the statement was made was a police officer within the meaning of Section 162 , Cr. P. C. and Section 25 of the Evidence Act The objection was upheld by the Stationary Sub-Magistrate of <NAME>, and the statement recorded by P. W, 1 from the first accused was ruled out as being inadmissible. It Is against this that the present revision petition has been filed by the State Government.

18. In support of this petition, it is urged by the learned Public Prosecutor that an excise officer is not a police officer within the meaning of Section 25 of the Evidence Act and the prohibition enacted therein cannot be extended to excise-officers.

19. The question whether an excise officer was a police officer and the confession made to him in the course of investigation was to-be excluded by virtue of the provisions of Section 25 of the Evidence Act came up for consideration in a number of cases in this Court. In -- '1932 Mad WN Cr 69' (B) Sundaram Chetty J. held that an admission made by an accused person to an excise inspector could not be ruled out as-it could not be regarded as a confession made to a police officer coming under Section 25 of the Evidence Act. To the same effect is the ruling, of <NAME> in -- '1934 Mad WN Cr 67' (C). In -- 'AIR 1938 Mad 460' (D) <NAME> took the same view although there was no reference to the two earlier case's. Referring to a Calcutta-case which will be alluded to presently and which expressed the opinion that an excise officer was a police officer within the ambit of Section 25 of the Evidence Act, the learned Judge distinguished that case on the ground that it was based on Special provisions of the Bengal Excise Act which made excise officers for purposes of excise offences police officers.

20. The scope of a statement made to an assistant inspector of customs by an accused person in the course of an investigation fell to-be considered by <NAME> in -- 'AIR 194T Mad 308' (G). The learned Judge on a review of the earlier decisions of this Court held that the statement did not come within the prohibition of Section 25 of the Evidence Act. In a more recent case <NAME> (as he then was) in -- 'AIR 1948 Mad 116' (H) referred to the earlier decisions of this Court and expressed his concurrence with them.

21. It must be noted that all these decisions were given on the interpretation of the Opium Act as it stood then. Section 20 of the Opium Act provided:

"Every person arrested and thing seized, under Section 14 or Section 15 , shall be forwarded" without delay to the officer in charge of the nearest police station; and every person arrested and thing seized under Section 19 shall be-forwarded without delay to the officer by whom the warrant was issued....."

Section 14 of the Act as amended in 1947, runs thus:

"Any officer of any of the departments of Excise, Prohibition, <ORG>, <ORG>, <ORG>,. Opium or <ORG> superior in rank to a peon, guard, or constable, who may in right of his office be authorised by <ORG> in this behalf, and who has reason to believe, from personal knowledge or from information given by any person and taken down in writing, that opium liable to confiscation under this Act is.........,..kept or conceiled in any building, vessel or enclosed places may, between sunrise and sunset:

(a) enter into any such building, vessel or place;

(b) in case of resistance, break open any door and remove any other obstacle to such entry;

(c) seize Such opium........... and any other thing which he has reason to believe to be liable to confiscation under Section 11 or any other law for the time being in force relating to opium, and

(d) detain and search, and, it he thinks proper, arrest any person whom he has reason to believe to be guilty of any offence relating to such opium under this or any other law for the time being in force."

22. Section 15 confers on an officer of the said departments powers to seize in any open place or in transit any opium and detain, search and arrest any person who is believed to be guilty of an offence against this or any other such law.

23. It is thus seen that any of the officers mentioned in Section 14 of the Opium Act has only power to seize the articles involved in a crime whether they are in an enclosed place or an open place and detain, search or arrest any person Suspected of having committed any offence against the statute. He has no power to investigate into these crimes and he can only forward the person and the things seized without any delay to the officer in charge of the nearest police station.

24. In 1951 <ORG> amended Section 20 of the Opium Act by inserting Section 20-A by Madras Act 32 of 1951 by which the officers mentioned in the sections already referred to were invested with certain powers of a police officer for investigation. Section 20-A runs thus:

"20-A--The State Government may, by notification in the Official Gazette, invest any officer of the Prohibition department, or every officer belonging to any specified class in that Department, with the powers of an officer in charge of a police station for the investigation of offences under this Act."

25. Now the question for consideration is whether this amendment has, in any way, . altered the position in regard to the state of authority bearing on the subject. That it does bring about a change in respect of powers to be exercised by those officers in the detection of crimes is beyond question. Subsequent to this amendment, the necessity to forward the articles seized and the person apprehended to the nearest police station is dispensed with and the officer concerned himself is authorised to investigate into the matter. But the controversy is whether this has the effect of bringing such an officer within the purview of Section 25 of the Evidence Act and Section 162 , Cr. P. C. Section 25 of the Evidence Act says:

"No confession made to a police officer shall be proved as against a person accused of any offence."

While Section 162 (1), Cr. P. C. enacts:

"162 (I): No statement made by any person to a police officer in the course of an investigation under this chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part o£ such statement or record be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made;"

26. The word 'police officer' is not defined anywhere in the Evidence Act while we have only the definition of the "officer in charge of the police station" in the Criminal Procedure Code . From it we do not get any help. Nor is the definition of a "police officer" in the Identification of Prisoners Act , that is, Act 33 of 1920 of any assistance to us in the determination of, the question before us.

27. A similar question arose on the provisions of the Bombay Abkari Act before a Full Bench of <ORG> in -- 'AIR 1927 Bom 4 (FB)' (E). The section of the Act which the learned Judges of <ORG> had to consider was Section 41 which provided that "every Abkari officer not below such rank as Government may prescribe shall within the area for which he is appointed have power to investigate all offences punishable under this Act."

Sub-section (2) provided that "such officer shall in the conduct of such investigaton exercise the powers conferred by the Criminal Procedure Code , 1898, upon an officer in charge of a police station for the investigation of a cognizable offence."

28. It is seen that this is analogous to the provisions of Section 20-A of the Opium Act as, amended by Madras Act 32 of 1951. In that case, the learned Judges decided that an Abkari Officer invested with powers of an officer in charge of the police station under Section 41 of the Abkari Act was a police officer coming under the rule embodied in Section 25 of the Evidence Act-The ground for the decision was that as the <ORG> had deliberately conferred upon an Abkari Officer substantially all the powers of a police officer, he had in effect become a police officer coming within the purview of Section 25 of the Evidence Act. For this reason it was held there that any confession made to such an officer under the Abkari Act or the Criminal Procedure Code was inadmissible in evidence. The observations of <NAME> at page 8 are apposite in this context:

"In this connection, I should like to point out that it was open to the <ORG> or to <ORG> to do one of two or three things. It could detatch ordinary police officers to investigate excise offences. Or on the other hand, it could appoint other officers of <ORG> or new officers to perform the duties of investigation and arrest and so on, which had previously been performed by ordinary police officers. Whichever course was adopted, any alleged offence would, in effect, be investigated by persons in the position of policemen, In this very case it would appear that the effect of the above sections of the Abkari Act is that certain duties, which previously fell upon ordinary Police Officers, are in fact now being carried out by the Abkari officers, who have been given these particular police-powers."

29. In support of his conclusion the learned Chief Justice relied on the dictum of Sir <NAME> in -- ' <CITATION> ', 1 Cal 207 (K) that the word "police officer" was not used in Section 25 o£ the Evidence Act , in a technical sense but was used in a comprehensive and popular sense. Referring to earlier rulings of that Court and of <ORG> the- learned Chief Justice distinguished them on the ground that they were based on the language of Section 20 of the Opium Act and the provisions of the Bengal Abkari Act which were widely different from those of Section 41 of the Bombay Abkari Act.

30. <NAME> one of the learned Judges of the Full Bench in. the course of his judgment stated that an officer contemplated by Section 41 , Sub-section (1) was virtually in the same position as a police officer in the matter of investigation of the offences under that Act. All that was meant by the expression "police officer" in Section 25 of the Evidence Act was "an officer who exercises the powers of the police conferred on him by law" by whatever name he is called. The other three learned Judges also expressed their concurrence with the opinion mentioned above. The principle enunciated in that ruling is applicable to the case before us as the provisions of Section 20-A of the Opium Act bear a close resemblance to those of Section 41 of the Bombay Abkari Act, and I express my respectful accord with it.

31. <ORG> reached an opposite conclusion in -- 'AIR 1932 Pat 293 (SB)' (J). The point which the Full Bench of <ORG> considered was whether an Inspector of Excise acting in the course of; his duties was a police officer within the meaning of Section 25 of the Evidence Act and whether a confession made to him was admissible. The learned Judge's answered the point in the negative. In their view an Excise Officer could not be regarded as a police officer merely because he was exercising certain functions in the conduct of investigation of an excise offence. The learned Chief Justice (Courtney'-Terrell C. J.) observes that he found himself "in complete disagreement with the arguments which found favour" in the Bombay case. According to him, there was a fallacy in the judgment of <ORG> which was attributable to two causes. One was the misconception of the ruling in -- '1 Cal 207' (K) and the other the adoption of an erroneous canon of construction of statutes, that is, the consideration of what is supposed to be the object of Section 25 of the Evidence Act, by the learned Judges of <ORG>. In this view of the matter the learned Chief Justice thought that the opinion expressed in -- 'AIR 1927 Bom 4 (FB)' (E) was an erroneous one.

32. <NAME> who agreed with <NAME> observed that as laid down in --'1 Cal 207' (K), it was well settled that the term "police officer" should not be construed in a technical sense but in its more popular and comprehensive sense, while the other learned Judge, <NAME> was of the view that the word "police officer" connotes nothing more or less than a member of the police force and he did not think that the observation of <NAME> was intended to go beyond that. It is clear that this dictum of <NAME> is plainly opposed to that of <NAME> in -- '1 Cal 207' (K) in spite of the learned Judge's attempt to reconcile the two dicta. It does not appear to me that the Judges of <ORG> in any way misunderstood the scope of the dictum in -- '1 Cal 207' (K). Reliance was placed by <NAME> in the Bombay case on -- '1 Cal 207' (K) only for the purpose of showing that the term "police officer", was not used in a restricted sense but has a wider import, Nor can I bring myself to agree with <ORG> that the Judges of <ORG> adopted an erroneous canon of construction. No doubt a statute has to be construed with reference to the language employed therein and it is not permissible to speculate as to the object or the intention of the <ORG>. But when the meaning of an expression is not plain and it is not possible to ascertain the meaning of a term or to gather its import from the statute itself, I think it is permissible to resort to extrinsic guides. In this context the remarks of Lord <NAME> in -- 'Keats Lewis Merthyr v. Consolidated Colliers', (1911) AC 641 (L) are apposite:

"In the construction of a statement it is, of course, at all times and under all circumstances permissible to have regard to the state of things existing at the time the statute was passed, and to the evils which as appears from its provisions it was designed to remedy."

33. It may be recalled that the term "police officer" is not defined in the Evidence Act or in the Criminal Procedure Code . So in trying to understand the signification of that expression it is perfectly legitimate to have regard to the setting and the context in which Section 25 of the Evidence Act was enacted. With great respect to the Judges who decided -- 'AIR 1932 Pat 293' (J) I am unable to appreciate their criticism of -- 'AIR 1927 Bom 4 (FB)' (E). It looks to me that the legislature must have used that expression in a larger sense than that attributed to it by <ORG>.

34. Subsequent to the ruling of <ORG> an identical point arose for consideration before a Full Bench of five Judges of <ORG> in -- 'AIR 1934 Pat 580 (FB)' (F). There the conviction of the accused persons under Section 9 of the Opium Act was mainly based on a confession said to have been made by them to an Excise Inspector. The admissibility of this confession was raised in appeals preferred by the accused against their convictions. In view of the conflict of judicial opinion, the matter was placed before a Full Bench of five Judges. The answer given by <ORG> (by a majority) was that the <ORG> in using the term "police officer" in Section 25 of the Evidence Act did not intend to exclude from its meaning Excise officers exercising powers of detection and investigation of crimes committed against excise laws. There is an exhaustive discussion of the topic and the opposing views expressed in -- 'AIR 1927 Bom 4 (FB) (E)' and -- 'AIR 1932 Pat 293 (J)' are also considered. Four of the learned Judges approved of the rule of law stated in -- 'AIR 1927 Bom 4 (FB)' (E). The reasoning in --'AIR 1932 Pat 293 (SB) (J)' was not acceptable to them.

35. The leading judgment of <NAME> is a very instructive one. The learned Judge reviewed the case law bearing on the subject and also considered the reason of the rule enacted in Section 25 of the Evidence Act. Discussing the connotation of the term "police officer" in the-light of the relevant provisions of Police Act 5 of 1861, he Stated that police officers were officers whose duty was to prevent and detect crimes. The learned Judge also referred to one of the meanings given to that expression in the Oxford Dictionary viz., "The civil force, to which is entrusted the duty of maintaining public order, enforcing regulation for the prevention and punishment of breaches of the law, and detecting crime; construed as plural, the members of a police force; the constabulary of a locality as throwing light on the import of that term."

36. The position was summed up by the learned Judge at page 586 thus:

"The powers and duties of excise officers investigating offences have been gradually brought more and more on a line with those of the officers of the police force, and they have been made police officers for the purposes of such investigation in all possible manner," 37. <NAME>, <NAME> and <NAME> agreed with the opinion expressed by <NAME> while <NAME> struck a note of dissent.

38. <NAME> in the course of his judgment remarked that in an excise case, an excise officer is the real police officer and the only police officer in the case. He also pointed out that in the earlier Calcutta cases in which the view was taken that an excise officer was not a police officer for purposes of Section 25 of the Evidence Act, the question of an excise officer exercising the powers of a police officer was not discussed and that except in one of them the attention of the learned Judges was not attracted to the material provisions of the Excise Act .

39. In my judgment, the view taken in --'AIR 1934 Cal 580 (FB)' (F) is a correct and a sound one and I am wholly in agreement with the reasoning adopted in that case.

40. I will now refer to a ruling of a Bench of our <ORG> in -- 'AIR 1946 Mad 430' (A). The statutory provision which formed the subject-matter of inquiry before the Bench consisting of Sir <NAME> and <NAME> was Sub-section 3 of Section 12 of the Hoarding and Profiteering Prevention Ordinance 53 of 1944. Sub-section (3) of Section 12 reads as follows:

"The Controller General and such inspectors or other officers as may be empowered by <ORG> in this behalf shall within the respective areas for which they are appointed, have power to investigate all offences punishable under this Ordinance and in conducting any such investigation shall, within the said areas, have all the powers) duties, privileges and liabilities of an officer in charge of a police station under the Criminal Procedure Code , 1898, when investigating a cognizable offence within the limits of his station."

41. By virtue of this provision <ORG> gave certain officers of <ORG> power to investigate offences within their respective jurisdictions. With reference to these provisions the following question was submitted by the Chief Presidency Magistrate under Section 432 , Cr. P. C. for the opinion of the Court:

"Whether a Special _officer of <ORG> who has been empowered in this behalf by <ORG> in exercise of the powers conferred on them by Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance introduced by the amending Ordinance No. 43 of 1944, is a police officer within the meaning and for the purpose of Section 162 , Cr. P. C. and Section 25 of the Evidence Act."

On an interpretation of the relevant provisions the learned Judges gave the answer in the affirmative. In the course of the order it was remarked thus:

"If an investigating officer is a police officer within and for the purpose of Section 162 , Cr. P. C. this practice is obviously illegal. That he is a police officer within the meaning of the section we have no doubt whatever. Section 12 (3) of the Hoarding and Profiteering Prevention Ordinance expressly gives him all the powers, duties and privileges of an officer in charge of a police station under the Criminal Procedure Code , 1898, when investigating a cognizable offence within the limits of his station.

Therefore he has the full status of a police officer and his powers and duties must be limited to those of a police officer under the Criminal Procedure Code , which means that he has no right in an investigation under the Ordinance to require a person to Sign a statement and where such a statement is reduced to writing it can only be used in accordance with the provisions of Section 162 , Cr. P. C. or Section 27 of the Evidence Act."

42. The ruling in this case is applicable to the present case with equal force, as Section 20-A of the Opium Act are in 'pari materia' with the provisions of Sub-section (3) of Section 12 of the Hoarding and Profiteering Prevention Ordinance. I respectfully adopt the reasoning in this case. This decision was distinguished by <NAME> in -- AIR 1947 Mad 308' (G) already referred to on the ground that it was based exclusively on the phraseology employed in Sub-section (3) of Section 12 of the said Ordinance which specifically mentioned that the officers concerned should have all the powers, duties, privileges and liabilities of an officer-in-charge of a police station.

43. It is clear from these observations that <NAME> rested his conclusion in the case last mentioned on the absence of provision investing the excise officers in the detection of excise offences with the powers of a police officer in charge of the police station. As already pointed out that was a case prior to Madras Act 32 of 1951 which amended Section 20 of the Opium Act.

44. <NAME> (as he then was) in --'AIR 1948 Mad 116' (H) to which reference had been already made, in distinguishing Calcutta and <ORG> decisions in -- 'AIR 1934 Cal 580 (FB)' (F) and -- 'AIR 1927 Bom 4 (FB)' (E) stated that an identical conclusion could be reached if there was a similar provision in any other enactment. This statement makes it abundantly clear that the learned Judge would have reached the conclusion that an excise officer was a police officer for purposes of Section 25 of the Evidence Act and Section 162 , Cr. P. C. if provisions similar to Section 20-A of the Opium Act were in force then.

45. In the light of the above rulings and on a careful consideration of the relevant statutory provisions, I have reached the conclusion that the term "police officer" is used in Section 25 of the Evidence Act with reference to the functions exercised by the officer and not as an officer of the police department. It only means an officer exercising certain powers and is not confined to an officer belonging to the police department. In my opinion, it is the exercise of functions like the detection of crimes which involves the holding of investigation that marked out these officers for special treatment in regard to the confessions made to them in the course of investigation.

46. I may add, In recent times, the need to pass laws intended to regulate social and economic life of the people and to add to the revenues of the country as well, has indeed become very great This had led to the Legislatures investing the officers appointed for the purpose of giving effect to the provisions of these enactments, to check the evasion thereof and to prevent and detect crimes created under various enactments and to bring the offenders to justice, with powers of investigation. The insertion of Section 20-A of the Opium Act is one of such instances. If these officers are invested with the same powers and are in the same position as the officers of the police department in relation to the detection of crimes by holding investigations, there does not seem to be any rational basis, for distinction and for not extending the rule in Section 25 of the Evidence Act and Section 162 , Cr. P. C. to them, especially when the functions exercised by both categories are essentially the same. In my opinion, it was not so much against an officer of a particular department that the prohibition under Section 25 of the Evidence Act is enacted and the restrictions contained in Section 162 , Cr. P. C. are placed as the desire to prevent the use of the statements made to officers engaged in the investigation of crimes to the prejudice of the accused persons.

47. It is also to be noted that it is Ch. XIV, Cr. P. C. that deals with the investigations, and when the power of an officer in charge of the police station for the purpose of investigation is conferred upon an officer under Section 20-A of the Opium Act, all the sections of that Chapter should be held applicable to such a case. Section 162 , Cr. P. C. being one of the sections of that Chapter is equally applicable to a statement made to a prohibition or excise officer in the conduct of investigation.

48. In these circumstances, the conclusion I have reached is that an excise officer invested with the powers of an officer in charge of a police station for investigation of offences under Section 20-A of the Opium Act is a "police officer" coming within the purview of Section 25 of the Evidence Act and Section 162 , Cr. P. C. and any confession made to him in the course of investigation is inadmissible under Section 25 of the Evidence Act and the statements made to such an officer under Section 162 , Cr. P. C. can be used only in the manner enacted therein.

49. In the result the revision petition is dismissed.